Dismissed

Radha Krishna Bhatta v. T.Madhava Bhatta

Kerala HC4 Mar 2024RP/441/1999

Case brief

AI extract

What is this about?

Review petition against a Division Bench judgment in an appeal from a final decree in a family partition suit involving a temple management scheme. The petitioners sought reconsideration of mesne profits liability and adequacy of the scheme. The Court held the grounds amounted to re-arguing factual matters impermissible in review, and dismissed the petition.

What the court decided

AI extract

Radha Krishna Bhatta Vs T.Madhava Bhatta — Partition | Kerala HC (2024)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT

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THE HONOURABLE MR. JUSTICE AMIT RAWAL

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THE HONOURABLE MRS. JUSTICE C.S. SUDHA

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MONDAY, THE 4^TH DAY OF MARCH 2024 / 14TH PHALGUNA, 1945

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RP NO. 441 OF 1999

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AGAINST THE JUDGMENT DATED 02.07.1999 IN AS NO.380

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OF 1999 OF HIGH COURT OF KERALA

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REVIEW PETITIONER/S:

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1 RADHA KRISHNA BHATTA RESIDING AT THAIRE OF THEKKIL VILLAGE AND POST, KASARAGOD TALUK

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2 RAMACHANDRA BHATTA RESIDING AT THAIRE OF THEKKIL VILLAGE AND POST, KASARAGOD TALUK

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3 ACHUTHA BHATTA RESIDING AT THAIRE OF THEKKIL VILLAGE AND POST, KASARAGOD TALUK

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4 GOVINDA BATTA

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RESIDING AT THAIRE OF THEKKIL VILLAGE AND POST, KASARAGOD TALUK

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5 SUBRAMANYA BHATTA RESIDING AT THAIRE OF THEKKIL VILLAGE AND POST, KASARAGOD TALUK

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6 PRAKASHA BHATTA RESIDING AT THAIRE OF THEKKIL VILLAGE AND POST, KASARAGOD TALUK. ALL ARE SONS OF T.VENKATRAMA BHATTA.

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7 VENKATARAMA BHATTA RESIDING AT THAIRE OF THEKKIL VILLAGE AND POST, KASARAGOD TALUK.

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8 SREERAMA, BOTH OF THEM ARE SONS OF RADHAKRISHNA BHATTA, RESIDING AT THAIRE OF THEKKIL VILLAGE AND POST, KASARAGOD TALUK.

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9 RAVIKIRANA RESIDING AT THAIRE OF THEKKIL VILLAGE AND POST, KASARAGOD TALUK.

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BY ADVS. M.C.SEN (SR.) SHAHANA KARTHIKEYAN S.PRAKASH M.P.SREEKRISHNAN

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R.P.No.441/1999 in A.S.No.380/1999

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RESPONDENT/S:

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1 T.MADHAVA BHATTA S/O.KRISHNA BHATTA, RESIDING AT THAIRE OF THEKKIL VILLAGE OF KASARAGOD TALUK, KASARAGOD DISTRICT.

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2 T.VASUDEVA BHATTA RESIDING AT THAIRE OF THEKKIL VILLAGE OF KASARAGOD TALUK, KASARAGOD DISTRICT.

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3 T.PADMANABHA BHATTA RESIDING AT THAIRE OF THEKKIL VILLAGE OF KASARAGOD TALUK, KASARAGOD DISTRICT.

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4 T.GANESHA RESIDING AT THAIRE OF THEKKIL VILLAGE OF KASARAGOD TALUK, KASARAGOD DISTRICT. NOS. 2 TO 4 ARE CHILDREN OF MADHAVA BHATTA.

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5 R.T.SUDHARSHAN BHAT RESIDING AT THAIRELL, THEKKIL VILLAGE AND POST KASARAGOD TALUK

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6 SHARATHKUMAR BHAT RESIDING AT THAIRELL, THEKKIL VILLAGE AND POST KASARAGOD TALUK

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7 MADHUSUDHANA BHAT ALL ARE SONS OF LATE T.NARAYANA BHATTA. RESIDING AT THAIRELL, THEKKIL VILLAGE AND POST KASARAGOD TALUK

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8 SHANMUGHA BHATTA RESIDING AT THAIRELL, THEKKIL VILLAGE AND POST KASARAGOD TALUK

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9 JANARDHANA BHATTA RESIDING AT THAIRELL, THEKKIL VILLAGE AND POST KASARAGOD TALUK

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10 SHARADHA (NOS.8 TO 10 ARE CHILDREN OF ANANTHA BHATTA) RESIDING AT THAIRELL, THEKKIL VILLAGE AND POST KASARAGOD TALUK

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11 SUNANDA, W/O.ANATHA BHATTA, RESIDING AT THAIRE, THEKKIL VILLAGE, DO POST, KASARAGOD TALUK.

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R.P.No.441/1999 in A.S.No.380/1999

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12 K.M.ABBAS, INDIAN PASSPORT NO J805896, P.B.NO.355, BUBAI U.A.E

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13 K.M.MOHAMMED , INDIAN PASSPORT BI KO17186 P.B.NO.138, DUBAI, U.A.E. BOTH OF THEM ARE SONS OF IRIYAL MOIDEEN KUNHI. (DELETED)

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14 BALIYODAN KRISHNAN NAIR, S/O.KORAN NAIR, RESIDING AT MULLACHERY OF BAEE VILLAGE, POST UDMA, HOSDURG TALUK. (DELETE)

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15 BALIYODAN KUNHIRAMAN NAIR, S/O.KORAN NAIR RESIDING AT MANIYOTH OF THEKKIL VILLAGE, KASARAGOD TALUK. (DELETED)

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16 SUKUMARAN NAIR, S/O.KUNHIKRISHNAN NAMBIAR, R/AT KUPPAM OF TALIPARAMBA VILLAGE AND POST, TALIPARAMBA TALUK , KANNUR DISTRICT.

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17 BEEPATHUMMA, W/O.MAMMUNHI, (DIED) IT IS RECORDED THAT 17TH RESPONDENT DIED AND RESPONDENTS 18 TO 23 ALREADY IN THE PARTY ARRAY ARE HER LEGAL HEIRS VIDE MEMO DATED 8/11/02 CF NO.4606/02

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18 ABDUL KHADER,

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RESIDING AT MASTHIKUNDU OF MULIYAR VILLAGE OF KASARAGOD TALUK. (DELETED)

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19 ABDULLA KUNHI

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RESIDING AT MASTHIKUNDU OF MULIYAR VILLAGE OF KASARAGOD TALUK.

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20 MOOSA

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RESIDING AT MASTHIKUNDU OF MULIYAR VILLAGE OF KASARAGOD TALUK. (DELETED)

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21 KUNHAMU RESIDING AT MASTHIKUNDU OF MULIYAR VILLAGE OF KASARAGOD TALUK. (DELETED)

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22 AMADE RESIDING AT MASTHIKUNDU OF MULIYAR VILLAGE OF KASARAGOD TALUK. (DELETED)

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R.P.No.441/1999 in A.S.No.380/1999

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23 USMAN KUNHI

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RESIDING AT MASTHIKUNDU OF MULIYAR VILLAGE OF KASARAGOD TALUK. NOS.18 TO 23 ARE SONS OF MAMMUNHI,

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24 P.KAYINHI ALIAS ABDUL KHADER, S/O.MAMMUNHI, RESIDING AT THEKKIL VILLAGE, DO. POST KASARAGOD TALUK.

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25 GODAVARI AMMA, W/O.LATE NARAYANA BHATTA, RESIDING AT THAIRE OF THEKKIL VILLAGE , DO. DO

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26 LAKSHMI., W/O.LATE GOVINDA BHATTA, RESIDING AT HARI NILAYA, POST KUMBADA JE KASARAGOD TALUK.

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27 RUKMINI V.KESHAVAN, W/O.V.KESHAVAN, RESIDING AT ICC PIPE LINES, POST RAILWAY COLONY, SABARMATHI, AHAMMADABAD, GUJARATH.

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28 KALAVATHI K. W/O.PADMANABHA BHAT, R/AT KOREKKANA, POST KUMBADAJE , KASARAGOD TALUK.

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29 BHARATHI S. W/O.SUBRAMANYA BHAT, RESIDING AT OTEKKADU HOUSE, POST PADRE, KASARAGOD TALUK, VIA PERALA.

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30 LALITHA T., D/O.LATE NARAYANA BHAT, RESIDING AT ALGAL PROJECT, G.F.T.F.I MYSORE -13

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31 KAVERI ALIAS PADMAVATHI, W/O.VENKATRAMANA PHATTA,

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32 SREEDEVI,

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W/O.NARAYANA BHATTA, RESIDING AT MANHALAMPARA OF BEDADKKA VILLAGE & POST, KASARAGOD TALUK.

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33 KASHYAMMA ALIAS GEETHA RESIDING AT THAIRE OF THEKKIL VILLAGE AND POST KASARAGOD TALUK.

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34 SEETHAMMA RESIDING AT THAIRE OF THEKKIL VILLAGE AND POST, KASARAGOD TALUK.

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R.P.No.441/1999 in A.S.No.380/1999

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35 MANORAMA,

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W/O. P.ACHUTHA BHAT, C/O.P.ACHUTAH BHAT, DEVELOPMENT OFFICER, LIC OF INDIA , SHIGGON, DHARWAD DISTRICT, KARNATAKA.

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36 USHA, RESIDING AT THAIRE OF THEKKIL VILLAGE AND POST, KASARAGOD TALUK.

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BY ADVS. A.P.CHANDRASEKHARAN (SR.) A.DINESH RAO L.GOPALAKRISHNAN POTTI K.JAYESH MOHANKUMAR M.KRISHNAKUMAR K.MANU RAJ PRABHA R.MENON PUSHPARAJAN KODOTH P.SHRIHARI P.VANI

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THIS REVIEW PETITION HAVING COME UP FOR ADMISSION ON 04.03.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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R.P.No.441/1999 in A.S.No.380/1999

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AMIT RAWAL & C.S.SUDHA, JJ.

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-------------------------------------------------------------------------

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R.P.No.441/1999 in A.S.No.380/1999

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------------------------------------------------------------------------Dated this the 04^th day of March 2024

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J U D G M E N T

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Amit Rawal, J.

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Appeal Suit No.380/1999 has been decided by the Division Bench of this Court in the following manner:

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“Respondents 2 to 10 in I.A. 861/84 and defendants 2 to 10 in 0.S. 48/77 before the Subordinate Judge's Court, Kasaragod are the appellants. Pursuant to a direction given by this Court in A.S.267/84 which was an appeal against a preliminary decree, a scheme for the management of the temple has been propounded in the final decree proceedings. The only complaint raised by the appellants herein is that the scheme is insufficient for the proper management of the temple and temple properties.

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2. We have gone through the scheme as framed by the court below in the final decree proceedings. We are unable to agree with the learned counsel for the appellants that it will not be possible to manage the temple and the properties on the basis of the above scheme. We find from the scheme as framed by the court below the management of the temple will be done by the eldest male members of each of the groups, namely, group of the plaintiffs, group of defendants 2

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R.P.No.441/1999 in A.S.No.380/1999

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to 10 and respondents 38 to 43, the group of defendants 12 to 14 and respondents 32 to 37 and the group of defendants 15 to 18 in rotation for a period of three years. As per the above provision, the group of the plaintiffs has to take upon the management of the temple and properties initially. After they assume management of the temple and properties as per the above scheme, if they find there is any difficulty in working out the provisions of the scheme or any inadequacy in the provisions of the scheme, it will be open to them to approach the trial court and get appropriate clarifications.

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Subject to the above observation, the appeal stands dismissed.”

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2. The grounds taken in the review petition read as under:

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“1. The appellants had raised a ground regarding the liability to pay the mesne profits to other sharers. This was omitted to be mentioned at the time of agreement and is only a mistake apparent on the face of record.

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2. It is submitted that ground 'D' in the memorandum of appeal related to the liability to pay mesne profits. Objection was filed to the commissioner's report regarding the liability to pay mesne profits. Oral evidence was adduced showing that D2 to D10 are not liable for mesne profits. The lower court has dealt with it. Hence there is sufficient basis for raising this question in the appeal.

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3. Admittedly first defendant and D2 to D10 were managing the temple. The properties endowed for the temple are in possession of the tenants. Compensation awarded in the O.A. relating to the properties in B schedule has not been received. No sharer has challenged the contention of D2 to D10, that they are incurring the expenses for conducting poojas and

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R.P.No.441/1999 in A.S.No.380/1999

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other ceremonies in the temple with the income from the properties in their possession. The management of the temple is the responsibility of all the family members. Hence while fixing the income from the properties in their possession the commissioner ought to have deducted the amount required for the temple. This question is covered by ground 'D'.

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4. The scheme does not provide for the source of meeting the expenses of the temple. To that extent the scheme is not adequate.”

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3. It has been stated in the review petition that the suit was for

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partition of the family properties. This court in the A.S.267/84 had directed the trial court for framing the scheme of management of the family temple. Properties and item No.14 of 'F' schedule or the compensation amount fixed by the Land Tribunal in respect of the properties are declared to be 'endowed properties' and therefore not liable to be divided among the members and also held that the question of mesne profits and the liability to pay the same will be decided in the final decree. Thereafter, the trial court passed the final decree and against the final decree, this Court in A.S.No.380/1999 directed the trial court to frame a scheme for management of the temple and allot the shares to different groups on the basis of the

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R.P.No.441/1999 in A.S.No.380/1999

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Commissioner's report. It is contended that in the appeal defendant nos.2 to 10 had raised a ground that the scheme framed by the trial court was vague and when the scheme was framed, the amount required for the management of the temple and the income from B, C and E properties was not taken into account.

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Keeping in view this fact, had sought the indulgence of this Court for review of the judgment on certain factual aspects. We are of the view that these grounds cannot be permitted to be re-agitated in a review petition, as it tantamounts to re-arguing the matter.

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No ground for interference is made out. Review petition is dismissed.

SD/-

AMIT RAWAL JUDGE

SD/-

C.S.SUDHA JUDGE

Radha Krishna Bhatta v. T.Madhava Bhatta

Case brief

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What the court decided

Radha Krishna Bhatta v. T.Madhava Bhatta

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