Partition suit where appellant disputed compromise decrees in two earlier suits on the ground her name was Thankam not Parvathy. The High Court held no proper challenge to the compromises was raised through available remedies and that no substantial question of law arose, dismissing the second appeal without admission.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE A. BADHARUDEEN
MONDAY, THE 15TH DAY OF JANUARY 2024 / 25TH POUSHA, 1945
RSA NO. 750 OF 2022
AGAINST THE JUDGMENT AND DECREE IN A.S.NO.190/2016 OF ADDITIONAL
DISTRICT COURT, OTTAPALAM
AGAINST THE JUDGMENT AND DECREE IN O.S.NO.187/2007 OF SUB COURT,
OTTAPPALAM
APPELLANT/APPELLANT/PLAINTIFF:
THANKAM @ PARVATHY
AGED 74 YEARS
W/O. NARAYANAN AND D/O. KALIYODU PUTHAN VEETTIL KUNCHUNNI
GUPTHAN, ARIYANDATH HOUSE, KARIMBA POST, MANNARKKAD
TALUK, PALAKKAD DISTRICT, PIN - 678597
BY ADVS.
SANTHEEP ANKARATH
J.RAMKUMAR
RESPONDENTS/RESPONDENTS/DEFENDANTS:
1 K.P.SANKARANKUTTY GUPTHANAGED 71 YEARS
S/O.KUNCHUNNI GUPTHAN, KALIYODU PUTHAN KALATHIL, KARIMBA
AMSOM DESOM, MANNARKKAD TALUK, PALAKKAD DISTRICT, PIN -
678597
2 K.P.BALAKRISHNAN AGED 70 YEARS S/O. KUNCHUNNI GUPTHAN, KALIYODU PUTHAN KALATHIL, KARIMBA AMSOM DESOM, MANNARKKAD TALUK, PALAKKAD DISTRICT, PIN - 6785973 K.P.NARAYANAN AGED 66 YEARS S/O. KUNCHUNNI GUPTHAN, KALIYODU PUTHAN KALATHIL, KARIMBA AMSOM DESOM, MANNARKKAD TALUK, PALAKKAD DISTRICT, PIN - 6785974 K.P.RAMAKRISHNAN AGED 64 YEARSS/O. KUNCHUNNI GUPTHAN, KALIYODU PUTHAN KALATHIL, KARIMBAR.S.A.NO.750 OF 2022 2
AMSOM DESOM, MANNARKKAD TALUK, PALAKKAD DISTRICT, PIN -
678597
5K.P.LAKSHMIKUTTY
AGED 60 YEARS
D/O. KUNCHUNNI GUPTHAN, KALIYODU PUTHAN KALATHIL,
KARIMBA AMSOM DESOM, MANNARKKAD TALUK, PALAKKAD
DISTRICT, PIN - 678597
6LEELA
AGED 72 YEARS
W/O. LATE RAMANKUTTY GUPTHAN, KALIYODU PUTHAN KALATHIL,
KARIMBA AMSOM DESOM, MANNARKKAD TALUK, PALAKKAD
DISTRICT, PIN - 678597
7UNNIKUTTAN
AGED 48 YEARS
S/O. LATE RAMANKUTTY GUPTHAN, KALIYODU PUTHAN KALATHIL,
KARIMBA AMSOM DESOM, MANNARKKAD TALUK, PALAKKAD
DISTRICT, PIN - 678597
8BABAJAN
AGED 41 YEARS
S/O. LATE RAMANKUTTY GUPTHAN, KALIYODU PUTHAN KALATHIL,
KARIMBA AMSOM DESOM, MANNARKKAD TALUK, PALAKKAD
DISTRICT, PIN - 678597
9LATHA
AGED 36 YEARS
D/O. LATE RAMANKUTTY GUPTHAN, KALIYODU PUTHAN KALATHIL,
KARIMBA AMSOM DESOM, MANNARKKAD TALUK, PALAKKAD
DISTRICT, PIN - 678597
10AMMALUKUTTY AMMA
AGED 78 YEARS
W/O. CHAMAKUZHIYIL LATE RAMANKUTTY GUPTHAN, KARIMBA
AMSOM DESOM, KARIMBA POST, MANNARKKAD TALUK, PALAKKAD
DISTRICT, PIN - 678597
11PREMAKUMARI
AGED 54 YEARS
W/O. BALAKRISHNAN, PUTHANKALAM, KALIYODE, KARIMA POST,
MANNARKKAD TALUK, PALAKKAD DISTRICT, PIN - 678597
12K.P.HARIDASAN
AGED 53 YEARS
S/O. KRISHNANKUTTY GUPTHAN, PUTHANPURAYIL VEEDU,
KALIYODE, KARIMBA POST, MANNARKKAD TALUK, PALAKKAD
DISTRICT, PIN - 678597
R.S.A.NO.750 OF 2022 3
13INDIRA
AGED 57 YEARS
W/O. RAJAN RAMAKRISHNAN, PUTHANKALATHIL, KALIYODE,
KARIMBA POST, MANNARKKAD TALUK, PALAKKAD DISTRICT, PIN
- 678597
14MURALI
AGED 51 YEARS
S/O. LATE RAMANKUTTY, CHOORAKODE VEEDU, MARUTHAMKADU,
MOONNEKKRA POST, MANNARKKAD TALUK, PALAKKAD DISTRICT,
PIN - 678597
15BINDU SAJI
AGED 49 YEARS
W/O. SAJI, KALATHIL PARAMBU VEEDU, CHEMMANTHITTA,
MARUTHAMKADU, MOONNEKKRA POST, MANNARKKAD TALUK,
PALAKKAD DISTRICT,, PIN - 678597
16SURENDRAN
AGED 60 YEARS
S/O. PUTHENPURAYIL KRISHNAN, KUTTICHOLA, KARIMBA AMSOM
DESOM, MANNARKKAD TALUK, PALAKKAD DISTRICT, PIN -
678597
R1 TO R4, R6 TO R8, R11 & R13 BY ADVS.
SREEHARI R
HAMZA A.V.
THIS REGULAR SECOND APPEAL HAVING BEEN FINALLY HEARD ON
15.1.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
R.S.A.NO.750 OF 2022 4
JUDGMENT
Dated this the 15th day of January, 2024
This Regular Second Appeal has been filed under Section 100 and Order XLII Rule 1 of the Code of Civil Procedure (for short, ‘the C.P.C.’ hereinafter), at the instance of original 10th defendant in O.S.No.187/2007 on the files of Sub Court, Ottappalam, later transposed as plaintiff, when the original plaintiff Ammalukutti Amma abandoned the suit. Respondents herein are the other parties to the suit.
R.S.A.NO.750 OF 2022 5
concerned, there were two earlier suits viz., O.S.Nos.13/1988 and 16/1988 and those suits were compromised.
R.S.A.NO.750 OF 2022 6
the suit and without her signature in the compromise. Therefore, the compromise decrees in the earlier suits would not bind upon the appellant.
Ext.B31 is the compromise in O.S.No.16/1988. If Exts.B22 and B31 are found to be in order, nothing survives to adjudicate the dispute with regard to Item Nos.1 to 14 in the plaint, in any manner.
R.S.A.NO.750 OF 2022 7
in Ashiya Ummal v. S.N.Sathy , reported in [2024 KHC OnLine 1] : [2024 KER 19] : [2024 LiveLaw (Ker) 15] and held as under:
“ 20. The Apex Court in Banwari Lal's case
(supra) has thus categorically held that a party challenging a compromise decree can file an application under the proviso to Order XXIII, R.3 CPC before the same court by which the said decree was passed or an appeal under S.96(1) CPC wherein it would be open for a party to question the validity of the compromise in view of Order XLIII, R.1A of the Code. While discussing the ratio of law laid down in Banwari Lal's case (supra) , the Apex Court in the decision reported in (2021 (5) SCC 241 : AIR OnLine 2021 SC 269),
H.S.Goutham v. Rama Murthy and another held that an appeal against a compromise decree in terms of Order XLIII, R.1A CPC was maintainable. The Apex Court in the decision reported in (2014 (15) SCC 471 : AIR 2015 SC 706), R.Rajanna v. S.R.Venkataswamy and others held that a separate suit challenging a consent decree was not maintainable, however a party aggrieved by a decree passed on the basis of a compromise could apply before the same court which passed the decree to
R.S.A.NO.750 OF 2022 8
challenge the validity of the compromise. 21. Thus the legal position can be summarised holding that after the amendments which have been introduced, neither an appeal against the order recording the compromise nor remedy by way of filing a suit is available in cases covered by R.3A of O.23. As such a right has been given under R.1A(2) of O.43 to a party, who challenges the recording of the compromise, to question the validity thereof while preferring an appeal against the decree. S.96(3) of the Code shall not be a bar to such an appeal because S.96(3) is applicable to cases where the factum of compromise or agreement is not in dispute.”
herein not opted the remedy by way of Order XXIII Rule 3 or under Order XLIII Rule 1A of the C.P.C., within a reasonable time. It is relevant to note that the appellant even did not file the present suit and the present suit itself is at the volition of Ammalukutti Amma and she later abandoned the suit. Thereafter, the appellant herein transposed herself as plaintiff and proceeded with the suit, raising contention that Exts.B22 and B31 are to be ignored and her right over the property in the plaint schedule
R.S.A.NO.750 OF 2022 9
items to be decided independently. The trial court as well as the appellate court negatived the contention of the appellant to ignore Exts.B22 and B31 and finally found that, in view of Exts.B22 and B31, partition in respect of Item Nos.1 to 14 in the suit has been finalised and accordingly, the remaining item, which was not partitioned in either way, was allowed to be partitioned. Accordingly, Item No.15 of the plaint B schedule property was allowed to be divided into 8 equal shares and 1/8 share was given to the appellant herein. Due shares also given to the other defendants, in accordance with law.
R.S.A.NO.750 OF 2022 10
father's name and address and everything, as detailed in the earlier suits including Exts.B22 and B31 and the present suit. Therefore, the challenge raised by the appellant, contending that her name is ‘Thankam’ and not ‘Parvathy’ goes against her own affidavit, as hereinabove extracted. Thus, the challenge as against Exts.B22 and B31, negatived by the trial court and the appellate court, would not require any interference and the trial court rightly granted partition in respect of plaint B Item No.15, since other properties are governed by Exts.B22 and B31.
“2. Power of Court to direct that the appeal be heard on the question formulated by it. -At the time of making an order under rule 11 of Order XLI for the hearing of a second appeal, the Court shall formulate the substantial question of law as required by section 100, and in doing so, the Court may direct that the second appeal be heard on the question so formulated and it shall not be open to the appellant to urge any other ground in the appeal without the leave of the Court, given in accordance
R.S.A.NO.750 OF 2022 11
with the provision of section 100.”
14. Section 100 of the C.P.C. provides that, (1) Save as otherwise expressly provided in the body of this Code or by any
other law for the time being in force, an appeal shall lie to the High Court from every decree passed in appeal by any Court subordinate to the High Court, if the High Court is satisfed that i the case involves a substantial question of law. (2) An Appeal may lie under this section from an appellate decree passed ex parte. (3) In an appeal under this section, the memorandum of appeal shall precisely state the substantial question of law involved in the appeal. (4) Where the High Court is satisfed that a substantial i question of law is involved in any case, it shall formulate that question. (5) The appeal shall be heard on the question so formulated and the respondent shall, at the hearing of the appeal, be allowed to argue that the case does not involve such question. Proviso says that nothing in this sub-section shall b e deemed to take away or abridge the power of the Court to hear, for reasons to be recorded, the appeal on any other substantial question of law, not formulated by it, if it is satisfed that the case involves i
R.S.A.NO.750 OF 2022 12
such question.
15. In the decision in Nazir Mohamed v. J. Kamala and Others reported in [2020 KHC 6507 : AIR 2020 SC 4321 : 2020 (10) SCALE 168] , the Apex Court held that:
The condition precedent for entertaining and deciding a second appeal being the existence of a substantial question of law, whenever a question is framed by the High Court, the High Court will have to show that the question is one of law and not just a question of facts, it also has to show that the question is a substantial question of law referring Kondiba Dagadu Kadam v. Savitribai Sopan Gujar, [(1999) 3 SCC 722] .
16. In a latest decision of the Apex Court in Government of Kerala v. Joseph , reported in [2023 (5) KHC 264 : 2023 (5) KLT 74 SC] , it was held, after referring Santosh Hazari v. Purushottam Tiwari, [2001 (3) SCC 179] (three – Judge Bench) , as under:
For an appeal to be maintainable under Section 100, Code of Civil Procedure ('CPC', for brevity) it must fulfll certain well – established requirements. i The primary and most important of them all is that the appeal should pose a substantial question of law. The
R.S.A.NO.750 OF 2022 13
sort of question that qualifes this criterion has been i time and again reiterated by this Court.
17. The legal position is no more res-integra on the point that in order to admit and maintain a second appeal under Section 100 of the C.P.C., the Court shall formulate substantial question/s of law, and the said procedure is mandatory. Although the phrase 'substantial question of law' is not defned in the Code, 'substantial i question of law' means; of having substance, essential, real, of sound worth, important or considerable. It is to be understood as something in contradistinction with – technical, of no substance or consequence, or academic merely. However, it is clear that the legislature has chosen not to qualify the scope of “substantial question of law” by sufixing the words “of general importance” as f has been done in many other provisions such as S.109 of the Code or Art.133(1)(a) of the Constitution. The substantial question of law on which a second appeal shall be heard need not necessarily be a substantial question of law of general importance. As such, second appeal cannot be decided on equitable grounds and the conditions mentioned in Section 100 read with Order XLII Rule 2 of the C.P.C.
R.S.A.NO.750 OF 2022 14
must be complied to admit and maintain a second appeal.
arises in this matter to be decided by admitting this appeal.
In the result, this Regular Second Appeal is found to be meritless and the same is dismissed without being admitted.
All interlocutory applications pending in this Regular Second Appeal, stand dismissed.
Registry shall inform this matter to the trial court as well as the appellate court, forthwith.
Sd/- A. BADHARUDEEN JUDGE
Bb
3 issues framed by the court
Whether compromise decrees Exts.B22 and B31 in earlier suits bound the appellant despite her name dispute?
Whether a party disputing a compromise decree may challenge it by a separate suit instead of the remedies under Order XXIII Rule 3 or Order XLIII Rule 1A CPC?
Whether any substantial question of law arose to admit the second appeal under Section 100 CPC?
Colour shows how this judgement treated each authority
Ashiya Ummal v. S.N.SathyApplied¶10
[2024 KHC OnLine 1] : [2024 KER 19] : [2024 LiveLaw (Ker) 15]
Nazir Mohamed v. J. Kamala and OthersRelied on¶15
[2020 KHC 6507 : AIR 2020 SC 4321 : 2020 (10) SCALE 168] · Who else cites this
Government of Kerala v. JosephRelied on¶16
[2023 (5) KHC 264 : 2023 (5) KLT 74 SC]
5 provisions across 1 enactments
Thankam @ Parvathy
K.P.Sankarankutty Gupthan
K.P.Balakrishnan
K.P.Narayanan
K.P.Ramakrishnan
K.P.Lakshmikutty
A. Badharudeen
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court