IN THE HIGH COURT OF KERALA AT ERNAKULAM
AS.No. 28 of 1997(C)
1. THOMAS
... Petitioner
Vs
1. SOSANNAM
... Respondent
For Petitioner :SRI.N.P.SAMUEL
For Respondent :SRI.P.VIJAYA BHANU
The Hon'ble MR. Justice THOTTATHIL B.RADHAKRISHNAN
The Hon'ble MR. Justice P.BHAVADASAN
Dated :07/10/2010
O R D E R
THOTTATHIL.B.RADHAKRISHNAN & P.BHAVADASAN, JJ.
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AS No.28 of 1997-E
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Dated 7th October 2010
Judgment
Thottathil.B.Radhakrishnan, J.
We have heard the learned counsel for the
parties. The suit is of the year 1991. In the normal course,
all efforts should have been made at this end to decide the
matter, without making an order of remand. But, on the
facts and for the reasons, we would note hereunder, we
are persuaded to make this order of remand.
2. The five plaintiffs are the daughters and the
defendant, the sole son of late Elia, who died on
24.04.1984. Sometime in 1971, an item of property stated
to be measuring about 17 cents in Thrissur district, was
purchased in the joint names of mother Elia and her son,
the defendant. In 1991, the daughters sued for partition on
the plea that one of the property covered by Ext.A1
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belonged to Elia and therefore, each among the daughters
was entitled to 1/6th share in the one half share of their
mother.
3. The defendant opposed, contending that the
property was purchased and the building therein was put
up and different improvements made thereafter, utilising
solely, his own funds. He pleaded that he, who was
employed with the Merchant Navy, was the sole earning
member and has expended even for marrying off the elder
among the daughters and the younger ones were even
provided education at his expense. He also pleaded that
since he had been in Merchant Navy, his mother’s name
was shown in all the documents so that she could manage
the affairs of the properties. At trial, the third plaintiff gave
evidence as PW1. She virtually said nothing, contradicting
the defence set up by the defendant. The defendant
mounted the box, spoke in terms of his case and exhibited
a long series of documents from Exts.B1, B1(a) to B1(z),
B1(aa) to B1(aw) and B2 to B5 including B3(a) and B4(a).
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These included the invoices of the Electricity Board,
building tax receipts, accounts regarding wages, vouchers
etc.
4. The court below took the view that the plea of
the defendant is hit by the Benami Transactions
(Prohibition of the Right to Recover Property) Act, 1988
and accordingly, passed a preliminary decree.
5. The learned counsel for the parties rightly
pointed out that there had not been any proper
adjudication, focusing on S.45 of the Transfer of Property
Act and the real issue between the parties has not been
decided. It is also suggested by the learned counsel for the
respondents plaintiffs that her clients appear to have had a
dearth of proper legal advice and assistance, in so far as
there is lack of materials on record, though his clients have
now been able to trace out some documents, showing that
their mother Elia was having funds with her, including by
the sale of a property, that stood in the joint names of Elia
and her son – the defendant, immediately preceding
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Ext.A1.
6. With the aforesaid, we are satisfied that the
parties in this case, though could not settle their dispute in
spite of mediation, need to be extended an opportunity to
further amend the pleadings and adduce evidence to have
the real issues arising between them, contested. To
facilitate this, we are of the view that the case needs to be
remanded. In the result, the impugned decree is set aside
and the suit is remanded to the trial Court for trial and
disposal de novo in accordance with law after affording an
opportunity to both sides to amend their pleadings and
adduce further evidence. The court below will look into the
evidence on record and also any further evidence that
would be brought on record in adjudicating the matter
further. The parties will appear before the court below on
25.10.2010. The suit being of the year 1991, the court
below will make an endeavour to expedite the final disposal
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of the case. The office will send back the LCR forthwith.
There will be no order as to costs.
THOTTATHIL.B.RADHAKRISHNAN,
JUDGE
P.BHAVADASAN, JUDGE
sta
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