IN THE HIGH COURT OF KERALA AT ERNAKULAM
CMA No. 52 of 1999()
1. PADMAVATHI
... Petitioner
Vs
1. LALITHAMMA
... Respondent
For Petitioner :SRI.S.V.BALAKRISHNA IYER (SR.)
For Respondent :SRI.SURESH KUMAR KODOTH
The Hon'ble MR. Justice K.PADMANABHAN NAIR
Dated :27/09/2007
O R D E R
K. PADMANABHAN NAIR ,J.
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C.M.A.No.52 of 1999
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Dated, this the 27th day of September, 2007
JUDGMENT
Plaintiffs in O.S.No.129/1994 on the file of the Munsiff Court, Hosdurg are
the appellants. This appeal is filed against an order of remand passed by the
Subordinate Judge, Hosdurg by which it had set aside the decree and judgment
passed by the trial court and remanded the case for fresh disposal with certain
directions.
2. Plaintiffs filed the suit for partition. It was contended that suit
properties originally belonged to State. Same was assigned to Ramakrishna. He
was in possession of the same by constructing house and by effecting
improvements. He died in the year 1961. On his death his right devolved upon his
children viz. defendants 1 to 4, Vinayaka, Damodara and Narayana. Vinayaka,
Damodara and Narayana died thereafter. 1/7th share of Vinayaka devolved upon
defendants 5 to 11, 1/7th share of Damodara devolved upon plaintiffs and the 1/7th
share of Narayana devolved upon defendants 12 to 17. It was averred that
plaintiffs and defendants are co-owners and in joint possession. It was further
averred that for and on behalf of all the parties 4th defendant was managing the
properties.
3. Defendants 2 and 3 supported the plaintiffs. 4th defendant contended
that the parties to the suit and late Ramakrishna were governed by Namboodiri law
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and hence the female members were not entitled to get any share in the property of
late Ramakrishna. It was contended that Ramakrishna died long prior to the
commencement of Joint Family Abolition Act and hence his male children alone
had inherited his right. It was contended that plaintiffs and defendants 4 to 17
alone were entitled to share. It was further contended that all the other parties had
their own separate houses and hence the house in the suit property may be allotted
to the 4th defendant. It was also contended that he along with his family members
are residing in that house for more than 40 years. It was contended that he had
made substantial improvements in the property and building. It was also
contended that he was conducting Tulasi Pooja, Navarathri and Puthari every year
by spending more than Rs.10,00/- every year.
4. Subsequently defendants 18 and 19 were impleaded. Plaint was
amended. It was contended that the plaintiffs came to know that 4th defendant sold
14 cents from the suit property to the 18th defendant and that sale deed was not
binding on the plaintiffs. It was contended that defendants 18 and 19 had not
derived any right. 18th defendant filed written statements contending that the 4th
defendant had executed a sale deed in respect of 14 cents of property comprised in
Re-survey No.145/3 to him. It was contended that 4th defendant had every right to
sell the property as he was holding power of attorney of other co-owners. It was
contended that 18th defendant was a bona fide purchaser. 19th defendant also filed
written statement contending 4th defendant sold the property to 18th defendant on
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the strength of the power of attorney executed by other co-owners. It was also
contended that 4th defendant was fully competent to alienate the property for and
on behalf of other co-owners. It was further contended that 18th defendant
subsequently assigned his right to 19th defendant on 1.8.1991. So the only dispute
to be resolved in the suit was whether the sale deed executed by the 4th defendant
in favour of 18th defendant which was subsequently assigned in favour of 19th
defendant was valid. Trial court found that the contention of defendants 4, 18 and
19 that 4th defendant was competent to alienate the shares of others was not
correct and hence the sale deed was not binding on other co-owners. Trial court
further held that the plaintiffs can proceed with the suit claiming partition ignoring
the claims put forward by the 19th defendant. Trial court passed a preliminary
decree which reads as follows:
“a) The plaint schedule property shall be divided into 7 equal shares out
of which the plaintiffs are jointly entitled to 1 share, defendants 1 to 4 are entitled
to 1 share each, the defendants 5 to 11 are jointly entitled to 1 share and the
defendants 12 to 17 are jointly entitled to 1 share.
b) The share of the plaintiffs, defendants 2 and 3 shall be allotted to
them separately.
c) The shares of the defendant 1, 4, joint share of defendants 5 to 11
and joint share of defendants 12 to 17 shall be allotted to them only on payment of
the requisite court fee.
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d) The plaintiffs, defendants 1 to 3 and defendants 5 to 17 are entitled
to get mesne profits in accordance with their share from the 4th defendant
commencing from the date of suit i.e. From 5.4.1994 till delivery of their share.
e) The quantum of mesne profits shall be decided at the stage of final
decree.
f) Any of the parties who have paid court fee can apply for passing
final decree.
g) The cost of the suit shall come out of estate." Challenging that decree and judgment the 19th defendant filed appeal as
A.S.No.52/1996 before the Subordinate Judge’s Court, Hosdurg. Lower appellate
court took a view that the disputed power of attorney appeared to be more or less
genuine. It was further held that the attesting witnesses of Exts.B1 and B2 should
have been examined before the trial court either by 4th defendant or by the 19th
defendant. Lower appellate court set aside the decree and judgment passed by the
trial court and remanded the case for the purpose of giving an opportunity to the
19th defendant to examine the attestors of Exts.B1 and B2 and also to get the
document examined by an expert. Liberty was given to the parties to amend the
pleadings and to adduce additional evidence. Challenging that order of remand
plaintiffs have filed this appeal.
5. Though no substantial questions of law were framed at the time of
admission, in view of the subsequent pronouncement of the Supreme Court at the
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time of hearing the following substantial questions of law were framed:
1. Whether the lower appellate court was justified in remanding the
case for the purpose of filling up lacuna?
2. Whether the finding of the lower appellate court that the parties shall
be given an opportunity to amend the pleadings is correct?
Appellants and respondents were heard on the questions of law framed.
6. Suit was filed in the year 1994. It was decided on 29.6.1996. 4th
defendant in the original written statement did not make any admission that he sold
14 cents of property to 18th defendant. Subsequently the plaintiffs amended the
plaint and impleaded 18th and 19th defendants on the ground that 18th defendant
had purchased properties from the 4th defendant and the same was subsequently
sold to 19th defendant. Even according to defendants 18 and 19 the 4th defendant
executed Ext.B3 sale deed in favour of 18th defendant on 17.12.1987 based on
Exts.B1 and B2 power of attorneys. 4th defendant gave evidence. Trial court after
elaborately considering the evidence of DW1 and also comparing Exts.B1 and B2
and also the oral evidence of DW3 held that Exts.B1 and B2 were brought into
existence by Sivanandan and 4th defendant to create evidence. That finding of fact
is based on good evidence. Neither the 4th defendant nor the 18th defendant gave
any explanation why they did not examine the attestors to Exts.B1 and B2 power
of attorneys or send the above documents for expert opinion. Summons were
issued to the attestors and they appeared before the court, but they were given up
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and not examined. It is also to be noted that there was no prayer to admit
additional evidence by the appellants before the lower appellate court. No petition
was filed before the lower appellate court to send the disputed documents for
expert opinion. Further 19th defendant had no grievance that he was not given
sufficient opportunity to adduce evidence. The trial court had given very cogent
reasons. It discussed the evidence in detail and held that the power of attorneys
were not genuine. The lower court without discussing the evidence set aside a
finding which was based on well considered reasons. So the order of remand
passed by the lower appellate court giving another opportunity to the 19th
defendant who deliberately gave up the witnesses who appeared before the court
to examine them again is nothing but an abuse of process of court. The 19th
defendant cannot be allowed to fill up a lacuna. The oral evidence of DWs 1 to 3
clearly establishes that Exts.B1 and B2 were not genuine and valid documents. So
on the strength of Exts.B1 and B2 the 4th defendant is not competent to convey the
right of other co-owners to other person. The evidence on record shows that the
parties are co-owners. The sale deed so far as it relates to the extent of share of
4th defendant is a valid document. Trial court was not justified in holding that the
entire document is void or invalid. 19th defendant will get whatever share due to
the 4th defendant. But he can only claim 1/7th share due to the 4th defendant which
has to be worked out in the final decree proceedings.
In the result, Civil Miscellaneous Appeal is disposed of in the following
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manner. The order of remand passed by the lower appellate court is hereby set
aside. The decree and judgment passed by the trial court are restored but modified.
In addition to clauses (a) to (g) in the decreetal portion the following clauses will
also be added : ” (h) 1/7th share due to the 4th defendant shall be allotted to
the share of 19th defendant and (i) Equities and reservations shall be worked out
during the final decree stage”.
C.M.P.No.3203/1999 will stand dismissed.
K. PADMANABHAN NAIR,
JUDGE.
Appeal is posted for ‘to be spoken to’ today. Learned counsel appearing for
the 19th defendant submits that the property was sold to him representing that the
4th defendant was having authority to deal with the properties of other co-owners
and thereby cheated him. It is submitted that his right to proceed against the 4th
defendant may be reserved. I make it clear that this judgment will not be a bar for
the 19th defendant to proceed against the 4th defendant in accordance with law.
16th October, 2007. K.PADMANABHAN NAIR,
JUDGE
cks
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K.PADMANABHAN NAIR, J.
C.M.A.No.52 of 1999
JUDGMENT
27th September, 2007.