{"id":13280,"date":"2010-01-28T00:00:00","date_gmt":"2010-01-27T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/padmavathy-amma-vs-pankajakshi-amma-on-28-january-2010"},"modified":"2014-06-20T05:54:58","modified_gmt":"2014-06-20T00:24:58","slug":"padmavathy-amma-vs-pankajakshi-amma-on-28-january-2010","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/padmavathy-amma-vs-pankajakshi-amma-on-28-january-2010","title":{"rendered":"Padmavathy Amma vs Pankajakshi Amma on 28 January, 2010"},"content":{"rendered":"
Kerala High Court<\/div>\n
Padmavathy Amma vs Pankajakshi Amma on 28 January, 2010<\/div>\n
       \n\n  \n\n  \n\n \n \n  IN THE HIGH COURT OF KERALA AT ERNAKULAM\n\nSA.No. 235 of 1996(C)\n\n\n\n1. PADMAVATHY AMMA\n                      ...  Petitioner\n\n                        Vs\n\n1. PANKAJAKSHI AMMA\n                       ...       Respondent\n\n                For Petitioner  :SRI.M.RAJASEKHARAN NAYAR\n\n                For Respondent  :SRI.G.S.REGHUNATH\n\nThe Hon'ble MR. Justice M.SASIDHARAN NAMBIAR\n\n Dated :28\/01\/2010\n\n O R D E R\n             M.Sasidharan Nambiar, J.\n            --------------------------\n                S.A.No.235 of 1996\n            --------------------------\n\n                     JUDGMENT\n<\/pre>\n
    Plaintiff in O.S.No.751\/1987 on the file of<\/p>\n
Principal Munsiff’s Court, Neyyattinkara is the<\/p>\n
appellant.   Defendants   are   the    respondents.<\/p>\n
Appellant instituted the suit seeking a decree for<\/p>\n
declaration  of title,  possession  and   permanent<\/p>\n
prohibitory injunction and also for putting up the<\/p>\n
boundary.\n<\/p>\n
    2. Plaint schedule property is twenty six cents<\/p>\n
in  Sy.No.636\/1C   of  Perumkadavila   Village   of<\/p>\n
Neyyattinkara Taluk, which is described as plot<\/p>\n
MNPOEB, as marked in Exhibit A3(a) plan in O.S.No.<\/p>\n
292\/1965 on the file of Principal Munsiff’s Court,<\/p>\n
Neyyattinkara. Appellant claims right, title and<\/p>\n
possession over the property under Exhibit A1 sale<\/p>\n
deed  dated   2.3.1965.  It   is   contended   that<\/p>\n
immediately after the purchase of the property,<\/p>\n
Ramakrishna Pillai, the predecessor in interest of<\/p>\n
SA 235\/96                 2<\/span><\/p>\n
the respondents, instituted O.S.No.292\/1965 seeking<\/p>\n
a decree for declaration that there is no property<\/p>\n
as described in plaint D schedule therein, which is<\/p>\n
claimed as part of the property covered by Exhibit<\/p>\n
A1 sale deed herein and therefore, appellant has no<\/p>\n
right or title over the said property. When that<\/p>\n
suit was pending, Ramakrishna Pillai died and the<\/p>\n
respondents, being the widow and children, got<\/p>\n
themselves impleaded as additional plaintiffs. By<\/p>\n
Exhibit   A2  judgment   dated 10.8.1973,   learned<\/p>\n
Munsiff dismissed the suit finding that plot MNPOEB<\/p>\n
is in the possession of the first defendant and<\/p>\n
respondents   have  no  right or  title  over  that<\/p>\n
property. It was contended by the appellant in the<\/p>\n
plaint    that  even   after  the  said   judgment,<\/p>\n
respondents are attempting to trespass into the<\/p>\n
property   and  they  are  to be  restrained  by  a<\/p>\n
permanent injunction and title of the appellant is<\/p>\n
to be declared and she is to be permitted to put up<\/p>\n
a boundary.\n<\/p>\n
SA 235\/96                 3<\/span><\/p>\n
     3. Only the first respondent resisted the suit.<\/p>\n
First respondent contended that Exhibit A1 sale<\/p>\n
deed is ab initio void, as there is no property<\/p>\n
lying    adjacent to  the  property  of  the  first<\/p>\n
respondent and first respondent is not a party to<\/p>\n
O.S.No.292\/1965. She was not aware of the said suit<\/p>\n
and the judgment and decree in that suit are not<\/p>\n
binding on her.    Though first respondent was aged<\/p>\n
twenty years on 30.3.1973, when the legal heirs in<\/p>\n
O.S.No.292\/1965 were impleaded, first respondent<\/p>\n
was shown as a minor represented by the mother and<\/p>\n
as appellant was not impleaded as a major in the<\/p>\n
suit, the judgment and decree are not binding on<\/p>\n
her and appellant is, therefore, not entitled to<\/p>\n
the decree as prayed for.\n<\/p>\n
     4. Learned Munsiff framed the necessary issues.<\/p>\n
On the side of the appellant, Exhibits A1 to A4(a)<\/p>\n
were     marked and  on  the  side   of  the  first<\/p>\n
respondent, Exhibit B1 was marked.\n<\/p>\n
SA 235\/96                  4<\/span><\/p>\n
     5. Learned Munsiff found that O.S.No.292\/1965<\/p>\n
was    filed  by   Ramakrishna  Pillai,  under   whom<\/p>\n
respondents    claim  right   and   title  over   the<\/p>\n
property.    In  O.S.No.292\/1965,  the  court,  after<\/p>\n
recording    the  evidence,   found  that  plaint   D<\/p>\n
schedule property therein, which is the plaint<\/p>\n
schedule property herein, belongs to the appellant<\/p>\n
herein and plaintiffs in O.S.No.292\/1965 have no<\/p>\n
right    over  the  same.  Though  first   respondent<\/p>\n
contended    that  she  was  impleaded  as  a   minor<\/p>\n
represented by the mother, when, in fact, she was a<\/p>\n
major, no material was produced to substantiate<\/p>\n
that case. Exhibit A2 judgment does not show that<\/p>\n
first respondent was impleaded as a minor. Learned<\/p>\n
Munsiff, based on Exhibit A2 judgment, granted a<\/p>\n
decree in favour of the appellant.\n<\/p>\n
     6. First respondent challenged that judgment<\/p>\n
and decree before District Court, Thiruvananthapuram<\/p>\n
in A.S.No.295\/1989. Learned      Additional District<\/p>\n
Judge    received copy   of  the  decree  in  O.S.No.<\/p>\n
SA 235\/96                5<\/span><\/p>\n
292\/1965 as an additional evidence under Order XLI<\/p>\n
Rule 27 of Code of Civil Procedure and held that<\/p>\n
first    respondent  was  impleaded  as   a   minor<\/p>\n
represented by the mother and Exhibit B1 SSLC Book<\/p>\n
shows that on the date,    when she was impleaded,<\/p>\n
she was aged nineteen years and five months and<\/p>\n
therefore, she is not a minor. Relying on the<\/p>\n
decision of the Apex Court in Chengalvaraya Naidu<\/p>\n
v. Jagannath (AIR<\/a> 1994 SC 753), learned Additional<\/p>\n
District   Judge  found that  as   the  decree  was<\/p>\n
obtained showing first respondent as a minor, when,<\/p>\n
in fact, she was a major, the decree is to be<\/p>\n
treated as a nullity, as it is the result of fraud<\/p>\n
and therefore, Exhibit A2 judgment is not binding<\/p>\n
on the first respondent and hence, the decree<\/p>\n
granted,   based   on  Exhibit  A2   judgment,   is<\/p>\n
unsustainable. Appeal was allowed and the suit was<\/p>\n
dismissed. It is challenged in this second appeal.<\/p>\n
     7. Second Appeal was admitted and notice was<\/p>\n
issued    formulating  the  following   substantial<\/p>\n
SA 235\/96                            6<\/span><\/p>\n
questions of law:\n<\/p>\n<\/p>\n
          1.     Was the court below justified in finding that
\n          first respondent was a major on the basis of the
\n          materials which were not part of the evidence in
\n          the case and in such circumstances, is not the
\n          lower    appellate   court    acted  on    extraneous
\n          consideration and irrelevant considerations?\n<\/p><\/blockquote>\n
          2.     Exhibit A2, the suit was filed by the father
\n          of the first respondent and after his death,
\n          application to implead the legal heirs were filed by
\n          the mother and children and in such circumstances,
\n          is not Exhibit A2 judgment binding on the first
\n          respondent and whether finding of the first
\n          appellate court that it is not binding is not illegal?\n<\/p><\/blockquote>\n
          3.     When the application is filed under Order
\n          XXII Rule 3 of Code of Civil Procedure by the
\n          legal heirs to get themselves impleaded, are they
\n          entitled to contend that the decree is invalid?<\/p><\/blockquote>\n
     8. Learned counsel appearing for the appellant<\/p>\n
and first respondent were heard.\n<\/p>\n
     9. Appellant is claiming title over the plaint<\/p>\n
schedule property under Exhibit A1 sale deed. Suit<\/p>\n
is filed for declaration of title, possession and<\/p>\n
fixation of boundary and for permanent prohibitory<\/p>\n
injunction. Only the first respondent, the original<\/p>\n
second defendant, contested the suit. Defence is<\/p>\n
SA 235\/96                7<\/span><\/p>\n
that Exhibit A10 is ab initio void, as there is no<\/p>\n
property as described in Exhibit A1 and therefore,<\/p>\n
appellant is not entitled to a decree as prayed<\/p>\n
for. In the plaint itself, appellant contended that<\/p>\n
father of the first respondent had filed O.S.No.<\/p>\n
292\/1965 contending that there is no property as<\/p>\n
claimed by the appellant under Exhibit A1 and a<\/p>\n
decree for declaration to that effect was sought.<\/p>\n
By Exhibit A2 judgment, the suit was dismissed.<\/p>\n
Exhibit A2 judgment shows that suit was dismissed<\/p>\n
after recording the evidence and based on Exhibit<\/p>\n
A3(a) plan, where under the property covered by<\/p>\n
Exhibit A1 was identified as plot MNPOEB in Sy.No.<\/p>\n
636\/1C. Though that suit was filed by Ramakrishna<\/p>\n
Pillai, Exhibit A2 judgment itself shows that when<\/p>\n
the suit was pending, Ramakrishna Pillai died and<\/p>\n
his widow and children filed I.A.No.460\/1973 under<\/p>\n
Order XXII Rule 3 of Code of Civil Procedure to get<\/p>\n
themselves impleaded as additional plaintiffs to<\/p>\n
prosecute the suit further. As per order dated<\/p>\n
SA 235\/96                8<\/span><\/p>\n
30.3.1973,    they were  impleaded  as   additional<\/p>\n
plaintiffs 2 to 7. Though learned Munsiff, based on<\/p>\n
Exhibit A2 judgment, found that case of the first<\/p>\n
respondent that she was a major on 30.3.1973 and<\/p>\n
she was impleaded as a minor represented by the<\/p>\n
mother is not proved, learned Additional District<\/p>\n
Judge,    based  on the  decree  produced  at   the<\/p>\n
appellate stage, found that first respondent was<\/p>\n
impleaded as a minor represented by the mother.<\/p>\n
But, learned Additional District Judge, ignoring<\/p>\n
the fact that it was a suit instituted by the<\/p>\n
father of the first respondent and on his death,<\/p>\n
the mother, along with the children, filed an<\/p>\n
application to get themselves impleaded and got<\/p>\n
themselves impleaded as additional plaintiffs and<\/p>\n
contested the suit, held that as first respondent<\/p>\n
was a major and was impleaded as a minor, the<\/p>\n
decree is a nullity because it is vitiated by<\/p>\n
fraud. It is not known how Exhibit A2 judgment and<\/p>\n
decree could be termed as vitiated by fraud, when<\/p>\n
SA 235\/96                 9<\/span><\/p>\n
it was the mother of the first respondent, who<\/p>\n
filed the application for impleading herself and<\/p>\n
her children, representing that her daughter, the<\/p>\n
first respondent, as a minor. It is to be bone in<\/p>\n
mind    that  when  the plaintiff died,  additional<\/p>\n
plaintiffs, his widow and children, got themselves<\/p>\n
impleaded and contested the suit. Even if first<\/p>\n
respondent was a major and was wrongly shown as a<\/p>\n
minor, it cannot be said that the judgment and<\/p>\n
decree is vitiated by fraud because there was<\/p>\n
substantial representation of all the legal heirs<\/p>\n
by the mother. Exhibit A2 judgment establishes that<\/p>\n
mother had contested the suit and even the original<\/p>\n
plaintiff was examined as PW3 and five witnesses<\/p>\n
were     altogether examined on  the side  of   the<\/p>\n
plaintiffs. It is based on the said evidence, after<\/p>\n
the suit was contested by the legal heirs of the<\/p>\n
original    plaintiff, the  suit was  dismissed  by<\/p>\n
Exhibit A2 judgment. When the appellant cannot be<\/p>\n
found fault for impleading the first respondent as<\/p>\n
SA 235\/96                10<\/span><\/p>\n
a minor and that application was filed by the widow<\/p>\n
of    the plaintiff  in   O.S.No.292\/1965  and   she<\/p>\n
contested the suit thereafter, it cannot be said<\/p>\n
that Exhibit A2 judgment is vitiated by fraud.<\/p>\n
Therefore, Exhibit A2 judgment is binding on the<\/p>\n
additional    plaintiffs,   including   the    first<\/p>\n
respondent   herein,  so   long  as   she  has  not<\/p>\n
challenged the judgment. If that be so, learned<\/p>\n
Additional District Judge grossly erred in setting<\/p>\n
aside the judgment of the learned Munsiff.<\/p>\n
     10. By Exhibit A2 judgment, learned Munsiff had<\/p>\n
already found that the property obtained by the<\/p>\n
appellant under Exhibit A1 is plot MNPOEB and it<\/p>\n
has been in the possession of the appellant. The<\/p>\n
only contention raised by the first respondent is<\/p>\n
that there is no property as described in Exhibit<\/p>\n
A1 and therefore, the suit is not maintainable.<\/p>\n
When it is already found in the suit, instituted by<\/p>\n
the father of the first respondent and continued<\/p>\n
after the death of the father by the widow and<\/p>\n
SA 235\/96                11<\/span><\/p>\n
children, that the property covered by Exhibit A1<\/p>\n
is plot MNPOEB, as demarcated by the Commissioner<\/p>\n
in Exhibit A3(a) plan, appellant is entitled to a<\/p>\n
decree declaring his title and possession over the<\/p>\n
said property on the strength of Exhibit A1. She is<\/p>\n
also entitled to get a decree for putting up<\/p>\n
boundary   as  has   been granted  by  the  learned<\/p>\n
Munsiff. The judgment and decree passed by the<\/p>\n
learned District Judge are illegal and can only be<\/p>\n
set aside.\n<\/p>\n
     Appeal is allowed. Judgment and decree passed<\/p>\n
by Additional District Judge, Thiruvananthapuram in<\/p>\n
A.S.No.295\/1989 is set aside. The judgment and<\/p>\n
decree passed by Principal Munsiff, Neyyattinkara<\/p>\n
in    O.S.No.751\/1987  is  restored.  Appellant  is<\/p>\n
entitled to her costs.<\/p>\n
\n\n\n\n28th January, 2010     (M.Sasidharan Nambiar, Judge)\ntkv\n\nSA 235\/96    12\n\n\n\n\n              M.Sasidharan Nambiar, J.\n\n             --------------------------\n\n                S.A.No.235 of 1996\n\n             --------------------------\n\n                        JUDGMENT\n\n\n\n                  28th January, 2010\n\n<\/pre>\n","protected":false},"excerpt":{"rendered":"
Kerala High Court Padmavathy Amma vs Pankajakshi Amma on 28 January, 2010 IN THE HIGH COURT OF KERALA AT ERNAKULAM SA.No. 235 of 1996(C) 1. PADMAVATHY AMMA … Petitioner Vs 1. PANKAJAKSHI AMMA … Respondent For Petitioner :SRI.M.RAJASEKHARAN NAYAR For Respondent :SRI.G.S.REGHUNATH The Hon’ble MR. Justice M.SASIDHARAN NAMBIAR Dated :28\/01\/2010 O R D E R […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[8,21],"tags":[],"class_list":["post-13280","post","type-post","status-publish","format-standard","hentry","category-high-court","category-kerala-high-court"],"yoast_head":"\nPadmavathy Amma vs Pankajakshi Amma on 28 January, 2010 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/padmavathy-amma-vs-pankajakshi-amma-on-28-january-2010\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Padmavathy Amma vs Pankajakshi Amma on 28 January, 2010 - 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