Kerala High Court
Sreedharan Nair vs Savithri Amma on 27 August, 2021
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE N.ANIL KUMAR
FRIDAY, THE 27TH DAY OF AUGUST, 2021/5TH BHADRA, 1943
RSA NO. 915 OF 2012
[Against the judgment and decree dtd.14.11.2001 in AS
No.77/2008 of the Sub Court, Neyyattinkara arising
from the final judgment and decree dated 23.8.2006 in
IA No.776/2004 in OS 892/2001 of the Principal
Munsiff's Court, Neyyattinkara]
APPELLANT/APPELLANT/FOURTH DEFENDANT:
SREEDHARAN NAIR
S/O.VELAYUDHAN NAIR, MELEKADAKATHU VEEDU,
THIRUPURATHOOR DESOM.
BY ADVS.
SRI.B.KRISHNA MANI
SRI.D.KESAVAN NAIR
RESPONDENTS/RESPONDENTS/PLAINTIFF AND DEFENDANTS
2,3,5 TO 7 AND 10 TO 17:
*1 SAVITHRI AMMA,
AGED 57 YEARS,
D/O.MEENAKSHY PILLAI, RADHA NIVAS,
THIRUPURATHOOR DESOM AND ALSO HAVING MELE
KADAKATHU VEEDU, THIRUPURATHOOR DESOM,
THIRUPURATHOOR VILLAGE - 695133. (DIED)
2 MANIYAN,
AGED 32 YEARS,
S/O.THANKAYYAN, PODUVAL PUTHENVEEDU,
PAZHAYAKADA, THIRUPURATHOOR DESOM - 695 133.
3 MOHANAN,
AGED 49 YEARS,
S/O.VELAYUDHAN NAIR, PODUVAL PUTHENVEEDU,
THIRUPURATHOOR DESOM - 695 133.
4 PADMAJAKUMARI AMMA,
AGED 35 YEARS,
D/O.DEVAKI AMMA, VAZHAVILAKATHU VEEDU,
VAIKALLOOR, KANJAMPURAM P.O., VILAVANCODE
TALUK, KANYAKUMARI DISTRICT - 629 254.
R.S.A.NO.915 of 2012
..2..
5 DANAM, S/O.SATHYANESAN, PODUVAN PUTHENVEEDU,
PAZHAYAKADA, THIRUPURATHOOR DESOM,
THIRUPURAM VILLAGE - 695 133.
6 SUGUNAN,
AGED 28 YEARS,
S/O.DASAN, PODUVAN PUTHENVEEDU, PAZHAYAKADA,
THIRUPURATHOOR DESOM,
THIRUPURAM VILLAGE - 695 133.
7 VALSALA,
AGED 34 YEARS
D/O.JESSY, PODUVAN PUTHENVEEDU, PAZHAYAKADA,
THIRUPURATHOOR DESOM,
THIRUPURAM VILLAGE - 695 133.
8 LALITHA KUMARI,
W/O.THANKARAJAN, PODUVAL PUTHENVEEDU,
PAZHAYAKADA - 695 133.
9 ARUN KUMAR,
S/O.THANKARAJAN, PODUVAL PUTHENVEEDU,
PAZHAYAKADA - 695 133.
10 AJITHA KUMARI,
D/O.LALITHAKUMARI, PODUVAL PUTHENVEEDU,
PAZHAYAKADA - 695 133.
11 STELLA,
W/O.THOMAS NADAR, KOSINO VEEDU,
PAZHAYAKADA - 695133.
12 SATHEESHKUMAR,
S/O.THOMAS NADAR, KOSINO VEEDU,
PAZHAYAKADA - 695133.
13 SANALKUMAR,
S/O.THOMAS NADAR, KOSINO VEEDU,
PAZHAYAKADA - 695133.
14 LAILA,
W/O.YESUDAS, ABHILASH BHAVAN,
PAZHAYAKADA - 695 133.
15 ABHILASH,
S/O.YESUDAS, ABHILASH BHAVAN,
PAZHAYAKADA - 695 133.
16 ABHINAYA
D/O.LAILA, ABHILASH BHAVAN,
PAZHAYAKADA - 695 133.
R.S.A.NO.915 of 2012
..3..
*ADDL CHANDRASHEKHARAN NAIR,AGED 82 YEARS,RESIDING
R17 AT RADHA NIVAS AND ALSO HAVING MELEKADAKKATHU
VEEDU,THIRUPURATHOOR DESOM,THIRUPURATHOOR
VILLAGE,THIRUVANANTHAPURAM DISTRICT 695133
18 RADHA MANI,D/O SAVITHRI AMMA,AGED 52
YEARS,RESIDING AT RADHA NIVAS AND ALSO HAVING
MELEKKADAKKATHU VEEDU,THIRUPURATHOOR
DESOM,THIRUPURATHOOR
VILLAGE,THIRUVANANTHAPURAM DISTRICT 695133
19 RADHAKRISHNAN NAIR,S/O CHANDRASHEKAHARAN
NAIR,AGED 50 YEARS,REPRESENTED BY POWER OF
ATTORNEY HOLDER,FATHER,CHANDRASEKHARAN NAIR,
RESIDING AT RADHA NIVAS AND ALSO HAVING
MELEKADAKKATHU VEEDU,THIRUPURATHOOR
DESOM,THIRUPURATHUR VILLAGE,
THIRUVANANTHAPURAM DISTRICT -695133
ADDL.R17 TO R19 ARE IMPLEADED AS PER ORDER IN
I.A.NO.2 OF 2020 DATED 27TH AUGUST,2021.
BY ADVS.
SRI.G.SUDHEER FOR R1 TO R3,R6 AND R7.
SHRI.GOVIND R.
KUM.S.KRISHNA
SMT.P.M.MAZNA MANSOOR
THIS REGULAR SECOND APPEAL HAVING COME UP FOR
ADMISSION ON 24.08.2021, THE COURT ON 27.08.2021
DELIVERED THE FOLLOWING:
R.S.A.NO.915 of 2012
..4..
J U D G M E N T
This RSA is directed against the
judgment and decree dtd.14.11.2001 in AS
No.77/2008 of the Sub Court, Neyyattinkara
(hereinafter referred to as 'the first
appellate court') arising from the final
judgment and decree dated 23.8.2006 in IA
No.776/2004 in OS 892/2001 of the Principal
Munsiff Court, Neyyattinkara (hereinafter
referred to as 'the trial court'). The
parties are hereinafter referred to as 'the
plaintiff' and 'the defendant' according to
their status in the trial court.
2. The fourth defendant is the
appellant. He is the son of the first
defendant, who is no more. In terms of the
preliminary decree dated 24.7.2003, the
R.S.A.NO.915 of 2012
..5..
first defendant was entitled to get the
property assigned to her by virtue of
Exts.A1 and A2 excluding the properties
sold by her to defendants 2,3 and 11 by
virtue of Exts.B1 and B2. The possessory
rights of the respective parties were
directed to be protected as far as
possible. In terms of the preliminary
decree, the plaintiff filed an application
as I.A.No.776/2004 for passing a final
decree. The trial court passed the final
decree on the following terms:-
"In the result, the final decree is
passed. Plaintiff is allotted TFGS
plot,D5 is allotted SGIJKA6 A5A2R plot.
D3 is allotted QA3OP plot. D7 is
allotted BYZU plot. D12 is allotted
WXYZ plot. D1 is allotted RA2A5A4 A3Q
plot. The owelty amount shall be paid
and received by the respective parties
as per the owelty statement. For the
owelty monies, the respective shares
R.S.A.NO.915 of 2012
..6..
shall be charged. The plaintiffs shall
deposit the non judicial stamp paper
required to engress the final decree
within two months from today. Boundary
lines shall be fixed as per Ext.C1(a)
at the expense of the plaintiffs for
the respective share holders desirous
of getting a final decree."
3. Challenging the final judgment and
decree, the fourth defendant preferred an
appeal before the first appellate court.
There was a delay of 675 days in preferring
the appeal. I.A.No.2425/2008 was filed to
condone the delay in filing the appeal.
The first appellate court dismissed the
application to condone the delay.
Consequently, the appeal was also
dismissed. By virtue of the dismissal of
the application to condone the delay, the
trial court decreed merged with the decree
of the appellate court. Hence, the
R.S.A.NO.915 of 2012
..7..
appellant is entitled to challenge the
decree both on merits as well as on the
ground of delay.
4. Heard the learned counsel for the
appellant.
5. The learned counsel for the
appellant submitted that the appellant has
been suffering from rheumatic complaints
and sufficient cause has been shown to
condone the delay in filing the appeal.
According to the learned counsel, when
sufficient cause was shown, the first
appellate court was not justified in
dismissing an appeal on technical grounds.
In other words, it was contended that the
first appellate court did not consider the
application liberally. According to the
R.S.A.NO.915 of 2012
..8..
learned counsel for the appellant, the
first appellate court ought to have
considered the application for condonation
of delay by awarding cost in exercise of
its discretion to condone the delay.
6. On merits, the learned counsel for
the appellant contended that though the
first defendant has been allotted shares in
terms of preliminary decree dated
24.7.2003, the trial court failed to
consider the possession of the fourth
defendant in the building where he is
currently residing. It was contended that
the building ought to have been allotted to
the share of the first defendant taking
into account of the directions and
stipulations contained in the preliminary
R.S.A.NO.915 of 2012
..9..
decree.
7. The preliminary decree passed by
the trial court was not challenged by the
fourth defendant. In the final decree
proceedings, due share was allotted to the
fourth defendant. The objectionable part
of the judgment and decree, according to
the learned counsel for the appellant, is
the failure on the part of the trial court
to consider reservation of the house in his
favour as far as possible. The concept of
reservation of property involved in a suit
for partition in favour of a sharer is to
be understood clearly. It amounts to
exclusion of certain property from the
partible assets. In a partition suit, at
the preliminary decree stage, the court is
R.S.A.NO.915 of 2012
..10..
called upon to adjudicate the partibility
of assets involved in the suit, the share
of each of the parties, whether any of the
parties is entitled to claim exclusion of
any property from division. Normally, in
order to claim exclusion of an item from
partition, the sharer claiming such a right
will have to establish his exclusive right
over the property. Going by the terms of
the preliminary decree in this case, there
is no exclusion as such.
8. A co-owner in possession of the
partible asset is a constructive trustee
for the other co-owners unless his special
right for reservation is established in
accordance with law. In the case at hand,
no such provision was made in the
R.S.A.NO.915 of 2012
..11..
preliminary decree. A general direction
was issued to protect the possession of the
parties to the extent possible. Under such
circumstances, the fourth defendant cannot
claim reservation of the same to the
exclusion of others. When the court
adjudicating the rights of the parties
opined that all the properties are
available for partition, the trial court
was justified in partitioning the property
by metes and bounds allotting a definite
share to the fourth defendant.
9. The fourth defendant did not set up
the plea of reservation during the trial
stage. On equitable consideration, the
trial court directed to protect the
possession of the parties to the extent
R.S.A.NO.915 of 2012
..12..
possible in the final decree. It was
considered by the trial court and passed a
final decree accordingly. The fourth
defendant did not challenge the final
decree within a reasonable time though he
was aware of the decree. He waited for
such a long time and filed an appeal along
with an application to condone the delay.
The first appellate court meticulously
considered the entire aspects in detail.
The fourth defendant did not challenge the
preliminary decree. In the final decree,
share was allotted to him. According to
the appellant, commission report was not
acceptable to him. However, he did not
file any objection to the commission report
in the final decree proceedings.
R.S.A.NO.915 of 2012
..13..
10. The appellant failed to produce
documents before the first appellate court
to show that he was suffering from
rheumatic complaints as alleged in the
application for condonation of delay.
Further he did not turn up to give evidence
before the court. The appellant has not
filed the application for condonation of
delay within a reasonable time.
11. Going by the entire facts and
circumstances, this Court is of the view
that there are no materials before this
Court to prima facie show that the appeal
is sustainable on merits. No substantial
questions of law are involved in this
appeal. The condition precedent for
entertaining and deciding a second appeal
R.S.A.NO.915 of 2012
..14..
being the existence of a substantial
question of law. The first appellate court
examined the entire matter on merits as
well. The finding of the first appellate
court is based on cogent and sound
reasonings. There was no erroneous
inference from any proved facts. There are
no questions of law involved in this case
much less any substantial question of law.
Resultantly, this R.S.A. is
dismissed in limine. There will be no
order as to costs. Pending applications, if
any, shall stand closed.
Sd/-
(N.ANIL KUMAR)
JUDGE
MBS/
