Kerala High Court
Sindhu Ajayan vs Sankara Kurup on 30 July, 2021
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE V.G.ARUN
FRIDAY, THE 30TH DAY OF JULY 2021 / 8TH SRAVANA, 1943
OP(C) NO. 1520 OF 2018
OS 158/1995 OF MUNSIFF COURT, ADOOR, PATHANAMTHITTA
PETITIONER/S:
SINDHU AJAYAN
AGED 42 YEARS, PLAMTHOTTIL VEEDU, MUNDIYOORKONAM
MURI,PANDALAM VILLAGE, ADOOR TALUK - 689 501.
BY ADVS.
SRI.ALEXANDER JOSEPH
SMT.AKHILASREE BHASKARAN
RESPONDENT/S:
1 SANKARA KURUP
"HARISREE", THONDALITHARA PUTHEN VEEDU,
(THATTUPURAYIL),THENGAMAM MURI, PALLICKAL
VILLAGE, PATHANAMTHITTA - 689 693.
2 N. SREEDHARA KURUP
"HARISREE", THONDALITHARA PUTHEN VEEDU,
(THATTUPURAYIL),THENGAMAM MURI, PALLICKAL
VILLAGE, PATHANAMTHITTA - 689 693.
3 PRASANNAKUMARI AMMA
W/O. VASUDEVAKURUP,'ABHILASH BHAVANAM',
PADINJARUKIZHAKKEMURI, SOORANADU NORTH
VILLAGE,KUNNATHUR TALUK - 690 561.
4 ABHILASH V
S/O. VASUDEVAKURUP,'ABHILASH BHAVANAM',
PADINJARUKIZHAKKEMURI, SOORANADU NORTH
VILLAGE,KUNNATHUR TALUK - 690 561.
5 ANISH V
S/O. VASUDEVAKURUP,'ABHILASH BHAVANAM',
PADINJARUKIZHAKKEMURI, SOORANADU NORTH
VILLAGE,KUNNATHUR TALUK - 690 561.
BY ADVS.
SRI.C.R.REGHUNATHAN
SRI.M.V.SABU
THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 30.07.2021,
THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
OPC No.1520 of 2018
2
JUDGMENT
Dated this the 30th day of July, 2021
The petitioner is the plaintiff in O.S.No.158
of 1995 of the Munsiff Court, Adoor. The suit was
filed arraying the petitioner's father (Damodaran
Pillai), sister (Saranya D.Pillai) and maternal
grandmother (Janamma) as defendants 1 to 3. The
suit was filed for partition and separate
possession of 2 Acres and 50 cents of dryland
belonging to the petitioner's deceased mother
Sankariamma, who had acquired title over the
property as per Settlement Deed No.500/1977
executed by her mother Janamma. The suit was
decreed, allotting 1/3rd share each to the
petitioner, Saranya and Janamma. The petitioner's
father Damodaran Pillai was not allotted any
share. The decree and judgment was challenged by
Damodaran Pillai and Saranya. During the pendency
OPC No.1520 of 2018
of that appeal, Saranya died. The appellate court
approved the preliminary decree, but modified the
same taking note of the death of Saranya and
allotted her share to Damodaran Pillai. By the
modified decree, the petitioner, Damodaran Pillai
and Janamma became entitled for 1/3rd share each.
Petitioner challenged the judgment and decree of
the appellate court in RSA No.1145 of 2006. During
the pendency of the second appeal, both Damodaran
Pillai and Janamma died. By Ext.P2 judgment in the
Second Appeal, this court set aside the judgment
and decree of the lower appellate court and
partitioned the property into three equal shares,
of which two shares were allotted to the
petitioner. Deceased Janamma was found entitled
for the remaining share. The question as to whom
that share will devolve was left open to be
decided. Thereupon, the respondents herein filed
OPC No.1520 of 2018
an impleading petition (I.A.No.1588 of 2012)
claiming to be the legal heirs of Janamma. They
also filed applications for passing supplementary
decree (I.A.No.1587 of 2012), allotting them 3/12
share from out of the 1/3rd share allotted to
Janamma and for injunction (I.A.No.1589 of 2012),
restraining the petitioner from alienating or
encumbering the property. Pending those
applications, the petitioner filed final decree
application (I.A.No.1126 of 2013), claiming right
over the entire 1/3rd share allotted to Janamma.
The claim is made on the strength of Partition
Deed No.1154 of 2008 and Will dated 03.04.2008.
2. By a common order, the trial court
dismissed all three applications filed by the
respondents. Aggrieved, the respondents filed
OP(C) No.1820 of 2014 before this Court. By
Ext.P10 judgment, this Court directed
OPC No.1520 of 2018
reconsideration of the interlocutory applications.
Thereafter, the trial court allowed the
applications vide Exts.P12, P13 and P14 orders.
Even though the petitioner sought review of the
orders, the prayer was rejected by Ext.P17 order.
Thereafter, the petitioner moved I.A.No.521 of
2018 for considering the validity of the Will
along with the injunction application (I.A.No.1589
of 2012) filed by the respondents. That
application was dismissed by Ext.P18 order. The
prayer in this original petition is to set aside
Exts.P12, P13, P17 and P18 orders and to direct
reconsideration of Exts.P3, P4, P5 and P15
applications, after giving the petitioner an
opportunity to adduce evidence.
3. Heard Sri.Alexander Joseph, learned Counsel
for the petitioner and Sri. Harrylal, learned
Counsel for the respondent.
OPC No.1520 of 2018
4. Learned Counsel for the petitioner
contended that in Ext.P2 judgment, this Court had
left open the issue regarding devolution of the
1/3rd share of Janamma to be decided in
appropriate proceedings, including the final
decree proceedings. In terms of the direction,
Ext.P9 final decree application was filed by the
petitioner claiming the entire 1/3rd share. The
Partition Deed dated 03.04.2008 and Will dated
30.12.2008 were produced and marked as Exts.B2 and
B1. The petitioner was under the impression that
her claim will be decided in the final decree
proceedings based on Ext.P9. Therefore, he did
not adduce evidence to prove the Will in the
interlocutory applications filed by the
respondents. It is contended that the court below
committed a gross illegality in deciding the
petitioner's claim in those applications, that too
OPC No.1520 of 2018
without giving an opportunity to the petitioner to
let in evidence.
5. Learned Counsel for the respondent
countered the contentions by submitting that the
petitioner's claim for the entire 1/3rd share of
Janamma was raised much after Ext.P2 judgment,
even though the documents relied on by her were
allegedly executed earlier. It is hence contended
that the documents are false and the claim, an
afterthought. Reference is made to the observation
of this Court in Ext. P10 that, execution of the
Partition Deed was not brought to the notice of
the Court even at the time of rendering Ext.P2
judgment in the RSA and that the Partition Deed
cannot have any existence at all and the same has
to be treated as non-est in the eye of law. It is
hence contended that the petitioner's claim based
on the Partition Deed and Will was rightly
OPC No.1520 of 2018
rejected by the court below.
6. In reply, the learned Counsel for the
petitioner submitted that even if the Partition
Deed is eschewed from evidence, the petitioner
will be able to prove her claim based on the Will.
7. Having heard the learned Counsel on either
side, I find substance in the contention of the
learned Counsel for the petitioner that the
finding in the impugned order, without deciding on
the authenticity of the petitioner's claim based
on the Will, is unsustainable. There seems to be
substance in the contention that the petitioner
had not adduced evidence under the impression that
her claim will be decided in the final decree
application. The contention of the learned
Counsel for the respondents that no reliance can
be placed on the Partition Deed in view of the
conclusive finding in Ext.P10, is also well
OPC No.1520 of 2018
founded.
In the result, Exts.17 and P18 orders are set
aside and the court below is directed to
reconsider I.A.Nos.555 and 521 of 2018 in
O.S.No.158 of 1995 and to pass orders thereon,
after granting opportunity for both sides. It is
made clear that this Court has not gone into the
merits of the contentions raised by the parties.
The trial court is at liberty to pass orders on
the applications, in accordance with law.
The original petition is disposed of
accordingly.
Sd/-
V.G.ARUN
JUDGE
Scl/
OPC No.1520 of 2018
APPENDIX OF OP(C) 1520/2018
PETITIONER EXHIBITS
EXHIBIT P1 TRUE COPY OF THE JUDGMENT DATED
28.01.1999 IN O.S NO. 158/95 OF THE
MUNSIFF COURT ADOOR.
EXHIBIT P2 TRUE COPY OF THE JUDGEMENT DATED
01.03.2011 IN RA NO. 1145/2006 OF THIS
HONOURABLE COURT.
EXHIBIT P3 TRUE COPY OF THE I A NO. 1588/2012
DATED 08.08.2012 IN O.S NO. 158/1995 OF
MUNSIFF COURT ADOOR.
EXHIBIT P4 TRUE COPY OF THE I A NO. 1587/2012
DATED 08.08.2012 IN O.S NO. 158/1995 OF
MUNSIFF COURT ADOOR.
EXHIBIT P5 TRUE COPY OF THE I A NO. 1589/2012
DATED 08.08.2012 IN O.S NO. 158/1995 OF
MUNSIFF COURT ADOOR.
EXHIBIT P6 TRUE COPY OF THE PARTITION DEED NO.
1154/08 DATED 03.04.2008 OF SRO ADOOR.
EXHIBIT P7 TRUE COPY OF THE WILL DATED 30.12.2008
OF THE 3RD DEFENDANT.
EXHIBIT P8 TRUE COPY OF COMMON ORDER DATED
12.10.2012 IN EXT P3, P4 AND P4 AND P5
OF THE MUNSIFF COURT ADOOR.
EXHIBIT P9 TRUE COPY OF I.A NO. 1126/2013 DATED
17.06.2013 O.S NO. 158/1995 OF THE
MUNSIFF COURT ADOOR.
EXHIBIT P10 TRUE COPY OF THE JUDGMENT DATED
14.07.2015 IN OP (C) NO. 1820/2014 OF
THIS HON'BLE COURT.
EXHIBIT P11 TRUE COPY OF THE JUDGMENT DATED
12.01.2018 IN OP (C) NO. 97/2018 OF
THIS HON'BLE COURT.
EXHIBIT P12 TRUE COPY OF THE ORDER DATED 20.03.2018
IN IA NO. 1587/2012 IN O.S 158/1995 OF
OPC No.1520 of 2018
THE MUNSIFF COURT ADOOR.
EXHIBIT P13 TRUE COPY OF THE ORDER DATED 21.02.2018
IN IA NO. 1588/2012 IN O.S 158/1995 OF
THE MUNSIFF COURT ADOOR.
EXHIBIT P14 TRUE COPY OF THE ORDER DATED 04.04.2018
IN I.A NO. 1589/2012 IN O.S 158/1995 OF
THE MUNSIFF COURT ADOOR.
EXHIBIT P15 TRUE COPY OF THE REVIEW PETITION DATED
26/03/2018 IN I.A 555/2018 IN O.S.
158/1995 OF THE MUNSIFF COURT ADOOR.
EXHIBIT P16 TRUE COPY OF THE OBJECTION DATED
28/03/2018 IN I,A 555/2018 IN O.S
158/1995 OF THE COUNSEL FOR THE
RESPONDENTS OF THE MUNSIFF COURT ADOOR.
EXHIBIT P17 TRUE COPY OF THE ORDER DATED 4/4/2018
IN I.A NO. 555/2018 IN O.S 158/1995 OF
THE MUNSSIF COURT ADOOR.
EXHIBIT P18 TRUE COPY OF THE ORDER DATED 27/03/2018
IN I.A NO.521/2018 IN 158/1995 OF THE
MUNSIFF COURT ADOOR.
