Kerala High Court

Mrs.Lizy Philip vs Saramma Andrews on 15 March, 2021

                 IN THE HIGH COURT OF KERALA AT ERNAKULAM
                                  PRESENT
                THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN
                                     &
                    THE HONOURABLE MR. JUSTICE T.R.RAVI
         MONDAY, THE 15TH DAY OF MARCH 2021 / 24TH PHALGUNA, 1942
                            RFA.No.1 OF 2018(A)
AGAINST THE ORDER/JUDGMENT IN OS 65/2014 DATED 31-08-2017 OF PRINCIPAL SUB
                              COURT,KOTTAYAM


APPELLANT/S:

        MRS.LIZY PHILIP, D/O. LATE K.C. ANDREWS, AGED 63 YEARS,
        KALIMKOOTTIL HOUSE, NEAR 9TH MILE, P.O. VELLOOR, VIA. PAMPADY,
        PAMPADY VILLAGE, KOTTAYAM DISTRICT,KOTTAYAM - 686501, NOW RESIDING
        AT FLAT NO. 3D, WARD NO. 12, NEAR WEXCO VILLAS, P.O. THELLAKOM,
        ADICHIRA, KOTTAYAM - 686016.

               BY ADVS.
               SRI.S.EASWARAN
               SRI.M.A.AUGUSTINE
               SRI.P.MURALEEDHARAN (IRIMPANAM)
               SMT.P.A.MENISHA
               SMT.SOUMYA JAMES
               SRI.P.SREEKUMAR (THOTTAKKATTUKARA)

RESPONDENTS:

 1     SARAMMA ANDREWS, W/O. LATE K.C. ANDREWS,AGED ABOUT 87 YEARS,
       RESIDING AT KALIMKOOTTIL HOUSE, NEAR 9TH MILE, P.O. VELLOOR,PAMPADY
       VILLAGE,KOTTAYAM TALUK, VIA. PAMPADY KOTTAYAM - 686501

 2     MR. JACOB, KALIMKOOTTIL HOUSE, S/O. LATE K.C. ANDREWS,AGED ABOUT 65
       YEARS, KALIMKOOTTIL HOUSE, NEAR 9TH MILE, P.O. VELLOOR,PAMPADY
       VILLAGE,KOTTAYAM TALUK,KOTTAYAM DISTRICT, VIA. PAMPADY KOTTAYAM -
       686501
       (REPRESENTED BY POWER OF ATTORNEY HOLDER)

 3     MRS. MARY ANDREWS ALIAS SUJA
       WIFE OF LATE SHIBU, AGED ABOUT 57 YEARS, KALIMKOOTTIL HOUSE, NEAR
       9TH MILE, P.O. VELLOOR,PAMPADY VILLAGE,KOTTAYAM TALUK,KOTTAYAM
       DISTRICT, VIA. PAMPADY KOTTAYAM - 686501
       (REPRESENTED BY POWER OF ATTORNEY HOLDER)

 4     SMT. NEETHU, D/O. LATE SHIBU, AGED ABOUT 31 YEARS, RESIDING AT
       KALIMKOOTTIL HOUSE, NEAR 9TH MILE, P.O. VELLOOR,PAMPADY
       VILLAGE,KOTTAYAM TALUK,KOTTAYAM DISTRICT, VIA. PAMPADY KOTTAYAM -
       686501
 R.F.A No. 1 of 2018         ::2::


     (REPRESENTED BY POWER OF ATTORNEY HOLDER)

 5   SMT. NISHA
     D/O. LATE SHIBU, AGED ABOUT 25 YEARS, RESIDING AT
     KALIMKOOTTIL HOUSE, NEAR 9TH MILE, P.O. VELLOOR,PAMPADY
     VILLAGE,KOTTAYAM TALUK,KOTTAYAM DISTRICT, VIA. PAMPADY
     KOTTAYAM - 686501

     (REPRESENTED BY POWER OF ATTORNEY HOLDER)

 6   MR. RENY ANDREWS
     S/O. LATE K.C. ANDREWS,AGED ABOUT 52 YEARS,RESIDING AT
     KALIMKOOTTIL HOUSE, NEAR 9TH MILE, P.O. VELLOOR,PAMPADY
     VILLAGE,KOTTAYAM TALUK,KOTTAYAM DISTRICT, VIA. PAMPADY
     KOTTAYAM - 686501

 7   CHERIAN ZACHARIAH SON OF   CHERIAN
     POOVAKKODE HOUSE,VELLOOR   P.O., PAMPADY VILLAGE,KOTTAYAM
     TALUK,KOTTAYAM DISTRICT,   VIA. PAMPADY KOTTAYAM - 686501
     (REPRESENTED BY POWER OF   ATTORNEY HOLDER)

 8   SMT. ANNAMMA CHERIAN WO. P.V. CHERIAN
     POOVAKKODE HOUSE,VELLOOR P.O., PAMPADY VILLAGE,KOTTAYAM
     TALUK,KOTTAYAM DISTRICT, VIA. PAMPADY KOTTAYAM - 686501

 9   CHERIAN POOVAKKODE
     POOVAKKODE HOUSE,VELLOOR P.O., PAMPADY VILLAGE,KOTTAYAM
     TALUK,KOTTAYAM DISTRICT, VIA. PAMPADY KOTTAYAM - 686501


     IT IS RECORDED THAT RESPONDENTS 2 TO 5 ARE REPRESENTED BY
     THEIR POWER OF ATTORNEY HOLDER THE 6TH RESPONDENT RENNY
     ANDREWS (RENNY A KALLINKOOTTIL) AND RESPONDENT 7 IS
     REPRESENTED BY HIS POWER OF ATTORNEY HOLDER TIJO P CHERIAN,
     S/O LATE P.Z.CHERIAN, POOVAKKOTTU HOUSE,VELLOOR
     P.O.,PAMPADY ,KOTTAYAM. AS PER ORDER DATED 15/03/2021 IN
     MEMOS DATED 21/03/2018

            R1 BY ADV. SRI.P.K.JOSEPH
            R1, R7 BY ADV. SRI.PHILIP M.VARUGHESE

        THIS REGULAR FIRST APPEAL HAVING BEEN FINALLY HEARD ON
 15.03.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
 R.F.A No. 1 of 2018         ::3::


             K. VINOD CHANDRAN & T.R RAVI, JJ
           ---------------------
                      R.F.A No. 1 of 2018
            - - - - - - -- - - - - - - - - - - - -
            Dated this the 15th day of March, 2021

                       JUDGMENT

Vinod Chandran, J

We recalled the judgment passed on 22.12.2020 for reason of the memos filed in the case having not been recorded. The matter has been settled between the parties on the basis of the compromise entered into. Memos dated 21.03.2018 for the purpose of permitting the Power of Attorney holder of the 7th respondent to represent him in the compromise and also permitting the respondents 2 to 5 to be represented by their Power of Attorney holder the 6th respondent has been recorded vide separate order dated 15.03.2021.

2. The terms of compromise are as follows:

"6. The appellant will relinquish all her right, claims and demands over and with respect to the plaint R.F.A No. 1 of 2018 ::4::

schedule properties and she will not claim or demand partition of her respective share on the plaint schedule property at any time in future.

7. In consideration of the appellant relinquishing her claims over the plaint schedule properties and consequently withdrawing her contentions in the appeal, the 6th respondent herein, who is the brother of the appellant, agrees to cause and his wife Smt.Anie Kalimkoottil has agreed to transfer at the appellant's cost an extent of thirty (30) cents (12.14 Ares) (Boundaries:- West-9th mile Parayathottam Road, East-Renny Andrews property, South-Lisamma's property, North-Anie Kalimkoottil's remaining 20 cent property) extending east-west on the southern side of 20.24 Ares in Sy.No.103/3-1 under the ownership of Anie Kalimkoottil obtained by her under Release/Gift Deed No.3697 of 1996 in Block No.I, Volume 209, pages 177 to 180 of Sub Registrar's office, Pampady forming part of the B schedule property to the plaint

8. Considering the fact that the said property was transferred by the parents of the appellant in favour of R.F.A No. 1 of 2018 ::5::

the 6th respondent and who along with the parents gifted/ released the same in favour of his wife Smt.Anie Kalimkoottil, she becomes a necessary party to the compromise. Hence for the purpose of completing the legal formalities, the parties hitherto agree that Smt.Anie may also be made a party to the said compromise and accordingly for completing the entire compromise and in order to make it legal, Smt.Anie Kalimkoottil is also made a party to this compromise and she has accordingly affixed her signature in the same. All parties hereby agree that the property scheduled herein will be conveyed to the appellant within a period of sixty (60) days from the date of settlement of the case and disposal of the appeal.

9. If under any circumstances, the 6th respondent's wife fails to honour the commitment, the appellant will be free to get the document executed and registered through the court by due process of law for which the respondents herein and Smt.Anie Kalimkoottil have no objection.

10. For affecting the compromise the parties agree R.F.A No. 1 of 2018 ::6::

that the judgment and decree of the Sub Court in OS No.65 of 2014 can be modified as follows:

a) The appellant relinquishes all her rights, claims and demands over the plaint schedule properties as suggested by the defendants and further agrees that she will never have any right, claim or demand in future over the plaint schedule properties other than the thirty (30) cents agreed to be assigned by Anie Kalimkoottil to the appellant.

b) In consideration of the appellant relinquishing her claim over, the 6th respondent will cause his wife Anie Kalimkoottil who has been made a party hereto, hereby agree to transfer an extent of 12.14 Ares (thirty cents) in old Sy.No.150/1A/1&150/1A/2, Block No.38 Re.Sy.No.103/ 3-1 covered by document No.3697 of 1996 and forming part of B schedule property of the plaint within a period of sixty (60) days from today.

c) On the failure on the party of the 6th respondent Renny Andrews causing his wife Anie Kalimkoottil to execute the document as aforementioned, the appellant is at liberty to get the same executed and R.F.A No. 1 of 2018 ::7::

registered through the process of court for which the parties has no objection.

d) The judgment and decree dated 31.08.2017 in OS No.65 of 2014 on the files of the Subordinate Judge's Court, Kottayam will stand modified to the extent as agreed in the compromise.

e) The appellant has no objection to lift the injunction ordered by this court in the Interlocutory Application filed along with the appeal over the plaint schedule properties."