Kerala High Court
Malayathodi Sankaran @ ... vs Malayathodi Gopalakrishnan on 2 November, 2021
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE N.ANIL KUMAR
TUESDAY, THE 2ND DAY OF NOVEMBER 2021 / 11TH KARTHIKA,
1943
RSA NO. 990 OF 2006
AS 2/2002 OF DISTRICT COURT, KOZHIKODE
OS 186/1988 OF ADDITIONAL MUNSIFF COURT-II, KOZHIKODE
APPELLANT/APPELLANT IN THE LOWER APPELLATE
COURT/PLAINTIFF:
1 MALAYATHODI SANKARAN @ SANKARANKUTTY,
S/O.CHANDAPPAN, VALIYATHODIYIL, PANTHEERANKAVU,
KODAL AMSOM AND DESOM, KOZHIKODE TALUK,
KOZHIKODE DISTRICT.
(DIED)(LRS IMPLEADED)
ADDL.A2 SUSHEELA V.T.,
MANNARMANNIL HOUSE, VELLIPARAMBU P.O.,
KOTTARAPPADAM, KOZHIKODE-673 008.
ADDL.A3 BHARATHI V.,
C/O.A.SANKUNNI,AMBALI HOUSE,VELLOOR
P.O.,POOKOTTOOR,MALAPPURAM-676 517.
ADDL.A4 VANDANA,
VALIYATHODIYIL HOUSE,PANTHEERANKAVU
P.O.,KOZHIKODE-673 019.
ADDL.A5 JITHESH,
S/O.VILASINI,VALIYATHODIYIL HOUSE,
PANTHEERANKAVU P.O.,KOZHIKODE-673 019.
(DIED)(LRS RECORDED)
RSA Nos. 990 & 991 of 2006
..2..
ADDL.A6 AMRITHA,
D/O.SANKUNNI,AMBALI HOUSE,MANNARMANNIL
HOUSE,VELLIPARAMBU P.O.,KOTTARAPPADAM,
KOZHIKODE-673 008.
ADDL.A7 SHIBINA,
D/O.PURUSHOTHAMAN,PULPARAMBIL
HOUSE,PANTHEERANKAVU P.O.,KOZHIKODE-673 019.
ADDL.A8 VASU, MANNARMANNIL HOUSE, VELLIPARAMBA,
KOTTARAPPADAM, KOZHIKODE-673 008.
BY ADVS.
M.P.SREEKRISHNAN
SHAHNA KARTHIKEYAN
A.MUHAMMED MUSTHAFA
RESPONDENTS/RESPONDENTS/DEFENDANTS:
1 MALAYATHODI GOPALAKRISHNAN
S/O.M.SANKARANKUTTY, KODAL AMSOM AND DESOM,
KOZHIKODE TALUK.
2 MALAYATHODI BAHULEYAN
S/O.SANKARANKUTTY, KODAL AMSOM AND DESOM,
KOZHIKODE TALUK.
3 MALAYATHODI SAMIDASAN
S/O.SANKARANKUTTY, KODAL AMSOM AND DESOM,
VALIYATHODIYIL HOUSE, PANTHEERANKAVU,
KOZHIKODE.
4 SISTER SREEJA,
D/O.SANKARAN ALIAS SANKARANKUTTY,DO. DO. DO.
ADDL.R5 VILASINI V., (DIED)
VALIYATHODIYIL HOUSE, PANTHEERANKAVU
P.O.,KOZHIKODE-673 019. (LRS RECORDED)
RSA Nos. 990 & 991 of 2006
..3..
(LEGAL REPRESENTATIVES OF DECEASED SOLE
APPELLANT ARE IMPLEADED AS ADDL.APPELLANTS 2 TO
8 AND ADDL.RESPONDENT 5 AS PER THE ORDER DATED
13.12.2017 IN IA.457/2016.)
ADDL.RESPONDENT NO.5 DIED. ADDL.APPELLANT NO.5
IS RECORDED AS THE LEGAL REPRESENTATIVES OF
DECEASED ADDL.RESPONDENT NO.5 AS PER THE ORDER
DATED 13.12.2017 ON VIDE MEMO OF 7411/2017 DATED
21.11.2017.)
(RESPONDENT NO.2 TO 4 ARE RECORDED AS LEGAL
REPRESENTATIVES OF DECEASED APPELLANT 5 AS PER
ORDER DATED 10.04.2019 IN MEMO DATED
16.10.2017.)
BY ADVS.
I.P.SREEKANTH
SANTHAN V.NAIR
THIS REGULAR SECOND APPEAL HAVING COME UP FOR
ADMISSION ON 02.11.2021, ALONG WITH RSA.991/2006, THE
COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
RSA Nos. 990 & 991 of 2006
..4..
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE N.ANIL KUMAR
TUESDAY, THE 2ND DAY OF NOVEMBER 2021 / 11TH KARTHIKA,
1943
RSA NO. 991 OF 2006
AS 1/2002 OF DISTRICT COURT, KOZHIKODE
OS 1098/1987 OF ADDITIONAL MUNSIFF COURT-II, KOZHIKODE
APPELLANT/APPELLANT IN THE LOWER APPELLATE
COURT/PLAINTIFF:
1 MALAYATHODI SANKARAN @ SANKARANKUTTY
S/O.CHANDAPPAN, VALIYATHODIYIL,, PANTHEERANKAVU,
KODAL AMSOM AND DESOM, KOZHIKODE TALUK,
KOZHIKODE DISTRICT. (DIED) (LRS IMPLEADED)
ADDL.A2 SUSHEELA V.T.,
MANNARMANNIL HOUSE,VELIPARAMBU
P.O.,KOTTARAPPADAM,KOZHIKODE-673 008.
ADDL.A3 BHARATHI V.,
C/O.A.SANKUNNI,AMBALI HOUSE,VELLOOR
P.O.,POOKOTTOOR,MALAPPURAM.
ADDL.A4 SREEJA,
MANNARMANNIL HOUSE,VELIPARAMBU
P.O.,KOTTARAPPADAM,KOZHIKODE-673 008.
ADDL.A5 VANDANA,
VALIYATHODIYIL HOUSE,PANTHEERANKAVU
P.O.,KOZHIKODE.
ADDL.A6 JITHESH,
AMBALI HOUSE,VELLOOR P.O.,POOKOTTOOR,MALAPPURAM.
RSA Nos. 990 & 991 of 2006
..5..
ADDL.A7 AMRITHA,
MANNARMANNIL HOUSE,VELIPARAMBU
P.O.,KOTTARAPPADAM,KOZHIKODE-673 008.
ADDL.A8 SHIBINA,
D/O.PURUSHOTHAMAN,PULPARAMBIL
HOUSE,PANTHEERANKAVU P.O.,KOZHIKODE-673 019.
ADDL.A9 VASU,
MANNARMANNIL HOUSE,VELIPARAMBU
P.O.,KOTTARAPPADAM,KOZHIKODE-673 008.
(ADDITIONAL APPELLANTS 2 TO 9 AND ADDITIONAL
FOURTH RESPONDENT ARE IMPLEADED AS PER ORDER
DATED 09.03.2018 IN IA.461/2016.)
BY ADVS.
M.P.SREEKRISHNAN
SHAHNA KARTHIKEYAN
RESPONDENTS/RESPONDENTS/DEFENDANTS:
1 MALAYATHODI GOPALAKRISHNAN
S/O.M.SANKARANKUTTY, KODAL AMSOM AND DESOM,
KOZHIKODE TALUK.
2 MALAYATHODI BAHULEYAN
S/O.SANKARANKUTTY, KODAL AMSOM AND DESOM,
KOZHIKODE TALUK.
3 MALAYATHODI SAMIDASAN
S/O.SANKARANKUTTY, KODAL AMSOM AND DESOM,
VALIYATHODIYIL HOUSE, PANTHEERANKAVU, KOZHIKODE.
RSA Nos. 990 & 991 of 2006
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ADDL.R4 VILASINI V., (DIED)
VALIYATHODIYIL HOUSE, PANTHEERANKAVU, KOZHIKODE.
(ADDITIONAL SIXTH APPELLANT IS RECORDED AS THE
LEGAL REPRESENTATIVES OF DECEASED ADDITIONAL
FOURTH RESPONDENT AS PER ORDER DATED 27.11.2017
IN MEMO DATED 21.11.2017, C.F.7437/2017.)
BY ADVS.
P.V.ANOOP
PHIJO PRADEESH PHILIP
THIS REGULAR SECOND APPEAL HAVING COME UP FOR
ADMISSION ON 02.11.2021, ALONG WITH RSA.990/2006, THE
COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
RSA Nos. 990 & 991 of 2006
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RSA Nos. 990 & 991 of 2006
----------------------------------
JUDGMENT
RSA No. 990 of 2006 is against the judgment
and decree dated 21.08.2006 in AS No. 2 of
2002 on the file of the District Court,
Kozhikode (hereinafter referred to as, "the
first appellate court") on appeal from the
judgment and decree dated 23.08.2001 in OS No.
186 of 1988 on the file of the Additional
Munsiff Court-II, Kozhikode (hereinafter
referred to as, "the trial court").
2. RSA No.991 of 2006 is against the judgment and
decree dated 21.08.2006 in AS No. 1 of 2002 on
the file of the first appellate court on
appeal from the judgment and decree dated
23.08.2001 in OS No. 1098 of 1987 on the file
of the trial court.
RSA Nos. 990 & 991 of 2006
..8..
3. The above RSAs arise out of common judgment
and decree on the file of the very same court.
OS No. 186 of 1988 is a suit for partition and
OS No. 1098 of 1987 is a suit for injunction.
The suit for partition was decreed and the
suit for injunction was dismissed. The common
judgment and decree of the trial court was
assailed in AS Nos.1 and 2 of 2002
respectively before the first appellate court.
The first appellate court dismissed the
appeals, confirming the common judgment and
decree of the trial court. Hence, these RSAs.
4. During the pendency of the appeals, the sole
appellant died. In RSA No. 990 of 2006,
additional appellants 2 to 8 and the
additional respondent No.5 were impleaded as
the legal heirs of the deceased sole
appellant. In RSA No. 991 of 2006, additional
appellants 2 to 9 and the additional
respondent No.4 were impleaded as the legal
RSA Nos. 990 & 991 of 2006
..9..
heirs of the deceased sole appellant.
Subsequently, one of the legal heirs of the
deceased sole appellant, Smt.Vilasini V., who
of 2006 and the additional 4th respondent in
RSA No. 991 of 2006, expired. Sri.Jithesh, who
of 2006 and the additional 6th appellant in RSA
No. 991 of 2006, recorded as the legal heir of
Smt.Vilasini, died unmarried and issueless.
5. Now, the parties to the appeals arrived at a
consensus and decided to settle the dispute by
way of compromise. The compromise petition is
filed as IA No. 1 of 2021 in RSA No. 990 of
2006 before this Court.
6. The contents of paragraph 4 of the compromise
petition would inter alia show that the
whereabouts of Sri.Malayathodi Bahuleyan and
Sri.Malayathodi Samidasan, who are respondents
2 and 3 in the appeals, are not known to the
RSA Nos. 990 & 991 of 2006
..10..
members of the family for the last more than
30 years. It is further stated that they were
not heard or seen by any of the relatives or
people of the locality for the last more than
30 years.
7. As per Section 107 of the Evidence Act, the
burden of proving death of a person known to
have been alive within thirty years is on the
person, who affirms it. Section 108 of the
Evidence Act provides that when the question
is whether a man is alive or dead and it is
proved that he has not been heard of for seven
years by those who would naturally have heard
of him if he had been alive, the burden of
proof is shifted to the person, who affirms
it. The recital contained in paragraph 4 of
the compromise petition is insufficient to
invoke or presume the death of respondents 2
and 3 under Sections 107 and 108 of the
Evidence Act. Civil death cannot be presumed
RSA Nos. 990 & 991 of 2006
..11..
lightly in view of a recital contained in the
compromise between the parties. It is a rule
of evidence. The question should arise in the
suit and the matter be decided in accordance
with law. In view of the circumstances, it is
not possible to hold that respondents 2 and 3
are presumed to be dead. However, they are not
available to put signature in the compromise.
In the compromise, it is stated that by way of
abundant caution, shares have been allocated
to them separately and set apart in the sketch
appended to the compromise.
8. Since civil death cannot be presumed, it is
just and proper to hold that whatever
compromise arrived at between the parties is
not binding upon respondents 2 and 3 in the
appeals.
9. The suit is of the year 1988. The parties have
been agitating the case for the last three
decades. Considering the fact that all other
RSA Nos. 990 & 991 of 2006
..12..
parties except respondents 2 and 3 have
settled the matter out of court, it is just
and proper to record the compromise arrived at
between the parties. However, it is clarified
that the compromise so recorded is not binding
on respondents 2 and 3 or their legal heirs,
if any. Since the matter is settled between
the parties, it is not necessary to pass a
preliminary decree in this case. All the
disputes are settled between the parties by
way of separate plans appended to the
compromise. Hence, this Court is justified in
passing a final decree to avoid multiplicity
of proceedings.
In the result, these RSAs are disposed of in
terms of compromise. The terms of compromise
and the plans appended thereto will form part
of the decree. However, it is clarified that
the compromise so recorded is not binding on
respondents 2 and 3 or their legal heirs, if
RSA Nos. 990 & 991 of 2006
..13..
any. There would be no order as to costs.
Pending applications, if any, stand closed.
Registry is directed to engross the final
decree in accordance with rules.
Sd/-
N.ANIL KUMAR
JUDGE
Bka/02.11.2021
