Kerala High Court
Dulsy Stephen And 2 Others vs Vironi Thomas @ Vironica And ... on 25 October, 2023
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE V.G.ARUN
WEDNESDAY, THE 25TH DAY OF OCTOBER 2023 / 3RD KARTHIKA,
1945
CRP NO. 497 OF 2011
AGAINST THE ORDER/JUDGMENT AS 87/2009 OF I ADDITIONAL
DISTRICT COURT, ERNAKULAM
REVISION PETITIONER/S:
1 DULSY STEPHEN AND 2 OTHERS
YEARS, THOTTAKATH HOUSE, CHERANALLUR, NOW,
RESIDING AT THANEMPARAMBIL, 4TH FLOOR, GEO,
MAREENA TOWERS, MANORAMA JUNCTION, S.A.ROAD,,
ERNAKULAM, KOCHI - 16.
2 VINU STEPHEN SO.LATE STEPHEN AGED 36
YEARS, THOTTAKATH HOUSE, CHERANALLUR, NOW,
RESIDING AT THANEMPARAMBIL, 4TH FLOOR, GEO,
MAREENA TOWERS, MANORAMA JUNCTION, S.A.ROAD,,
ERNAKULAM, KOCHI - 16.
3 MARY STEPHEN DO.LATE STEPHEN AGED 34
YEARS, THOTTAKATH HOUSE, CHERANALLUR, NOW,
RESIDING AT THANEMPARAMBIL, 4TH FLOOR, GEO,
MAREENA TOWERS, MANORAMA JUNCTION, S.A.ROAD,,
ERNAKULAM, KOCHI - 16.
BY ADVS.
SRI.T.M.SUNIL
SMT.S.CHITHRA
RESPONDENT/S:
1 VIRONI THOMAS @ VIRONICA AND OTHERS
D/O.ESTHAPPANOSE AND W/O.THOMAS, THAREPARAMBIL,
HOUSE, MOOLAMKUZHY, ARIYAD, MUNDEMVALI P.O.,,
KOCHI - 7.
2 LILLY DO.ESTHAPPANOSE
W/O.PAUL J.CHANDY, RESIDING AT PADAPURACKAL,
PARAMBU, CHERANALLUR P.O., KOCHI - 34.
3 ELIZEBETH PAPPU WO.LATE PAPPU
PADAPURACKAL HOUSE, NOW RESIDING AT
CHERUVATHUR, HOUSE, CHOOLAKAL LANE, ST.BENEDICT
ROAD,, ERNAKULAM, KOCHI - 18.
4 VINU JOSEPH SO.LATE PAPPU
PADAPURACKAL HOUSE, NOW RESIDING AT
CRP Nos.497 & 505 of 2011
-2-
CHERUVATHUR, HOUSE, CHOOLAKAL LANE, ST.BENEDICT
ROAD,, ERNAKULAM, KOCHI - 18.
5 VIBI JOSEPH DO.LATE PAPPU
PADAPURACKAL HOUSE, NOW RESIDING AT
CHERUVATHUR, HOUSE, CHOOLAKAL LANE, ST.BENEDICT
ROAD,, ERNAKULAM, KOCHI - 18.
6 ADDL.RESPONDENT NO.9 JOY P.P.
S/O.PEEYUS AND VICTORIA, PANAKKAL HOUSE,,
NAYARAMBALAM, NARAKKAL, KOCHI - 682 509.
7 ADDL.RESPONDENT NO.10 GRACY FRANCIS
D/O.PEEYUS AND VICTORIA, PANAKKAL HOUSE,,
NAYARAMBALAM, NARAKKAL, KOCHI - 682 509.
8 ADDL.RESPONDENT NO.11 MAJI BENNY
W/O.BENNY JOSEPH, AZHIYOOR,, P.O.MAHI - 673 309.
9 ADDL.RESPONDENT NO.12 EANEST STEPHEN
S/O.MATHEW, PADAPURACKAL HOUSE,, RTD.CO-
EMPLOYEE, NEAR NITHYA SAHAYA MATHA CHURCH,,
CHERANALLUR P.O., KOCHI - 34.
10 ADDL.RESPONDENT NO.13 BARBERA STEPHEENA
D/O.P.E.MATHEW, W/O.SIMON, THAYANKERY HOUSE,,
NEAR AMBALA KADAVU, CHERANALLUR P.O., KOCHI -
34.
11 ADDL.RESPONDENT NO.14 MARITA PHILOMINA
D/O.P.E.MATHEW, W/O.SIMON, THAYANKERY HOUSE,,
NEAR MARY MATHA CONVENT, VAZHAKALA, KAKKANAD
P.O.,, KOCHI - 30.
12 ADDL.RESPONDENT NO.15 JOSEPH RUBAN
S/O.P.E.MATHEW, AGED 53 YEARS,, PADAPURACKAL
HOUSE, NEAR KACHERIPADY,, CHERANALLUR P.O.,
KOCHI - 34.
13 ADDL.RESPONDENT NO.16 PAUL DENNIS
S/O.P.E.MATHEW, AGED 50 YEARS,, PADAPURACKAL
HOUSE, NEAR KACHERIPADY,, CHERANALLUR P.O.,
KOCHI - 34.
14 ADDL.RESPONDENT NO.17 URSULA SHERLY
D/O.P.E.MATHEW, AGED 44 YEARS,, CHERIKALAKATH
HOUSE, MARATHUKUNNU, ENKAKKAD P.O.,,
VADAKKANCHERY.
15 ADDL.RESPONDENT NO.18 JUSTINA SHEEBA
D/O.P.E.MATHEW AND W/O.BASIL THOMAS,, AGED 41
YEARS, THANNIKKAL HOUSE,, NEAR NAVANIRMAN
SCHOOL ANNEXE, VAZHAKKALA,, KAKKANAD P.O.,
CRP Nos.497 & 505 of 2011
-3-
KOCHI - 30.
16 ADDL.RESPONDENT NO.19 THRESSIA ANTONY
AGED 51 YEARS, W/O.T.P.ANTONY (ANTONY
PAULOSE),, THOTTAKATH HOUSE, CHERANALLOOR
P.O.,, KOCHI - 682 034.
17 ADDL.RESPONDENT NO.20 ROSY ANTONY
D/O.T.P.ANTONY (ANTONY PAULOSE),, THOTTAKATH
HOUSE, CHERANALLOOR P.O.,, KOCHI - 682 034.
18 ADDL.RESPONDENT NO.21 MARY ANTONY
D/O.T.P.ANTONY (ANTONY PAULOSE),, THOTTAKATH
HOUSE, CHERANALLOOR P.O.,, KOCHI - 682 034.
BY ADVS.
SRI.P.T.ANTONY
SRI.S.B.PREMACHANDRA PRABHU
SRI.K.JAYAKUMAR SR.
SRI.M.P.RAMNATH
THIS CIVIL REVISION PETITION HAVING BEEN FINALLY
HEARD ON 25.10.2023, ALONG WITH CRP.505/2011, THE COURT
ON THE SAME DAY DELIVERED THE FOLLOWING:
CRP Nos.497 & 505 of 2011
-4-
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE V.G.ARUN
WEDNESDAY, THE 25TH DAY OF OCTOBER 2023 / 3RD KARTHIKA,
1945
CRP NO. 505 OF 2011
AGAINST THE ORDER/JUDGMENT AS 86/2009 OF I ADDITIONAL
DISTRICT COURT, ERNAKULAM
REVISION PETITIONER/S:
1 DULSY STEPHEN AND 2 OTHERS
W/O. LATE STEPHEN, THOTTAKATH HOUSE,
CHERANALLUR, NOW RESIDING AT THANEMPARAMBIL,
4TH FLOOR, GEO MAREENA TOWERS, MANORAMA
JUNCTION, S.A.ROAD, ERNAKULAM, KOCHI-16.
2 VINU STEPHEN
AGED 36 YEARS
S/O. LATE STEPHEN, THOTTAKATH HOUSE,
CHERANALLUR, NOW RESIDING AT THANEMPARAMBIL,
4TH FLOOR, GEO MAREENA TOWERS, MANORAMA
JUNCTION, S.A.ROAD, ERNAKULAM, KOCHI-16.
3 MARY STEPHEN
AGED 34 YEARS
D/O. LATE STEPHEN, THOTTAKATH HOUSE,
CHERANALLUR, NOW RESIDING AT THANEMPARAMBIL,
4TH FLOOR, GEO MAREENA TOWERS, MANORAMA
JUNCTION, S.A.ROAD, ERNAKULAM, KOCHI-16.
BY ADVS.
SRI.T.M.SUNIL
SMT.S.CHITHRA
RESPONDENT/S:
1 VIRONI THOMAS @ VIRONICA AND OTHERS
D/O. ESTHAPPANOSE AND W/O. THOMAS,
THAREPARAMBIL HOUSE, MOOLAMKUZHY, ARIYAD,
CRP Nos.497 & 505 of 2011
-5-
MUNDAMVELI P.O., KOCHI-7.
2 LILLY,
D/O. ESTHAPPANOSE, W/O. PAUL J. CHANDY,
RESIDING AT PADAPURACKAL PARAMBU, CHERANALLUR
P.O., KOCHI - 34.
3 ELIZEBETH PAPPU,
W/O. LATE PAPPU, PADAPURAKKAL HOUSE, NOW
RESIDING AT CHERUVATHUR HOUSE, CHOOLAKAL LANE,
ST. BENEDICT ROAD, ERNAKULAM, KOCHI 18.
4 VINU JOSEPH,
S/O. LATE PAPPU, PADAPURAKKAL HOUSE, NOW
RESIDING AT CHERUVATHUR HOUSE, CHOOLAKAL LANE,
ST. BENEDICT ROAD, ERNAKULAM, KOCHI - 18.
5 VIBI JOSEPH
D/O. LATE PAPPU, PADAPURAKKAL HOUSE, NOW
RESIDING AT CHERUVATHUR HOUSE, CHOOLAKAL LANE,
ST. BENEDICT ROAD, ÉRNAKULAM, KOCHI - 18.
6 ADDL. RESPONDENT NO.9: JOY P.P.,
S/O. PEEYUS AND VICTORIA, PANAKKAL HOUSE,
NAYARAMBALAM, NARAKKAL, KOCHI - 682 509.
7 ADDL. RESPONDENT NO.10: GRACY FRANCIS,
D/O. PEEYUS AND VICTORIA, PANAKKAL HOUSE,
NAYARAMBALAM, NARAKKAL, KOCHI - 682 509.
8 ADDL. RESPONDENT NO.11: MAJI BENNY,
W/O. BENNY JOSEPH, AZHIYOOR,P.O. MAHI - 673 309.
9 ADDL. RESPONDENT NO.12: EANEST STEPHEN,
S/O. MATHEW, PADAPURACKAL HOUSE, RTD. CO-
EMPLOYEE, NEAR NITHYA SAHAYA MATHA CHURCH,
CHERANALLUR P.O., KOCHI- 34.
10 ADDL. RESPONDENT NO.13: BARBERA STEPHEENA,
D/O. P.E. MATHEW, W/O. SIMON, THAYANKERY HOUSE,
NEAR AMBALA KADAVU, CHERANALLUR P.O., KOCHI -
34.
11 ADDL. RESPONDENT NO.14: MARITA PHILOMINA,
D/O. P.E.MATHEW, W/O. SIMON, THAYANKERY HOUSE,
NEAR MARY MATHA CONVENT, VAZHAKALA, KAKKANAD
P.O., KOCHI - - 30.
12 ADDL. RESPONDENT NO.15: JOSEPH RUBAN,
S/O. P.E. MATHEW, AGED 53 YEARS, PADAPURACKAL
HOUSE, NEAR KACHERIPADY, CHERANALLUR P.O.,
KOCHI -34.
13 ADDL. RESPONDENT NO.16: PAUL DENNIS,
CRP Nos.497 & 505 of 2011
-6-
S/O. P.E. MATHEW, AGED 50 YEARS, PADAPURACKAL
HOUSE, NEAR KACHERIPADY, CHERANALLUR P.O.,
KOCHI -34.
14 ADDL. RESPONDENT NO. 17: URSULA SHERLY,
D/O. P.E. MATHEW, AGED 44 YEARS, CHERIKALAKATH
HOUSE, MARATHUKUNNU, ENKAKKAD P.O.,
VADAKKANCHERY.
15 ADDL. RESPONDENT NO.18: JUSTINA SHEEBA,
D/O. P.E. MATHEW AND W/O. BASIL THOMAS, AGED 41
YEARS, THANNIKKAL HOUSE, NEAR NAVANIRMAN SCHOOL
ANNEXE, VAZHAKKALA, KAKKANAD P.O., KOCHI - 30.
16 ADDL. RESPONDENT NO.19: THRESSIA ANTONY,
AGED 51 YEARS, W/O. T.P. ANTONY (ANTONY
PAULOSE), THOTTAKATH HOUSE, CHERANALLOOR P.O.,
KOCHI - 682 034.
17 ADDL. RESPONDENT NO.20: ROSY ANTONY,
D/O. T.P. ANTONY (ANTONY PAULOSE),THOTTAKATH
HOUSE, CHERANALLOOR P.O., KOCHI-682 034.
18 ADDL. RESPONDENT NO.21: MARY ANTONY,
D/O. T.P. ANTONY (ANTONY PAULOSE), THOTTAKATH
HOUSE, CHERANALLOOR P.O., KOCHI - -682 034.
19 ADDL. RESPONDENT NO.19. (IMPLEADED) SIMON
S/O.CHAMAR, AGED 62 YEARS, THAYANKERI HOUSE,
EDAPPALLY, NOW RESIDING AT PADAPURACKAL,
CHERANALLUR P.O., KOCHI-34. (IMPLEADED AS 19TH
RESPONDENT AS PER ORDER DATED 1/2/2023 IA IA
267/2013 IN CRP 505/2011)
BY ADVS.
SRI.P.T.ANTONY
SRI.K.JAYAKUMAR SR.
SRI.PEEYUS A.KOTTAM
SRI.S.B.PREMACHANDRA PRABHU
SRI.M.P.RAMNATH
THIS CIVIL REVISION PETITION HAVING BEEN FINALLY
HEARD ON 25.10.2023, ALONG WITH CRP.497/2011, THE COURT
ON THE SAME DAY DELIVERED THE FOLLOWING:
CRP Nos.497 & 505 of 2011
-7-
ORDER
Dated this the 25th day of October, 2023
The revision petitioners in CRP No.497 of
2011 were additional plaintiffs 7 to 9 in
O.S.No.432 of 1980 on the files of the I st
Additional Sub Court, Ernakulam. CRP No.505 of
2011 is filed by the revision petitioners in
their capacity as additional defendants 10 to 12
in O.S.No.411 of 1986 of the same court. The
suit, O.S.No.432 of 1980, was filed by the sons
and daughters of one Esthappanose, seeking
partition and separate possession of two items of
property. Therein, a preliminary decree was
passed on 23.02.1983. Challenging the preliminary
decree, appeals were filed by some of the
parties. The appellate court having confirmed the
decree, SA Nos.856 and 910 of 1984 were filed
CRP Nos.497 & 505 of 2011
before this Court and cross objections were filed
by the respondents in the appeal. Following the
decision in Mary Roy and Others v State of Kerala
and Others [1986 KLT 508], this Court held that
the courts below had committed a mistake by
allowing allotting shares based on the Cochin
Christian Succession Act, (Act 6 of 1907). Hence,
the impugned judgments were set aside with a
direction to allot shares in accordance with the
Indian Succession Act, 1925. As it was contended
that a partible property was not included in the
hotchpot, this Court granted liberty to the
parties to file a suit for partition with respect
to the property that was left out.
2. The first defendant in O.S.No.432 of
1980 filed O.S.No.411 of 1986 thereafter, seeking
partition and separate possession of his 1/5th
share in the property that was omitted to be
scheduled in O.S.No.432 of 1980. The suits were
CRP Nos.497 & 505 of 2011
tried together and a preliminary decree was
passed on 29.03.2003. Based on the preliminary
decree, a final decree application was filed and
the same is pending since 01.07.2005.
3. The revision petitioners had been
impleaded in the suits, in their capacity as the
legal heirs of one Rosy. Much after passing of
the preliminary decree, the revision petitioners
filed A.S.No.86 and 87 of 2009 before the Ist
Additional District Court, Ernakulam challenging
the decree. Along with the appeals, applications
for condoning the delay of 2115 days in filing
the appeals were also filed. The appellate court
dismissed the applications for condonation of
delay and consequently, the appeals. Hence, these
civil revision petitions.
4. Learned Counsel for the revision
petitioners contended that the court below had
committed gross illegality in passing the revised
CRP Nos.497 & 505 of 2011
preliminary decree, without following the
direction in the second appeal judgment that the
shares should be re-allotted in accordance with
the Indian Succession Act, 1925.
5. Learned Counsel for the respondents
raised a preliminary objection regarding
maintainability on the ground that the remedy is
to file second appeals against the judgments of
the first appellate court and challenge the
rejection of the application for condonation of
delay in those appeals. I am not venturing to
decide that question here, since the revision
petitions are even otherwise liable to be
dismissed.
6. The reason put forth by the revision
petitioners for condoning the inordinate delay of
2115 days is their purported ignorance about the
the preliminary decree. A perusal of the impugned
order shows that the petitioners had got
CRP Nos.497 & 505 of 2011
themselves impleaded as defendants in O.S.No.411
of 1986 and had filed a statement adopting the
contentions of the other contesting defendants in
the suit. Similarly, in O.S.No.432 of 1980, the
petitioners got themselves impleaded as
additional plaintiffs 7 to 9. In their affidavit
filed in support of the application for
impleading, the petitioners had stated that they
were impleaded as additional defendants in
O.S.No.411 of 1986 and that suit is posted for
joint trial along with O.S.No.432 of 1980. It is
hence evident that the petitioners were parties
to the suits and had contested the matter. As
such, they cannot plead ignorance about the
disposal of the suits or the passing of the
preliminary decree. Hence, the court below was
fully justified in refusing to believe the
explanation offered by the petitioners.
CRP Nos.497 & 505 of 2011
7. Even if the case of the petitioners that
they came to know about the preliminary decree
only on 15.11.2007 is accepted, their failure to
explain the reason for filing copy application
for obtaining certified copy of the judgment and
decree only on 13.02.2009 is fatal.
For the aforementioned reasons, the civil
revision petitions are dismissed.
Sd/-
V.G.ARUN
JUDGE
Scl/
