Kerala High Court
Sadanandan Nambradath vs Surendran Nambradath on 6 February, 2024
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE C. JAYACHANDRAN
TUESDAY, THE 6TH DAY OF FEBRUARY 2024 / 17TH MAGHA, 1945
OP(C) NO. 2871 OF 2023
AGAINST ORDER IN OS 251/2012 OF SUB DIVISIONAL MAGISTRATE, KANNUR
FDIA 1435/2018 OF SUB DIVISIONAL MAGISTRATE, KANNUR
PETITIONER/R1 IN FDIA/PLAINTIFF:
SADANANDAN NAMBRADATH
AGED 49 YEARS
S/O PADMANABHAN NAIR, RESIDING AT VALSALA NIVAS, P.O
PAPPINISSERI, KEECHERI, PAPPINISERI AMSOM, AROLI DESOM,
KANNUR TALUK, KANNUR, PIN - 670561
BY ADVS.
ABDUL RAOOF PALLIPATH
E.MOHAMMED SHAFI
K.R.AVINASH (KUNNATH)
PRAJIT RATNAKARAN
KRISHNAPRIYA R.
ANITHA C.
RESPONDENTS/PETITIONER, R2 TO R7 IN FDIA/D1 TO D7:
1 SURENDRAN NAMBRADATH
AGED 56 YEARS
S/O PADMANABHAN NAIR, RESIDING AT " ASWA NIVAS",
PALAKULANGARA.P.O, TALIPARAMBA, TALIPARAMBA TALUK,
KANNUR, PIN - 670141
2 THANKAMANI
AGED 51 YEARS
D/O PADMANABHAN NAIR, RESIDING AT " KRITHIKA NIVAS",
KEECHERIKUNNU, PAPPINISSERI AMSOM, AROLI DESOM, NEAR
SAMUDRA APARTMENTS, KANNUR TALUK, KANNUR, PIN - 670001
3 OMANAVALLI
AGED 41 YEARS
ACCOUNTANT, RESIDING AT KUNNUMMAL HOUSE, PUZHATHI.P.O,
CHIRAKKAL, NEAR KOLLARATHIKKAL PETROL PUMP, CHIRAKKAL
AMSOM, PUZHATHI DESOM, KANNUR TALUK, KANNUR,
PIN - 670001
4 NAMBRADATH SREEDEVI
AGED 81 YEARS
W/O PADMANABHAN NAIR, RESIDING AT VALSALA NIVAS, P.O
PAPPINISSERI, KEECHERI, PAPPINISERI AMSOM, AROLI DESOM,
KANNUR TALUK, KANNUR-670561 ( UNSOUNDED PERSON
REPRESENTED BY THE GUARDIAN AND NEXT FRIEND SON
O.P.(C).No. 2871 of 2023
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SURENDRAN NABRADATH, AGED 56 YEARS, RESIDING AT
" ASWA NIVAS", PALAKULANGARA.P.O, TALIPARAMBA,
TALIPARAMBA TALUK, KANNUR, PIN - 670141
5 PADMINI NAMBRADATH
AGED 60 YEARS
D/O PADMANABHAN NAIR, KUNNUMMAL HOUSE, PUZHATHI,
CHIRAKKAL, NEAR KOLLARATHIKKAL PETROL PUMP,
CHIRAKKAL AMSOM, PUZHATHI DESOM, KANNUR TALUK,
KANNUR, PIN - 670001
6 KUNNUMMAL VEETTIL BALARAMAN NAIR
AGED 85 YEARS
S/O RAMAN NAIR, NO OCCUPATION, RESIDING AT
CHIRAKKAL AMSOM, PUZHATHI DESOM, NERA PATTEL
ROAD, KANNUR TALUK, KANNUR, PIN - 670005
BY ADVS.
Shaji Thomas
JEN JAISON
THOMASKUTTY SEBASTIAN(K/623/1987)
MOHAN PULIKKAL(K/64A/1985)
K.BABU(K/743/1990.)
THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON
06.02.2024, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
O.P.(C).No. 2871 of 2023
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J U D G M E N T
Dated this the 06th day of February, 2024
The first respondent in F.D.I.A.No.1435/2018 of
the Sub Court, Kannur arising from O.S.
No.251/2012, is the petitioner herein. He is
aggrieved by Ext.P9 order, which rejected his
application to remit Ext.P3 Commission report.
2. Heard the learned counsel for the petitioner
and learned counsel for respondents 3 and 5.
Other respondents, though served with notice,
have not chosen to appear before this Court.
3. Having heard the learned counsel afore
referred, this Court notices that, two specific
objections raised, vide Ext.P5, to Ext.P3
Commission report, which are specifically
referred to in paragraph nos.2(b) and (c), are
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not seen addressed in Ext.P9 order. The objection
paragraphed in 2(d) and (e) alone are seen
addressed. This Court is of the opinion that,
Ext.P9 order cannot be sustained for that reason.
No matter whether the contentions urged vide
paragraph nos. 2(b) or 2(c) are liable to be
considered favourably or not, the learned Munsiff
is supposed to address the same, when such
specific objection is seen raised vide Ext.P5.
Ext.P9 order is sustained, insofar as, the
objection vide paragraph nos. 2(d) and (e) are
concerned. However, the matter is remitted for
further consideration with respect to objections
vide (b) and (c) of paragraph 2 are concerned.
Insofar as, the objection vide paragraph 2(f) and
(g) are concerned, this Court finds little merit,
since division of properties in a partition suit
cannot be based on the personal relationship
between the parties, as pleaded in ground (f) and
(g).
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4. In the circumstances, Ext.P9 order is
confirmed, insofar as objections vide paragraph
nos. 2(d) and (e) are concerned. However, the
matter is remitted to the court below for
consideration of the objections, vide paragraph
nos.2(b) and (c) are concerned. The Court will
pass a further order in respect of the said
objections, after affording a reasonable
opportunity of being heard to the parties. The
learned Munsiff will complete the above exercise
within a period of 40 days from the date of
receipt of a copy of this judgment.
The Original Petition will stand disposed of as
above.
Sd/-
C. JAYACHANDRAN
JUDGE
TR
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APPENDIX OF OP(C) 2871/2023
PETITIONER EXHIBITS
Exhibit P1 A TRUE COPY OF THE DECREE IN O.S NO.
251/2012 DATED 27.03.2013 OF SUB JUDGE,
KANNUR
Exhibit P2 A TRUE COPY OF THE FINAL DECREE
APPLICATION NO. 1435/2018 IN O.S
Exhibit P3 A TRUE COPY OF COMMISSIONER'S PLAN,
REPORT, SHARE LIST AND ACCOUNT DATED
23.02.2023
Exhibit P4 A TRUE COPY OF AFFIDAVIT AND PETITION
DATED 25.3.2023 AS IA NO. 4/2023 IN OS
251/2012 FOR PASSING SUPPLEMENTARY
PRELIMINARY DECREE
Exhibit P5 A TRUE COPY OF AFFIDAVIT WITH PETITION
DATED 04.03.2023 NUMBERED AS IA 1/2023
FOR REMITTING COMMISSIONERS REPORT
Exhibit P6 A TRUE COPY OF COUNTER STATEMENT FILED
BY R1 DATED 16.03.2023
Exhibit P7 A TRUE COPY OF COUNTER STATEMENT FILED
BY R3 DATED 16.03.2023
Exhibit P8 A TRUE COPY OF CHIEF AFFIDAVIT DATED
13.03.2023
Exhibit P9 A TRUE COPY OF ORDER IN IA 1/2023 IN
FDIA 1435/2018 IN O.S NO. 251/2012
DATED 13.11.2023
