Kerala High Court
Syamala P.V vs Lekshmi Mohan Alias Lakshmi Sanu on 13 June, 2024
Author: Kauser Edappagath
Bench: Kauser Edappagath
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE DR. JUSTICE KAUSER EDAPPAGATH
THURSDAY, THE 13TH DAY OF JUNE 2024 / 23RD JYAISHTA, 1946
OP(C) NO. 473 OF 2021
AGAINST THE ORDER DATED 16.11.2020 IN I.A. NO.399/2019 IN
OS NO.2 OF 2019 OF ASSISTANT SESSIONS COURT/SUB COURT /
COMMERCIAL COURT, CHENGANNUR
PETITIONER/PLAINTIFF:
SYAMALA P.V,
AGED 66 YEARS
M/O LATE SANU U, SYAMALALAYALAM, PENNUKKARA
NORTH, PERINGALA P O, MULAKUZHA, CHENGANNUR,
ALAPPUZHA DISTRICT, KERALA, PIN-689505.
BY ADVS.
V.G.ARUN (K/795/2004)
SRI.N.RAPHY RAJ
SMT.V.JAYA RAGI
SRI.R.HARIKRISHNAN (KAMBISSERIL)
SRI.NEERAJ NARAYAN
RESPONDENT/DEFENDANTS:
LEKSHMI MOHAN ALIAS LAKSHMI SANU,
SUDHABHAVAN, CHIRAKKADAVAM, KAYAMKULAM,
ALAPPPUZHA, PIN-690525.
BY ADVS.
SHRI.V.PREMCHAND
SMT.SURYA MOHAN P.
THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON
13.06.2024, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
2
OP(C) No.473 of 2021
Dated this the 13th day of June, 2024
JUDGMENT
Ext.P10 order passed by the Sub Court, Chengannur
(for short 'the trial court') is under challenge in this Original
Petition.
2. The petitioner is the plaintiff and the respondent is
the first defendant in O. S. No.2/2019 before the trial court.
The petitioner filed the above suit against the respondent for
partitioning the money. The petitioner is the mother in law
of the respondent. The son of the petitioner, who is the
husband of the respondent expired. The money sought to
be partitioned belonged to the deceased son of the
petitioner, which were deposited as fixed deposits in various
banks. Along with the suit, the petitioner preferred an
application for interim injunction to restrain the respondent
from withdrawing the fixed deposits. An interim injunction
was granted. Thereafter, the respondent filed an application
to withdraw half of the fixed deposit amount. The trial court
allowed that application. The order allowing the application
passed by the trial court was challenged before this court.
This Court confirmed the order but directed the respondent
to furnish security for the half of the amount. Accordingly,
the respondent furnished security. The security furnished
was the property having an extent of 12.15 Ares allegedly
belongs to the mother of the respondent. The mother of the
respondent also stood as surety in terms of Section 145 of
the Code of Civil Procedure. Though the petitioner objected
the acceptance of the said security, the trial court as per
Ext.P10 order accepted the security. It is challenging the
said order, this Original Petition has been filed.
3. I have heard Sri. N. Raphy Raj, the learned counsel
for the petitioner and Sri. V. Premchand, the learned counsel
for respondent.
4. The only point to be considered is whether the
security furnished by the respondent is sufficient or not. The
property furnished, as already stated, is 12.15 Ares of land
belonging to the mother of the respondent. According to
the respondent, the said property originally belonged to her
grandfather Ramakrishna Panicker and on his death, it
devolved upon her mother. The respondent's mother filed
Ext.P8 affidavit. Based on the affidavit filed by the
respondent's mother, security was accepted. The learned
counsel for the petitioner submitted that there is no
satisfactory evidence to show the exclusive title and
possession of the mother of the respondent over the
property. The counsel also submitted that no material has
been furnished to show that the property is free from
encumbrance. It is also contended that no document has
been produced to show the market value of the property.
5. The learned counsel for the respondent submitted
that, as directed by this Court, copy of the title deed of the
property which stood in the name of Ramakrishna Panicker
as well as the certificate issued by the Village Officer to
show that the mother of the respondent is the only legal heir
of Ramakrishna Panicker were produced before this Court.
The counsel further submitted that tax receipt stands in the
name of the mother of the respondent has also been
produced before the trial court.
6. Having heard both sides and perusing the documents
produced before this Court, this Original Petition is disposed
of as follows:
i. Ext.P10 is set aside.
ii. The respondent shall produce sufficient documents
afresh before the trial court to prove the exclusive
title and possession of the respondent over the
property offered as security.
iii. The respondent shall further produce the
encumbrance certificate to show that the property is
free from encumbrance.
iv. The respondent shall also produce the valuation
certificate from the concerned authority to show the
market value of the property.
v. The respondent shall file declaration in Form 3 (7) d
of Civil Rules of Practice.
vi. If the trial court is convinced that the property
belongs to the mother of the respondent and it is
sufficient, it shall be accepted as security.
Otherwise, the trial court shall give an opportunity to
the respondent to furnish some other sufficient
security.
Sd/-
DR. KAUSER EDAPPAGATH
JUDGE
BR
APPENDIX OF OP(C) 473/2021
PETITIONER'S EXHIBITS
EXHIBIT P1 THE TRUE COPY OF THE PLAINT IN OS NO.2
OF 2019, ON THE FILES OF SUB COURT
CHENGANNUR.
EXHIBIT P2 THE TRUE COPY OF THE WRITTEN STATEMENT
FILED BY THE 1ST RESPONDENT.
EXHIBIT P3 THE TRUE COPY OF THE LEAVE PETITION
ALONG WITH INTERROGATORIES FILED IN OS
NO.2 OF 2019, ON THE FILES OF SUB COURT
CHENGANNUR,
EXHIBIT P4 THE TRUE COPY OF THE ANSWER GIVEN BY THE
RESPONDENT IN THE FORM OF AFFIDAVIT.
EXHIBIT P5 THE TRUE COPY OF THE APPLICATION FILED
BEFORE THE COURT BELOW DIRECTING THE
RESPONDENT TO ANSWER THE INTERROGATORIES
PROPERLY.
EXHIBIT P6 THE TRUE COPY OF THE ORDER DATED
29/10/2019 OF THIS HON'BLE HIGH COURT OF
KERALA IN FAO NO.142 OF 2019.
EXHIBIT P7 THE TRUE COPY OF INTERLOCUTORY
APPLICATION NO.399 OF 2019 ACCEPT THE
PROPERTY OF 1ST RESPONDENTS MOTHER AS
3RD PARTY SECURITY AND ALLOW HER TO
WITHDRAW THE HALF OF THE AMOUNT
DEPOSITED IN BANK AND FINANCIAL
INSTITUTION.
EXHIBIT P8 THE TRUE COPY OF THE AFFIDAVIT DATED
9/12/2019, FILED BY THE MOTHER OF THE
PETITIONER.
EXHIBIT P9 THE TRUE COPY OF THE COUNTER AFFIDAVIT
FILED BY THE PETITIONER.
EXHIBIT P10 THE TRUE COPY OF THE ORDER DATED
16.11.2020 IN IA NO.399 OF 2019 IN OS
NO.2 OF 2019 ON THE FILES OF THE COURT
OF THE SUB JUDGE, CHENGANNUR.
RESPONDENT'S EXHIBITS
Exhibit R3 A TRUE COPY OF THE SALE DEED DATED 18-6-
