Kerala High Court
Lucy John vs Francis Joseph on 30 October, 2024
Author: Sathish Ninan
Bench: Sathish Ninan
2024:KER:82925
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RFA NOS.377 & 379 OF 2017
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE SATHISH NINAN
&
THE HONOURABLE MR.JUSTICE P. V. BALAKRISHNAN
WEDNESDAY, THE 30TH DAY OF OCTOBER 2024 / 8TH KARTHIKA, 1946
RFA NO. 377 OF 2017
AGAINST THE JUDGMENT AND DECREE DATED 30.11.2016 IN OS NO.164
OF 2014 OF PRINCIPAL SUB COURT, NORTH PARAVUR
APPELLANTS / PLAINTIFFS 1 TO 3 IN OS:
1 LUCY JOHN
W/O. JOHN P.L ANU VILLA, PANANGAD,PUNALUR, KOLLAM
DISTRICT
2 JESSY FRANKLIN
W/O. FRANKLIN THOMAS,4/3, ARAVIND NAGAR,KALINA-KURIA
ROAD, SANTA CRUZ,MUMBAI
3 DALY MAMACHAN
W/O. MAMACHAN P.D, LORD KRISHNA APARTMENT, VAPPALASSERY
P.O,NEDUMBASSERY, ERNAKULAM
BY ADV SRI.S.SAJU
RESPONDENTS / DEFENDANTS IN OS:
1 FRANCIS JOSEPH
S/O.LATE P.V JOSEPH,VALLATHUKARAN PADAYATTYY
HOUSE,ANGAMALY P.O,NEAR NAZ AUDITORIUM, PIN 683572
2 RAJU JOSEPH
S/O.LATE P.V JOSEPH,VALLATHUKARAN PADAYATTYY
HOUSE,ANGAMALY P.O,NEAR NAZ AUDITORIUM, PIN 683572
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RFA NOS.377 & 379 OF 2017
*3 BENNY JOSEPH
S/O.LATE P.V JOSEPH,VALLATHUKARAN, PADAYATTY
HOUSE,ANGAMALY P.O, NEAR BASLICA, PIN 683572 (DIED)
4 ANNIE JOSEPH
W/O. LATE P.V JOSEPH,VALLATHUKARAN PADAYATTYY
HOUSE,ANGAMALY P.O, NEAR NAZ AUDITORIUM, PIN 683572
5 LISSY ABRAHAM (PoA RECORDED)
W/O.ABRAHAM,THEKKANATH HOUSE, ANGAMALY KARA, ANGAMALY
VILLAGE,ANGAMALY P.O,PIN 683572
6 JIJO PAUL
S/O. PAUL, AREECKAL HOUSE, HOUSE NO XVI/32,ANGAMALY P.O
683572
7 OUSEPH VARGHESE
S/O./VARKEY, KANDATHILPARAMBIL HOUSE,VEZHAPRA
P.O,RAMANGARI,RAMANGARI VILLAGE,KUTTANAD TALUK, PIN 689
600
RESPONDENT / 4TH PLAINTIFF IN O.S
SHERLY GEORGE,
W/O. GEORGE PAUL, PUTHEN VEETIL KARUMATHY
HOUSE,NEDUVANNOOR, CHOWARA P.O, ALUVA TALUK,ERNAKULAM
DIST. PIN 683571
ADDL.R9 MRS. BEENA BENNY,
W/O. LATE BENNY JOSEPH, PADAYATTY HOUSE
( VALLATHUKARAN) , NEAR BASILICA CHURCH ( WEST SIDE),
ANGAMALY POST , ERNAKULAM DISTRICT, PIN-683572 (PoA
RECORDED)
ADDL.R10 NILDA BENNY,
D/O. LATE BENNY JOSEPH, PADAYATTY HOUSE
( VALLATHUKARAN) , NEAR BASILICA CHURCH ( WEST SIDE),
ANGAMALY POST , ERNAKULAM DISTRICT, PIN-683572
ADDL.R11 NIVIN BENNY,
S/O. LATE BENNY JOSEPH, PADAYATTY HOUSE
( VALLATHUKARAN) , NEAR BASILICA CHURCH ( WEST SIDE),
ANGAMALY POST , ERNAKULAM DISTRICT, PIN-683572
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RFA NOS.377 & 379 OF 2017
ADDL.R12 NIVEA BENNY,
D/O. LATE BENNY JOSEPH, AGED 19 YEARS, PADAYATTY HOUSE
(VALLATHUKARAN), NEAR BASILICA CHURCH ( WEST SIDE),
ANGAMALY POST , ERNAKULAM DISTRICT, PIN-683572
THE LEGAL HEIRS OF DECEASED 3RD RESPONDENT ARE
IMPLEADED AS ADDITIONAL RESPONDENTS 9 TO 12 VIDE ORDER
DATED 27/05/2024 IN IA 1/2024 IN RFA 377/2017.
IT IS RECORDED THAT FIFTH RESPONDENT IS REPRESENTED BY
POWER OF ATTORNEY HOLDER, MATHEW C.J., S/O.JOSEPH,
RESIDING AT 421, CHELATT HOUSE, ALANGAD (P.O),
VARAPUZHA, ERNAKULAM VIDE ORDER DATED 05/09/2024 IN
MEMO DATED 01/09/2022 IN RFA 377/2017.
IT IS RECORDED THAT ADDITIONAL 9TH RESPONDENT IS
REPRESENTED BY POWER OF ATTORNEY HOLDER, ANTONY K.A,
AGED 76 YEARS, S/O AGUSTHY, RESIDING AT KAVALAKKATTU
KOTTAPPURAM HOUSE, CHALAKUDY KARA, CHALAKUDY VILLAGE,
CHALAKUDY TALUK, THRISSUR-690565, KERALA, INDIA VIDE
ORDER DATED 05/09/2024 IN MEMO DATED 06/08/2024 IN RFA
377/2017.
BY ADVS.
K.NARAYANAN (PARUR)
D.B.BINU
T.M.CHANDRAN
DENNY DEVASSY
FIROZ K.ROBIN
JAGAN ABRAHAM M.GEORGE
JEENA JOSEPH
J.JULIAN XAVIER
G.D.PANICKER
REENA ABRAHAM
WILSON URMESE
JOSE. V.V. (THENGATHARA)(K/000039/2003)
ROY JOSEPH(K/55/2006)
ANIES MATHEW(K/952/2007)
NIRMAL KURIEN EAPEN(K/000151/2022)
THASNIEEM BADARUDEEN(K/001352/2022)
THOMAS P.B.(K/000490/2024)
THIS REGULAR FIRST APPEAL HAVING COME UP FOR ADMISSION ON
30.10.2024, ALONG WITH RFA.379/2017, THE COURT ON THE SAME DAY
DELIVERED THE FOLLOWING:
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RFA NOS.377 & 379 OF 2017
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE SATHISH NINAN
&
THE HONOURABLE MR.JUSTICE P. V. BALAKRISHNAN
WEDNESDAY, THE 30TH DAY OF OCTOBER 2024 / 8TH KARTHIKA, 1946
RFA NO. 379 OF 2017
AGAINST THE JUDGMENT AND DECREE DATED 30.11.2016 IN OS NO.164
OF 2014 OF THE PRINCIPAL SUB COURT, NORTH PARAVUR
APPELLANT/PLAINTIFF NO.4:
SHERLY GEORGE, AGED 52,
W/O.GEORGE PAUL, PUTHEN VEETTIL KARUMATHY HOUSE,
NEDUVANNOOR, CHOWWARA P.O., ALUVA TALUK, ERNAKULAM.
BY ADVS.
SRI.T.M.CHANDRAN
SRI.S.SUJITH
RESPONDENTS / DEFENDANTS 1 TO 7 - PLAINTIFF NOS.1 TO 3:
1 FRANCIS JOSEPH
AGED 59 YEARS, S/O. LATE P.V. JOSEPH, VALLATHUKARAN,
PADAYATTY HOUSE, ANGAMALY P.O., NEAR NAZ AUDITORIUM -
683 572.
2 RAJU JOSEPH
AGED 56 YEARS, S/O. LATE P.V. JOSEPH, VALLATHUKARAN,
PADAYATTY HOUSE, ANGAMALY P.O., NEAR NAZ AUDITORIUM -
683 572.
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RFA NOS.377 & 379 OF 2017
3 BENNY JOSEPH
AGED 50 YEARS, S/O. LATE P.V. JOSEPH, VALLATHUKARAN,
PADAYATTY HOUSE, ANGAMALY P.O., NEAR NAZ AUDITORIUM -
683 572. (DIED) LRS IMPLEADED
4 ANNIE JOSEPH
AGED 87 YEARS, W/O. P.V. JOSEPH, VALLATHUKARAN,
PADAYATTY HOUSE, ANGAMALY P.O., NEAR NAZ AUDITORIUM -
683 572. FOURTH RESPONDENT IS RECORDED AS THE THE LEGAL
HEIR OF THE DECEASED THIRD RESPONDENT,VIDE ORDER
DATED28/10/2022 IN I.A.2/2022
5 LISSY ABRAHAM
AGED 54 YEARS, W/O. ABRAHAM THEKKANATH HOUSE, ANGAMALY
P.O., ALUVA - 683 572.
6 JIJO PAUL
AGED 45 YEARS, AREECKAL HOUSE, HOUSE NO. XVI/32,
ANGAMALY P.O. - 683 572
7 OUSEPH VARGHESE
AGED 54 YEARS, S/O. VARKEY, KANDATHILPARAMBIL HOUSE,
VEZHAPRA P.O., RAMANGARI, KUTTANAD TALUK - 689 600.
8 LUCY JOHN
AGED 62 YEARS, W/O. JOHN P.L, ANU VILLA, PANANGAD,
PUNALUR, KOLLAM - 691 305.
9 JESSY FRANKLIN
AGED 62 YEARS, W/O. FRANKLIN THOMAS, 4/3 ARAVIND NAGAR,
KALINA-KURLA ROAD, SANTHA CRUZ, MUMBAI - 400 029.
10 DALY MAMACHAN
AGED 52, W/O. MAMACHAN P.D., LORD KRISHNA APARTMENT,
VAPPALASSERRY P.O.,NEDUMBASSERRY, ERNAKULAM.
11 ADDL.R11.SMT.BEENA BENNY, AGED ABOUT 45 YEARS, W/O.LATE
BENNY JOSEPH, PADAYATTI HOUSE, NEAR BASILICA CHURCH,
ANGAMALY P.O., ERNAKULAM 683572
12 ADDL.R12.NILDA BENNY, AGED ABOUT 23 YEARS, D/O.LATE
BENNY JOSEPH, PADAYATTI HOUSE, NEAR BASILICA CHURCH,
ANGAMALY P.O., ERNAKULAM 683572
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RFA NOS.377 & 379 OF 2017
13 ADDL.R13.NIVIN BENNY, AGED ABOUT 20 YEARS, S/O.LATE
BENNY JOSEPH, PADAYATTI HOUSE, NEAR BASILICA CHURCH,
ANGAMALY P.O., ERNAKULAM 683572
14 ADDL.R14.NIVYA BENNY, AGED 16 YEARS, MINOR REPRESENTED
BY GUARDIAN AND MOTHER SMT BEENA BENNY, AGED ABOUT 45
YEARS, W/O.LATE BENNY JOSEPH, PADAYATTI HOUSE, NEAR
BASILICA CHURCH, ANGAMALY P.O., ERNAKULAM 683572
THE OTHER LEGAL HEIRS OF DECEASED 3RD RESPONDENT ARE
IMPLEADED AS ADDITIONAL RESPONDENTS 11 TO 14 VIDE ORDER
DATED 25/06/2024 IN IA 1/2022 IN RFA 379/2017.
FOURTH RESPONDENT IS RECORDED AS THE LEGAL HEIR OF THE
DECEASED THIRD RESPONDENT, VIDE ORDER DATED 28/10/2022
IN IA 2/2022.
BY ADVS.
SRI.D.B.BINU
SRI.DENNY DEVASSY
SRI.JAGAN ABRAHAM M.GEORGE
SMT.JEENA JOSEPH
SRI.K.NARAYANAN PARUR
SRI.G.D.PANICKER
SRI.M.J.PRINCE
SMT.REENA ABRAHAM
SRI.WILSON URMESE
THIS REGULAR FIRST APPEAL HAVING COME UP FOR ADMISSION ON
30.10.2024, ALONG WITH RFA.377/2017, THE COURT ON THE SAME DAY
DELIVERED THE FOLLOWING:
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RFA NOS.377 & 379 OF 2017
Sathish Ninan,
&
P.V.Balakrishnan, JJ.
---------------------
R.F.A.Nos.377 & 379 of 2017
---------------------------------
Dated this the 30th day of October, 2024
JUDGMENT
Sathish Ninan, J.
These appeals arise from a suit for partition.
2. The suit was defended by defendants 1, 2, 3, and
also by defendants 5 and 7 who are alienees of properties.
The suit was dismissed by the trial court, awarding costs
to the contesting defendants.
3. Pending the appeal the 3 rd defendant expired and
the legal representatives were impleaded as additional
respondents in the appeal.
4. All the parties, except the legal representatives
of the 3rd defendant, have arrived at a settlement. I.A
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RFA NOS.377 & 379 OF 2017
No.4 of 2024 has been filed in both the appeals. The
plaintiffs have agreed to withdraw the appeals and the
suit and the other defendants have agreed to give up the
costs ordered. The legal heirs of the 3 rd defendant, who
are the additional respondents, have not joined in the
settlement. The 3rd defendant had also opposed the claim
for partition. The common contention of the defendants in
the suit was based on a Power of Attorney executed by the
plaintiffs, and the Partition Deed executed on its
strength. Under the Partition Deed the suit properties
were partitioned. The defence was common for the
contesting defendants. The claim for partition having been
given up by the plaintiffs, the rights of the 3 rd defendant
also remains intact.
5. The only issue that survives is with regard to the
decree for costs in favour of the 3 rd defendant.
6. In terms of Rule 32 of the Rules Regarding Fees
Payable to Advocates, when the defence set up by the
defendants is substantially the same, only one Advocate
fee shall be allowed. To order otherwise the Court should
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RFA NOS.377 & 379 OF 2017
record reasons.
7. In the present case, the Court ordered costs to the
contesting defendants, without any direction for payment
of separate Advocate fee. However, when the decree was
drafted, separate Advocate fee was included. As per the
Rule, only one Advocate fee is allowable and it is to be
apportioned among the contesting defendants which in the
present case is five in number. While calculating costs,
the Advocate fee is to be reckoned accordingly. The
mistake in the decree is liable to be corrected.
8. It is ordered that the contesting defendants
together are entitled for only one Advocate fee. While
calculating costs for the 3 rd defendant, only 1/5th of one
Advocate fee shall be reckoned.
In the result, the appeal is disposed of as hereunder:
(i) The claim for partition by the
appellants/plaintiffs will stand withdrawn.
(ii) While calculating the costs for the 3 rd
defendant as ordered by the trial court only 1/5th of
one advocate fee shall be reckoned.
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RFA NOS.377 & 379 OF 2017
(iii) Costs in the appeal is made easy.
Sd/-
Sathish Ninan, Judge
Sd/-
P.V.Balakrishnan, Judge
rsr
