Kerala High Court
Pathumuthubeevi vs Aminal Beevi on 30 January, 2025
RSA No.430 of 2023
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IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE M.A.ABDUL HAKHIM
THURSDAY, THE 30TH DAY OF JANUARY 2025 / 10TH MAGHA, 1946
RSA NO. 430 OF 2023
AGAINST THE JUDGMENT & DECREE DATED 17.12.2022 IN AS NO.22 OF 2022
OF DISTRICT COURT& SESSIONS COURT,PATHANAMTHITTA ARISING OUT OF THE
JUDGMENT&DECREE DATED 15.01.2013 IN OS NO.115 OF 1985 OF MUNSIFF
COURT,PATHANAMTHITTA
APPELLANTS/APPELLANTS/PETITIONERS/ RESPONDENTS 1 TO 3:
1 PATHUMUTHUBEEVI
AGED 66 YEARS
W/O. LATE ALIYAR MEERA SAHIB, THOZHUKALAYIL HOUSE, PETTAH
VETTIPURAM, PATHANAMTHITTA DISTRICT, PIN - 689645
2 MANJU MEERAN
AGED 37 YEARS
D/O. LATE ALIYAR MEERA SAHIB, THOZHUKALAYIL HOUSE, PETTAH
VETTIPURAM, PATHANAMTHITTA DISTRICT, PIN - 689645
3 RANI MEERAN
AGED 66 YEARS
D/O. LATE ALIYAR MEERA SAHIB, THOZHUKALAYIL HOUSE, PETTAH
VETTIPURAM, PATHANAMTHITTA DISTRICT, PIN - 689645
BY ADVS.
S.SREEKUMAR (SR.)
ARUN.B.VARGHESE
AISWARYA V.S.
RSA No.430 of 2023
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RESPONDENTS/RESPONDENTS 1,2,5&6/COUNTER PETITIONERS 1,2,5&6 AND
ADDL.COUNTER PETITIONERS 7 TO 12/PETITIONERS & RESPONDENTS 7&8:
1 AMINAL BEEVI
AGED 70 YEARS
D/O. LATE ALIYAR MOHAMMED, KOIKKALPURAYIDATHILVEEDU,
VALANCHUZHI MURI, KOZHENCHERRY TALUK, PATHANAMTHITTA
DISTRICT, PIN - 689645
2 PATHUMMABEEVI
AGED 67 YEARS
D/O. LATE ALIYAR MOHAMMED KOIKKALPURAYIDATHILVEEDU,
VALANCHUZHI MURI, KOZHENCHERRY TALUK, PATHANAMTHITTA
DISTRICT, PIN - 689645
3 ABDUL LATHEEF
AGED 59 YEARS
S/O. LATE ALIYAR MOHAMMED, KOIKKALPURAYIDATHILVEEDU,
VALANCHUZHI MURI, KOZHENCHERRY TALUK, PATHANAMTHITTA
DISTRICT, PIN - 689645
4 SHAMSUDEEN
AGED 65 YEARS
S/O. ABDUL RAZAK, SHARAF MANZIL, VETIPURAM MURI PETTAH,
PATHANAMTHITTA DISTRICT, PIN - 695024
5 MEHABOOBA BEEGUM
W/O LATE A.SHAHUL HAMEED , AGED NOT KNOWN TO THE PETITIONERS
KOIKKALPURAYIDATHILVEEDU, VALANCHUZHI MURI, KOZHENCHERRY
TALUK, PATHANAMTHITTA DISTRICT, PIN - 689645
6 ALI AHAMED S
S/O LATE A.SHAHUL HAMEED , AGED NOT KNOWN TO THE PETITIONERS
KOIKKALPURAYIDATHILVEEDU, VALANCHUZHI MURI, KOZHENCHERRY
TALUK, PATHANAMTHITTA DISTRICT, PIN - 689645
7 ASEEM. S AHAMED
S/O LATE A.SHAHUL HAMEED , AGED NOT KNOWN TO THE PETITIONERS
KOIKKALPURAYIDATHILVEEDU, VALANCHUZHI MURI, KOZHENCHERRY
TALUK, PATHANAMTHITTA DISTRICT, PIN - 689645
8 HAJIRA BEEVI
AGED 62 YEARS
W/O LATE MUHAMMED HANEEFA KOIKKAL PURAYIDATHIL VEEDU,
VALAMCHUZHI MURI PATHANAMTHITTA VILLAGE, KOZHENCHERRY TALUK,
RSA No.430 of 2023
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PIN - 689645
9 JAFAR,
AGED 42 YEARS
S/O LATE MUHAMMED HANEEFA KOIKKAL PURAYIDATHIL VEEDU,
VALAMCHUZHI MURI PATHANAMTHITTA VILLAGE, KOZHENCHERRY TALUK,
PIN - 689645
10 JASMIN,
AGED 39 YEARS
W/O LATE MUHAMMED HANEEFA KOIKKAL PURAYIDATHIL VEEDU,
VALAMCHUZHI MURI PATHANAMTHITTA VILLAGE, KOZHENCHERRY TALUK,
PIN - 689645
R1 TO R3 & R5 TO R7 BY ADV R RAJASEKHARAN PILLAI
THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON
30.01.2025, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
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JUDGMENT
1. The appellants are the respondents 1 to 3 in I.A.No.241/2011 for
passing Supplementary Preliminary Decree in O.S.No.115/1987
on the files of the Munsiff's Court, Pathanamthitta. They were the
additional plaintiffs 2 to 4 in the suit, who were impleaded as legal
heirs of the Original plaintiff. They challenged the Order dated
15.01.2013, passing Supplementary Preliminary Decree in
I.A.No.241/2011 before the First Appellate Court by filing
A.S.No.22/2022 with I.A.No.1/2022 to condone the delay of 3277
days in filing the appeal. I.A.No.1/2022 was dismissed by the First
Appellate Court. Consequently, A.S.No.22/2022 was also
dismissed. This Regular Second Appeal is filed challenging the
Judgment and Decree in A.S.No.22/2022, taking grounds against
the Order in I.A.No.1/2022 refusing to condone delay.
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2. The short facts necessary for the disposal of this Appeal are:
O.S.No.115/1987 was filed by one Meera Sahib for a declaration
that the cancellation of Ext.A1 Gift Deed as invalid and for partition
of plaint schedule properties in accordance with the said Gift
Deed. During the pendency of the suit, the original plaintiff died,
and the additional plaintiffs, 2 to 4, who are his wife and two
daughters, were impleaded as per order dated 06.04.1990 in
I.A.No.1338/1989. The plaint schedule properties originally
belonged to the first defendant, who was the father of the original
plaintiff and defendants 2 to 7 and the husband of the 2nd
defendant. The first defendant executed Ext.A1 Gift Deed dated
22.06.1964 in favour of the 2nd defendant wife and their children -
the original plaintiff and defendants 3 to 6. The 7th defendant was
born subsequent to the execution of Ext.A1, and hence, he was
not given anything. Only the original plaintiff and defendants 2 to
6 have the right over the plaint schedule properties as per Ext.A1.
The first defendant executed a Deed of Cancellation of Ext.A1 Gift
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Deed and thereafter assigned the property in favour of the 8th
defendant. The original plaintiff filed the suit for a declaration that
the Deed canceling Ext.A1 and subsequent assignment deeds are
void and for partition of the plaint schedule properties among the
original plaintiff and the defendants 2 to 6 as per Ext.A1 Gift Deed
on the ground that Ext.A1 Gift Deed was accepted and acted upon
and the first defendant has no right to cancel the Gift Deed or
execute the Assignment Deed in favour of the 8th defendant. The
Trial Court passed a Preliminary Decree finding Ext.A1 Gift deed
is subsisting and allowing partition of the plaint schedule
properties into six equal shares and allotting 1/6th share to the
plaintiffs. The Trial Court also found that the plaintiffs are entitled
to get allotment of the house in item No.1 property as far as
possible. Though the Preliminary Decree was challenged before
the First Appellate Court by filing A.S.No.16/1991, the said Appeal
was dismissed. S.A.No.351/1994 filed before this Court was
allowed in part as per judgment dated 19.09.2007, confirming the
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Preliminary Decree for partition, but setting aside the reservation
with respect to the residential building in item No.1, leaving open
the question of reservation to be decided in the Final Decree. The
additional plaintiffs filed I.A.No.161/2008 for passing the Final
Decree. The additional plaintiffs filed I.A.No.2860/2010 to pass
Supplementary Preliminary Decree for variation of shares on
account of the death of the second defendant - mother.
Defendants 4 and 6 filed I.A.No.241/2011 for passing a
Supplementary Preliminary decree for variation of the shares on
account of the death of the original plaintiff. As per the common
order dated 15.01.2013, the Trial Court dismissed
I.A.No.2860/2010 and allowed I.A.No.241/2011.
I.A.No.2860/2010 was dismissed, holding that the daughters of
the pre-deceased son are not entitled to get any share when the
deceased person is survived by sons or daughters.
I.A.No.241/2011 was allowed passing a Supplementary
Preliminary decree allotting 19/27 shares to the plaintiffs 2 to 4
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jointly and 4/27 share each to the first and second defendants out
of the 1/6 share allotted to the plaintiffs. The additional plaintiffs
filed A.S.No.22/2022 before the First Appellate Court in which the
impugned Judgment and Order refusing to condone delay were
passed.
3. On the question of admission of this Appeal, I heard the learned
Senior Counsel for the appellants, Sri.S. Sreekumar, instructed by
Advocate Sri.Arun.B. Varghese and the learned counsel for the
respondents 1 to 3 and 5 to 7, Sri. R. Rajasekhara Pillai.
4. The learned Senior counsel for the appellants contended that
though the delay for filing an Appeal before the First Appellate
Court is 3277 days, the same was sufficiently explained by the
appellants in the Application. The appellants and their advocate
were under the misconception that, as per the impugned
Supplementary Preliminary Decree, the appellants were given
19/27 shares. They did not understand that the appellants are
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allowed only 19/27 shares out of 1/6 share allotted to the original
plaintiff. The additional plaintiffs were advised by their advocate
that there was no need to file an appeal, and hence, an appeal
was not filed. The actual share allotted to the additional plaintiffs
was understood only on filing the Commission Report by the
advocate Commissioner in the year 2022. In support of the
Application, the Affidavit of the counsel for the additional plaintiffs
before The Trial Court was also filed, explaining the above
circumstances under which the appeal was not filed within time.
The learned Senior Counsel cited the decisions of the Hon'ble
Supreme Court in Collector, Land Acquisition, Anantnag and
another v. Mst. Katiji and others 1987(2) SCC 107 in which it is
held that refusal to condone delay can result in a meritorious
matter being thrown out at the very threshold and cause of justice
being defeated; that as against this when the delay is condoned
the highest that can happen is that a cause would be decided on
merits after hearing the parties; that when substantial justice and
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technical considerations are pitted against each other, cause of
substantial justice deserves to be preferred for the other side
cannot claim to have vested right in injustice being done because
of a nondeliberate delay. The learned Senior Counsel contended
that in the present case if the delay is not condoned, it would
defeat the substantial justice in the matter as the appellants are
fully entitled to succeed in the first appeal. The learned counsel
cited the decision of the Hon'ble Supreme Court in N.
Balakrishnan v. M.Krishnamoorthi. 1998 (7) SCC 123, in which
it is held that in every case of delay, there can be a lapse on the
part of the litigant concerned, but that alone is not enough to turn
down his plea to shut the door against him and that if the
explanation does not smack of malafide or it is not put forth as a
part of a dilatory strategy, the court must show utmost
consideration to the suitor. The circumstances clearly reveal that
there are no malafides on the part of the appellants, and the
appellants filed the appeal out of time, not as a dilatory strategy.
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The learned Counsel cited the decision of the Hon'ble Supreme
Court in State (NCT of Delhi) v. Ahamed Jan 2008(14)SCC 582
to elaborate the concept of 'sufficient cause' under S.5 of the
Limitation Act. The learned Counsel pointed out the dictum therein
that the default in delay was condoned when the litigant was
misled and thereby delayed the pursuit of his remedy on account
of the negligence of the counsel. It is held that a mistake
committed by the counsel bonafide and not tainted with malafide
motive is a relevant consideration to condone delay. It is further
contended that substantial injustice would be there against the
appellants if the order passed by the Trial Court passing
Supplementary Preliminary Decree is allowed to stand as there
would be a substantial reduction in the share of the appellants
granted by the Preliminary Decree, which was confirmed by the
First Appellate Court and this Court. The Final Decree Court has
no jurisdiction to review or modify the Preliminary Decree, which
is confirmed by the First Appellate Court and this Court. I. A No.
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241/2011 was filed for passing a Supplementary Preliminary
Decree citing the variation in the shares on account of the death
of the original plaintiff. The original plaintiff died during the
pendency of the suit, and in such a situation, it is an event that
occurred during the pendency of the suit, and hence, the
defendants ought to have prayed for allotment of the due shares,
if any, in the Trial stage. It is not legally permissible to pass a
Supplementary Preliminary Decree with reference to an event that
took place during the pendency of the suit after passing the
Preliminary Decree. At any rate, the defendants could have
pointed out the alleged variation required in the shares before this
Court when the second appeal was pending and sought for
modification of the shares in the Preliminary Decree. The learned
Senior Counsel cited the decision of this Court in Rachel v.
George 1984 KHC 100 to substantiate the point that review of a
Preliminary Decree is not possible after the Preliminary Decree
became final and conclusive consequent to the dismissal of the
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Appeal against the Preliminary Decree. The Learned Senior
Counsel concluded that there are substantial questions of law
qualifying admission of the Second Appeal.
5. On the other hand, the learned Counsel for the contesting
respondents contended that the reasons stated by the appellants
for condoning the delay before the First Appellate Court are flimsy
and unsustainable. The Applicants/appellants have not made out
sufficient cause to condone the inordinate delay of 3277 days in
filing the appeal. There is no ambiguity in the impugned Order
passing Supplementary Preliminary Decree by the Trial Court,
which gives room for any misconception. It is specifically stated in
the said impugned order that the appellants are given 19/27 jointly
out of 1/6 share allotted to the original plaintiff. The learned
Counsel invited my attention to the specific pleadings in I. A No.
241/2011 in which the basis for variation of the shares on account
of the death of the original plaintiff is specifically stated. The
appellants and their counsel understood the pleadings from the
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Application and understood the nature and effect of the
Supplementary Preliminary Decree from the impugned order
passed by the Trial Court during the relevant time itself and the
allegations that there was misconception with respect to the share
allotted to the appellants is incorrect. Inviting my attention to the
substantial questions of law and grounds raised in the
Memorandum of Appeal, the learned Counsel further contended
that no substantial questions of law arise in the matter requiring
admission of the appeal.
6. I have considered the rival submissions.
7. With respect to the decisions cited by the learned Senior Counsel
for the appellants, I am of the view that the reasons for the
condonation of delay may be identical, but every case has its own
unique facts and circumstances. There are several precedents of
laying down general guidelines in the matter of condonation of
delay. It is well settled by the decisions of this Court as well as the
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Hon'ble Supreme Court that there is absolute discretion to the
Court while considering an application to condone delay, taking
into account the facts and circumstances of each case. There
could not be any straight jacket formula for general application.
The discretion has to be exercised liberally to advance substantial
justice by allowing the lis to be considered on merits and the
Courts should not stick on to the rigid rule of law in the matter of
condonation of delay which is not inordinate, deliberate and
actuated with malafides. The Courts shall not allow substantial
justice to be defeated on account of delay. The Courts shall adopt
a justice oriented approach while considering the question of
condonation of delay. The Courts shall adopt a liberal approach in
the case of normal delay and a strict approach in the case of
inordinate delay. What is normal delay and what is inordinate
delay is a matter to be considered depending on the facts and
circumstances of each case. It is not the length of delay alone that
is relevant to consider whether the delay is inordinate or not. The
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question is whether the party has satisfied the court that he had
sufficient cause for the delay in the facts and circumstances of the
case. The well accepted maxim is that " Vigilantibus Non
dormientibus jura subveniunt" which means that law comes to the
help of only those who are vigilant in prosecuting the rights and
not to the help of those who sleep over their rights. If the law goes
to help those who sleep over their rights, the law will be forgetting
and ignoring the valuable rights of the parties on the other side of
the litigation who have been vigilantly prosecuting their rights,
spending their valuable time, energy, money, and even life, for the
litigation suffering mental tension and sleepless nights. The
purpose of the law of limitation is to attain finality of the litigation.
If undue lenience and misplaced sympathy are shown in favour of
persons who have been sleeping over their rights, it is against the
principle underlying the law of limitation.
8. Let me examine whether the appellants have satisfied the First
Appellate Court that they had sufficient cause to condone the
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delay. In the case on hand, the delay is exorbitant as it takes 3277
days to file the appeal before the First Appellate Court. There
should be strong and compelling reasons to condone such an
exorbitant delay. Otherwise, substantial prejudice and injury would
be caused to the other side, which has prosecuted the
proceedings on the basis of the impugned orders, spending a
huge amount of time, money, and energy. It is to be remembered
that the suit is of the year 1987. The reason stated by the applicants
is that there was a misconception on the part of their counsel about
their shares in the Supplementary Preliminary decree passed by
the Trial Court. It is stated that the counsel was under a bonafide
mistaken impression that the share allotted to the additional
plaintiffs is 19/27 shares, but in fact it was 19/27 out of 1/6 share.
The impugned order of the Trial Court was passed on 15.01.2013.
Thereafter, several Commissions were taken in the final decree
proceedings. One of the Commission Report was set aside on
23.09.2017. The contention is that only when the Advocate
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Commissioner filed Report on 15.07.2022 and when it came up for
consideration on 11.03.2022, the Counsel came to know that a
reduced share is given to the Applicants. It is very much difficult to
believe that when properties are partitioned in the commission
reports in the final decree proceedings in accordance with the
Preliminary Decree and the Supplementary Preliminary Decree,
the additional plaintiffs and their counsel were under a mistaken
impression that the share allotted to the additional plaintiffs is
19/27 shares out of 1/6 share. The filing of an Affidavit by the
Counsel for the appellant in the Trial Court, along with the
application to condone the delay, will not improve the case. On a
plain reading of the decretal portion in the Supplementary
Preliminary Decree, it is crystal clear that plaintiffs 2 to 4 are
allotted 19/27 shares out of 1/6 shares allotted to the original
plaintiff. It does not admit any other meaning or interpretation. As
rightly pointed out by the learned Counsel for the contesting
respondents, the basis for arriving at such shares is specifically
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stated in I. A No. 241/2012. The appellants who are the
respondents in the said I. A did not file any Objection.
9. In the recent decision Nitin Mahadeo Jawale v. Bhaskar
Mahadeo Mutke [2024 KHC OnLine 6660], the Hon'ble Supreme
Court has deprecated the growing tendency of the part of the
litigants in throwing the entire blame on the head of the advocate,
the Hon'ble Supreme Court has made a categorical finding that
'even if we assume for a moment that the concerned lawyer was
careless or negligent, this, by itself, cannot be a ground to
condone long and inordinate delay as the litigant owes a duty to
be vigilant of his own rights and is expected to be equally vigilant
about the judicial proceedings pending in the court initiated at his
instance. The litigant, therefore, should not be permitted to throw
the entire blame on the head of the advocate and thereby disown
him at any time and seek relief'. In view of the above dictum of the
Hon'ble Supreme Court, the appellants shall not be permitted to
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put the blame on the counsel who appeared for them in the Trial
Court.
10. The learned Senior Counsel advanced arguments under the
misconception that the shares of the appellants are reduced by
the impugned Supplementary Final Decree. In fact, the further
division of the share of the original plaintiff was not considered in
the Preliminary Decree. It could not be said that on account of the
impleadment of the additional plaintiffs 2 to 4 as legal heirs of the
deceased original plaintiff, they alone are the legal heirs of the
deceased original plaintiff entitled to the entire share of the original
plaintiff. The other legal heirs of the deceased original plaintiff are
already on the party array as defendants 1 and 2, who are his and
his mother. The further division of the share of the original plaintiff
was made for the first time in the impugned Supplementary
Preliminary Decree.
11. It could be seen that a share lower than the 1/6 share of the
original plaintiff was allotted to the additional plaintiffs since, as per
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Mohammedan Law, the father and mother of the original Plaintiff
are entitled to get 1/6 shares each out of the estate of the
deceased original plaintiff. Consequently, 4/27 shares each were
allotted to defendants 1 and 2, and the remaining 19/27 shares
were allotted to plaintiffs 2 to 4 jointly. So the Trial Court correctly
arrived at the shares in the Supplementary Preliminary Decree in
accordance with Mohammedan Law while making further division
of the share of the original plaintiff.
12. The further contention of the learned Senior Counsel is that the
Trial Court has no jurisdiction to pass a Supplementary
Preliminary Decree on account of the death of the original plaintiff,
which occurred before the passing of the Preliminary Decree. The
said contention could not be entertained for the reason that the
additional plaintiffs did not file any objection to I. A No. 241/2011.
No contention was raised before the Trial Court in this regard.
Hence, the contention of the Senior Counsel for the appellants that
substantial injustice would be worked out to the appellants if the
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impugned order passed by the Trial court is allowed to stand is
unsustainable.
13. The suit is of the year 1987. Even now, the final decree is not
passed. The finding of the First Appellate Court that there is no
sufficient reason to condone delay is perfectly justified and is
found to be fully sustainable. No substantial question of law arises
in this appeal requiring admission. Accordingly this Regular
Second Appeal is dismissed in limine.
Sd/-
M.A.ABDUL HAKHIM
JUDGE
jma
