Kerala High Court
E R Paulson vs E.R. John Bosco on 20 June, 2025
Author: Sathish Ninan
Bench: Sathish Ninan
2025:KER:43984
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE SATHISH NINAN
&
THE HONOURABLE MR.JUSTICE P. KRISHNA KUMAR
FRIDAY, THE 20TH DAY OF JUNE 2025 / 30TH JYAISHTA, 1947
RFA NO. 36 OF 2025
AGAINST THE JUDGMENT DATED 21.12.2023 IN OS NO.105 OF 2019
OF I ADDITIONAL SUB COURT, ERNAKULAM
APPELLANT/PLAINTIFF:
E R PAULSON
AGED 56 YEARS, S/O LATE RAPHEL A.C, ETTURUTHIL
HOUSE,PULLEPADY ROAD, ERNAKULAM, PIN - 682024
BY ADVS.
SHRI.ROJO JOSEPH
SRI.A.SAIN PAUL
SHRI.P.C.THOMAS
SHRI.P.R.SHIBU
SHRI.P.T.JUDY
SHRI.ASWIN P.S.
RESPONDENTS/DEFENDANTS:
1 E.R. JOHN BOSCO
AGED 71 YEARS, S/O.RAPHEL, 64/320, ETTURUTHIL
HOUSE, PULLEPADY ROAD, ERNAKULAM, KOCHI - 682018
2 MARY GETRUDE
AGED 66 YEARS, W/O.GETRUDE, 43/10772, PARAVARA
HOUSE, PANORAMA NAGAR, KOCHI, PIN - 682020
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R.F.A.No.36 of 2025
-: 2 :-
3 E.R. PHILIP
AGED 64 YEARS
S/O.RAPHEL, 17/332, ETTURUTHIL HOUSE,
VAZHAKKALA, ERNAKULAM, KOCHI, PIN - 682030
4 TESSY MATHEW
AGED 62 YEARS
W/O.MATHEW, 27/1964, KUTHUNAPILLI HOUSE,
KADAVANTHRA, KOCHI, PIN - 682020
5 E.R. CLEETUS
AGED 60 YEARS
S/O.RAPHEL, 64/372, ETTURUTHII HOUSE, ST.
FRANCIS CHURCH ROAD, ERNAKULAM, KOCHI, PIN -
682017
6 E.R. TONNY
AGED 53 YEARS
S/O. RAPHEL, 63/3855, ETTURUTHIL HOUSE,
PULLEPADY ROAD, ERNAKULAM, KOCHI, PIN - 682018
BY ADV SMT.NAVIA SEBASTIAN
THIS REGULAR FIRST APPEAL HAVING COME UP FOR HEARING ON
20.06.2025, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
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SATHISH NINAN & P. KRISHNA KUMAR, JJ.
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R.F.A.No.36 of 2025
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Dated this the 20th day of June, 2025
JUDGMENT
Sathish Ninan, J.
This appeal is by the plaintiff in a suit for
partition. The claim in respect of one item of the plaint
schedule was dismissed by the trial court against which he
is in appeal.
2. The plaintiff, defendants and Augustine E.R. @
Edison are the children of late A.C. Raphel and late
Philomina T.J. @ Plamena. The plaint A schedule property
belonged to Edison and the plaint B schedule property
belonged to Philomina. With regard to the plaint B schedule
property, the trial court granted a decree. In this appeal,
we are concerned only about the plaint A schedule property.
3. The plaintiff alleges that their brother Edison
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left the house in the year 1985 and is unheard of since
then. It is the case that Edison must be presumed to have
been dead and the plaint A schedule property, which belonged
to him, is to be partitioned between the plaintiff and the
defendants.
4. The defendants supported the claim of the
plaintiff.
5. The trial court held that it has not been proved
that Edison is unheard of since the year 1985. It was also
held that no documents evidencing the title of Edison over
the plaint A schedule property were produced. Accordingly,
the suit was dismissed.
6. We have heard the learned counsel on either side.
7. To prove the title of Edison, who was also known
as E.R. Augustine, the appellant-plaintiff has produced
before this Court the original Sale Deed No.3379/1984 dated
26.10.1984. We find that the document produced is just and
necessary for a proper disposal of the case. Hence, it is
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admitted in evidence. The document will stand marked as
Exhibit-A6.
8. That Augustine E.R. @ Edison is unheard of since
the year 1985, is not in dispute between the parties.
Exts.A2 and A3 produced before the trial court are the
advertisements given in Mathrubhumi and Deshabhimani dailies
in July and August, 1985 respectively that Augustine E.R. @
Edison is missing since 09.07.1985. In the circumstances as
above, we are of the opinion that presumption could be drawn
under Section 108 of the Indian Evidence Act that Augustine
E.R. @ Edison is not alive.
9. There being no lineal descendants, and the parents
being not alive, in terms of Section 47 of Indian Succession
Act, the siblings - plaintiff and the defendants, are the
sole legal heirs of Augustine E.R. @ Edison. The plaint A
schedule property, which belonged to Edison, is liable to be
partitioned among them, each being entitled 1/7 shares.
10. In the result, the appeal is allowed. The decree
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and judgment of the trial court, insofar as it declined the
relief for partition of the plaint A schedule property is
set aside. It is declared that the plaint A schedule
property is partible into seven equal shares in the manner
as decreed with respect to the plaint B schedule, the
plaintiff and the defendants being each entitled to 1/7
shares.
11. The trial court to proceed with the final decree
in the light of the judgment of the Apex Court in Kattukandi
Edathil Krishnan and Ors v. Kattukandi Edathil Valsan and Ors [2022 (3) KLT
924(SC)].
Parties to appear before the trial court on 04.07.2025.
Sd/-
SATHISH NINAN
JUDGE
Sd/-
P. KRISHNA KUMAR
JUDGE
yd
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PETITIONER ANNEXURES
Annexure-R1 ORIGINAL OF THE REPLY DATED 23/11/2023,
ISSUED BY THE STATION HOUSE OFFICER OF
KASBA POLICE STATION, ERNAKULAM NORTH.
Annexure A1 ORIGINAL TITLE DEED BEARING NO. 3379/84
DATED 26/10/1984 OF ERNAKULAM SRO
(PLAINT A SCHEDULE PROPERTY), BELONGING
TO MISSING BROTHER.
Annexure A2 ORIGINAL RELATIONSHIP CERTIFICATE DATED
27/03/2012 ISSUED BY THE VILLAGE
OFFICER, ERNAKULAM, CONCERNING THE DEATH
OF FATHER.
Annexure A3 ORIGINAL DEATH CERTIFICATE DATED
26/07/2006 OF FATHER ISSUED BY THE
ISSUING AUTHORITY, MUNICIPAL CORPORATION
OF COCHIN
Annexure A4 ORIGINAL DEATH CERTIFICATE DATED
16/01/2014 OF MOTHER, ISSUED BY THE
ISSUING AUTHORITY, MUNICIPAL CORPORATION
OF COCHIN.
RESPONDNETS' ANNEXURE
Annexure-R1 ORIGINAL OF THE REPLY DATED 23/11/2023,
ISSUED BY THE STATION HOUSE OFFICER OF
KASBA POLICE STATION, ERNAKULAM NORTH.
