Kerala High Court
Vidya Vijayan vs R C Kumar(Dead) on 24 February, 2014
Author: P.Bhavadasan
Bench: P.Bhavadasan
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE P.BHAVADASAN
MONDAY, THE 24TH DAY OF FEBRUARY 2014/5TH PHALGUNA, 1935
RP.No. 913 of 2013 ()
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SA 67/1997 of HIGH COURT OF KERALA
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REVIEW PETITIONERS IN R.P. - L.RS ADDL.R11 IN SA:
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1. VIDYA VIJAYAN, W/O.LATE VIJAYAN,
RESIDING AT KALIYOOR, MADAKKA
KALIYOOR, MANJESHWAR, KASARAGOD
PIN 671 323.
2. SUSHIL KUMAR, S/O.LATE VIJAYAN,
RESIDING AT KALIYOOR, MADAKKA,
KALIYOOR, MANJESHWAR, KASARAGOD
PIN 671 323.
3. SUSHAMA
D/O.LATE VIJAYAN AND W/O.SUNDER
RESIDING AT PADMAVATHI NILAYA
NEAR G.H.S.S KUNJATHUR, THOMMINAD, KUNJATHUR POST
MANJESHWAR, KASARAGOD 671 323.
BY ADVS.SRI.P.B.KRISHNAN
SMT.GEETHA P.MENON
SRI.N.AJITH
SRI.P.M.NEELAKANDAN
SRI.P.B.SUBRAMANYAN
RESPONDENTS IN RP- APPELLANTS & RESPONDENTS IN SA:
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1. R C KUMAR(DEAD)
S/O.POOVAMMA, SOMESHWAR VILLAGE, MANGALORE TALUK,
P.O KOTEKKAR, DAKSHINA KANNADA, KARNATAKA STATE.
2. SAKAMMA @ SHAKUNTHALA, AGED 84 YEARS,
D/O.POOVAMMA, RESIDING AT BANGRAMANJESHWAR VILLAGE,
KASARAGOD TALUK, P.O MANJESHWAR, PIN 671 323.
3. AMMANI, D/O.POOVAMMA, AGED 89 YEARS,
RESIDING AT BANGRAMANJESHWAR VILLAGE
KASARAGOD TALUK, P.O MANJESHWAR, PIN 671 323.
RP.No. 913 of 2013 ()
4. M.K.PREMAKUMARI, AGED ABOUT 45 YEARS,
D/O.AMMANI, RESIDING AT BANGRAMANJESHWAR VILLAGE,
KASARAGOD TALUK, P.O MANJESHWAR, PIN 671 323.
5. M.JAYALAKSHMI, AGED 66 YEARS,
D/O.AMMANI, SOMESHWAR VILLAGE, MANGALORE TALUK,
P.O KOTEKKAR, DAKSHINA KANNADA, KARNATAKA STATE.
6. RAVIKUMAR, AGED ABOUT 42 YEARS,
S/O.AMMANI, SOMESHWAR VILLAGE, MANGALORE TALUK
P.O KOTEKKAR, DAKSHINA KANNADA, KARNATAKA STATE.
7. P.RATHNA,
D/O.AMMANI, SOMESHWAR VILLAGE, MANGALORE TALUK,
P.O KOTEKKAR, DAKSHINA KANNADA, KARNATAKA STATE.(DEAD)
8. RAMESHA, AGED 35 YEARS, MAJOR
S/O.P.RATHNA, SOMESHWAR VILLAGE, MANGALORE TALUK,
P.O KOTEKKAR, DAKSHINA KANNADA, KARNATAKA STATE.
9. B.SURYA,
D/O.AMMANI, SOMESHWAR VILLAGE, MANGALORE TALUK,
P.O KOTEKKAR, DAKSHINA KANNADA, KARNATAKA STATE.(DEAD)
10. REVATHY
D/O.B.SURYA, MINOR, SOMESHWAR VILLAGE,
MANGALORE TALUK, P.O KOTEKKAR, DAKSHINA KANNADA,
KARNATAKA STATE.(DEAD).
11. PRABHU, AGED 37 YEARS,
S/O.B.SURYA, SOMESHWAR VILLAGE, MANGALORE TALUK,
P.O KOTEKKAR, DAKSHINA KANNADA, KARNATAKA STATE.
12. RAMESH, AGED ABOUT 30 YEARS,
S/O.B.SURYA, SOMESHWAR VILLAGE, MANGALORE TALUK
P.O KOTEKKAR, DAKSHINA KANNADA, KARNATAKA STATE.
13. P.MOHANA, AGEDABOUT 56 YEARS,
D/O.AMMANI, RESIDING AT BANGRAMANJESHWAR VILLAGE,
KASARAGOD TALUK, P.O MANJESHWAR, PIN 671 323.
14. RAJALAKSHMI, AGED ABOUT 37 YEARS,
D/O.P.MOHANA, RESIDING AT BANGRAMANJESHWAR VILLAGE
KASARAGOD TALUK, P.O MANJESHWAR, PIN 671 323.
15. LOKESH, AGED ABOUT
S/O.P.MOHANA, RESIDING AT BANGRAMANJESHWAR VILLAGE
KASARAGOD TALUK, P.O MANJESHWAR, PIN 671 323.
16. M.K.PARAMASHIVAN
S/O.AMMANI, RESIDING AT BANGRAMANJESHWAR VILLAGE
KASARAGOD TALUK, P.O MANJESHWAR, PIN 671 323.
RP.No. 913 of 2013 ()
17. B.M.DEVI, AGE ABOUT 81 YEARS,
D/O.POOVAMMA, RESIDING AT BANGRAMANJESHWAR VILLAGE
KASARAGOD TALUK, P.O MANJESHWAR, PIN 671 323.
18. B.M.SURESH, AGED ABOUT 47 YEARS,
S/O.B.M.DEVI, RESIDING AT BANGRAMANJESHWAR VILLAGE,
KASARAGOD TALUK, P.O MANJESHWAR PIN 671 323.
REPRESENTED BY POWER OF ATTORNEY HOLDER NO.17.
19. JYOTHI, AGED 44 YEARS,
D/O.B.M.DEVI, RESIDING AT BANGRAMANJESHWAR VILLAGE,
KASARAGOD TALUK, P.O MANJESHWAR, PIN 671 323.
20. PRABHAVATHI, AGED ABOUT 42 YEARS,
D/O.B.M.DEVI, RESIDING AT BANGRAMANJESHWAR VILLAGE
KASARAGOD TALUK, P.O. MANJESHWAR, PIN 671 323.
21. GANESH, AGED ABOUT 40 YEARS,
S/O.B.M.DEVI, RESIDING AT BANGRAMANJESHWAR VILLAGE
KASARAGOD TALUK, P.O MANJESHWAR, PIN 671 323.
22. B.M.ROHINI, AGED 72 YEARS,
D/O.POOVAMMA, RESIDING AT KANNABETTU, KADRI
MANGALORE TOWN OF DAKSHINA KANNADA DISTRICT
KARNATAKA STATE, P.O MANGALORE.
23. SAIGEETHA, AGED ABOUT 45 YEARS,
D/O.B.M.ROHINI, RESIDING AT KANNABETTU, KADRI
MANGALORE TOWN OF DAKSHINA KANNADA DISTRICT
KARNATAKA STATE, P.O MANGALORE.
24. ANITHA, AGED ABOUT 43 YEARS,
D/O.B.M.ROHINI, RESIDING AT KANNABETTU, KADRI
MANGALORE TOWN OF DAKSHINA KANNADA DISTRICT
KARNATAKA STATE, P.O MANGALORE.
25. KAVITHA, AGED ABOUT 40 YEARS,
D/O.B.M.ROHINI, RESIDING AT KANNABETTU, KADRI
MANGALORE TOWN OF DAKSHINA KANNADA DISTRICT
KARNATAKA STATE, P.O MANGALORE.
26. SANGEETHA, AGED BOUT 38 YEARS,
D/O.B.M.ROHINI, RESIDING AT KANNABETTU, KADRI
MANGALORE TOWN OF DAKSHINA KANNADA DISTRICT
KARNATAKA STATE, P.O MANGALORE.
27. MUKTHA, AGED ABOUT 35 YEARS,
D/O.B.M.ROHINI, RESIDING AT KANNABETTU, KADRI
MANGALORE TOWN OF DAKSHINA KANNADA DISTRICT
KARNATAKA STATE, P.O MANGALORE.
RP.No. 913 of 2013 ()
28. SUSHANTHA, AGED 32 YEARS,
D/O.B.M.ROHINI, RESIDING AT KANNABETTU, KADRI
MANGALORE TOWN OF DAKSHINA KANNADA DISTRICT
KARNATAKA STATE, P.O MANGALORE.
29. K.GOPALAKRISHNAN, AGED ABOUT 68 YEARS,
S/O.DEVAKI, SOMESHWAR VILLAGE, MANGALORE TALUK
P.O KOTEKKAR, DAKSHINA KANNADA, KARNATAKA STATE.
30. B.M.PUSHPAVATHI, AGED ABOUT 68 YEARS,
D/O.DEVAKI, SOMESHWAR VILLAGE, MANGALORE TALUK
P.O KOTEKKAR, DAKSHINA KANNADA, KARNATAKA STATE.
31. HEMALATHA, AGED 43 YEARS,
D/O.B.M.PUSHPAVATHI, SOMESHWAR VILLAGE,
MANGALORE TALUK, P.O KOTEKKAR, DAKSHINA KANNADA
KARNATAKA STATE.
32. HARSHAD, AGED ABOUT 36 YEARS,
S/O.B.M.PUSHPAVATHI, SOMESHWAR VILLAGE
MANGALORE TALUK, P.O KOTEKKAR, DAKSHINA KANNADA
KARNATAKA STATE.
33. B.M.SHASHIDHARA, AGED ABOUT 58 YEARS,
S/O.SAKAMMA, SOMESHWAR VILLAGE, MANGALORE TALUK,
P.O KOTEKKAR, DAKSHINA KANNADA, KARNATAKA STATE.
34. K.SAJEEVA, AGED ABOUT 67 YEARS,
S/O.DEVAKI, SOMESHWAR VILLAGE, MANGALORE TALUK,
P.O KOTEKKAR, DAKSHINA KANNADA, KARNATAKA STATE.
35. B.M.SHIVAJI, AGED ABOUT 66 YEARS,
S/O.DEVAKI, SOMESHWAR VILLAGE, MANGALORE TALUK,
P.O KOTEKKAR, DAKSHINA KANNADA, KARNATAKA STATE.
36. B.M.KAMALA, AGED ABOUT 77 YEARS
D/O.POOVAMMA, RESIDING AT KANNABETTU, KADRI
MANGALORE TOWN OF DAKSHINA KANNADA DISTRICT
KARNATAKA STATE, P.O MANGALORE.
37. PRAMOD KUMAR, AGED ABOUT 54 YEARS,
S/O.B..KAMALA, RESIDING AT KANNABETTU, KADRI
MANGALORE TOWN OF DAKSHINA KANNADA DISTRICT
KARNATAKA STATE, P.O MANGALORE.
38. PRAMEELA, AGED BOUT 51 YEARS,
D/O.B.M.KAMALA, RESIDING AT KANNABETTU, KADRI
MANGALORE TOWN OF DAKSHINA KANNADA DISTRICT
KARNATAKA STATE, P.O MANGALORE.
RP.No. 913 of 2013 ()
39. ANEETHA, AGED ABOUT 51 YEARS,
D/O.B.M.KAMALA, RESIDING AT KANNABETTU, KADRI
MANGALORE TOWN OF DAKSHINA KANNADA DISTRICT
KARNATAKA STATE, P.O MANGALORE.
40. VINODA, AGE ABOUT 49 YEARS,
S/O.B.M.KAMALA, RESIDING AT KANNABETTU, KADRI,
MANGALORE TOWN OF DAKSHINA KANNADA DISTRICT
KARNATAKA STATE, P.O MANGALORE.
41. B.M.LEELA, AGED ABOUT 60 YEARS,
D/O.SAKAMMA, SOMESHWAR VILLAGE, MANGALORE TALUK
P.O KOTEKKAR, DAKSHINA KANNADA, KARNATAKA STATE.
42. RESHMA, AGED ABOUT 35 YEARS,
D/O.B.M.LEELA, SOMESHWAR VILLAGE, MANGALORE TALUK
P.O KOTEKKAR, DAKSHINA KANNADA
KARNATAKA STATE.
[NOS. 41 AND 42 ARE REPRESENTED BY THEIR POWER OF
ATTORNEY HOLDER NO.2 SAKAMMA]
43. RAVI PRAKASH KUMAR, AGED ABOUT 59 YEARS,
S/O.R.C.KUMAR, SOMESHWAR VILLAGE, MANGALORE TALUK,
P.O KOTEKKAR, DAKSHINA KANNADA, KARNATAKA STATE.
44. MANU PRAKASH KUMAR, AGED ABOUT 56 YEARS,
S/O.R.C.KUMAR, SOMESHWAR VILLAGE, MANGALORE TALUK
P.O KOTEKKAR, DAKSHINA KANNADA, KARNATAKA STATE.
45. RAJU PRAKASH KUMAR, AGED ABOUT 52 YEARS,
S/O.R.C.KUMAR, SOMESHWAR VILLAGE, MANGALORE TALUK,
P.O KOTEKKAR, DAKSHINA KANNADA, KARNATAKA STATE.
46. JAYA PRAKASH KUMAR, AGED 48 YEARS,
S/O.R.C.KUMAR, SOMESHWAR VILLAGE, MANGALORE TALUK,
P.O KOTEKKAR, DAKSHINA KANNADA, KARNATAKA STATE.
47. LALLI, AGED ABOUT 45 YEARS,
D/O.R.C.KUMAR, SOMESHWAR VILLAGE, MANGALORE TALUK,
P.O KOTEKKAR, DAKSHINA KANNADA, KARNATAKA STATE.
48. NANDA PRAKASH KUMAR, AGED ABOUT 42 YEARS,
S/O.R.C.KUMAR, SOMESHWAR VILLAGE, MANGALORE TALUK,
P.O KOTEKKAR, DAKSHINA KANNADA, KARNATAKA STATE.
49. P.KUMARAN
S/O.KANNAN, RESIDING AT UDYAVAR IN UDYAVAR VILLAGE
KASARAGOD TALUK, P.O MANJESHWAR (DIED).
50. SYED AHMED, AGED ABOUT 59 YEARS,
S/O.AHAMED ALIA KUNHI BEARY
RESIDING AT UDYAVAR IN UDYAVAR VILLAGE,
KASARAGOD TALUK, P.O MANJESHWAR.
RP.No. 913 of 2013 ()
51. MRS. ATHIKA, AGED ABOUT 59 YEARS,
D/O.AHAMED ALIAS KUNHI BEARY
RESIDING AT UDYAVAR IN UDYAVAR VILLAGE
KASARAGOD TALUK, P.O MANJESHWAR.
52. AJIDA, AGED ABOUT 62 YEARS,
D/O.AHAMED ALIAS KUNHI BEARY
RESIDING AT UDYAVAR IN UDYAVAR VILLAGE
KASARAGOD TALUK, P.O MANJESHWAR.
53. MOHAMMED, S/O.ALI AHAMED, AGED ABOUT 62 YEARS,
RESIDING AT UDYAVAR IN UDYAVAR VILLAGE
KASARAGOD TALUK, P.O MANJESHWAR.
54. USMAN, S/O.ALI AHAMED
RESIDING AT UDYAVAR IN UDYAVAR VILLAGE,
KASARAGOD TALUK, P.O MANJESHWAR.
55. KASARAGOD CO-OPERATIVE LAND MORTGAGE BANK LTD,
KASARAGOD, REPRESENTED BY ITS SECRETARY, NAYAK ROAD
KASARAGOD.
56. P.ROHINI, W/O.P.KUMARAN
RESIDING AT UDYAVAR IN UDYAVAR VILLAGE
KASARAGOD TALUK, P.O MANJESHWAR.(DIED).
57. SATHY R.C.KUMAR, D/O.P.KUMARAN,
RESIDING AT UDYAVAR IN UDYAVAR VILLAGE
KASARAGOD TALUK, P.O MANJESHWAR.(DIED).
58. N.DIVAKARAN
RESIDING AT UDYAVAR IN UDYAVAR VILLAGE
KASARAGOD TALUK, P.O MANJESHWAR.(DIED)
59. VIJAYAN
RESIDING AT UDYAVAR IN UDYAVAR VILLAGE
KASARAGOD TALUK, P.O MANJESHWAR.(DIED).
60. BHARATH, AGED ABOUT 55 YEARS,
RESIDING AT UDYAVAR IN UDYAVAR VILLAGE
KASARAGOD TALUK, P.O MANJESHWAR.
61. BHASKARA
RESIDING AT UDYAVAR IN UDYAVAR VILLAGE
KASARAGOD TALUK, P.O MANJESHWAR.(DIED).
62. SHYAMALA ALIAS TARA, AGED ABOUT 50 YEARS,
RESIDING AT UDYAVAR IN UDYAVAR VILLAGE
KASARAGOD TALUK, P.O MANJESHWAR.
63. AHALYA, AGED ABOUT 47 YEARS,
RESIDING AT UDYAVAR IN UDYAVAR VILLAGE,
KASARAGOD TALUK, P.O MANJESHWAR.
RP.No. 913 of 2013 ()
64. MADHUSUDANA, AGED ABOUT 45 YEARS,
RESIDING AT UDYAVAR IN UDYAVAR VILLAGE
KASARAGOD TALUK, P.O MANJESHWAR.
65. VIJAYALAXMI, AGED ABOUT 42 YEARS,
RESIDING AT UDYAVAR IN UDYAVAR VILLAGE
KASARAGOD TALUK, P.O MANJESHWAR.
BY ADVS. SRI.K.G.GOURI SANKAR RAI
SRI.N.M.MADHU
SRI.P.K.MUHAMMED
THIS REVIEW PETITION HAVING BEEN FINALLY HEARD
ON 24-02-2014, ALONG WITH RP. 992/2013,THE COURT
ON THE SAME DAY PASSED THE FOLLOWING:
BP
P. BHAVADASAN, J.
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R.P. Nos. 913 & 992 of 2013
in S.A. No. 67 of 1997.
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Dated this the 24th day of February, 2014.
ORDER
These review petitions have been filed by the legal heirs of deceased 11th and 10th respondents respectively in S.A. 67 of 1997.
2. The suit was one for recovery of possession on the strength of title and for mesne profits. For the purpose of these review petitions, it is unnecessary to go into the details of the case. Suffice to say that the trial court had dismissed the suit. The lower appellate court, for different reasons, confirmed the judgment and decree of the trial court. The Second Appeal is directed against the said judgment and decree.
3. During the pendency of the second appeal before this Court, the first respondent died and his legal heirs R.P.913 & 992/2013.
2were brought on the party array as additional respondents 8 to 17. The second appeal was heard on 17.6.2010 and the judgment was pronounced on 8.7.2010. In the meanwhile, the appellant had filed a memo pointing out that additional respondents 10, 11 and 13 died. This Court noting the fact that the estate is substantially represented by other respondents in the second appeal thought it unnecessary to implead the legal heirs of those additional respondents and passed an order to that effect and finally the second appeal was disposed of.
4. The said act of this Court ordering that the legal heirs of additional respondents 10 and 11 who died during the pendency of the appeal need not be impleaded and their estate is substantially represented by the other respondents is taken objection to in these review petitions. It is pointed out by the learned counsel appearing for the review petitioner in R.P. 913 of 2013 is that the theory of substantial R.P.913 & 992/2013.
3representation could not have been invoked in this case since the said theory cannot be applied to the case on hand.
5. It was contended that the theory of substantial representation of the estate can be invoked only when the person, who is bound to implead the legal heirs, after due enquiries regarding the persons concerned, is unable to find or gather the necessary details. It is only in such cases the other persons who represent the estate could be taken as representing the whole body of the legal heirs. For the above proposition, learned counsel relied on the decisions reported in Chacko Pyli v. Iype Varghese (1955 K.L.T. 739), Mary Metilda v. Kunjiran Kunju Kathija Ummal (1969 K.L.T. 241), in Rameshwar Prasad v. Shambehari Lal (AIR 1963 SC 1901) and in Municipal Council, Mandsaur v. Fakirchand (AIR 1997 SC 1251).
6. Learned counsel also pointed out that after the commencement of the Joint Hindu Family System (Abolition) R.P.913 & 992/2013.
4Act, the interest of each of the co-owner is distinct and separate and it cannot be said that one co-owner can represent the other co-owners. For the above proposition, learned counsel relied on the decision reported in R.P. Gupta v. Murli Prasad (AIR 1972 SC 1181).
7. Learned counsel appearing for the review petitioners therefore contended that it was absolutely necessary for the appellants to implead the legal heirs of the deceased additional respondents 10 and 11 and the judgment passed without impleading their legal heirs is not binding on them and is bad in law.
8. Learned counsel appearing for the contesting respondents in these review petitions on the other hand contended that it was after applying its mind that this Court had directed that it was unnecessary to implead the legal heirs of additional respondents 10 and 11 who died during the pendency of the appeal. They were impleaded as the legal R.P.913 & 992/2013.
5heirs of the deceased first respondent. Learned counsel pointed out that it is significant to notice that respondents 8 to 17 who were impleaded as additional respondents and as legal heirs of the first respondent could not and did not take any contention not in consonance with the contention of the first respondent and they are bound by the contentions taken by the first respondent. They did not come on record in their individual capacity and they could not and did not agitate any independent claim. It was pointed out by the learned counsel that the persons now come forward with the review petitions are the legal heirs of the legal heirs of the first respondent and going by the decision reported in Muthuraman v. Adaikappa (AIR 1936 Madras 336), it is not necessary to implead the petitioners in the second appeal.
9. True that this Court had observed on the memo being filed by the respondents that additional respondents 10, R.P.913 & 992/2013.
611 and 13 are no more and that it is unnecessary to implead the legal heirs as the estate of the first respondent is substantially represented.
10. In the decision in Chacko Pyli's case (supra), it was held as follows:
b