Kerala High Court
Unknown vs Present on 18 February, 2020
Author: Sathish Ninan
Bench: Sathish Ninan
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE SATHISH NINAN
TUESDAY, THE 18TH DAY OF FEBRUARY 2020 / 29TH MAGHA, 1941
RSA.No.740 OF 2015
AGAINST THE JUDGMENT AND DECREE DATED 10.03.2015 PASSED IN AS
NO.95/2013 OF THE ADDL. DISTRICT & SESSIONS COURT, VATAKARA, ON
APPEAL AGAINST THE ORDER PASSED IN FDIA 785/2008 IN OS NO.14/2006
DATED 12.04.2013 OF SUB COURT, VATAKARA
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APPELLANT/APPELLANT IN AS 95/2013/2ND RESPONDENT IN FDIA
785/2008/2ND DEFENDANT IN OS 14/2006:
PUTHANPURAYIL E.P.SASIDHARAN,
S/O.SARADA AMMA, AGED 62 YEARS, NOW RESIDING AT
MUTHUVATTU THAZHAKUNIYIL PURAMERI AMSOM DESOM,
VATAKARATALUK, KOZHIKODE DISTRICT.
BY ADVS.
SRI.T.SETHUMADHAVAN (SR.)
SMT.DEEPA NARAYANAN
SRI.K.JAYESH MOHANKUMAR
SRI.PUSHPARAJAN KODOTH
SMT.VANDANA MENON
RESPONDENTS/RESPONDENTS IN AS 95/2013/PETITIONER & R1 IN FDIA
785/2008/PLAINTIFF & 1ST DEFENDANT IN OS 14/2006:
1 PUTHANPURAYIL BHARATHI AMMA
D/O.SARADA AMMA, AGED 69 YEARS, NOW RESIDING AT
DEEPASREE,CHORODE AMSOM, ERAPURAM DESOM, CHORODE
P.O.,VATAKARA TALUK, KOZHIKODE DISTRICT - 673 106.
2 PUTHENPURAYIL SARALA DIVAKARAN,
D/O.KUNHIRAMA KURUP, AGED 64 YEARS, R/AT 'PRASANTH'
HOUSE,PANOOR AMSOM AND DESOM, PANOOR P.O.,THALASSERY
TALUK, KANNUR DISTRICT - 670 692.
R1 BY ADV. SRI.M.DEVESH
R1 BY ADV. SRI.T.KRISHNANUNNI SR.
R1 BY ADV. SRI.K.C.KIRAN
R1 BY ADV. SRI.R.K.MURALEEDHARAN
R1 BY ADV. SMT.MEENA.A.
R1 BY ADV. SRI.VINOD RAVINDRANATH
THIS REGULAR SECOND APPEAL HAVING BEEN FINALLY HEARD ON
14.02.2020, ALONG WITH RSA.775/2015, THE COURT ON 18.02.2020
DELIVERED THE FOLLOWING:
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE SATHISH NINAN
TUESDAY, THE 18TH DAY OF FEBRUARY 2020 / 29TH MAGHA, 1941
RSA.No.775 OF 2015
AGAINST THE JUDGMENT AND DECREE DATED 10.03.2015 PASSED IN AS
NO.203/2012 OF ADDL. DISTRICT & SESSIONS COURT, VATAKARA, ON
APPEAL AGAINT THE DECREE AND JUDGMENT DATED 29.09.2012 IN OS
NO.25/2009 OF SUB COURT, VATAKARA
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APPELLANT/APPELLANT/PLAINTIFF:
PUTHANPURAYIL E.P SASIDHARAN,
S/O.SARADA AMMA, AGED 62 YEARS, VELLUR AMSOM,
KODENCHERY DESOM, KODENCHERY PO, VATAKARA TLAUK,
KOZHIKODE DISTRICT.
BY ADVS.
SRI.T.SETHUMADHAVAN (SR.)
SMT.DEEPA NARAYANAN
SRI.K.JAYESH MOHANKUMAR
SRI.PUSHPARAJAN KODOTH
SMT.VANDANA MENON
RESPONDENTS/RESPONDENTS/DEFENDANTS:
1 PUTHANPURAYIL BHARATHI AMMA,
D/O.SARADA AMMA, AGED 69 YEARS, 'DEEPTHI', CHORODE
AMSOM, ERAPURAM DESOM, CHORODE PO, VATAKARA TALUK,
KOZHIKODE DISTRICT-673001.
2 PUTHANPURAYIL SARALA DIVAKARAN,
D/O.SARADA AMMA, AGED 64 YEARS, 'PRASANTH', PANOOR
AMSOM & DESOM, PANOOR PO, THALASSERY TALUK,
KANNUR DISTRICT. 673 221.
R1 BY ADV. SRI.M.DEVESH
R1 BY ADV. SRI.T.KRISHNANUNNI SR.
R1 BY ADV. SRI.K.C.KIRAN
R1 BY ADV. SMT.MEENA.A.
R1 BY ADV. SRI.VINOD RAVINDRANATH
THIS REGULAR SECOND APPEAL HAVING BEEN FINALLY HEARD ON
14.02.2020, ALONG WITH RSA.740/2015, THE COURT ON 18.02.2020
DELIVERED THE FOLLOWING:
SATHISH NINAN, J.
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RSA Nos.740 & 775 of 2015
==================
Dated this the 18th day of February, 2020
JUDGMENT
RSA No.775/2015 arises from OS 25/2009 which is a suit for partition filed by the appellant herein as the plaintiff. The suit was concurrently dismissed by the courts below. RSA No.740/2015 arises from the concurrent final decree for partition in OS No.14/2006 in which the appellant herein is the second defendant.
2. The plaint schedule property in OS 25/2009(suit by the appellant herein) was originally scheduled in plaint item no.3 to OS 14/2006. The property is one acre 38 and 2/3 cents in R.S.36/1. The said item was deleted from the schedule to OS 14/2006 on the contention of one of the defendants therein (4th defendant therein) to the effect that said property is part of plaint schedule item no.1 therein. It is thereafter that the appellant herein filed OS 25/2009 claiming partition with respect to the said item on the RSA Nos.740 & 775 of 2015 :- 2 :-
contention that, the same is not included in OS 14/2006.
3. Ammalu Akkamma is the common ancestress. All the three items of properties which were the subject matter of partition in OS 14/2006 originally belonged to Ammalu Akkamma. After her demise, Ext.B10 Partition Deed of the year 1947 was executed in the family, whereunder, the properties were allotted jointly to Sarada, one of the daughters of Ammalu Akkamma and Bharathi one of the daughters of Sarada. Sarada had two other children apart from Bharathi who are Sarala and Sasidharan (appellant herein). The suit OS 14/2006 is filed by Bharathi claiming that in terms of Ext.B10 partition deed Sarada and Bharathi had one half rights over the property and that on the death of Sarada, her one half right devolved equally on Bharathi, Sarala and Sasidharan each getting 1/3 rd of 1/2. Thus she claimed 1/2 and also 1/3 rd of 1/2 of Sarada.
4. The contention of the appellant herein was that, with respect to item no.3 namely, the RSA Nos.740 & 775 of 2015 :- 3 :-
aforementioned one acre 38 and 2/6 cents which is the plaint schedule in OS 25/2009, the said property was outstanding on Kanam-Kuzhikanam as per Ext.A5 executed by Ammalu Akkamma in favour of one Koran; the said rights became vested with one Komappa Kuruppu as per Ext.A6 assignment. After Ext.B10 partition, Komappa Kurup releaed the Kanam- Kuzhikanam right as per Ext.A1 Release Deed of the year 1952 in favour of Sarada. Thus, Sarada became the absolute owner of the said item of property. On her death, each of the children-Bharathi Sarala and Sasidharan (appellant herein)-gets one third share each, is the contention.
5. The courts below found that the plaint schedule in OS 25/2009 which was originally item no.3 in OS 14/2006 was infact, part of item no.1 in OS 14/2006. The courts noticed that, in the preliminary decree passed in OS 14/2006 it was held that Bharathi and Sarada held one half rights over the entire property. The said decree having become final, the claim in OS 25/2009 regarding one of the items in OS 14/2006 was held to be barred by res RSA Nos.740 & 775 of 2015 :- 4 :-
judicata. The courts also held that Ext.A1 Release Deed enures to the benefit of both the jenmom holders viz. Sarada and Bharathi. Accordingly OS 25/2009 was dismissed and final decree passed in OS 14/2006.
6. Heard Sri.T.Sethumadhavan, the learned Senior Counsel, on behalf of the appellant and Sri.T.Krishnanunni, the learned Senior counsel for the contesting respondent on the following substantial questions of law:-
1. Were the courts below right in holding that, Ext.A1 Release Deed in favour of Sarada enures to the benefit of Bharathi, the joint holder of the jenmom right over the property?
2. Were the courts below right in holding that, the claim of exclusive title of Sarada with respect to the plaint schedule in OS 25/2009 is barred by res judicata/constructive res judicata ?
7. Whether the one acre 38 and 2/3 cents RSA Nos.740 & 775 of 2015 :- 5 :-
belonged exclusively to Sarada under Ext.A1 Release Deed, or whether Sarada and Bharathi got one half rights each, over the said property, is the common question for determination in these appeals.
8. Ext.A1 Release Deed, releasing the Kanam- Kuzhikanam right over the property in favour of Sarada was executed after Ext.B10 partition. Under Ext.B10 partition, the jenmom right over the said property was, along with other properties, allotted jointly to Sarada and Bharathi. Therefore, they both were joint holders of the jenmom right. As held by the courts below, the release in favour of one of the co-owners enures to the benefit of the other co-owner also. Therefore, the contention that Sarada got absolute title over the property as against Bharathi by virtue of Ext.A1 release deed does not have any force. The courts below have rightly held so.
9. Though the appellant has filed the suit OS 25/2009 on the contention that, the plaint schedule therein which is the one acre 38 cents and 2/3 cents which was originally item no.3 in OS 14/2006 RSA Nos.740 & 775 of 2015 :- 6 :-
was deleted and that being not a subject matter of the said suit is liable to be partitioned, the courts below have found that the one acre 38 and 2/3 cents is part of item no.1 in OS 14/2006. The said finding is based on materials and is a pure finding of fact. The said finding is not under serious challenge.
10. It is to be noticed that, on the contention of the fourth defendant in OS 14/2006 that the said property forms part of item no.1 in the said suit, the plaintiff therein deleted item no.3. The preliminary decree in OS 14/2006 having become final, wherein the respective rights of all the parties over the one acre 38 and 2/3 cents having been declared, the present claim over the said property at variance from the shares declared by the preliminary decree in OS 14/2006 is, as rightly held by the courts below, barred by res judicata. The submission of the learned Senior Counsel of the appellant that the exclusive title of Sarada having not been considered in the preliminary decree proceedings in OS 14/2006, the same will not RSA Nos.740 & 775 of 2015 :- 7 :-
constitute res judicata, is unsustainable. The plea against the preliminary decree in OS 14/2006 is barred by constructive res judicata even assuming that such a plea was not raised and considered. The substantial questions of law are thus answered against the appellant.
To sum up, the decree and judgments of the courts below suffers from no infirmity and warrants no interference. The Regular Second Appeals fail and are accordingly dismissed.
Sd/-
SATHISH NINAN JUDGE kns/-
//True Copy// P.S. to Judge