Kerala High Court
Dodla International Enterprises Pvt. ... vs Seenithai Ammal(Died) on 26 August, 2025
Author: Sathish Ninan
Bench: Sathish Ninan
2025:KER:64889
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE SATHISH NINAN
&
THE HONOURABLE MR.JUSTICE P. KRISHNA KUMAR
TUESDAY, THE 26TH DAY OF AUGUST 2025 / 4TH BHADRA, 1947
RFA NO. 588 OF 2007
AGAINST THE DECREE AND JUDGMENT DATED 31.07.2007 IN OS NO.309
OF 2002 OF THE II ADDITIONAL SUB COURT, THIRUVANANTHAPURAM
-----
APPELLANT/4TH DEFENDANT:
DODLA INTERNATIONAL ENTERPRISES PVT. LIMITED, *10
REGISTERED OFFICE AT 15A, CENOTAPH ROAD, II STREET,
CHENNAI, REPRESENTED BY ITS, MANAGING DIRECTOR SRI.
G.MOHAMMED.
BY ADVS.
SMT.O.A.NURIYA
SRI.ANAND B. MENON
SRI.S.SREEKUMAR (SR.)
RESPONDENTS/PLAINTIFF & DEFENDANTS 1 TO 3:
1 SEENITHAI AMMAL,(DIED; LRS IMPLEADED AS ADDL R7 & R8)*2
D/O.VAIKUNDARAMA KARAYALAR, NOW RESIDING AT NO.67,
STREET NO.2, WARD NO.3, SHENKOTTAI, REPRESENTED BY P/A
HOLDER, AND DAUGHTER PONNULEKSHMI, W/O R.BHARATHAN,
RESIDING AT NO.81, STREET NO.2, WARD NO.3, SHENKOTTAI.
2 SUBRAMANIAN,(DIED; LRS IMPLEADED AS ADDL R5 & R6)*1
S/O VAIKUNDARAMA KARAYALAR , RESIDING AT 67 MAIN ROAD,
SHENKOTTA.
2025:KER:64889
RFA NO. 588 OF 2007 -2-
3 CHELLAPERUMAL, [DIED;LRS IMPLEADED AS ADDL R16 & R18]*4
S/O VAIKUNDARAMA KARAYALAR, RESIDING AT 33 JAWAHARLAL
NEHRU ROAD, SHENKOTTA.
4 MUTHULEKSHMI, [DIED; LRS IMPLEADED AS ADDL.R9-R15]*3 & *9
W/O RATHNAVELU KARAYALAR, RESIDING AT 61 MAIN ROAD,
SHENKOTTA.
*1 ADDITIONAL RESPONDENTS 5 AND 6
ADDL. R5 S.SATTANATHAN,
S/O.SUBRAMANIAKARAIALER, AGED ABOUT 65 YEARS, RESIDING
AT NEW NO.81 A, OLD NO.67A, S.S.PILLAI STREET,
SENKOTTAI NAGARAM, SENKOTTAI TALUK, TIRUNELVELI
DISTRICT, TAMILNADU, REPRESENTED BY POWER OF ATTORNEY
HOLDER P.IYYAPPAN, S/O. LATE PERMAL NAIDU, AGED 31
YEARS, RESIDING AT 109/10, SUBRAMANIASAMY TEMPLE
STREET, CUMBUM, THENI DISTRICT, TAMILNADU.
ADDL. R6 S.SRIRAM,
S/O.SUBRAMANIAKARAIALER, AGED ABOUT 63 YEARS, RESIDING
AT NEW NO.81 A, OLD NO.67A, S.S.PILLAI STREET,
SENKOTTAI NAGARAM, SENKOTTAI TALUK, TIRUNELVELI
DISTRICT, TAMILNADU, REPRESENTED BY POWER OF ATTORNEY
HOLDER P.IYYAPPAN, S/O. LATE PERMAL NAIDU, AGED 31
YEARS, RESIDING AT 109/10, SUBRAMANIASAMYTEMPLE STREET,
CUMBUM, THENI DISTRICT, TAMILNADU.
*1 [ADDITIONAL RESPONDENTS 5 & 6 ARE IMPLEADED AS THE LEGAL HEIRS
OF THE DECEASED SECOND RESPONDENT VIDE ORDER DATED 13.03.2020 IN
IA 1/2020]
*2 ADDITIONAL RESPONDENTS 7 AND 8
ADDL. R7 PONNULAKSHMI,
D/O.SEENITHAI AMMAL, DOOR NO.82, S.S.PILLAI STREET,
CHENKOTTA, TAMIL NADU 627 809.
ADDL. R8 BRAHMANAYAKI,
81, MAIN ROAD, SHENCOTTA, TAMIL NADU 627 809.
*2[LEGAL HEIRS OF THE DECEASED FIRST RESPONDENT ARE IMPLEADED AS
ADDL. R7 AND R8 VIDE ORDER DATED 21.03.2022 IN IA 3/2018]
2025:KER:64889
RFA NO. 588 OF 2007 -3-
*3 ADDITIONAL RESPONDENTS 9 TO 15
ADDL. R9 ANANDAVALLY, [DIED]*6
T.C.NO.3/22, WEST CAR STREET, SHENKOTTAI- 627809.
ADDL. R10 MAHALINGAM,
RESIDING AT T.C.NO.3/22, WEST CAR STREET, SHENKOTTAI-
627809.
ADDL. R11 BALASUBRAMANYAN,
RESIDING AT T.C.NO.3/22, WEST CAR STREET, SHENKOTTAI-
627809.
ADDL. R12 VIJAYAKUMAR,
RESIDING AT T.C.NO.3/22, WEST CAR STREET, SHENKOTTAI-
627809.
ADDL. R13 NARAYANI,
HOUSE NO.67, MAIN ROAD, SHENKOTTAI- 627809.
ADDL. R14 SREENIVASAN, [DIED;LRS IMPLEADED AS ADDL R24 & R25]*7
HOUSE NO.67, MAIN ROAD, SHENKOTTAI- 627809.
ADDL. R15 SETHULEKSHMI,
HOUSE NO.67, MAIN ROAD, SHENKOTTAI- 627809.
*3[ADDITIONAL RESPONDENTS 9 TO 15 IMPLEADED AS PER ORDERS OF THIS
COURT ON IA 1/22 DATED 26.08.2025]
*4 ADDITIONAL RESPONDENTS 16 TO 18
ADDL. R16 AVUDAI AMMAL,
W/O. CHELLAPERUMAL, RESIDING AT 33, JAWAHARLAL NEHRU
ROAD, SHENKOTTA.(SOUGHT TO BE IMPLEADED)
ADDL. R17 MURUGAN,
S/O. CHELLAPERUMAL, RESIDING AT 33, JAWAHARLAL NEHRU
ROAD, SHENKOTTA.(SOUGHT TO BE IMPLEADED)
ADDL. R18 PONNUSREEMAN,
S/O. CHELLAPERUMAL, RESIDING AT 33, JAWAHARLAL NEHRU
ROAD, SHENKOTTA.(SOUGHT TO BE IMPLEADED)
2025:KER:64889
RFA NO. 588 OF 2007 -4-
*4[ADDITIONAL RESPONDENTS 16 TO 18 ARE IMPLEADED AS PER ORDERS OF
THIS COURT ON IA 4/2022 DATED 26.08.2025]
ADDL. R19 [DISMISSED IN THE LIGHT OF THE ORDER ON IA NOS.8 & 9 OF
2025]
*5 ADDITIONAL RESPONDENT NOS.20 AND 21
ADDL. R20 GANESH SUBRAMANIAN,
S/O. LATE SANTHA DEVI, AGED 56 YEARS, RESIDING AT
PLOT.NO.1431, FLAT H, AMUTHAM APPARTMENTS,
THIRUVALLUVAR NAGAR, MOGAPPAIR WEST, THIRUVALLUR-
600037, REPRESENTED BY SIVASUBRAMANIAN, S/O. ANDI
KARAIYALAR, AGED 59 YEARS, RESIDING AT 22A, MELARATHA
VEETHI, SHENCOTTAI, TENKASI DISTRICT-627809.
ADDL. R21 RAJA LAKSHMI,
D/O. LATE AVUDAIAMMAL, AGED 85 YEARS, RESIDING AT 11/5,
AKSHAIYA APARTMENT, PERUMAL NAGAR, MOGAPPAIR EAST,
TIRUVALLUR DISTRICT -600037, REPRESENTED BY
SIVASUBRAMANIAN, S/O. ANDI KARAIYALAR, AGED 59 YEARS,
RESIDING AT 22A, MELARATHA VEETHI, SHENCOTTAI, TENKASI
DISTRICT-627809.
*5 [ADDITIONAL RESPONDENTS 20 AND 21 ARE IMPLEADED AS PER ORDERS OF
THIS COURT ON IA.1/2023 DATED 26.08.205]
*6 ADDITIONAL RESPONDENTS 22 & 23
ADDL. R22 SIVASUBRAMANIAN, S/O ANDI KARAIYALAR, AGED 59 YEARS,
RESIDING AT 22A, MELARATHA VEETHI, SHENCOTTAI, TENKASI
DISTRICT-627809.
ADDL. R23 AKSHMI SURENDRAN, C/O SURENDRAN, NO.21/9 VAS GARDEN,
JAGATHAMBAL STREET, THIYAGARAYA NAGAR, CHENNAI,
TAMIL NADU-600017.
*6 [ADDITIONAL RESPONDENTS 22 AND 23 ARE IMPLEADED AS PER ORDERS OF
THIS COURT ON IA 1/2025 DATED 26.08.2025]
2025:KER:64889
RFA NO. 588 OF 2007 -5-
*7 ADDITIONAL RESPONDENTS 24 AND 25
ADDL. R24 RAMKUMAR S.,
S/O.SREENIVASA KARAYALAR, JAWAHARLAL NEHRU STREET,
CHENKOTTAI, THIRUNALVELI, TAMILNADU.
ADDL. R25 PREMRAJ,
S/O.SREENIVASA KARAYALAR, JAWAHARLAL NEHRU STREET,
CHENKOTTAI, THIRUNALVELI, TAMILNADU-627809.
*7[ADDITIONAL RESPONDENTS 24 AND 25 ARE IMPLEADED AS PER ORDERS OF
THIS COURT ON IA 2/25 DATED 26.08.2025]
*8 ADDITIONAL RESPONDENTS
ADDL. R26 SELVARAJ,
S/O. SUBRAMANYA KARALAYAR AGED 61 YEARS, RESIDING AT
S.S. PILLAI STREET SENKOTTAI NAGARAM, SENKOTTAI TALUK
TENKASI DISTRICT, TAMILNADU. REP.BY POWER OF ATTORNEY
HOLDER P. IYYAPPAN, S/O. LATE PERMAL NAIDU, AGED 36
YEARS, RESIDING AT 109/10, SUBRAMANYA SWAMI TEMPLE
STREET, CUMBUM, THENI DISTRICT, TAMILNADU.
*8 [ADDITIONAL RESPONDENT NO.26 IS IMPLEADED AS PER ORDERS OF THIS
COURT ON IA 3/2025 DATED 26.08.2025]
*9 ADDITIONAL RESPONDENT NO.27
ADDL.R27 THANKAM CHEMPAK, D/O KUPPUSAAMI AGED 25 YEARS, 61/133,
JAWAHARLALNEHRU ROAD, SENKOTTAI, TIRUNALVELI,
TAMILNADU-627809.
ADOPTED DAUGHTER OF LATE MUTHULAKSHMI (DIED) (R4) IN
RFA W/O RATHNAVELU KARAYALAR, RESIIDNG AT 61 MAIN ROAD,
SENKOTTAI, TAMILNADU STATE, PIN-627809.
*9 [ADDITIONAL RESPONDENT NO.27 IS IMPLEADED AS PER ORDERS OF THIS
COURT ON IA 6/2025 DATED 26.08.225]
*10 [THE APPELLANT IS SUBSTITUTED AS "LULU HOSPITALITY PRIVATE
LIMITED, TC 24/1968-2, THYCAUD, THIRUVANANTHAPURAM, PIN 695014" AS
PER ORDERS OF THIS COURT ON IA 8/2025 DATED 26.08.2025]
2025:KER:64889
RFA NO. 588 OF 2007 -6-
BY ADVS.
SRI.V.SURESH
SHRI.R.S.KALKURA
SRI.B.KRISHNA MANI
SRI.SHANAVAS.S
SHRI.M.S.KALESH
SRI.HARISH GOPINATH
SMT.R.BINDU
SMT.P.ANJANA
SMT.NEENU PAVITHRAN
SRI.M.AJAY (IRUMPANAM)
SRI.A.BALAGOPALAN
SHRI.A.RAJAGOPALAN
SRI.G.SUDHEER
SRI.V.VINAY MENON
SRI.H.KIRAN
SHRI.P.I.NAJUMAL HUSSAIN
THIS REGULAR FIRST APPEAL HAVING COME UP FOR HEARING ON
26.08.2025, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
2025:KER:64889
SATHISH NINAN &
P. KRISHNA KUMAR, JJ.
= = = = = = = = = = = = = = = = = =
R.F.A. No.588 of 2007
= = = = = = = = = = = = = = = = = =
Dated this the 26th day of August, 2025
J U D G M E N T
Sathish Ninan, J.
The preliminary decree in a suit for partition is under challenge by the fourth defendant.
2. The plaint schedule property has an extent of 1 acre 80 cents. The property originally belonged to one N.K.Chattanatha Karayalar. He had five sons and two daughters. He died in the year 1917. He had executed a Will in favour of one of his sons Subramonia Karayalar. Subramonia Karayalar had three sons and three daughters viz. Chattanatha Karayalar(Jnr.), Vaikunta Raman, Retnavelu, Avadi Ammal, Ponnammal and Chellammal. A truncated genealogy with the bare minimum members as is necessary for an easy understanding of the facts of the case is given hereunder. R.F.A. No.588 of 2007
2025:KER:64889 -: 2 :-
3. The parties were governed by Mitakshara law. Subramonia Karayalar died in the year 1928. As per Ext.B29 agreement of the year 1950 entered into between his sons Chattanatha Karayalar(Jnr.), Vaikuntaraman and Retnavelu, the joint family status was disrupted resulting in each of the sons holding 1/3 shares over the ancestral properties. R.F.A. No.588 of 2007
2025:KER:64889 -: 3 :-
4. Vaikuntaraman died in the year 1967. The plaintiff is his daughter. She seeks for partition and separate possession of her 1/9 shares over the plaint scheduled property. The plaintiff's brothers are defendants 1 and 2. Retnavelu died in the year 1994. His wife is the third defendant. Chattanatha Karayalar(Jnr.) died in the year 1972. His successors had conveyed the entire plaint scheduled property to the 4th defendant, asserting exclusive right in themselves.
5. Defendants 1 to 3 supported the case of the plaintiff.
6. The 4th defendant, who is the successor-in-interest of Chattanatha Karayalar(Jnr.) contested the suit. The 4 th defendant claimed exclusive title and possession over the property under Exts.A1 and A2 Sale Deeds (Exts.B22 and 23) dated 19.04.2000, executed by the legal heirs of Chattanatha Karayalar(Jnr.). The 4th defendant asserted the exclusive title of Chattanatha Karayalar(Jnr.) over the property. It R.F.A. No.588 of 2007 2025:KER:64889 -: 4 :- was claimed that such right was upheld in the prior litigations in the family viz. OS 33/1961 and OS 97/1981. Accordingly they prayed for dismissal of the suit.
7. The trial court found that the joint family was disrupted under Ext.B29 agreement. It was found that Chattanatha Karayalar(Jnr.), who was the eldest son of Subramonia Karayalar, was managing and administering the assets of the Family and that there is no material to find his exclusive ownership over the property. Accordingly, a preliminary decree was passed declaring the 1/9 shares of the plaintiff over the plaint scheduled property.
8. Pending the appeal, the appellant-4th defendant, purchased the rights of the plaintiff. Defendants 2 and 3 are pursuing their claim for partition and separate possession of their shares.
9. We have heard the learned counsel on either side.
10. The points that arise for determination in this appeal are: -
R.F.A. No.588 of 2007
2025:KER:64889 -: 5 :-
(i) Does the evidence on record establish the exclusive title and possession of Chattanatha Karayalar(Jnr.) over the plaint scheduled property?
(ii) The appellant-4th defendant having purchased the share of the plaintiff, pending the appeal, is the appeal maintainable? Does the conduct amount to estoppel?
(ii) Does the decree and judgment of the trial court warrant any interference?
11. Admittedly, the plaint schedule property belonged to Subramonia Karayalar under a Will executed by his father late N.K.Chattanatha Karayalar. The parties were governed by the pristine Hindu Mitakshara Law. Of the three sons of Subramonia Karayalar, Chattanatha Karayalar(Jnr.) was the eldest. He was in management and administration of the assets. While in management of the family properties, Chattanatha Karayalar(Jnr.) had acquired other properties. Admittedly, the plaint schedule property is an ancestral property, inherited from Subramonia Karayalar. Paragraphs 1 and 2 of the plaint reads thus :-
R.F.A. No.588 of 2007
2025:KER:64889 -: 6 :- "1) The plaint schedule property comprises 1 acre and 80 cents of land with an old palatial building therein. This is known as the 'KARAYALAR COMPOUND'.
2) The said property originally belonged to the late Subramonia Karayalar by virtue of a will executed by his father, the late N.K.Chattanatha Karayalar."
The above is of significance in the light of the suit that ensued as OS 33/1961 between the three brothers-the three sons of Subramonia Karayalar.
12. The suit OS 33/1961 was filed by Vaikuntaraman and Retnavelu as plaintiffs, against their brother Chattanatha Karayalar(Jnr.), for partition of various items of properties. Ext.B1 is the plaint in OS 33/1961. Ext.B1 categorically admits disruption of the joint family. It also admits the division of all the ancestral properties between the brothers by metes and bounds, except the "Adu" and "Mitta" lands which were included in Schedule-II to Ext.B1. The acquisitions made by Chattanatha Karayalar(Jnr.) while in management of the ancestral properties were included in Schedule-I. The properties included in both the schedules were sought to be partitioned. Conspicuously, Ext.B1 plaint R.F.A. No.588 of 2007 2025:KER:64889 -: 7 :- acknowledged the earlier division of all their ancestral properties excluding, the "Adu" and "Mitta" lands. The present plaint schedule, which is admittedly an ancestral property, was not included in Ext.B1. The plaint further acknowledged the separate enjoyment of the said partitioned ancestral properties. Not only that there was no statement that any ancestral property was left out, but there was a positive assertion that, except the "Adu" and "Mitta" lands the ancestral properties were partitioned between the brothers. The plaint affirmed that the only ancestral properties which remained in the management of Chattanatha Karayalar(Jnr.) were, the "Adu" and "Mitta" lands. The relevant plea in Ext.B1 reads thus :-
"..... Subsequently, the said ancestral properties were divided between the brothers by metes and bounds and each is enjoying his share separately excepting the Adu and Mitta lands, which are described in the 2 nd schedule hereunder. These properties continue to remain in the management of the defendant No.1 as properties of co-owners. The first defendant is in management on behalf of the plaintiffs as their agent with a liability to account for their due share of the income and profits as well. The other common assets are shown in the 1st schedule."R.F.A. No.588 of 2007
2025:KER:64889 -: 8 :-
13. The present plaint schedule property is admittedly lying contiguous to item No.3 in Schedule - I to Ext.B1 plaint. The said item No.3 in Schedule-I was sought to be partitioned as an acquired asset. In spite of the above, the present plaint schedule was not claimed to be a partible property.
14. In OS 33/1961 the contention of Chattanatha Karayalar(Jnr.), who was the first defendant therein was that, the brothers had partitioned between them not only the ancestral properties but also some of the acquired properties to facilitate equalisation of shares, and that the said item 3 in schedule-I was also allotted to him for enjoyment along with the present plaint schedule. He had claimed that such allotment was under Ext.B5 Yadasth. Ext.B8 is the judgment in the said suit OS 33/1961. Issue No.28 raised therein reads thus: -
"28. Whether the building in Thaicaud, Trivandrum was allotted to the 1 st defendant ? Whether it is an annexe to the main building as alleged ?"R.F.A. No.588 of 2007
2025:KER:64889 -: 9 :- The "annexe" mentioned therein was the plaint I-schedule item 3 in that suit and the "main building" is the present plaint schedule. At paragraph 16 of Ext.B8 judgment it was observed, ".....It (Ext.B 29) also provides for a future division of the properties left by their father into three equal shares and pending such division income from those properties are to be shared equally by the three brothers. The plaintiffs' case is some of the properties left behind by the father had been divided later that is in or about year 1953 and the remaining properties left by the father are described in 2nd schedule of the plaint. 1st schedule catelogues the acquisition made by 1 st defendant during his term as the manager of the joint family. ....." Paragraph 22 of Ext.B8 judgment dealt with issue No.28 referred to above. Therein the court held, "This is concerned with Corporation building adjacent to the main house allotted to 1st defendant for his share in Thaicaud, Trivandrum. It is admittedly acquired property. The acquired property is contiguous to the ancestral Thaicaud residence allotted to 1st defendant. From this it cannot be stated that it is an annexe to the ancestral property though 1st defendant had annexed this to his ancestral residence. .....".".....Hence it cannot be stated that because of its contiguity to the main building it should have been purchased and allotted along with the main building to 1st defendant. It follows that it is not an annexe to the main building and it was not allotted to the 1st defendant." R.F.A. No.588 of 2007
2025:KER:64889 -: 10 :- As noticed, the "ancestral residence-main building"
mentioned therein is the present plaint schedule and the "adjacent - acquired property - annexe" was the schedule-I item 3 in that suit.
15. Ext.B3 is the replication filed by the plaintiffs, in reply to the written statement of the first defendant. Therein, at paragraph 7 it was again reaffirmed that the ancestral properties were divided after Ext.B29 agreement which disrupted the joint status. The same reads thus:-
"The agreement recording the terms of the division in status of 1-1-1126 was executed on 12-1-1126. The properties set out in Schedule I of the plaint were not divided and they continued to be common assets. The ancestral properties left by the father was subsequently divided."
From the above it is beyond cavil that the parties very well acknowledged that there was an earlier partition of the ancestral properties, and that all the ancestral properties except the "Adu" and "Mitta" lands, described in schedule-II to Ext.B1 plaint in OS 33/1961, were already partitioned.
16. Undisputedly, the 1st defendant therein namely, Chattanatha Karayar(Jnr.) was in possession of the present R.F.A. No.588 of 2007 2025:KER:64889 -: 11 :- plaint schedule. Evidently, the parties were very much conscious of the existence of the present plaint schedule property. They were very much aware that it was not included in the suit. A reading of Exts.B1 to B3, the plaint, written statement and the replication, along with Ext.B8 judgment therein, leaves no room of doubt that the non-inclusion of the present plaint schedule property as an item in the said suit was not an omission, but that the parties had no dispute that the said property was allotted to Chattanatha Karayalar(Jnr.) in an earlier partition between the brothers. As was noticed earlier, the plaintiff in OS 33/1961 was none other than Vaikuntaraman, the father of the present plaintiff. The plaintiff cannot urge a claim in respect of the ancestral property, which was not available for her predecessor, her claim being only as a legal heir of her father Vaikuntaraman.
17. Learned counsel for the respondent would argue that in OS 33/1961 Chattanatha Karayalar(Jnr.) had raised a plea R.F.A. No.588 of 2007 2025:KER:64889 -: 12 :- that, under Ext.B5 Yadasth there was a partition of the properties whereunder, the present plaint schedule along with the adjacent property which has been referred to in the earlier suit as "Annexe to the main building" was allotted to him. However, as per Ext.B8 judgment the court had negatived the claim. Ext.B5 Yadasth was not accepted by the court. The claim of Chattanatha Karayalar(Jnr.) of partition and separate allotment of the present plaint schedule property along with the annexe under Ext.B5 therein having been negatived by the court, the present claim by the successor-in-interest of Chattanatha Karayalar (Jnr.) with regard to exclusive title over the present plaint schedule property cannot be sustained, it is argued.
18. We are unable to agree with the submission. We had already noticed that the specific pleading in OS 33/1961 was that all the ancestral properties except the "Adu" and "Mitta" lands were partitioned between the brothers. Therefore, out of the ancestral properties, all that R.F.A. No.588 of 2007 2025:KER:64889 -: 13 :- remained for partition were the "Adu" and "Mitta" lands which were sought to be partitioned in Ext.B1 suit. The claim in OS 33/1961 was not in respect of the present plaint schedule property but was in respect of the adjacent property, which they called as, "Annexe". Therein the plea of Chattanatha Karayalar(Jnr.) that, under Ext.B5 Yadasth, along with the ancestral plaint schedule property, the annexe was also allotted to him. The said plea was negatived by the Court. However, that does not mean that there is a finding that the present plaint schedule property was not partitioned and allotted earlier. This is so in the light of the categoric admission in Ext.B1 plaint regarding partition of ancestral properties, which was noted above. In other words, in OS 33/1961 the fact that there was an earlier partition of the ancestral properties was not in dispute. So also it is important to note that, in that suit, the predecessor-in-interest of the present defendants 1 and 2 and the predecessor-in-interest of the present third R.F.A. No.588 of 2007 2025:KER:64889 -: 14 :- defendant, never raised a claim that the present plaint schedule property is partible.
19. There was yet another suit in the family as OS 97/1981. Ext.B14 is the plaint in the said suit. It was filed by Muthuswamy, one of the sons of the ancestor N.K.Chattanatha Karayalar, the head of the larger family. That was also a suit for partition. In the said suit, all the children of the original ancestor N.K.Chattanatha Karayalar, or their branches, were parties. Plaint schedule- I item No.2 therein, was the present plaint schedule property. Chattanatha Karayalar(Jnr.) had expired on 06.08.1972. Defendants 1 and 2 therein were his two daughters. Vaikuntaraman, the father of the present plaintiff, had died in the year 1967. His two sons, who are the present defendants 1 and 2, were the defendants 3 and 4. Retnavelu, who is the brother of Chattanatha Karayalar (Jnr.) and Vaikuntaraman and the husband of the present 3 rd defendant, was the 5th defendant therein. Ext.B17 is the R.F.A. No.588 of 2007 2025:KER:64889 -: 15 :- judgment in OS 97/1981. It reveals that, defendants 1 and 2 therein, ie. the legal heirs of Chattanatha Karayalar (Jnr.) had raised a plea of adverse possession and limitation. Defendants 3 and 4 therein, who are the brothers of the present plaintiff and the children of Vaikuntaraman, supported the claim of defendants 1 and 2 therein. Ext.B15 is the written statement filed in that suit by the 5 th defendant therein viz. Retnavelu. Therein he acknowledged that the plaint schedule property belonged absolutely to defendants 1 and 2 therein. At paragraph 6 of Ext.B15 it is pleaded thus :-
"6. Subramania Karayalar's eldest son S.Sattanatha Karayalar along with his parents and brothers was residing in Trivandrum and he became an Advocate and was practising in Trivandrum which was the seat of High Court of Travancore State. He became a member of the Legislative Assembly of Travancore later on an M.P and hence after his father's death in 1928 he was given the Trivandrum property by his brothers and he was enjoying the property as full owner with the consent and knowledge of all the members of the other branches including the Plaintiffs and defendants 3 to 15. At the time when the grand father of defendants 1 & 2 and father of 5 th defendant was enjoying the Trivandrum property there was only a small bungalow. After the death of his father S.Sattanatha Karayalar put up a big bungalow at a cost of Rs.50,000.00 R.F.A. No.588 of 2007 2025:KER:64889 -: 16 :- in 1932 and for the house warming ceremoney all his paternal uncless then living including the grand father of Plaintiffs 1 to 3 and 6 th defendant were present."
Further, at paragraph 8 of Ext.B15, the title of defendants 1 and 2 were acknowledged thus: -
"8. None of the parties to this suit except defendants 1 and 2 are entitled to the Plaint schedule item 2 in 2nd schedule viz. Trivandrum property."
As per Ext.B17 judgment, the court upheld the title of defendants 1 and 2 therein [the children of Chattanatha Karayalar(Jnr)] by virtue of adverse possession and limitation. Though the plaintiff herein was not a party in OS 97/1981, as was noticed, her brothers were parties as defendants 3 and 4. They along with Retnavelu [the brother of Chattanatha Karayalar(Jnr)] who was the 5th defendant therein, had asserted, affirmed and acknowledged the exclusive title of Chattanatha Karayalar(Jnr.) and his successors over the present plaint schedule property. R.F.A. No.588 of 2007
2025:KER:64889 -: 17 :-
20. OS 97/1981 was a suit in the larger family. As noticed, all the children of the original ancestor N.K.Chattanatha Karayalar or their branches were adequately represented in the suit. Out of the three children of Vaikuntaraman, except the plaintiff, the other two sons were parties as defendants 3 and 4. The interests of the group Vaikuntaraman was sufficiently and substantially represented. There is no case for the plaintiff that her brothers had colluded in the said suit with the branch of Chattanatha Karayalar(Jnr.) in acknowledging their title over the present plaint schedule property.
21. In Thayyil Gopalan and Ors. v. Thayyil Madhavi and Ors. (2018 (5) KHC 871) a learned single Judge of this Court explaining the doctrine of substantial representation held thus: -
"8. The doctrine of substantial representation promotes substantial justice based on principle of equity, laches and acquiescence and avoids multiplicity of proceedings. The principle behind it can be made applicable when there is a substantial representation of common estate, either in a suit or proceedings, when identical or common interests are involved. When the estate or the common interest was substantially represented, the result would bind on the R.F.A. No.588 of 2007 2025:KER:64889 -: 18 :- estate and all those who are having same interest over the estate irrespective of whether they were made as parties to the proceedings or not. The only exception is fraud or collusion in obtaining the decree. A mere non-contest of the suit or the proceedings by the parties does not itself satisfy either fraud or collusion though the same are relevant factors to be looked into in answering fraud or collusion in obtaining a decree. There should be evidence that the decree was obtained by playing fraud or collusion and the burden would be on the person who claims it, otherwise the liability under doctrine of substantial representation would operate against all those who hold the same interest or identical interest with that of parties to the suit or the proceedings over the estate."
Therein this Court had referred to the judgment of the Apex Court in N.K.Mohd. Sulaiman Sahib v. N.C. Mohd. Ismail Saheb and Others (AIR 1966 SC 792) wherein it was held that, where on account of a bona fide error, a suit is instituted against a person who is not representing the estate of a deceased person, in the absence of fraud or collusion or other grounds which taint the decree, the decree binds the estate, even though the persons interested are not brought on record. It was also held that, "this principle is a part of law of procedure which regulates all matters going to the remedy and applies to all parties irrespective of their personal law" . R.F.A. No.588 of 2007
2025:KER:64889 -: 19 :- Therefore, it is possible to say that the decree in OS 97/1981 binds the present plaintiff also.
22. Incidentally we also notice that, pending the appeal, the rights of the plaintiff was purchased by the appellant-4th defendant. Therefore, the contention of the plaintiff that she was not a party to OS 97/1981 and that the decree does not bind her, does not survive any more.
23. While considering the claim of defendants 1 to 3, as noticed, in OS 97/1981 the present defendants 1 and 2 were defendants 3 and 4. The husband of the third defendant was the 5th defendant in OS 97/1981; she claims right in the present suit only as his legal heir. Therefore, the pleadings and the decree in OS 97/1981 binds the present defendants 1 to 3. Hence, the claim of the present defendants 1 to 3 for partition of the plaint schedule property, has no leg to stand.
24. In the light of the admissions made in Ext.B1 plaint in OS 33/1961 with regard to the partition of the R.F.A. No.588 of 2007 2025:KER:64889 -: 20 :- ancestral properties, and the admissions in OS 97/1981 by the present defendants 1 and 2 and the predecessor of the 3rddefendant, acknowledging the exclusive right of Chattanatha Karayalar(Jnr.) over the present plaint schedule property, it would be appropriate to refer to the evidentiary value of admissions made by the parties in their pleadings. In Nagindas Ramdas v. Dalpatram Ichharam alias Brijram Others (AIR 1974 SC 471) the Apex Court highlighted that, admissions by pleadings stand on a higher pedestal, compared to other admissions. The Apex Court held: -
"..... Admission is true and clear are by far the best proof of the facts admitted. Admissions in pleadings or judicial admission admissible under S.58 of the Evidence Act, made by the parties or their agents at or before the hearing of the case, stand on a higher footing than evidentiary admission. The former class of admissions are fully binding on the party that makes them and constitute a waiver of proof. They by themselves can be made the foundation of the rights of the parties. On the other hand evidentiary admissions which are receivable at the rival as evidence are by themselves not conclusive. They can be shown to be wrong."
Therefore, admissions in pleadings are binding on the maker. R.F.A. No.588 of 2007
2025:KER:64889 -: 21 :-
25. The admissions made by Vaikuntaraman, who is the predecessor-in-interest of the plaintiffs and defendants 1 and 2, and by his brother Retnavelu, who is the predecessor- in-interest of the present third defendant, that there had been a partition of ancestral properties excluding the "Adu" and "Mitta" lands, which were sought to be partitioned under OS 33/1961, have already been taken note of. Same is the case with regard to the acknowledgment made by defendants 1 and 2 herein and by the predecessor-in -interest of the third defendant herein, in OS 97/1981, affirming exclusive title over the present plaint schedule property with Chattanatha Karayalar(Jnr.). It is important to note that, in OS 97/1981 a claim for partition of the present plaint schedule property was not raised by the present defendants 1 and 2 and the predecessor-in-interest of the present third defendant, though they were parties. On the other hand, they in unison, asserted that the title over the plaint schedule property vested with Chathanatha Karayalar (Jnr.). R.F.A. No.588 of 2007
2025:KER:64889 -: 22 :- Significantly, neither the plaintiff nor defendants 1 to 3 mounted the witness box and even attempted to explain the stance that was adopted by them or their predecessors in the earlier litigations.
26. The fact that Chattanatha Karayalar(Jnr.) and his successors were in admitted possession of the property, coupled with the judicial admission in O.S.33 of 1961, by Vaikundaraman, the predecessor-in-interest of the present plaintiff and defendants 1 and 2, and of Retnavelu, the predecessor-in-interest of the present 3 rd defendant, that all the ancestral properties except the "Adu" and "Mitta" lands were partitioned, and the conspicuous non-inclusion of the property in O.S.33 of 1961 for partition, when considered along with the affirmation in OS 97/1981 by the present defendants 1 and 2 and by the predecessor in interest of the 4th defendant, of the exclusive title of Chattanatha Karayalar(Jnr.) over the property, leads to the conclusion that, in a partition between the three brothers, R.F.A. No.588 of 2007 2025:KER:64889 -: 23 :- the present plaint schedule property was allotted exclusively to Chattanatha Karayalar(Jnr.) and that title vested with him. We find accordingly.
27. The respondents would contend that the appellant- 4th defendant, has no consistent case regarding the derivation of title. While in OS 33/1961, title was claimed under a Yadasth, in OS 97/1981, the claim of title was by adverse possession. In Ext.B10 Partition Deed, followed by Exts.B11 and B12 documents, between the legal heirs of Chattanatha Karayalar(Jnr.), the property was referred to as his acquisition. In Exts.A1 and A2 conveyance obtained by the 4th defendant, the title referred to is, a compromise. On the face of such inconsistencies, the claim of the 4 th defendant regarding exclusive title over the property is liable to be negatived, it is argued. It is also argued that, the above constitutes fraud rendering the decree in OS 97/1981 void.
R.F.A. No.588 of 2007
2025:KER:64889 -: 24 :-
28. We do not find any merit in the contention. In OS 33/1961 the dispute was between the three brothers. As already noticed, the said suit did not relate to the present plaint schedule property. It is true that, therein the predecessor-in-interest of the 4th defendant herein had claimed allotment of the adjoining property (the "annexe property") under Ext.B5 Yadasth, and the said document was not accepted by the Court. However, the claim of title by Chattanatha Karayalar(Jnr.) was based on a partition and the plaintiffs themselves had admitted about an oral partition with regard to the ancestral properties. OS 97/1981 was by the uncle of the three brothers. The plea of adverse possession was against him. Therein the present defendants 1 to 3 or their predecessors asserted that the property belonged to Chattanatha Karayalar(Jnr.). The mere fact that the title traced was not uniform would not affect the title once it is found that title vested with Chattanatha Karayalar(Jnr).
R.F.A. No.588 of 2007
2025:KER:64889 -: 25 :-
29. Elaborate arguments were raised by either side on res judicata and adverse possession. Reference is to the two earlier litigations ie. OS 33/1961 and OS 97/1981. Various decisions were cited across the bar regarding the same. As noticed, the plaint schedule property herein was not a subject matter in OS 33/1961. The claim therein was not in respect of the ancestral property but in respect of a subsequently acquired property while Chattanatha Karayalar(Jnr.) was in management. The title over the present plaint schedule property was not at all in issue in the said suit. With regard to OS 97/1981, as was noticed above, the claim of adverse possession was against the plaintiff therein and not in between the brothers or their successors. Therefore, the arguments on res judicata and adverse possession, based on OS 33/1961 and OS 97/1981, does not have any significance.
30. Pending the appeal, the 4 th defendant purchased the rights of the plaintiff under the preliminary decree. The R.F.A. No.588 of 2007 2025:KER:64889 -: 26 :- learned counsel for the respondent would raise an argument that the 4th defendant has, by their conduct, accepted the preliminary decree and are estopped from arguing against the same. We find that the argument has no substance. There has been no representation on the part of the appellant as against the respondents, to make them believe some fact to be true and to act upon such representation to their prejudice. The appellant has, pending their appeal, to avert any claims from the plaintiff, chosen to purchase the plaintiff's right as declared under the decree. That does not amount to estoppel, to operate against the appellant-4 th defendant.
31. Though the trial court held the property to be partible, it had not declared the shares of the defendants. The suit being one for partition, the status of all the parties are akin to that of plaintiffs. This court has in Thomas K.T. v. Anna @ Accamma John and others [2018 (3) KHC 749] held that, in a preliminary decree the court is bound to declare the R.F.A. No.588 of 2007 2025:KER:64889 -: 27 :- shares/rights of the parties to the suit and it is not dependent on the payment of court fees. Payment of court fee can be insisted only for separation of the share. The trial court was to declare the shares of the defendants also. Anyhow, defendants 1 to 3 have filed IA 696/2023 before the trial court seeking passing of a supplementary preliminary decree to declare their shares over the property. The very partibility of the property is still in issue. Hence the 4th defendant who claims impartibility of the property has a legal right to maintain the appeal to challenge the decree declaring partibility.
32. Incidentally, we also do notice that, Subramonya Karayalar had died in the year 1928. Succession had opened then. The present suit for partition is filed in the year 2002.
33. On the above discussions, we hold that the plaint schedule property belongs to the 4th defendant and the claim for partition by the other parties to the suit is bound to R.F.A. No.588 of 2007 2025:KER:64889 -: 28 :- fail. The impugned judgment is liable to be interfered with.
In the result, the appeal is allowed. The decree and judgment of the trial court are set aside and the suit will stand dismissed. No costs.
Sd/-
SATHISH NINAN JUDGE Sd/-
P. KRISHNA KUMAR JUDGE kns/-
//True Copy// P.S. To Judge 2025:KER:64889 APPENDIX OF RFA 588/2007 RESPONDENT EXHIBITS Exhibit D1(a) CERTIFIED COPY OF THE SALE DEED NO. 226 OF 2020 DATED 31.01.2020 OF TRIVANDRUM SUB REGISTRY OFFICE.
PETITIONER ANNEXURES Annexure A1 TRUE COPY OF THE FRESH CERTIFICATE OF INCORPORATION CONSEQUENT ON CHANGE OF NAME ISSUED BY REGISTRAR OF COMPANIES TAMILNADU, CHENNAI DATED 04-12-2000.
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INCORPORATION ISSUED BY REGISTRAR OF
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RESPONDENT ANNEXURES
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