Kerala High Court
Gopalan Rajendran vs Sundaresan Jayan on 27 August, 2025
RSA No.304 of 2022 1 2025:KER:65704
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE EASWARAN S.
WEDNESDAY, THE 27TH DAY OF AUGUST 2025 / 5TH BHADRA, 1947
RSA NO. 304 OF 2022
AGAINST THE JUDGMENT AND DECREE DATED 2.11.2021 IN AS NO.435 OF
2015 OF ADDITIONAL DISTRICT COURT, NEYYATTINKARA ARISING OUT OF THE
JUDGMENT AND DECREE DATED 25.11.2009 IN OS NO.516 OF 2007 OF II
ADDITIONAL MUNSIFF COURT-II, NEYYATTINKARA
APPELLANTS/APPELLANTS/PLAINTIFFS :
1 GOPALAN RAJENDRAN
AGED 56 YEARS
RESIDING AT PARAKUZHI PUTHEN VEEDU,
THLAYAL DESOM, ATHIYANNOOR VILLAGE
THIRUVANANTHAPURAM - 695123
2 DEVAKI SOBHANA,
AGED 54 YEARS, RESIDING AT PARAKUZHI PUTHEN VEEDU,
THLAYAL DESOM, ATHIYANNOOR VILLAGE
THIRUVANANTHAPURAM - 695123
3 DEVAKI JAYAKUMARI,
AGED 50 YEARS, RESIDING AT PARAKUZHI PUTHEN VEEDU ,
THLAYAL DESOM, ATHIYANNOOR VILLAGE,
THIRUVANANTHAPURAM - 695123
4 GOPALAN JAYACHANDRAN,
AGED 48 YEARS, RESIDING AT PARAKUZHI PUTHEN VEEDU,
THLAYAL DESOM, ATHIYANNOOR VILLAGE
THIRUVANANTHAPURAM - 695123.
5 DEVAKI VINEETHA,
AGED 46 YEARS,
RESIDING AT KUNDAYATHU KONATHU SHAIJA BHAVAN,
THATHIYOOR DESOM, PERUMKADAVILA VILLAGE,
THIRUVANANTHAPURAM-695 124.
BY ADV SHRI.R.S.KALKURA
RSA No.304 of 2022 2 2025:KER:65704
RESPONDENTS/RESPONDENTS 2 TO 18/DEFENDANTS 2 TO 12 & LEGAL
REPRESENTATIVES OF DEFENDANTS 1 :
1 SUNDARESAN JAYAN
AGED 50 YEARS
ARINTHOTTAM VEEDU, ARUMANOOR DESOM
THIRUVANANTHAPURAM-695525
2 NALINI NEENU,
AGED 48 YEARS, ARINTHOTTAM VEEDU,
ARUMANOOR DESOM THIRUVANANTHAPURAM-695525.
3 KESAVAN SREEDHARAN (DELETED)
81 YEARS, PUNNAKULAM KAZHUVOOR DESOM,
KARUMKULAM VILLAGE NEYYATTINKARA,
THIRUVANANTHAPURAM-695526
(3RD RESPONDENT DELETED FROM THE PARTY ARRAY AT THE RISK
OF THE APPELLANT AS PER THE ORDER DATED 21/08/2025 IN
I.A.NO.6/2025 IN RSA 304/2022)
4 PRASANNAKUMARI,
AGED 60 YEARS, RESIDING AT CHELLAMMA BHAVAN,
CHANTHIRAM ARUMANOOR DESOM,
THIRUPPURAM VILLAGE
THIRUVANANTHAPURAM - 695133
5 VISWAMBHARAN JIVAN KUMAR,
AGED 40 YEARS, RESIDING AT CHELLAMMA BHAVAN,
CHANTHIRAM ARUMANOOR DESOM,
THIRUPPURAM VILLAGE
THIRUVANANTHAPURAM - 695133
6 JILEEKUMAR, AGED 40 YEARS,
S/O. VISWAMBHARAN, RESIDING AT CHELLAMMA BHAVAN,
CHANTHIRAM ARUMANOOR DESOM,
THIRUPPURAM VILLAGE,
THIRUVANANTHAPURAM - 695133
7 VISWAMBHARAN PRAVINKUMAR,
AGED 35 YEARS, RESIDING AT CHELLAMMA BHAVAN,
CHANTHIRAM ARUMANOOR DESOM,
THIRUPPURAM VILLAGE
THIRUVANANTHAPURAM - 695133
RSA No.304 of 2022 3 2025:KER:65704
8 PRASANNAKUMARI SEETHA LEKSHMI,
AGED 30 YEARS, RESIDING AT CHELLAMMA BHAVAN,
CHANTHIRAM ARUMANOOR DESOM,
THIRUPPURAM VILLAGE
THIRUVANANTHAPURAM - 695133
9 KESAVAN RAMACHANDRAN,
AGED ABOUT 65 YEARS, PATTIYKKALA THOTTATHU VEEDU,
THIRUPPURAM DESOM RESIDING AT CHELLAMMA BHAVAN,
CHANTHIRAM ARUMANOOR DESOM,
THIRUPPURAM VILLAGE
THIRUVANANTHAPURAM - 695133
10 CHELLAMMA RADHA,
AGED 60 YEARS, AJI BHAVAN,
PANICKER THOTTATHIL ARUMANOOR DESOM,
THIRUPPURAM, THIRUVANANTHAPURAM - 695133
11 KESAVAN NATARAJAN,
AGED 55 YEARS OF PUTTUMONKAVU ROADARIKATHU VEEDU,
ARUMANOOR DESOM, RESIDING AT CHELLAMMA BHAVAN,
CHANTHIRAM ARUMANOOR DESOM,
THIRUPPURAM VILLAGE
THIRUVANANTHAPURAM - 695133
12 PADMAVATHI, 72 YEARS
W/O. LATE KESAVAN KRISHNAN,
PUTTUMONKAVU VEEDU,
ARUMANOOR DESOM THIRUPPURAM VILLAGE
THIRUVANANTHAPURAM-695133.
13 JAYASREE, 44 YEARS,
D/O. PADMAVATHI, PUTTUMONKAVU VEEDU,
ARUMANOOR DESOM THIRUPPURAM VILLAGE
THIRUVANANTHAPURAM - 695133
14 VIJAYASREE,
AGED 42 YEARS, PUTTUMONKAVU VEEDU,
ARUMANOOR DESOM THIRUPPURAM VILLAGE
THIRUVANANTHAPURAM - 695133
15 MINISREE,
AGED 39 YEARS, PUTTUMONKAVU VEEDU,
ARUMANOOR DESOM THIRUPPURAM VILLAGE
THIRUVANANTHAPURAM - 695133
16 RAJASREE,
AGED 37 YEARS, PUTTUMONKAVU VEEDU,
ARUMANOOR DESOM THIRUPPURAM VILLAGE
THIRUVANANTHAPURAM - 695133
RSA No.304 of 2022 4 2025:KER:65704
17 SAMPATH,
AGED 35 YEARS, S/O. KRISHNAN
PUTTUMONKAVU VEEDU,
ARUMANOOR DESOM THIRUPPURAM VILLAGE
THIRUVANANTHAPURAM - 695133
BY ADV SHRI.ARUN V.G., R12 TO R17 (K/795/2004)
THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON
27.08.2025, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
RSA No.304 of 2022 5 2025:KER:65704
EASWARAN S., J.
--------------------------------
R.S.A. No.304 of 2022
-------------------------------------
Dated this the 27th day of August, 2025
JUDGMENT
This appeal arises from the judgment and decree in O.S. No.516 of 2007 on the files of the II Additional Munsiff Court, Neyyattinkara, as confirmed by the Additional District Court, Neyyattinkara in A.S. No.435 of 2015.
2. In the nature of the order that this Court proposes to pass in this appeal, a detailed elaboration of the facts may not be required.
3. The suit, O.S. No.516 of 2007, was one filed for partition. After a full-fledged trial, the suit was dismissed by the trial court by judgment and decree dated 25.11.2009. Aggrieved by the judgment and decree, the plaintiffs filed A.S. No.435 of 2015 before the Additional District Court, Neyyattinkara. It is reported that during the pendency of the appeal, the 2nd respondent in the appeal passed away on 21.3.2020. The appeal was dismissed by judgment dated 2.11.2021. It is not disputed that, ultimately, if this Court were to reverse the judgment and decree rendered by the courts below; certainly, the rights of the deceased 2nd respondent will be affected. In such circumstances, while admitting the appeal on 21.8.2025, this RSA No.304 of 2022 6 2025:KER:65704 Court framed the following question of law.
(i) Whether the judgment of the First Appellate Court is a nullity, since it is passed with the dead person on the party array?
4. Heard Sri. R.S. Kalkura, the learned counsel appearing for the appellants and Sri. Arun V.G., the learned counsel appearing for the respondents 12 to 17.
5. The learned counsel for the appellants pointed out that going by the decision of this Court in Assy Amma v. Aisabi [1976 KLT 101], when an appellate decree is passed without noticing the death of a respondent, the decree is nullity and that the proper procedure is to set aside the ineffective decree of the first appellate court, giving opportunity to the appellant to take steps to have the abatement of the appeal set aside.
6. On consideration of the principles laid down by this Court, in Assy Amma v. Aisabi [1976 KLT 101], this Court is of the view that the question of law is to be answered in favour of the appellants and the judgment and decree in A.S. No.435 of 2015 on the files of the Additional District Judge, Neyyattinkara is liable to be set aside. Accordingly, this appeal is allowed by setting aside the judgment and decree in A.S. No.435 of 2015 on the files of the Additional District Court, Neyyattinkara. The appeal will stand restored to the files of RSA No.304 of 2022 7 2025:KER:65704 the Additional District Court, Neyyattinkara. The appellants shall appear before the Additional District Court, Neyyattinkara on 19.9.2025. On appearance, the appellants shall file forthwith the necessary applications for setting aside the abatement, impleading, and condonation of delay. The Additional District Judge shall consider the said application and pass appropriate orders in accordance with law and thereafter proceed with the consideration of the appeal afresh on merits.
Sd/-
EASWARAN S. JUDGE NS