Kerala High Court
K.Raghunathan Nair vs 27. M.Veena
Author: B. Kemal Pasha
Bench: B.Kemal Pasha
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR. JUSTICE B.KEMAL PASHA
THURSDAY, THE 27TH DAY OF JULY 2017/5TH SRAVANA, 1939
RSA.No. 639 of 2003 (A)
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AGAINST THE JUDGMENT AND DECREE DATED 31-10-2002 IN AS 91/1996
AND CROSS APPEAL of SUB COURT, PAYYANNUR
AGAINST THE JUDGMENT AND DECREE DATED 30.07.1996 IN OS
189/1995 of MUNSIFF COURT, PAYYANNUR
APPELLANT/APPELLANT/DEFENDANT NO.19 :
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K.RAGHUNATHAN NAIR,
S/O.LATE KUNHI KELAPPAN NAMBIAR,
TEACHER, DURGA HIGH SCHOOL, KANHANGAD,
KASARAGOD DISTRICT.
BY ADVS.SRI.K.RAMACHANDRAN
SRI.S.SREEDEV
SRI.P.RAMACHANDRAN
SRI.K.V.GOVINDAN NAIR
RESPONDENTS/RESPONDENTS/PLAINTIFFS & DI TO D18 AND D20 TO
D26):
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1. M.BHASKARAN, S/O.GOVINDAN NAMBIAR,
MUNDAYAT HOUSE, VELLUR AMSOM AND DESOM,
P.O.VELLUR, TALIPARAMBA TALUK.
* 2. A. MADHAVI AMMA, W/O.LATE KRISHNAN NAMBIAR,
C/O.SATHYABHAMA, AROLI P.O., KANNUR DISTRICT. (DIED)
(LEGAL HEIRS RECORDED).
3. A.SATHYABHAMA, W/O.LATE NARAYANAN NAIR,
HOUSE WIFE, AROLI AMSOM AND DESOM, P.O.AROLI,
KANNUR DISTRICT.
4. A.SANTHA KUMARI, D/O.LATE KRISHNAN NAMBIAR,
W/O.KARUNAKARAN ADIYODI, RAMAN KULANGARA,
VELLUR AMSOM & DESOM, P.O.VELLUR,
THALIPARAMBA TALUK.
RSA.No. 639 of 2003 (A)
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5. A.RADHAKRISHNAN, S/O.KRISHNAN NAMBIAR,
FACTORY MANAGER (THANE WORKS),
PLOT NO.68, ROAD NO.16 INDUSTRIAL ESTATE,
THANE MAHARASHTRA STATE, PIN-400 604.
6. A. NIRMALA, D/O. LATE KRISHNAN NAMBIAR,
W/O.LATE RAGHAVA PODUVAL, A/40/004
SUNDARAM IST CROSS ROAD, SWAMI SAMANTH NAGAR,
ANDHERI (W), BOMBAY - 53.
7. A.SASIDHARAN, S/O.KRISHNAN NAMBIAR, AGRICULTURIST,
AMBALAYAM, VELLUR AMSOM & DESOM, P.O.VELLUR,
TALIPARAMBA TALUK.
8. A.MURALI, S/O.LATE KRISHNAN NAMBIAR, AMBALAYAM,
VELLUR AMSOM AND DESOM, P.O.VELLUR,
TALIPARAMBA TALUK.
9. A.SUDHA, D/O.LATE KRISHNAN NAMBIAR, HOUSE WIFE,
VELLUR AMSOM DESOM, P.O.VELLUR, TALIPARAMBA TALUK.
10. A.GEETHA, D/O.LATE KRISHNAN NAMBIAR,
AMBALAYAM, VELLUR AMSOM DESOM, P.O.VELLUR,
TALIPARAMBA TALUK.
11. A.INDIRA, D/O.LATE KRISHNAN NAMBIAR, AMBALAYAM,
VELLUR AMSOM DESOM, P.O.VELLUR, TALIPARAMBA TALUK.
12. MUNDAYAT LAKSHMI AMMA, W/O. LATE GOVINDAN NAMBIAR,
VELLUR AMSOM AND DESOM, P.O.VELLUR,
TALIPARAMBA TALUK.
13. M.JANARDHANAN, S/O.LATE GOVINDAN NAMBIAR,
(REGD.HEAD MASTER) VELLUR AMSOM DESOM,
P.O.VELLUR, TALIPARAMBA TALUK.
*** 14. M.THANKAMANI, D/O.LATE GOVINDAN NAMBIAR,
HOUSE WIFE, VELLUR AMSOM AND DESOM, P.O.VELLUR,
TALIPARAMBA TALUK. (DIED)
(LEGAL HEIRS IMPLEADED AS ADDL.R27 AND ADDL.R28).
15. M.SARASWATHI, D/O.LATE GOVINDAN NAMBIAR,
HOUSE WIFE, VELLUR AMSOM AND DESOM, P.O.VELLUR,
TALIPARAMBA TALUK.
16. M.BHARATHA RAJAN NAMBIAR,
S/O.LATE GOVINDAN NAMBIAR, CLERK/CUM TYPIST,
URBAN CO-OP. RURAL BANK, PAYANGADI,
RESIDING AT VELLUR AMSOM AND DESOM,
P.O.VELLUR, TALIPARAMBA TALUK.
RSA.No. 639 of 2003 (A)
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17. M.RAJESWARI, D/O.LATE GOVINDAN NAMBIAR,
TEACHER, KUTTIKOLE AUP SCHOOL, P.O.KUTTIKOLE,
RESIDING AT VELLUR AMSOM AND DESOM, P.O.VELLUR,
TALIPARAMBA TALUK, KANNUR DISTRICT.
18. M. VANAJAKSHI, D/O. LATE GOVINDAN NAMBIAR, TEACHER,
RESIDING AT VELLUR AMSOM AND DESOM, P.O.VELLUR,
TALIPARAMBA TALUK.
** 19. KODOTH PADMAVATHI AMMA,
W/O. LATE KUNHI KELAPPAN NAMBIAR,
NEAR DURGA HIGH SCHOOL, KOTTACHERRY,
KANHANGAD, KASARAGOD DT. (DIED)
(LEGAL HEIRS RECORDED).
20. K.LAKSHMI KUTTY AMMA,
D/O.LATE KUNHIKELAPPAN NAMBIAR,
W/O.C.P.GOPALAN NAIR, ADVOCATE,
KANHANGAD P.O. KASARAGOD DT.
21. K.THAMPAN NAIR, S/O.LATE KUNHIKELAPPAN NAMBIAR,
TEACHER, DURGA HIGH SCHOOL, KANHANGAD P.O.,
KASARAGOD DT.
22. K.VARIJAKSHAN NAIR, S/O.LATE KUNHIKELAPPAN NAMBIAR,
SYNDICATE BANK, UDUMA P.O., KASARAGOD DISTRICT.
23. K.PRAKASAN NAIR, S/O.LATE KUNHIKELAPPAN NAMBIAR,
NEAR DURGA HIGH SCHOOL, KANHANGAD, P.O.KANHANGAD,
HOSDURG TALUK.
24. K.MADUSOODHANAN, S/O.LATE KUNHIKELAPPAN NAMBIAR,
NEAR DURGA HIGH SCHOOL, KANHANGAD, P.O.KANHANGAD,
HOSDURG TALUK.
25. THE ASSISTANT EDUCATIONAL OFFICER, PAYYANNUR,
P.O.PAYYANNUR.
26. THE DISTRICT EDUCATIONAL OFFICER, KANNUR,
P.O.KANNUR.
*** ADDITIONAL RESPONDENTS:
27. M.VEENA, D/O.M.THANKAMANI,
MUNDAYATT HOUSE, VELLOOR AMSOM DESOM,
VELLOOR P.O., TALIPARAMBA, KANNUR DISTRICT.
28. M.VINOD KUMAR, S/O.M.THANKAMANI,
MUNDAYATT HOUSE, VELLOOR AMSOM DESOM,
VELLOOR P.O., TALIPARAMBA, KANNUR DISTRICT.
RSA.No. 639 of 2003 (A)
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* AS PER THE ORDERS DATED 04.12.2015 IN I.A.NO.2140/2012,
R3 TO R11 ARE RECORDED AS THE LEGAL REPRESENTATIVES OF
DECEASED R2.
** AS PER THE ORDER DATED 04.12.2015 IN I.A.NO.2141/2012,
APPELLANT AND RESPONDENTS 20 TO 24 ARE RECORDED AS THE
LEGAL REPRESENTATIVES OF DECEASED 19TH RESPONDENT.
*** LEGAL REPRESENTATIVES OF DECEASED 14TH RESPONDENT ARE
IMPLEADED AS ADDITIONAL RESPONDENTS 27 AND 28 AS PER
ORDER DATED 04.12.2015 IN I.A.NO.2136/2012.
R1 BY ADV. SRI.N.M.MADHU
R5 & R10 BY RAJESH V. NAIR
R7 BY ADV. SRI.ABHILASH.K.S.
R8 BY ADVS. SRI.R.PARTHASARATHY
SRI.C.JAYACHANDRAN
R12, R13 & R15 TO R18 BY ADV. SRI.TOMY SEBASTIAN
R12, R13, R15 TO R18, R27 & R28 BY
ADV. SRI.C.S.GOPALAKRISHNAN NAIR
R20, R21, R23 & R24 BY ADVS. SRI.K.SHRIHARI RAO
SMT.N.SHOBHA
R24 & R25 BY GOVERNMENT PLEADER SMT.K.B.SONY
THIS REGULAR SECOND APPEAL HAVING BEEN FINALLY HEARD
ON 27-07-2017, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
DSV/-
B. KEMAL PASHA, J.
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R.S.A.No.639 of 2003
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Dated this the 27th day of July, 2017
J U D G M E N T
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Challenging the concurrent findings entered by the Munsiff's Court, Payyannur in O.S.No.189/1995, followed by those of the Subordinate Judge's Court, Payyannur in A.S.No.91/1996 and the Cross Appeal, the 19th defendant in O.S.No.189/1995 has come up with this Regular Second Appeal.
2. The 6th defendant in the suit had preferred the Cross Appeal challenging the very same judgment and decree of the trial court. The 19th defendant challenged the judgment and decree passed by the trial court through A.S.No.91/1996.
R.S.A.639/03 : 2 :
3. The suit is one for partition. The trial court decreed the suit by granting 35 shares out of 840 equal shares to the plaintiff, 28 shares out of 840 equal shares each to defendants 1 to 10, 35 shares out of 840 equal shares each to defendants 11 to 17, and 40 shares out of 840 equal shares each to defendants 18 to 24. Both the Appeal and the Cross Appeal were dismissed.
4. The 6th defendant, who preferred the Cross Appeal, has come up in second appeal through R.S.A.No.263/2012, with a petition to condone the delay of 3123 days in filing the appeal. In the suit as well as the Appeal and Cross-Appeal, the main question was regarding the interpretation of Exhibit-B1 document. The said document was marked as Exhibit-A1 also. The said document with the nomenclature "Nischayarekha" was executed as Document No.2317/1942 by late.Krishnan Nambiar, Govindan Nambiar and Kunhikelappan Nambiar. The parties presently in the party R.S.A.639/03 : 3 :
array are the legal heirs of the said executants of Exhibit-A1.
5. On going through the document and on hearing either side, it seems that Exhibit-A1 document does not create any relinquishment of their rights over the properties in question. So long as there is no valid relinquishment, the claim of partition over the properties in question cannot be denied. Evidently, the suit did not involve any question of law. Similar, was the case with the Appeal as well as the Cross Appeal also. Presently, even though the 19th defendant has chosen to file this R.S.A., it seems that it does not give rise to any substantial question of law; not even question of law. It is true that the 6th defendant, who also has chosen to file a second appeal belatedly, is also eager to get R.S.A.No.639/2013 admitted. At the same time, I do not find any ground to admit the said appeal, when it does not involve any substantial question if law.
In the result, this R.S.A. is not maintainable and hence, R.S.A.639/03 : 4 :
dismissed. There is no order as to costs. All the pending interlocutory applications in this Regular Second Appeal are closed.
Sd/-
B.KEMAL PASHA, JUDGE DSV/28/7/17 // True Copy // P.A. To Judge