Kerala High Court
B.S.Rajan vs Thomas P.Daniel on 3 February, 2011
Author: M.N. Krishnan
Bench: M.N.Krishnan
IN THE HIGH COURT OF KERALA AT ERNAKULAM
AS.No. 533 of 2002(E)
1. B.S.RAJAN, VADAKKETHALAKKAL,
... Petitioner
Vs
1. THOMAS P.DANIEL, 9, SANKER LOK,
... Respondent
For Petitioner :SRI.G.D.PANICKER
For Respondent :SRI.CHERIAN GEE VARGHESE
The Hon'ble MR. Justice M.N.KRISHNAN
Dated :03/02/2011
O R D E R
M.N. KRISHNAN,J.
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A.S.NO.533 OF 2002
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Dated this the 3rd day of February, 2011.
J U D G M E N T
This is an appeal preferred against the judgment and decree of the Subordinate Judge's Court, Mavelikkara in O.S.No.500/1995. The suit is one for declaration of title and possession, fixation and putting up of boundary and for injunction. After hearing both sides the facts of the case would be as follows:
2. The property originally belonged to one Chandy Kathanar, who executed a Will 6/1087 M.E whereby bequeathing the property in favour of his two sons namely Idichandi and Daniel. Idichandy had three children namely P.I. Simon, P.I. Alexander and P.I. Thankamma. Daniel had a son named M.D. Thomas and successors of M.D. Thomas are Thomas P. Daniel and Alexander. The plaintiff is the son of P.I. Simon who died in 1952. Unfortunately before the trial court the Will was not even exhibited and therefore the court did not have the privilege to look into the Will even. Thereafter a certified copy of the Will is : 2 : A.S.NO.533 OF 2002 produced before this Court. It is an admitted fact that P.I. Simon had taken a loan from a bank and towards the satisfaction of the loan the property was sold in auction and bid by the bank. The other brother namely Alexander moved a claim application contending for the position that over the property of Idichandy, the two sons namely Simon and Alexander have got equal right and therefore the share of P.I. Alexander could not have been sold for the amount due from Simon. It is submitted that a final decree application was filed therein carving out of 56 cents were made in favour of the bank. So it has to be understood that the share of Simon that had been carved out and given out to the bank. Necessarily there must be a property which belonged to P.I. Alexander. Alexander died in the year 1964 and on his death his wife Susan was alive and she died in 1971. Since Alexander and Susan did not have any children, it is contended that under the provisions of the Christian Succession Act, the property had devolved upon the children of P.I. Simon and therefore the plaintiff may get a right over the property. So far as the branch of Daniel is concerned, : 3 : A.S.NO.533 OF 2002 if the Will is interpreted as one whereby Idichandey and Daniel have equal rights over the property, then Daniel may be entitled to one half of the property described in the Will.
It is the property that can be alone carved out in favour of Daniel and his branch.
3. We are not in a position to find out from the materials before the court even now that at any point of time Idichandy and Daniel did divide the property among themselves and therefore it is also a matter that requires consideration. If the property other than the property sold has been lying as common, then the question that may have to be decided is what will be Alexander's share and if so that property may devolve upon the children of P.I. Simon in the case. If there is a carved out property for Alexander, then the question would have been finally settled. We do not have any materials before the court to show such a thing and what the defendant contended is M.D. Thomas, son of Daniel had executed a Will i.e., Ext.B1 and under the Will the entire property belonged to the person claiming under Ext.B1. Until and unless there is a clear demarcation of the property : 4 : A.S.NO.533 OF 2002 belonged to Idichandy and Daniel, even if it is in equal halves one cannot finally determine the issue for the reason that Daniel's branch will be only entitled to the right namely at the most half the right under 1087 Will. Unfortunately without looking into these aspects, a suit is filed for declaration and fixation of boundaries and the court below has rightly held that the Will of 1087 was not exhibited , no Commission was taken out and it was impossible to get the particulars for granting a decree in favour of the plaintiff.
4. After hearing the learned counsel for both sides, I feel that even if this case is remanded, the matter will remain in the same state of confusion and therefore the only possible solution is to dismiss the appeal giving an opportunity to the plaintiff to file a comprehensive suit which is legally sustainable establishing all his rights which takes in the right to partition etc. So this appeal is dismissed with the said reservation in favour of the plaintiff. Parties are directed to bear their respective costs. I make it also clear that if any transfer is effected and if the suit is filed within a period of two months or even if it is : 5 : A.S.NO.533 OF 2002 prior to the institution of the suit, it will be all bound by the ultimate decision on the right of parties.
Disposed of accordingly M.N. KRISHNAN, JUDGE.
cl : 6 : A.S.NO.533 OF 2002 M.N. KRISHNAN, J.
........................................... A.S.NO.533 OF 2002 ............................................. 3rd February, 2011.
J U D G M E N T