Kerala High Court
Sunganthi vs Sunganthi on 7 August, 2015
Author: A. Hariprasad
Bench: A.Hariprasad
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR. JUSTICE A.HARIPRASAD
MONDAY, THE 7TH DAY OF NOVEMBER 2016/16TH KARTHIKA, 1938
FAO (RO).No. 245 of 2015 ()
----------------------------
AGAINST THE JUDGMENT & DECREE IN AS 89/2015 of III ADDL. DISTRICT
COURT, TRIVANDRUM DATED 07-08-2015
AGAINST THE JUDGMENT & DECREE IN OS 317/2006 of I ADDITIONAL MUNSIFF
COURT, NEYYATTINKARA DATED 31-05-2008
APPELLANT/1ST RESPONDENT/1ST DEFENDANT:
--------------------------------------
SUNGANTHI, D/O.GOMATHY, AGED 61 YEARS
RESIDING AT SUNIL VILASAM, KUTTAMALA,
VAZHICHAL DESOM, VAZHICHAL VILLAGE,
NEYYATTINKARA TALUK, THIRUVANANTHPAURAM 695 505.
BY ADVS.SRI.G.P.SHINOD
SRI.RAM MOHAN.G.
SRI.MANU V.
SRI.GOVIND PADMANAABHAN
SRI.AJIT G.ANJARLEKAR
RESPONDENTS/APPELLANTS & RESPONDENTS 2 TO 4/PLAINTIFFS & DEFENDANTS 2
---------------------------------------------------------------------
TO 4:
-----
1. SUNILKUMAR, S/O.MADHAVAN, AGED 48 YEARS
RESIDING AT M.S.BHAVAN, NANKUMANNADI,
VAZHICHAL DESOM, VAZHICHAL VILLAGE,
NEYYATTINKARA TALUK, THIRUVANANTHPAURAM 695 505.
2. KASTHURI, V.K.HOUSE, (KIZHAKKUMKARA PUTHEN VEEDU),
VENGODE, CHERIYAKOLLA DESOM, KUNNUTHUKAL VILLAGE,
NEYYATTINKARA TALUK, THIRUVANANTHAPURAM 695 505.
3. R.S.PREETHA KUMARI, AGED 39 YEARS
RESIDING AT SUNIL VILASAM, KUTTAMALA,
VAZHICHAL DESOM, VAZHICHAL VILLAGE,
NEYYATTINKARA TLAUK, THIRUVANANTHPAURAM 695 505.
4. R.S.PRAVEEN KUMAR, AGED 37 YEARS
RESIDING AT SUNIL VILASAM, KUTTAMALA,
VAZHICHAL DESOM, VAZHICHAL VILLAGE,
NEYYATTINKARA TLAUK, THIRUVANANTHPAURAM 695 505.
5. ANILKUMAR, S/O.MADHAVAN, M.S.BHAVAN, NANKUMANNADI,
VAZHICHAL DESOM, VAZHICHAL VILLAGE,
NEYYATTINKARA TLAUK, THIRUVANANTHPAURAM 695 505.
R1,R2 BY ADVS. SRI.L.MOHANAN
SMT.LIGEY ANTONY
THIS FIRST APPEAL FROM ORDER - REMAND ORDER HAVING BEEN FINALLY HEARD
ON 07-11-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
A. HARIPRASAD, J.
-------------------------------
F.A.O.(R.O) No.245 of 2015
----------------------------------------------
Dated this the 7th day of November, 2016
JUDGMENT
First defendant in O.S.No.317 of 2006 is in appeal, against the order of the lower appellant court, remanding the case to the trial court for a fresh disposal.
2. Heard the learned counsel for the appellant and the learned counsel for respondents 1 and 2.
3. Case in the plaint shortly stated is as follows:
Plaintiffs are siblings. First defendant is the wife and defendants 2 and 3 are the children of deceased Rajasekharan, brother of the plaintiffs. Plaint A schedule property belonged to Bhavani Sreemathi, mother of the plaintiffs. She obtained the property as per a registered document in the year 1969. She settled 50 cents of property on the eastern side of plaint A schedule to the 2nd plaintiff and her husband, as per a settlement deed dated 28.04.1977. Remaining one acre 36 cents shown in B schedule was mortgaged as per Ext.A1 to Rajasekharan. Thereafter, the properties shown in other schedules have been FAO(RO) 245/2016 2 alienated by Bhavani Sreemathi to the plaintiffs. The suit is brought by the plaintiffs on the strength of the aforesaid documents for partial redemption of the mortgage with respect to plaint C, D and E schedule properties. It is the case of the appellant that they should have gone in for redemption of the entire B schedule property.
4. The appellant contended that the suit is bad for partial redemption. They also disputed the nature of Ext.A1 document. It is contended that the prayer is barred by law of limitation. The trial court dismissed the suit holding that the prayer for redemption is barred by law of limitation.
5. The plaintiffs took up the matter in appeal before the lower appellate court. The lower appellate court, by the impugned judgment, concurred with the finding of the trial court that the suit is bad for partial redemption. However, the lower appellate court took note of the fact that I.A.No.437 of 2008 was filed before the trial court to incorporate a prayer in the plaint for redemption of the entire B schedule property. That application was dismissed by the lower appellate court. Considering the facts and circumstances, the lower appellate FAO(RO) 245/2016 3 court decided to remand the case for a fresh adjudication after affording an opportunity for the plaintiffs to make appropriate amendments to the plaint.
6. Learned counsel submitted that the appellant is aggrieved by the observation of the lower appellate court that Ext.A1 mortgage deed was a usufractuary mortgage and that fact was not disputed. According to him, this observation in the judgment is incorrect. A mere look at Ext.A1, according to the learned counsel, will show that it is not a usufractuary mortgage. Such an observation by the lower appellate court would adversely affect the contentions of the appellant. Nature of the mortgage is one of the contested issues, contended the learned counsel for the appellant.
After hearing the learned counsel on both sides, I am of the view that the order of remand cannot be faulted. But, it is made clear that the pronouncement on the nature of Ext.A1 should have been avoided. Therefore, the appeal is disposed of with a direction that the order of remand will hold good, except the observations in the impugned judgment that Ext.A1 is a usufractuary mortgage. This matter shall be decided by the trial FAO(RO) 245/2016 4 court on evidence, including fresh evidence, if any, to be adduced by the parties. The parties shall appear before the trial court on 30.11.2016 and the trial court shall dispose of the case within a period of six months thereafter, untrammeled by the observations in the remand order.
All pending interlocutory applications will stand dismissed.
A. HARIPRASAD
JV JUDGE