Kerala High Court
Rosily Sebastian vs Paul @ Babu K.S on 31 August, 1994
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE V.CHITAMBARESH
&
THE HONOURABLE MR. JUSTICE SATHISH NINAN
THURSDAY, THE 25TH DAY OF MAY 2017/4TH JYAISHTA, 1939
AS.No. 449 of 1996 ( )
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AGAINST THE JUDGMENT AND DECREE IN OS.32/1993 of ADDL.SUB COURT, KOCHI
DATED 31-08-1994
APPELLANTS/PLAINTIFFS:
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1. ROSILY SEBASTIAN, AGED 56,
W/O LATE SEBASTIAN @ KUNJAPPAN,
RESIDING AT KUTTIKATT HOUSE, CHELLANAM P.O,
COCHIN - 8. (DIED)
2. MARIA AUNTAMITA TRESA, AGED 22,
D/O LATE SEBASTIAN @ KUNJAPPAN,
RESIDING AT -DO- -DO-
3. JOSE BENEDICT, S/O LATE SEBASTIAN,
AGED 18, RESIDING AT -DO- -DO-
BY ADVS.SRI.P.GEORGE WILLIAM,
SMT. NANDINI MENON.C.,
SRI.RAJU JOSEPH
RESPONDENTS/DEFENDANTS:
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1. PAUL @ BABU K.S, AGED ABOUT 55,
S/O LATE SEBASTIAN, RESIDING AT
BUILDING NO.5/233,
KUTTIKATT HOUSE, CHELLANAM P.O,
COCHIN - 8 (DIED)
2. SMT. CELINA RAPHEAL, AGED ABOUT 60,
W/O RAPHEAL AND D/O LATE SEBASTIAN,
RESIDING AT MAVELI HOUSE, NEAR PAZHAT (NEW FATHIMA CONVENT)
KUMBALANGHI, COCHIN - 7 (DIED)
ADDL.R3. K.P GEORGE, S/O LATE K.S PAUL @ BABU K.S,
KUTTIKATTU HOUSE, THURAVOOR SOUTH P.O,
CHERTHALA, ALAPPUZHA DISTRICT.
R4. JENCY SEBASTIAN, D/O LATE K.S PAUL @ BABU K.S,
W/O SEBASTIAN, ALUNGAL HOUSE, NEAR ITI, CHAKKA,
THIRUVANANTHAPURAM DISTRICT.
R5. SEBASTIAN K.P, S/O LATE K.S PAUL @ BABU K.S,
C/O K.P GEORGE, KUTTIKATTU HOUSE, THURAVOOR SOUTH P.O,
CHERTHALA, ALAPPUZHA DISTRICT.
R,R1 BY ADV. SRIPRAMOJ ABRAHAM
R,R1 BY ADV. SRI.RENDEEP PREM
R,R1,R3,R4,R5 BY ADV. SRI.SHIJU VARGHESE
AS.No. 449 of 1996 ( )
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IT IS RECORDED THAT APPELLANTS 2 AND 3 ARE THE LEGAL
REPRESENTATIVES OF DECEASED 1ST APPELLANT AS PER ORDER DATED
10.06.2011 IN I.A NO.847/2008.
LEGAL HEIRS OF DECEASED 1ST RESPONDENT ARE IMPLEADED AS
ADDITIONAL RESPONDENTS 3 TO 5 VIDE ORDER DATED 30.03.2017 IN I.A 437/17
IT IS RECORDED THAT R2 DIED AND THE APPELLANTS 2 AND 3 AND
RESPONDENTS 3 TO 5 ALREADY IN THE PARTY ARRAY ARE HER LEGAL HEIRS VIDE
ORDER DATED 30.03.2017 IN I.A NO.452/2017.
THIS APPEAL SUITS HAVING BEEN FINALLY HEARD ON 25-05-2017,
THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
V.Chitambaresh & Sathish Ninan, JJ.
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A.S No.449 of 1996
==========================
Dated this the 25th day of May, 2017
JUDGMENT
Chitambaresh, J
1. The challenge in this Appeal suit is confined to paragraph 10 of the impugned judgment, which is extracted below.
2. "10. Ext.B2 is an agreement executed by the 1st plaintiff and the defendants during the pendency of the suit regarding partition of items 1 and
2. Since plaintiffs 2 and 3 are not parties to Ext.B2 and since no compromise has been reported to the Court based on Ext.B2, the same cannot be accepted as such. At the same time it should not be totally discarded also since the 1st plaintiff who is the mother of the other plaintiffs signed Ext.B2 in the presence of mediators including her brother. The evidence of PW1 would show that she signed Ext.B2 after understanding the contents. She stated that she had put up fence according to the mode of division suggested in Ext.B2. In these circumstances, I think it is just and proper to direct a division as suggested in Ext.B2 as far A.S No.449/1996 2 as practicable, subject to payment of money by way of owelty to the plaintiffs and the correct value of the share of the 2nd defendant."
3. We fail to understand as to how Ext.B2 can have legal efficacy when it is hit by lispendens. Moreover, plaintiffs 2 and 3 who are also entitled to a share have not joined in Ext.B2 agreement. The court below erred in directing the partition to be effected in accordance with Ext.B2 agreement 'as far as practicable'. As to how best the property is to be divided has to be decided in the final decree proceedings only.
4. The impugned judgment and decree of the court below is affirmed, however deleting the directions contained in paragraph 10 of the judgment. Anyone of the parties are entitled to apply for passing of the final decree. Appeal suit is disposed of. No costs.
Sd/-
V.Chitambaresh, Judge Sd/-
Sathish Ninan, Judge vdv //True Copy// P.A to Judge