IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOTTATHIL B.RADHAKRISHNAN & THE HONOURABLE MR. JUSTICE P.BHAVADASAN THURSDAY, THE 7TH OCTOBER 2010 / 15TH ASWINA 1932 AS.No. 28 of 1997(C) -------------------- OS.503/1991 of I ADDL.SUB COURT, THRISSUR .................... APPELLANT(S): DEFENDANT: -------------------------------------------- THOMAS, S/O. PALAMUTTOM POULOSE, PONNALLUR DESOM, MANALUR VILLAGE, THRISSUR TALUK. BY ADVS. SRI.N.P.SAMUEL, SRI.P.J.AYPPACHAN. RESPONDENT(S): PLAINTIFFS: ----------------------------------------------- 1. SOSANNAM, D/O. PALAMATTOM POULOSE AND W/O. AYINIKKAL CHAKKAMBAN PAVU, KANJANY P.O., THRISSUR DISTRICT. 2. MARY, W/O. ELUVATHINGAL THOMAS, EDATHIRUTHY P.O., VIA. IRINJALAKUDA, THRISSUR DISTRICT. 3. KOCHUTHRESSIA, C/O.PALLIKUNNAN JOSE, PHILOMINA, P.O. PONALLUR EAST, THRISSUR TALUK. 4. ROSILY, D/O. PALAMATTOM POULOSE, ST.ANNE'S ORPHANAGE, WEST FORT, THRISSUR. 5. PHILOMINA, W/O.PALLIKUNNAN JOSE, P.O.MANALUR, MANALUR DESOM & VILLAGE, THRISSUR DISTRICT. R1 TO R5 BY ADVS. SRI.P.VIJAYA BHANU, SRI.T.A.UNNIKRISHNAN. THIS APPEAL SUITS HAVING BEEN FINALLY HEARD ON 07/10/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Kss ORDER ON CMP.NO.194/1997 IN AS.NO.28/1997 DISMISSED 7/10/2010 SD/- THOTTATHIL B.RADHAKRISHNAN,JUDGE SD/- P.BHAVADASAN, JUDGE /TRUE COPY/ P.A.TO JUDGE Kss THOTTATHIL.B.RADHAKRISHNAN & P.BHAVADASAN, JJ. ------------------------------------------------------------------------ AS No.28 of 1997-E ------------------------------------------------------------------------ Dated 7th October 2010 Judgment Thottathil.B.Radhakrishnan, J. We have heard the learned counsel for the parties. The suit is of the year 1991. In the normal course, all efforts should have been made at this end to decide the matter, without making an order of remand. But, on the facts and for the reasons, we would note hereunder, we are persuaded to make this order of remand. 2. The five plaintiffs are the daughters and the defendant, the sole son of late Elia, who died on 24.04.1984. Sometime in 1971, an item of property stated to be measuring about 17 cents in Thrissur district, was purchased in the joint names of mother Elia and her son, the defendant. In 1991, the daughters sued for partition on the plea that one of the property covered by Ext.A1 AS No.28/97 2 belonged to Elia and therefore, each among the daughters was entitled to 1/6th share in the one half share of their mother. 3. The defendant opposed, contending that the property was purchased and the building therein was put up and different improvements made thereafter, utilising solely, his own funds. He pleaded that he, who was employed with the Merchant Navy, was the sole earning member and has expended even for marrying off the elder among the daughters and the younger ones were even provided education at his expense. He also pleaded that since he had been in Merchant Navy, his mother's name was shown in all the documents so that she could manage the affairs of the properties. At trial, the third plaintiff gave evidence as PW1. She virtually said nothing, contradicting the defence set up by the defendant. The defendant mounted the box, spoke in terms of his case and exhibited a long series of documents from Exts.B1, B1(a) to B1(z), B1(aa) to B1(aw) and B2 to B5 including B3(a) and B4(a). AS No.28/97 3 These included the invoices of the Electricity Board, building tax receipts, accounts regarding wages, vouchers etc. 4. The court below took the view that the plea of the defendant is hit by the Benami Transactions (Prohibition of the Right to Recover Property) Act, 1988 and accordingly, passed a preliminary decree. 5. The learned counsel for the parties rightly pointed out that there had not been any proper adjudication, focusing on S.45 of the Transfer of Property Act and the real issue between the parties has not been decided. It is also suggested by the learned counsel for the respondents plaintiffs that her clients appear to have had a dearth of proper legal advice and assistance, in so far as there is lack of materials on record, though his clients have now been able to trace out some documents, showing that their mother Elia was having funds with her, including by the sale of a property, that stood in the joint names of Elia and her son – the defendant, immediately preceding AS No.28/97 4 Ext.A1. 6. With the aforesaid, we are satisfied that the parties in this case, though could not settle their dispute in spite of mediation, need to be extended an opportunity to further amend the pleadings and adduce evidence to have the real issues arising between them, contested. To facilitate this, we are of the view that the case needs to be remanded. In the result, the impugned decree is set aside and the suit is remanded to the trial Court for trial and disposal de novo in accordance with law after affording an opportunity to both sides to amend their pleadings and adduce further evidence. The court below will look into the evidence on record and also any further evidence that would be brought on record in adjudicating the matter further. The parties will appear before the court below on 25.10.2010. The suit being of the year 1991, the court below will make an endeavour to expedite the final disposal AS No.28/97 5 of the case. The office will send back the LCR forthwith. There will be no order as to costs. THOTTATHIL.B.RADHAKRISHNAN, JUDGE P.BHAVADASAN, JUDGE sta AS No.28/97 6