IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.BHAVADASAN TUESDAY, THE 12TH APRIL 2011 / 22ND CHAITHRA 1933 SA.No. 823 of 2000(F) -------------------------- AS.24/1989 of SUB COURT, MANJERI OS.143/1986 of MUNSIFF COURT, MANJERI .................... APPELLANT(S):RESPONDENTS 4 AND 5/DEFENDANTS 4 AND 5: ------------------------------------------------------------------------- 1. BINDU, D/O.SAVITHRI AMMA, THIRUVALI AMSOM DESOM NILAMBUR TALUK, MALAPPURAM DISTRICT. 2. INDU, D/O.SAVITHRI AMMA OF -DO- -DO- BY ADVS. SRI.M.GOPIKRISHNAN NAMBIAR SRI.IMTHIYAS AHAMMED M.S. SRI.SHIRAZ ABDULLA M.S. RESPONDENT(S):APPELLANTS & RESPONDENTS 1 TO 3 AND 6 TO 26/ 2ND DEFT., PLFF, 3RD DEFENDANT, DEFTS 6 TO 21 AND L.R. OF THE 1ST DEFENDANAT IN O.S. -------------------------------------------------------------------------------- 1. CHEMMINIKKARA NARAYANANKUTTY NAIR, S/O.PARUKUTTY AMMA, CHETTIYANGADI, NILAMBUR AMSOM DESOM, MALAPPURAM DISTRICT. 2. CHEMMINIKKARA SIVASANKARAN, S/O.DEVAKI AMMA, THIRUVALI AMSOM DESOM, ERNAD TALUK. 3. SAVITHRI AMMA, CHEMMINIKKARA HOUSE, PATHIRIYAL P.O., MALAPPURAM DISTRICT. 4. DEVAKI AMMA,D/O.CHEMMINIKKARA PARUKUTTY AMMA, MANJERI AMSOM,ARAKIZHAYA DESOM,MALAPPURAM DISTRICT 5. GOPALAKRISHNAN NAIR, S/O. DEVAKI AMMA OF -DO -DO- 6. MEENAKSHIKUTTY AMMA,D/O.DEVAKI AMMA OF -DO- -DO- 7. SACHITHA, D/O.MEENAKSHIKUTTY AMMA OF -DO- -DO- svs ..........2/-.... ...2... S.A. NO.823/2000 8. PRAMOD, S/O.MEENAKSHI AMMA OF -DO- -DO- 9. AMMINI @ DEVAKI AMMA, D/O.CHEMMINIKKARA DEVAKI AMMA MANJERI AMSOM,ARAKIZHAYA DESOM,MALAPPURAM DISTRICT 10. CHANDRASEKHARAN NAIR, S/O. -DO- -DO- 11. RADHA D/O. -DO- -DO- 12. MALATHI D/O. -DO- -DO- 13. VIJAYA S/O. -DO- -DO- 14. JAYARAJAN S/O. -DO- -DO- 15. JAYANTHI D/O. -DO- -DO- 16. SREEJITH (MINOR)s/o. RADHA REPRESENTED BY MOTHER AND GUARDIAN RADHA OF -DO- -DO- 17. RAMDAS, S/O. GOPALAN NAIR,THIRUVALI AMSOM DESOM, ERNAD TALUK, MALAPPURAM DISTRICT. 18. SUBHADRA AMMA, D/O. GOPALAN NAIR OF -DO- -DO- 19. DEVAKI AMMA, W/O. GOPALAN NAIR THIRUVALI AMSOM, DESOM, ERNAD TALUK, MALAPPURAM DISTRICT. 20. KUNNATHADI INDIRA DEVI, W/O. CHAMMINIKKARA BALAKRISHNAN NAIR, MANJERI AMSOM,ARUKIZHIYA DESOM, MALAPPURAM DISTRICT. 21. KUNNATHADI MURALIDHARAN, S/O.K,UMNNATHADI INDIRA DEVI OF -DO- -DO- 22. MEENAKUMARI D/O. -DO- -DO- 23. MEERA BAI D/O. -DO- -DO- 24. MANOJ KUMAR S/O. -DO- -DO- R1 BY ADV. SRI.K.M.SATHYANATHA MENON R2 BY SRI.A.P.CHANDRASEKHARAN, SENIOR ADVOCATE R2 BY ADVS. SMT.PRABHA R.MENON SRI.M.KRISHNAKUMAR THIS SECOND APPEAL HAVING BEEN FINALLY HEARD ON 12/04/2011, ALONG WITH CRP NO. 2953 OF 2000 THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: svs P. BHAVADASAN, J. - - - - - - - - - - - - - - - - - - - - - - - - - - - S.A. No. 823 of 2000 & C.R.P. No. 2953 of 2000 - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 12th day of April, 2011. JUDGMENT Defendants 4 and 5 in O.S. 143 of 1986 before the Munsiff's Court, Manjeri are the appellants. They are also the petitioners in C.R.P. 2953 of 2000 which arises from an order in I.A.363 of 1999 in A.S. 24 of 1989. 2. The parties and facts are hereinafter referred to as they are available before the trial court. 3. The suit was one for partition. The allegation in the plaint was that there was a registered partition deed of the year 1950, in which one of the sharers parted from the family while rest of them continued joint status. The plaintiff claims to have born before the commencement of the Kerala Joint Hindu Family System (Abolition) Act and claims right by birth stating that the property was the tavazhy property and he is entitled to a share. S.A.823/2000 & C.R.P.2953/2000. 2 4. The first defendant remained ex-parte and the second defendant contested the suit. He disputed that the property is tavazhy property. There are several other contentions which are not relevant for the present purpose. 5. Defendants 3 to 5 also contested the suit raising several contentions and good part of the contentions was similar to that of the second defendant. 6. Defendants 6 to 7 and 11 to 18 filed the written statement jointly. They claimed their separate share. Defendants 8 to 10 also filed a joint written statement admitting the claim of the plaintiff. Defendants 19 to 21 also claimed their respective shares. 7. On the basis of the above pleadings, issues were raised by the trial court. The evidence consists of the testimony of P.W.1 and documents marked as Exts. A1 and A2 from the side of the plaintiff. The defendants examined D.W.1. S.A.823/2000 & C.R.P.2953/2000. 3 8. The trial court after an evaluation of the evidence passed a preliminary decree, which reads as follows: “The plaint schedule property has to be divided into 18 equal shares. The plaintiff is entitled to 1/18 share, 1st defendant is entitled to get 1/18, second defendant is entitled to get 1/18 share, defendants 3, 4 and 5 together are entitled to get 2/18 shares, defendants 6 to 17 together are entitled to get 12/18 shares and defendants 19 to 21 together are entitled to get 1/18 share. Neither the plaintiff nor any defendant are entitled tog et any mesne profits or damages. The costs of the suit will come out of the estate. Any of the sharers can take steps for passing a final decree and to divide the property by metes and bounds.” 9. The aggrieved second defendant took up the matter in appeal as A.S.24 of 1989. It appears that he later filed an application to withdraw the appeal. When that application was moved, defendants 4 and 5, who are the S.A.823/2000 & C.R.P.2953/2000. 4 respondents before the lower appellate court moved I.A. 363 of 1999 to get themselves transposed as appellants. Surprisingly enough the lower appellate court without considering the application for transposition dismissed the appeal as withdrawn and went on to dismiss the I.A. filed by defendants 4 and 5. It is the said judgment and order that are assailed in the Second Appeal and in the Civil Revision Petition. 10. Learned counsel appearing for the appellant and the revision petitioner pointed out that the court below was not justified in dismissing the I.A. without considering whether the petitioners in the I.A. could be transposed as appellants. It is pointed out that the contentions of the petitioners who are sought to be transposed as appellants was that when the second defendant filed a withdrawal memo, they realised that their rights were in jeopardy and therefore they sought themselves transposed as appellants. According to learned counsel, the petition ought to have S.A.823/2000 & C.R.P.2953/2000. 5 been considered on merits and the court below was not justified in dismissing the same. 11. Learned counsel appearing for the respondents on the other hand pointed out that the petitioners in I.A.363 of 1999 could not have got themselves transposed as appellants. It was also pointed out that there was no common interest between the second defendant and defendants 4 and 5. Attention was also drawn to the fact that in fact defendants 3 to 5 have filed a joint written statement, out of them defendant No.3 has accepted the decree and she has not chosen to get herself transposed as appellant in A.S.24 of 1989. Therefore it is contended that even if I.A. was considered on merits, it would have been a futile exercise. 12. Learned counsel appearing for the second defendant contended that it is not correct to say that the second defendant and defendants 4 and 5 are sailing together. They had filed separate written statements and second defendant was examined as D.W.1 to speak about S.A.823/2000 & C.R.P.2953/2000. 6 his case alone and not on behalf of defendants 4 and 5. There is no conflict of interest between them. 13. Whatever that be, in the nature of the contentions of the parties, the fact remains that there is no decision on the petition filed by defendants 4 and 5 before the court below seeking to get themselves transposed as appellants, who has chosen to pursue the appeal. I.A. 363 of 1999 ought to have been considered on merits and the court below ought to have arrived at a decision as to whether they could be transposed as appellants. Whether there was a conflict of interest between the appellants and the persons sought to get themselves transposed as appellants are matters to be considered by the lower appellate court. One aspect is clear. Just like the second defendant, defendants 3, 4 and 5 contended that the suit property is not a tavazhy property and the plaintiff is not entitled to a share. To that extent, there is a common interest between the appellant and defendants 4 and 5. It is true that the third defendant has not chosen to come forward along with defendants 4 S.A.823/2000 & C.R.P.2953/2000. 7 and 5 to get herself transposed as appellant. That will not deprive the right of defendants 4 and 5 to agitate their rights and interests. Whatever that be, the court below was not justified in dismissing the I.A. solely for the reason that the appeal has been dismissed on the ground that the withdrawal memo has been filed. The court below was bound to consider the I.A. on merits and then decide whether the appeal should be continued or not. 14. For the above reasons, this court is unable to accept the decree of the court below and so also the order in I.A. which are liable to be set aside. Accordingly, the judgment and decree of the lower appellate court and the order in I.A.363 of 1999 are set aside and the matter is remanded to the lower appellate court for fresh consideration in accordance with law and in the light of what has been stated above. The parties shall appear before the lower appellate court on 7.6.2011. The court below may make every endeavour to dispose of the S.A.823/2000 & C.R.P.2953/2000. 8 matter within four months from the date of appearance of the parties. There will be no order as to costs. P. BHAVADASAN, JUDGE sb.