IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOTTATHIL B.RADHAKRISHNAN & THE HONOURABLE MR. JUSTICE S.S.SATHEESACHANDRAN THURSDAY, THE 19TH AUGUST 2010 / 28TH SRAVANA 1932 RFA.No. 524 of 2010() --------------------- OS.42/2005 of SUB COURT, OTTAPPALAM .................... APPELLANT/DEFENDANT ------------------------- DEVADAS, AGED 52 YEARS, S/O. DECEASED KOLLYANI KESAVAN, KADAMPUZHIPURAM AMSOM AND DESOM, OTTAPALAM TALUK, PALAKKAD DISTRICT. BY ADV. SRI.P.JAYARAM RESPONDENTS: PLAINTIFFS ------------------------- 1. VASANTHAKUMARI, AGED 54 YEARS, D/O.LATE KOLLYANI KESAVAN, KADAMPAZHIPURAM AMSOM AND DESOM, P.O. KADAMPAZHIPURAM, OTAPALAM TALUK, PALAKKAD DISTRICT PIN-678633. 2. SANTHAKUMARI, AGED 50 YEARS, D/O.LATE KOLLYANI KESAVAN, KADAMPUZHIPURAM AMSOM AND DESOM, P.O.KADAMPAZZHIPURAM, OTTAPALAM TALUK, PALAKKD DISTRICT, PIN 0 678633. 3. NALINIKUMARI, AGED 43 YEARS, D/O.LATE KOLLYANI KESAVAN KADAMPAZHIPURAM AMSOM AND DESOM, P.O. KADAMPAZHIPURAM, OTTAPALAM TALUK, PALAKKD DISTRICT PIN-678633. 4. RADHAKRISHNAN, AGED 38 YEARS S/O. LATE KOLLYANI KESAVAN, KADAMPAZHIPURAM AMSOM AND DESOM, P.O. KADAMPAZHIPURAM, OTTAPALAM TALUK, PALAKKD DISTRICT, PIN-678633. THIS REGULAR FIRST APPEAL HAVING COME UP FOR ADMISSION ON 19/08/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: THOTTATHIL B. RADHAKRISHNAN & S.S. SATHEESACHANDRAN, JJ. = = = = = = = = = = = = = = = = = = = = = R. F.A. No. 524 OF 2010 = = = = = = = = = = = = = = DATED THIS, THE 19TH DAY OF AUGUST, 2010. J U D G M E N T Thottathil B. Radhakrishnan, J. The sole defendant in a suit for partition is the appellant. The parties belonged to a community which, according to th defendant, follows Mithakshara law of inheritance and the male members would get right in the ancestral property by birth. The court below accepted the defence plea regarding the law of succession; but refused to uphold the defendant's claim that he had special right to the building. It was found that there was no evidence on record to show that he had constructed the building as against the plea of the plaintiffs that Kesavan, the father of the parties, had put up the building. 2. In this appeal by the defendant, he tries to project a case quite different from what was his defence to the suit. He says that in 1995, Kesavan had executed a Will and that he is the sole legatee of the estate of Kesavan by virtue of that Will. He therefore, claims that in terms of the joint holding of the property by Kesavan and his two sons including the RFA 524/2010 2 defendant, he would be entitled to 2/3 rd share, taking also the share of Kesavan, in terms of the testament. However, there is no plea about any such Will before the court below. An interlocutory application is filed for admission of additional evidence and a certified copy of the Will of 1995 is produced. The plea of the appellant is that he was working abroad and the written statement was filed through his Power of Attorney Holder ie. his wife and the mistaken communication while instructing her over telephone had led to the omission in the pleadings regarding the Will. But we find that at trial, the appellant himself tendered oral evidence in court. We also find that he now says that he had been sick and was not appropriately guided to place further pleadings. We cannot ignore that Ext.A2 and other documents, which are transactions entered into by late Kesavan after the Will is shown to have been executed in 1995, had dealt with properties covered by the Will also. This is now admitted by the appellant/defendant. If that be so, in the common course of human conduct, it cannot be assumed that the appealing defendant would be justified to prosecute this appeal, though he, if so advised, may seek review of the judgment on the availability of new and important facts which had escaped adjudication before the trial court on the ground of inadvertent omissions. Though the learned counsel for the appellant expressed an apprehension that in the RFA 524/2010 3 course of review, amendment of pleadings does not appear to be possible, we do not as of now express anything on that matter also since we cannot conclude on such issue before it raised and considered before the court which would consider the review, if sought for. We, therefore, dispose of the appeal without entering further on merits and preserving the right of the appellant to seek review of the judgment. 3. Though we have not issued notice to the plaintiffs, we have considered some of the materials and we see that the residential building in question over which the defendant has been denied special right is that one stands on a piece of 11.5 cents of land and the evidence on record tend to indicate that all among the plaintiffs stay elsewhere. Therefore, it may be open to the appealing defendant to seek appropriate relief even in the final decree proceedings on the ground of equitable consideration while making the allotment. 4. To enable the defendant to seek review, if so advised, the court below will adjourn any final decree proceedings pending before it by a period of three months. We also clarify that we did not express anything on RFA 524/2010 4 the merits of the matter including the sustainability of the review. The appeal is disposed of as above. THOTTATHIL B. RADHAKRISHNAN, (JUDGE) S.S. SATHEESACHANDRAN, JUDGE knc/-