IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR THURSDAY, THE 6TH MARCH 2008 / 16TH PHALGUNA 1929 SA.No. 770 of 1999(G) --------------------- AS.97/1998 of PRL. DISTRICT COURT, THALASSERY OS.126/1997 of ADDL.MUNSIFF COURT, KANNUR .................... APPELLANT/APPELLANT/1ST DEFENDANT: ----------- THOTTUMKARA SUKUMARAN, S/O.ACHUTHAN AGED 83 YEARS, NO OCCUPATION, RESIDING AT CAMP BAZAR, WEST WARD, KANNUR MUNINIPALITY (DIED) ADDL.APPELLANTS 2 TO 9 ARE IMPLEADED AS THE LEGAL REPRESENTATIVES OF THE DECEASED APPELLANT AS PER ORDER DATED 6/4/04 IN IA 702/04 ADDL.A2 PRASANNA RAJAN, D/O.SUKUMARAN (DIED) PUTHIYEDATH HOUSE, ARAT ROAD, KANNUR-1 ADDL.A3 KAUSALYA @ SREEMATHI, RESIDING -DO- ADDL.A4 P.T.JAYARAJAN, RESIDING -DO- ADDL.A5 P.T.MOHAN RAJ, RESIDING -DO- ADDL.A6 P.P.SYAMALA, RESIDING -DO- ADDL.A7 P.T.RAVEENDRAN, RESIDING -DO- ADDL.A8 P.T.SOBHANA, RESIDING -DO- ADDL.A9 P.T.SATHYA RAJAN, RESIDING -DO- BY ADV. SRI.K.DIVAKARAN NAIR FOR ADDL.APPELLANTS 2 TO 9 RESPONDENTS/RESPONDENTS/PLAINTIFF AND 2ND DEFENDANT: ------------- 1. THOTTUMKARA VIMALA, D/O.THOTTUMKARA YESODA, AGED 55 YEARS, NO OCCUPATION, RESIDING AT GOGHALA ROAD, KANATHUR WARD, KANNUR MUNICIPALITY 2. THOTTUMKARA SHYLAJA, D/O.THOTTUMKARA YESODA -DO- -DO- 3. BEENA, D/O.THOTTUMKARA VIMALA, DO. DO. 4. MANOJ, S/O.VIMALA, AGED 32 YEARS, BUSINESS, DO. DO. 5. LEENA, D/O.VIMALA, 30 YEARS, DO. DO. 6. SEENA, D/O.VIMALA, 26 YEARS, DO. DO. 7. NEENA, D/O.VIMALA, 24 YEARS, DO. DO. 8. MINI, D/O.VIMALA, 22 YEARS, NO OCCUPATION DO. DO. 9. KRISHNA KUMAR, S/O.VIMALA, 21 YEARS, NO OCCUPATION DO. DO. 10. SANTHOSH, S/O.SHYLAJA, AGED 33 YEARS RESIDING DO. DO. 11. AMBIKA, D/O.SHYLAJA, AGED 26 YEARS, RESIDING AT DO. DO. 12. ANITHA, D/O.SHYLAJA, AGED 24 YEARS, RESIDING AT DO. DO. 13. T.VENUGOPAL, S/O.YESODA, 54 YEARS, PB NO.002, CENTRAL SALALA 211, SULTANATE OF OMAN. R1 TO R12 BY ADV. SRI.V.R.KESAVA KAIMAL SRI.N.M.MADHU THIS SECOND APPEAL HAVING BEEN FINALLY HEARD ON 06/03/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: M.SASIDHARAN NAMBIAR,J. ------------------------------------------ S.A .NO.770 OF 1999 ------------------------------------------ Dated 6th March 2008 J U D G M E N T First defendant in O.S.126/1997 on the file of Munsiff court, Kannur is the appellant. Respondents 1 to 12 are plaintiffs and 13th respondent is the second defendant. Suit was for partition. Trial court passed a preliminary decree directing division of the plaint schedule property into 39 shares and allotment of 32 shares to plaintiffs and three shares to appellant and four shares to 13th respondent. Appellant filed A.S.97/1998 challenging preliminary decree before District court, Thalassery. Appeal was not filed in time. I.A.894/1998 was filed under Section 5 of the Limitation Act to condone the delay of 30 days in filing the appeal. Learned District Judge dismissed the application and consequently dismissed the first appeal. It is challenged in the second appeal. 2. Appeal was admitted formulating substantial questions of law. SA 770/99 2 1) Whether the lower appellate court was correct in law in not considering the appeal on merits on the ground that the delay cannot be condoned. 2) Whether in the facts and circumstance of the case the trial court was correct in holding that the property reverted to the thavazhi of Kausalya in her death. 3) Whether in the facts and circumstance of the case the trial court was holding in not ascertaining as to who were all the members of thavazhi who died after the commencement of Hindu Succession Act. 4) Whether the trial court was correct in law in not holding that any division of the property acquired after 1932 who could only be divided on sterpital basis. Ignoring the decision reported in 1966 KLT 327. 3. Appellant died subsequent to the filing of the appeal and legal heirs were impleaded as additional appellants 2 to 9. 4. Learned counsel appearing for appellants and respondents 1 to 12 heard. SA 770/99 3 5. First appeal was dismissed as barred by time consequent to the dismissal of the application filed under Section 5 of the Limitation Act to condone the delay. Delay was only 30 days. According to the deceased appellant, delay occurred due to his illness. In support of his case he was examined as PW1 and medical certificate was marked as Ext.A1. Learned District Judge disbelieved the evidence of PW1 and also Ext.A1 and found that delay cannot be condoned and dismissed I.A.894/1998. Consequently first appeal was dismissed as barred by time. As held by the Apex court in Apangshu Mohan Lodh & others v. State of Tripura & others (2004 (1) SCC 119) power of condonation is discretionary, which is to be liberally construed. When the delay is only 30 days and appellant is not to gain anything by purposely delaying the filing of the appeal and delay was sought to be explained by examining himself and supported by medical certificate, first appellate court was not justified in dismissing the application on a hyper technical appreciation of facts. In the interest of justice first appellate court should have condoned the delay and disposed of first appeal on merits. As the first appellate court has SA 770/99 4 not considered the appeal on merit and the delay is liable to be condoned, appeal has to go back to the first appellate court for fresh disposal. 6. Appeal is allowed. Judgment of District Judge, Thalassery dismissing A.S.97/1998 is set aside. I.A.894/1998 stands allowed and delay condoned. A.S.97/1998 is restored to file. District Judge, Thalassery is directed to dispose the appeal as expeditiously as possible, without any further delay. Parties are directed to appear before the learned District Judge on 1/4/2008. Learned District Judge is directed to dispose the appeal within four months from the date of first appearance. M.SASIDHARAN NAMBIAR, JUDGE. uj. SA 770/99 5 ============================= M.SASIDHARAN NAMBIAR,J. JUDGMENT S.A.NO.770 OF 1999 6th March 2008 ============================