IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.BHAVADASAN TUESDAY, THE 29TH NOVEMBER 2011 / 8TH AGRAHAYANA 1933 FAO.No. 386 of 2010() --------------------- AS.8/2009 of ADDITIONAL DISTRICT COURT (ADHOC), MANJERI OS.11/2005 of SUB COURT, MANJERI .................... APPELLANTS/RESPONDENTS/DEFENDANTS: -------------------------------------------------------------- 1. UMMIKKUZHIYIL MARIYAM, W/O.(LATE) DEVASYA PHILIP, PANKARA AMSOM, NARANGAMOOLA DESOM, NILAMBUR TALUK. 2. UMMIKUZHIYIL LILLYKUTTY, W/O.DOMINIC, KUTHRAPPALLI, MALAPARAMBA, ALINCHUVADU P.O., (VIA) ANGADIPURAM. 3. UMMIKUZHIYIL SEBASTIAN, S/O.DEVASYA PHILIP, UMMIKUZHIYIL, NARANGAMOOLA, P.O.PALANKARA, NILAMBUR. 4. THOMAS PHILIP, S/O.DEVASYA PHILIP, UMMIKUZHIYIL, NARANGAMOOLA, P.O.PALANKARA, NILAMBUR. 5. UMMIKUZHIYIL ELSAMMA, W/O.JOHN @ JOHNIKUTTY, PERUMPAMPALLI (PARAPPOTTI HOUSE), NARIVALAMUNDA DESOM, EDAKKARA AMSOM, MOODAPPAYA P.O., NILAMBUR TALUK. 6. UMMIKKUZHIYIL KOCHURANI PHILIP, W/O.ROY, PUTHANPARAYIL HOUSE, MUNDAKAI, PALANKARA P.O. BY ADV. SRI.P.B.KRISHNAN SMT.GEETHA P.MENON SRI.P.M.NEELAKANDAN RESPONDENT(S)APPELLANTS/PLAINTIFFS: ------------------------------------------------------------ 1. K.M.CHERIYAN, S/O.MATHAI, CHEVAYOOR AMSOM AND NELLIKODE DESOM, KOZHIKODE TALUK-679 012. 2. RIYA, CHRONOLOGICAL, AGE 12, RADIOLOGICAL AGE 9, MINOR BY GUARDIAN AND NEXT FRIEND FATHER K.M.CHERIYAN, IST RESPONDENT, IN DO. DO. 679 012. ADV. SRI.MANJERI SUNDERRAJ FOR R1 &2 THIS FIRST APPEAL FROM ORDERS HAVING BEEN FINALLY HEARD ON 29/11/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: P. BHAVADASAN, J. - - - - - - - - - - - - - - - - - - - - - - - - - - - F.A.O. No. 386 of 2010 - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 29th day of November, 2011. JUDGMENT The defendants in O.S. 11 of 2005 before the Sub Court, Manjeri are the appellants. Parties and facts are hereinafter referred to as they are available before the trial court. 2. The plaintiffs are the legal heirs of late Annakutty, who was one of the daughters of late Philip and sister of defendants 2 to 6. The first defendant in the suit was the mother of late Annakutty. 3. It is an admitted fact that plaint B schedule property belonged to late Philip and on his death his legal heirs succeeded to the property. Late Annakutty married the first plaintiff on 18.2.1982 and the second plaintiff is the child born to them in that wedlock. It is alleged in the plaint that late Annakutty was a chronic Asthma patient and was being treated by several F.A.O.386/2010. 2 doctors. In the year 1997, the fourth defendant expressed his desire to dispose of 50 cents of property from the estate of late Philip to raise funds. Accepting and believing the fourth defendant, late Annakutty executed a power of attorney in his favour. Annakutty died on 25.1.1998. It is claimed in the plaint that till the death of Annakutty, she was receiving her share of income from the properties. Alleging that the plaintiffs do not want to continue joint possession, they instituted the suit for partition. 4. Defendants 1 to 6 resisted the suit. They pointed out that the plaintiffs have no subsisting rights over the suit property. According to them, late Annakutty had executed a power of attorney in favour of one of her brothers. As per Ext.B2 document partition was effected in respect of the family. Late Annakutty was granted a share of the property and also a small amount towards her share. It was pointed out that a portion of the estate left by late Philip was sold to clear off the debts incurred by late Philip. It is F.A.O.386/2010. 3 pointed out that since Ext.B2 partition deed was entered into, the present suit for partition will not lie. 5. Based on the above pleadings, issues were raised by the trial court. The evidence consists of the testimony of P.Ws. 1 to 3 and documents marked as Exts.A1 to A20 from the side of the plaintiffs. The defendants examined D.W.1 and had marked Exts.B1 to B12. Exts. C1 to C3 are the commission reports and plan. The trial court, on an elaborate consideration of the evidence before it, came to the conclusion that without a prayer for setting aside Ext.B2 partition deed, the plaintiffs cannot succeed. It was also found that the power of attorney executed by late Annakutty in favour of her brother was valid and had given him authority to enter into a partition deed on her behalf. Based on these findings, the suit was dismissed. 6. The plaintiffs carried the matter in appeal as A.S. 8 of 2009 before the District Court, Manjeri. The District Court, by the impugned judgment, allowed the appeal and F.A.O.386/2010. 4 directed partition of the suit property ignoring the earlier partition deed. It is the said judgment that is assailed in this appeal. 7. Notice is seen issued on the following questions of law: “(A) Is the suit for partition maintainable without a prayer for setting aside the deed evidencing a partition of the properties? (B) Has not the lower appellate court failed to consider the pleadings and evidence on record and come to grips with the findings and conclusion entered by the trial court before exercising jurisdiction under Order 41 Rule 23 of the Code of Civil Procedure? (C) Is the lower appellate court justified in proceeding as though no property is allotted to late Annakutty in the partition, when as a matter of fact, 15 cents is allotted to her? (D) Does the court of law have jurisdiction to upset a family partition on its perception that the partition is inequitable to one of the sharers?” F.A.O.386/2010. 5 8. Learned counsel appearing for the appellants pointed out that the lower appellate court has not considered any of the issues that actually arose for consideration and by a cryptic order upset the finding of the trial court which has answered all the issues elaborately and after considering the evidence in considerable detail. The finding of the lower appellate court that late Annakutty was not given any share is incorrect going by Ext.B2 partition deed. So also the observation by the lower appellate court that no share was given to her child is contrary to facts. The lower appellate court has failed to consider the various contentions taken by the defendants in the suit, which were accepted by the trial court and based on which the suit had been dismissed. 9. On going through the judgment of the court below, the grievance voiced by the learned counsel for the appellants is fully justified. It is seen that serious contentions were taken by the defendants in the suit F.A.O.386/2010. 6 pointing out that a fresh suit for partition may not lie without seeking to have the earlier partition, namely, Ext.B2, set aside. The trial court has considered this aspect in considerable detail and found the contentions of the defendants to be sustainable. It is significant to notice that the trial court has also found that the power of attorney executed by late Annakutty is a valid power of attorney and has given ample power to the power of attorney holder to enter into a partition deed on behalf of late Annakutty. It is also significant to notice that late Annakutty was granted 15 cents of property in the partition deed. It is true that female children of late Philip have been given lesser extent of property rather than sons in Ext.B2 partition deed. 10. One fails to understand how the lower appellate court observed that the child of late Annakutty is entitled to a share. At best what the plaintiffs could claim is the share of late Annakutty and nothing more. The lower appellate court has not considered the real issues that arose F.A.O.386/2010. 7 for consideration in the appeal and has disposed of the appeal by a perfunctory order. None of the issues that actually arose for consideration have been considered by the lower appellate court. It is not found by the lower appellate court that either Ext.B2 is not binding or that the power of attorney executed by Annakutty does not give the power of attorney holder to enter into a partition deed on her behalf. Unless it is shown that Ext.B2 is bad in law or could be avoided by the plaintiffs, a decree in the nature passed by the lower appellate court ought not have been passed. It is therefore necessary that the lower appellate court be directed to reconsider the appeal in accordance with law. In the result, this appeal is allowed, the judgment and decree of the lower appellate court are set aside and the matter is remanded to the lower appellate court for fresh disposal in accordance with law and in the light of what has been stated above. The parties shall appear before the lower appellate court on 22.12.2011. The lower appellate F.A.O.386/2010. 8 court may make every endeavour to dispose of the appeal as expeditiously as possible, at any rate within three months from the date of appearance of the parties. There will be no order as to costs. P. BHAVADASAN, JUDGE sb.