IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.BHAVADASAN MONDAY, THE 28TH FEBRUARY 2011 / 9TH PHALGUNA 1932 SA.No. 477 of 1997(F) ------------------- AS NO. 134/1994 OF PRINCIPAL SUB COURT, THALASSERY OS NO. 200/1992 OF MUNSIFF COURT, THALASSERY .................. APPELLANTS – APPELLANTS 1, 3 AND 6 – DEFENDANTS 2, 4 AND 7. ------------------------------------------------------------------------------------------------ *1. PIRATIALAN JANAKI AMMA, CHELUPARAMBATH HOUSE, MAKKRERI AMSOM, MUNDALLOOR DESOM, THALASSERY TALUK, KANNUR DISTRICT (DIED) 2. PIRATIALAN PHALGUNAN, -DO- -DO- 3. PIRATIALAN HARI, -DO- -DO- *APPELLANT 2 & 3 AND R7 TO 9 ARE RECORDED AS THE LR'S OF DECEASED 1ST APPELLANT VIDE ORDER DATED 13.11.09 IN MEMO BEARING CF 6999/09. BY ADVS . SMT.SANGEETHA S.KAMATH SRI.C.P.KUNJHIKANNAN SMT.VIDHYA A.C. RESPONDENTS – RESPONDENTS & APPELLANTS 2, 4 AND 5 – PLAINTIFF AND ------------------------------------------------------------------------------------------------------------------ DEFENDANTS 1, 8 TO 11 AND 3, 5 AND 6. ---------------------------------------------------------- 1. PIRATIALAN MEENAKSHI ALIAS NANI AMMA, W/O. E.K. KUTTIAPPA ALIAS PADMANABHAN NAMBIAR, PARIYARAM AMSOM AND DESOM, KANNUR TALUK & DIST. ***2. KADALA CHIRUKANDOTH DEVAKI KUTTY AMMA, D/O. PIRATIALAN CHATHUKUTTY NAMBIAR, MAKRERI AMSOM MUNDALLOOR DESOM, THALASSERY TALUK, KANNUR DISTRICT (DIED) 3. PIRATIALAN BALAKRISHNAN NAMBIAR, KANDOTH HOUSE, MANATHAERI AMSOM AND DESOM, THALASSERRY TALUK AND DIST. KANNUR. ...2/- SA.No. 477 of 1997(F) -2- **4. KATALAKELOTH PURUSHOTHAM NAMBIAR, KAVINMOOLA, MANANTHERI AMSOM AND DESOM, THALASSERY TALUK, DIST. KANNUR (DIED) LR'S IMPLEADED. 5. NANI AMMA, W/O. LATE NARAYANAN NAMBIAR, KAVINMOOLA, MANANTHERI AMSOM AND DESOM, THALASSERY TALUK, DISTRICT KANNUR. 6. BHAVANI, D/O. NANI AMMA, -DO- -DO- 7. PIRATIALAN BALARAMAN, POLICE CONSTABLE, CHELUPARAMBATH HOUSE, MAKRERI AMSOM, MUNDALOOR DESOM, THALASSERY TALUK, DIST. KANNUR. 8. PIRATIALAN DAMODARAN, POLICE CONSTABLE, CHELUPARAMBATH HOUSE, MAKRERI AMSOM MUNDALLOOR DESOM, THALASSERY TALUK, DIST. KANNUR. 9. PIRATIALAN KOMALAVALLI, -DO- -DO- ** ADDL. R10 TO R14 IMPLEADED **10. SMT. K.K. SREEDEVI AMMA, AGED 78 YEARS, MANNANTHERI AMSOM, KAVINMOOLA DESOM, P.O. MANANTHERI, VIA. KUTHUPARAMBA, DIST. KANNUR, PIN 670 643. **11. AMAVATHY, AGED 49 YEARS, C/O. SMT. K.K. SREEDEVI AMMA, MANNANTHERI AMSOM AND DESOM, P.O. MANANTHERI, VIA. KUTHUPARAMBA, DIST. KANNUR, PIN 670 643. **12. SUJATHA, AGED 24 YEARS, -DO- -DO- **13. THRIVENI, AGED 23 YEARS, -DO- -DO- **14. RAJESH, AGED 13 YEARS (MINOR), REPRESENTED BY HIS MOTHER AND GUARDIAN SMT. AMARAVATHY -DO- -DO- ** ADDL. RESPONDENTS 10 TO 14 ARE IMPLEADED AS THE LEGAL REPRESENTATIVES OF THE DECEASED 4TH RESPONDENT VIDE ORDER DATED 18.7.06 IN CMP 476/03. ***ADDL. R15 TO R22 IMPLEADED ***15. KOMALAVALLI, D/O. LATE KADALA CHIRUKANDOTH DEVAKI KUTTY AMMA, MAKRERI AMSOM MUNDALLOOR DESOM, THALASSERY TALUK, KANNUR DISTRICT ...3/- SA.No. 477 of 1997(F) -3- ***16. SUKUMARI, -DO- -DO- ***17. VALSALAN, S/O. LATE KADALA CHIRUKANDOTH DEVAKI KUTTY AMMA, -DO- -DO- ***18. RAGAHAVAN, -DO- -DO- ***19. AJITH KUMAR, -DO- -DO- ***20. SUMANKALA, D/O. LATE KADALA CHIRUKANDOTH DEVAKI KUTTY AMMA, MAKRERI AMSOM MUNDALLOOR DESOM, THALASSERY TALUK AND KANNUR DIST. ***21. ANITHA, -DO- -DO- ***22. BABY, -DO- -DO- ***ADDL. R15 TO R22 ARE IMPLEADED AS THE LR'S OF THE DECEASED 2ND RESPONDENT VIDE ORDER DATED 5/10/10 IN I.A. 2634/09. R1 BY ADV. SRI.V.RAJAGOPAL R2 TO R5, R10 TO 21 BY ADV. SRI.GRASHIOUS KURIAKOSE R7 TO R9 BY ADV. SRI.J.M.H.JOHN DAVID THIS SECOND APPEAL HAVING BEEN FINALLY HEARD ON 28/02/2011 , THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ...4/- Mn SA.No. 477 of 1997(F) -4- ORDER ON C.M.P. NO. 1280/1997 & C.M.P. NO. 1537/1997 IN SA. NO. 477/1997 DISMISSED 28/02/2011 SD/- P. BHAVADASAN, JUDGE //TRUE COPY// P.S. TO JUDGE Mn P. BHAVADASAN, J. - - - - - - - - - - - - - - - - - - - - - - - - - - - S.A. No. 477 of 1997 - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 28th day of February, 201. JUDGMENT Defendants 2, 4 and 7 in O.S. 200 of 1992 before the Munsiff's Court, Thalassery, which was a suit for partition, are the appellants. 2. Fortunately there are not much disputed facts. By the decree passed in O.S.122 of 1977, the properties involved in the case were held to be tavazhy properties. The group consisting of the plaintiff and the defendants in that suit were set apart plots E-E1 in item No.1 and plot F in item Nos. 2 to 4. The plaintiff claimed 1/29 shares. 3. The suit was contested by defendants 2, 4 and 7. They disputed the quantum of shares claimed by the plaintiff. Narayanan Nambiar, father of defendants 9 to 11, assigned his rights in favour of the second defendant and therefore the second defendant is entitled to the share of defendants 9 to 11. According to these defendants, the S.A.477/1997. 2 separate shares available to defendants 4 and 7 is 7/174 each. 4. The trial court raised necessary issues for consideration. The plaintiff did not adduce any oral evidence and Exts.A1 to A6 were marked on his side. The defendants examined D.W.1 and had Exts. B1 to B4 marked. The trial court on a consideration of the evidence in the case and mainly relying on Exts.A4 and A5 came to the conclusion that there cannot be a dispute regarding the nature of the property. Accepting the case of the plaintiff, a preliminary decree for partition was passed allotting 1/29 shares to the plaintiff. 5. Defendants 2, 4 and 7 assailed the said judgment in A.S.134 of 1994 before the Sub Court, Thalassery. It appears from the memorandum of appeal before the lower appellate court that two main contentions were taken, the first question was regarding the quantum of shares and the other was regarding the validity of Ext. B4 document and the assignment deed said to have been S.A.477/1997. 3 executed by late Narayani Amma in favour of the fourth defendant. The lower appellate court merely by stating that there is no dispute regarding the quantum of share allotted to the plaintiff in S.A. 84 of 1986, which resulted in Ext.A4 judgment, confirmed the decree of the trial court. That brings the aggrieved defendants 2, 4 and 7 before this court. 6. Notice is seen issued on the following questions of law: “(a) In as much as in the decree in O.S. 122/97 as modified by the decree in A.S.393/81 of the District Court, Thalassery, the shares to which the members of the unallotted group are entitled had not been determined, were not the courts below bound to determine the shares to which the parties are entitled to in the present suit especially when the parties in the unallotted group are not having equal rights. (b) is the division of shares decreed by the courts below legally correct? © Are the defendants 9 to 11 who are the legal representatives of the assignors of D1 entitled to claim that Ext.B1 assignment deed by S.A.477/1997. 4 their predecessor in interest was not binding on them. Is the finding of the courts below that Ext.B1 assignment deed is valid legally sustainable? (d) Cannot the assignee under Ext.B1 claim that she is entitled to the share to which the legal representatives of the assignor are entitled to? (e) Is the finding of the courts below that the claim of the appellants under Ext.B1 was barred by res judicata and estoppel by the reason of the decree in O.S. 122 of 1977 proper and valid?” 7. Learned counsel appearing for the appellants confined the entire argument to two points. They are, i) quantum of shares and ii) the effect of Ext.B4 document on the rights of the defendants especially the right of the fourth defendant. 8. It is seen from the pleading that defendants 2, 4 and 7 had specifically disputed the shares available to the parties and they pointed out in the written statement that the shares available are, the second defendant is entitled to 7/174 shares and he is also entitled to 42/174 shares. They S.A.477/1997. 5 contended that the claim of shares in the plaint is erroneous and that cannot be granted. Unfortunately, the trial court did not go into that issue at all. After finding that the properties were tavazhy properties, the trial court readily accepted the shares claimed in the plaint, without considering whether it is acceptable or not, and accordingly granted a preliminary decree. 9. In the memorandum of appeal before the lower appellate court and also before this court the appellants had specifically disputed the quantum of shares as decreed by the trial court and also raised a contention with reference to Ext.B4 document. The lower appellate court merely by saying that everything is covered by Ext.A4 judgment simply dismissed the appeal without ascertaining the quantum of shares available to the parties. Infact that was the only serious dispute between the parties before the trial court as well as before the lower appellate court. S.A.477/1997. 6 10. In spite of best efforts, this court was unable to find as to how the quantum of shares has been arrived at by the courts below. The courts below should have addressed this aspect because there is serious dispute. So also the courts below ought to have considered the contentions raised by the fourth defendant with reference to Ext.B4 document. Since these two vital aspects have not been considered by the courts below, it is only just and proper to remand this matter to the trial court for fresh consideration. in the result, this appeal is allowed, the judgments and decrees of the courts below are set aside and the matter is remanded to the trial court for fresh consideration in accordance with law and in the light of what has been stated above. The trial court shall consider the quantum of shares allotted to each of the parties as well as the impact of Ext.B4 on the shares that is due to the parties. The parties shall appear before the trial court on 2.4.2011. The trial court may make every endeavour to dispose of the suit S.A.477/1997. 7 as expeditiously as possible at any rate within six months from the date of appearance of the parties. Office shall send back the records forthwith. P. BHAVADASAN, JUDGE sb.