IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.BHAVADASAN WEDNESDAY, THE 7TH JULY 2010 / 16TH ASHADHA 1932 RSA.No. 386 of 2007() --------------------- AS.45/1999 of PRL.SUB COURT,TRIVANDRUM OS.70/1996 of I ADDL.MUNSIFF'S COURT,TRIVANDRUM .................... APPELLANTS/APPELLANTS/DEFENDANTS: ----------------------------------------------------------------- 1. P.NABEESA BEEVI, AGED 58 YEARS, THUNDAVILAKATHU VEEDU, ATATKULANGARA MANACAUD, THIRUVANANTHAPURAM. 2. ABDUL VAHAB, S/O.AHAMMED PILLAI(DIED) AGED 65 YEARS, RESIDING AT THUNDAVILAKATHU VEEDU, ATTAKULANGARA MANACUAD, THIRUVANANTHAPURAM. 3. SALIM, S/O.SYED MOHAMMED, AGED 38 YEARS, THUNDUVILAKATHU VEEDU, ATTAKULANGARA, THIRUVANANTHAPURAM. 4. SAKIR HUSSAIN, AGED 34 YEARS, THUNDUVILAKATHU VEEDU, ATTAKULANGARA, MANACAUD, THIRUVANANTHAPURAM. 5. FATHIMA BEEVI, AGED 29 YEARS, THUNDUVILAKATHU VEEDU, ATTAKULANGARA, MANACAUD, THIRUVANANTHAPURAM. 6. FAZILA BEEVI, AGED 26 YEARS, THUNDUVILAKATHU VEEDU, ATTAKULANGARA, MANACAUD,THIRUVANANTHAPURAM. 7. FABEENA BEEVI, AGED 21 YEARS, THUNDUVILAKATHU VEEDU, ATTAKULANGARA, MANACAUD, THIRUVANANTHAPURAM. BY ADVS. SRI.K.S.HARIHARAPUTHRAN, SRI.GEORGE MATHEW. Kss ..2/- ..2... RSA.NO.386/2007 RESPONDENT(S): RESPONDENTS/PLAINTIFFS: ---------------------------------------------------------------------- 1. SHAUKKATHALI, AGED 54 YEARS, RAMLUTH MANZIL, PACHALLOOR, THIRUVALLAM VILLAGE, THIRUVANANTHAPURAM. 2. SYNUDDIN, AGED 50 YEARS, KAYYALATH PANAYIL VEEDU, T.C. 48/418, KALLATTUMUKKU, POONTHURA, MUTTATHARA VILLAGE,THIRUVANANTHAPURAM. 3. M.MAJEEDA BEEVI, KAYYALATH PANAYIL VEEDU, T.C.48/418, KALLATTUMUKKU, POONTHURA, MUTTATHARA VILLAGE, THIRUVANANTHAPURAM. 4. MARIAM BEEVI, KAYYALATH PANAYIL VEEDU, TC 48/418, KALLATTUMUKKU, POONTHURA, MUTTATHARA VILLAGE, THIRUVANANTHAPURAM. 5. M.MALUK MOHAMMED, THUNDUVILAKOM, PURAYIDOM, ATTAKULANGARA, MANACAUD VILLAGE, THIRUVANANTHAPURAM. 6. ABDUL RASHEED, S/O.MOHAMMED ALI, AGED 39 YEARS, T.C.39/2098, THUNDUVILAKATHU VEEDU, MANACAUD P.O., THIRUVANANTHAPURAM. BY ADVS. SRI.SUMAN CHAKRAVARTHY, SRI.M.R.RAJESH. THIS REGULAR SECOND APPEAL HAVING BEEN FINALLY HEARD ON 07/07/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Kss P.BHAVADASAN, J. ------------------------------------- RSA No.386 of 2007 ------------------------------------- Dated 7th July 2010 Judgment In a suit for partition as OS No.70/1996 a preliminary decree dated 06.04.1998 was passed. 2. The appeal filed against the preliminary decree did not succeed. Hence the Second Appeal. Notice to the 5th respondent in the SA returned with the endorsement that he is no more. Therefore, the appellant moved IA Nos.1531, 1532 and CM Appl.No.465/10, respectively to set aside the abatement of the RSA, to implead additional respondents 7 to 12 and to condone the delay in filing the above two applications. 3. In the affidavit filed in support of the CM Application, it is stated that the 5th respondent died on 20.07.2002. It is noticed that the lower Appellate Court had passed the Judgment and decree in the first appeal on 20.07.2006. That means, the death of the 5th respondent RSA 386/07 2 was while the matter was pending before the lower Appellate Court. In view of the decision of this Court in Assyamma v. Aisabi (1976 KLT 101) impleading the legal heirs can be done only by that court before which the matter was pending at the time of death of the party. 4. Necessarily, the Judgment and decree will have to be set aside and the matter will have to be remanded to the lower Appellate Court for fresh consideration. 5. Accordingly, this appeal is allowed. The Judgment and decree of the lower Appellate Court are set aside and the matter is remanded to that court for disposal in accordance with law. 6. In view of the remand of the matter to the lower Appellate Court, IA Nos.1531/10, 1532/10 and CM Appl.No.465/10 are closed. P.BHAVADASAN, JUDGE sta RSA 386/07 3 RSA 386/07 4