IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.BHAVADASAN MONDAY, THE 1ST AUGUST 2011 / 10TH SRAVANA 1933 RP.No. 550 of 2011() -------------------- AGAINST THE JUDGEMENT/ORDER IN AS.605/1998 Dated 08/06/2010 .................... REVIEW PETITIONER(S): APPELLANT 4 -------------------------------------------------------- LATHIKA, D/O. BHARATHI AMMA, THURUTHIATH PADINJARE VEETTIL, KARAMUCKU VILLAGE AND DESOM, THRISSUR TALUK. BY ADV. SRI.K.MOHANAKANNAN SMT.A.R.PRAVITHA RESPONDENT(S): APPELLANTS 1 TO 3 AND 5 RESPONDENTS 1 TO 5 --------------------------------------------------------- 1. BHARATHI AMMA, D/O. THURUTHIYATH PADINJARE VEETTIL, KARAMUCKU VILLAGE AND DESOM, THRISSUR TALUK. 2. ACHUTHANANDAN, S/O. BHARATHI AMMA, THURUTHIYATH PADINJARE VEETTIL, KARAMUCKU VILLAGE AND DESOM, THRISSUR TALUK. 3. AJITHAKUMARI, S/O. BHARATHI AMMA, THURUTHIYATH PADINJARE VEETTIL, KARAMUCKU VILLAGE AND DESOM, THRISSUR TALUK. 4. GIRIJA DEVI, S/O. BHARATHI AMMA, THURUTHIYATH PADINJARE VEETTIL, KARAMUCKU VILLAGE AND DESOM, THRISSUR TALUK. 5. BALAKRISHNA MENON, S/O. THURUTHIATH PADINJARE VEETTIL, KALIAMMA, KARAMUCKU VILLAGE AND DESOM, THRISSUR TALUK. 6. DEVAKI AMMA, D/O. THURUTHIATH PADINJARE VEETTIL, KALIAMMA, KARAMUCKU VILLAGE AND DESOM, THRISSUR TALUK. RP 550/11 -2- 7. VIJAYALAKSHMI, D/O. BHARATHI AMMA, PRESENT ADDRESS: VIJAYALAKSHMI RAGHAVAN, D/4, SANTHI KUTTIS, IIND FLOOR, TULINJ ROAD, NALLESAPARA EAST, THARA DISTRICT, MAHARASHTRA. 8. SASIDHARAN, S/O. BHARATHI AMMA, THURUTHIYATH PADINJARE VEETTIL KALI AMMA, KARAMUCKU VILLAGE AND DESOM, THRISSUR TALUK. 9. REGHUNANDANAN, THURUTHIYATH HOUSE, P.O.KANDASSAMKADAVU, EMPLOYEE IN GULF COUNTRIES. BY SRI.P.B.KRISHNAN THIS REVIEW PETITION HAVING BEEN FINALLY HEARD ON 01/08/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: P.BHAVADASAN, J. -------------------------------------------------------- CM Appl.No.963/11 & RP No.550 of 2011 in AS No.605 of 1998 -------------------------------------------------------- Dated this the 1st day of August 2011 Order CM Appl.No.963/11 This is an application filed under Section 5 of the Limitation Act, to condone the delay of 348 days in filing the Review Petition. 2. In the affidavit filed in support of the petition, it is stated that the judgment in AS No.605/98 was delivered on 08.06.2010 and copy application was filed on 26.5.2011. The certified copy was received on 27.5.2011 and the Review Petition ought to have been filed on 08.07.2010. It is also stated in the affidavit that the petitioner is settled in Mumbai with her family and only when she contacted her brother in December 2010, she came to the know that the appeal has been dismissed. The other appellants have preferred an S.L.P. before the Hon. Supreme Court and they are awaiting a decision. RP No.550/11 2 Later on, she came to know that the SLP was also dismissed. Her claim is that the trial court as well as this court have not properly considered her rights and that has caused considerable prejudice to her. She also submits that there is no wilful laches or negligence on her part in not filing the review petition within the stipulated time limit. She therefore, submits that unless the delay is condoned and the R.P. is heard on merits, considerable loss and injury will be caused to her. 3. In order to ascertain whether any purpose will be served by condoning the delay, the merits of the review petition was also gone into. 4. The learned counsel pointed out that the review petitioner is the 4th defendant in the suit and the 4th appellant before this court. According to her, at the time of oral partition said to be effected in the family on 30.04.1970, the petitioner was not born and at the time of execution of the Will in 1986, she was a minor and therefore, the oral partition and the Will are not binding on RP No.550/11 3 her. According to her, these aspects have not been considered by the trial court as well as this court and this affects her rights considerably. 5. Though the above contentions seem to be attractive at the first blush, a closer scrutiny of the judgments of the trial court and this court would reveal that they are without any basis or foundation. The petitioner is the fourth defendant in OS No.866/91 before the Sub Court, Thrissur. The plaintiff and defendants 1 to 5 are the children of Kali Amma, who obtained the plaint schedule property by virtue of an oral partition. The suit was one for recovery of possession on the strength of title. Defendants 1 to 3, by filing a written statement, contested the suit. The petitioner herein, who was the fourth defendant in the suit, filed a separate written statement adopting the contentions in the written statement filed by defendants 1 to 3. 6. Issues were raised and evidence was adduced and it was found by the trial court that both the oral partition and the Will have been established and RP No.550/11 4 accordingly, the suit was decreed. Aggrieved by the decree, defendants 1 to 4 took up the matter in appeal as AS No.605/98 before this court. Before this court also, the oral partition was disputed and this court, on an evaluation of the evidence, found that the oral partition set up is true and that the Will has been proved to be a genuine one. 7. Under the above circumstances, one fails to understand the basis on which the present RP has been filed. The contentions taken by the defendants were considered by the trial court as well as this court. The contentions now taken that the fourth defendant was not born at the time of the oral partition and that she was a minor at the time of execution of the Will, do not arise for consideration in the RP for the simple reason that these grounds were not raised either in the written statement filed in the suit or in the appeal memorandum before this court. In fact, the fourth defendant adopted the very same contentions raised in the written statement filed by defendants 1 to 3. The issues which arose for RP No.550/11 5 consideration were the genuineness of the oral partition and the Will. Those were the main issues in the suit and in the appeal and findings were entered on those issues. The result is that there is absolutely no merit in the review petition and therefore, no purpose will be served by condoning the delay in filing the RP. Apart from that fact, there are no sufficient grounds for condoning the delay also. Accordingly, the delay condonation petition is dismissed. RP No.550 of 2011 In view of the dismissal of the petition for condonation of delay, the review petition is dismissed. P.Bhavadasan, Judge sta RP No.550/11 6