IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.R.RAMAN & THE HONOURABLE MR. JUSTICE V.K.MOHANAN WEDNESDAY, THE 23RD JANUARY 2008 / 3RD MAGHA 1929 AS.No. 581 of 1999(A) --------------------- AGAINST THE ORDER DATED 15/06/1998 IN IA 2386/93 IN OS.19/1110 ME of DISTRICT COURT, THRISSUR .................... APPELLANT: ----------------- KRISHNANKUTTY @ U.K.NAIR, S/O. ULLATTIL LAKSHMI AMMA, NALLEPPILLY VILLAGE, CHITTOOR TALUK. BY ADV. SRI.P.SANJAY SRI.P.GOPAL SRI.A.PARVATHI MENON RESPONDENTS: ---------------------- 1. RUGMINI AMMA ULLATTIL (DIED), NALLEPPILLY VILLAGE, CHITTOOR TALUK - LEGAL REPRESNTATIVES - PARUKKUTTY AMMA @ MANIKAM, W/O.U.P.MENON, HARIJAN BHATTI, N.R.K. ROAD, STREET NO.10, NEW DELHI - 11005. 2. PADMAVATHY @ VESA,, ULLATTIL HOUSE, KALLENGAD ROAD, NALLEPPILLY (VIA), CHITTOOR. 3. BALAKRISHNA CHAITHANNIAM @ RASAPPAN, RAILWAY QUARTERS NO.4, P.O.THIRUPPATHUR, N.A.A. DISTRICT, PIN 635 601. 4. VENKITTA SUBRAMANIAM, S/O. KAILASA IYER, ULLATTIL HOUSE, KALLENGAD ROAD, NALLEPPILLY (VIA) CHITTOOR. 5. PARU AMMA, W/O. GOVINDAN NAIR, ULLATTIL HOUSE, NALLEPPILLY, PALAKKAD. 6. LAKSHMIKUTTY AMMA, D/O. K.GOVINDAN NAIR, OF DO. DO 7. MEENAKSHY AMMA, D/O. DO. DO. 8. AMMALU AMMA, D/O. DO. DO. A.S.NO. 581/1999 2 9. ITTIRA RASA PANICKER, S/O. DO. DO. 10. DAKSHAYANI AMMA, D/O. DO. DO. 11. DEVAKY AMMA, D/O. DO. DO. 12. KAMAKSHY AMMA, D/O. DO. DO. BY ADV. SRI.P.R.VENKETESH THIS APPEAL SUITS HAVING BEEN FINALLY HEARD ON 23/01/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: P.R.RAMAN & V.K.MOHANAN,JJ. ---------------------------------------------- A.S.N0.581 OF 1999 ---------------------------------------------- Dated, 23rd January 2008. JUDGMENT Raman,J. This appeal is filed against the order in I.A.No.2386 of 1993 in O.S.No.19 of 1110 M.E. Appellant is the 12th defendant in a suit for partition. The present appeal is directed against the final decree passed by the court below. It is admitted that preliminary decree was passed partitioning item No.94 of plaint A schedule property. Total extent is 17.94 cents. As per the preliminary decree, plaintiff, defendants 1 to 13 and 15 are entitled to 1/15 share. Defendants 16 to 23 are the legal representatives of 15th defendant who died during the pendency of the proceedings. During the pendency of the proceedings, the appellant(12th defendant) purchased the rights of some other sharers as evidenced by Exts.A1 to A3 thereby he is entitled to 17/30 shares. The respondents in the final decree application are the children of deceased 5th defendant. It is contended that they AS 581/99 -:2:- will be entitled to only 3/30 shars, i.e., an extent of 1.794 cents. However, after passing the final decree, prior to the present order, respondents in the final decree application assigned an extent of 8.5 cents to 4th respondent. In the meanwhile, the appellant herein also filed a suit for injunction against the legal representatives of the 5th defendant who are respondents 1 to 3 herein. The said suit O.S.79/1987 which was decreed only partially because of the death of some of the sharers who died without legal heirs, there arose issue regarding re-allotment of shares. According to the appellant they are entitled to 12/15 shares. In this case, the preliminary decree was passed as early as in 1940. Ist defendant died in 1947. 3rd defendant died in 1973 and 6th defendant died in 1986 and the plaintiff in 1946. These details are, however, stated only in the appeal memorandum but not in the final decree application filed by the appellant. The court below in such circumstances, held that unless the date of death of the parties are stated and proved, the contention of the appellant for allotment of more shares to AS 581/99 -:3:- him cannot be granted. It is in the above circumstance, the present appeal is filed. 2. Heard both sides. 3. The factum of death of Defendants 1, 3 and 6 and the plaintiff prior to the preliminary decree is not disputed. However, the question arose as to whether there will be any change in the actual shares to be allotted to the appellant if the death happened prior to 1956 or after 1956 as the case may be. In this connection it is stated that even if those sharers died prior to 1956, there will not be any change in the situation, and their right will devolve on the remaining shareholders as per law of succession. It is contended that even as per the Marumakkathayam law, in the absence of any legal heirs, it will revert to the Thavazhi and in case the death happened after 1956, it will devolve on the legal heirs, if any, and in the absence of such legal heirs, it will devolve on the sharers. That there are no legal heirs left behind the deceased is not disputed by filing any counter by the contesting respondents and therefore the question would be AS 581/99 -:4:- whether there will be any change in the situation if the death occurred prior to 1956 or after 1956. In case as per the law applicable to the parties, when there are no legal heirs left and the property is to devolve on the remaining parties to the suit only, then the date of death is not relevant. Since the court below did not advert to this aspect of the matter, it is appropriate that such question be considered by the court below. For that purpose, we set aside the impugned order and remand the matter to the court below. The parties can adduce fresh evidence regarding the date of death of any of the parties concerned, legal heirs etc. Such opportunity will be available to the respondent as well. Since we remand the matter because the averments contained in the appeal memorandum are not covered in the pleadings, it is open to the appellant to amend the application and incorporate necessary pleadings. The contesting respondents are also given opportunity to file counter and the matter shall be disposed of expeditiously and in accordance with law. The impugned order is set aside for the limited purpose enabling AS 581/99 -:5:- the court below to pass fresh orders. The parties shall appear before the court below on 28-2- 2008. P.R.RAMAN, JUDGE. V.K.MOHANAN, JUDGE. kvm/- AS 581/99 -:6:- P.R.RAMAN & V.K.MOHANAN, JJ. A.S.No.581 OF 1999 Judgment Dated:23.1.2008