IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.BHAVADASAN FRIDAY, THE 18TH NOVEMBER 2011 / 27TH KARTHIKA 1933 RP.No. 666 of 2011 --------------------------- [THE JUDGEMENT DATED 16/06/2011 IN IN SA.NO.470/2000 OF THIS HON'BLE COURT] .................... REVIEW PETITIONERS/RESPONDENTS 1 AND 2: --------------------------------------------------------------------- 1. KAMALAKSHY AMMA SAROJINI AMMA, BHAGAVATHIVILA MELEPUTHEN VEEDU, KULATHOOR DESOM, KULATHOOR PAKUTHY. 2. MATHEVAN PILLAI SUKUMARAN NAIR, VADAKKE NADUTHATTU PUTHEN VEEDU, KANJIKUZHY, KARODE DESOM, KARODE VILLAGE. BY ADVS. SRI.S.V.PREMAKUMARAN NAIR, SRI.R.T.PRADEEP. RESPONDENT/APPELLANT: ---------------------------------------- KESAVA PILLAI BHUVANENDRAN NAIR, K.B.BHAVAN, MANGALAM, MANGALAM DESOM, PONMANA VILLAGE, KALKULAM TALUK, KANYAKUMARI DISTRICT - 673 001. BY ADV. SRI. G.S. REGHUNATH. THIS REVIEW PETITION HAVING BEEN FINALLY HEARD ON 18/11/2011,THE COURT ON THE SAME DAY PASSED THE FOLLOWING: Prv. P.BHAVADASAN, J. - - - - - - - - - - - - - - - - - - - - - - - C.M.A.No. 901 of 2011 AND R.P.NO.666 OF 2011 IN S.A.No.470 of 2000 - - - - - - - - - - - - Dated this the 18th day of November, 2011 O R D E R This is a petition to condone the delay of 47 days in filing the review petition. 2. In the affidavit in support of the petition, it is pointed out that, on receipt of notice of the admission of appeal from this Court, they had engaged Advs. Sri.S.V.Premakumaran Nair & Sri.R.T.Pradeep to appear before this Court on behalf of the respondents. It is stated that it was from the respondents in this petition that they came to know that the appeal has been disposed of. On enquiry, they understood that the vakalath filed by the counsel might have been defective and that was omitted to be noticed. It is therefore pointed out that, the second appeal was allowed in their absence and it is also pointed out that in the cause title, the name of their counsel was not -:2:- C.M.A.No. 901 of 2011 AND R.P.NO.666 OF 2011 shown and that case was not noticed. It is pointed out that, they have substantial contentions in the matter and disposal of the second appeal without hearing them had caused substantial injury to them. It is therefore prayed that the delay be condoned and the review petition be heard on merits. 3. The petition is very strongly opposed by the respondent. They point out that no vakalath was infact filed at all and their claim that the vakalath has been filed is without any basis. 4. In order to ascertain whether the claim of the petitioners that a vakalath had infact been filed, the office was asked to verify the same. The endorsement from the office reads as follows:- “On verification it is found that no such vakalath is seen filed. It is verified in the defect seat in filing section also”. It is therefore quite evident that no vakalath had ever been filed in the appeal and the claim made to the contrary is totally false. -:3:- C.M.A.No. 901 of 2011 AND R.P.NO.666 OF 2011 5. Notwithstanding the above fact, in order to ascertain if there is any real grievance in the matter, the review petition was heard on merits. 6. The sole contention of the review petitioners is that, this Court had failed to consider the question as to whether property in the hands of Gouri Pillai acquired the character of a Sub tarwad property on birth of children to her as per the Marumakkathayam law. It is pointed out by the learned counsel that, that was the main issue that arose for consideration in this appeal. It is also pointed out that, the appellant had with ulterior motive removed some of the parties from the party array and then had obtained an order from this Court. 7. On going through the judgment in the second appeal, it is seen that none of the above contentions have any merits. The question before this Court was whether the Ext.B1 document was a settlement deed or a partition deed. The trial court had taken the view that it is a settlement -:4:- C.M.A.No. 901 of 2011 AND R.P.NO.666 OF 2011 deed and property in the hands of Gouri Pillai cannot be treated as the sub-tarwad property and none of them acquired right over the property by way of birth. The donees obtained the property by means of a settlement deed. However, the lower appellate court was of the view that if a female obtained self acquired property and subsequently children are born to her, it attained the character of a sub tarwad property. 8. This Court has to consider whether the claim made by the aggrieved persons regarding the nature of Ext.B1 is correct or not. Though Ext.B1 was styled as a partition deed, the contention taken up before this Court was that, it was in fact a settlement deed as could be seen from the recitals contained in the document. 9. This Court considered in detail the recitals in Ext.B1 and the various decisions on that point and had come to the conclusion that Ext.B1 is a settlement deed and not a partition deed. The reasons given for coming to such -:5:- C.M.A.No. 901 of 2011 AND R.P.NO.666 OF 2011 a conclusion was that, there were no evidence at all to show that the parties to Ext.B1 had pre-existing rights and it was found that, it was by virtue of Ext.B1 document that rights were created in favour of the executants of the documents. It is also found by this Court, that none of the executants of Ext.B1 acquired a right in the property obtained by them by virtue of their birth in the family but obtained right as per Ext.B1 settlement deed. This Court then went on to consider if subsequently born children to the donees will change the character of the property to the sub tarwad property. After referring to various decisions, this Court held that it could not be so and that continues to be the self acquired property of the persons concerned. 9. Therefore it could be seen that the contention urged by the review petitioners are considered in detail while disposing of the second appeal. There is no merit in the review petition and the grievance shown in the review petition is imaginary. -:6:- C.M.A.No. 901 of 2011 AND R.P.NO.666 OF 2011 In the light of the fact that there is no merit in the review petition, no purpose will be served by condoning the delay in filing the review petition. Accordingly the delay condonation petition is dismissed, and so also the review petition. There will be no order as to costs. P.BHAVADASAN, JUDGE kkj