IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN THURSDAY, THE 20TH MAY 2010 / 30TH VAISAKHA 1932 RFA.No. 294 of 2009() --------------------- AGAINST THE ORDER DATED 30/08/2008 IN IA 3357/05 IN OS.301/1988 of II ADDL.SUB COURT,ERNAKULAM .................... APPELLANTS:RESPONDENTS 8 TO: -------------------------------------------------------- 1. ELIZABETH PAPPU, W/O. LATE PAPPU, CHERUVATHOOR HOUSE, ST.BENEDICT ROAD CHOOLAKKAPARAMBIL LANE, COCHIN-18. 2. VINU JOSEPH, S/O.LATE PAPPU, RESIDING AT DO..DO... 3. VIBI JOSEPH, D/O.LATE PAPPU RESIDING AT DO..DO.. BY ADV. SRI.S.B.PREMACHANDRA PRABHU RESPONDENT(S): TRANSPOSED PLAINTIFF & RESPONDENTS 1 TO 7 & LRs OF RESPONDENT NO.1: ------------------------------------------------------------------------ * 1. P.E.MATHEW, S/O.ESTHAPANOSE, AGED 78 YEARS, PADAPURAKKAL HOUSE, CHERANALLORE VILLAGE, CHERANALLORE P.O., EDAPALLY, KANAYANNUR TALUK.( D I E D). ** 2. VICOTORIA, W/O.ITTIRA PEEUSE, ) PANACKAL HOUSE, NAYARAMBALAM (DIED ON 31.1.2009)) ) ** 3. VIRONICA @ MRS.VIRONI THOMAS, )STRUCK OFF W/O. T.L.THOMAS, THARAYIL PARAMBIL HOUSE, ) NEAR JACOB HOSPITAL,KAZHUTHUMUTTU, ) COCHIN DESOM, COCHIN TALUK. Kss .2/- ..2.... RFA NO.294/2009 **4. LILLY, W/O.PAUL .J.CHANDY, ) PADAPURAKKAL PARAMBU, CHERNALLORE DESOM , ) DO VILLAGE, KANAYANNUR TALUK. ) ) ** 5. ANTONY PAULOSE, S/O.LATE PAULOSE, ) TAILOR, THOTTAKATH, WARD NO.5, H.NO. 5/128, ) CHERANALLORE .P.O.,KANAYANNUR TALUK. ) ) ** 6. DELSY STEPHEN, W/O.LATE STEPHEN, ) AMABALAKADAVINU VADAKKU BAGAM, ) CHERANALLORE P.O.,NOW RESIDING AT S.NO.31, ) DOOR NO 602, KADAPILLY ROAD, VYTTILA JUNCTION. ) ) ** 7. BINU STEPHEN (VINU) S/O.LATE STEPHEN, ) S.NO.31,DOOR NO 602, ) KADAPILLY ROAD, VYTTILA JUNCTION. ) ) STRUCK OFF ** 8. JOY PEEUSE, S/O.ITTIRA PEEUSE & VICTORIA, ) AGED ABOUT 42, PANACKAL HOUSE, NAYARAMBALAM) DESOM,NEAR VADEL CHURCH, NAYARAMBALAM. ) ) **9. GRACY VAVACHAN, D/O.ITTIRA PEEUSE & ) VICTORIA, W/O.VAVACHAN, AGED ABOUT 40, ) PANACKAL HOUSE, NAYARAMBALAM DESOM, ) NEAR VADEL CHURCH, NAYARAMBALAM. ) ** NAME OF THE RESPONDENTS 2 TO 9 ARE STRUCK OFF AT THE RISK OF THE PETITIONERS/APPELLANTS AS PER THE ORDER DTD. 6/07/2009 IN I.A.NO.2067/09. ADDL.R2 TO R8 IMPLEADED: R2. EARNEST STEPHEN, S/O. P.E. MATHEW, AGED ABOUT 61, RET.CO.EMPLOYEE, PADAPURAKKAL HOUSE, CHERANALLORE PO., NEAR NITHIYASAHAYA MATHA CHURCH, KOCHI - 34. Kss ..3/- ...3.... RFA NO.294/2009 R3. BARBARA STEBEENA, D/O.P.E. MATHEW AND W/O.SIMON, AGED ABOUT 58, THAYANKERY HOUSE, AMBALAKADAVU, CHERANALLORE P.O., KOCHI - 34. R4. MERTA PHILOMINA, D/O.P.E. MATHEW AND W/O.MONCY, AGED ABOUT 55, THAYANKERY HOUSE, NEAR MARY MATHA CONVENT, VAZHAKALA, KAKKANAD P.O., KOCHI - 30. R5. JOSEPH RUBAN, S/O.P.E. MATHEW, AGED ABOUT 52, PADAPURAKKAL HOUSE, CHERANALLORE P.O., KOCHI - 34. R6. PAUL DENNIS, S/O. P.E.MATHEW, AGED ABOUT 49, PADAPURAKKAL HOUSE, NEAR KACHERIPADY, CHERANALLORE P.O., KOCHI - 34. R7. URSULA SHERLY, D/O. P.E.MATHEW, AGED ABOUT 44, CHERIKALAKATH HOUSE, MARATHUKUNNU, NEAR OTTUPARA, ENKKAKAD P.O., VADAKKENCHERRY, THRISSUR DISTRICT. R8. JUSTINE SHEEBA, D/O.P.F. MATHEW, W/O.BASIL THOMAS, THANNIKKAL HOUSE, NEAR NAVANIRMAN SCHOOL ANNEX, VAZHAKKALA, KAKKANAD P.O., KOCHI - 30. *LEGAL REPRESENTATIVES OF THE DECEASED R1 ARE IMPLEADED AS ADDL.R2 TO R8 AS PER ORDER IN I.A.3131/09 DTD. 2/2/2010. R3 TO R5, R7 & R8 BY ADV. SRI.M.P.RAMNATH R6 BY ADV. SRI.N.C.JOSEPH THIS REGULAR FIRST APPEAL HAVING BEEN FINALLY HEARD ON 20/05/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Kss ORDER ON I.A.NO.1561/2009 IN RFA NO.294/2009 DISMISSED 20/05/2010 SD/- M.N.KRISHNAN, JUDGE /TRUE COPY/ P.A.TO JUDGE Kss M.N. KRISHNAN, J. = = = = = = = = = = = = = = R.F.A. NO. 294 OF 2009 = = = = = = = = = = = = = = Dated this the 20th day of May, 2010. J U D G M E N T This is an appeal preferred against the final decree passed in I.A.3357/05 in O.S.301/88. The appellants herein are respondents 8 to 10 in the final decree and they are the children of the original plaintiff in the suit. The point that arises is regarding the entitlement of these persons to any right over the property. Now so far as the right of parties are concerned a preliminary decree has been passed and it has become final. There is no quarrel about the said thing. The original plaintiff moved a suit for partition and later abandoned the suit and thereafter 2nd defendant was transposed as the plaintiff. So the 2nd defendant as transposed plaintiff and the 4th defendant on the party array, the trial court gave a preliminary decree entitling 1/2 shares each to the transposed plaintiff namely D2 and the 4th R.F.A.. 294 OF 2009 -:2:- defendant namely George. George died. The plaintiff moved an application for final decree and sought for a declaration therein that he is the absolute heir of George and therefore he is entitled to absolute right over the property. In spite of finding that he is the absolute owner I do not know still the trial court has proceeded to pass a final decree. Now the question to be considered is whether the legal representatives of the deceased original plaintiff who are the appellants before me are entitled to any share. They are not claiming the properties as legal representatives of the original plaintiff having right over the property. They are claiming right over the property as the legal representatives of the deceased D4. Deceased D4, George died without leaving his father or mother or any other lineal descendant. So as per S.47 of the Indian Succession Act the legal representatives will be his brothers, sisters and the child or children of such of them as may have died before him. So if George is survived by the child or children of a pre-deceased brother S.47 of the Indian Succession Act will come into play R.F.A.. 294 OF 2009 -:3:- and over the property of George they will be entitled to the share as provided under S.47 of the Indian Succession Act. 2. Now the learned counsel for the legal representatives of transposed plaintiff very strongly contended for the position that the appellants are only the legal representatives of the original plaintiff who has abandoned the right in the property and therefore since abandonment is with respect to the subject matter of the suit the legal representatives will not be entitled to any share. I would have totally accepted the contention of the learned counsel had it been a claim where the legal representatives are claiming right over the property under the original plaintiff. Since the original plaintiff has abandoned there is nothing survive for him to get right. But as far as this case is concerned it is totally different. The present appellants are claiming right over the property as the legal representatives of the 4th defendant who had right in the property declared by virtue of the preliminary decree and that right remains. When he dies the legal representatives as contemplated R.F.A.. 294 OF 2009 -:4:- under S.47 of the Indian Succession Act are entitled to succeed to his right and so the appellants will be also entitled to claim right over the property. Really such a share also would devolve upon legal representatives of transposed plaintiff because they stand on the same footings. So the matter has not been considered in that perspective. 3. Therefore the final decree passed by the trial court is set aside and the matter is remitted back and the Court to pass a final order after hearing the declaratory right of the legal representatives and then issue a Commission for partition of the property by metes and bounds. Parties are directed to appear before the trial court on 1.7.2010. 4. It is also made clear that the appellants are permitted to participate and proceed with the final decree proceedings by filing their counter statements etc. The Appeal is disposed of accordingly. M.N. KRISHNAN, JUDGE. ul/-