IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.PADMANABHAN NAIR TUESDAY, THE 26TH FEBRUARY 2008 / 7TH PHALGUNA 1929 RFA.No. 423 of 2006() --------------------- OS.49/1987 of SUB COURT, HOSDRUG .................... APPELLANTS(PETITIONERS/PLAINTIFFS): -------------- 1. SHINI JOSEPH. 2. SHIBA JOSEPH 3. VINOY JOSEPH. 4. RAJESH JOSEPH 5. SHIJA JOSEPH. 6. TITO JOSEPH. (APPELLANTS ARE THE CHILDREN OF LATE JOSEPH AND ANNAKUTTY, RESIDING AT KOLICHAL,PANATHADY VILLAGE, HOSDURG TALUK AND THE APPELLANTS ARE REPRESENTED BY THEIR POWER OF ATTORNY HOLDER VATTAKALAM BABY JAQCOB, KODOTH VILLAGE, HOSDURG TALUK). BY ADV. SRI.D.KRISHNA PRASAD SRI.D.NARENDRANATH SRI.M.HARISHARMA SRI.T.P.ELDHOSE SMT.O.K.SANTHA RFA.No.423/2006 : 2 : RESPONDENTS: RESPONDENTS/DEFENDANTS. ------------------ 1. MAKKIYIL JOSE, S/O. THOMAS, RESIDING AT ADOTHUKAYA, PANATHADY VILLAGE, HOSDRUG TALUK, P.O.MALAKALLU. 2. MAKKIYIL MATHEW, S/O. THOMAS, RESIDING AT ADOTHUKAYA, PANATHADY VILLAGE, HOSDRUG TALUK, P.O.MALAKALLU. 3. MURIYAN VELIL ANNAKUTTY, W/O. LATE JOSEPH, RESIDING AT KOLICHAL, PANATHADY VILLAGE, HOSDURG TALUK. 4. MURIYAN VELIL ROY JOSE, S/O. LATE JOSEPH,RESIDING AT KOLICHAL, PANATHADY VILLAGE, HOSDURG TALUK. 5. M.T.THOMAS, S/O. MAKKAYIL THOMAS ALIAS OUSEPH THOMAS, 1365008, 171, F.DDCOY CEL 203 ENG. REGT.C/O.56 A.P.O. BY ADV. SRI.A.M.SHAFFIQUE SRI.A.M.SHAFFIQUE SRI.E.K.NANDAKUMAR SRI.A.K.JAYASANKAR NAMBIAR SRI.V.RAJENDRAN THIS REGULAR FIRST APPEAL HAVING BEEN FINALLY HEARD ON 26/02/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K.PADMANABHAN NAIR, J. ------------------------------- R.F.A.No.423 of 2006 ------------------------------- Dated this the 26th February, 2008. J U D G M E N T This appeal is filed by the plaintiffs in O.S.No.49/1987 on the file of the Sub Court, Hosdurg. The Trial Court dismissed the final decree application filed by the appellants in a suit for partition. Appellants and respondents 3 and 4 are the heirs of deceased Joseph. The suit properties originally belonged to Joseph. After his death, the same devolved upon the appellants and respondents 3 and 4. 3rd respondent who was acting as the guardian of appellants executed Ext.A1 sale deed in favour of defendants 1 and 2. The appellants have filed the suit for setting aside Ext.A1 sale deed and for partition. The trial curt found that Ext.A1 is a voidable document and appellants are entitled to partition of their 12/21 shares ignoring Ext.A1. It was further found that using the sale consideration, Ext.B1 property was purchased by the 3rd defendant in the joint name of 3rd respondent and the appellants. The trial court took a view that the appellants are bound to surrender whatever right they had obtained under Ext.B1 in favour of respondents 1 and 2. Since the 5th respondent was the R.F.A. No.423/2006 2 assignee under the second respondent, it was found that the respondents 1 and 5 are entitled to get Ext.B1 right. So, the appellants were directed to convey their rights in Ext.B1 properties to respondents 1 and 5. 2. Challenging the preliminary decree, appellants have filed A.S.No.229/1992 before this Court. Though some slight modifications were made, this Court confirmed the finding of the court below that appellants shall assign their rights under Ext.B1 to respondents 1 and 5. On 6.10.2003, a gift deed was executed. Four of the appellants signed on that day. Two of the appellants signed the document only on 27.12.2003. A contention was raised by the respondents before the trial court that there was no compliance of the direction of this Court. The appellants have filed I.A.No.230/2007 in A.S.No.229/1992 for enlargement of time. In fact, such a petition was not necessary. The document was executed on 6.10.1993 within the time fixed by this Court. The only defect was that two of the executants did not affix their signature on that day. Subsequently, they affixed their signature and presented the same for re-registration. When a document was re-registered, it takes effect from the date of R.F.A. No.423/2006 3 execution. So, actually the document was executed by the appellants assigning their right in favour of respondents 1 and 5 on 6.10.2003. Even assuming that there was delay, I had extended the time for executing the document till 27.12.2003. So, there is compliance of the directions issued by this Court. Gift deed executed by the appellants is a valid document and whatever right the appellants had over Ext.A1 property was validly conveyed to respondents 1 and 5. So, the dismissal of the final decree application on the ground of non- compliance of the directions of this Court as well as the trial court is unsustainable. It is only just and proper that the trial court re- considers the final decree application on its merits. For that purpose, the case has to go back. In the result, the R.F.A. Is allowed. The judgment passed by the trial court dismissing the final decree application is hereby set aside. The final decree application is remanded. The trial court is directed to take I.A.No.1995/2004 in O.S.No.49/1987 back to its file and dispose of the same, afresh, in accordance with law, after affording a reasonable opportunity to both sides to adduce evidence. R.F.A. No.423/2006 4 Parties are directed to appear before the court on 25.3.2008. K.PADMANABHAN NAIR, JUDGE nj.