Devikamani K.N. v. Sarojini and others (Tr.P.(C). No.66 of 2011 & O.P.(C). No.324 of 2011)

**IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT :** **THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH** **WEDNESDAY, THE 10TH AUGUST 2011 / 19TH SRAVANA 1933** **Tr.P(C).No. 66 of 2011()** **---------------------------------** **O.S. NO.112/2009 OF SUB COURT, KATTAPPANA & OS. NO.25/2011 OF SUB COURT, MAVELIKKARA** **....................** ## **PETITIONER/2ND DEFENDANT IN O.S.112/2009** **-------------------------------------------------------------------** **DEVIKAMANI K.N, W/O.P.K. MONY, HOUSE NO.1/202, (OLD HOUSE NO.XIII/204 & OLD HOUSE NO.1/112), VALLATTU HOUSE, 35TH MILE, PERUVANTHANAM PANCHAYAT, MUNDAKKAYAM EAST P.O., PEERMEDU TALUK, IDUKKI (DIST), PIN-686 513.** **BY ADV. SRI.RINNY STEPHEN CHAMAPARAMPIL, SMT.ASHA ELIZABETH MATHEW.** ## **RESPONDENTS/PLAINTIFF & DEFENDANT NO.1 IN OS.112/2009** **-------------------------------------------------------------------------------------------** **1. SAROJINI, AGED 76 YEARS,** **W/O.LATE M. RAGHAVAN, VALLATTU HOUSE, 35TH MILE, K.K. ROAD, KOKKAYAR VILLAGE, MUNDAKKAYAM EAST P.O., PEERMADE TALUK.** **2. V.R. JASWANTHLAL, AGED 52 YEARS,** - **S/O.LATE M. RAGHAVAN, VALLATTU HOUSE, 35TH MILE, K.K. ROAD, KOKKAYAR VILLAGE, MUNDAKKAYAM EAST P.O., PEERMADE TALUK.** **3. JESNY SAROJ, AGED 45 YEARS,** - **W/O.SHAJI, VALLATTU HOUSE, 35TH MILE, KOKKAYAR VILLAGE, PEERMADE TALUK.** **4. BINI SAROJ, AGED 41 YEARS,** - **W/O.RENJITH DAYAL, VALLATTU HOUSE, 35TH MILE, KOKKAYAR VILLAGE, PEERMADE TALUK.** **5. SAJJU SAROJ, AGED 39 YEARS,** - **S/O.SURESH, VALLATTU HOUSE, 35TH MILE, KOKKAYAR VILLAGE, PEERMADE TALUK.** **6. KARTHIYANIAMMA, AGED 85 YEARS,** - **W/O.LATE NARAYANAN, MATTATHIL HOUSE, NEAR B.P. COLLEGE, MULLAKKULAM NORTH P.O., PIRAVOM.** **R1 TO R5 BY ADV. SRI.J.OM PRAKASH.** **THIS TRANSFER PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 10/08/2011, ALONG WITH OPC NO. 324 OF 2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** **rs** **Tr.P(C).No. 66 of 2011** ## **APPENDIX** **PETITIONER'S ANNEXURES:** **ANNEXURE I: COPY OF THE PLAINT IN O.S. NO.25/2011 OF SUB COURT, MAVELIKKARA.** **ANNEXURE II: COPY OF THE PLAINT IN O.S. NO.112/2009 OF THE SUB COURT, KATTAPPANA.** **ANNEXURE III: COPY OF THE ORDER DATED 10/01/2011 OF THE SUB COURT, KATTAPPANA IN I.A. NO.1029/2009 IN O.S. NO.112/2009.** ## **RESPONDENTS ANNEXURES: NIL.** **//TRUE COPY//** **P.A. TO JUDGE** **rs** ## **THOMAS P. JOSEPH, J.** **-------------------------------------Tr.P.(C) No.66 of 2011 & O.P.(C) No.324 of 2011 -------------------------------------Dated this the 10[th] day of August, 2011.** ## **ORDER** These proceedings concerned suits pending in the Sub Court, Kattappana and Sub Court, Mavelikkara. O.S.No.112 of 2009 pending in the Sub Court, Kattappana is a suit for partition filed by respondents 1 to 5 against a sole defendant, Karthiayani, mother of petitioner in Tr.P.(C) No.66 of 2011. Respondents 1 to 5 claimed partition of three items in O.S.No.112 of 2009 of the Sub Court, Kattappana. Those properties are situated within the local limits of the said court. According to respondents 1 to 5, the said properties devolved on them on the death of their predecessor-in-interest – Sahadevan. It is contended by learned counsel for petitioner in Tr.P.(C) No.66 of 2011 that the sole defendant in O.S.No.112 of 2009, Karthiayani is sailing with respondents 1 to 5 and hence petitioner sought her impleadment in that suit vide I.A.No.1029 of 2009. Learned Sub Judge found that petitioner in Tr.P.(C) No.66 of 2011 is a proper party to the suit having regard to the various contentions parties raised concerning the right or devolution as well as the nature of property and accordingly impleaded petitioner in Tr.P.(C) No.66 of 2011 as additional defendant in O.S.No.112 of 2009. It is submitted that in O.S.No.112 of 2009, petitioner in Tr.P.(C) No.66 of 2011 has filed written statement contending that the properties are thavazhi properties and hence on the death of Sahadevan, the 2 ## **Tr.P.(C) No.66 of 2011 & O.P.(C) No.324 of 2011** properties involved in O.S.No.112 of 2009 reverted to the thavazhi to be partitioned in accordance with the rules governing division of thavazhi properties. Respondents 1 to 5 challenged the order of impleadment of petitioner in Tr.P.(C) No.66 of 2011as additional defendant in O.S.No.112 of 2009 in O.P.(C) No.324 of 2011. On the other hand, petitioner in Tr.P.(C) No.66 of 2011 seeks transfer of O.S.No.112 of 2009 from the Sub Court, Kattappana to Sub Court, Mavelikkara where she has filed O.S.No.25 of 2011. 2. To consider the rival contentions it is necessary to refer to the facts of the case. (Parties are referred to as petitioner and respondents as in Tr.P.(C) No.66 of 2011). According to the petitioner, there are altogether 33 items which belong to the Vallat Tarward. Out of the 33 items, 25 items are described as B schedule in O.S.No.25 of 2011 (of the Sub Court, Mavelikkara) and seven items are described as A schedule therein ( of which, three items are the subject matter in O.S.No.112 of 2009 of the Sub Court, Kattappana). According to the petitioner, the properties were acquired by one V.K.Raman, the then karanavan of the thavazhi in the year 1919. He is the common ancestor. The said Raman had gifted seven items (of which three items are involved in the suit at Kattappana Sub Court) to Kochupennamma as per a gift deed. The said Kochupennamma had six children- two males and four females. The eldest son of Kochupennamma, Kunjupanicken acquired 25 items as karanavan of the thavazhi and in the year, 1957 there was a partition in the thavazhi as per which 3 ## **Tr.P.(C) No.66 of 2011 & O.P.(C) No.324 of 2011** 33 items were partitioned among the six children of Kochupennamma. It is the case of petitioner that the partition deed of 1957 to the extent it allotted property to the male children is void as there could be no share to the male children. It is the further case of petitioner in O.S.No.25 of 2011 that the A and B schedule properties belong to the thavazhi and certain properties are entrusted to Kunjupanicken. Claiming right as a female descent of the thavazhi, petitioner sought partition in O.S.No.25 of 2011. 3. It is in respect of 3 items that respondents 1 to 5 filed O.S.No.112 of 2009 before the Sub Court, Kattappana claiming partition alleging that the said properties belonged to Sahadevan and on the death of Sahadevan respondents 1 to 5 acquired title over the property. 4. So far as impleadment of petitioner as additional defendant in O.S.No.112 of 2009 is concerned learned counsel for respondents 1 to 5 (petitioners in O.P.(C) No.324 of 2011) has contended that there is no contention raised by petitioner in the affidavit in support of the application for impleadment that properties are thavazhi properties and on the other hand, she has proceeded on the basis that the three items in O.S.No.112 of 2009 belonged absolutely to Sahadevan. It is also pointed out by learned counsel that petitioner had filed suits earlier, O.S.No.59 of 2005 of the Sub Judge, Mavelikkara where she claimed to be an adopted daughter of Kunjupanicken and again O.S.No.73 of 2009 but, in neither of those cases petitioner had a contention that properties are thavazhi properties and that she is entitled to a share in the properties. It is 4 ## **Tr.P.(C) No.66 of 2011 & O.P.(C) No.324 of 2011** also pointed out that the said suits were dismissed. A further contention that learned counsel raised is that O.S.No.25 of 2011 filed before the Sub Court, Mavelikkara is barred by limitation and hence liable to be dismissed. In these circumstances learned Sub Judge was not correct in impleading petitioner as additional defendant in O.S.No.112 of 2009. 5. In response it is contended by learned counsel for petitioner that petitioner has filed written statement in O.S.No.112 of 2009 raising appropriate contentions and that in O.S.No.25 of 2011 filed by her in the Sub Court, Mavelikkara it is her specific case that plaint A schedule was acquired by the then karanavan on behalf of the thavazhi and in his capacity as karanavan he acquired plaint B schedule as well. It is also submitted that right of thavazhi on properties is asserted even in the partition deed of the year, 1957 and hence male descents are not entitled to any share. Learned counsel pointed out that in the circumstances petitioner is a necessary party in O.S.No.112 of 2009 since common questions of law and fact are required to be decided in both the suits. It is pointed out that to avoid conflicting decisions on the same issues joint trial of both the suits is required. Since of the 33 items only three items are situated within the local limits of Sub Court, Kattappana it is appropriate that O.S.No.112 of 2009 pending in Sub Court, Kattappana is transferred to Sub Court, Mavelikkara for joint trial. Reliance is placed on the decision in **Rosamma** ## **Joseph v. P.C.Sebastian (1995 (1) KLJ 821).** 5 ## **Tr.P.(C) No.66 of 2011 & O.P.(C) No.324 of 2011** 6. So far as impleadment of petitioner as additional defendant in O.S.No.112 of 2009 is concerned, true that as learned counsel for respondents 1 to 5 pointed out, in the application for impleadment petitioner has proceeded as if three items involved in O.S.No.112 of 2009 belonged absolutely to Sahadevan, the predecessor-in-interest of respondents 1 to 5. But, in the plaint in O.S.No.25 of 2011 petitioner has a specific contention that all items including the properties which are subject matter of O.S.No.112 of 2009 are thavazhi properties. Once it is found that the properties are thavazhi properties then question arises whether the male descents are entitled to any share in the properties. In that way the question arises in O.S.No.25 of 2011 whether the male descents of the thavazhi are entitled to any share in the property notwithstanding the partition deed as well as the subsequent documents in their favour. 7. So far as impleadment of petitioner as additional defendant in O.S.No.112 of 2009 is concerned, learned Sub Judge has taken the view that she is a proper party. Having regard to the contentions raised by parties and in the light of plea that petitioner has taken in O.S.No.25 of 2011, I am inclined to concur with the view of learned Sub Judge, Kattappana. Otherwise, conflicting decisions on the same issue might arise. I therefore do not find reason to interfere with the order impleading petitioner as additional defendant in O.S.No.112 of 2009. 6 ## **Tr.P.(C) No.66 of 2011 & O.P.(C) No.324 of 2011** 8. Then the question is whether to facilitate joint trial the suits are to be consolidated in the same court. I referred to the decision in **Rosamma** ## **Joseph v. P.C.Sebastian** . Yet another decision is **Prem Lala Nahata v.** **Chandi Prasad (2007 (1) KLT 910)** where the Supreme Court in paragraph 16 has highlighted the circumstances under which there could be a joint trial of the cases. In that decision it is held that the main purpose of consolidation is to save costs, time and effort and to make the conduct of several actions more convenient by treating them as one action. The jurisdiction to consolidate arises where there are two or more matters of causes pending in the court and it appears to the court that some common question of law or fact arises in both or all the suits or that the rights to relief claimed in the suits are in respect of or arise out of the same transaction or series of transactions. 9. I referred to the contention which petitioner has raised as plaintiff in O.S.No.25 of 2011 that all the 33 items of which three items are involved in O.S.No.112 of 2009 of the Sub Court, Kollam belonged to the thavazhi and that it was acquired by the then karanavan on behalf of the thavazhi. 10. The question whether O.S.No.25 of 2011 is barred by limitation as contended by counsel for respondents 1 to 5 or, in view of non-claiming of right over the properties as if it is belonged to thavazhi in O.S.Nos.59 of 2005 and 73 of 2009 petitioner is entitled to claim right over properties including in 7 ## **Tr.P.(C) No.66 of 2011 & O.P.(C) No.324 of 2011** O.S.No.25 of 2011 is not a matter which this Court is required to consider. That is a matter to be considered by the trial court at the time of trial. To avoid conflicting decision it is appropriate that the suits are to be consolidated in the same court for joint trial. 11. Now the question is whether in which court the suits are tried. In O.S.No.25 of 2011 property involved is 33 items while in O.S.No.112 of 2009 three items are involved. Normally suits relating to immovable properties are to be tried in the court having jurisdiction over the area where the properties are situated. In the cases on hand large items of properties are involved in O.S.No.25 of 2011. In that view of the matter it is appropriate that both the suits are consolidated in the said court for joint trial. 12. I make it clear that whatever observations I have made above regarding the nature of properties and entitlement of parties to the properties will be confined to the disposal of these proceedings and shall have no bearing on the decision learned Sub Judge is to take on the disputed questions. Resultantly these petitions are disposed of in the following lines: i. O.P(C) No.324 of 2011 is dismissed. ii. Tr.P.(C) No.66 of 2011 is allowed. O.S.No.112 of 2009 of the court of learned Sub Judge, Kattappana is withdrawn from that court and made over to the Sub Court, Mavelikkara for joint trial along with O.S.No.25 of 2011. iii. It is made clear that I have not pronounced verdict on any of the 8 ## **Tr.P.(C) No.66 of 2011 & O.P.(C) No.324 of 2011** disputed questions involved in the suits and whatever observations and findings contained in this order are confined to the disposal of these proceedings. iv. The suits shall be disposed of as expeditiously as possible after completing the pre-trial steps untrammelled by any observation or finding contained in this order. v. Learned Sub Judge, Kattappana while transmitting the records of O.S.No.112 of 2009 to the court of learned Sub Judge, Mavelikkara shall fix the date of appearance of parties in the transferee court with due intimation to the counsel on both sides. All pending interlocutory applications are dismissed. **THOMAS P.JOSEPH, Judge.** **cks**