High Court of KeralaSingle Judge2023-10-25Dismissed

Dulsy Stephen and Others v Vironi Thomas @ Vironica and Others

Case / Petition Number:CRP Nos. 497 & 505 of 2011

Case Details & Bench

Court: High Court of Kerala
Hon'ble Judges: V.G. Arun
Judgment Date: 2023-10-25
Court Decision / Holding: The civil revision petitions are dismissed.
Final Disposition: Dismissed

Parties to the Case

Appellants / Petitioners

Dulsy Stephen
Vinu Stephen
Mary Stephen

Respondents

Vironi Thomas @ Vironica
Lilly
Elizebeth Pappu
Vinu Joseph
Vibi Joseph
Joy P.P.
Gracy Francis
Maji Benny
Eanest Stephen
Barbera Stephena
Marita Philomina
Joseph Ruban
Paul Dennis
Ursula Sherly
Justina Sheeba
Theressia Antony
Rosy Antony
Mary Antony
Simon S/o Chamar

Legal Representation & Advocates

Counsels for Petitioners

• T.M. Sunil
• Smt. S. Chithra

Counsels for Respondents

• P. T. Antony
• S. B. Premachandra Prabhu
• K. Jayakumar
• M. P. Ramnath
• Pee yus A. Kottam

Case Synopsis & Summary

This is a Kerala High Court civil revision petition challenging orders in two partition suits (O.S. No.432 of 1980 and O.S. No.411 of 1986) filed by the sons and daughters of Esthappanose seeking partition and possession of property. The revisions, CRP Nos. 497/2011 and 505/2011, were filed by Dulsy Stephen and two others in their capacity as legal heirs, challenging a revised preliminary decree passed after appellate proceedings. The Court recalls the 1986 decision in Mary Roy and Others v State of Kerala and Others, which held that shares ought to be allotted under the Indian Succession Act, 1925, rather than under the Cochin Christian Succession Act, 1907, and notes that the impugned judgments were set aside with a direction to reallocate shares accordingly, with liberty to sue for partition of any property left out. In the present petitions, the petitioners contend that the lower court committed gross illegality by issuing a revised preliminary decree without following the second appeal judgment’s directive to re-allot shares under the Indian Succession Act. The respondents submit a maintainability objection, suggesting that relief should be sought by second appeals, and challenge the delay in filing. The Court records that maintainability need not be decided here, but finds substantial delay and other defects justifying dismissal. Ultimately, the petitions are dismissed, preserving the earlier framework aligned with the Indian Succession Act as guided by Mary Roy.

Provisions of Law Cited

Indian Succession Act, 1925Cochin Christian Succession Act, 1907 (Act 6 of 1907)

Submissions & Arguments

Contentions of Appellants / Petitioners

The revision petitioners contended that the lower court committed gross illegality by passing a revised preliminary decree without following the second appeal judgment’s directive to re-allot shares under the Indian Succession Act, 1925, and not under the Cochin Christian Succession Act, 1907. They argued the allotment based on the Cochin Christian Succession Act was improper and contrary to the Mary Roy decision, which mandated reallocation of shares per the Indian Succession Act. They asserted their status as parties and contested the matter, and despite purported ignorance of the decree, pressed for condonation of delay and for the revision to reflect the Indian Succession Act framework. They maintained that the remedy lies in aligning the decree with the appellate directive and the statute, not in upholding an illegitimate revision of the decree.

Contentions of Respondents

The respondents urged maintainability objections, contending that the proper remedy is to file second appeals against the first appellate judgments and appeal the condonation denial in those appeals. They argued that the petitioners, having been parties to the suits and having contested the matters, cannot claim ignorance to excuse the excessive delays. They pressed that condonation of the long delay was unwarranted and that the petitions should be dismissed on grounds of delay, with the balance of property distribution remaining as per the courts’ earlier framework under the Indian Succession Act, in line with the Mary Roy precedent.

Cited Precedents (1)

Case Name	Citation	Treatment	Explanation
Mary Roy and Others v State of Kerala and Others	1986 KLT 508	Positive	Cited to direct the shares be allotted under the Indian Succession Act, 1925 rather than under the Cochin Christian Succession Act, 1907, following the Mary Roy decision.

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Extracted Judgment Text

Exact text extracted from official judgment records.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE V.G.ARUN WEDNESDAY, THE 25[TH] DAY OF OCTOBER 2023 / 3RD KARTHIKA, 1945** ## **CRP NO. 497 OF 2011** **AGAINST THE ORDER/JUDGMENT AS 87/2009 OF I ADDITIONAL DISTRICT COURT, ERNAKULAM** ## **REVISION PETITIONER/S:** 1 DULSY STEPHEN AND 2 OTHERS YEARS, THOTTAKATH HOUSE, CHERANALLUR, NOW, RESIDING AT THANEMPARAMBIL, 4TH FLOOR, GEO, MAREENA TOWERS, MANORAMA JUNCTION, S.A.ROAD,, ERNAKULAM, KOCHI - 16. 2 VINU STEPHEN SO.LATE STEPHEN AGED 36 YEARS, THOTTAKATH HOUSE, CHERANALLUR, NOW, RESIDING AT THANEMPARAMBIL, 4TH FLOOR, GEO, MAREENA TOWERS, MANORAMA JUNCTION, S.A.ROAD,, ERNAKULAM, KOCHI - 16. 3 MARY STEPHEN DO.LATE STEPHEN AGED 34 YEARS, THOTTAKATH HOUSE, CHERANALLUR, NOW, RESIDING AT THANEMPARAMBIL, 4TH FLOOR, GEO, MAREENA TOWERS, MANORAMA JUNCTION, S.A.ROAD,, ERNAKULAM, KOCHI - 16. BY ADVS. SRI.T.M.SUNIL SMT.S.CHITHRA ## **RESPONDENT/S:** 1 VIRONI THOMAS @ VIRONICA AND OTHERS D/O.ESTHAPPANOSE AND W/O.THOMAS, THAREPARAMBIL, HOUSE, MOOLAMKUZHY, ARIYAD, MUNDEMVALI P.O.,, KOCHI - 7. 2 LILLY DO.ESTHAPPANOSE W/O.PAUL J.CHANDY, RESIDING AT PADAPURACKAL, PARAMBU, CHERANALLUR P.O., KOCHI - 34. 3 ELIZEBETH PAPPU WO.LATE PAPPU PADAPURACKAL HOUSE, NOW RESIDING AT CHERUVATHUR, HOUSE, CHOOLAKAL LANE, ST.BENEDICT ROAD,, ERNAKULAM, KOCHI - 18. 4 VINU JOSEPH SO.LATE PAPPU PADAPURACKAL HOUSE, NOW RESIDING AT CRP Nos.497 & 505 of 2011 -2- CHERUVATHUR, HOUSE, CHOOLAKAL LANE, ST.BENEDICT ROAD,, ERNAKULAM, KOCHI - 18. - 5 VIBI JOSEPH DO.LATE PAPPU PADAPURACKAL HOUSE, NOW RESIDING AT CHERUVATHUR, HOUSE, CHOOLAKAL LANE, ST.BENEDICT ROAD,, ERNAKULAM, KOCHI - 18. - 6 ADDL.RESPONDENT NO.9 JOY P.P. S/O.PEEYUS AND VICTORIA, PANAKKAL HOUSE,, NAYARAMBALAM, NARAKKAL, KOCHI - 682 509. - 7 ADDL.RESPONDENT NO.10 GRACY FRANCIS D/O.PEEYUS AND VICTORIA, PANAKKAL HOUSE,, NAYARAMBALAM, NARAKKAL, KOCHI - 682 509. - 8 ADDL.RESPONDENT NO.11 MAJI BENNY W/O.BENNY JOSEPH, AZHIYOOR,, P.O.MAHI - 673 309. - 9 ADDL.RESPONDENT NO.12 EANEST STEPHEN S/O.MATHEW, PADAPURACKAL HOUSE,, RTD.COEMPLOYEE, NEAR NITHYA SAHAYA MATHA CHURCH,, CHERANALLUR P.O., KOCHI - 34. - 10 ADDL.RESPONDENT NO.13 BARBERA STEPHEENA D/O.P.E.MATHEW, W/O.SIMON, THAYANKERY HOUSE,, NEAR AMBALA KADAVU, CHERANALLUR P.O., KOCHI - 34. - 11 ADDL.RESPONDENT NO.14 MARITA PHILOMINA D/O.P.E.MATHEW, W/O.SIMON, THAYANKERY HOUSE,, NEAR MARY MATHA CONVENT, VAZHAKALA, KAKKANAD P.O.,, KOCHI - 30. - 12 ADDL.RESPONDENT NO.15 JOSEPH RUBAN S/O.P.E.MATHEW, AGED 53 YEARS,, PADAPURACKAL HOUSE, NEAR KACHERIPADY,, CHERANALLUR P.O., KOCHI - 34. - 13 ADDL.RESPONDENT NO.16 PAUL DENNIS S/O.P.E.MATHEW, AGED 50 YEARS,, PADAPURACKAL HOUSE, NEAR KACHERIPADY,, CHERANALLUR P.O., KOCHI - 34. - 14 ADDL.RESPONDENT NO.17 URSULA SHERLY D/O.P.E.MATHEW, AGED 44 YEARS,, CHERIKALAKATH HOUSE, MARATHUKUNNU, ENKAKKAD P.O.,, VADAKKANCHERY. - 15 ADDL.RESPONDENT NO.18 JUSTINA SHEEBA D/O.P.E.MATHEW AND W/O.BASIL THOMAS,, AGED 41 YEARS, THANNIKKAL HOUSE,, NEAR NAVANIRMAN SCHOOL ANNEXE, VAZHAKKALA,, KAKKANAD P.O., CRP Nos.497 & 505 of 2011 -3- KOCHI - 30. 16 ADDL.RESPONDENT NO.19 THRESSIA ANTONY AGED 51 YEARS, W/O.T.P.ANTONY (ANTONY PAULOSE),, THOTTAKATH HOUSE, CHERANALLOOR P.O.,, KOCHI - 682 034. 17 ADDL.RESPONDENT NO.20 ROSY ANTONY D/O.T.P.ANTONY (ANTONY PAULOSE),, THOTTAKATH HOUSE, CHERANALLOOR P.O.,, KOCHI - 682 034. 18 ADDL.RESPONDENT NO.21 MARY ANTONY D/O.T.P.ANTONY (ANTONY PAULOSE),, THOTTAKATH HOUSE, CHERANALLOOR P.O.,, KOCHI - 682 034. BY ADVS. SRI.P.T.ANTONY SRI.S.B.PREMACHANDRA PRABHU SRI.K.JAYAKUMAR SR. SRI.M.P.RAMNATH THIS CIVIL REVISION PETITION HAVING BEEN FINALLY HEARD ON 25.10.2023, ALONG WITH CRP.505/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: CRP Nos.497 & 505 of 2011 -4- ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE V.G.ARUN** **WEDNESDAY, THE 25[TH] DAY OF OCTOBER 2023 / 3RD KARTHIKA, 1945** **CRP NO. 505 OF 2011** **AGAINST THE ORDER/JUDGMENT AS 86/2009 OF I ADDITIONAL** ## **DISTRICT COURT, ERNAKULAM** ## **REVISION PETITIONER/S:** 1 DULSY STEPHEN AND 2 OTHERS W/O. LATE STEPHEN, THOTTAKATH HOUSE, CHERANALLUR, NOW RESIDING AT THANEMPARAMBIL, 4TH FLOOR, GEO MAREENA TOWERS, MANORAMA JUNCTION, S.A.ROAD, ERNAKULAM, KOCHI-16. 2 VINU STEPHEN AGED 36 YEARS S/O. LATE STEPHEN, THOTTAKATH HOUSE, CHERANALLUR, NOW RESIDING AT THANEMPARAMBIL, 4TH FLOOR, GEO MAREENA TOWERS, MANORAMA JUNCTION, S.A.ROAD, ERNAKULAM, KOCHI-16. 3 MARY STEPHEN AGED 34 YEARS D/O. LATE STEPHEN, THOTTAKATH HOUSE, CHERANALLUR, NOW RESIDING AT THANEMPARAMBIL, 4TH FLOOR, GEO MAREENA TOWERS, MANORAMA JUNCTION, S.A.ROAD, ERNAKULAM, KOCHI-16. BY ADVS. SRI.T.M.SUNIL SMT.S.CHITHRA ## **RESPONDENT/S:** 1 VIRONI THOMAS @ VIRONICA AND OTHERS D/O. ESTHAPPANOSE AND W/O. THOMAS, THAREPARAMBIL HOUSE, MOOLAMKUZHY, ARIYAD, CRP Nos.497 & 505 of 2011 -5- MUNDAMVELI P.O., KOCHI-7. 2 LILLY, D/O. ESTHAPPANOSE, W/O. PAUL J. CHANDY, RESIDING AT PADAPURACKAL PARAMBU, CHERANALLUR P.O., KOCHI - 34. 3 ELIZEBETH PAPPU, W/O. LATE PAPPU, PADAPURAKKAL HOUSE, NOW RESIDING AT CHERUVATHUR HOUSE, CHOOLAKAL LANE, ST. BENEDICT ROAD, ERNAKULAM, KOCHI 18. 4 VINU JOSEPH, S/O. LATE PAPPU, PADAPURAKKAL HOUSE, NOW RESIDING AT CHERUVATHUR HOUSE, CHOOLAKAL LANE, ST. BENEDICT ROAD, ERNAKULAM, KOCHI - 18. 5 VIBI JOSEPH D/O. LATE PAPPU, PADAPURAKKAL HOUSE, NOW RESIDING AT CHERUVATHUR HOUSE, CHOOLAKAL LANE, ST. BENEDICT ROAD, ÉRNAKULAM, KOCHI - 18. 6 ADDL. RESPONDENT NO.9: JOY P.P., S/O. PEEYUS AND VICTORIA, PANAKKAL HOUSE, NAYARAMBALAM, NARAKKAL, KOCHI - 682 509. 7 ADDL. RESPONDENT NO.10: GRACY FRANCIS, D/O. PEEYUS AND VICTORIA, PANAKKAL HOUSE, NAYARAMBALAM, NARAKKAL, KOCHI - 682 509. 8 ADDL. RESPONDENT NO.11: MAJI BENNY, W/O. BENNY JOSEPH, AZHIYOOR,P.O. MAHI - 673 309. 9 ADDL. RESPONDENT NO.12: EANEST STEPHEN, S/O. MATHEW, PADAPURACKAL HOUSE, RTD. COEMPLOYEE, NEAR NITHYA SAHAYA MATHA CHURCH, CHERANALLUR P.O., KOCHI- 34. 10 ADDL. RESPONDENT NO.13: BARBERA STEPHEENA, D/O. P.E. MATHEW, W/O. SIMON, THAYANKERY HOUSE, NEAR AMBALA KADAVU, CHERANALLUR P.O., KOCHI - 34. 11 ADDL. RESPONDENT NO.14: MARITA PHILOMINA, D/O. P.E.MATHEW, W/O. SIMON, THAYANKERY HOUSE, NEAR MARY MATHA CONVENT, VAZHAKALA, KAKKANAD P.O., KOCHI - - 30. 12 ADDL. RESPONDENT NO.15: JOSEPH RUBAN, S/O. P.E. MATHEW, AGED 53 YEARS, PADAPURACKAL HOUSE, NEAR KACHERIPADY, CHERANALLUR P.O., KOCHI -34. 13 ADDL. RESPONDENT NO.16: PAUL DENNIS, CRP Nos.497 & 505 of 2011 -6- S/O. P.E. MATHEW, AGED 50 YEARS, PADAPURACKAL HOUSE, NEAR KACHERIPADY, CHERANALLUR P.O., KOCHI -34. 14 ADDL. RESPONDENT NO. 17: URSULA SHERLY, D/O. P.E. MATHEW, AGED 44 YEARS, CHERIKALAKATH HOUSE, MARATHUKUNNU, ENKAKKAD P.O., VADAKKANCHERY. 15 ADDL. RESPONDENT NO.18: JUSTINA SHEEBA, D/O. P.E. MATHEW AND W/O. BASIL THOMAS, AGED 41 YEARS, THANNIKKAL HOUSE, NEAR NAVANIRMAN SCHOOL ANNEXE, VAZHAKKALA, KAKKANAD P.O., KOCHI - 30. 16 ADDL. RESPONDENT NO.19: THRESSIA ANTONY, AGED 51 YEARS, W/O. T.P. ANTONY (ANTONY PAULOSE), THOTTAKATH HOUSE, CHERANALLOOR P.O., KOCHI - 682 034. 17 ADDL. RESPONDENT NO.20: ROSY ANTONY, D/O. T.P. ANTONY (ANTONY PAULOSE),THOTTAKATH HOUSE, CHERANALLOOR P.O., KOCHI-682 034. 18 ADDL. RESPONDENT NO.21: MARY ANTONY, D/O. T.P. ANTONY (ANTONY PAULOSE), THOTTAKATH HOUSE, CHERANALLOOR P.O., KOCHI - -682 034. 19 ADDL. RESPONDENT NO.19. (IMPLEADED) SIMON S/O.CHAMAR, AGED 62 YEARS, THAYANKERI HOUSE, EDAPPALLY, NOW RESIDING AT PADAPURACKAL, CHERANALLUR P.O., KOCHI-34. (IMPLEADED AS 19TH RESPONDENT AS PER ORDER DATED 1/2/2023 IA IA 267/2013 IN CRP 505/2011) BY ADVS. SRI.P.T.ANTONY SRI.K.JAYAKUMAR SR. SRI.PEEYUS A.KOTTAM SRI.S.B.PREMACHANDRA PRABHU SRI.M.P.RAMNATH THIS CIVIL REVISION PETITION HAVING BEEN FINALLY HEARD ON 25.10.2023, ALONG WITH CRP.497/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: CRP Nos.497 & 505 of 2011 -7- ## **ORDER** Dated this the 25[th] day of October, 2023 The revision petitioners in CRP No.497 of 2011 were additional plaintiffs 7 to 9 in O.S.No.432 of 1980 on the files of the I[st] Additional Sub Court, Ernakulam. CRP No.505 of 2011 is filed by the revision petitioners in their capacity as additional defendants 10 to 12 in O.S.No.411 of 1986 of the same court. The suit, O.S.No.432 of 1980, was filed by the sons and daughters of one Esthappanose, seeking partition and separate possession of two items of property. Therein, a preliminary decree was passed on 23.02.1983. Challenging the preliminary decree, appeals were filed by some of the parties. The appellate court having confirmed the decree, SA Nos.856 and 910 of 1984 were filed CRP Nos.497 & 505 of 2011 -8- before this Court and cross objections were filed by the respondents in the appeal. Following the decision in _**Mary Roy and Others v State of Kerala and Others [1986 KLT 508]**_ , this Court held that the courts below had committed a mistake by allowing allotting shares based on the Cochin Christian Succession Act, (Act 6 of 1907). Hence, the impugned judgments were set aside with a direction to allot shares in accordance with the Indian Succession Act, 1925. As it was contended that a partible property was not included in the hotchpot, this Court granted liberty to the parties to file a suit for partition with respect to the property that was left out. 2. The first defendant in O.S.No.432 of 1980 filed O.S.No.411 of 1986 thereafter, seeking partition and separate possession of his 1/5[th] share in the property that was omitted to be scheduled in O.S.No.432 of 1980. The suits were CRP Nos.497 & 505 of 2011 -9- tried together and a preliminary decree was passed on 29.03.2003. Based on the preliminary decree, a final decree application was filed and the same is pending since 01.07.2005. 3. The revision petitioners had been impleaded in the suits, in their capacity as the legal heirs of one Rosy. Much after passing of the preliminary decree, the revision petitioners filed A.S.No.86 and 87 of 2009 before the I[st] Additional District Court, Ernakulam challenging the decree. Along with the appeals, applications for condoning the delay of 2115 days in filing the appeals were also filed. The appellate court dismissed the applications for condonation of delay and consequently, the appeals. Hence, these civil revision petitions. 4. Learned Counsel for the revision petitioners contended that the court below had committed gross illegality in passing the revised CRP Nos.497 & 505 of 2011 -10- preliminary decree, without following the direction in the second appeal judgment that the shares should be re-allotted in accordance with the Indian Succession Act, 1925. 5. Learned Counsel for the respondents raised a preliminary objection regarding maintainability on the ground that the remedy is to file second appeals against the judgments of the first appellate court and challenge the rejection of the application for condonation of delay in those appeals. I am not venturing to decide that question here, since the revision petitions are even otherwise liable to be dismissed. 6. The reason put forth by the revision petitioners for condoning the inordinate delay of 2115 days is their purported ignorance about the the preliminary decree. A perusal of the impugned order shows that the petitioners had got CRP Nos.497 & 505 of 2011 -11- themselves impleaded as defendants in O.S.No.411 of 1986 and had filed a statement adopting the contentions of the other contesting defendants in the suit. Similarly, in O.S.No.432 of 1980, the petitioners got themselves impleaded as additional plaintiffs 7 to 9. In their affidavit filed in support of the application for impleading, the petitioners had stated that they were impleaded as additional defendants in O.S.No.411 of 1986 and that suit is posted for joint trial along with O.S.No.432 of 1980. It is hence evident that the petitioners were parties to the suits and had contested the matter. As such, they cannot plead ignorance about the disposal of the suits or the passing of the preliminary decree. Hence, the court below was fully justified in refusing to believe the explanation offered by the petitioners. CRP Nos.497 & 505 of 2011 **==> picture [23 x 8] intentionally omitted <==** 7. Even if the case of the petitioners that they came to know about the preliminary decree only on 15.11.2007 is accepted, their failure to explain the reason for filing copy application for obtaining certified copy of the judgment and decree only on 13.02.2009 is fatal. For the aforementioned reasons, the civil revision petitions are dismissed. **Sd/V.G.ARUN JUDGE** Scl/