JOSEPH PETER and others v ELIZABATH MANUEL and others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MRS. JUSTICE SHIRCY V.** **FRIDAY, THE 29TH DAY OF MARCH 2019 / 8TH CHAITHRA, 1941** ## **RFA.No. 208 of 2015** **AGAINST THE JUDGMENT AND DECREE IN OS 204/2012 of II ADDITIONAL SUB COURT,ERNAKULAM DATED 20-12-2014** ## **APPELLANTS:** - **1 JOSEPH PETER, S/O. PETER, AGED 63 YEARS VALIYAPARAMBIL HOUSE, ERNAKULAM VILLAGE, KANAYANNUR TALUK** - **2 DENNIS PETER S/O. PETER,AGED 61 YEARS, VALIYAPARAMBIL HOUSE,PRASHANTH COLONY, BEHIND GRACE HOUSE ORPHANAGE, PLOT NO. 15, GOREWEADA ROAD, NAGPUR 13** - **3 ANTHONY PETER,S/O PETER, AGED 57 YEARS VALIYAPARAMBIL HOUSE, ERNAKULAM VILLAGE, KANAYANNUR TALUK** - **4 SHEELA XAVIER, W/O. M.G. XAVIER,AGED 53 YEARS, MUZHANKAL HOUSE, KATTIPARAMBU, KANNAMALY** - **5 JAYA ALEXANDER, WIDOW OF ALEXANDER PETER,AGED 50 YEARS,80(1), 5/44, LAKSHMI NIVAS, AMBADKAR NAGER, JAGIR, REDDIPPATTY, SALEM-5** - **6 ABIL ALEXANDER,S/O. LATE ALEXANDER PETER, AGED 24 YEARS,80(1), 5/44, LAKSHMI NIVAS, AMBADKAR NAGER, JAGIR, REDDIPPATTY, SALEM-5** - **7 ALISHA ALEXANDER, AGED 21 YEARS, D/O.LATE ALEXANDER PETER, 80(1) 5/44, LAKSHMI NIVAS, AMBADKAR NAGAR, JAGIR, REDDIPATTY, SALEM** **BY ADVS. SRI.N.RATHEESH SMT.SUMA RATHEESH** RFA No.208-2015 2 ## **RESPONDENTS:** - **1 ELIZABATH MANUEL,W/O. LATE T.A MANUEL AGED 70 YEARS, THENAMPARAMBIL HOUSE, H.NO. 34/138, KARSHAKA ROAD, KADAVANTRA, KOCHI-20, KARITHALA DESOM, ERNAKULAM VILLAGE, KANAYANNUR TALUK** - **2 IDA ROY D/O. LATE T.A. MANUEL,AGED 50 YEARS THENAMPARAMBIL HOUSE, H.NO.34/138 KARSHAKA ROAD, KADEAVANTRA, KOCHI-20, KARITHALA DESOM, ERNAKULAM VILLAGE, KANAYANNUR TALUK** - **3 METTILDA SUNNY,D/O. LATE T.A. MANUEL, AGED 47 YEARS THENAMPARAMBIL HOUSE, H.NO.34/138 KARSHAKA ROAD, KADEAVANTRA, KOCHI-20, KARITHALA DESOM, ERNAKULAM VILLAGE, KANAYANNUR TALUK** - **4 TRESSA JOSEPH D/O. LATE T.A. MANUEL, AGED ABOUT 45 YEARS,THENAMPARAMBIL HOUSE, H.NO.34/138 KARSHAKA ROAD, KARITHALA DESOM, ERNAKULAM VILLAGE, KANAYANNUR TALUK, KADAVANTRA, KOCHI-20** - **5 MATHEWS MANUEL S/O. LATE T.A. MANUEL, AGED ABOUT 43, THENAMPARAMBIL HOUSE, H.NO.34/138 KARSHAKA ROAD, KADAVANTRA, KOCHI-20, KARITHALA DESOM, ERNAKULAM VILLAGE, KANAYANNUR TALUK BY ADV. SRI.B.N.SHIVSANKAR** **THIS REGULAR FIRST APPEAL HAVING BEEN FINALLY HEARD ON 18.12.2018, THE COURT ON 29.3.2019 DELIVERED THE FOLLOWING:** RFA No.208-2015 3 ## **JUDGMENT** This appeal arises out of the judgment and decree dated 20.12.2014 in O.S.No.204/2012 on the file of the Subordinate Court, Ernakulam. The suit filed by the plaintiffs/appellants for declaration, partition and injunction was dismissed by the court below by the judgment and decree under challenge. 2. The factual matrix of the case in hand, is that the plaint A schedule property having an extent of 39.780 cents originally belonged to Kunjani @ Alexander and his sister Mary, as per Document No.1610/1110 of SRO, Ernakulam. After the death of Kunjani his half right devolved upon his children namely Joseph, Manual and Lilly Peter. Mary , his sister died as a spinster. So her right also devolved upon the legal heirs of Kunjani. The whereabouts of Joseph, one of the sons of Kunjani was not known for several years. While so, Lilly Peter filed a suit for partition as O.S.No.294/1989 of the A Schedule property and other properties. She also claimed share over the property of Joseph since his whereabouts were not known for several years. RFA No.208-2015 4 But Manual, the brother of Joseph contended that the share of Joseph is not liable to be partitioned and further contended that Mary had bequeathed her right in the plaint schedule property by executing a will deed in his favour. He had also filed L.A. (OP)No.12/1987 before the District Court, Ernakulam with respect to the Will deed executed by Mary. Lilly Peter challenged the genuineness of the Will. Hence, that petition was converted as O.S.No.6/1988 and it was found that the Will was a genuine one. Aggrieved by the said verdict , Lilly Peter challenged the same before the High Court as MFA No.893/1990. In fact in O.S 294/1989 later Lilly Peter accepted the contention of Manual to keep aside the share of Joseph as if he is alive. Thus, a preliminary decree was passed allotting 1/3 right in the half share in plaint A schedule property to Lilly Peter. In MFA 893/90 the verdict of the trial court was reversed and the Will was found as not genuine and thus they both obtained half share over the share of Mary in plaint A schedule property. Later Lilly Peter and Manual expired and the plaintiffs are the legal heirs of Lilly Peter and the defendants are the legal heirs of Manual. Plaintiffs obtained 1/3 right over Kunjani's half share in the property and half right of Mary in A schedule property. RFA No.208-2015 5 1/3rd right of Joseph in half of plaint A schedule property was not separately shown and demarcated or shared among the legal heirs. But when the final decree was passed on 13.11.2008 the 1/3[rd] right of Joseph in the half share in plaint A schedule property was measured along with share of the defendants. The 1/3[rd] share of Joseph in the half share of Kunjani in A schedule is plaint B schedule. Jospeh is unheard for the last 28 years. So the plaintiffs are entitled to get half right over B Schedule property. Hence the plaintiffs filed the suit seeking the following reliefs : (1) pass a decree of declaration that Joseph, S/O. Kunjani @ Alexander is not heard of since about 28 years, it has to be presumed that the said Joseph, S/o. Kunjani @ Alexander is dead. (2). Declare that the said Joseph, S/o. Kunjani @ Alexander has one-third right of half of the plaint A schedule property which is the plaint-B schedule property and the plaintiffs have inherited half of the plaint B schedule property as the legal heirs of deceased Joseph and are the co-owners to the plaint B schedule property. ( 3). Pass a decree for partition of the plaint B schedule property into two equal shares thereby giving one share to the plaintiffs jointly in the plaint B schedule property by metes and bounds and putting the plaintiffs in separate possession of their share. (4). Pass a decree of permanent prohibitory injunction RFA No.208-2015 6 restraining the defendants, their men and agents from alienating or encumbering the plaint B schedule property (5). Award the costs of the suit; and - (6) Grant such other reliefs that may be prayed for from time to time.” 3. The defendants contended that O.S.No.294/1989 filed claiming half share over the property of Joseph treating him as dead, was decreed and hence the plaintiffs are estopped from claiming more than 1/3[rd] right over the plaint A schedule property. In O.S.No.294/1989 no separate share was allotted to Joseph and when the suit was decreed, Joseph was not a party to the proceedings and there was no prayer in the suit to keep Joseph's share separately. The property of Kunjani had been partitioned in O.S.No.294/1989 and the defendants did not hold the property of Joseph and hence the plaintiffs have no valid claim for partition, was the stand taken by the defendants. 4. Before the court below, PW1 alone was examined and Exts.A1 to A11 were marked on the side of the plaintiffs. B1 to B7 were marked on the side of the defendants. After evaluating the entire evidence adduced by the parties the court below dismissed the suit with costs. RFA No.208-2015 7 5. Heard Sri.N.Ratheesh, learned counsel for the appellants/plaintiffs and Sri. B.N.Siva Shankar, learned counsel appearing for the respondents/defendants. 6. Plaint A schedule property having an extent of 39.780 cents in Sy.No 580/4 of SRO Ernakulam originally belonged to Kunjani @ Alexander and his sister Mary as per Ext.A1 title deed. Both Kunjani and Mary are no more. Mary died as a spinster. Joseph, Manual and Lilly Peter are the children of late Kunjani who died intestate. The plaintiffs are the legal heirs of Lilly Peter who is no more and the defendants are the legal heirs of Manual who is also no more. O.S.No.294/1989 is admittedly a partition suit filed by Lilly Peter for partition of the property originally belonged to Kunjani and Mary. Ext A2 is the copy of the plaint in O.S.No.294/1989. A schedule property in O.S No.294/1999 was the property which belonged to Kunjani and Mary and B schedule is another property acquired by Mary. In O.S.No.294/1989 Lilly Peter had claimed half right over A and B schedule properties. Joseph, the other son of Kunjani, and the brother of Lilly and Manual having 1/3[rd] share in the half share of Kunjani was not heard for more than 7 years and so he is presumed to be dead, and hence B schedule property is liable to RFA No.208-2015 8 partitioned is the case of the plaintiffs . 7. A schedule is the total extent of 39.780 cents which originally belonged to Kunjani and Mary . B is schedule 6.630 cents and it is the 1/3[rd] share of Joseph in the half share of Kunjani in A schedule. It is not in dispute that Kunjani's half share actually devolved upon his 3 children namely Joseph, Manual and Lilly Peter. As Mary died as a spinster her right naturally devolves upon the children of her brother Kunjali viz; Joseph, Manuel and Lilly Peter. But Manuel has raised a claim over the property on the strength of a Will deed alleged to have been executed by Mary, which was challenged before the court below as O.S.No.6/1988. Though the trial court found the Will as a genuine one, in appeal (MFA.No.893/1990) the finding was reversed and it was found that the will deed was not a genuine one and hence the property owned by Mary on her death also devolved upon Joseph, Manual and Lilly Peter. The preliminary decree in O.S.No.294/1989 filed by Lilly Peter for partition is Ext.A6 and as per the preliminary decree, she was declared entitled for 1/3 rd right over the half right of plaint A schedule property subject to the result of MFA.No.893/1990 then pending before this Court. A final decree was passed as evident by Ext.A9 RFA No.208-2015 9 and during the pendency of the same Lilly Peter and Manuel died and the plaintiffs and defendants are impleaded as additional plaintiffs and defendants. As per the final decree plot A in the plan was allotted to the plaintiffs and plot C was allotted to the defendants. According to the plaintiffs, the 1/3[rd] share of Joseph over the half share of the property was also measured and wrongly allotted to the share of the defendants therein who are the defendants in this suit and accordingly the final decree was passed in O.S.294/1989. 8. The learned counsel for the plaintiffs contended that as the whereabouts of Joseph are not known for the last 28 years, the plaintiffs, the legal heirs of Joseph are entitled to get ½ right over Joseph's 1/3[rd] share in B schedule on the presumption that he is dead. 9. It is pertinent to note that the court below dismissed the suit on the finding that, as the question whether the property allotted to the defendants include the property over which plaintiffs also have right as the legal heirs of Joseph was a question relating to execution of the decree in O.S 294/1989, a separate suit is barred under Section 47 of the Code of Civil Procedure. The suit was also dismissed on the finding that claim RFA No.208-2015 10 of the plaintiffs is barred by res judicata. 10. It is admitted that Lilly Peter had filed O.S 294/1989 for partition and declaration of her 1/3[rd] share over the half share over Kunjani as one of his legal heirs and the suit was decreed as evident by Ext.A6 and final decree was passed accepting the commission report and plan filed as Exts.A8, A8(a) and A8(b). But it is significant to note that no finding was entered by the court below regarding the death of Joseph with reference to the presumption under Section 108 of the Evidence Act though a declaration was sought for . 11. It is the case of both parties that the whereabouts of Joseph is not known for the last more than 7 years. A perusal of the facts and circumstances enumerated above it is evident that the factum of death of Joseph was not considered in O.S. No.294/89 and the said question was not adjudicated applying the presumption under Sections 108 of the Evidence Act. Presumption of death of a person who is unheard of 7 years or more is a rebuttable presumption and therefore, it is a matter of evidence by the parties conversant with the facts and the situation. To appreciate the facts of the case with the law on the point it is profitable to refer to Section 107 and 108 of the RFA No.208-2015 11 ## Evidence Act which reads as follows ; ''107. Burden of proving death of person known to have been alive within thirty years:-When the question is whether a man is alive or dead, and it is shown that he was alive within thirty years, the burden of proving that he is dead is on the person who affirms it.'' “108. Burden of proving that person is alive who has not been heard of for seven years: Provided that when the question is whether a man is alive or dead, and it is proved that he has not been heard of for seven years by those who would naturally have heard of him if he had been alive, the burden of proving that he is alive is shifted to the person who affirms it”. ## 12. A learned Judge of this Court in **George Kutty v. Ouseph Varkey [1990(1)KLT 452]** after referring to Sections 107 & 108 of the Evidence Act, observed as follows: “From the clear, plaint and unambiguous language employed in these sections it is clear that the initial burden to prove that the person who was shown to be alive within thirty years, is dead, is on the person who asserts that he is dead. He however, will be said to have discharged that burden on his establishing that, that person has not been heard of for seven years by those who would naturally have heard of him, had he been alive. Then the burden of proving that he is alive will be shifted to the person who maintains that he was alive .'' In another decision a learned Judge of this Court (Devaki RFA No.208-2015 12 Amma Kamalamma and Another v Appi Amma and others (2017(3) KHC 12 ) while referring to presumption of death under Section 108 of The Evidence Act observed in para 14 as follows ''14. It is trite that no presumption as to the date or time of death is available .Whether a person is alive or dead should be a question arising in a suit or proceedings and then only the said provisions would operate .In other words,a presumption being not evidence in itself and only a rule concerning evidence, it can be put forward only in a properly instituted suit or proceedings''. 13. On a mere evaluation of the facts and circumstances of the case itself it is clear that trial court has not considered whether the plaintiffs have discharged their burden of proof that Joseph was not heard of for more than 7 years before institution of suit so as draw the presumption embodied in the relevant section in their favour. Unfortunately the crucial issue was not considered by the trial court. In fact no such such issue was considered or adjudicated in O.S. 294/89 also. This crucial issue is not a matter to be decided in Execution of the decree in that suit. So also the claim of the plaintiffs is not barred by the principles of res judicata. Therefore, the dismissal RFA No.208-2015 13 of the suit in a cursory manner, thereby causing prejudice to the rights of the plaintiffs in particular, is absolutely wrong. Hence, the impugned judgment is liable to be set aside and I do so. The case is remanded back for fresh consideration and disposal. Both parties are at liberty to adduce further evidence. The parties shall appear before the court below on 31[st] May 2019. The court below shall ensure its disposal within six months from the date of appearance of the parties. No costs. Send back the LCR. Refund court fees as per Rules. ks Sd/SHIRCY V JUDGE