Laila v. George Benson and Others

**FAO NO.75/2019** 1 2025:KER:28588 **==> picture [57 x 58] intentionally omitted <==** ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE SYAM KUMAR V.M.** **WEDNESDAY, THE 2[ND] DAY OF APRIL 2025 / 12TH CHAITHRA, 1947** ## **FAO NO. 75 OF 2019** **ARISING OUT OF THE JUDGMENT DATED 21.07.2018 IN AS NO.156 OF 2016 OF I ADDITIONAL DISTRICT COURT, ERNAKULAM** **ARISING OUT OF THE ORDER DATED 08.04.2015 IN I.A.NO.5626/2007 IN OS NO.65/1999 OF I ADDITIONAL SUB COURT, ERNAKULAM** ## **APPELLANT/1ST REPONDENT/PLAINTIFF:** **LAILA AGED 53 YEARS W/O.THOMAS, PADINJAREKUTTU, THITHIYOOR, KAKKANAD, ERNAKULAM, PIN-682 037** **BY ADVS. NAVEEN THOMAS SRI.ANSU VARGHESE** ## **RESPONDENTS/APPELLANT (3RD PARTY) &** ## **RESPONDENTS/DEFENDANTS:** **1 GEORGE BENSON AGED 50 YEARS** **S/O. M.V.GEORGE,MOOLAMKUZHY HOUSE, JN-6, KOCHAPPAN LANE, KONTHURUTHY, THEVARA P.O., ERNAKULAM,PIN-682 015** **2 SANTHOSH AGED 51 YEARS S/O. LUKA KOYIKKARA, KALATHIL VEETTIL, PERUMANUR, KONTHURUTHY,THEVARA, ERNAKULAM,PIN-682 015** **FAO NO.75/2019** 2 2025:KER:28588 **==> picture [57 x 58] intentionally omitted <==** **3 LEELAMMA : DIED, LRS IMPLEADED AGED 58 YEARS W/O.CHALACKAL AMBI, CHALACKAL HOUSE, NJARACKAL, KOCHI-682 505.** - **4 LISSY,** **AGED 55 YEARS** **W/O,PATHROSE,PULICKAL HOUSE, THURUTHY,PERUMBAVOOR, KOCHI-683 542** **5 ANNA VINCENT, AGED 78 YEARS** **W/O. VINCENT, KEETTUPARAMBU VEEDU, PANANGADU DESOM, KUMBALAM VILLAGE, KOCHI-682 506** - **6 MINI,** **AGED 46 YEARS** **W/O.SANTHOSH, KALTHIL VEETTIL, PERUMANOOR, KONTHURUTHY, THEVARA,KOCHI-682 015.** **7 ADDL.R7: LIBY POPPY , AGED 41 YEARS, W/O POPPY, MENACHERY HOUSE, NAYARAMBALAM P O, VYPIN, ERNAKULAM, PIN-682509.** **8 ADDL.R8: LIJOY A CHALACKAL AGED 39 YEARS,S/O AMBI, CHALACKAL HOUSE, LIJOY NIVAS, NARAKKAL P O, VYPIN, ERNAKULAM 682505.** **THE LEGAL HEIRS OF DECEASED 3RD RESPONDENT ARE IMPLEADED AS ADDL.R7 & ADDL. R8 VIDE ORDER DATED 13/12/2024 IN I.A.3/2024.** **BY ADVS. SRI.M.P.RAMNATH, R1 SRI.P.RAJESH (KOTTAKKAL) SEI.M.VARGHESE VARGHESE SRI.SEBASTIAN K.JOSE SMT.S.SANDHYA SRI.BEPIN PAUL SRI.SHALU VARGHESE** **FAO NO.75/2019** 3 **==> picture [57 x 58] intentionally omitted <==** 2025:KER:28588 **SRI.S.DEEPAK** **SRI.ANTONY THARIAN A.BALAGOPALAN, ADDL. R7 & R8** **A.RAJAGOPALAN, ADDL. R7 & R8** **M.N.MANMADAN** **M.S.IMTHIYAZ AHAMMED P.SEENA** **THIS FIRST APPEAL FROM ORDERS HAVING BEEN FINALLY HEARD ON 02.04.2025, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **FAO NO.75/2019** 4 **==> picture [57 x 58] intentionally omitted <==** 2025:KER:28588 ## **JUDGMENT** _Dated this the 02[nd] day of April, 2025_ This F.A.O. is filed challenging the judgment and decree in A.S.No.156 of 2016 dated 21.07.2018 of the I Additiona l District Court, Ernakulam and seeking to confirm the final decree and order dated 08.04.2015 of the I Additional Sub Court, Ernakulam, in I.A.No.5626 of 2007 in O.S.No.65 of 1999. Appellant herein was the 1[st] respondent in the A.S. and plaintiff in the O.S. The 1[st] respondent was the appellant (3[rd] party) in the A.S. (hereinafter referred to as the 3[rd] party purchaser). The other respondents were the respondents in the A.S. and defendants in the O.S. (hereafter referred to as per their status in the O.S.). 2. The question to be considered in this appeal is whether the I Additional District Judge erred in setting side the final decree passed by the learned Sub Judge in a partition suit permitting a third party purchaser to get impleaded in the final decree proceedings, so as to seek allotment of property to the share of his assignors. 3. O.S.No.65 of 1999 was filed by Laila Thomas, a **FAO NO.75/2019** 5 2025:KER:28588 **==> picture [57 x 58] intentionally omitted <==** daughter of Koikkara Luka and his wife Kochuthressia (who had five children - a son and four daughters) seeking partition of the property owned by her parents having an extent of 1.21 acres situated in Kanayannur Taluk. The suit was decreed and a preliminary decree of partition was passed. In A.S.No.212 of 2003 filed challenging the preliminary decree, the District Court made some alterations in shares to accommodate a testamentary disposition by the mother Kochuthressia in favour of her son Santhosh and his wife. Subsequently based on the Commissioner's report, a final decree was rendered by the Sub Court. It is at that stage, the 3[rd] party purchaser, who claimed title from Kochuthressia (mother), Santhosh (son) and Leelamma (daughter) filed an appeal after seeking special leave contending that the Advocate Commissioner, who had knowledge about the assignment in his favour, had chosen to ignore the same though he had accepted and acted upon similar dispositions in favour of third parties. He thus sought setting aside of the final decree and remanding the matter back for affording him an opportunity to implead in the final decree proceedings and seek allotment of property based on the relevant sale deed as regards the **FAO NO.75/2019** 6 2025:KER:28588 **==> picture [57 x 58] intentionally omitted <==** shares of his assigned. The said prayer was allowed by the District Judge and the said order is impugned before me in this F.A.O. 4. Heard Sri.Naveen Thomas, Advocate for the appellant (Plaintiff), Sri.M.P.Ramanth, Advocate for the 1[st] respondent (3[rd] party purchaser) and Sri.A.Balagopalan Advocate for R7 and R8. 5. The learned counsel for the appellant assails the judgment placing reliance on the dictum laid down by the Hon’ble Supreme Court in **Ravi T. and another v. B.Chinna Narasimha and others** [2017 KHC 6209] wherein, in the context of doctrine of lis pendens, it was held that transferee of a property pendente lite would be bound by the decree as much as if he were a party to the suit and that where a co sharer of property had sold the property to a third party, the purchaser pendente lite is bound by the preliminary decree with respect to the shares so determined and that the same cannot be reopened. The purchaser would be entitled to the specific share of his vendor only and cannot claim the entire property. 6. _Per Contra_ , Sri.M.P.Ramnath, Advocate for the 1[st] respondent, contended that the judgment of the District Court was valid and proper and that the learned Judge was only following the **FAO NO.75/2019** 7 2025:KER:28588 **==> picture [57 x 58] intentionally omitted <==** trite and settled law. He contends that transferees are entitled to protection of Section 43 of the Transfer of Property Act which substantially amounts to satisfying the equitable principle of feeding the grant by estoppel. He placed reliance on the dictum laid down in **Brahmvart Sanathan Dharam Mahamandal, Kanpur and others v. Prem Kumar and others** [1985 KHC 659] and seeks to augment the said proposition further by pointing to the judgments rendered by this Court in **Michael v. Victor and others** [1995 KHC 31] and **Madhukumar and others v. Gopala Menon and others** [2009 KHC 940]. 7. I have heard both sides and perused the records. The specific case of the third party purchaser before the District Court was that Kochuthressia (mother), Santhosh (son) and Leelamma (daughter) were having an extent of 26.337 cents corresponding to their shares and the transfer effected to him was of an extent of 18 cents. Thus, according to him, at the time of execution of the relevant sale deed (No.1748 of 2003) more extent than even sold to the 3[rd] party purchaser ie., himself, was available within the share extent of his vendors viz., Kochuthressia, Santhosh and Leelamma. **FAO NO.75/2019** 8 2025:KER:28588 **==> picture [57 x 58] intentionally omitted <==** Though the extent to work out equities to set apart the share of the vendors to the third party purchaser was available and the knowledge of purchase by him was evident especially since his document had been mentioned in the final decree commission report, the said property was not set apart/ adjusted nor was himself as the third party purchaser, made a party in the proceedings. The said course, however, was followed with respect to other similar transactions. The learned District Judge had validly taken note of the said relevant facts as well as the law and precedents on the point which led him to conclude that the third party purchaser, the assignment in whose favour by the sharers had been noted by the Advocate Commissioner, cannot be simply ignored during the final decree proceedings. The reliance placed by the learned District Judge on the dictum laid down in **K.A.Khader v. Rajamma John Madathil and others** (AIR 1994 Ker. 122) and **Madhukumar and others v. Gopala Menon and others** (2009 KHC 940) and the conclusion arrived at that till the joint status is severed, every co owner is entitled to each and every inch of the co-ownership property and that one co-owner cannot assume to himself right over **FAO NO.75/2019** 9 2025:KER:28588 **==> picture [57 x 58] intentionally omitted <==** any particular portion of the property and hence the assignment of a particular portion of the common property can be accepted only to the limited extent of the right of the co-owners to transfer their undivided shares with no choice of location, is valid and apposite. The contention put forth by the learned counsel based on the dictum in _**Ravi T.**_ (supra) does not apply to the facts and circumstances of the case at hand. On the contrary, the reliance placed on _**Brahmvart Sanathan Dharam Mahamandal**_ (supra) and _**Michael**_ (supra) buttresses the reliance placed by the learned District Judge on the dictum in _**K.A.Khader**_ (supra) and _**Madhukumar**_ (supra). 8. The finding arrived at by the District Judge that applying the doctrine of feeding the grant by estoppel, such assignees can be given the limited power of participating in the final decree proceedings and getting their shares from the properties allotted to their assignees in equity is trite and settled. Indeed the equities ought to have been worked out with the third party purchaser in the party array. The learned District Judge was only ensuring the same. I see no reason to interfere with the judgment and decree in A.S.No.156 of 2016 dated 21.07.2018 of the I Additional District **FAO NO.75/2019** 10 **==> picture [57 x 58] intentionally omitted <==** 2025:KER:28588 Court, Ernakulam. F.A.O. is dismissed. No costs. All interlocutory applications are closed. Sd/- **SYAM KUMAR V.M. JUDGE** csl