Lakshmi and Sabu v. Kunju Divakaran and Others

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE N.K.BALAKRISHNAN WEDNESDAY, THE 19TH DAY OF MARCH 2014/28TH PHALGUNA, 1935 RP.No. 877 of 2013 () IN RSA.1510/2012 ----------------------------------- AGAINST THE JUDGMENT IN RSA 1510/2012 of HIGH COURT OF KERALA DATED 07-01-2013 REVIEW PETITIONER(S)/APPELLANTS: ------------------------------ ## 1. LAKSHMI D/O.PARVATHY RESIDING AT NAVODAYAM FROM METHRAKALAYIL BRAHMAMANGALAM MURI CHEMPU VILLAGE. KOTTAYAM DISTRICT 2. SABU, S/O. PAPPY RESIDING AT NAVODAYAM FROM METHRAKALAYIL BRAHMAMANGALAM MURI CHEMPU VILLAGE. BY ADVS.SRI.RENJITH THAMPAN (SR.) SMT.P.R.REENA RESPONDENT(S)/RESPONDENTS: ------------------------- ## 1. KUNJU DIVAKARAN ## MOOZHIKAROTTU, BRAHMAMANGALAM MURI CHEMPU VILLAGE PIN-686 142. ## 2. APPY GOVINDAN PARAYIL HOUSE, POTTASSERY KARA, MANNARKKAD TALUK PALAKKAD DISTRICT, PIN 678 598. 3. KUNJAN PAPPY (PAPPY APPY) NAVODAYAM, FROM METHRAKALAYIL BRAHMAMANGALAM MURI CHEMPU VILLAGE, KOTTAYAM DISTRICT PIN- 686 142. (DIED) RP.No. 877 of 2013 () IN RSA.1510/2012 ## 4. LEELA GOPALAN ELAYIDATHUMADATHIL, VARIKKAMKUNNU VADAKARA P.O. KOTTAYAM DISTRICT. ## 5. P. SASIDHARAN NAVODAYAM, BRAHMAMANGALAM P.O, PIN-686 142. ## 6. SARALA SREEDHARAN - PAREPARAMBIL, THUPPAMPADI P.O. MULAMTHURUTHY ERNAKULAM DISTRICT. 7. M.P. PRAKASAN - NAVODAYAM, BRAHMAMANGALAM P.O, PIN-686 142. 8. M.P. RAJAN - NAVODAYAM, BRAHMAMANGALAM P.O, PIN-686 142. R1 BY ADV. SRI.G.S.REGHUNATH R4,R5,R6,R8 BY ADV. SRI.P.B.KRISHNAN R7 BY ADV. SRI. P.B. KRISHNAN, ADV. SRI.P.M.NEELAKANDAN, BY ADV. SRI.P.B.SUBRAMANYAN & BY ADV. SRI.SABU GEORGE THIS REVIEW PETITION HAVING BEEN FINALLY HEARD ON 19-03-2014, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ## **N.K.BALAKRISHNAN, J.** ## **............................................ Review Petition No. 877 of 2013 in R.S.A. No. 1510 of 2012** **............................................** ## **Dated: 19-03-2014** ## **O R D E R** This Review Petition is filed by the appellants in R.S.A. No. 1510 of 2012. R.S.A. 1510/2012 and R.S.A. 1450/2012 were heard together and a common judgment was pronounced by this court on 7-1-2013. The appellants are the plaintiffs in O.S. 157/1995 of Sub Court, Kottayam. They are the wife and son of the deceased third defendant Kunjan Pappi. Earlier there was a suit for partition as O.S.13 of 1985 in which the third defendant KunjanPappi was a party. In that case, it was contended by him that he has got exclusive title to the suit property and that the property mentioned therein is not liable to be partitioned. Review Petition No. 877 of 2013 in R.S.A. No. 15`0 of 2012 **2** It was observed by this Court in page 2 of the judgment: “In that suit it was held that the property was originally obtained on lease by the father of the first appellant's husband who was the third defendant in O.S. 13/1985. It was held in O.S. 13/1985 that the purchase certificate obtained by the 3rd defendant therein was on behalf of all the legal heirs of his deceased father and that the purchase certificate so obtained by him will enure to the benefit of all the legal heirs of his father . Thus a preliminary decree for partition was passed in that suit. The 3rd defendant then filed appeal as A.S. 185/1986. That was dismissed. He again challenged that appellate judgment before this Court in Second Appeal S.A. 742/1985. That was also dismissed confirming the judgment of the courts below. Thereafter, the first defendant in Review Petition No. 877 of 2013 in R.S.A. No. 15`0 of 2012 **3** O.S. 13/1985 applied to the trial court for passing a final decree in terms of the preliminary decree passed in O.S.13/1985. There also the third defendant therein appeared and contested the matter. All his contentions were rejected by the trial court and final decree was passed. That was also challenged by him by filing appeal as A.S. 19/1993. That was dismissed by the appellate court on 12-7-2004. After the appeal against the final decree was dismissed the first defendant therein filed application for execution of the final decree and for delivery of the property which was set apart to his share. When delivery was ordered, the 3rd defendant again approached this Court by filing C.R.P. 921/1995 . That was also decided against him. This Court directed that the property allotted to the first defendant be Review Petition No. 877 of 2013 in R.S.A. No. 15`0 of 2012 **4** delivered to him in execution. It was thereafter the suit was filed by the wife and son of the 3rd defendant as O.S. 187/2001 contending that the judgment and decree passed in O.S. 13/1985 are not binding on them and that they are entitled to get the plaint schedule property declared and for recovery of possession of plaint schedule property shown therein”. 2. The appellants herein contend that since they were not parties to O.S. 13/1985 and since the settlement deed was executed by the deceased 3[rd] defendant in their favour even in the year 1983 itself, the judgment and decree passed in O.S. 13/1985 are not binding on them and so they are not bound by the subsequent proceedings taken pursuant to the decree passed in O.S. 13/1985. Though at the first blush it may appear to be acceptable, the facts and circumstances of the case speak otherwise. Review Petition No. 877 of 2013 in R.S.A. No. 15`0 of 2012 **5** 3. The learned Senior counsel appearing for the appellants/review petitioners have relied upon the decisions of this Court in **Balan and Others v. Thanka and Others - 2013 (2) KHC 643** and **Parameswaran & Others v. Lekshman and Others - 2013 (1) KHC 503** in support of his submission that since the gift deed/settlement deed was executed by deceased 3[rd] defendant in favour of the appellants in 1983 and since it was not an onerous gift and as there is nothing to show that the gift was not accepted it should be held that the gift deed executed in the year 1983 is valid and was accepted and acted upon by the appellants and if that be so, the 3[rd] defendant/husband of the first appellant had absolutely no right over the property when O.S.13/1985 was filed and when ultimately it was decided by this Court. 4. The decision of the Supreme Court in **Payappar Sree Dharmasastha Temple v. A.K. Joseph and Others** **- 2009 KHC 6097** has also been relied upon by the learned Review Petition No. 877 of 2013 in R.S.A. No. 15`0 of 2012 **6** Senior counsel in support of his submission that the decree passed in the earlier suit is not binding since the appellants who were necessary parties to the suit were not impleaded. Another decision of the Hon'ble Supreme Court in **Khetrabasi Biswal v. Ajaya Kumar Baral and Others - 2004 KHC 360** has also been referred to by the learned Senior counsel where also it was held that the order passed is a nullity since the necessary parties were not on record. In **State of Assam v. Union of India and Others - 2010 KHC 4766** also it was held by the Hon'be Supreme Court that necessary party is one without whom no order can be made effectively and a proper party is one in whose absence an effective order can be made but whose presence is necessary for a complete and final decision of the question involved in the proceeding. It is vehemently argued by the learned counsel that since the settlement deed was executed in the year 1983 itself whether that gift deed was accepted and acted upon was a Review Petition No. 877 of 2013 in R.S.A. No. 15`0 of 2012 **7** question to be decided only after the donees/settlees (the appellants) were impleaded in that suit and since they were not impleaded in that suit, the decree and judgment passed in O.S.13/1985 cannot be relied upon by the respondent to contend that the deceased third defendant had no exclusive right over the property since at the time of the decision in O.S.13/1985, the third defendant had absolutely no right over the property since he had already assigned his right over the property in favour of the appellant. Though this argument is quite attractive, in the facts and circumstances of this case, these decisions cannot come to the rescue of the appellants. The history of the earlier litigations are clear from the afore quoted portion of the judgment of this Court in the Second Appeal. The lower appellate court has also observed that the entire case of the plaintiffs/appellants herein was based on the plea that there was a purchase certificate in respect of the property in the name of the third defendant. Ext.A1 was the Review Petition No. 877 of 2013 in R.S.A. No. 15`0 of 2012 **8** purchase certificate obtained by the third defendant. Based on evidence it was found that the purchase certificate obtained by one of the co-owners would enure to the benefit of the other co-owners. It was also observed that pursuant to the final decree passed in O.S. 13/1985 respondents had obtained delivery of the respective shares as could be seen from Exts. B5 copy of the delivery kychit and Ext. B6 delivery kychit. Had the appellants been in actual possession of the property based on Ext.A5, the settlement deed dated 5-10-1983, then certainly they would have resisted the execution of the decree putting forth the gift deed. That was not done. The execution proceedings were also challenged by the third defendant, the father of the second appellant. It was observed by the lower appellate court that in spite of the fact that there was a document of 1983 the third defendant remained silent about that fact and contested the partition suit for years and decades together. It was observed by the lower Review Petition No. 877 of 2013 in R.S.A. No. 15`0 of 2012 **9** ## appellate court : _“In spite of this he has kept silence about this fact while contesting the partition suit. The probability is that the 3[rd] defendant who was very much aware that he does not have exclusive right over the property, that the purchase certificate issued to him is to inure to the benefit of the other legal heirs of Appy also. Probably, desiring that execution of such a document would do some benefit to him he might have executed such a settlement in favour of his wife and son. The document that was executed by the 3[rd] defendant is in respect of the entire property while he had only 1/3 right in the property as one of the three legal heirs of his father Appy. The claim of the plaintiff sis not at all sustainable”._ 5. It was also observed by the lower appellate court that the defendants/respondents had obtained delivery of their shares and were holding those properties by themselves. The suit for declaration filed by the appellants was rightly dismissed by the trial court and was confirmed by the appellate court. The suit for injunction filed by the respondents herein was decreed by both courts. There was a concurrent finding of fact. This Court after considering the entire evidence and circumstances again came to the conclusion that the plea raised by the **10** Review Petition No. 877 of 2013 in R.S.A. No. 15`0 of 2012 appellants that the decree and judgment passed in O.S.13/1985 are not valid and binding on them, is untenable. Under the pretext of review, the appellants cannot have a re-hearing of the entire matter. There is no error apparent on the face of the record. This Review Petition is hence dismissed. _Dated this the 19[th] day of March, 2014._ **Sd/-N.K. Balakrishnan Judge.** /true copy/ P. S. to Judge