Laxman Kappacheri v. Padmini, Kamala, Sarojini, Prasanna and Pushpavall

# **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** # **`PRESENT`** ## **`THE HONOURABLE MRS. JUSTICE SHIRCY V.`** ``` TUESDAY, THE 18[TH] DAY OF JANUARY 2022 / 28TH POUSHA, 1943 ``` ``` RSA NO. 853 OF 2021 ``` ``` AGAINST THE JUDGMENT AND DECREE IN AS 15/2019 OF ADDITIONAL DISTRICT ``` ``` COURT - IV, THALASSERY ``` ``` AGAINST THE JUDGMENT AND DECREE IN FDIA NO.1000/15 IN OS 244/2010 OF ADDITIONAL SUB COURT, THALASSERY ``` ## **`APPELLANT/RESPONDENT NO.2/DEFENDANT NO.2 :-`** ``` LAXMAN KAPPACHERI S/O. KUNHAPPA NAIR, AGED 68 YEARS, PUSHPPA NIVAS, PARAL.P.O., KODIYERI AMSOM, THALASSERI TALUK, KANNUR DISTRICT,PIN-670 102 ``` ``` BY ADV JOHN NUMPELI (JUNIOR) ``` ## **`RESPONDENTS / PETITIONER AND RESPONDENT NOS.1, 3 TO 5/PLAINTIFF AND DEFENDANTS NO.1, 3 TO 5 :-`** ``` 1PADMINI, D/O. KUNHAPPA NAIR, AGED 78 YEARS PARAL P.O., KODIYERI AMSOM, THALASSERI TALUK, KANNUR DISTRICT,PIN-670 102 ``` ``` 2V.KAMALA AGED 68 YEARS W/O. NARAYANAN, PARAL P.O., KODIYERI AMSOM, THALASSERI TALUK, KANNUR DISTRICT,PIN-670 102 ``` ``` 3SAROJINI, W/O. VIJAYAN, AGED 63 YEARS PARAL P.O., KODIYERI AMSOM, THALASSERI TALUK, ``` ``` RSA NO. 853 OF 2021 ``` ``` 2 ``` ## **`KANNUR DISTRICT,PIN-670 102`** ``` 4PRASANNA W/O. VALSAN, AGED 58 YEARS NEW NO.32, OLD NO.50, P.V.KOL STREET, MAILAPOOR, CHENNAI, TAMILNADU, PIN-60004 ``` ``` 5PUSHPAVALL W/O BALAKRISHNAN AGED 55 YEARS UPPANNDAM, CHANDROTH PARAMBA, P.O.ERUVETTY, KANNUR DISTRICT,PIN-670 581 ``` ``` BY ADV R.SURENDRAN(k/000220/1987)(CAVEATOR) ``` ``` THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 13.01.2022, THE COURT ON 18.01.2022 DELIVERED THE FOLLOWING: ``` ``` RSA NO. 853 OF 2021 ``` ``` 3 ``` ## **JUDGMENT** The appellant is the 2nd defendant in O.S.No.244 of 2010 on the file of the Subordinate Court, Thalassery. The suit was one for partition. The preliminary decree was passed on 28.01.2015 and thus partition was ordered and the final decree application was filed as FDIA 1000/2015. A Commissioner was deputed to divide the properties among the parties in equal shares, as per the preliminary decree. Thereafter, a final decree was passed accepting the plan and report submitted by the Commissioner. As per the final decree the residential house situated in the property was allotted to the share of the appellant/2nd defendant. For equalization of shares, the second defendant was directed to pay certain amount to the other shareholders. The said final decree was challenged in the appeal by the appellant/the second defendant in A.S.No.15/2019. The appeal was dismissed by the court below ``` RSA NO. 853 OF 2021 ``` ``` 4 ``` on the finding that there was no illegality or impropriety in the allotment made by the trial court to the respective parties including the appellant. The said appeal was dismissed on 25.03.2021. Now this appeal has been filed by the appellant challenging the judgment and decree passed by the court below. 2. Heard the learned counsel for the appellant as well the learned counsel for the respondents. 3. It is well settled that a Second Appeal can be entertained only if it involves a substantial question of law . The right of appeal arises only when a 'substantial question of law' is involved to decide the issue in the case. The expression 'Substantial question of law' is not defined in the Code. The Supreme Court in _**Sir Chunilal V Mehta and Sons, Ltd. v. Century Spinning And Manufacturing Co. Ltd (AIR 1962 SC 1314)**_ observed as follows: “6. …..The proper test for determining whether a question of law raised in the case is substantial would, in our opinion, be whether it is of ``` RSA NO. 853 OF 2021 ``` ``` 5 ``` general public importance or whether it directly and, substantially affects the rights of the parties and if so, whether it is either an open question in the sense that it is not finally, settled by this Court or by the Privy Council or by the Federal Court or is not free from difficulty or calls for discussion of alternative views. If the question is settled by the highest court or the general principles to be applied in determining the question are well settled and there is a mere question of applying those principles or that the plea raised is palpably absurd the question would not be a substantial question of law.” ## Further in _**Hero Vinoth (Minor) v. Seshammal ((2006) 5 SCC 545),**_ the Supreme Court held as follows: “23. To be “substantial” a question of law must be debatable, not previously settled by law of the land or a binding precedent, and must have a material bearing on the decision of the case, if answered either way, insofar as the rights of the parties before it are concerned. To be a question of law “involving in the case” there must be first a foundation for it laid in the pleadings and the question should emerge from the sustainable findings of fact arrived at by court of facts and it must be necessary to decide that question of law for a just and proper decision of the case. …..” ``` RSA NO. 853 OF 2021 ``` ``` 6 ``` 4. A perusal of the records would reveal that in the final decree application the court below appointed a Commissioner and the Commissioner thus appointed inspected the property and filed C1 report, C2 and C3 plans, C4 and C5 share lists and C6 accounts of statement. This appellant was examined before the court as RW1 and he has claimed allotment of the residential house to his share. 5. As per the calculation statement the residential house was valued at Rs.8,74,000/- and as the building was an old one 45% of depreciation was also calculated. 6. It is pertinent to note that the parties to the final decree agreed to allot the residential house to the share of this appellant and the parties have not raised any objection to Exts.C1 to C3 and C6. Accepting the same, the court below allotted the shares and thus the residential house was allotted to the share of this appellant. 7. A meticulous evaluation of the records would show ``` RSA NO. 853 OF 2021 ``` ``` 7 ``` that for equalization of the share value the second respondent to whom the building was allotted, was directed to pay the owelty amount to the other respondents and the amount has been fixed by the court below as assessed by the Commissioner which was not disputed by the parties. Now this appeal is filed contending that the court below has passed a judgment against the pleadings. 8. It is to be noted that no objection was raised by this petitioner while accepting the Commissioner report to dispose of the final decree application as submitted by the appellant as well the respondents in the final decree application. The final decree was passed by the court in accordance with C1 to C6. 9. On going through the entire records, I find absolutely no reason or justification to think that any substantial question of law is involved in this case, so as to admit this second appeal. The learned counsel could not point out any reason to show that the second appeal is maintainable with the facts and ``` RSA NO. 853 OF 2021 ``` ``` 8 ``` circumstances of the case. A partition or separation was made according to the rights declared by the preliminary decree and delivery of the shares have already been effected. As no substantial question of law is involved, I find that this appeal is only to be dismissed and hence, it is not admitted. Therefore, this second appeal is dismissed as not admitted. No costs. Sd/- **SHIRCY V.,** **JUDGE** **SMA**