Mary Sebastian v. K.U. Abraham

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** **THE HONOURABLE MR.JUSTICE P.N.RAVINDRAN** **WEDNESDAY, THE 27TH DAY OF NOVEMBER 2013/6TH AGRAHAYANA, 1935** ## **OP(C).No. 3846 of 2013 (O)** **-------------------------------------[OS 142/2012 OF MUNSIFF COURT, ETTUMANOOR]** **..........** **PETITIONER/DEFENDANT:** **-------------------------------------** **MARY SEBASTIAN, AGED 56 YEARS, D/O. SEBASTIAN, VETTIKKAKUZHY VEEDU, KADAPLAMATTAM P.O., MEENACHIL TALUK, KOTTAYAM DISTRICT, NOW RESIDING AT KODIKUTHUMPARAMBIL VEEDU, CHULLICKAL BHAGOM, KOCHI -5, KOCHI TALUK, ERNAKULAM DISTRICT.** **BY SRI.GRASHIOUS KURIAKOSE, SENIOR ADVOCATE, ADV. SRI.GEORGE MATHEWS.** **RESPONDENT/PLAINTIFF:** **--------------------------------------** **K.U.ABRAHAM, AGED 62 YEARS, S/O. ULAHANNAN, MANNARKUNNEL HOUSE, ATHIRAMPUZHA P.O., KOTTAYAM DISTRICT, PIN - 686 562.** **BY ADV. SRI.A.G.BASIL.** **THIS O.P (CIVIL) HAVING BEEN FINALLY HEARD ON 27-11-2013, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **Prv.** ## **O.P.(C).NO.3846/2013 - O:** ## **APPENDIX** ## **PETITIONER'S EXHIBITS:** **EXHIBIT-P1: TRUE COPY OF THE DECREE AND THE APPENDED COMPROMISE MEMO DATED 03/11/2008.** - **EXHIBIT-P2: TRUE COPY OF THE SALE DEED NUMBER 4764/2008 OF S.R.O ETTUMANUR.** - **EXHIBIT-P3: TRUE COPY OF THE WILL ISSUED BY ALEX K. ABRAHAM.** - **EXHIBIT-P4: TRUE COPY OF THE DEATH CERTIFICATE ISSUED FROM THE KIDANGOOR GRAMA PANCHAYATH, KOTTAYAM DISTRICT.** - **EXHIBIT-P5: TRUE COPY OF THE PETITION DATED 31/10/2012 SUBMITTED BY THE PETITIONER BEFORE THE VILLAGE OFFICER, ATHIRAMPUZHA.** - **EXHIHIT-P6: TRUE COPY OF THE LETTER DATED 20/02/2013 ISSUED BY THE ADDITIONAL TAHSILDAR, KOTTAYAM TO THE PETITIONER.** - **EXHIBIT-P7: TRUE COPY OF THE PLAINT IN O.S 142/2012 FILED BY THE RESPONDENT BEFORE THE MUNSIFF COURT, ETTUMANOOR.** ## **RESPONDENT'S EXHIBIT:** **EXT.R(1): TRUE COPY OF W.P.(C).NO.19301/2013 FILED BY THE PETITIONER BEFORE THIS HON'BLE COURT.** ## **//TRUE COPY//** ## **P.A. TO JUDGE.** **Prv.** ## **P.N.RAVINDRAN, J.** =-=-=-=-=-=-=-=-=-=-=-=-= ## **O.P.(C)No.3846 of 2013** =-=-=-=-=-=-=-=-=-=-=-=-=-= **Dated this the 27[th] day of November, 2013** ## **JUDGMENT** The petitioner is the divorced wife of the respondent. The marriage between them was solemnized on 27.11.1983. In that marriage two children namely Mr.Alex Abraham and Ms.Amala who is still a minor, were born. Disputes and differences arose between the petitioner and the respondent which led to the institution of O.P.No.583 of 2004 and M.C.No.163 of 2007, before the Family Court, Kottayam by the petitioner. O.P.No.583 of 2004 was filed by her for realisation of the sum of Rs.1,08,000/- being the value of 24 sovereigns of gold ornaments and the sum of Rs.40,28,000/- under various heads, from the respondent. 2. O.P.No.583 of 2004 was allowed in part by order passed on 19.5.2006 and the petitioner was allowed to realise the sum of Rs. 6,60,804/- from the respondent. Aggrieved thereby, the petitioner filed Mat. Appeal No.236 of 2006 and the respondent filed Mat. Appeal No.239 of 2006 in this Court. Pursuant to the interim orders passed by this Court on 14.8.2008 and 7.10.2008 in Mat. Appeal Nos.236 and 239 of 2006, the petitioner paid the sum of Rs.1,00,000/- to the respondent herein for settling his liabilities. The O.P.(C) No.3846 of 2013 ..2.. payment comprised of Rs.79,000/- remitted in State Bank of Travancore on 21.10.2008, Rs.15,000/- paid to the respondent on 1.11.2008 and Rs.6,000/- paid to the respondent on 3.11.2008. Pursuant thereto, the respondent conveyed 16 cents (6.47 ares) of land situate in R.S.No.334/3 of Athirampuzha Village to Mr.Alex Abraham, son of the petitioner and the respondent, as per sale deed dated 25.10.2008, registered as document No.4764/2008 of SRO, Ettumanoor in full and final settlement of all the claims of the petitioner and her children including the claims raised in O.P.No.583 of 2004 and M.C.No.163 of 2007 on the file of the Family Court, Kottayam. 3. The petitioner and the respondent thereafter jointly filed I.A.No.2967 of 2008 in Mat Appeal No.236 of 2006. In that compromise petition it was averred that as agreed, a sale deed has been executed in full and final settlement of all the claims of the petitioner herein and her children including the claims raised in O.P.No.583 of 2004 and in M.C.No.163 of 2007 on the file of the Family Court, Kottayam. By that compromise, the parties also agreed to part ways. A copy of the compromise petition is on record as Ext.P1. The compromise petition reads as follows. _1. In compliance of the Order dated 14.8.2008 and 7.10.2008 passed in this appeal the second petitioner herein_ ## O.P.(C) No.3846 of 2013 ..3.. _has conveyed 16 cents (6.47 ares) of land in Re-survey No.334/3 in Block No.8 of Athirampuzha village to Mr.Alex Abraham, son of the petitioners as per Sale Deed No.4764/08 of SRO, Ettumanoor in full and final settlement of all the claims of the first petitioner and her children, including the claims raised in O.P.No.583/2004 of the Family Court, Kottayam and M.C.No.163/2007 of the Family Court, Kottayam._ _2. In compliance of the order dated 14.8.2008 and 7.10.2008 passed in this appeal the first petitioner has paid a sum of Rs.1,00,000/- to the second petitioner for settling his liabilities Rs.79,000/- paid to the State Bank of Travancore on 21.10.2008, Rs.15,000/- paid to the second petitioner on 1.11.2008 and Rs.6,000/- paid to the second petitioner on 3.11.2008._ _3. In compliance of the order dated 7.10.2008 passed in this appeal the second petitioner has handed over all the articles belonging to the first petitioner which were kept in his house and the first petitioner has received the same._ _4. Mr.Alex Abraham has been put in possession of the above described 16 cents and the second petitioner shall not have any right or claim over the said property._ _5. Mat.Appeal No.236 of 2006 and 239 of 2006 may be disposed as settled recording this compromise as the petitioners herein do not have any further claims as against each other and all their claims against each other have been fully and finally settled._ _6. The execution petitions pending before the Family Court, Kottayam in O.P.No.583/2004 and M.C.No.163/2007 instituted by the first petitioner and Amala Abraham, daughter of the petitioners, respectively shall be withdrawn as the claims therein have been settled._ _7. Sale deed No.3179/1988 of SRO, Ettumanoor of the property belonging to the first petitioner has been handed over by the second petitioner to the first petitioner and he reiterates that he has no right or claim over the said property._ _8. The marriage of the petitioner solemnized on 27.11.1983 be dissolved by a decree of divorce by mutual consent passed under section 10A of the Divorce Act, 1869 with effect from this date._ _9. Petitioners hereby withdraws the allegations made by them against each other in the petitions and affidavit filed before the Family Court, Kottayam and before this Honourable Court._ ## O.P.(C) No.3846 of 2013 **==> picture [20 x 9] intentionally omitted <==** _It is therefore humbly prayed that this Honourable Court may be pleased to dispose of the appeal in terms of this compromise and passing decree accordingly._ 4. After the aforesaid compromise petition was filed, Mat Appeal Nos.236 and 239 of 2006 were heard and disposed of by judgment delivered on 3.11.2008. By that judgment, the orders passed by the court below were set aside and a decree of divorce was passed dissolving the marriage between the petitioner and the respondent with effect from 3.11.2008. This Court also directed that the terms of the settlement stipulated in I.A.No.2967 and 2968 of 2008 shall form part of the decree passed in the appeals. 5. Alex.K.Abraham, son of the petitioner and the respondent passed away on 28.10.2010, two years after the sale deed was executed and the dispute between the parties was settled. The petitioner has averred that Alex K.Abraham had executed the original of Ext.P3 Will on 25.9.2010 bequeathing the property covered by the sale deed dated 25.10.2008 to her and appointing her as the sole executor, that on her son's death she submitted Ext.P5 petition dated 31.10.2012 before the Village Officer, Athirampuzha Village requesting him to effect mutation in the revenue records and thereupon, the said officer informed her by Ext.P6 letter dated 20.2.2013 that in view of the pendency of O.P.(C) No.3846 of 2013 ..5.. O.S.No.142 of 2002, mutation can be effected only after the suit is disposed of. In this original petition filed under Article 227 of the Constitution of India, the petitioner challenges the plaint in O.S.No.142 of 2012, a copy of which is on record as Ext.P7, and seeks the following reliefs: _A. Declare the title and possession of the plaintiff in the scheduled property._ _B. Restrain the defendant and all others under her from trespassing in the schedule property, from altering its lie and nature in any manner, from reducing the property to her possession from cutting and removing the yielding rubber trees and committing other acts of waste and damage therein by a decree of permanent prohibitory injunction._ _C. Allow the plaintiff to realise the cost of the suit from the defendant._ 6. The petitioner has also filed W.P.(C) No.19301 of 2013 challenging Ext.P6 letter dated 20.2.2013 sent by the Village Officer, Athirampuzha Village and seeking a direction to respondents 1 and 2 therein to effect mutation. In that writ petition also the petitioner has prayed for dismissal of O.S.No.142 of 2012 on the file of the Court of the Munsiff of Ettumanoor or for removing it from the files. The principal contention raised in the instant original petition is that O.S.No.142 of 2012 is frivolous and vexatious, that 16 cents of land was conveyed by the respondent to the son of the petitioner and the respondent in full and final settlement of the claims of the petitioner and her children against the respondent O.P.(C) No.3846 of 2013 ..6.. including the claims which were the subject matter of O.P.No.583 of 2004 and M.C.No.163 of 2007 on the files of the Family Court, Kottayam and therefore, the respondent cannot have any claim over the property conveyed to the petitioner's son by Ext.P2 sale deed. 7. The respondent has been served and he has entered appearance through counsel. He has also filed I.A.No.15528 of 2013 to vacate the interim order passed by this Court on 4.11.2013 staying further proceedings in O.S.No.142 of 2012. The respondent has averred that it was suppressing the fact that the petitioner had filed W.P.(C) No.19301 of 2013 wherein also the very same relief has been sought that the instant original petition has been filed and therefore on that short ground, the interim order passed by this Court staying the trial of the suit is liable to be vacated. The respondent has also averred that though W.P.(C) No.19301 of 2013 had come up for hearing before another court on three occasions, the court was not inclined to grant an interim order. Though in the affidavit filed in support of I.A.No.15528 of 2013, the respondent had averred that he will be filing a detailed counter affidavit in the instant original petition, he has not chosen to file a counter affidavit till date. O.P.(C) No.3846 of 2013 ..7.. 8. I heard Sri.Gracious Kuriakose, learned Senior Advocate appearing for the petitioner and Sri.Basil.A.G, learned counsel appearing for the respondent. Sri.Gracious Kuriakose, learned Senior Advocate appearing for the petitioner submitted with reference to the recitals in Ext.P1 compromise petition that the original of Ext.P2 sale deed was executed pursuant to the orders passed by this Court in Mat Appeal No.236 of 2006 on 14.8.2008 and 7.10.2008, towards full and final settlement of the claims of the petitioner and her children including the claims in O.P.No.583 of 2004 on the file of the Family Court, Kottayam and therefore, notwithstanding the fact that the father is a legal heir, the respondent father cannot claim any right over the property conveyed as per Ext.P2 sale deed. Learned counsel for the petitioner contended that her son had executed the original of Ext.P3 Will bequeathing his properties to her and appointing her as the sole executor and therefore for that reason also, the respondent cannot claim any right over the plaint schedule property. The learned counsel submitted that in such circumstances, the plaint in O.S.No.142 of 2012 is liable to be quashed on the ground that the claim therein is frivolous and vexatious. 9. Per contra, Sri.Basil.A.G., learned counsel appearing for the O.P.(C) No.3846 of 2013 ..8.. respondent contended that the petitioner who has suppressed the factum of filing W.P.(C) No.19301 of 2013 in this Court and had practiced fraud on this Court is not entitled to any relief in the instant original petition. The learned counsel placed reliance on the decisions of the Apex Court in **A.V.Papayya Sastry and others** vs. **Government of A.P. and Others** [2007 (4) SCC 221] and **Union of India** vs. **Ramesh Gandhi** [2012 (1) SCC 476] in support of the said contention. The learned counsel for the respondent contended that the respondent has instituted yet another suit O.S.No.176 of 2013 for a declaration that the Will dated 25.9.2010 is null and void and not binding on the plaint schedule property. 10. I have considered the submissions made at the Bar by the learned counsel appearing on either side. I have also gone through the pleadings and the materials on record. The records in Mat Appeal Nos.236 and 239 of 2006 disclose that the petitioner herein had instituted O.P.No.583 of 2004 before the Family Court, Kottayam at Ettumanoor wherein she had prayed for realisation of the sum of 1,08,000/- from the respondent being the value of 24₹ sovereigns of gold and also the sum of 40,28,000/- from him.₹ O.P.No.583 of 2004 was allowed in part by order passed on 19.5.2006 and the respondent herein was directed to return O.P.(C) No.3846 of 2013 ..9.. the sum of 6,60,804/- to the petitioner within one month, with the₹ rider that in the event of failure on the part of the respondent to pay the said amount, the petitioner will be free to realise it from the respondent and his assets with interest at 6% per annum from the date of the original petition. Aggrieved by that order, the petitioner filed Mat. Appeal No.236 of 2006 and the respondent filed Mat Appeal No.239 of 2006 in this Court. Pursuant to the orders passed by this Court in the said appeals, the petitioner, the respondent and their two children were present in this Court in person on 8.7.2008. After interacting with the parties the cases were adjourned to 15.7.2008 with a direction to the parties to be present on that day. The order passed by this Court on 8.7.2008 in Mat Appeal No.236 of 2006 reads as follows: _The parties and their children are present. Mrs.Sreedevi Kailasnath, as mediator, has also assisted us for reconciliation of the disputes between the parties. We had also talked to the parties at length. Certain suggestions were put to the parties. The respondent, Mr.K.U.Abraham, seeks a weeks time for taking a decision. Post on 15.7.2008. The parties shall be present on that day._ 11. When the appeals came up on 15.7.2008, the appellant and the respondent were present in person and after interacting with them, this Court noticed that there is only a remote possibility of a settlement and accordingly directed that the records should be O.P.(C) No.3846 of 2013 ..10.. called for and the appeals posted for hearing on 30.7.2008. The parties were directed to appear in person on that day also. The parties accordingly appeared in person. Thereafter also the parties were directed to appear, they appeared and discussions were held and ultimately after hearing learned counsel on both sides and after interacting with the parties and their children, the Division Bench of this Court passed the following order on 14.8.2008. _The appellant, respondent and their two children are present. We have talked to the parties at length. We are happy to note that the parties have agreed to settle their disputes. They have also agreed to file a joint petition under section 10A of the Indian Divorce Act for dissolution of marriage. The respondent/husband in Mat.Appeal No.236 of 2006 has agreed to convey 16 cents of land out of 36 cents in the name of his son Alex Abraham within two months from today. After conveyance, the matter shall be reported to this Court and thereafter, the parties shall file a compromise petition and a joint petition under section 10A of the Indian Divorce Act. The respondent has also stated that 1,00,000/- is outstanding as_ ₹ _loan payable to the State bank of Travancore, Athirampuzha branch. The appellant/wife has agreed to discharge the said liability. The respondent has requested that he may be permitted to take the income from the rubber trees. His request is granted and he is permitted to take the income from the rubber trees till the property is disposed of by his son. Since the parties have agreed to settle their disputes, all further proceedings in execution of the decree in O.P.No.583 of 2004 on the file of the Family Court, Kottayam shall stand stayed. Post on 7.10.2008._ _The parties are directed to be present on that day. Treat as part heard._ 12. Thereafter, on 7.10.2008, this Court passed yet another order which reads as follows. O.P.(C) No.3846 of 2013 ..11.. _The appellant Smt.Mary Abraham and respondent Sri.K.V.Abraham are present. It is submitted by the appellant that she will pay off 1,00,000/- which is outstanding as loan_ ₹ _payable to the State Bank of Travancore Athirampuzha branch on or before 15.10.2008. The respondent submitted that he shall execute the sale deed within the said period as mentioned in the order dated 14.8.2008. The respondent is directed to hand over all the articles belonging to the appellant which are kept in the house of the respondent. The appellant is at liberty to go and collect the articles on 10.10.2008 at 10AM. Post on 17.10.2008 in the chambers at 1.30PM._ 13. The said order discloses that the petitioner had agreed to pay off the sum of 1,00,000/- outstanding to be paid by the₹ respondent to State Bank of Travancore, Athirampuzha. It is not in dispute that pursuant to the aforesaid order Ext.P1 compromise petition was filed acknowledging the fact that the petitioner has paid the sum of 1,00,000/- and the respondent has executed a sale₹ deed conveying 16 cents of land to Alex K.Abraham, son of the petitioner and the respondent as per the original of Ext.P2 sale deed in full and final settlement of all the claims of the petitioner and her children including the claim in O.P.No.583 of 2004 and M.C.No.163 of 2007 on the files of the Family Court, Kotayam. These facts are not in dispute. The respondent herein is admittedly a signatory to the original of Ext.P1 compromise petition filed in Mat. Appeal No.236 of 2006. Accepting the terms of the compromise, the marriage between the parties was dissolved by a decree of divorce O.P.(C) No.3846 of 2013 ..12.. passed by mutual consent. The compromise petition discloses that Alex K.Abraham, son of the petitioner and the respondent, was put in possession of the land conveyed to him. The compromise petition also discloses that in view of the said conveyance the petitioner and the respondent will not have any further claim against each other. It was notwithstanding this fact that after the death of his son the respondent herein instituted O.S.No.142 of 2012 seeking a declaration of his title and possession over the plaint schedule property and an injunction restraining the petitioner herein from trespassing into the plaint schedule property or from reducing it to her possession or from committing acts of waste therein, suppressing the fact that a sale deed has been executed by him in favour of his son and contending that consequent on the death of his son, he has become the absolute owner of the property. He had also contended that this Court had permitted him to take the income from the rubber trees standing therein so long as the son retains the plaint schedule property and accordingly he is taking the income from the plaint schedule property. Having regard to the terms of the compromise which as stated earlier was entered into in full and final settlement of all the claims petitioner and her children including the claims in O.P.No.583 of 2004 and M.C.No.163 of 2007 O.P.(C) No.3846 of 2013 ..13.. on the file of the Family Court, Kottayam, I am of the opinion that notwithstanding the law of succession governing the parties, the respondent cannot lay claim to the property merely for the reason that he is the only legal heir of Alex K.Abraham. The terms of the settlement disclose that it was in settlement of the claim made by the petitioner in O.P.No.583 of 2004 and M.C.No.163 of 2006, which were later dismissed as withdrawn, that the respondent herein executed a sale deed conveying 16 cents of land to his son. The petitioner cannot on the terms of the compromise which is binding on the parties seek to unsettle the terms of the compromise by instituting a suit claiming title and possession over the property. From the materials on record and the attendant circumstances, I am satisfied that the plaint in O.S.No.142 of 2012 is frivolous and vexatious and that if the trial of the suit is allowed to be proceeded with, the petitioner will be put to serious prejudice. The respondent is aware that Ext.P2 sale deed was executed by him in full and final settlement of the claim of the petitioner herein in O.P.No.583 of 2004, in the name of their son as agreed to between the parties. He has however instituted a suit, knowing full well that his claim is frivolous and vexatious. From the facts and circumstances stated above, I am satisfied that continuance of the suit will amount to an O.P.(C) No.3846 of 2013 **==> picture [26 x 9] intentionally omitted <==** abuse of the process of the court and therefore further proceedings in O.S.No.142 of 2012 should be quashed. I accordingly allow the original petition and quash the plaint in O.S.No.142 of 2012 on the file of the Court of the Munsiff of Ettumanoor and all further proceedings therein. The parties shall bear their respective costs. sd/- **P.N.RAVINDRAN, JUDGE.** vpv/rkc.