Narayana Pisharady v. Unnimaya Ajtharjanam and others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT :** **THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH** **FRIDAY, THE 19TH FEBRUARY 2010 / 30TH MAGHA 1931** **RSA.NO. 1076 OF 2008()** **---------------------------------------** **AS.32/2008 OF DISTRICT COURT,KOZHIKODE OS.432/1985 OF ADDL.M.C.,KOZHIKODE-I** **....................** **APPELLANT - APPELLANT - 1[ST] DEFENDANT:** **---------------------------------------------------------------** **NARAYANA PISHARADY, PISHARIYEDATH AGED 51,S/O.KESAVAN NAMBOOTHIR, KANNIPARAMBA AMSOM, PALANGAD DESOM, KOZHIKODE.** **BY ADV. SMT.ANU SIVARAMAN SRI.HARISANKAR V. MENON SMT.MEERA V.MENON SRI.MAHESH V.MENON** ## **RESPONDENTS - PLAINTIFFS 1 TO 3 AND 5 – DEFENDANTS 2 TO 5:** **--------------------------------------------------------------------------------------------** **1. UNNIMAYA AJTHARJANAM, PERUR ILLATH, AGED 92, W/O.KESAVAN, NAMBOOTHIRI, MAVOOR AMSOM, DESOM, KOZHIKODE TALUK.** **2. SREEDEVI ANTHARJANAM, AGED 56, PALAKKOL ILLATH, MAVOOR AMSOM, DESOM, KOZHIKODE TALUK.** **3. SANTHA ALIAS PARVATHY ANTHARJANAM, AGED 56, PARAKKUNNATH ILLATH, CHERUPPA AMSOM, MANAKKAD DESOM.** **4. RAJAGOPAL PIZHARADY, AGED 62, S/O.MADHAVI PISHARASYAR, PIZHARIYEDATH, KANNIPARAMBA AMSOM, PALANGAD DESOM, KOZHIKODE TALUK.** **5. SREEDEVI PISHARASYAR, AGED 48, NADUVIL SHARATH, VALAYANAD AMSOM, DESOM, KOZHIKODE TALUK.** **6. SANTHAKUMARI, AGED 47, BHARATHA PISHARADY, PISHARIYEDATH,KANNIPARAMBA AMSOM, PLANGAD DESOM, KOZHIKODE TALUK.** ## **7. SINDHU, AGED 25 YEARS,D/O.SANTHAKUMARI,** - **-DO- -DO- -DO-** **8. SUNILKUMAR, AGED 23 YEARS,** **S/O.SANTHAKUMARI, -DO- -DO- -DO-** **ADV. SRI.P.V.KUNHIKRISHNAN FOR R6-8 SRI.V.T.MADHAVANUNNI FOR R5 SRI.V.A.SATHEESH FOR R5** **THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION N 19/02/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ## **THOMAS P.JOSEPH, J.** = = = = = = = = = = = = = = = = = = = = = = = = **R.S.A. NO.1076 of 2008** = = = = = = = = = = = = = = = = = = = = = = = = = Dated this the 19[th] day of February, 2010 ## **J U D G M E N T** --------------------- Second Appeal arises from judgment and decree of learned District Judge dismissing A.S. No.32 of 2008 consequent to the dismissal of I.A. No.279 of 2008 to condone the delay of 5490 days in filing the appeal. Challenge was to the judgment and preliminary decree for partition in O.S. No.432 of 1985 passed on 18.12.1992 (which was confirmed by the first appellate court in A.S. No.185 of 1986). According to respondent Nos.1 to 4/plaintiff Nos.1 to 3 and 5 (I am told that plaintiff No.4 is no more) respondent No.1 is the widow of Kesavan Namboothiri to whom the suit properties belonged and consequent to his death they demanded partition and separate possession of their share. Appellant/defendant No.1 contended that respondent No.1 is not the legally wedded wife of Kesavan Namboothiri since their marriage was after 1.8.1933 at a time when the first wife of Kesavan Namboothiri was alive. Marriage of Kesavan Namboothiri with respondent No.1 was during the subsistence of the first marriage and hence invalid. Trial court negatived the contentions of the appellant and passed a preliminary ## **R.S.A. No.1076 of 2008** ## -: 2 :- decree which was confirmed in A.S. No.185 of 1996. It is not disputed that judgment and decree in A.S. No.185 of 1996 were not challenged by any of the parties and became final. It is while so that on 30.1.2008 appellant filed A.S. No.32 of 2008 before the first appellate court again challenging judgment and decree of the trial court in O.S. No.432 of 1985 (notwithstanding that the said judgment and decree got merged with the judgment and decree in A.S. No.185 of 1996). Contention of appellant in A.S.No.32 of 2008 is that marriage of Kesavan Namboothiri with respondent No.1/plaintiff No.1 held after 1.8.1933 is void since the first wife of Kesavan Namboothiri was alive during that time and that marital tie subsisted. To support that contention appellant produced a document dated 10.3.1944 written on a stamp paper purporting to be a permission granted by the first wife to Kesavan Namboothiri to marry respondent No.1. The purport of producing that document was two fold: firstly, marriage of Kesavan Namboothiri with respondent No.1 was held after 1.8.1933 and secondly, at the time of that marriage the first wife was living, that marital tie subsisted and hence marriage of Kesavan Namboothiri with respondent No.1 was void. To condone the delay of 5490 days appellant filed ## **R.S.A. No.1076 of 2008** ## -: 3 :- I.A.No.279 of 2008 stating that the document came into his possession only recently. Learned District Judge did not think it necessary to issue notice on I.A. No.279 of 2008 to the respondents. Learned District Judge observed that though the stamp paper on which the document is written is of the year 1944, the writings on it appeared to be recently made. In the words of learned District Judge “a document of that sort has been created and produced in court as if the court is too gullible to swallow such a document”. Learned District Judge observed that after the judgment and preliminary decree were confirmed in A.S. No.185 of 1996 a final decree was passed, that became final and the final decree was engrossed on non-judicial stamp papers. Execution petition was also filed. Learned District Judge observed that apart from the delay in appellant allegedly getting custody of the document no other reason is stated for condonation of the huge delay. It is also observed that challenge to the judgment and preliminary decree passed in O.S. No.432 of 1985 cannot stand since that judgment and decree have merged in the judgment and decree in A.S. No.185 of 1996 and hence another appeal was not maintainable in the first appellate court. Holding so I.A. No.279 of 2008 was dismissed. That is under ## **R.S.A. No.1076 of 2008** ## -: 4 :- challenge in this Second Appeal raising by way of substantial question of law whether first appellate court was legally correct in entering a finding without considering a document essential for deciding the merits of the case and whether first appellate court was correct in holding that judgment and decree of the trial court merged in the judgment and decree of the first appellate court. Learned counsel for appellant has pressed the above questions before me. 2. A photocopy of the document produced in the first appellate court has been appended to the paper book and hence I have the occasion to go through the same. No doubt, stamp paper is seen to be of the year 1944 and the date of its execution stated is 10.3.1944. But it is seen from the writings that the ink used appeared to be fresh. It is in the above circumstances that first appellate court observed that the document is not of the year 1944 though the stamp paper was of that year. 3. At any rate delay involved in filing the appeal is 5490 days. Apart from the delay for allegedly tracing out the disputed document no other reason is stated for condonation of the delay. Whatever contentions that appellant wanted to raise in A.S. No.32 of ## **R.S.A. No.1076 of 2008** ## -: 5 :- 2008 were urged in the trial court before passing of the preliminary decree and on the evidence on record those contentions were negatived. That was confirmed by the first appellate court in A.S. No.185 of 1996. Later final decree was passed and engrossed on non-judicial stamp papers and execution proceeding has already started. In such a situation seeking condonation of such huge delay and that too with a document of doubtful character as observed by the learned District Judge which I find no reason to interfere and cannot be lightly entertained. In **R.B. Policies at Lloyd's v. Butle** r ([1949] 2 All ER 226) the words of Best, C.J., in **A Court v. Cross** [3 Bing 332]) is quoted as, “long dormant claims have often more of cruelty than of justice in them”. 4. John Veet is quoted in **Mangu Lal and Others v.** **Kandhai Lal and Another** ([1886] 8 Allahabad 475 at page 483, “Ne autem lites immortales essent, ## **R.S.A. No.1076 of 2008** -: 6 :- dum litigantes mortales sunt” (controversies are limited to a fixed period of time, lest they should be immortal while men are mortal) The object of law of limitation is to prevent the disturbance or deprivation of what may have been acquired in equity and justice by long enjoyment or what may have been lost by a party's own inaction, negligence or laches (See **Rajendar Singh v. Santa Singh** – AIR 1973 SC 2537). I am inclined to think that raking up the contentions which are already found against and which became final at this distant point of time in the circumstances stated above and that too based on a doubtful document is nothing but cruelty to the respondents who have already obtained a final decree, which also became final and who have got the final decree engrossed on stamp paper. I am satisfied that learned District Judge was correct in holding that delay cannot be condoned and that at any rate the Forum for the appellant was not the first appellate court since judgment and decree which were in challenge had merged with the ## **R.S.A. No.1076 of 2008** ## -: 7 :- judgment and decree of the appellate court in A.S. No.185 of 1996. 5. On going through the judgment and decree under challenge and hearing counsel I do not find any substantial question of law involved in the Second Appeal requiring a decision. Second Appeal is dismissed in limine. **THOMAS P.JOSEPH, JUDGE.** vsv