Revision Petition No.309 of 2019 in RSA No.1073 of 2005

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE P.B.SURESH KUMAR** **FRIDAY, THE 24TH DAY OF JANUARY 2020 / 4TH MAGHA, 1941** ## **RP.No.309 OF 2019 IN RSA. 1073/2005** **AGAINST THE JUDGMENT DATED 18-12-2018 IN RSA NO.1073/2005 OF HIGH COURT OF KERALA** ## **REVIEW PETITIONER/APPELLANTS:** - **1 THAINGOLI MADATHIL RAMADASAN NAMBIAR S/O. CHANTHU NAMBIAR, RESIDING AT MADHAVI SADANAM, CHALA EAST, KANNUR.** - **2 BHARGAVI AMMA T.M. D/O. CHATHU NAMBIAR, RESIDING AT MADHAVI SADANAM, CHALA EAST, KANNUR.** - **3 T.M. REMA D/O. CHATHU NAMBIAR, RESIDING AT VENGACHERRY, KOYYODE, KANNUR.** - **4 SURENDRA BABU S/O. CHATHU NAMBIAR, RESIDING AT VENGACHERRY, KOYYODE, KANNUR.** - **5 RAMAN NAMBIAR T.M. S/O. CHANDU NAMBIAR, RESIDING AT MANIKKOTH HOUSE, EDAKKAD P.O, KANNUR DISTRICT.** - **6* KUTTIKRISHNAN NAMBIAR (DIED) S/O. CHANDU NAMBIAR, RESIDING AT MANIKKOTH HOUSE, EDAKKAD P.O, KANNUR DISTRICT. (ADDL.P9 IS IMPLEADED)** - **7 GOURI AMMA T.M. D/O. CHANDU NAMBIAR, RESIDING AT MANIKKOTH HOUSE, EDAKKAD P.O, KANNUR DISTRICT.** - **8 BHARGAVI AMMA T.M. D/O. CHANDU NAMBIAR, RESIDING AT MANIKKOTH HOUSE, EDAKKAD P.O, KANNUR DISTRICT.** **ADDL. CHANDRIKA,** - **P9 W/O.LATE KUTTIKRISHNAN NAMBIAR, RESIDING AT MANIKKOTH HOUSE, EDAKKAD P.O., KANNUR DISTRICT.** Revision Petition No.309 of 2019 2 **(*ADDITIONAL P9 IS IMPLEADED AS THE LEGAL HEIR OF THE DECEASED 6TH APPELLANT AS PER ORDER DATED 24.01.2020 IN I.A.NO.4 OF 2019).** **BY ADVS.** **SRI.O.RAMACHANDRAN NAMBIAR SRI.CIBI THOMAS** ## **RESPONDENTS/RESPONDENTS:** - **1 THAINGOLI MADATHIL SUSHEELA AMMA, D/O. MALU AMMA, RESIDING AT THAINGOLI MADATHIL HOUSE, EDAKKAD P.O, KANNUR DISTRICT-670 621** - **2 THAINGOLI MADATHIL SURENDRAN S/O. SUSHEELA AMMA, RESIDING AT THAINGOLI MADATHIL HOUSE, EDAKKAD P.O, KANNUR DISTRICT-670 621** - **3 THAINGOLI MADATHIL SOBHA, D/O. SUSHEELA AMMA, RESIDING AT THAINGOLI MADATHIL HOUSE, EDAKKAD P.O, KANNUR DISTRICT-670 621** - **4 THAINGOLI MADATHIL RAVINDRAN, S/O. SUSHEELA AMMA, RESIDING AT THAINGOLI MADATHIL HOUSE, EDAKKAD P.O, KANNUR DISTRICT-670 621** - **5 THAINGOLI MADATHIL MANOHARAN S/O. SUSHEELA AMMA, RESIDING AT THAINGOLI MADATHIL HOUSE, EDAKKAD P.O, KANNUR DISTRICT-670 621** - **6 THAINGOLI MADATHIL NIRMALA, D/O. SUSHEELA AMMA, RESIDING AT THAINGOLI MADATHIL HOUSE, EDAKKAD P.O, KANNUR DISTRICT-670 621** - **7 THAINGOLI MADATHIL LALITHA AMMA D/O. LAKSHMI AMMA, RESIDING AT 2/181. KRISHNA KRIPA, MOTTAMMAL P.O, KANNAPURAM , KANNUR DISTRICT-670 331** - **8 THAINGOLI MADATHIL PARVATHI AMMA** - **D/O. LAKSHMI AMMA, RESIDING AT LAKSHMI SADAN,** Revision Petition No.309 of 2019 3 ## **KADACHIRA P.O, KANNUR DISTRICT-670621** - **9 C.M. SIVADASAN NAMBIAR,** **S/O. LAKSHMI AMMA, RESIDING AT LAKSHMI SADAN, KADACHIRA P.O, KANNUR DISTRICT-670 621** - **10 K. PREETHA** - **D/O. SANTHA AMMA, RESIDING AT LAKSHMI SADAN, KADACHIRA P.O, KANNUR DISTRICT-670 621** - **11 K. PRASAD** - **S/O. SANTHA AMMA, RESIDING AT LAKSHMI SADAN, KADACHIRA P.O, KANNUR DISTRICT-670 621** - **12 K. SHEEJA** - **D/O. ANANDA VALLI, RESIDING AT ASWATHI, M.M. 10/657, KARETTA VIA MATTANNUR, KANNUR DISTRICT670 702** - **13 K. SHAJI S/O. ANANDA VALLI, RESIDING AT ASWATHI M.M., 10/657, KARETTA VIA MATTANNUR, KANNUR DISTRICT670 702** - **14 T.M. BALAKRISHNA NAMBIAR S/O. KUNHI MADHAVI AMMA, THAINGOLI MADATHIL HOUSE, EDAKKAD P.O, KANNUR-670 621** - **15 T.M. CHANDRAN NAMBIAR S/O. KUNHI MADHAVI AMMA, THAINGOLI MADATHIL HOUSE, EDAKKAD P.O, KANNUR-670 621** - **16 T.M. BALAGOPALAN NAMBIAR S/O. MALU AMMA, THAINGOLI MADATHIL HOUSE, EDAKKAD P.O, KANNUR-670 621** - **17 T.M. SUDHAKARAN NAMBIAR S/O. MALU AMMA, THAINGOLI MADATHIL HOUSE, EDAKKAD P.O, KANNUR-670 621** - **18 T.M. CHANDRAN NAMBIAR S/O. NARAYANI AMMA, VALIAPADAM TEACHER'S COLONY, PALAKKAD-678 003** Revision Petition No.309 of 2019 4 - **19 T.M. LEELA AMMA,** **D/O. NARAYANI AMMA, C/O. KALAVAGHI B3-SUKASH VILLA, PARIPOORNA ESTATE, S.K. MUTHUR, COIMBATORE-641 001** - **20 T.M. KRISHNARAJ S/O. LEELA AMMA, RESIDING AT PERINAYAKAM PALAYAM, COIMBATORE-641 001** - **21 T.M. RAMAKRISHNAN, S/O. GEETHA, RESIDING AT VALIYAPADAM TEACHER'S COLOY, PALAKKAD-678 003** - **22 T.M. SREEJA** - **D/O. GEETHA AMMA, D/O. T.M. RAMAKRISHNAN, RESIDING AT VALIYAPADAM TEACHER'S COLONY, PALAKKAD-678 003** - **23 T.M. SIVASANKARAN, S/O. MEENAKSHI AMMA, MANIOKKOTH HOUSE, EDAKKAD P.O, KANNUR DISTRICT-670 621** - **24 T.M. UNNIKRISHNAN, S/O. MOOKAMBIKA AMMA, RESIDING AT NO. 37, PUKAZHENTHU STREET, MGR NAGAR, CHENNAI-641 078** - **25 VANAJA AMMA D/O. MOOKAMBIKA AMMA, RESIDING AT 15/1, SARAYU APARTMENT, GANAPATHY STREET, ROYAPETTA, CHENNAI641 014.** - **26 T.M. RAJMOHAN NAMBIAR S/O. MOOKAMBIKA AMMA, RESIDING AT NO.10,11 HARISON APARTMENTS , 1030, THIRUVATTIYOOR HIGH ROAD, CHENNAI-641019** - **27 T.M. LAKSHMANAN NAMBIAR, S/O. MOOKAMBIKA AMMA, PRAYAD PRATHEESH, KOODAKKATTERI HOUSE, EDAKKAD P.O, KANNUR DISTRICT-670 621** - **28 T.M. VASANTHA D/O. VANAJA, RESIDING AT SARAYU APARTMENT, GANAPATHY STREET, ROYAPETTA, CHENNAI – 641 014** - **29 T.M. SURESH** Revision Petition No.309 of 2019 5 **S/O. VANAJA, RESIDING AT SARAYU APARTMENT, GANAPATHY STREET, ROYAPETTA, CHENNAI-641014** - **30 T.M. PARVATHI AMMA** **D/O. PARVATHI AMMA, OMKARAM, NADAL, EDAKKAD, KANNUR DISTRICT-670 621** - **31 T.M. MURALI** - **S/O. PARVATHI AMMA, OMKARAM, NADAL, EDAKKAD, KANNUR DISTRICT-670 621** - **32 T.M. PREETHA @ PRASANTHA D/O. PARVATHI AMMA, OMKARAM, NADAL, EDAKKAD, KANNUR DISTRICT-670 621** - **33 T.M. NARAYANANIKUTTY AMMA D/O. MANIKUTTY AMMA, MANGADAN VEEDU NEAR II RAILWAY GATE , THIRUVANGAD, THALASSERY-670 101** - **34 T.M. VELAYUDHAN NAMBIAR S/O. NANIKUTTY AMMA, MANGADAN VEEDU, NEAR II RAILWAY GATE, THIRUVANGAD, THALASSERY-670 101** - **35 T.M. BALAKRISHNAN NAIAR, S/O. MANGADAN VEEDU, NEAR II RAILWAY GATE, THIRUVANGAD, THALASSERY-670 101** - **36 UCHIRUMMAL KANDIYIL MEEZHATTIL SARADA D/O. JANAKI AMMA, CENTRAL SCHOOL STAFF QUARTERS, HOLIDAY CAMP, COLABA, BOMBAY-400058** **37 RAJAM D/O. JANKI AMMA, 14/332, D.N.B. NAGAR, ANDHERI WEST, BOMBAY-400058** - **38 PARUKUTTY AMMA D/O. JANAKI AMMA, FLAST NO. 203, S 213/4A, MANEESH NAGAR, ANDHERI WEST, BOMBAY-58, 400058** - **39 KAMALAKSHI** - **D/O. NARAYANAN NAMBIAR, CHETTIAMPURATH, KOOLOTH HOUSE, EDAKKAD, KANNUR-670 621** - **40 JAYALAKSHMI** - **D/O. KRISHNAN NAMBIAR, CHIRIYATH HOUSE, EDAKKAD** Revision Petition No.309 of 2019 6 ## **P.O, KANNUR-670 621** ## **41 RAJAGOPALAN** - **S/O. KRISHNAN NAMBIAR, CHIRIYATH HOUSE, EDAKKAD P.O, KANNUR-670 621.** - **42 JAYASREE** - **D/O. KRISHNAN NAMBIAR, CHIRIYATH HOUSE, EDAKKAD P.O, KANNUR-670 621** - **43 BALAN** - **S/O. GOVINDAN NAMBIAR, RESIDING AT OTTAYI HOUSE, EDAKKAD P.O, KANNUR DISTRICT-670 621** - **44 LAKSHMI AMMA** - **D/O. GOVINDAN NAMBIAR, OTTAYIL HOUSE, EDAKKAD P.O, KANNUR DISTRICT-670 621** - **45 PARVATHI AMMA D/O. GOVINDAN NAMBIAR, OTTAYI HOUSE, EDAKKAD P.O, KANNUR DISTRICT-670 621** - **46 VIJAYALAKSHMI AMMA D/O. CHATHU NAMBIAR , RESIDING NAMBIAR, RESIDING AT MADHAVI SADANAM, CHALA EAST, KANNUR-670 621** - **47 PADMANABHAN T.M. S/O. CHATHU NAMBIAR, RESIDING AT MADHAVI SADANAM, CHALA EAST, KANNUR-670 621** - **48 MATHRUBHUMI PRINTING AND PUBLISHING CO. LTD KOZHIKODE REPRESENTED BY ITS SUPERIOR GENERAL MANAGER, COMPANY AFFAIRS OF LAW SECRETARY-673 001** - **49 RAJESH SREERAGH, CHANDROTH PARAMBA, ERANHOLY, THALASSERY-670 101** - **50 SREEJA, SREERAGH, CHANDROTH PARAMBA, ERANHOLY, THALASSERY-670 101** - **51 AMRUTHA** Revision Petition No.309 of 2019 7 **AGED 16 YEARS, MINOR, REPRESENTED BY FATHER SATHTYAN, 15//5 SARAYTU APARTMENTS, GANAPATHI STREET, NEAR MUSIC ACADEMY, ROYAPETTA, CHENNAI673 114** **52 VISWANATHAN S/O. LATE ANANDAN NAMBIAR, AMBADI HOUSE, C.N. PURAM, VELAYAPADAM, PALAKKAD-678 005 53 MEENAMBIKA D/O. LATE ANANDAN NAMBIAR, AMBADI HOUSE, C.N. PURAM, VELAYAPADAM, PALAKKAD-678 005 54 HEMAMBIKA D/O. LATE ANANDAN NAMBIAR, AMBADI HOUSE, C.N. PURAM, VELAYAPADAM, PALAKKAD-678 005** **BY ADVS. SRI.S.VINOD BHAT ADV. SRI.D.ANIL KUMAR ADV. R.PARTHASARATHYADV. UNNIKRISHNAN.V.ALAPATT ADV. SEEMA ADV. S.VINOD BHAT ADV. V.N.RAMESAN NAMBISAN** **THIS REVIEW PETITION HAVING BEEN FINALLY HEARD ON 24.01.2020, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** Revision Petition No.309 of 2019 8 ## **Revision Petition No.309 of 2019** ## **in** ## **R.S.A.No.1073 of 2005** ## **O R D E R** The appellants in the second appeal seek review of the judgment. The parties are referred to in this order as they appear in the second appeal. 2. The second appeal arose from a suit for partition of the properties of a tarwad. Some of the defendants contested the suit contending that the suit properties have already been partitioned in terms of Ext.A1 document and that the suit is therefore not maintainable. Some of the defendants supported the plaintiffs and some others claimed tenancy rights over the plaint schedule item No.20 property. The trial court framed various issues and decreed the suit as prayed for holding that Ext.A1 document styled as 'Nikschayarekha' would not amount to an outright partition. As regards the tenancy right claimed over Item No. 20 property, the trial court found that the said claim is without substance. The defendants who contended that Ext.A1 'Nikschayarekha' is an outright partition and the defendants who claimed tenancy right, challenged the decision of the trial court in Revision Petition No.309 of 2019 **==> picture [8 x 9] intentionally omitted <==** appeal. The appellate court, on an elaborate consideration of the facts and circumstances found that Ext.A1 'Nikschayarekha' is an outright partition and dismissed the suit, reversing the decision of the trial court. The appellate court also reversed the finding rendered by the trial court as regards the question of tenancy in respect of item No.20 property and held that the tenancy was established. It is challenging the said decision of the appellate court that the second appeal has been preferred by the plaintiffs. 3. Though very many questions were framed in the memorandum of second appeal, this Court issued notice only on the following questions: - (1) Whether in the facts and circumstances of the case, the lower appellate court was correct in law in reversing the well considered and reasoned interpretation of Ext.A1 as a deed of family settlement? - (2) Whether the lower appellate court's reasoning that Ext.A1 is an outright partition is correct on the various recitals in Ext.A1? At the time of final hearing, after hearing the learned counsel on either side, this Court re-framed the questions thus: “Does Ext.A1 document amount to an outright partition of the properties of the tarwad mentioned therein?” Thereupon, on an elaborate consideration of the facts, this court Revision Petition No.309 of 2019 10 affirmed the decision of the appellate court holding that Ext.A1 'Nikschayarekha' is an outright partition deed and consequently affirmed the decision of the appellate court. 4. The review petition is filed by the appellants on the ground that in so far as the question of tenancy raised in respect of plaint item No. 20 property was rejected by the trial court without making a reference under Section 125(3) of the Kerala Land Reforms Act, the finding rendered by the trial court on that issue was vitiated by inherent lack of jurisdiction and hence void. According to the review petitioners, if that order is vitiated by inherent lack of jurisdiction and void, it was inappropriate for the appellate court to consider the correctness of the same. 5. Heard the learned counsel for the review petitioners as also the learned counsel for the contesting respondents. 6. The learned counsel for the review petitioners reiterated the stand taken by the review petitioners. It was contended by the learned counsel that insofar as the decision of the trial court as regards the question of tenancy was _void ab initio,_ having found that the suit is not maintainable, the appellate court ought not have reversed the finding rendered on the Revision Petition No.309 of 2019 11 question of tenancy. 7. Per contra, the learned counsel for the contesting respondents submitted that the point now raised is not a point on which a substantial question of law was framed in the memorandum of second appeal. It was pointed out that, at any rate, that was not a point on which this Court issued notice on the second appeal. It was also pointed out by the learned counsel that, it was not a point argued also at the time of hearing. According to the learned counsel, in the circumstances, this review petition is not maintainable. 8. I have bestowed my attention to the submissions made by the learned counsel for the parties on either side. As rightly pointed out by the learned counsel for the contesting respondents, the point now raised in the review petition is not a point on which a substantial question of law was framed in the second appeal. This Court also has not framed a substantial question of law on the said point for decision in the second appeal at the time of hearing. It is conceded by the learned counsel for the review petitioners that the said point was not raised at the time of hearing as well. In **Tanuku Taluk Village Officers' Association v. Tanuku Municipality and Others** [(2019) 4 SCC Revision Petition No.309 of 2019 12 397], the Apex Court has reiterated the proposition that the High Court, in exercise of the power under Section 100 of the Code of Civil Procedure cannot decide a point which is not covered by a question framed for decision in the second appeal. If that be so, according to me, there is absolutely no error apparent on the face of records, warranting interference in exercise of the review jurisdiction of this court. 9. The learned counsel for the review petitioners, placing reliance on paragraph 33 of the judgment of the Apex Court in **Kulwant Kaur and Others v. Gurdial Singh Mann** [(2001) 4 SCC 262] contended that in the light of the said decision, the High Court can go beyond the questions on which notice was issued, if circumstances warrant. Paragraph 33 of the said judgment reads thus: “33. Referring to the above conspectus of the matter, Mr Mehta contended that the High Court could not, in the absence of a substantial question of law interfere with the findings of the lower appellate court which has otherwise the authority and jurisdiction to scrutinise and appraise the evidence. Mr Mehta contended that suspicious features of the will are mere questions of fact which can be gone into up to the stage of the first appellate court only and not beyond and the High Court in the absence of a substantial question of law framed by the parties or if not so framed by the Court itself, had no jurisdiction to entertain the appeal far less allowing it and it is an Revision Petition No.309 of 2019 13 interference which is totally unauthorised or in excess of jurisdiction or having no jurisdiction whatsoever. We are however not in a position to lend concurrence to such a broad proposition as enunciated by Mr Mehta. Judicial approach being justice-oriented, exclusion of jurisdiction of the High Court under the circumstances as contended by Mr Mehta, would lead to an incongruous situation being opposed to the concept of justice. Technicality alone by itself ought not to permit the High Court to decide the issue since justice-oriented approach is the call of the day presently. The learned Single Judge in the matter under consideration has delved into the issue as to whether in fact the evidence on record warrants such a conclusion – whether the High Court was right in such appreciation or not – that is entirely a different issue. But the fact remains that scrutiny of evidence will be totally prohibited in the matter of exercise of jurisdiction in second appeal would be too broad a proposition and too rigid an interpretation of law not worthy of acceptance. If the concept of justice so warrants, we do not see any reason why such an exercise would be deprecated. This is however, without expression of any opinion pertaining to Section 100 of the Civil Procedure Code.” A perusal of the extracted paragraph indicates that what is held by the Apex Court in the said case is only that a scrutiny of evidence is not totally prohibited in the matter of the High Court exercising the power under Section 100 of the Code of Civil Procedure and that if the concept of justice so warrants, the High Court is certainly within its powers to do so. The said judgment, in the circumstances, has no application to the facts of the present Revision Petition No.309 of 2019 14 case. It is all the more so since it is clarified in the last sentence of the said paragraph that the observations made therein is without expression of any opinion pertaining to Section 100 of the Code of Civil Procedure. In the circumstances, the review petition is without merits and the same is, accordingly, dismissed. **Sd/P.B.SURESH KUMAR, JUDGE.** DK