Thankam @ Parvathy v. K.P.SANKARANKUTTY GUPTHAN and Others

# **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** # **`PRESENT`** ``` THE HONOURABLE MR. JUSTICE A. BADHARUDEEN ``` ``` MONDAY, THE 15[TH] DAY OF JANUARY 2024 / 25TH POUSHA, 1945 RSA NO. 750 OF 2022 ``` ``` AGAINST THE JUDGMENT AND DECREE IN A.S.NO.190/2016 OF ADDITIONAL DISTRICT COURT, OTTAPALAM AGAINST THE JUDGMENT AND DECREE IN O.S.NO.187/2007 OF SUB COURT, ``` ## **`OTTAPPALAM`** ## **`APPELLANT/APPELLANT/PLAINTIFF:`** ``` THANKAM @ PARVATHY AGED 74 YEARS W/O. NARAYANAN AND D/O. KALIYODU PUTHAN VEETTIL KUNCHUNNI GUPTHAN, ARIYANDATH HOUSE, KARIMBA POST, MANNARKKAD TALUK, PALAKKAD DISTRICT, PIN - 678597 BY ADVS. SANTHEEP ANKARATH J.RAMKUMAR ``` ## **`RESPONDENTS/RESPONDENTS/DEFENDANTS:`** ``` 1K.P.SANKARANKUTTY GUPTHAN AGED 71 YEARS S/O.KUNCHUNNI GUPTHAN, KALIYODU PUTHAN KALATHIL, KARIMBA AMSOM DESOM, MANNARKKAD TALUK, PALAKKAD DISTRICT, PIN - 678597 2K.P.BALAKRISHNAN AGED 70 YEARS S/O. KUNCHUNNI GUPTHAN, KALIYODU PUTHAN KALATHIL, KARIMBA AMSOM DESOM, MANNARKKAD TALUK, PALAKKAD DISTRICT, PIN - 678597 3K.P.NARAYANAN AGED 66 YEARS S/O. KUNCHUNNI GUPTHAN, KALIYODU PUTHAN KALATHIL, KARIMBA AMSOM DESOM, MANNARKKAD TALUK, PALAKKAD DISTRICT, PIN - 678597 4K.P.RAMAKRISHNAN AGED 64 YEARS S/O. KUNCHUNNI GUPTHAN, KALIYODU PUTHAN KALATHIL, KARIMBA ``` ## **`R.S.A.NO.750 OF 2022 2`** ``` AMSOM DESOM, MANNARKKAD TALUK, PALAKKAD DISTRICT, PIN - 678597 5K.P.LAKSHMIKUTTY AGED 60 YEARS D/O. KUNCHUNNI GUPTHAN, KALIYODU PUTHAN KALATHIL, KARIMBA AMSOM DESOM, MANNARKKAD TALUK, PALAKKAD DISTRICT, PIN - 678597 6LEELA AGED 72 YEARS W/O. LATE RAMANKUTTY GUPTHAN, KALIYODU PUTHAN KALATHIL, KARIMBA AMSOM DESOM, MANNARKKAD TALUK, PALAKKAD DISTRICT, PIN - 678597 7UNNIKUTTAN AGED 48 YEARS S/O. LATE RAMANKUTTY GUPTHAN, KALIYODU PUTHAN KALATHIL, KARIMBA AMSOM DESOM, MANNARKKAD TALUK, PALAKKAD DISTRICT, PIN - 678597 8BABAJAN AGED 41 YEARS S/O. LATE RAMANKUTTY GUPTHAN, KALIYODU PUTHAN KALATHIL, KARIMBA AMSOM DESOM, MANNARKKAD TALUK, PALAKKAD DISTRICT, PIN - 678597 9LATHA AGED 36 YEARS D/O. LATE RAMANKUTTY GUPTHAN, KALIYODU PUTHAN KALATHIL, KARIMBA AMSOM DESOM, MANNARKKAD TALUK, PALAKKAD DISTRICT, PIN - 678597 10AMMALUKUTTY AMMA AGED 78 YEARS W/O. CHAMAKUZHIYIL LATE RAMANKUTTY GUPTHAN, KARIMBA AMSOM DESOM, KARIMBA POST, MANNARKKAD TALUK, PALAKKAD DISTRICT, PIN - 678597 11PREMAKUMARI AGED 54 YEARS W/O. BALAKRISHNAN, PUTHANKALAM, KALIYODE, KARIMA POST, MANNARKKAD TALUK, PALAKKAD DISTRICT, PIN - 678597 12K.P.HARIDASAN AGED 53 YEARS S/O. KRISHNANKUTTY GUPTHAN, PUTHANPURAYIL VEEDU, KALIYODE, KARIMBA POST, MANNARKKAD TALUK, PALAKKAD DISTRICT, PIN - 678597 ``` ## **`R.S.A.NO.750 OF 2022 3`** ``` 13INDIRA AGED 57 YEARS W/O. RAJAN RAMAKRISHNAN, PUTHANKALATHIL, KALIYODE, KARIMBA POST, MANNARKKAD TALUK, PALAKKAD DISTRICT, PIN - 678597 14MURALI AGED 51 YEARS S/O. LATE RAMANKUTTY, CHOORAKODE VEEDU, MARUTHAMKADU, MOONNEKKRA POST, MANNARKKAD TALUK, PALAKKAD DISTRICT, PIN - 678597 15BINDU SAJI AGED 49 YEARS W/O. SAJI, KALATHIL PARAMBU VEEDU, CHEMMANTHITTA, MARUTHAMKADU, MOONNEKKRA POST, MANNARKKAD TALUK, PALAKKAD DISTRICT,, PIN - 678597 16SURENDRAN AGED 60 YEARS S/O. PUTHENPURAYIL KRISHNAN, KUTTICHOLA, KARIMBA AMSOM DESOM, MANNARKKAD TALUK, PALAKKAD DISTRICT, PIN - 678597 R1 TO R4, R6 TO R8, R11 & R13 BY ADVS. SREEHARI R HAMZA A.V. ``` ``` THIS REGULAR SECOND APPEAL HAVING BEEN FINALLY HEARD ON 15.1.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` R.S.A.NO.750 OF 2022 4 ``` ## **JUDGMENT** Dated this the 15[th] day of January, 2024 This Regular Second Appeal has been filed under Section 100 and Order XLII Rule 1 of the Code of Civil Procedure (for short, ‘the C.P.C.’ hereinafter), at the instance of original 10[th] defendant in O.S.No.187/2007 on the files of Sub Court, Ottappalam, later transposed as plaintiff, when the original plaintiff Ammalukutti Amma abandoned the suit. Respondents herein are the other parties to the suit. 2. Heard the learned counsel for the appellant/transposed plaintiff and the learned counsel appearing for respondents 1 to 4, 6 to 8, 11 and 13, on admission. 3. Ammalukutti Amma, as plaintiff, filed suit, seeking partition of Item Nos.1 to 15 scheduled in the plaint, on alleging that those properties were left by Ammunni Ammal and Kunjunni Gupthan, the parents of the parties. 4. The suit was resisted by the other side mainly contending that, as far as Item Nos.1 to 14 in the plaint are ``` R.S.A.NO.750 OF 2022 5 ``` concerned, there were two earlier suits viz., O.S.Nos.13/1988 and 16/1988 and those suits were compromised. 5. The learned Munsiff recorded evidence confined to that of PW1 and Exts.A1 to A16 on the side of the plaintiff, DW1 to DW3 and Exts.B1 to B31 on the side of the defendants and Exts.C1 and C2 series also were marked. Finally, the learned Munsiff found plaint Item No.15 alone is partible, since the dispute in regard to the other items were settled in view of respective compromise entered into O.S.Nos.13/1988 and 16/1988. 6. On appeal, the learned Additional District Judge also addressed the legality of compromise and found that the other items were covered by the compromise in the earlier suits and plaint Item No.15 alone is partible and confirmed the finding of the trial court. 7. While challenging the concurrent verdicts, the learned counsel for the appellant raised contention that the name of the appellant is ‘Thankam’ and not ‘Parvathy’. According to him, in the earlier suits, she was arrayed by the name 'Parvathy' and the compromise decrees were rendered without her being a party to ``` R.S.A.NO.750 OF 2022 6 ``` the suit and without her signature in the compromise. Therefore, the compromise decrees in the earlier suits would not bind upon the appellant. 8. In this matter, filing of two suits earlier, i.e., O.S.Nos.13/1988 and 16/1988 and its culmination by effecting compromise, Exts.B22 and B31, is well discernible. But the appellant disputed her signature therein and even she as a party to the above suits. Ext.B22 is the compromise in O.S.No.13/1988. Ext.B31 is the compromise in O.S.No.16/1988. If Exts.B22 and B31 are found to be in order, nothing survives to adjudicate the dispute with regard to Item Nos.1 to 14 in the plaint, in any manner. 9. As regards the legality of Exts.B22 and B31, compromise in two suits, originally filed in the year 1988, the challenge, in fact, raised in the present suit, which was originally filed as O.S.No.113/2008 before the Munsiff Court, Mannarkad, later, transferred and re-numbered as O.S.No.187/2007 before the Sub Court, Ottapalam. Now, the pertinent question is, _what is the remedy of a party who disputes a compromise petition?_ 10. This Court considered this aspect in detail in a decision ``` R.S.A.NO.750 OF 2022 7 ``` in **Ashiya Ummal** v. **S.N.Sathy** , reported in **[2024 KHC OnLine 1]** : **[2024 KER 19]** : **[2024 LiveLaw (Ker) 15]** and held as under: “ _20. The Apex Court in_ _**Banwari Lal's case (supra)** has thus categorically held that a party challenging a compromise decree can file an application under the proviso to Order XXIII, R.3 CPC before the same court by which the said decree was passed or an appeal under S.96(1) CPC wherein it would be open for a party to question the validity of the compromise in view of Order XLIII, R.1A of the Code. While discussing the ratio of law laid down in_ _**Banwari Lal's case (supra)** , the Apex Court in the decision reported in (2021 (5) SCC 241 : AIR OnLine 2021 SC 269),_ _**H.S.Goutham v. Rama Murthy and another** held that an appeal against a compromise decree in terms of Order XLIII, R.1A CPC was maintainable. The Apex Court in the decision reported in (2014 (15) SCC 471 : AIR 2015 SC 706),_ _**R.Rajanna v. S.R.Venkataswamy and others** held that a separate suit challenging a consent decree was not maintainable, however a party aggrieved by a decree passed on the basis of a compromise could apply before the same court which passed the decree to_ ``` R.S.A.NO.750 OF 2022 8 ``` _challenge the validity of the compromise._ _21. Thus the legal position can be summarised holding that after the amendments which have been introduced, neither an appeal against the order recording the compromise nor remedy by way of filing a suit is available in cases covered by R.3A of O.23. As such a right has been given under R.1A(2) of O.43 to a party, who challenges the recording of the compromise, to question the validity thereof while preferring an appeal against the decree. S.96(3) of the Code shall not be a bar to such an appeal because S.96(3) is applicable to cases where the factum of compromise or agreement is not in dispute.”_ 11. Therefore, it is emphatically clear that the appellant herein not opted the remedy by way of Order XXIII Rule 3 or under Order XLIII Rule 1A of the C.P.C., within a reasonable time. It is relevant to note that the appellant even did not file the present suit and the present suit itself is at the volition of Ammalukutti Amma and she later abandoned the suit. Thereafter, the appellant herein transposed herself as plaintiff and proceeded with the suit, raising contention that Exts.B22 and B31 are to be ignored and her right over the property in the plaint schedule ## **`R.S.A.NO.750 OF 2022 9`** items to be decided independently. The trial court as well as the appellate court negatived the contention of the appellant to ignore Exts.B22 and B31 and finally found that, in view of Exts.B22 and B31, partition in respect of Item Nos.1 to 14 in the suit has been finalised and accordingly, the remaining item, which was not partitioned in either way, was allowed to be partitioned. Accordingly, Item No.15 of the plaint B schedule property was allowed to be divided into 8 equal shares and 1/8 share was given to the appellant herein. Due shares also given to the other defendants, in accordance with law. 12. Even though the learned counsel for the appellant vehemently disputed the compromise earlier, as I have already pointed out, even no proper challenge raised insofar as the compromise decrees are concerned. In the affidavit in support of C.M.A.No.1/2022 filed before this Court, the appellant described her as _'I, Thankam @ Parvathy, Aged 74 years, W/o. Narayanan and D/o. Kaliyodu Puthan Veettil Kunchunni Gupthan, Ariyandath House, Karimba Post, Mannarkkad Taluk, Palakkad District, Pin – 678597._ ' The same would go to show that the appellant admits her two names viz., Thankam @ Parvathy and also she admits the ## **`R.S.A.NO.750 OF 2022 10`** father's name and address and everything, as detailed in the earlier suits including Exts.B22 and B31 and the present suit. Therefore, the challenge raised by the appellant, contending that her name is ‘Thankam’ and not ‘Parvathy’ goes against her own affidavit, as hereinabove extracted. Thus, the challenge as against Exts.B22 and B31, negatived by the trial court and the appellate court, would not require any interference and the trial court rightly granted partition in respect of plaint B Item No.15, since other properties are governed by Exts.B22 and B31. 13. In this case, in fact, the learned counsel for the appellant failed to raise any substantial question of law warranting admission of the second appeal. Order XLII Rule 2 provides thus: _**“2. Power of Court to direct that the appeal be heard on the question formulated by it.** -At the time of making an order under rule 11 of Order XLI for the hearing of a second appeal, the Court shall formulate the substantial question of law as required by section 100, and in doing so, the Court may direct that the second appeal be heard on the question so formulated and it shall not be open to the appellant to urge any other ground in the appeal without the leave of the Court, given in accordance_ ## **`R.S.A.NO.750 OF 2022 11`** _with the provision of section 100.”_ 14. Section 100 of the C.P.C. provides that, (1) Save as otherwise expressly provided in the body of this Code or by any other law for the time being in force, an appeal shall lie to the High Court from every decree passed in appeal by any Court subordinate to the High Court, if the High Court is satisfied that the case involves a substantial question of law. (2) An Appeal may lie under this section from an appellate decree passed ex parte. (3) In an appeal under this section, the memorandum of appeal shall precisely state the substantial question of law involved in the appeal. (4) Where the High Court is satisfied that a substantial question of law is involved in any case, it shall formulate that question. (5) The appeal shall be heard on the question so formulated and the respondent shall, at the hearing of the appeal, be allowed to argue that the case does not involve such question. Proviso says that nothing in this sub-section shall be deemed to take away or abridge the power of the Court to hear, for reasons to be recorded, the appeal on any other substantial question of law, not formulated by it, if it is satisfied that the case involves ``` R.S.A.NO.750 OF 2022 12 ``` such question. 15. In the decision in **Nazir Mohamed v. J. Kamala and Others** reported in **[2020 KHC 6507 : AIR 2020 SC 4321 : 2020 (10) SCALE 168]** , the Apex Court held that: _The condition precedent for entertaining and deciding a second appeal being the existence of a substantial question of law, whenever a question is framed by the High Court, the High Court will have to show that the question is one of law and not just a question of facts, it also has to show that the question is a substantial question of law referring_ _**Kondiba Dagadu Kadam v. Savitribai Sopan Gujar, [(1999) 3 SCC 722]** ._ 16. In a latest decision of the Apex Court in **Government of Kerala v. Joseph** , reported in **[2023 (5) KHC 264 : 2023 (5) KLT 74 SC]** , it was held, after referring **Santosh Hazari v. Purushottam Tiwari, [2001 (3) SCC 179]** (three – Judge Bench) _,_ as under: _For an appeal to be maintainable under Section 100, Code of Civil Procedure ('CPC', for brevity) it must fulfill certain well – established requirements. The primary and most important of them all is that the appeal should pose a substantial question of law. The_ ``` R.S.A.NO.750 OF 2022 13 ``` _sort of question that qualifies this criterion has been time and again reiterated by this Court._ 17. The legal position is no more _res-integra_ on the point that in order to admit and maintain a second appeal under Section 100 of the C.P.C., the Court shall formulate substantial question/s of law, and the said procedure is mandatory. Although the phrase 'substantial question of law' is not defined in the Code, 'substantial question of law' means; of having substance, essential, real, of sound worth, important or considerable. It is to be understood as something in contradistinction with – technical, of no substance or consequence, or academic merely. However, it is clear that the legislature has chosen not to qualify the scope of “substantial question of law” by suffixing the words “of general importance” as has been done in many other provisions such as S.109 of the Code or Art.133(1)(a) of the Constitution. The substantial question of law on which a second appeal shall be heard need not necessarily be a substantial question of law of general importance. As such, second appeal cannot be decided on equitable grounds and the conditions mentioned in Section 100 read with Order XLII Rule 2 of the C.P.C. ``` R.S.A.NO.750 OF 2022 14 ``` must be complied to admit and maintain a second appeal. 18. In view of the above fact, no substantial question of law arises in this matter to be decided by admitting this appeal. In the result, this Regular Second Appeal is found to be meritless and the same is dismissed without being admitted. All interlocutory applications pending in this Regular Second Appeal, stand dismissed. Registry shall inform this matter to the trial court as well as the appellate court, forthwith. Sd/- **A. BADHARUDEEN JUDGE** Bb