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2013 DIGILAW 734 (KER)

K. P. Raveendran v. P. Sathi Vijayan

2013-08-21

THOMAS P.JOSEPH

body2013
Judgment : 1. This Review Petition is filed by plaintiffs 1, 4 and 5 in O.S. No.158 of 1994 of the Sub Court, Vadakara and respondents 1, 4 and 5 in A.S. No.13 of 1999 of this Court. 2. O.S. No.158 of 1994 is a suit for partition filed by the petitioners and others as if their predecessor-in-interest died intestate with respect to the suit property. The contesting defendants set up Ext.B1, styled as a partition agreement of the year, 1933, Ext.X1, Will of the year 1962 and Ext.B2, gift deed of the year, 1982. 3. Learned Sub Judge framed issues among other things whether Matha died after executing Ext.B1, partition agreement of the year, 1933 and Ext.X1, Will dated 29.09.1962. Learned Sub Judge found that Ext.B2, gift deed is not valid and set aside that document (while answering issue No.8). Learned Sub Judge found against Ext.X1, Will of the year, 1962 but did not decide on execution or interpretation of Ext.B1, partition agreement of the year, 1933. Learned Sub Judge proceeded to pass a preliminary decree for partition as if parties are entitled to a share since their predecessor-in-interest died intestate. 4. The 19th defendant challenged judgment and preliminary decree of learned Sub Judge in this Court in A.S. No.13 of 1999. This Court disposed of the appeal as per judgment dated 10.11.2010. This Court was of the view that trial court has to decide validity of Ext.B1, partition agreement of the year, 1933, Ext.X1, Will of the year, 1962 and Ext.B2, gift deed of the year 1982. Accordingly judgment and preliminary decree were set aside and the suit was remitted to the trial court for fresh decision. 5. Petitioners/plaintiffs 1, 4 and 5 seek a review of the judgment of this Court. Learned counsel for the petitioners contended that correctness of finding of the trial court regarding due execution of Ext.B2, gift deed of the year 1982 was not a point for consideration in A.S. No.13 of 1999 since none of the parties had challenged finding of learned Sub Judge as to the execution of Ext.B2 and hence it was not necessary for this Court to go into the correctness of that question. It is submitted that judgment and decree of this Court are to be reviewed accordingly. 6. I have heard learned counsel for the respondents as well. 7. It is submitted that judgment and decree of this Court are to be reviewed accordingly. 6. I have heard learned counsel for the respondents as well. 7. It is not disputed before me that finding of learned Sub Judge as to the validity of Ext.B2, gift deed of the year, 1982 was not a matter in issue in the appeal since none of the parties had challenged that finding. In the light of the above, there was no occasion or necessity for this Court while deciding A.S. No.13 of 1999 to go into the correctness of finding entered by the learned Sub Judge as to the validity of Ext.B2, gift deed. Since finding of learned Sub Judge in that regard was not challenged, that finding has attained finality. Therefore this Court while deciding A.S. No.13 of 1999 was not required to set aside finding of learned Sub Judge as to the validity of Ext.B2. It follows that judgment of this Court to the extent it interfered with the finding of learned Sub Judge regarding validity of Ext.B2 and directed fresh consideration of that question are required to be reviewed. 8. In other respects judgment and decree of this Court should stand. 9. Learned counsel on both sides submitted that finding entered by the learned Sub Judge as to the validity of Ext.B2, gift deed shall not affect the finding learned Sub Judge has to enter as regards Ext.B1, partition agreement of the year 1933, its interpretation and as regards due execution and attestation of Ext.X1, Will of the year 1992. I am inclined to accept that suggestion. Resultantly the Review Petition is allowed as under: (i) Judgment and decree of this Court in A.S. No.13 of 1999 to the extent it interfered with the finding of learned Sub Judge as regards validity of Ext.B2, gift deed of the year 1982 and the direction issued to the learned Sub Judge to reconsider that question afresh would stand reviewed and deleted. (ii) In other respects, judgment and decree dated 10.11.2010 in A.S. No.13 of 1999 would stand. (iii) The learned Sub Judge is directed to decide validity of Exts.B1 and X1 and on the interpretation to be given to Ext.X1 if it arises for a decision from the pleadings of the parties untrammelled by the finding it has entered with respect to the validity of Ext.B2, gift deed. (iii) The learned Sub Judge is directed to decide validity of Exts.B1 and X1 and on the interpretation to be given to Ext.X1 if it arises for a decision from the pleadings of the parties untrammelled by the finding it has entered with respect to the validity of Ext.B2, gift deed. (iv) Parties shall appear in the Sub Court, Vadakara on 25.09.2013. (v) Learned Sub Judge is directed to dispose of O.S. No.158 of 158 of 1994 as early as possible as directed in the judgment dated 10.11.2010 in A.S. No.13 of 1999 and as reviewedby this order. All pending Interlocutory Applications will stand dismissed.