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2025 DIGILAW 2282 (KER)

P. S. George v. Marykutty Varkey (Died)

2025-08-25

P.KRISHNA KUMAR, SATHISH NINAN

body2025
JUDGMENT : SATHISH NINAN, J. 1. The applications seeking to set aside ex parte preliminary and final decree on condonation of delay, were dismissed by the trial court. The petitioners who were defendants 7 and 8 in the suit are in appeal. 2. The suit is one for partition. The properties sought to be partitioned originally belonged to one Mathai Mathew. The first defendant in the suit is the wife of Mathai Mathew. Plaintiffs 1 to 4 and defendants 2 to 4 are their children. Sri.Mathai Mathew died on 01.09.1969. 3. After the death of Mathai Mathew, the defendants without the junction of the plaintiffs entered into a partition. Based on the said partition defendants 1 and 4 conveyed a portion of plaint item 1 property to one Khareem in the year 1977. Khareem conveyed the property to the appellants in the year 1981 under four documents. 4. On 20.05.1989 the suit for partition was filed. The suit consists of 4 items of properties. On 24.06.1997 a preliminary decree was passed declaring 2/21 shares for each of the children viz. plaintiffs 1 to 4 and defendants 2 to 4 and 7/21 shares for the mother over plaint item no.1 alone. 5. On 25.11.2000 since the first plaintiff passed away, her legal heirs were impleaded. On 08.12.2000 on the application of plaintiffs 3 and 4 as IA 3660/2000, they were transposed as defendants 12 and 13. 6. On the application of the 9 th defendant, who was ex parte, the preliminary decree was set aside and a fresh decree was passed on 28.02.2002 declaring the very same shares for the parties as was declared earlier. This was followed by a final decree on 30.09.2006. In execution of the decree, the 8/21 shares of the plaintiffs were delivered over on 23.09.2011 as evidenced by delivery kychit. 7. The appellants who are the defendants 7 and 8 claimed that they were unaware of the suit and the decree passed therein. They were abroad and were not served with summons in the suit. It is only on 14.09.2011 when the tenant in the building situated in the property purchased by them informed about the visit of the Amin, that they made enquiries and came to know about the suit, the decree and the delivery. They were abroad and were not served with summons in the suit. It is only on 14.09.2011 when the tenant in the building situated in the property purchased by them informed about the visit of the Amin, that they made enquiries and came to know about the suit, the decree and the delivery. Thereafter the applications were filed to set aside the exparte preliminary and final decrees on condoning the delay of 169 days. 8. The trial court dismissed the applications. 9. We have heard the learned counsel Sri.P.C.Haridas on behalf of the appellants and Sri.Mathew John on behalf of the contesting respondents. 10. The fact that the appellants 7 and 8 were abroad, is not in dispute. They are the successors-in-interest from defendants 1 and 4. Summons in the suit was served on the appellants by substituted service through publication in newspaper. The address of the appellants as shown in the suit was an address in Sharjah, whereas the appellants were at Dubai. The above facts are proved by Exts.A1 and A2 passport and the evidence of the first appellant-7 th defendant as PW1. According to the appellants they came to know about the decree and the delivery proceedings only from the building tenant, on the visit of Amin to the property in September 2011. It is not in dispute that the delivery was effected on 23.09.2011. Therefore, the case of the appellants that they came to know about the decree and the delivery proceedings then only, appears to be probable. 11. On coming to know about the proceedings, the 7 th defendant-appellant No.1 came down to the native place and made an application for certified copy of the decree on 01.12.2011. However, the application was dismissed for lack of records. On realising the same, another copy was applied for only on 29.03.2012. On receipt of the same the applications were filed. Thus there occurred the delay. 12. We are of the opinion that the appellants have sufficiently explained the reasons for the delay. We are unable to find any lack of bona fides in them. They claim to have purchased 24 cents of property from out the plaint schedule item No.1 which has an extent of 45 cents. They claim that there has been relinquishment or adjustment of shares between the defendants 1 to 4. We are unable to find any lack of bona fides in them. They claim to have purchased 24 cents of property from out the plaint schedule item No.1 which has an extent of 45 cents. They claim that there has been relinquishment or adjustment of shares between the defendants 1 to 4. The appellants claim that a portion of the property purchased by them was delivered over in execution. 13. Considering the entire facts as above, we are of the opinion that the appellants are to be given an opportunity to raise their claims in the suit, they being undisputedly, sharers of the property. In the light of the partition and assignments claimed by them, it may be necessary to ascertain the shares held by them and to pass preliminary decree accordingly. 14. It is submitted across the bar that the delivery was effected as early as in the year 2011 and that new buildings have been constructed therein. The final decree Court is to take into consideration the above aspects and make every endeavour not to disturb the existing possession of the properties. Since 14 years have elapsed after effecting delivery, we do not think that it would be proper to disturb the existing possession and order restoration while setting aside the final decree, though the final decree is liable to be set aside. Resultantly, the appeals are allowed. The preliminary decree and final decree passed in OS 214/1989 of the Additional Sub Court, Kottayam are set aside. The suit will stand restored back to file. The court shall proceed to pass a fresh preliminary and final decree in accordance with law. As far as possible, the existing possession and enjoyment of the properties may not be disturbed in the final decree. It is further directed that though the decree is being set aside, the present possession of property shall not be disturbed for the present, pending the passing of a fresh final decree. Parties to appear before the trial court on 15.09.2025.