PATHUMUTHUBEEVI Vs. AMINAL BEEVI

JUDGEMENT

(1.) The appellants are the respondents 1 to 3 in I.A.No.241/2011 for passing Supplementary Preliminary Decree in O.S.No.115/1987 on the files of the Munsiff's Court, Pathanamthitta. They were the additional plaintiffs 2 to 4 in the suit, who were impleaded as legal heirs of the Original plaintiff. They challenged the Order dtd. 15/1/2013, passing Supplementary Preliminary Decree in I.A.No.241/2011 before the First Appellate Court by filing A.S.No.22/2022 with I.A.No.1/2022 to condone the delay of 3277 days in filing the appeal. I.A.No.1/2022 was dismissed by the First Appellate Court. Consequently, A.S.No.22/2022 was also dismissed. This Regular Second Appeal is filed challenging the Judgment and Decree in A.S.No.22/2022, taking grounds against the Order in I.A.No.1/2022 refusing to condone delay.

(2.) The short facts necessary for the disposal of this Appeal are: O.S.No.115/1987 was filed by one Meera Sahib for a declaration that the cancellation of Ext.A1 Gift Deed as invalid and for partition of plaint schedule properties in accordance with the said Gift Deed. During the pendency of the suit, the original plaintiff died, and the additional plaintiffs, 2 to 4, who are his wife and two daughters, were impleaded as per order dtd. 6/4/1990 in I.A.No.1338/1989. The plaint schedule properties originally belonged to the first defendant, who was the father of the original plaintiff and defendants 2 to 7 and the husband of the 2nd defendant. The first defendant executed Ext.A1 Gift Deed dtd. 22/6/1964 in favour of the 2nd defendant wife and their children - the original plaintiff and defendants 3 to 6. The 7th defendant was born subsequent to the execution of Ext.A1, and hence, he was not given anything. Only the original plaintiff and defendants 2 to 6 have the right over the plaint schedule properties as per Ext.A1. The first defendant executed a Deed of Cancellation of Ext.A1 Gift Deed and thereafter assigned the property in favour of the 8th defendant. The original plaintiff filed the suit for a declaration that the Deed canceling Ext.A1 and subsequent assignment deeds are void and for partition of the plaint schedule properties among the original plaintiff and the defendants 2 to 6 as per Ext.A1 Gift Deed on the ground that Ext.A1 Gift Deed was accepted and acted upon and the first defendant has no right to cancel the Gift Deed or execute the Assignment Deed in favour of the 8th defendant. The Trial Court passed a Preliminary Decree finding Ext.A1 Gift deed is subsisting and allowing partition of the plaint schedule properties into six equal shares and allotting 1/6th share to the plaintiffs. The Trial Court also found that the plaintiffs are entitled to get allotment of the house in item No.1 property as far as possible. Though the Preliminary Decree was challenged before the First Appellate Court by filing A.S.No.16/1991, the said Appeal was dismissed. S.A.No.351/1994 filed before this Court was allowed in part as per judgment dtd. 19/9/2007, confirming the Preliminary Decree for partition, but setting aside the reservation with respect to the residential building in item No.1, leaving open the question of reservation to be decided in the Final Decree. The additional plaintiffs filed I.A.No.161/2008 for passing the Final Decree. The additional plaintiffs filed I.A.No.2860/2010 to pass Supplementary Preliminary Decree for variation of shares on account of the death of the second defendant - mother. Defendants 4 and 6 filed I.A.No.241/2011 for passing a Supplementary Preliminary decree for variation of the shares on account of the death of the original plaintiff. As per the common order dtd. 15/1/2013, the Trial Court dismissed I.A.No.2860/2010 and allowed I.A.No.241/2011. I.A.No.2860/2010 was dismissed, holding that the daughters of the pre-deceased son are not entitled to get any share when the deceased person is survived by sons or daughters. I.A.No.241/2011 was allowed passing a Supplementary Preliminary decree allotting 19/27 shares to the plaintiffs 2 to 4 jointly and 4/27 share each to the first and second defendants out of the 1/6 share allotted to the plaintiffs. The additional plaintiffs filed A.S.No.22/2022 before the First Appellate Court in which the impugned Judgment and Order refusing to condone delay were passed.

(3.) On the question of admission of this Appeal, I heard the learned Senior Counsel for the appellants, Sri.S. Sreekumar, instructed by Advocate Sri.Arun.B. Varghese and the learned counsel for the respondents 1 to 3 and 5 to 7, Sri. R. Rajasekhara Pillai.