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2019 Supreme(Ker) 571
IN THE HIGH COURT OF KERALA AT ERNAKULAM
Shircy V., J.
Joseph Peter – Appellant
Versus
Elizabath Manuel – Respondent
R.F.A. No.208 of 2015
Decided On : 29-03-2019
For the Appellant : N. Ratheesh & Suma Ratheesh
For the Respondent: B.N. Shivsankar
IMPORTANT POINTS
The factum of death of Joseph was not considered in O.S. No.294/89 and the said question was not adjudicated applying the presumption under Sections 108 of the Evidence Act. Presumption of death of a person who is unheard of 7 years or more is a rebuttable presumption and therefore, it is a matter of evidence by the parties conversant with the facts and the situation.
Headnote:
Code of Civil Procedure- Section 47-Presumption of death of a person who is unheard of 7 years or more is a rebuttable presumption and therefore, it is a matter of evidence by the parties conversant with the facts and the situation.
Statement of facts:
Appeal arises out of the judgment and decree dated 20.12.2014 in O.S.No.204/2012 on the file of the Subordinate Court, Ernakulam- The suit filed by the plaintiffs/appellants for declaration, partition and injunction was dismissed by the court below by the judgment and decree under challenge.
Finding of the court:
Trial court has not considered whether the plaintiffs have discharged their burden of proof that Joseph was not heard of for more than 7 years before institution of suit so as draw the presumption embodied in the relevant section in their favour. Unfortunately the crucial issue was not considered by the trial court-The claim of the plaintiffs is not barred by the principles of res judicata. Therefore, the dismissal of the suit in a cursory manner, thereby causing prejudice to the rights of the plaintiffs in particular, is absolutely wrong. Hence, the impugned judgment is liable to be set.
Result: The impugned judgment is liable to be set aside.
JUDGMENT :
This appeal arises out of the judgment and decree dated 20.12.2014 in O.S.No.204/2012 on the file of the Subordinate Court, Ernakulam. The suit filed by the plaintiffs/appellants for declaration, partition and injunction was dismissed by the court below by the judgment and decree under challenge.
2. The factual matrix of the case in hand, is that the plaint A schedule property having an extent of 39.780 cents originally belonged to Kunjani @ Alexander and his sister Mary, as per Document No.1610/1110 of SRO, Ernakulam. After the death of Kunjani his half right devolved upon his children namely Joseph, Manual and Lilly Peter. Mary , his sister died as a spinster. So her right also devolved upon the legal heirs of Kunjani. The whereabouts of Joseph, one of the sons of Kunjani was not known for several years. While so, Lilly Peter filed a suit for partition as O.S.No.294/1989 of the A Schedule property and other properties. She also claimed share over the property of Joseph since his whereabouts were not known for several years. But Manual, the brother of Joseph contended that the share of Joseph is not liable to be partitioned and further contended that Mary had bequeathed her right in the plaint schedule property by executing a will deed in his favour. He had also filed L.A. (OP) No.12/1987 before the District Court, Ernakulam with respect to the Will deed executed by Mary. Lilly Peter challenged the genuineness of the Will. Hence, that petition was converted as O.S.No.6/1988 and it was found that the Will was a genuine one. Aggrieved by the said verdict, Lilly Peter challenged the same before the High Court as MFA No.893/1990. In fact in O.S 294/1989 later Lilly Peter accepted the contention of Manual to keep aside the share of Joseph as if he is alive. Thus, a preliminary decree was passed allotting 1/3 right in the half share in plaint A schedule property to Lilly Peter. In MFA 893/90 the verdict of the trial court was reversed and the Will was found as not genuine and thus they both obtained half share over the share of Mary in plaint A schedule property. Later Lilly Peter and Manual expired and the plaintiffs are the legal heirs of Lilly Peter and the defendants are the legal heirs of Manual. Plaintiffs obtained 1/3 right over Kunjani's half share in the property and half right of Mary in A schedule property. 1/3rd right of Joseph in half of plaint A schedule property was not separately shown and demarcated or shared among the legal heirs. But when the final decree was passed on 13.11.2008 the 1/3rd right of Joseph in the half share in plaint A schedule property was measured along with share of the defendants. The 1/3rd share of Joseph in the half share of Kunjani in A schedule is plaint B schedule. Jospeh is unheard for the last 28 years. So the plaintiffs are entitled to get half right over B Schedule property.
Hence the plaintiffs filed the suit seeking the following reliefs :
(1) pass a decree of declaration that Joseph, S/O. Kunjani @ Alexander is not heard of since about 28 years, it has to be presumed that the said Joseph, S/o. Kunjani @ Alexander is dead.
(2). Declare that the said Joseph, S/o. Kunjani @ Alexander has one-third right of half of the plaint A schedule property which is the plaint-B schedule property and the plaintiffs have inherited half of the plaint B schedule property as the legal heirs of deceased Joseph and are the co-owners to the plaint B schedule property.
(3). Pass a decree for partition of the plaint B schedule property into two equal shares thereby giving one share to the plaintiffs jointly in the plaint B schedule property by metes and bounds and putting the plaintiffs in separate possession of their share.
(4). Pass a decree of permanent prohibitory injunction restraining the defendants, their men and agents from alienating or encumbering the plaint B schedule property
(5). Award the costs of the suit; and
(6) Grant such other reliefs that may be prayed for from time to time.”
3. The de
