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2024 Supreme(Ker) 1145

M. A. ABDUL HAKHIM
Gopu Narayan S/o. Sreevalsalajanan – Appellant
Versus
Thekkevaliya Veettil Saleena – Respondent


Advocates:
Advocate Appeared:
For the Appellant : ADVS. T.SETHUMADHAVAN (SR.), K.JAYESH MOHANKUMAR PUSHPARAJAN KODOTH
For the Respondent: A.BALAGOPALAN, N.AJITH, GEETHA P.MENON, M.S.IMTHIYAZ AHAMMED, P.B.KRISHNAN (SR.), M.N.MANMADAN, P.M.NEELAKANDAN, A.RAJAGOPALAN, K.SANEESH KUMAR, P.B.SUBRAMANYAN

Judgement Key Points

Based on the provided legal document, here are the key points:

  • Maintainability of Appeal Against Ex Parte Decree: An appeal against an ex parte decree is maintainable even after the dismissal of an application to set aside that ex parte decree, as Section 96(2) CPC specifically provides for such appeals and the explanation to Order 9 Rule 13 CPC does not bar this right (!) (!) .
  • Entitlement of Daughters Under Hindu Mitakshara Law: Under Hindu Mitakshara Law, female members do not form part of the coparcenary and daughters are not entitled to a share in coparcenary property by birth; rights equal to sons are only granted under the Hindu Succession (Amendment) Act, 2005, which came into force on 09.09.2005 (!) .
  • Trial Court's Duty in Ex Parte Proceedings: The absence of a defendant does not absolve the trial court from the obligation to fully satisfy itself regarding the factual and legal veracity of the plaintiff's claim, requiring a proper inquiry rather than an automatic decree (!) .
  • Invalidity of Preliminary and Final Decrees: The preliminary decree passed in O.S.No.787/1994 is liable to be set aside due to the lack of entitlement of the plaintiffs and the failure of the trial court to conduct a proper inquiry, which consequently renders the final decree unsustainable (!) (!) .
  • Maintainability of Suit vs. Prior Decree: A suit filed to unsettle a preliminary decree passed in an earlier partition suit (O.S.No.66/1968), which was confirmed by the Supreme Court, is not maintainable when the subsequent suit involves untenable claims by daughters regarding coparcenary property (!) .
  • Right to File Fresh Written Statement Upon Attaining Majority: A defendant who attains majority during the pendency of litigation is entitled to file a fresh written statement if the earlier statement filed by their guardian was not properly contested, was adverse to their interest, or caused serious prejudice due to the guardian's misconduct or negligence (!) (!) (!) (!) .
  • Discretionary Power Regarding Fresh Written Statements: Courts have the discretion to allow a minor-defendant to file a fresh written statement after attaining majority based on compelling reasons to secure the ends of justice and prevent abuse of process, provided the application is bona fide (!) (!) .
  • Outcome of Appeals: R.F.A.Nos. 81/2013 and 200/2014 were allowed, setting aside the impugned judgments and decrees, and O.P.(c) No.1718/2015 was allowed to set aside the Ext.P11 order and direct the trial court to reconsider the application for a fresh written statement afresh (!) .

JUDGMENT :

CR [RFA Nos.81/2013, 200/2014 & OPC 1718/2015]

1. Since the above three cases relate to O.S.No.787/1994 on the files of the First Additional Sub Court, Kozhikode, they are disposed by a common judgment.

2. R.F.A.No.81/2013 is filed by the legal heirs of the second defendant in O.S.No.787/1994 challenging the Preliminary Decree dated 19.11.1997 passed by the Trial Court.

3. R.F.A.No.200/2014 is filed by the very same persons who were impleaded as additional respondents 27 & 28 in the final decree proceedings in O.S.No.787/1994 challenging the Order dated 28.09.2013 of the Trial Court passing final decree in O.S.No.787/1994.

4. O.P.(C).No.1718/2015 is filed by the second appellant in the above appeals challenging Ext.P11 order produced therein dated 28.11.2014 in I.A.No.3451/2014 in O.S.No.426/2002, by which his prayer for receiving his Written Statement filed after attaining majority, is dismissed by the Trial Court. O.S.No.426/2002 was filed by four assignees of parts of the plaint schedule properties in O.S.No.787/1994 seeking a declaration that the judgment and decree passed in O.S.No.787/1994 are not valid, binding, and enforceable against the plaintiffs or the plaint sche

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