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2025 Supreme(Online)(Ker) 37103
IN THE HIGH COURT OF KERALA AT ERNAKULAM
M.A. ABDUL HAKHIM, J
KOCHAPPI NADAR RAJENDRAN – Appellant
Versus
KOCHAPPI NADAR SREEDHARAN – Respondent
RSA NO. 531 OF 2008
For the Appellants/Petitioners: SHRI.R.S.KALKURA, SRI.M.AJAY, SRI.HARISH GOPINATH, SMT.KVP.JAYALEKSHMY, SHRI.M.S.KALESH, SMT.M.C.SHIJIMOL, SRI.V.VINAY MENON
For the Respondents: SHRI.K.S.MANU, SHRI.K.B.PRADEEP, SHRI.P.SREEKUMAR (SR.)
The court affirmed the right of a party to withdraw a suit in light of changed ownership dynamics post-death of co-owners.
Headnote:The appeal concerns a partition suit (OS No.4 of 2004) involving ancestral property among co-owners, with the court noting the execution of a Partition Deed and subsequent legal dynamics post-death of parties. The court allowed applications for transposing parties and withdrawing the suit, framing issues within procedural propriety and rights to withdraw. Ultimately, the appeal was disposed of favoring the withdrawal, thus nullifying prior judgments.
| Table of Content |
|---|
| 1. partition suit involving co-owners and ownership transfer due to death. (Para 4) |
| 2. procedural rights concerning transpositions and withdrawals in litigation. (Para 5 , 6) |
| 3. judgment nullifying prior decisions upon suit withdrawal. (Para 7) |
M.A. ABDUL HAKHIM, J. …......................................
RSA No.531 of 2008 …........................................................ Dated this the 12th day of June, 2025 JUDGMENT I.A.No.1 of 2025 & I.A.No.2 of 2025
1. This appeal is filed by the plaintiff in OS No.4 of 2004 for partition of the plaint scheduled property. The appellant- plaintiff died. Now the 2nd respondent/2nd defendant has filed I.A.No.2 of 2025 to transpose him as an additional appellant and I.A.No.1 of 2025 to permit him to withdraw the suit itself.
2. In order to consider these Applications, short facts that are essential for the disposal of these applications are to be stated.
3. The plaint schedule property was the ancestral property of the plaintiff and defendants 1 and 2. On the death of their parents, they became co-owners of the plaint scheduled property. The defendants 1 and 2 executed a Partition Deed dividing the plaint schedule property into three. Since the plaintiff was not a party to the said Partition Deed, the plaintiff filed the present suit for partition, ignoring the said Partition deed. The suit was decreed, allotting 1/3 share each among the plaintiff and the defendants 1 and 2.
Since the 1st defendant had sold the property which he derived as per the Partition Deed to another person, the said person was impleaded in the suit as the 3rd defendant. When the suit was decreed, the reservation in favor of the 3rd defendant with respect to the property purchased from the 1st defendant was protected. The Appeal filed by the plaintiff before the First Appellate Court was dismissed, confirming the judgment and decree passed by the Trial Court. The plaintiff filed the present Regular Second Appeal, challenging the judgment and decree of the Trial Court insofar as it protects the reservation in favour of the
3rd defendant.
4. It is seen from the records that the appellant/plaintiff died first. Thereafter, the 1st respondent/1st defendant also died. So, with respect to the shares of the plaintiff as well as the 1st defendant, the 2nd defendant became the sole owner. Since the 1st defendant had already transferred the property, which he derived as per the Partition Deed, in favor of the 3rd defendant, the 2nd defendant will not have any right over the property sold by the 1st defendant in favour of the 3rd defendant.
5. Thus, as things stand now, the only person available among these three brothers is the 2nd defendant alone. So, the Application filed by the 2nd respondent/2nd defendant to transpose him as the additional appellant is perfectly in order and the same is liable to be allowed.
6. The 2nd respondent/2nd defendant, who has stepped into the shoes of the Appellant/plaintiff, does not want to prosecute the suit and has filed I.A.No.1 of 2025 to withdraw the suit. It is perfectly within his right to withdraw the suit. Hence, I.A.No.1 of 2025 is also liable to be allowed.
7. In view of the aforesaid discussion, I.A.No.2 of 2025 is allowed, transposing the 2nd respondent as the additional appellant and allowing I.A.No.1 of 2025, allowing the additional appellant to withdraw the suit.
RSA No.531 of 2008 Regular Second Appeal is disposed allowing the additional appellant to withdraw the suit. Needless to say, as the suit is allowed to be withdrawn, the impugned Judgments ceased to exist.
