K.J.AUGUSTINE (DEAD) THR. LRS. vs K.A.JOSEPH . - 2024-01-11

ORDE R

When this appeal is called on for hearing , it is brought to our notice that ‘K.A.Joseph’, th e first respondent, passed away on 21.06.2014 . We are apprised by the learned counse l representing the respondents that he died a bachelor and his estate devolved on respondent Nos . 2 and 4 to 9. Since the legal representatives o f the deceased-respondent are already impleaded a s party-respondents, no formal substitution i s required and we record the said fact .

The present appeal arises out of a suit fo r partition and the parties have approached us at th e stage of the preliminary decree. The area of th e total estate initially was 37 cents which wa s acquired by ‘Abraham’ and ‘Joseph’, th e predecessors-in-title of the plaintiffs and th e defendants respectively. There was a sale dee d executed on 14th February, 1962 in which 15.25 cent s out of the total estate was sold by the lega l representatives of ‘Abraham’ along with ‘Joseph’ . Certain portion of the total estate was als o acquired under the prevailing land acquisition la w for construction / widening of a road .

Mr. Chitambaresh, learned senior counsel , appearing on behalf of the appellants, has argue d that there was an earlier oral partition whic h ought to prevail and, hence, a subsequent suit fo r partition by the legal heirs of deceased ‘Abraham ’

would not be maintainable .

On going through the materials disclosed, w e are unable to accept the submission that there wa s a prior oral partition. We come to this finding , inter alia, in the light of the sale deed which wa s executed on 14th February, 1962, as also a deed o f mortgage which was made Exhibit B3 before the Tria l Court created on 2nd September, 1958, jointly . It is the case of the first defendant in th e suit (one of the successors in interest o f ‘Joseph’) that land to the extent of 2 cents out o f the estate, situated in Survey No. 1057 o f Mattanchery Village, Kochi District, was purchase d by him from Thommen Varghese, who was a purchase r through court auction in O.S. No. 193 o f

1121(M.E.) .

In our opinion, this part of the propert y has to be excluded from the partible estate. Th e observation of the High Court to the contrary i s set aside. It shall now be open to the parties t o apply for a final decree and the appellants woul d be at liberty to apply for contiguous apportionmen t in equity and if such an application is made, th e Trial Court shall consider the same on facts and i n accordance with law .

The present appeal stands partly allowed i n the above terms .

Pending application(s), if any, shall stan d disposed of .

…………………………………………………...J .

[ANIRUDDHA BOSE ]

…………………………………………………...J .

[SANJAY KUMAR ]

NEW DELHI ;

JANUARY 11, 2024 .

ITEM NO.103 COURT NO.5 SECTION XI- A S U P R E M E C O U R T O F I N D I A RECORD OF PROCEEDING S Civil Appeal No. 5830/201 3 K.J.AUGUSTINE (DEAD) THR. LRS. Appellant(s )

VERSU S K.A.JOSEPH . & ORS. Respondent(s )

Date : 11-01-2024 This appeal was called on for hearing today .

CORAM : HON'BLE MR. JUSTICE ANIRUDDHA BOS E HON'BLE MR. JUSTICE SANJAY KUMA R For Appellant(s) Mr. V Chitambaresh, Sr. Adv .

Mr. Jogy Scaria, AO R Ms. Beena Victor, Adv .

Mr. Vivek Guruprasad Ballekere, Adv .

Mr. Keerthipriyan E, Adv .

Ms. M Priya, Adv .

For Respondent(s) Mr. Sreegesh M.K, Adv .

Mr. A. Venayagam Balan, AO R Mrs. Meera Karta, Adv .

Mr. Gaurav Pal, Adv .

Mr. Kiritkumar Govindlal Sheth, Adv .

Mr. Ashray Behura, Adv .

Mr. Deepak Parashar, Adv .

Mr. Puneet Thakur, Adv .

UPON hearing the counsel the Court made the followin g

O R D E R

The present appeal stands partly allowed i n terms of the signed order which is placed on th e file .

Pending application(s), if any, shall stan d disposed of .

(SNEHA DAS) (RENU BALA GAMBHIR )

SENIOR PERSONAL ASSISTANT COURT MASTER (NSH )