The defeated plaintiff in O.S. No.366 of 1995 of the II Additional Sub Court, Ernakulam, has come up in appeal. 2. The suit is one for partition. The plaintiff has claimed a share in the plaint schedule property by claiming that she is entitled to 1/3 share in the properties of late Paily. The plaintiff and the first defendant are the children of late Paily. The suit was filed by alleging that the property in question was obtained by late Paily through a Partition Deed of the year 1952.
3. The first defendant, who is presently no more, had filed a written statement contending that late Paily had no right over the suit property and it exclusively belonged to the first defendant on his obtaining a purchase certificate. It was also contended that the plaintiff has no manner of right over the suit property.
4. Before the court below, issues were framed and evidence was recorded. PW1 was examined and Exts.A1 to 3 were marked on the side of the plaintiff. No evidence was adduced on the side of the first defendant. The suit was dismissed on the ground that the plaintiff had failed to produce any document to show that the property originally belonged to Paily, and also based on the admission of the plaintiff that the first defendant had obtained a purchase certificate.
5. Vide judgment dated 3.8.2011, this court found that an opportunity ought to have been granted to the plaintiff to prove that the suit property is a part of the property covered by the Partition Deed of 1952 and the same was included in the share allotted to late Paily. At the same time, this court found that an opportunity ought to have been granted to the first defendant also to produce the purchase certificate in order to show that it relates to a different property and not the properties covered by the Partition Deed of 1952, or that the said property is not a part of the property belonged to late Paily. Based on the said findings, this court, vide judgment dated 3.8.2011 remitted the matter to the court below and directed the parties to appear before the court below on 1.9.2011.
6. Subsequently, the legal representatives of the first defendant has approached this court, with a review petition for getting the judgment and decree passed by this court in the matter reviewed on the ground that the judgment of this court was passed against a dead person, which is a nullity in the eyes of law. Consequently, vide order dated 8.3.2012 this court reviewed the judgment passed by this court earlier, as the judgment against a dead person is invalid in law. The matter was reopened. Presently, the legal heirs of first defendant have come on record.
7. Heard learned counsel for the appellant, Shri.P.T. Antony and learned counsel for the contesting respondents, Sri.Dinesh R. Shenoy.
8. On hearing either sides, this court is of the view that the earlier observations made by this court relating to the matter, will survive and the said matters deserve fresh consideration by the court below, for which the matter has once again to be remanded to the court below for fresh disposal in accordance with law. The learned counsel for the contesting respondents has pointed out that even though a contention that dower money was provided to the appellant herein during the time of her marriage and therefore, she is not entitled to claim any right of her share over the properties of late Paily, was taken up and discussed by the court below and the same was not answered. Considering the submissions made by the learned counsel for both the parties, this court is of the view that the matter requires re-consideration by the court below for which the same has to be remitted to the court below.
In the result, this appeal is allowed and the impugned judgment and decree are set aside. The matter is remitted to the court below and the court below shall dispose of the suit in accordance with law, by giving an opportunity to the plaintiff to prove that the suit property is a part of the property allotted to late Paily in partition. Similarly, the legal representatives of the first defendant shall be given an opportunity to produce and prove the purchase certificate. The court below shall consider the question as to whether the said property covered by the purchase certificate, if any, is the part of the property alloted to late Paily through the Partition Deed of 1952. The other question regarding the payment of dower money and the non-entitlement, if any, of the appellant over the properties of late Paily, has also to be decided afresh by the court below.
The parties shall appear before the court below on 29.8.2014. Being an old matter, the court below shall dispose of the matter as expeditiously as possible, at any rate, within a period of four months from 29.8.2014.
All the interlocutory applications in this appeal are closed.
Sd/-
B.KEMAL PASHA, JUDGE dl // TRUE COPY //