Sathyanesan v. Chellamma

IN THE HIGH COURT OF KERALA AT ERNAKULAM

PRESENT:

THE HONOURABLE MR. JUSTICE A.HARIPRASAD THURSDAY, THE 25TH DAY OF JUNE 2015/4TH ASHADHA, 1937 RSA.No. 254 of 2013 () ----------------------- AGAINST THE JUDGMENT AND DECREE IN AS NO.16/2003 of SUB COURT,NEYYATTINKARA DATED 12-01-2010 AGAINST THE JUDGMENT AND DECREE IN OS 863/2000 of I ADDITIONAL MUNSIFF COURT,NEYYATTINKARA DATED 28-08-2002 APPELLANT(S)/ APPELLANTS/ DEFENDANTS 2 AND 3: ------------------------------------------------------------------------------

1. SATHYANESAN, AGED 78 YEARS, S/O MANUVEL NADAR, S.V. NIVAS, KADAVATTARAM DESOM NAYYATTINKARA VILLAGE (*) 2. PRASAD, S/O SATHIYANESAN, AGED 41 YEARS, S.V. NIVAS, KADAVATTARAM DESOM NEYYATTINKARA VILLAGE(TRANSPOSED AS ADDL.R3) A1- BY ADVS.SRI.G.S.REGHUNATH SRI.K.RAJESH KANNAN SRI.A.S.SHAMMY RAJ SRI.P.SHANES RESPONDENT(S)/RESPONDENTS/ PLAINTIFF AND IST DEFENDANT: ------------------------------------------------------------------------------------------------

1. CHELLAMMA, AGED 83 YEARS D/O APPIPENNU, JAIVILLA, NELLIKKAKUZHI KANJIRAMKULAM DEOSM, KANJIRAMKULAM VILLAGE TRIVANDRUM- 695126

2. YESUDASAN, AGED 80 YEARS, S/O MANUVEL NADAR, CHITTAKKODE, KAIVANVILAKAM BUNGLOW KADAVATTARAM DESOM NEYYATTINKARA VILLAGE, TRIVANDRUM- 695121 APPELLANT NO.2 IS TRANSPOSED AS ADDL.R3:

ADDL.R3. PRASAD, S/O SATHIYANESAN, AGED 41 YEARS, S.V. NIVAS, KADAVATTARAM DESOM NEYYATTINKARA VILLAGE.

(*)APPELLANT NO.2 IS TRANSPOSED AS ADDL.RESPONDENT 3 AS PER ORDER DATED 11/2/15 IN IA NO.352/2015 R1 BY ADV. SRI.V.SURESH R1 BY ADV. SRI.G.SUDHEER R2 BY ADV. SRI.N.RATHEESH R2 BY ADV. SMT.SUMA RATHEESH ADDL.R3 BY ADV. SRI.R.GOPAN THIS REGULAR SECOND APPEAL HAVING BEEN FINALLY HEARD ON 25-06-2015, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

A.HARIPRASAD, J.

-------------------------------------- R.S.A. No.254 of 2013 -------------------------------------- Dated this the 25th day of June, 2015

JUDGMENT

Heard the learned counsel for the first appellant. 2.

When the matter came up on the previous posting dates, it was submitted by the counsel appearing for the first appellant/second defendant and the plaintiff and also the first defendant that the matter has been settled between the parties and they have arrived at a compromise. The compromise was executed as the matter was settled in a mediation before the Kerala Mediation Centre. The Mediator has submitted a report. Duly executed compromise is also produced. But, it is to be noted that the additional third respondent has not signed the compromise. Learned counsel on both sides submit that the additional third respondent was the original second appellant who was later transposed as a respondent.The additional third respondent is son of the first appellant.

There is a gift deed executed by the first appellant in favour of the additional third respondent while the property was remaining in co-ownership. But for the gift, the additional third respondent has no right over the property. Therefore, the gift deed will take effect only in respect of the property allotted to the first appellant (second defendant) in the partition.

RSA No.254/2013 parties have agreed in the compromise that the property covered by the gift deed in favour of the additional third respondent has been set apart to the share of the first appellant. In that way the gift deed has been effectuated by the parties. The parties have agreed that the right of the additional third respondent will not be disturbed in any manner. It is also submitted that the additional third respondent is laid up due to severe injuries sustained in an accident and not in a position to appear before the court or before the Mediation Centre and so he is unable to sign on the compromise. Therefore, considering the entire facts and circumstances, I dispose of the appeal declaring that the parties are entitled to shares as shown in the compromise. The compromise executed by all the parties except the additional third respondent/third defendant and the plan appended thereto will form part of the decree.

Appeal is disposed of accordingly.

All pending interlocutory applications will stand closed. A. HARIPRASAD, JUDGE.

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