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K.V. SAROJINI AMMA, D/O.UNNI NAIR versus THE PRESIDENT, ULLIYERI SECONDARY SCHOOL

High Court of Kerala

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K.V. SAROJINI AMMA, D/O.UNNI NAIR v. THE PRESIDENT, ULLIYERI SECONDARY SCHOOL - RSA No. 316 of 2007 [2007] RD-KL 12483 (9 July 2007)

IN THE HIGH COURT OF KERALA AT ERNAKULAM

RSA No. 316 of 2007()

1. K.V. SAROJINI AMMA, D/O.UNNI NAIR,
... Petitioner

2. SISTER K.V. SARALA AMMA,

3. K.V. GANGADHARAN NAIR, S/O.UNNI NAIR,

4. A. BALAGOPALAN, AGED 45 YEARS,

5. K.V. AMMALU ALIAS OMANA AMMA,

Vs

1. THE PRESIDENT, ULLIYERI SECONDARY SCHOOL
... Respondent

2. THE SECRETARY, PALOR HIGHER

3. A. RAMACHANDRAN NAIR, S/O.UNNI NAIR,

4. NIKAL PARAMBATH VASANTHI ANGANAVADI

5. DAUHTER R.V.SARITHA TEACHER,

6. BROTHER R.V. SAJITH AGED 23 YEARS,

For Petitioner :SRI.K.S.MENON

For Respondent : No Appearance

The Hon'ble MR. Justice M.SASIDHARAN NAMBIAR

Dated :09/07/2007

O R D E R

M.SASIDHARAN NAMBIAR, J.

........................................... R.S.A.No. 316 OF 2007 ............................................

DATED THIS THE 9th DAY OF JUNE, 2007



JUDGMENT

Deceased Unni Nair had five shares in the first respondent, Society to the value of Rs.100/- per share. Unni Nair died on 22.7.1975. Fifth appellant is the widow and appellants 1 to 4 and 3rd respondent are his children. On the death of Unni Nair, 3rd respondent represented before the society to recognise him in the place of Unni Nair as the legal heir. The Committee recognised him. Appellants instituted the suit seeking a decree for declaration and partition contending that on the death of Unni Nair, his rights devolved on all the children and widow and third respondent alone is not entitled to inherit the rights of Unni Nair and therefore they are entitled to get a declaration and partition. Respondents 1 and 2 filed a joint written statement contending that under Ext.A6 bye laws, on the death of a sharer, no legal heirs can claim membership without the approval of the committee and the committee recognised third respondent as the legal heir and in such circumstances appellants are not entitled to the decree sought for.

2. Learned Munsiff framed the necessary issues. On the RSA 316/2007 2 evidence of PW1, DW1 and Exts.A1 to A6, learned Munsiff dismissed the suit holding that suit is barred under Section 9 of Code of Civil Procedure and is also barred by time as Unni Nair died in 1972 and even according to PW1, he had filed a petition 8 years prior to the institution of the suit and under Article 58 of the Limitation Act, suit should have been filed within three years from that date and therefore appellants are not entitled to the relief sought for. Appellants challenged the decree and judgment before Sub Court, Koyilandy in A.S.29 of 2003. Learned Sub Judge, on reappreciation of evidence, found that as the suit is also for a declaration, it is not Article 58 of the Limitation Act, which applies but Article 120 of the Limitation Act and therefore suit is not barred by time as found by the trial court. But learned Sub Judge found that the suit is for partition of the shares in the first respondent society and as provided under Ext.A6, legal heirs are not entitled to inherit the share as of right and the decision as to who is to be inducted in the society as the legal heir is to be taken by the society and the society has inducted 3rd respondent and it cannot be questioned by the appellants and in any case what is sought to be divided is the subscription amount paid by Unni Nair and it is not available RSA 316/2007 3 for partition. Therefore confirming the decree passed by the trial court, appeal was dismissed. It is challenged in the second appeal.

3. Learned counsel appearing for the appellant was heard. The argument of the learned counsel appearing for appellant was that trial court dismissed the suit as not maintainable on the question of limitation and barred under Section 9 of Code of Civil Procedure and those findings were set aside by first appellate court and in such circumstances, learned Sub Judge should have remanded the case back to the trial court and should not have dismissed the appeal. It was argued that respondents did not file any separate appeal or cross objection and in such circumstances, first appellate court should not have decided the question of its own after setting aside the findings of trial court and in such circumstances, the decree and judgment is unsustainable.

4. On hearing learned counsel appearing for appellant, I do not find any substantial question of law involved in the appeal. Even though respondent did not file a cross objection, Rule 22 of Order XLI enables a respondent who has not filed an appeal against any part of the decree, not only to support the decree but RSA 316/2007 4 also to contend that the finding against him by the trial court in respect of any issue ought to have been in his favour. The failure of respondents to file a cross objection therefore will not disentitle them to urge before the appellate court that the findings against them by trial court should have been in their favour. First appellate court though set aside the finding of trial court, on the question of limitation and jurisdiction, on appreciating the evidence found that what is sought to be divided in the suit is the shares in the society which cannot be partitioned and therefore appellants are not entitled to the decree sought for. First appellate court has all the powers of the trial court while deciding the appeal. Hence the challenge against decision on the ground that first appellate court should have remanded the suit and should not have decided the dispute on the evidence on record is not sustainable. The suit itself is for partition of the shares obtained by deceased Unni Nair from the first respondent society while joining as member of the soceity. When one member of the society dies, all his legal heirs cannot be included as members, in the place of deceased member. The bye law provides the mode of recognising the legal heir. It is in accordance with that advise, third respondent was recognised as RSA 316/2007 5 the legal heir, in the place of Unni Nair. The share obtained by the deceased member cannot be divided between the legal heirs as found by the first appellate court. In such circumstances, I do not find any reason to interfere with the findings of the first appellate court. As no substantial question of law is involved in the appeal, appeal is dismissed in limine.

M.SASIDHARAN NAMBIAR, JUDGE

lgk/-


Copyright

Reproduced in accordance with s52(q) of the Copyright Act 1957 (India) from judis.nic.in, indiacode.nic.in and other Indian High Court Websites

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