P.V.SURENDRAN vs KAVITHA RAJENDRAN(DIED)

2026:KER:35893
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE SATHISH NINAN
&
THE HONOURABLE MR.JUSTICE P. KRISHNA KUMAR
TH
MONDAY, THE 25 DAY OF MAY 2026 / 4TH JYAISHTA, 1948
RFA NO. 149 OF 2016
AGAINST THE JUDGMENT AND DECREE DATED 13.08.2015 IN OS
NO.694 OF 2013 OF SUB COURT, CHAVAKKAD
APPELLANT/2ND DEFENDANT:
P.V.SURENDRAN
AGED 45 YEARS
S/O LATE P.K. VELAYUDHAN 'APPOOS' PUTHAMPULLI
HOUSE, NEAR CHAMUNDESWARI TEMPLE THRISSUR
BY ADVS.
SHRI.B.KRISHNAN
SHRI.R.PARTHASARATHY
RESPONDENTS/PLAINTIFFS/DEFENDANTS 1 AND 3 TO 7:
1 KAVITHA RAJENDRAN(DIED)
W/O LATE REAJENDRAN CHITTETH HOUSE, CHIRAKKAKAM,
VARAPPUZHA POST, ERNAKULAM
2
SARATH(MINOR)
AGED 11 YEARS, S/O LATE RAJENDRAN, REPRESENTED BY
POWER OF ATTORNEY HOLDER KAVITHA RAJENDRAN
(MOTHER) AGED 40 YEARS, W/O LATE REAJENDRAN,
CHITTETH HOUSE, CHIRAKKAKAM, VARAPPUZHA POST,
ERNAKULAM

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SUBSTITUTED DESCRIPTION OF R2:
SARATH(MINOR), 11 YEARS, S/O.LATE RAJENDRAN,
CHITTETH HOUSE, REPRESENTED BY NEXT FRIEND
APPOINTED BY TRIAL COURT JIJIMON, 48 YEARS,
S/O.VASU, CHITTETH HOUSE, CHIRAKKAKAM,
VARAPPUZHA P.O., PARAVUR, ERNAKULAM DISTRICT.
IT IS RECORDED THAT THE FIRST RESPONDENT DIED
AND THE DESCRIPION OF THE SECOND RESPONDENT IS
SUBSTITUTED AS ABOVE VIDE ORDER DATED
19.06.2025 IN IA 2/2019
3 P.V. RAVEENDRAN
S/O LATE P.K. VELAYUDHAN, PUTHAMPULLI HOUSE,
KARUKAMAD, KADAPPURAM THRISSUR
4 P.V. JAYENDRAN @ JAYAPRAKASH
PUTHAMPULLI HOUSE, BLANGAD CHAVAKKAD THRISSUR
5 SARALADEVI
W/O PULIYEDATH DR. SUBHRAMANIAN, NEAR
KERALAVARMA MENS HOSTAL, KANATUKARA THRISSUR
DISTRICT
6 SATHYAVATHI(DIED)
W/O PUTHMPULLI K. CHANDRADAS, KARUKAMAD,
KADAPPURAM, THRISSUR DISTRICT
7 HYUBERT (DELETED)
ROSE VILA MAHIM WEST, MUMBAI-400 016
THE NAME OF THE SEVENTH RESPONDENT IS DELETED
FROM THE PARTY ARRAY AT THE RISK OF THE
APPELLANT VIDE ORDER DATED 03.07.2025 IN
I.A.NO.1 OF 2025
8 ARUNODHAYAM TOURIST HOUSE
REPRESENTED BY MANAGING PARTNER P.V.
RAVEEENDRAN S/O LATE P.K. VELAYUDHAN,
PUTHAMPULLI HOUSE, KARUKAMAD, KADAPPURAM
THRISSUR

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9 SUBINDAS.K.C,
S/O. LATE SATHYAVATHI, KARIKKAT HOUSE,
'SREECHANDANAM', YASHORAM GARDENS, OLLUR,
THRISSUR, KERALA
10 SAJINIDAS.K.C.
AGED 40 YEARS, S/O. LATE SATHYAVATHI, KARIKKAT
HOUSE, 'SREECHANDANAM', YASHORAM GARDENS,
OLLUR, THRISSUR, KERALA
ADDL.R9 AND R10 ARE IMPLEADED BEING THE LEGAL
REPRESENTATIVES OF THE DECASED R6 VIDE ORDER
DATED 12.02.2026 IN IA 2/2025
BY ADV SHRI.G.SREEKUMAR (CHELUR)
THIS REGULAR FIRST APPEAL HAVING COME UP FOR HEARING ON
25.05.2026, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:

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C. R.
SATHISH NINAN & P. KRISHNA KUMAR, JJ.
= = = = = = = = = = = = = = = = = =
R.F.A.No.149 of 2016
= = = = = = = = = = = = = = = = = =
th
Dated this the 25 day of May, 2026
JUDGMENT
Sathish Ninan, J.
The preliminary decree in a suit for partition is under
nd
challenge by the 2 defendant. Though various items of
property are sought to be partitioned, the present appeal is
confined to the plaint 'F' schedule item No.1. Hence, the
discussions herein are confined to the same.
2. The plaint 'F' schedule item No.1 is a residential
flat at Mumbai. It belonged to one Velayudhan. He died on
21.03.1986. His wife, Ammu, died on 05.01.2002. They had 6
children, namely, Rajendran and defendants 1 to 5. Rejendran
died on 03.06.2003. His legal heirs seek for partition.
3. The trial court passed the impugned preliminary
decree for partition, declaring that the plaintiffs

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together, and each of the defendants, are entitled for 1/6
shares each.
4. We have heard Shri.B. Krishnan, the learned
counsel on behalf of the appellant and Shri. G. Sreekumar
Chellur, the learned counsel on behalf of the contesting
respondents.
5. The arguments of the learned counsel for the
appellant are as under;
(i) Section 16 (b) of the Code of Civil Procedure requires a suit for partition to be
filed at the place where the immovable properties are situated. The property in
question is at Mumbai. The trial court did not have territorial jurisdiction to
entertain the suit.
(ii) Section 120 of the Code of Civil Procedure exempts the application of Section
17 of the Code of Civil Procedure to High Courts having original civil
jurisdiction. Rule 12 of the Bombay High Court Rules confers original
jurisdiction to immovable properties situated within the local limits of High
Court. Therefore, Section 17 of the Code of Civil Procedure could not come to the
aid of the Sub Court, Chavakkad (trial court) to entertain the suit.
(iii) The cause of action in respect of the property at Mumbai, being separate
from that of the other items, Section 17 of the Code of Civil Procedure cannot
have any application in the light of the judgment of the Apex Court in
Shivnarayan (D) By Lrs. v. Maniklal (D) Thr. Lrs. and others [(2020) 11 SCC
629] .

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(iv) By virtue of nomination made by Velayudhan to the Society, the shares of
nd nd
Velayudhan were transferred to the 2 defendant. Thus, the 2 defendant is the
absolute owner and it is not available for partition.
(v) The suit is not maintainable as barred under Section 100 read with Section 69
of the Kerala Co-operative Societies Act.
(vi) The appellant is a resident of Mumbai whereas the others are not. He had
expended amounts and completed the formalities with the Society, for assignment
of the apartment. Hence, in equity, the item is to be allotted to him.
6. Apart from the plaint 'F' schedule item No.1,
namely, the property in question, almost all the other items
sought to be partitioned are situated within the territorial
jurisdiction of the trial court. Section 16 stipulates that
a suit for partition is to be filed in the Court within
whose territorial jurisdiction the property sought to be
partitioned is situated. In terms of Section 17 of the Code
of Civil Procedure, if immovable property is situated within
the jurisdiction of different Courts, suit can be instituted
in any of the Courts within whose jurisdiction any portion
Shivnarayan (D) By Lrs. v. Maniklal (D)
of the property is situated. In
Thr. Lrs. and others [(2020) 11 SCC 629] , the interplay between Section 16

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and Section 17 of the Code of Civil Procedure were
considered and it was held thus;
“28. Sections 16 and 17 of the C.P.C. are part of the one statutory scheme.
Section 16 contains general principle that suits are to be instituted where
subject-matter is situate whereas Section 17 engrafts an exception to the general
rule as occurring in Section 16. From the foregoing discussions, we arrive at
following conclusions with regard to ambit and scope of Section 17 of C.P.C.
(i) The word ‘property’ occurring in Section 17 although has been
used in ‘singular’ but by virtue of Section 13 of the General Clauses
Act it may also be read as ‘plural’, i.e., “properties”.
(ii) The expression any portion of the property can be read as portion
of one or more properties situated in jurisdiction of different courts
and can be also read as portion of several properties situated in
jurisdiction of different courts.
(iii) A suit in respect to immovable property or properties situate in
jurisdiction of different courts may be instituted in any court within
whose local limits of jurisdiction, any portion of the property or one or
more properties may be situated.
(iv) A suit in respect to more than one property situated in jurisdiction
of different courts can be instituted in a court within local limits of
jurisdiction where one or more properties are situated provided suit is
based on same cause of action with respect to the properties situated
in jurisdiction of different courts”.

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Therefore, the mere existence of one item out of several
items of properties or even a portion of any of the items,
within the territorial limits, would be sufficient to confer
jurisdiction on the Court. We hold that the trial court had
the territorial jurisdiction to entertain the suit.
7. Now, coming to the argument of the learned counsel
relying on Shivnarayan's case (supra) , that was a case where the
suit was against different set of defendants with different
causes of action regarding properties situated at different
places. The cause of action and the defendants with regard
to the property situated at one place were different from
the property else where. There, the Apex Court observed
thus;
“29. ….... The cause of action relating to Indore property and Bombay property
were entirely different with different set of defendants. The suit filed by the
plaintiff for Indore property as well as Bombay property was based on different
causes of action and could not have been clubbed together. The suit as framed
with regard to Bombay property was clearly not maintainable in the Indore
Courts.”

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It was under such circumstances that the suit was held to be
not maintainable. The said judgment does not have any
application to the facts of the present case. The property
sought to be partitioned in the suit is the legacy of late
Velayudhan and his wife Ammu, and the parties to the suit
are their legal heirs.
8. The argument of the learned counsel for the
appellant relying on Section 120 of the Code of Civil
Procedure and the Bombay High Court Rules is misconceived,
since as is evident from Section 120, it applies only to the
suits before the High Court.
9. At any rate, the contention regarding lack of
territorial jurisdiction is not available for the appellant
since, it ought to have been raised before the trial court
at the earliest possible opportunity. Section 21 (1) of the
Code of Civil Procedure prohibits the urging of such
contention for the first time before the Appellate Court. So

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also, Section 99 of the Code of Civil Procedure provides
that a decree shall not be reversed in appeal on account of
any mis-joinder or non-joinder of parties or causes of
action or any error, defect or irregularity in the
proceedings of suit which does not affect the merits of the
case or jurisdiction of the court. As is evident from
Section 21 (1) referred to above, the term “jurisdiction”
occurring in Section 99 does not include territorial
jurisdiction.
10. From the above discussions, we find that the
argument regarding lack of territorial jurisdiction has no
force.
11. With regard to the argument based on nomination to
the Society, such contention is squarely answered by the
Apex Court, against the appellant, in Indrani Wahi v. Registrar of Coop.
Societies and others [(2016) 6 SCC 440] . Therein the Apex Court reiterated
that, a nominee is only ‘the hand to receive’ on behalf of

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all the heirs entitled to the assets under the law of
succession and that nomination with the Society does not
affect the right of the legal heirs. Therefore, the mere
nd
fact that Velayudhan had constituted the 2 defendant as his
nd
nominee, and based on the same the 2 defendant had
effectuated transfer in his name, is of no avail. The
property enures to the legal heirs and is liable to be
partitioned.
12. Yet another contention urged is with regard to the
maintainability of the suit in the light of Section 100 and
Section 69 of the Co-operative Societies Act. Section 100
bars the jurisdiction of Civil Courts in respect of matters
for which provision is made in the Act. Section 69 provides
mechanism for settlement of disputes in a Society or between
its members or persons claiming through deceased members.
What is a “dispute” within the scope of the Act is explained
by the definition given in Section 2(i) of the Societies

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Act. As per the definition, to be a “dispute” within the
purview of the Co-operative Societies Act, it must be a
matter touching the business, constitution, establishments
or management of the Society. The learned counsel for the
appellant placed reliance on a judgment of the Bombay High
Arun Wamanrao Shinde v. Prakash Bhagwan Dalvi and others [AIR 1991 Bom.
Court in
128] to content that, rival claims between the legal heirs
will also fall within the scope of dispute under the
Societies Act. In that case, the dispute between a member
and his assignee with regard to membership was held to be
one touching the business of the Society. It was held that
the remedy is before the Co-operative Arbitration Court and
a regular civil suit is not maintainable. We are unable to
agree with the view. The suit is one for partition of the
assets of a deceased member of the Society. The dispute is
strictly between the legal heirs with regard to the
entitlement; it relates to their inter se title. It has

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nothing to do with the business of the Society. It is not a
dispute falling within the definition of “dispute” under the
Co-operative Societies Act. Therefore, the said contention
has no force.
13. Having negatived all the contentions of the
appellant with regard to the maintainability of the suit, we
proceed to discuss his claim for equitable allotment of the
apartment to him. It is submitted across the Bar that the
appellant is a resident of Mumbai, whereas, the others are
not. It is the appellant who would be best entitled to and
benefited by the allotment of the apartment. He had taken
all steps pursuant to the nomination, expended amounts and
got the apartment registered in his name. Therefore, it is
to be allotted to him, it is argued. Though the submission
appeals to us, we leave open the above plea of equity, to be
considered by the trial court in the final decree
proceedings. We have no reason to assume that the said plea

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will not be considered by the court.
There is no reason to interfere with the decree and
judgment of the trial court. The appeal fails and is
dismissed. No costs.
Sd/-

SATHISH NINAN
JUDGE


Sd/-
P. KRISHNA KUMAR
JUDGE
yd