IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE HARUN-UL-RASHID WEDNESDAY, THE 17TH FEBRUARY 2010 / 28TH MAGHA 1931 AS.No. 131 of 2000() -------------------- OS.886/1990 of PRL.SUB COURT,THRISSUR .................... APPELLANTS/PLAINTIFFS: ------------------- 1. GOVINDAN NAIR, AGED 70, S/O.KOMBATH NANIKUTTY AMMA, ANCHERRY DESOM, OLLUR VILLAGE, THRISSUR TALUK. 2. PARAMESWARAN NAIR, OF -DO- -DO- 3. KARTHIAYANI AMMA, W/O.LATE RAMAN NAIR, S/O.KOMBATH NANIKUTTY AMMA OF -DO- -DO- 4. MALATY, D/O.3RD DEFENDANT & LATE RAMAN NAIR, -DO- -DO- 5. NARAYANAN NAIR, S/O. -DO- -DO- 6. CHANDRAVATHY, D/O. -DO- -DO- 7. GIRIJA AGED 37, -DO- -DO- ADDL. 8. BHARATHI GOVINDAN NAIR, AGED 72, KARIMANGALAM P.O., PALACODE TALUK, DHARMAPURI DISTLRICT, PIN - 635 111. TAMIL NADU. '' 9. GOWRI MURUGESAN, AGED 51, 31, SALEM MAIN ROAD, -DO- -DO- '' 10.CHANERASEKHAR, AGED 56, 4/22 MORAPPUR ROAD, -DO- -DO- '' 11.BANUMATHI, AGED 48, W/O.P.SELVAN, MOORTHI COMPLEX, AGRAHARAM, DON BOSCO (BACK SIDE), KRISHNAGIRI-385. '' 12.CHANERA, AGED 46, W/O.S.DURAI MUTHU, 51-B.BLOCK, M.G.R. NAGAR, VIYASAR PADI, CHENNAI - PIN.600 039. -2- A.S.NO.131/2000 '' 13. VIMALA, AGED 43, W/O.PERIYANNAN, 4/208, MORAPPUR ROAD, KARIMANGALAM P.O., PALACODE TALUK, DHARMAPURI DISTRICT, PIN.635 111, TAMIL NADU. '' 14. SARASWATHI, AGED 38, W/O.VIJAYA RAGHAVAN, NO.6, TAMILARASI ILLAM, KAVERI NAGAR,IST MAIN STREET, IIND CROSS, VILLIYANUR P.O. PONDICHERRY. PIN-605 110. '' 15. KRISHNA KUMAR, AGED 45, 4/209,MORAPPUR ROAD, KARIMANGALAM P.O., PALACODE TALUK, DHARMAPUR DISTRICT, PIN-635 111, TAMIL NADU. '' 16. THANKAM, AGED 73, W/O.LATE PARAMESWARAN NAIR, KORAPPATH HOUSE, ANCHERRY P.O., THRISSUR TALUK. '' 17. MURALEEDHARAN, AGED 57, S/O.LATE PARAMESWARAN NAIR, -DO- -DO- '' 18. K.CHANDRAN, AGED 54, S/O.LATE PARAMESWARAN NAIR, -DO- - DO- '' 19. K.P. ANIL KUMAR, AGED 51, S/O.LATE PARAMESWARAN NAIR, -DO- -DO- Additional appellants 16 to 19 are impleaded as per order dated 29/01/2010 in IA. No.267/2010 Additional appellants 8 to 15 are impleaded as per order dated 17/2/2010 in IA.No.3768/07. BY ADV. SRI.BABU CHERUKARA SRI.NELSON J.MANAYIL RESPONDENTS/DEFENDANTS: --------------------- 1. KRISHNAN NAIR (DIED), S/O.KOMBATH NANIKUTTY AMMA, ANCHERRY DESOM. OLLUR VILLAGE, THRISSUR TALUK. 2. O. VASUDEVAN, AMBILY NIVAS, NEAR NEHRU WATER TANK, P.O. ANCHERRY. 3. O. BALAKRISHNAN, ARAKKAL HOUSE, KIZHAKKE NADA, P.O. OORAKAM. 4. O. MALATHY AMMA, ORAYAMPURATH HOUSE, KORAPPATH LANE, P.O. ANCHERRY. -3- A.S.NO.131/2000 5. O. PRABHAKARAN, ORAYAMPURATH HOUSE, THIRUTHUR TEMPLE ROAD, ANCHERRY. 6. O. CHANDRIKA AMMA @ O. SUNDHARI, W/O. ANIYAN NAIR, TALIYANKATTIL HOUSE, FRENS NAGAR, KOZHICHIRA ROAD, P.O. KARUVANNUR. 7. O. SARASWATHY, ORAYAMPURATH HOUSE, LATHA NIVAS, JAWAHAR ROAD, P.O. ANCHERRY. 8. NARAYANAN @ SWAMI PRABHUDHANANDA, ORAYAMPURATH HOUS,E P.O.ANCHERRY. 9. O. JANAKEY, W/O. VAVA NAIR, KAKKATE HOUSWE, OORAKAM. 10. O. SREEMATHY, W/O.RADHAKRISHNAN, VADAKKE PULLIN HOUSE, P.O. AMMADAM. 11. O. NANDHANAN, C/O.MADHAVA MENON, KANDAN CHERATH HOUSE, GANDHI GRAM, THURAVANKAD, IRINJALAKUDA. 12. P.SREEDHARAN. C/O. O. MALATHY AMMA, ORAYAMPURATH HOUSE, KORAPPATH LANE, P.O. ANCHERRY. 13. O. RAMACHANDRAN, -DO- -DO- 14. O. SREEDEVI, -DO- -DO- 15. O. SOBHA, -DO- -DO- ADV. SRI.K.G.BALASUBRAMANIAN FOR R14 & R15 THIS APPEAL SUIT HAVING BEEN FINALLY HEARD ON 17/02/2010. THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ORDER ON I.A.NO.270/2010 IN A.S.NO.131/2000 --------------------- Dismissed 17/2/2010 Sd/- Harun-Ul-Rashid, Judge. True Copy HARUN-UL-RASHID,J. -------------------------- A.S.NO.131 OF 2000 -------------------------- DATED THIS THE 17TH DAY OF FEBRUARY, 2010 Plaintiffs in O.S.No.886/90 on the file of the Sub court, Thrissur are the appellants. The suit was filed for partition. The court below dismissed the suit. Aggrieved by the judgment and decree the plaintiffs preferred this appeal. The parties hereinafter referred to are the plaintiffs and defendants. 2. Plaintiffs 1, 2, the deceased father of plaintiffs 3 to 7 Raman Nair and the lst defendant are the children of deceased Kochugovindan Nair. Plaintiffs claim 3/4 share in the plaint schedule property. The father Kochugovindan Nair assigned the plaint schedule property in favour of his wife-Nanikutty Amma and two children as per Ext.A1 document No.1214/1088. The two children are the lst defendant and one Nanu. Nanikutty Amma, wife of Kochugovindan Nair, died in 1138 M.E. and Kochugovindan Nair died in 1107 M.E. One of their son, Nanu -2- A.S.No.131/2000 left the native place at the age of 16 and his present whereabouts are not known. He is presumed to be no more. He was not heard since so many years. According to the plaintiffs, plaintiffs 1 and 2 are entitled to get 1/4 share each in the plaint schedule property. Plaintiffs 3 to 7 together are entitled to get 1/ 4 share from the plaint schedule property and the legal heirs of deceased lst defendant, who are defendants 2 to 15, are entitled to get the balance 1/ 4 share. 2. In the joint written statement filed by defendants 14 and 15 it is contended intera alia that the plaint schedule property is the self-acquired property of lst defendant and therefore not partible, that 47 cents in sy.No.421/4 and 32 cents in Sy.No.422 from the plaint schedule property was assigned to these defendants by their father, lst defendant as per settlement deed No.3721/88, that the property covered by the said settlement deed is in the possession and enjoyment of defendants 14 and 15, that the validity of the settlement deed was upheld by the Thrissur -3- A.S.No.131/2000 Sub Court in O.S.No.311/91 and that the co-ownership properties of plaintiffs and lst defendant were partitioned as per registered document of the 1976 marked as Ext.B1. It is contended that the suit for partition is without any bona fides and is liable to be dismissed with costs. 3. The evidence in this case consists of oral testimonies of PW1, DW1, Exts.A1 to A3, and B1 to B5. Ext.A1 is the sale deed executed by Kochugovindan Nair in favour of his wife and two children namely, Krishnan Nair and Nanu Nair. It has come out in evidence that the other three sons were born to Kochugovindan Nair subsequent to the execution of Ext.A1 sale deed. Subsequently, Nanikutty Amma one of the assignees executed Ext.B2 release deed in favour of the lst defendant in the year 1116 M.E. releasing her right over the property. In Ext.B2 it is stated that Nanu Nair went on pilgrimage in 1103 M.E. and thereafter his whereabouts were not known. The assignees are three persons. The mother executed the release deed, Ext.B2 in -4- A.S.No.131/2000 favour of the lst defendant conveying her right as well as the right she inherited from Nanu Nair. The lst defendant has become the absolute owner of the property by virtue of the sale deed. 4. In the year 1976 the remaining 4 children of Kochugovindan Nair, who are plaintiffs 1, 2, Raman Nair and the lst defendant Krishnan Nair executed a partition deed regarding the properties available for partition. Ext.B1 is the partition deed. The plaint schedule property has not been included in the said partition deed. The suit has been filed on the basis of the averments that Ext.A1 sale deed was executed by the father for the benefit of his 4 children, even though the sale deed was executed in favour of his wife and two children alone. There is no merit in the contention raised by the plaintiffs. The four children executed Ext.B1 partition deed in the year 1976 wherein also the plaint schedule property was not included as a partible item. The averments in Ext.B1 would go to show that all -5- A.S.No.131/2000 the co-ownership properties are included in the partition deed and that no co-ownership property is left out. The further observation in Ext.B1 partition deed would go to show that if any other co- ownership property is left out, the same will be treated as the property of the person in whose name such property stands. In the circumstances, the court below held that the plaint schedule property is not partible and the plaintiffs are not entitled to get any share from the plaint schedule property. The view taken by the court below is the only possible view in the given circumstances. I find no reason to interfere with the judgment and decree impugned in this appeal. In the result, the appeal fails and accordingly dismissed. No order as to costs. HARUN-UL-RASHID, JUDGE. kcv. -6- A.S.No.131/2000 HARUN-UL-RASHID,J. -------------------------- A.S.NO.131 OF 2000 -------------------------- JUDGMENT 17th February, 2010