IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOTTATHIL B.RADHAKRISHNAN & THE HONOURABLE MR. JUSTICE P.BHAVADASAN THURSDAY, THE 18TH NOVEMBER 2010 / 27TH KARTHIKA 1932 RFA.No. 229 of 2005() ------------------------------- OS.14/2000 of SUB COURT, CHERTHALA .................... APPELLANT/DEFENDANT 1 & 2 IN OS ------------------------------------------------------- 1. K.T. EASY, KOIMAPARAMBIL HOUSE, AROOR P.O., CHERTHALA. 2. K.T. VARGHESE, PERSONAL OFFICER, M/S. WEST COAST PAPER MILLS, DANDELI P.O., NORTH KARNATAKA, KARNATAKA STATE. BY SRI.P.SANTHALINGAM, SENIOR ADVOCATE, ADV. SRI.S.SHARAN. RESPONDENTS/PLAINTIFFS/DEFENDANTS 3 TO 8 -------------------------------------------------------------------------- 1. MARY THOMAS, ALIAS KUNJAMMA, PALAKKAL HOUSE, ARTHUMGAL, CHERTHALA. 2. KOCHU THRESSIA, KADAVIL HOUSE, KANNAMALI, KOCHI. 3. PHILOMINA JOSEPH, PADASERIYIL HOUSE, OF DO. DO. 4. LILLY SEBASTIAN, VELUTHEDATHU HOUSE, INTUC JUNCTION, NETTOOR, ERNAKULAM. 5. B. ALAKAMANI, B/105, BRAHMA NAGAR, AUNDH ROAD, PHANPATIL ROAD, PUNE- 411 033. 6. ROBIN ANTONY, 78- SNCH SMUTI SOCIETY, B/H NUTAN MAHESWARI SOCIETY, SUBHANPURA, BARODA- 390 007. RFA.No. 229 of 2005 7. USHA D/O. ANTONY, C/O. ROBIN ANTONY OF DO. DO. 8. LINCY, D/O. ANTONY, OF DO. DO. 9. CHARLES ALAKKAMANY OF DO. DO. 10. REENU ALAKKAMONY OF DO. DO. R1 TO R4 BY ADV. SRI.BABU KARUKAPADATH, SRIK.A.NOUSHAD. R5 BY ADV. SRI.JOHN JOSEPH. THIS REGULAR FIRST APPEAL HAVING BEEN FINALLY HEARD ON 18/11/2010,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: rs THOTTATHIL B.RADHAKRISHNAN & P. BHAVADASAN, JJ. ------------------------------------------- R.F.A.No.229 OF 2005 ------------------------------------------- Dated this the 18th day of November, 2010 JUDGMENT Thottathil B.Radhakrishnan, J. 1.The unserved respondents 6, 9 and 10 are among those defendants who did not contest the suit for partition. The appellants, defendants 1 and 2, set up exclusive title to the property, including by adverse possession and ouster. They, in fact, set up a case that the plaintiffs who are females have been paid off their share at the time of marriage. With this, we do not deem it necessary to wait for the appearance of the unserved respondents 6, 9 and 10. We dispense with notice to those respondents. The appeal is treated as ripe. 2.Heard. 3.Thanchu Vaidyan allegedly died intestate in 1973, leaving behind seven daughters and three sons, of whom, one was a RFA.229/05 2 priest. He is also no more. Plaintiffs are the daughters of Thanchu Vaidyan. Defendants 1 and 2 are his sons. The other defendants have also some interest as sharers in Thanchu Vaidyan’s estate. The suit was resisted only by defendants 1 and 2, sons of Thanchu Vaidyan. The relationship between the parties, the paternity and the title are not in dispute. Defendants 1 and 2 set up a case that the plaintiffs were given ornaments and were paid certain amounts at the time of their marriage in lieu of their shares. They set up a case of adverse possession and ouster overruling the defence of defendants 1 and 2 and based on a preliminary decree for partition. 4.Before us, the only question that arises for decision is as to whether the court below erred in law or on facts in holding that defendants 1 and 2 have no title by adverse possession or ouster. Needless to say the law is well settled that a pleading of ouster has to be substantiated by evidence and title by prescription to the exclusion of the other sharers. The first RFA.229/05 3 defendant alone went to the box. His testimony and the documentary evidence tendered by the defendants do not inspire confidence to hold that there was any intention at any point of time to exclude the other sharers from their right to share in the property. As can be seen, the fundamental stand taken by defendants 1 and 2 refer to a situation where Christian women are not eligible to share in the estate of the parents. Following the decision of the Apex Court in Mary Roy, as rightly found by the court below, such a plea does not arise. Equally, with the fact that the parties were labouring on a wrong proposition of law, the plea of adverse possession, ouster and limitation as set up by defendants 1 and 2 has also to necessarily fail. 5.In the result, the appeal is dismissed confirming the impugned preliminary decree. RFA.229/05 4 Taking into consideration the totality of the facts and circumstances, we deem it appropriate that the court below makes an endeavour in the final decree proceedings to have the residential building among the suit properties to be allotted to defendants 1 and 2 jointly, provided such an adjustment is possible by necessary adjustments on equitable considerations. It is so ordered. The parties are directed to suffer their respective costs. Sd/- THOTTATHIL B.RADHAKRISHNAN, Judge. Sd/- P.BHAVADASAN, Judge. kkb.22/11.