IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.M.JOSEPH & THE HONOURABLE MR. JUSTICE M.L.JOSEPH FRANCIS THURSDAY, THE 10TH DECEMBER 2009 / 19TH AGRAHAYANA 1931 AS.No. 207 of 2000(B) --------------------------------------- OS.269/1997 of PRINCIPAL SUB COURT, PALAKKAD .................... APPELLANT(S)/1ST DEFENDANT: ---------------------------------------------- V.R. NARAYANAN NAIR, S/O. NAVU ALIAS CHINNAMMA, RESIDING AT KEERTHI NIVAS, 3RD MAIN ROAD, KASTHURBA NAGAR, ADAYAR, CHENNAI. (DIED) SUPPL.2. MRS. SUMANGALA VIJAYAGOPAL, W/O. K. VIJAYAGOPAL, RESIDING AT PUTHAN HOUSE, SREEDHARA MENON ROAD, VALLANGHI, NEMMARA, PALAKKAD - 678 508. BY ADV. SRI.V.CHITAMBARESH, SENIOR ADVOCATE SRI.T.C.SURESH MENON SRI.JIBU P THOMAS RESPONDENT(S)/PLAINTIFF & DEFENDANTS 2 TO 4: -------------------------------------------------------------------------- 1. U.K. NAIR, S/O. RAGHAVAN NAIR, RESIDING AT VALLANGI VILLAGE, CHITTUR TALUK, PALAKKAD DISTRICT. 2. SUSEELA AMMA, W/O. V. R. RADHAKRISHNAN NAIR, RESIDING AT BHASKARA FLAT (S.B.I.) B-10, HOWRANGHAPURAM, AHAMMADABAD, GUJARATH STATE. 3. JOTHY, D/O. SUSEELA AMMA, RESIDING AT BHASKARA FLAT (S.B.I.) B-10, HOWRANGHAPURAM, AHAMMADABAD, GUJARATH STATE. 4. JOLSANA, D/O. SUSEELA AMMA, RESIDING AT BHASKARA FLAT (S.B.I.) B - 10, HOWRANGHAPURAM, AHAMMADABAD, GUJARATH STATE. SUPPL.5: K. VIJAYAGOPAL, S/O. LATE V.R. NARAYANAN NAIR, RESIDING AT PUTHAN HOUSE, SREEDHARA MENON ROAD, VALLANGHI, NEMMARA, PALAKKAD. A.S.NO.207 OF 2000 B SUPPL.6: K. VENUGOPAL, S/O. LATE V.R. NARAYANAN NAIR, RESIDING AT 21, III MAIN ROAD, KASTURBA NAGAR, ADYAR, CHENNAI - 600 020. (SUPPL. 2ND APPELLANT AND SUPPL. RESPONDENTS 5 AND 6 ARE IMPLEADED AS LEGAL HEIRS OF THE DECEASED FIRST APPELLANT VIDE ORDER ON I.A.NO.3112/07 DATED 10.12.2009). BY SHRI M.C. SEN (SENIOR ADVOCATE) ADV. SRI.P.SANJAY FOR R1 SRI.A.PARVATHI MENON FOR R1 THIS APPEAL SUIT HAVING BEEN FINALLY HEARD ON 10.12.2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING; K. M. JOSEPH & M. L. JOSEPH FRANCIS, JJ. -------------------------------------------------- A.S. NO. 207 OF 2000 B --------------------------------------------------- Dated this the 10th December, 2009 JUDGMENT K.M. Joseph, J. This Appeal is filed originally by the first defendant. First respondent is the plaintiff. The Suit was one for partition. The parties are Nair Marumakkathayees. The Suit has been decreed and a preliminary decree has been passed dividing the plaint schedule property into two and providing one half share to the plaintiff who is entitled for separate possession of the same. It is decreed that equities and shares of profits will be considered at the final decree stage. 2. According to the first respondent/plaintiff, the property belonged to one Kalyani Amma who was a member of Vadakke Ravunniarathu Puthan Veedu. There was a partition registered as No.486/1102 (M.E.). Therein, D schedule was allotted to Kalyani Amma. It consisted of 78 and a half cents. The AS.NO.207/00 B 2 plaintiff is one of the sons of Raghavan Nair. Kalyani Amma had three siblings, namely Chinnammu alias Navu, Padmanabhan Nair and Raghavan Nair. Plaintiff is one of the sons of Raghavan Nair. The plaint schedule property was what was allotted to Kalyani Amma, less 11 and a half cents which was allotted to the share of Raghavan Nair, the plaintiff's father, though allegedly on a misrepresentation. In other words, the plaint schedule property is part of D schedule property as per Document No.486/1102 (M.E.). Kalyani Amma passed away in 1965. The first defendant/original appellant is one of the sons of Chinnammu Amma alias Navu. Chinnammu Amma died in 1959. She left behind her, Achuthan Nair, Vasudevan Nair, V.R. Narayanan Nair (first defendant), Gopalan Nair and Radhakrishnan Nair. Of the same, Achuthan Nair, Vasudevan Nair and Gopalan Nair died issueless. V.R. Radhakrishnan Nair died leaving behind him, his wife Suseela Amma and children, Jothy and Jolsana who are none other than defendants 2 to 4. Case of the plaintiff is that he purchased the share of AS.NO.207/00 B 3 Padmanabhan Nair, another brother of deceased Kalyani amma (1/3rd share) from the issues or grandchildren of Padmanabhan Nair by Exts.A1 to A3 Release Deeds. Accordingly, he became the owner of the share due to Padmanabhan Nair. Since the share of Raghavan Nair had already been given, what remains was the 1/2 share of Padmanabhan Nair and ½ share of the branch of Chinnammu Amma who was represented by the then live children, namely the first defendant and the wife of Radhakrishnan Nair and their children who alone were alive. It is finding that in view of the provisions of Section 15(1) read with Section 17(2) of the Indian Succession Act, the property left behind by Kalyani Amma was to go to the legal heirs of the mother of Kalyani Amma, that it was found that as the plaintiff has purchased the share of Padmanabhan Nair, he is entitled to one half share in the plaint schedule property. Finding that there was settlement of the shares amongst defendants 1 and 2 to 4, the first defendant alone was found entitled to one half share and accordingly a preliminary decree as aforesaid came to be passed. AS.NO.207/00 B 4 3. We heard the learned counsel appearing for the appellant as also Shri M. C. Sen, learned senior counsel appearing on behalf of the respondents. During the pendency of the Appeal, the appellant died and his legal heirs, namely daughter-in-law and sons have come to be impleaded as supplemental appellant and supplemental respondents 5 and 6. 4. Learned counsel for the appellant would contend that it may not be correct to grant a decree on the basis of Exts.A1 to A3. He would further submit that five buildings have been put up by the original first defendant on the basis of partition, and that the appellant is entitled to the value of the buildings worth about Rs.6 Lakhs. It is submitted that the ancestors are buried in the plaint schedule property and, therefore, such property is given to the appellant. 5. We notice that the evidence in this case consisted of Exts.A1 to A6. Exts.A1 to A3 are documents relied on by the plaintiff to substantiate his case that he has purchased the share of Padmanabhan Nair, from his children and grand-children. AS.NO.207/00 B 5 Ext.A4 is a lawyer notice, A5 is the reply notice and A6 is another lawyer notice. This is the state of the evidence. There is no pleading even that Exts.A1 to A3 cannot be relied on or that they are not valid. Moreover, there is no evidence in support of any such case. We reject the contention of the appellant that the plaintiff cannot rely on Exts.A1 to A3 to substantiate his case that he has purchased the share due to Padmanabhan Nair. 6. As far as the further contention regarding equity, we notice that the trial court has directed that equities and share of profits will be considered at the final decree stage. There is no evidence whatsoever in support of the case of the appellant that he has put up the buildings. There is no plea raised for reservation of the properties wherein the ancestors are buried. Anyway the trial court has reserved the question of equities and share of profits to be considered at the stage of final decree. The question as to whether the appellant has put up the buildings with his funds and whether he is, therefore, entitled to the value AS.NO.207/00 B 6 of the buildings and whether the properties are to be allotted to the share of the appellant are all to be decided in the final decree proceedings. Subject to the aforesaid observations, the Appeal fails and it is dismissed. In view of the relationship between the parties, there will be no order as to costs. Sd/= K.M. JOSEPH, JUDGE Sd/= M. L. JOSEPH FRANCIS, JUDGE kbk. // True Copy // PS to Judge AS.NO.207/00 B 7 K.M. JOSEPH & M.L. JOSEPH FRANCIS, JJ. A.S.NO. 207 OF 2000 B JUDGMENT 10th December, 2009.