IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN MONDAY, THE 31ST MAY 2010 / 10TH JYAISTHA 1932 AS.No. 15 of 1998(A) ------------------------------- OS.671/1992 of PRL.SUB COURT,KOTTAYAM .................... APPELLANT(S): DEFENDANTS 2 & 3 ---------------------- 1. ALEYAMMA MANI, W/O.MANI, THAIDIL HOUSE, KIZHAKKUMBHAGAOM KARA, ETTUMANOOR VILLAGE, KOTTAYAM TALUK. 2. MANI MATHAI, SON OF MATHAI, THAIDIL HOUSE, KIZHAKKUMBHAGOM KARA, ETTUMANOOR VILLAGE, KOTTAYAM TALUK. BY ADV. SRI.S.P.ARAVINDAKSHAN PILLAY SRI.V.VARGHESE RESPONDENT(S): PLAINTIFFS & IST DEFENDANT ------------------------ 1. KARUNAKARA KAIMAL, S/O. KRISHNAN NAMBOODIRI, RESIDING AT MAMALASSERIL HOUSE, KADAPPOOR, KANAKKARI VILLAGE, MEENACHIL TALUK.(DIED) 2. SARASWATHIKUTTY AMMA, D/O. KRISHNAN NAMBOODIRI, RESIDING AT AYANKUDIYIL, KADAPPOOR, KANAKKARI VILLAGE, KANAKKARI VILLAGE , MEENACHIL TALUK. 3. R.REGHVEERAN, S/O. RAMAPANICKER, RESIDING AT SWATHI VEETTIL, ADOOR KARA, ADOOR VILLAGE, PATHANAMTHITTA. A.S. NO.15/1998 ADDL. R4 TO R10 IMPLEADED. 4. JAYAPRAKASH, S/O. KARUNAKARA KAIMAL, MAMALASSERIL, KADAPPOOR, KANAKKARI VILLAGE, MEENACHIL TALUK, VATTUKULAM P.O., KOTTAYAM DISTRICT. 5. SASIKUMAR, S/O. KARUNAKRA KAIMAL, MAMALASSERIL, KADAPPOOR, KANAKKARI VILLAGE, MEENACHIL TALUK, VATTUKULAM P.O., KOTTAYAM DISTRICT. 6. MOHAN BABU, S/O. KARUNAKARA KAIMAL, DO. DO. 7. SAVITHRI, D/O. DO. DO. 8. VALSALA , D/O. DO.DO. 9. VANAJA, D/O. DO. DO. 10. ANITHA, D/O. DO. DO. SUPPLEMENTAL RESPONDENTS 4 TO 10 ARE IMPLEADED AS LEGAL REPRESENTATIVES OF THE DECEASED IST RESPONDENT VIDE ORDER DTD. 21.5.2010 IN CMP. 4/2000. R1 & R2 , R6 TO R8 BY ADV. SRI.V.G.ARUN THIS APPEAL SUITS HAVING BEEN FINALLY HEARD ON 31/05/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ORDER ON CMP. NO.99/1998 IN AS. NO.15/1998 DISMISSED 31/05/2010 SD/- M.N.KRISHNAN, JUDGE TRUE COPY P.A. TO JUDGE tss M.N.KRISHNAN,J. ========================= A.S. No.15 of 1998 ====================== Dated this the 31st day of May, 2010. JUDGMENT This is an appeal preferred against the judgment and decree of the Principal Subordinate Judge's Court, Kottayam in O.S. No.671/1992. The suit is one for recovery of possession of immovable property on the strength of title. It is the case of the plaintiff that the property belonged to one Raghava Kaimal by virtue of Ext.A2 dated 10.11.1987. He died on 14.2.1989 leaving behind his widow Sarojini Amma. Sarojini Amma died on 22.1.1991 and the plaintiffs are the brother and sister of Sarojini Amma. Claiming property through Sarojini Amma as per succession, they have moved the suit for recovery of possession. The defendants would contend that Raghava kaimal had executed a will in favour of his brother's son Gopikrishnan and he had succeeded to the property and thereafter he had sold the property to D1 by virtue of B4 dated 20.9.1989 and A.S. No.15 of 1998 2 subsequently by virtue of B5, D1 had transferred the property to D2 and D3. So the plaintiffs are claiming title to the property by virtue of succession and the defendants are claiming title to the property by virtue of a will and subsequently by virtue of assignment deed. The Court below found that the Will was not properly proved and the Will does not confer title on Gopikrishanan and as a result, transfers are not valid in law. 2. Now the learned counsel for the appellant had strongly canvassed a question of law that has not been placed before the Court below. The learned counsel would contend that since Raghavakaimal died without any children and as the property had devolved upon Sarojini Amma by virtue of provisions of Hindu Succession Act, on her death by virtue of Section 15 (2),(b) of the Hindu Succession Act the property obtained by a female through her husband had to devolve upon the legal heirs of husband and therefore when such is the principle to be followed, then the legal heirs will be the brother's son or sister's son A.S. No.15 of 1998 3 and it will not be Sarojini Amma's brother or sister. So he contends that since the plaintiffs cannot inherit any right in view of Section 15 (2), (b) and the plaintiffs are not having any title to the property the suit is therefore liable to be dismissed. The learned counsel for the respondents would contend that such a pleading is not raised before the Court below. It is not pleaded that the parties are governed by Marumakkathayam law and who were all alive at the time of Sarojini Amma's death. This question was not considered by the Court below it was not supported by any pleading or issues. It is true that this contention should have been taken by the defendants at the time of the original defence. But being a pure question of law one cannot hold that they are not entitled to maintain such a plea before this Court. Further being a suit for recovery of possession of title, the plaintiff has to succeed or fail on the strength of their title. Their title depends upon the devolution and to whom the property will devolve upon is a matter to be decided. I make it very clear that the only A.S. No.15 of 1998 4 question be probed into this matter is this question and the all other contentions raised are settled by the trial court judgment. Therefore, judgment and decree passed by the Court below are set aside and the matter is remitted back to the trial Court with permission to the parties to amend the pleadings and let in evidence regarding the devolution of the property from Sarojini Amma. The parties be permitted to adduce documentary as well as oral evidence in support of their respective contentions and then matter shall be disposed of in accordance with law. Parties are directed to appear before trial Court on 15.7.2010. M.N.KRISHNAN,JUDGE. mns