IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR WEDNESDAY, THE 1ST JUNE 2011 / 11TH JYAISHTA 1933 RSA.No. 65 of 2004() -------------------- AS.42/1997 of ADDL.SUB COURT, IRINJALAKUDA OS.340/1995 of MUNSIFF COURT, KODUNGALLUR .................... APPELLANT/APPELLANT/DEFENDANT : ------------------------------------------- KRISHNAN, S/O.PULIYANARPARAMBIL KUNJU, WEST VEMBALLUR DESOM, S.N.PURAM VILLAGE, KODUNGALLUR TALUK. BY ADV. SRI.RENJITH THAMPAN RESPONDENT(S): RESPONDENTS/PLAINTIFFS ------------------------------------- 1. AMBUJAKSHY, D/O.PULIYANARPARAMBIL KUNJAN AND W/O.PONATH KARTHIKEYAN, AZHIKKODE VILLAGE, DESOM, KODUNGALLUR TALUK. 2. THANKA, D/O.PULIYANARPARAMBIL KUNJAN AND W/O.KOZHISSERI NADARAJAN, KAIPAMANGALAM VILLAGE, DESOM, KODUNGALLUR TALUK. ADV. SRI.T.H.ABDUL AZEEZ FOR R1 & R2 THIS REGULAR SECOND APPEAL HAVING BEEN FINALLY HEARD ON 01/06/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: M.SASIDHARAN NAMBIAR,J. --------------------------------------------- R.S.A.NO.65 OF 2004 --------------------------------------------- Dated 1st June, 2011 JUDGMENT Defendant in O.S.340/1995 on the file of Munsiff court, Kodungallur is the appellant. Plaintiffs are the respondents. Respondents instituted the suit seeking a decree for partition contending that plaint schedule property originally belonged to Kunjan, the father as per Ext.A1 registered document No.1506/1941, and on his death the properties devolved on his widow Vally and children, appellant and respondents and on the death of Vally her rights also devolved on the appellant and respondents and the property is therefore, available for partition and are to be divided into three shares and one such share is to be allotted RSA 65/04 2 to the respondents. 2. Appellant resisted the suit contending that plaint schedule property was acquired by Kunjan for and on behalf of his brothers Ayyappankunji and Velayudhan and Kunjan was the trustee and all of them were residing together and on the death of Kunjan there was a mediation and a partition of the properties and 1/3rd share was separated as the share due to Kunjan and the other two shares for his brothers. Appellant purchased share of Velayudhan in 1964 and subsequently Ayyappankunji released his share on 10/4/1984 on receiving Rs.16,100/- and the brothers of Kunjan are also necessary party to the suit and the share if any is not as claimed in the plaint. 3. Learned Munsiff on the evidence of RSA 65/04 3 PW1, Dws.1 to 3 Exts.A1 to A4 and B1 to B6 granted a preliminary decree holding that plaint schedule property is available for partition, as it originally belonged to the father Kunjan and on the death of Kunjan and the widow, appellant and respondents are entitled to equal shares and therefore, each of them is entitled to 1/3rd share. Appellant challenged the judgment before Additional Sub Court, Irinjalakuda in A.S.42/1997. Learned Sub Judge on re-appreciation of the evidence confirmed the findings of the learned Munsiff and dismissed the appeal. It is challenged in the second appeal. 4. Second appeal was admitted formulating the following substantial questions of law. 1) In a joint Hindu family, will not the property acquired RSA 65/04 4 by the Manager of the joint Hindu family, after selling the existing joint family property, continue to be joint family property ? 2) If one male member of a joint family consisting of two male members alone dies before 1976, will the surviving co- parcener become the absolute owner of the entire property? 5. Learned counsel appearing for the appellant and respondents were heard. 6. Argument of the learned counsel is that though Ext.A1 assignment deed was obtained in the name of Kunjan, it is clear that on the date of execution of Ext.A1, Ext.B1 release deed was executed by Kunjan along with his brothers Ayyappankunji and Velayudhan and consideration paid for obtaining jenm right under Ext.A1 is the consideration received in RSA 65/04 5 Ext.B1 and therefore the nucleus for the acquisition is the joint family funds and hence finding of the courts below that plaint schedule property was the self acquisition of Kunjan and therefore, his brothers are not having any right and plaint schedule property is liable to be divided into three shares and respondents are entitled to two such shares is unsustainable. 7. It is not disputed that plaint schedule property was acquired under Ext.A1 and the sale deed is in the name of Kunjan. Ext.A1 does not give any indication that it was executed for and on behalf of his brothers also. True, Ext.B1 release deed was also executed on the same day and under Ext.B1 the tenancy right in respect of the lease hold property, which was jointly obtained by the RSA 65/04 6 father which devolved on Kunjan and his brothers were released after obtaining a total consideration of Rs.49/-. If he case of the appellant is that the leasehold right released under Ext.B1 and the properties covered under Ext.A1 were obtained under same lease, the case could have been appreciated. Ext.A1 shows that it was an independent lease in favour of Kunjan and he had effected improvements and value of improvements was fixed at Rs.200/-, while executing Ext.A1. Balance of Rs.100/- was paid by Kunjan as seen from Ext.A1. Ext.B1 shows that leasehold right jointly belonging to Kunjan and his brothers were released for a consideration of Rs.49/-. If at all, the share of the brothers could only be 2/3rd of Rs.49/- and there is no evidence to prove that the consideration due to the brothers were utilised RSA 65/04 7 for purchase of the jenm right under Ext.A1. More over, as rightly found by the courts below, Ext.A4 mortgage deed executed by the appellant along with respondents and the mother unambiguously establish that plaint schedule property originally belonged to Kunjan and on his death, it devolved on them. Hence it is not open to the appellant now to contend that the property was not obtained individually by Kunjan but by Kunjan and his brothers and therefore brothers are also entitled to an equal share like that of Kunjan. 8. On the evidence, courts below rightly found that the property originally belonged to Kunjan and on his death appellant and respondents are entitled to equal shares. In such circumstances, courts below rightly found that plaint schedule property is RSA 65/04 8 available for partition and it is to be divided into three shares and appellant is entitled to one share and respondents are entitled to remaining three shares. There is no merit in the appeal. Appeal is dismissed. M.SASIDHARAN NAMBIAR, JUDGE. uj.