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 AS.No. 843 of 1996(B) ------------------------------- OS.12/1993 of SUB COURT, QUILANDY .................... APPELLANT(S): DEFENDANTS 2 AND 8 --------------------------------------------------------- *1. P.NARAYANA SWAMI, MANGALASSERI HOUSE, CHEEKKILODE AMSOM, KOLATHUR DESOM, KOILANDY (DIED). **2. KALAVATHI AMMA, D/O. NARAYANA SWAMI, EYYAM KUZHIKKALAM , NILAMBUR, MALAPPURAM DISTRICT. *ADDL. A3 TO A9 IMPLEADED. 3. VIJAYALAKSHMI AMMA, D/O. NARAYANASWAMI, MANGALASSERY HOUSE, KULATHUR POST, VIA, ATHOLI, KOZHIKODE DISTRICT. 4. GAYATHRI AMMA, , D/O. NARAYANASWAMI, DO. DO. 5. RUGMINI AMMA, D/O. NARAYANASWAMI, DO. DO. 6. SAROJINI AMMA, W/O. RADHAKRISHNAN NIR, URALUKANDI HOUSE, KULATHUR POST, VIA ATHOLI, KOZHIKODE 673 315. 7. SRIJITH R.K., S/O. LATE RADHAKRISHNAN NAIR DO. DO. 8. SARITHA, D/O. RADHAKRISHNAN NAIR, DO. DO. 9. SARATHCHANDRAN, S/O. LATE RAMACHANDRAN NAIR, MANGALASSERY HOUSE, KULATHUR P.O., VIA ATHOLI, KOZHIKODE 673 315. A.S. NO.843/2996. *THE ABOVE ADDL. APPELLANTS 3 TO 9 ARE IMPLEADED AS THE LEGAL REPRESENTATIVES OF THE DECEASED IST APPELLANT VIDE ORDER DT. 5.8.02 IN CMP. 2487/02. **IT IS RECORDED THAT THE 2ND APPELLANT AS THE REMAINING LEGAL REPRESENTATITVE OF THE DECEASED IA APPELLANT VIDE ORDER DT. 5.8.02 IN CMP. 2487/02. BY ADVS. SRI.M.C.SEN, SMT.PARVATHI A.MENON SRI.M.P.SREEKRISHNAN SHAHNA KARTHIKEYAN SRI.S.PRAKASH RESPONDENT(S): PLAINTIFFS AND DEFTS. 3 TO 7 , 9 TO 37. --------------------------------------------------------------------------------------- 1. K.NARAYANAN NAIR, S/O. KRISHNAN NAIR, KALLERIKONDY HOUSE, KOKKALLUR AMSOM, KANNANKODE DESOM, QUILANDY TALUK. 2. K.BALARAMAN NAIR, PALAPUNATHIL HOUSE, DO. DO. 3. CHERIYERI MADHAVI AMMA, D/O. MATHAI AMMA, PANDIKUNNU MALAYIL, KOKKALLUR AMSOM, KANNANKODE DESOM, DO. DO. 4. KAMALA AMMA, D/O. GOVINDANKUTTY NAIR, MELE AYIMATH HOUSE, PADANILAM AMSOM DESOM , KOZHIKODE TALUK. 5. SANTHA AMMA, D/O. DO. RESIDING AT THATTANTE MEETHAL HOUSE,KOTTOOR AMSOM DESOM, QUILANDY TALUK. 6. DEVI AMMA, D/O. DO. RESIDING AT VADAKKAYIL HOUSE, KOTTOOR AMSOM, VAKAYAD DESOM, DO. DO. 7. SOUMINI AMMA, D/O. DO. POOKOTH HOUSE, UNNIKULAM AMSOM EKAROOL DESOM, DO. DO. 8. SARATH CHANDRAN, (MINOR) AGED 16 YEARS, S/O. LATE RAMACHANDRAN NAIR, MANGALASSERI HOUSE, CHEEKILODE AMSOM, KOLATHUR DESOM, KOZHIKODE TALUK, REP.BY THEVAR PARAMBATH KUNHIRAMAN NAIR, S/O. LALITHA AMMA, RESIDING AT KOKKALLUR AMSOM, KANNANKODE DESOM, QUILANDY TALUK. 9. GOPALAN NAIR, S/O. GOVINDAN NAIR, PALAPUNATHIL HOUSE, KOKKALLUR AMSOM, KANNKODE DESOM , DO. DO. A.S. NO.843/1996 10. PALAPUNATHIL MATHUKUTTY AMMA, D/O. GOVINDAN NAIR, RESIDING AT PUDUKKUDI MEETHAL, DO. DO. 11. PARVATHI AMMA, D/O. MATHUKUTTY AMMA, DO. DO. 12. SARADA AMMA, DO. DO. 13. UNNI NAIR, S/O. PARVATHI AMMA, DO. DO. 14. GEETHA AMMA, DO. DO. 15. SATHEESAN NAIR, DO.D O. 16. ANITHA AMMA, D/O. SARADA AMMA, DO. DO. 17. MINI AMMA, DO. DO. 18. SHERLI AMMA, DO. DO. 19. RAJAN NAIR, DO. DO. 20. PALAPUNATHIL NARAYANI AMMA, D/O. UNNI AMMA, PUTHIYEDATH HOUSE, DO. DO. 21. DAKSHAYANI AMMA, D/O. NARAYANI AMMA, DO. DO. 22. CHANDRAN NAIR, DO. DO. 23. VIJAYAN NAIR, DO. DO. 24. VIDHADHARAN NAIR, S/O. DAKSHAYANI AMMA, DO. DO. 25. V.P.MEENAKSHI AMMA, D/O. KUNHIRAMAN NAIR, MARUTHALLUR PURAYIL HOUSE, NANMINDA P.O. 26. V.P.BALAN, S/O. DO. ASSISTANT SUPERINTENDENT, NATIONAL SAMPLE SURVEY ORGANISATION OF INDIA, KARAPARAMBA, KOZHIKODE. 27. V.P.BHASKARAN, S/O. DO. PROPRIETOR, PADMASREE PICTURES, MALAPARAMBA, KOZHIKODE. 28. V.P.SREEDHARAN, S/O. DO. ASSISTANT PROFESSOR (MEDICAL COLELGE) EAST HILL ROAD, KARAPARAMBA, KOZHIKODE. 29. V.P.LOHITHAKSHAN, S/O. DO. RESIDING AT VADAKKE PARAMBIL HOUSE, P.O. VATTOLI, BALUSSERI, KOZHIKODE. A.S. NO.843/1996. 30. V.P.KAMALAKSHI, D/O. DO. PAPPARAMBATH HOUSE, P.O.ERAMANGALAM, BALUSSERY. 31. V.P.PADMAKSHI, D/O. DO. SOUTH MALABAR GRAMIN BANK, KAKKUR BRANCH, P.O. KAKKUR, KOZHIKODE. 32. V.P.VISALAKSHI, D/O. DO. ACCOUNTANT, AGRICULTURAL DEVELOPMENT AND LAND MORTGAGE BANK, P.O. BALLUSSERY. 33. V.P.VANAJA, D/O. DO. VADAKKE PARAMBIL HOUSE, P.O.VATTOLI, BALUSSERI , KOZHIKODE. 34. V.P.DEVADASAN, S/O. DO. DO. 35. V.P.SUJATHA, DO. DO. *ADDL. R36 TO 39 IMPLEADED 36. SOBHANA AMMA, W/O. LATE K.NARAYANAN NAIR, KALLERIKANDI HOUSE, KOKKALLUR AMSOM, KANNANKODE DESOM, KOYILANDY TALUK. 37. JAYANATH, S/O.LATE K.NARAYANAN NAIR, DO. DO. 38. JAYADEV, S/O. LATE K.NARAYANAN NAIR, DO. DO. 39. JAYAKRISHNAN, S/O. DO. DO. *LEGAL HEIRS OF DECEASED IST RESPONDENT ARE IMPLEADED AS ADDL. RESPONDENTS R 36 TO R39 AS PER ORDER DTD. 18.11.2010 IN IA. 3625/06. R1 & R2 BY ADVS. SRI.SREEKUMAR R9 & R10 BY SRI.R.PARTHASARATHY R16 BY SRI.R.K.VENU NAYAR, SRI. JOY SANKAR. R25 TO 35 BY SRI.K.V.SOHAN, SRI.K.RAJEEV MENON. THIS APPEAL SUITS HAVING BEEN FINALLY HEARD ON 01/11/2010, THE COURT ON 18/11/2010 DELIVERED THE FOLLOWING: tss THOTTATHIL B. RADHAKRISHNAN & P. BHAVADASAN, JJ. - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - A.S. No. 843 of 1996 & Memorandum of Cross Appeal - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 18th day of November, 2010. JUDGMENT Bhavadasan, J, Defendants 2 and 8 in O.S.12 of 1993 before the Sub Court, Quilandy, whose claim for exclusive right to item Nos. 1 and 5 of the plaint schedule property was declined by the court below, are the appellants. The parties and facts are hereinafter referred to as they are available before the court below. 2. The suit was one for partition of 5 items of properties, over which the plaintiffs claimed 1/3rd share. According to the plaintiffs,the plaint schedule properties belonged to Raman Nair, who bequeathed it to Krishnana Nair and defendants 1 and 2 as per Ext.A1 will dated 24.6.1936. On the death of Krishnan Nair, according to the plaintiffs, the right devolved on them as A.S. 843 of 1996. 2 per a Will executed by Krishnan Nair marked as Ext.A4 dated 20.1.1987. Various transactions with regard to the properties are made mention of in the plaint and ultimately it is claimed that the plaint schedule properties may be partitioned into three equal shares and one such share may be allotted to the plaintiffs along with past and future mesne profits. 3. The first defendant supported the plaintiffs. The second defendant resisted the suit on the ground that item No.5 belonged exclusively to him and item No.1 to the eighth defendant. He prayed that these items are therefore not available for partition. 4. Defendants 3 to 7 in their joint written statement pointed out that item No.3 is not available for partition. They challenged the Will executed by both Raman Nair and Krishnan Nair. They disputed that item No.3 was in the joint possession of the plaintiffs and defendants. According to them, item No.3 belonged in A.S. 843 of 1996. 3 jenm to Areepurath tarwad, from whom Govindankutty Nair and his sisters Mathukutty Amma and Narayani Amma had obtained lease. The two sisters released their rights in favour of Govindankutty Nair and Govindankutty Nair had therefore obtained absolute possession and right over the same. On his death, it devolved on defendants 3 to 7. They also pointed out that the present suit is one to drag on an earlier suit, i.e. O.S. 104 of 1992. 5. In the separate written statement filed by defendant No.8, he adopted the contentions raised by the second defendant. According to her item Nos. 1 and 5 were outstanding with Govindankutty Nair as per the lease from Raman Nair. Govindankutty Nair assigned his rights in respect of item No.1 in favour of Rama Kurup. Rama Kurup obtained a purchase certificate and transferred the item to the eighth defendant for consideration and thereafter she is in absolute A.S. 843 of 1996. 4 possession and enjoyment of the same. Pointing out that items 1 and 5 are not available for partition, she pointed out that the suit be dismissed as regards these items. 6. Defendants 10 to 23 filed the written statement challenging the claims made by the plaintiffs. They pointed out that the entire properties are available for partition and they are also entitled to a share. 7. On the basis of the above pleading, the court below raised necessary issues for consideration. The evidence consists of the testimony of P.W.1 and documents marked as Exts.A1 to A28 from the side of the plaintiffs. Defendants had D.Ws. 1 and 2 examined and Exts.B1 to B47 marked. On an appreciation of the evidence, the court below found that items 1, 2, 4 and 5 are available for partition and passed a preliminary decree accordingly. The claim of the second and eighth defendants as regards items 1 and 5 was rejected. So A.S. 843 of 1996. 5 the appeal has been filed by them. 8. The only question that arises for consideration is whether the court below was justified in negativing the exclusive right claimed by defendants 2 and 8 in respect of items 1 and 5 in the plaint. 9. According to defendants 2 and 8, plaint items 1 and 5 are not available for partition. In order to substantiate their claim, they examined D.W.1 and relied on Exts.B1 to B5. 10. The contention of these defendants was that Govindankutty Nair had obtained the oral lease from Raman Nair in the year 1936 and Govindankutty Nair assigned the properties to Rama Kurup as per Exts.B1 and B3. The said Rama Kurup is examined as D.W.1. He deposed about having obtained right over the suit property as per Exts.B1 and B3. He claims to have obtained purchase certificate in relation to these items and the purchase certificate so obtained is marked as A.S. 843 of 1996. 6 Ext.B5. He claims that he had obtained three purchase certificates, which were not available at the time of evidence. After obtaining Ext.B5 purchase certificate, he claimed to have executed Exts. B2 and B4. Ext.B2 is in favour of the second defendant in relation to item No.5. He had executed Ext.B4, another assignment deed, in favour of the daughter of the second defendant, who came on the party array as eighth defendant. 11. In the light of the purchase certificate and assignment deeds produced by the defendants, it is contended on behalf of defendants 2 and 8 that items 1 and 5 are not available for partition. 12. It is interesting to note that as per Ext.A1 dated 24.6.1936 it appears that Raman Nair had executed a Will in respect of the property. As rightly noticed by the court below, it is extremely doubtful whether thereafter he would have assign his rights over items 1 and 5. Considerable reliance is placed on A.S. 843 of 1996. 7 Exts.B1 to B5 by defendants 2 and 5. It cannot escape one's notice that Exts.B1 to B5 are of the years 1982 and 1984. It is true that in Exts.B1 and B3 it is stated that there was an oral lease in the year 1936 in favour of Raman Nair. Thereafter, the subsequent documents are of the years 1982, 1984 and 1985. Defendants 2 and 8 were unable to explain the long interval with regard to the dealings of these properties. It is interesting to note that no rent receipts are produced by these defendants to show that there have ever been lease of the property and rent has been paid to the landlord. Merely by stating that there was an oral lease in 1936, these defendants cannot succeed. Of course D.W.1 supports defendants 2 and 8 in this regard. But it is unsafe to place reliance on his evidence because he pleads ignorance regarding various other aspects except the lease evidenced by Exts.B1 and B3. It is inconceivable that if as a matter of fact there was a lease as claimed A.S. 843 of 1996. 8 by defendants 2 and 8, there would not be any document to support the same. Except the oral lease of 1936 mentioned in Exts.B1 and B3, there is absolutely no evidence to show that the lease put forward by defendants 2 and 8 is correct. As far as Ext.B5 purchase certificate is concerned, it is seen that it was issued in the suo motu proceedings initiated by the Land Tribunal. It does not show the name of the landlord at all. Under such circumstances, not much reliance can be placed on that document also. If as a matter of fact the oral lease claimed by defendants 2 and 8 fails, then there is no dispute regarding the fact that those properties are also available for partition. 12. There is absolutely no evidence regarding the oral lease set up by defendants 2 and 8. The court below has analysed the matter in considerable detail and has come to the conclusion that the lease set up by defendants 2 and 8 cannot be accepted. The conclusion A.S. 843 of 1996. 9 so arrived at is based on the evidence on record and there is no error warranting interference with that conclusion. In the light of the fact that the appellants have not been able to show that the lower court has erred in any manner, it will not be possible to interfere with the preliminary decree passed by the court below. The result is that, this appeal is without merits and it is liable to be dismissed. We do so. There will be no order as to costs. No arguments were addressed in the cross-appeal and it is accordingly dismissed. Thottathil B. Radhakrishnan, Judge P. Bhavadasan, Judge sb.