IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.R.RAMAN & THE HONOURABLE MR. JUSTICE V.K.MOHANAN THURSDAY, THE 7TH FEBRUARY 2008 / 18TH MAGHA 1929 AS.No. 382 of 2002(E) --------------------- OS.510/1994 of ADDL.SUB COURT, IRINJALAKUDA .................... APPELLANT: APPELLANTS - DEFENDANTS 1 TO 3 ----------------------------------------- 1. RAMAKRISHNAN, S/O.THUMBARATHI KORU, KODAKARA VILLAGE, MUKUNDAPURAM TALUK. 2. NARAYANAN, S/O. -DO- -DO- 3. PUSHPAKARAN, S/O. -DO- -DO- BY ADV. SRI.VPK.PANICKER SRI.GEORGE VARGHESE(PERUMPALLIKUTTIYIL) SMT.SREELEKHA PUTHALATH SRI.SAJAN PHILIP MATHEW RESPONDENTS: PLAINTIFFS AND DEFENDANTS 4 TO 12 ---------------------------------------------- 1. KURUMBAKUTTY, D/O.THUMBARATHI KORU, KODAKARA VILLAGE, THESSERY DESOM, MUKUNDAPURAM TALUK AND W/O.KURUPPATHUKATTIL NARAYANAN, KOTTENELLUR VILLAGE, DESOM, -DO- TALUK. (died) 2. SUBBALAKSHMI, W/O.PERINGANTHRA MANICKAN, KUNNAPPILLI DESOM, MELOOR VILLAGE, AND D/O. -DO- KORU, KODAKARA VILLAGE, MUKUNDAPURAM TALUK. (died) 3. SUMATHI @ AMMINI, W/O.AMBATTUPARAMBIL MANIKUTTY, AND D/O. -DO- KORU, -DO- -DO- 4. INDIRA, W/O.THAYYIL RAMAKRISHNAN, KODASSERI VILLAGE,NAYARANGADI DESOM, AND D/O. -DO- KORU, -DO- -DO- 5. SHAILAJA, W/O.KATTUPARAMBIL CHANDRAN, KOODAPUZHA DESOM, CHALAKUDY VILLAGE, AND D/O. -DO- KORU, -DO- -DO- AS 382/02 -2- 6. BABU, S/O.THUMBARATHI PARAMESWARAN, POTTA VILLAGE, DESOM, -DO- TALUK. 7. RAJU, S/O. -DO- -DO- 8. NARAYANAN, S/O.THAYYIL KRISHNAN, KODAKARA VILLAGE, -DO- TALUK. 9. UNNICHEKKAN, MADATHIPARAMBIL, THESSERI DESOM, MUKUNDAPURAM TALUK, LEGAL HEIR OF MADATHIPARAMBIL SARJOJI. 10. RAVI S/O. -DO- SAROJINI AND UNNICHEKKAN, -DO- 11. MOHANAN, S/O. -DO- -DO- 12. RAJAN, S/O. -DO- -DO- 13. AJITHA, D/O. -DO- -DO- 14. AMBUJAKSHI, W/O.CHOORAKKATTUKARA RAMAKRISHNAN, -DO- -DO- Addl. R 15 TO 20 IMPLEADED: R15: GOPALAKRISHNAN, KUNNAPPILLI DESOM, MELOOR VILLAGE, AND S/O.THUMBARATHI KORU, KODAKARA VILLAGE, MUKUNDAPURAM TALUK R16: PARAMESWARAN DO DO R17: MEERA, W/O. VENUGOPAL, OMANGALATH HOUSE, MURINYOOR P.O., CHALAKKUDY. R18: UNNIKRISHNAN, KUNNAPPILLI DESOM,MELOOR VILLAGE, AND S/O. DO. KORU, KODAKARA VILLAGE, MUKUNDAPURAM TALUK. R19: MEENU, W/O. SHAJI, CHAKKAMATHIL HOUSE, ANAPPUZHA P.O., ANAAPPUZHA, THRISSUR. R.20: SANTHOSH, KUNNAPPILLI DESOM, MELOOR VILLAGE, AND S/O.-DO-KORU, KODAKARA VILLAGE, MUKUNDAPURAM TALUK. (Addl. RESPONDENTS 15 TO 20 IMPLEADED AS THE LRS OF THE DECEASED 2ND RESPONDENT VIDE ORDER DT.20-10-2006 ON CMP 3822/2006) ADDL.R 21: JOSE KALLELY, S/O. DEVASSY KALLELY, KALLELY HOUSE, PADINJARE CHALAKKUDY VILLAGE, MUKUNDAPURAM TALUK, THRISSUR. (ADDL.R21 IMPLEADED VIDE ORDER DT.1-8-2007 IN I.A.2690/2007) ADDL.R22: VALSAN K.N., S/O. NARAYANAN, KURUPPATHUKATTIL, KOTTANELLUR, MUKUNDAPURAM TALUK. AS 382/02 -3- (ADDL.R22 IMPLEADED AS PER ORDE DT.1-2-2008 IN I.A.4514/2007.) R1, R3 TO R5, ADDL.R16 TO R18 AND R22 BY ADV. SRI.A.K.HARIDAS. ADDL.21 BY ADV. SRI.P.NARAYANAN KUTTY SRI.KRISHNA PRASAD. S THIS APPEAL SUIT HAVING BEEN FINALLY HEARD ON 01/02/2008, THE COURT ON 7-2-2008 DELIVERED THE FOLLOWING: AS 382/2002 ORDER ON CMP NO.4755/2002 & iI.A.NO.1820/2005 IN A.S.382/2002 DISMISSED. 7-2-2008. SD/- P.R.RAMAN, JUDGE. SD/- V.K.MOHANAN, JUDGE. //TRUE COPY// P.R.RAMAN & V.K.MOHANAN,JJ. ---------------------------------------------- A.S.No.382 of 2002 ---------------------------------------------- Dated, 7th February, 2008. JUDGMENT Mohanan,J. Defendant Nos. 1 to 3 in a suit for partition are the appellants herein. Respondents 1 to 5 are the plaintiffs among which respondents 1 and 2 died. Consequently respondents 15 to 20 are impleaded as the legal heirs of deceased 2nd respondent. Respondents 6 to 14 are also defendants in the above suit. As per the order dated 1.8.2007 in I.A.No.2690/2007, additional respondent No.21 was impleaded. Addl.respondent No.22 was impleaded as the legal heir of the deceased Ist respondent as per order dated 1-2- 2008 in I.A.No.4514/2007. By the judgment dated 21-12-2001 in O.S.510/1994, the suit was allowed and a preliminary decree was passed for dividing the plaint schedule properties into 8 shares by metes and bounds, out of which, plaintiffs have to be allotted with 5/8 shares. It was also declared that they are entitled to get mesne profits from the plaint AS 382/02 -:2:- schedule properties from the date of the suit till realisation. It is the above judgment and decree that is challenged in this appeal. 2. The plaint averments are that the plaintiffs and defendants 1 to 3 are the children of deceased Koru who died on 24.11.1972 and his wife predeceased him. Besides the plaintiffs and defendants 1 to 3, there are no other legal heirs of the deceased Koru and therefore, on the death of their father Koru, plaint schedule properties devolved upon the plaintiffs as well as defendants 1 to 3 who are in joint possession and enjoyment of the plaint schedule properties. It is averred that since there is no other legal heirs and that as per the Hindu Succession Act, plaint schedule properties are liable to be partitioned into 8 shares and plaintiffs are entitled to get 5 out of 8 shares. It is also averred that the defendants 1 to 3 were not amenable for partitioning the plaint schedule properties and they are taking mesne profits deriving from the plaint schedule property to the tune of Rs.21,400/- per year. Thus it is prayed for decreeing the suit for partition. While the suit was pending, defendants 4 AS 382/02 -:3:- to 12 were impleaded as supplemental defendants as per the order in I.A.3647/96 as according to the plaintiffs, the above additional defendants got assignment of the portion of the plaint schedule properties. 3. Countenancing the plaint averments and contentions, the appellants herein who are defendants 1 to 3 filed a joint written statement. It is contended that the plaintiffs have not included the entire properties belonged to the deceased Koru. According to them, the 5th defendant was in possession of 44 cents of property lying in Survey.No.2/444 in Kodakara village and non inclusion of the said property in the plaint schedule property will amount to partial partition. The main contention advanced through the written statement of defendants 1 to 3 is that after the demise of Koru, the plaintiffs demanded for their shares and accordingly, at the instance of mediators, an oral partition has taken place in the year 1974. According to defendants 1 to 3, plaintiffs 1 and 2 did not demand their share and released their right over the properties of the deceased Koru. AS 382/02 -:4:- It is also contended that in addition to the ornaments given at the time of marriage, one acre of property was purchased in favour of the Ist plaintiff towards discharge of her share in the plaint schedule properties. It is also contended that as per the request of the 2nd plaintiff, 35 cents of property in Meloor Kunnappilly village was purchased in favour of the minor son of the 2nd plaintiff. Thus according to the appellants/defendants, whatever rights the plaintiffs 1 and 2 have got in the plaint schedule properties, have been satisfied by the defendants. It is also contended that considering the value of the ornaments given at the time of marriage, plaint A schedule property was allotted to the 3rd plaintiff and B Schedule property was given to the 4th plaintiff and accordingly they are in possession of the said properties from the date of the oral partition and thereafter necessary revenue mutations were also effected. It is also contended that the expenses in connection with the marriage of the 5th plaintiff were met by the defendants and for that purposes they sold the C Schedule properties to one Babu, S/o. AS 382/02 -:5:- Parameswaran as per the oral agreement. Thus according to the appellants/defendants, considering the value of the ornaments given to the 5th plaintiff, 44 cents of land property comprised in Sy.No.444 of Kodakara village was allotted in favour of the 5th plaintiff who later sold those properties comprised in D schedule to Raju, son of Parameswaran who is in possession and enjoyment of the property. According to the defendants, the above D schedule property had not been included in the plaint schedule property. On the other hand, the plaintiff included C schedule property sold by the defendants and therefore, the suit is bad for mis-joinder and non joinder of proper parties. It is also contended by the appellants/defendants that since the property has already been partitioned by metes and bounds as per the oral partition, the suit is infructuous and as such, the same is not maintainable in law. It is also contended that the plaint schedule properties are not in joint possession and enjoyment, but the same is in the possession of the respective parties. It is also contended that the properties which allotted to the defendants AS 382/02 -:6:- were barren lands and they have made substantial improvements in those properties and the same were converted into garden land and the properties are now being used for cultivating coconut, cashew and mango trees. It is also contented that they have constructed two houses, made improvements and the property now will fetch a value of Rs.10 lakhs. Alternatively, it was also contended that if the plaint schedule properties are liable to be partitioned, they are entitled to get a value of improvements made by them in the plaint schedule properties. Apart from that they have also discharged the debts due to Dhanalakshmi Bank and Kodakara co-operative Society and therefore that portion of the liabilities have also to be considered at the time of allotment of shares of the plaintiff in the plaint schedule properties. It is also contended that as the plaintiffs have no right to get partition, they never demanded for partition. They have also contended that item No.5 of the plaint schedule was sold to one Baby and item No.6 does not belong to the deceased Koru. According to them, portions of item No.7 AS 382/02 -:7:- was given to 3rd and 4th plaintiffs and those properties are in possession of the 3rd and 4th plaintiffs. Items 1, 2, 3 and 4 of the plaint schedule properties have been allotted to defendants and they have got pattayam and subsequently item No.2 and 3 are in possession of one Narayanan and Sarojini and item No.4 is in possession of one Ambujakshi. Thus, according to the defendants, those persons who are in actual possession and ownership of the properties are not made as necessary parties and for that reason itself, the suit is liable to be dismissed. Therefore, the appellants/defendants prayed that the suit is liable to be dismissed awarding cost to them. 4. The 6th defendant has filed separate written statement contending that the plaint B schedule properties were not in the joint possession and ownership of the plaintiffs and defendants and Koru was not the owner of the said property and therefore the same is not partible. According to 6th defendant, he got the properties from one Kunju who assigned 27 and ¾ perukkam of properties infavour of 6th defendant vide document No. AS 382/02 -:8:- 2690/1985 of S.R.O. Kallettumkara for a consideration of Rs.2500/- and thus he had bona fidely purchased the properties and he was in possession, ownership and enjoyment of the same ever since 1985. It is also contended that certain other properties belonged to the Ist defendant were also assigned to certain other persons and finally the same is assigned in the name of the wife of the 6th defendant namely, Nalini who is not a party to the suit and therefore the suit is bad for non joinder of necessary party. Thus, according to them, there is no cause of action for the plaintiff to file the suit against the 6th defendant. 5. Defendant Nos. 7 to 10 filed separate and joint written statement supporting the contention of the 6th defendant. According to them, the deceased Koru never possessed item Nos. 2 and 3 of the plaint schedule properties and therefore, the plaintiffs are not entitled to get any share from it. Being the legal heirs of deceased Sarojini, the property devolved on defendants 7 to 11 and rights of 36 cents of the property lying in Kodakara village comprised in Sy.No.445 came into the AS 382/02 -:9:- possession and ownership of deceased Sarojini from the 3rd defendant. Defendants 7 and 8 assigned their rights in favour of 9th defendant vide document No.2570/94 of S.R.O. Kallettumkara. Defendants 10 and 11 also released their rights in the property in favour of the 9th defendant vide documents No.2607/1994 of S.R.O. Kallettumkara. Thus 9th defendant is the bona fide purchaser of the property and he is carrying agricultural operations in the said property. So according to this defendants, if at all the plaintiffs got any right, the same is lost by adverse possession, limitation, ouster and estoppel. So they also prayed for dismissal of the suit awarding cost in favour of them. 6. Based upon the averments contained in the plaint as well as in the written statements filed by the defendants, the trial court has formulated 6 issues for its consideration. Out of which the 3rd issue was whether the oral partition set up by the defendants is true; and the 4th issue was whether the suit properties are partible items, and if so, what is the quantum of share due to the plaintiffs? During the trial, the evidence was AS 382/02 -:10:- adduced consisting of both oral and documentary evidence. From the side of the plaintiffs, PW1 was examined whereas from the side of the defendants, DW-1 to DW-14 were examined and documentary evidence Exts.A1 to A4 were produced and marked from the side of the plaintiffs. Exts.B1 to B26 were produced and marked as documentary evidence on the side of the defendants. Three commission reports viz., namely Exts.C1 to C3 were produced and marked as court exhibits. After an elaborate consideration of the averments, the facts and evidence and materials on record, the trial court allowed the suit in favour of the plaintiffs and consequently, a preliminary decree was passed. 7. We have heard the counsel for the appellants as well as the respondents. 8. Admittedly, the plaintiffs and the appellants/defendants are the children of deceased Koru. According to the plaintiffs, the plaint schedule properties belonged to Koru and after Koru's death, they are in joint possession of the plaint schedule AS 382/02 -:11:- properties. In support of their contention and claim, they have produced Exts.A1 to A4. Ext.A3 is a partition deed and Exts.A1, A2 and A4 are the assignment deeds and those documents are sufficiently enough to hold that except item No.9, the whole properties originally belonged to deceased Koru. On the basis of the contention raised by the appellants/defendants, the plaintiffs have filed I.A.No.3647/96 and 1494/2000 and the plaint has been amended and included 2 other items of properties to the plaint schedule properties. Ext.A4 is an assignment deed executed in favour of Koru in which item No.1 is included. The other item also belonged to Koru which was inherited from his father. Admittedly, defendants 1 to 3, the appellants herein, are the brothers of the plaintiffs. The trial court, after evaluation of the evidence and considering the plea of both the plaintiffs and defendants, came to the conclusion that the entire plaint schedule properties belonged to the deceased Koru. Though defendants 6 to 10 have disputed the claim of joint possession of the plaintiffs with defendants 1 to 3, no evidence was adduced AS 382/02 -:12:- by them though they have claimed assignment of properties under item No.2 and 3 belonged to 3rd defendant. Exts.A3 partition deed would show that the properties alleged to be in the possession of defendants 6 to 10 were possessed by the deceased Koru, the father of the plaintiff as well as defendants 1 to 3. Thus the trial court has rightly came into the conclusion that the entire plaint schedule properties except item No.9 belonged to deceased Koru who is the father of the plaintiffs and defendants 1 to 3. 9. It is relevant to note that the defendants have no contention that the plaint F schedule properties do not belong to deceased Koru. On the other hand their contention was that after the death of Koru there was an oral partition dividing the properties and allotting the due shares to the plaintiffs. Thus the properties belong to the common ancestor and the parties are the legal heirs entitled to inherit the properties is beyond dispute. The plaintiff amended item No.6 and incorporated new schedule which according to them obtained by deceased Koru as per AS 382/02 -:13:- Ext.A4 document. Though defendants 7 to 10 have taken a contention that item Nos.2 and 3 are not partible as the same is not Koru's property, but the defendants 1 to 3 did not adduce any evidence to substantiate such contention. Thus based upon unimpeachable evidence supported by both oral and documentary and especially in the absence of any concrete evidence from the part of the defendants, the trial court has held that the entire plaint schedule properties belonged to Koru and are partible items among the legal heirs of deceased Koru. 10. Another important contention raised by defendants 1 to 3 that there was an oral partition in their family and properties were allotted to the sharers. Regarding the oral partition, except the bald averments and claim in the written statement, there is no reliable evidence , either documentary or oral, produced to substantiate the claim of oral partition. Though on the side of defendants, DWs.9 and 12 were examined to prove the oral partition, their deposition was not sufficient to substantiate the case of the defendants. When PW-1 was examined, she had AS 382/02 -:14:- deposed in terms of the plaint and denied oral partition as claimed by the defendants 1 to 3. Though she was cross examined extensively, nothing was brought out to support the case of the defendants regarding oral partition. In chief examination, DW-9 has categorically stated that it is not correct to say that himself and his brother in law one Parameswaran and certain other persons measured and partitioned the property. He had further stated that it is not correct to say that Valiyaparambil Krishnankutty measured the property. To a pointed question as to whether he had seen measuring the property by one Krishnankutty, his answer was negative. In the chief examination, PW-10 stated that he does not know regarding the partition of the property of Koru. During cross examination of DW 10, it is brought out that he was not aware of the details of the partition, if any. The deposition of DW-11 seems to be an interested testimony as he wants to protect the interest of his son for which he had deposed in favour of defendants 1 to 3. DWs 7, 8 and 12 are also interested witnesses. Thus, the AS 382/02 -:15:- appellants have miserably failed to substantiate the oral partition either on adducing oral evidence or any documentary evidence. None of the documents produced by the defendants are capable of revealing anything regarding the alleged oral partition with respect to the plaint schedule properties. Thus, the pleadings of oral partition raised by the defendants is not proved by adducing cogent and acceptable evidence. 11. Another contention raised by the defendants is that they have got exclusive possession of the plaint schedule property. But the defendants have miserably failed to substantiate such a plea and no reliable and cogent evidence adduced to substantiate such plea. It is also contended by the defendants that they have paid consideration for the release of the rights of the plaintiffs 1 and 2 over the plaint schedule properties. It is also their case that they gave gold ornaments to other plaintiffs in consideration of their due shares. In order to substantiate the above averments and claim, no evidence is adduced. Even in Exts.B1 and B2 documents, the reasons for the AS 382/02 -:16:- sale is not mentioned. Thus it can be seen that there is a total failure on the part of the defendants in substantiating their contention that they were in exclusive possession or they have paid consideration for the release of the rights of plaintiffs 1 and 2 and also claim of paying gold ornaments to the other claimants. 12. During the course of hearing of the above appeal, the learned counsel appearing for the appellants took us through the evidence of the witnesses and also through the documents as a part of his attempt to substantiate the claim of the defendants regarding the oral partition. As stated earlier, the trial court has come into a definite conclusion based upon the evidence and materials on record that the plaint schedule properties as evidenced by Exts.A1 to A4 belonged to deceased Koru which are liable to be partitioned among his legal heirs namely the plaintiffs and defendants 1 to 3. The contention of the defendants 1 to 3 regarding the oral partition failed as they have failed to substantiate this plea by acceptable evidence. None of the AS 382/02 -:17:- documents produced by the defendants are revealing any fact regarding the oral partition. In the absence of any such concrete and cogent materials or evidence, we do not find any reason to interfere with the finding arrived on by the trial court regarding the plaintiff's right for partition and the finding against appellants/defendants, especially, regarding the oral partition. 13. In the result, the appeal fails and accordingly, the same is dismissed and we confirm the judgment of the court below and the preliminary decree passed by it. Parties are directed to suffer their respective costs. P.R.RAMAN, JUDGE. V.K.MOHANAN, JUDGE. kvm/- AS 382/02 -:18:- P.R.RAMAN & V.K.MOHANAN,JJ. A.S. No.382 OF 2002 Judgment Dated:7-2-2008. AS 382/02 -:19:- C.O. SECTION Please post the following case for judgment by Hon'ble Mr. Justice AS 382/02 -:20:- V.K.Mohanan at 10.15. a.m. on 7-2-2008 in court No.3 B, heard by P.R.R & V.K.M,JJ and reserved by V.K.M,J.). 1. A.S.No.382 of 2002 (reserved on 1-2-2008) K.V.MARY, P.S.TO JUDGE. 6-2-2008.