IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.L.JOSEPH FRANCIS WEDNESDAY, THE 10TH JUNE 2009 / 20TH JYAISHTA 1931 AS.No. 38 of 1998() ------------------- OS.130/1994 of I ADDL.SUB COURT, KOZHIKODE .................... APPELLANTS/PLAINTIFFS: ------------------------------------- 1. VALSALA, W/O. THYTHOTTATHIL MEETHAL SREEDHARAN, D/O. EDATHIL PADMANABHAN, OLAVANNA VILLAGE, IRINGALLUR DESOM KOZHIKODE TALUK. 2. EDATHIL DEVANANDAN, RESIDING AT THANDAMADAMPARAMBIL HOUSE OLAVANNA VILLAGE, OLAVANNA DESOM KOZHIKODE TALUK. BY ADV. SRI.K.P.DANDAPANI, SENIOR ADVOCATE RESPONDENTS/DEFENDANTS: -------------------------------------------- 1. SARADA, W/O. EDATHIL PADMANABHAN, 60 YEARS, D/O. RAMAN, CHERUVANNU VILLAGE NALLALAM DESOM, KOZHIKODE TALUK. 2. EDATHIL PREMAN, RESIDING AT CHITTICHAN KANDY PARAMBIL HOUSE S/O. PADMANABHAN, AGED 32 YEARS, COOLI CHERUVANNU VILLAGE, NALLALAM DESOM KOZHIKODE TALUK. 3. VARIYAM PARAMBATH LATHA, D/O. PADMANABHAN AGED 27 YEARS, RESIDING AT EDATHIL HOUSE CHELAVOOR VILLAGE, MAYANAD AMSOM KOZHIKODE TALUK. BY ADV. SMT.LEKHA SURESH THIS APPEAL SUITS HAVING BEEN FINALLY HEARD ON 03/06/2009, THE COURT ON 10/06/2009 DELIVERED THE FOLLOWING: M.L. JOSEPH FRANCIS, J. - - - - - - - - - - - - - - - - - - - - - - A.S.No. 38 of 1998 - - - - - - - - - - - - - - - - - - - - - - Dated this the 10th day of June, 2009 JUDGMENT This appeal is filed by the plaintiffs 1 and 2 in O.S.No. 130 of 1994 on the file of the Sub Court, Kozhikode. Respondents 1 to 3 are the defendants in that suit. O.S.No. 130 of 1994 is a suit for partition. 2. The case of the plaintiffs is briefly as follows: Plaint A schedule is the genology. Plaint B schedule is the property having an extent of 20 ½ cents belonging to Edathil Padmanabhan as per Kanam Assignment Deed No.680 of 1947. The appellants herein are children of deceased Padmanabhan. The first defendant is the second wife of Padmanabhan and defendants 2 and 3 are their children. Padmanabhan died in September 1992. The plaintiffs are entitled to get two shares out of five shares A.S.No. 38 of 1998 2 over the plaint B schedule property. Since the defendants refused to give the share, the plaintiffs filed the above suit for partition. 3. The defendants filed written statement denying the claims of the plaintiffs over the entire B schedule property. They contended that an extent of 5 ½ x 11 (6ft. kole) was already purchased by the first defendant from Padmanabhan as per Assignment Deed dated 14.1.1958. The first defendant purchased 7.8 cents from Padmanabhan as per Sale Deed No.2520 of 1992. Therefore, that portion of properties covered by the above two documents is not available for partition. 4. In the Sub Court, PWs. 1 and 2 and DWs. 1 and 2 were examined and Exts. A1, A2 and B1 to B6 were marked. The learned Sub Judge, on considering the evidence, passed a preliminary decree for partition allowing the plaintiffs to get 2/5 shares over the plaint B schedule property, exempting the properties covered by Exts.B1 and B2 documents. The plaintiffs A.S.No. 38 of 1998 3 are entitled to get mesne profits from the date of suit till recovery of their share from the first defendant and the question of mesne profits will be decided in the final decree proceedings. Against that judgment and decree the plaintiffs filed this appeal. 5. Heard the learned counsel for the appellants and the learned counsel for the respondents. 6. The above suit is filed for partition of plaint B schedule property having an extent of 20 ½ cents. There is no dispute that the plaintiffs and defendants 2 and 3 are the children of late Edathil Padmanabhan. The first defendant is the second wife of Padmanabhan. Plaint B schedule property originally belonged to Padmanabhan as per Kanam Assignment Deed No.680 of 1947. Ext.A1 is the copy of that document. Padmanabhan died on 11.1.1992. There is no dispute that Padmanabhan got jenm right over plaint B schedule property as per proceedings of Beypore Land Tribunal. The learned counsel for the appellants argued A.S.No. 38 of 1998 4 that the plaintiffs and defendants have equal right over entire B schedule property and plaintiffs are entitled to get 2/5 shares and that the lower court went wrong in excluding the property covered by Exts.B1 and B2 from partition. 7. The contention of the defendants is that Edathil Padmanabhan assigned a portion of the property from plaint B schedule property measuring 5 x 11 ½ (6 ft. koles) in favour of the first defendant as per Ext.B1 Kanam Assignment Deed dt.14.1.1958 and thereafter the first defendant purchased 7.8 cents from plaint B schedule property from Padmanabhan as per Ext.B2 jenm Assignment Deed dt. 29.7.1992 and that after deducting the portion of property covered by exts.B1 and B2, the remaining portion in plaint B schedule property is available for partition. 8. The plaintiffs have not filed any suit for cancellation of Exts.B1 and B2 documents. Since the plaintiffs are challenging the validity of Exts.B1 and B2, the burden is on the plaintiffs to A.S.No. 38 of 1998 5 prove that those documents are vitiated by fraud or undue influence. The first defendant is not under any obligation to show that Exts.B1 and B2 Assignment Deeds executed in her favour are valid documents executed for consideration. The legal presumption about the validity of registered Deeds is not disturbed by any evidence on record. During the life time of Padmanabhan he had not challenged the validity of Exts.B1 and B2 Assignment Deeds. In Ext.B2, the sale consideration is shown as Rs.15,000/- DW1 swears that deceased Padmanabhan was having a debt of Rs.5,000/- and he had borrowed money to meet the marriage expenses of his daughters. DW1 deposed that Padmanabhan had availed a loan from Feroke Service Co- operative Bank and that liability was discharged by the first defendant. Ext.B4 is a pass book issued from that bank showing that the loan availed by Padmanabhan was discharged by the first defendant. Ext.B2 would show that Padmanabhan has registered A.S.No. 38 of 1998 6 that Sale Deed in Sub Registrar's Office after accepting sale consideration of Rs.15,000/- The execution of Ext.B2 by Padmanabhan in the Sub Registrar's office would disprove the case of the plaintiffs that Padmanabhan had no physical capacity or mental capacity to execute any document. 9. The plaintiffs have no case that Exts.B1 and B2 are forged documents. Since Exts.B1 and B2 are valid documents executed by Padmanabhan in favour of the first defendant, that portion of the property covered by those documents is not available for partition and the remaining portion of plaint B schedule property is only available. Therefore, I am of the view that the learned Sub Judge is perfectly justified in passing a preliminary decree for partition of plaint B schedule, excluding the portions covered by Exts.B1 and B2. Therefore, I find no reason to interfere with the judgment and preliminary decree for partition. A.S.No. 38 of 1998 7 10. In the result, the appeal is dismissed. The judgment and decree in O.S. No. 130 of 1994 on the file of the Sub Court, Kozhikode is confirmed. The parties are directed to suffer their respective cost in the appeal. (M.L. JOSEPH FRANCIS) Judge tm