IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE HARUN-UL-RASHID WEDNESDAY, THE 8TH DECEMBER 2010 / 17TH AGRAHAYANA 1932 SA.No. 679 of 1999(E) ------------------------------- AS.55/1997 of III ADDL.SUB COURT, KOZHIKODE OS.467/1994 of PRL.MUNSIFF COURT, KOZHIKODE-I .................... APPELLANT(S): RESPONDENT IN AS. /PLAINTIFF IN OS. -------------------------------------------------------------------------------- JAGATHAMBIKA, AGED 40 YEARS, D/O. THEYVANA @ DEVAYANI, RESIDING AT PADINHARE MALIKAPURAYIL HOUSE, NAGARAM AMSOM DESOM OF KOZHIKODE. BY ADV. SRI.R.K.MURALEEDHARAN RESPONDENT(S): APPELLANT IN AS. /DEFENDANT IN OS. ----------------------------------------------------------------------------------- *CHANDRAN, AGED 62 YEARS, S/O. KUNHAN PILLAI, RESIDING AT PADINHARE MALIKAPURAYIL HOUSE, NAGARAM AMSOM DESOM OF KOZHIKODE. *ADDL. 2 TO 7 IMPLEADED. 2. REMA, AGED 55 YEARS, W/O. LATE CHANDRAN RESIDING AT PADINHARE MALIKAPURAYIL HOUSE, NAGARAM AMSOM DESOM OF KOZHIKODE TLAUK. 3. GETHALAKSHMI, AGED 35 YEARS, D/O. LATE CHANDRAN RESIDING AT DO. DO. 4. BABU SELVARAJ, AGED 33 YEARS, S/O. LATE CHANDRAN, RESIDING AT DO. DO. 5. MANOJ, AGED 30 YEARS, S/O. LATE CHANDRAN RESIDING AT DO. DO. 6. SINDHU, AGED 27 YEARS, S/O. LATE CHANDRAN, RESIDING AT DO. DO. tss S.A. NO.679/1999 7. MADHU, AGED 24 YEAR, S/O. LATE CHANDRAN, RESIDING AT DO. DO. SUPPLEMENTAL RESPONDENTS 2 TO 7 ARE IMPLEADED LR'S OF DECEASED SOLE RESPONDENT AS PER ORDER DT. 27.7.09 ON IA. 480/2003. BY ADV. SRI.K.P.BALASUBRAMANYAN SRI.S.NIRMAL THIS SECOND APPEAL HAVING BEEN FINALLY HEARD ON 08/12/2010 , THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: tss ORDER ON CMP. NO.1857/1999 & IA. NO.489/2008 IN SA. NO.679/1999 DISMISED 08/12/2010 SD/- HARUN-UL-RASHID, JUDGE TRUE COPY P.A. TO JUDGE tss HARUN-UL-RASHID, J. ------------------------ S.A.No.679 Of 1999 ---------------------- Dated this the 8th day of December, 2010. J U D G M E N T The following substantial questions of law are formulated in the appeal. a) What is the legal effect of the Kerala Joint Hindu Family System (Abolition ) Act in the facts and circumstances of the case in hand? b) Whether the person can bequeath or settle the rights regarding the property against the statutory principles of law? c) What is the effect of a decree if it does not say anything regarding a prayer made in the plaint, while decreeing the suit? d) Whether a person can seek a relief against that portion of a decree which is against him without filing a cross appeal? 2. The plaintiff in O.S.No.467 of 1994 on the file of the Principal Munsiff Court, Kozhikode is the appellant. The appeal is directed against the decree and judgment in A.S.No.64 of 1997 on the file of the III Additional Sub Judge, Kozhikode. The appellant as plaintiff filed the suit for partition claiming one half share in the plaint schedule property. The trial court passed a S.A.No.679 Of 1999 ::2:: preliminary decree in terms of the plaint. The lower appellate court set aside the decree and judgment passed by the trial court and dismissed the suit. 3. The sole defendant in the suit is the maternal uncle of the plaintiff. The property scheduled as item No.1 in Ext.B2 registered nischayapathram No.8/1912. The plaint schedule property and other items originally belong to Swami Pillai. The plaintiff and defendant are claiming right over the property from their ancestress Parvathy @ Chellamma. Plaintiff is the daughter of Devayani. Devayani and defendant are the two children of Parvathy @ Chellamma. Plaintiff is married and having one daughter. The defendant is also residing in the same house with his family. The plaintiff apprehend that the defendant may at any time oust her from the plaint schedule property. Therefore the suit was filed for partition of one half share and for perpetual injunction to restrain the defendant from forcefully vacating the plaintiff from the house situated in the plaint schedule property. 4. The defendant contended that the plaintiff is not the daughter of Parvathy @ Chellamma. it is further contended that S.A.No.679 Of 1999 ::3:: the plaint schedule property is not available for partition going by the recitals in Ext.B2 nischayapathram 5. The trial court as well as the appellate court examined the status of the plaintiff. The courts concurrently held that the plaintiff is the daughter of Devayani and that Devayani is the daughter of Parvathy @ Chellamma, who is the common ancestress of the plaintiff and defendant. Since the status of the plaintiff was decided on the basis of the oral and documentary evidence and since the finding is a pure question of fact, this Court do not propose to go into the question again. The finding that the plaintiff is the daughter of Devayani is therefore confirmed. 6. The further question decided by the courts below is as to whether the plaint schedule property is available for partition, division by metes and bounds and whether it is capable of giving separate possession of the share of the plaintiff. The trial court extended the relief to the plaintiff and granted a decree for partition. The appellate court reversed the findings and held that the plaint schedule property is not partible. S.A.No.679 Of 1999 ::4:: 7. It is not disputed that late Swami Pillai acquired plaint schedule property as per Ext.B1 document. Ext.B2 is the document relied on by the plaintiff to substantiate her claim for partition. The lower appellate court observed that a reading of Ext.B1 would disclose that the plaint schedule property would enure to the benefit of those descendants of Chellamma and that Ext.B2 further stipulates that when there are no descendants as aforesaid the property would enure to the benefit of Siva Temple founded by Swami Pillai. Nobody can dispute the recitals in Ext.B2 deed. In Ext.B2 it is also stipulated that the property is not susceptible for partition and division and that the beneficiaries (descendants) have only a right of enjoyment, such as residence etc. The document further stipulate that the eldest member will have the right of management of the property and the income from the property shall be utilised for the maintenance of it and surplusage if any shall be utilised for the life expenditure of the beneficiaries. Alienation of the property was also restricted except under pressing circumstances. The appellate court after reading the recitals in the document S.A.No.679 Of 1999 ::5:: concluded that the plaintiff does not acquire any right to sue and obtain partition as prayed for. The court also found that though the document is styled as nischayapathram if the effect of the document is appreciated it can have only the characteristics of a will. 8. The appellate court also observed that though the suit is for the relief of partition and also for permanent prohibitory injunction for which separate relief as well as court fee has been paid, the trial court has not framed any issue regarding the relief of injunction. The learned counsel for the appellant submitted that the temple constructed by late Swami Pillai is in a dilapidated condition and that nobody is administering the temple and attending the maintenance work of the temple. The plaint schedule property is being used by the plaintiff and legal heirs of the defendant. The learned counsel submitted that the plaintiff was not allowed to reside in the main part of the building and she is residing only in a portion of the building. The suit was filed at a time when she apprehended threat of eviction from the legal heirs of the original defendant. The learned counsel also S.A.No.679 Of 1999 ::6:: challenged the finding of the appellate court that Ext.B2 is a will. Trial court did not go into the question as to the nature of the document. The trial court passed a preliminary decree for partition finding that the plaintiff is entitled to sue for partition. The lower appellate court read and interpreted Ext.B2 and held that the property is not available for partition. Learned counsel pointed out that both courts did not go into the question as to whether the plaintiff is entitled to the relief of injunction. Plaintiff contended that her relatives who are the legal heirs of the deceased original defendant are causing obstruction to the peaceful enjoyment of the plaint schedule property. Going by Ext.B2 deed all the descendants including the plaintiff are entitled to reside and settle in the plaint schedule property. It is for the court to interpret Ext.B2 document as to whether it is a will or it is a settlement deed. So long as nobody is maintaining the temple and nobody is administering the temple the court may go into the question as to whether the property can be partitioned between the sharers. The impact of the recitals shows that the intention of Swami Pillai is to dedicate the property to the temple S.A.No.679 Of 1999 ::7:: subject to the conditions stipulated in Ext.B2. The case shall be decided in view of the subsequent development which would go to show that the parties abandoned the temple and sold three other items set apart in Ext.B2. In the circumstances the matter shall be examined by the trial court afresh. In the result, the appeal is allowed. The judgment and decree passed by the lower appellate court is set aside. The case is remanded for fresh consideration. Parties are at liberty to adduce further evidence, if so advised. Parties are directed to appear before the court below on 6.1.2011. No order as to costs. HARUN-UL-RASHID, Judge. bkn/-