IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH TUESDAY, THE 17TH NOVEMBER 2009 / 26TH KARTHIKA 1931 RSA.No. 973 of 2009() --------------------- AS.128/2008 of SUB COURT, PERUMBAVOOR OS.135/2006 of MUNSIFF COURT, PERUMBAVOOR .................... APPELLANT/APPELLANT/PLAINTIFF: ------------------------------------- AMBIKA W/o. VIJAYAN NADAN NAIR AKAMPILLY HOUSE PERUMBAVOOR VILLAGE PERUMBAVOOR KARA, ERNAKULAM DISTRICT BY ADV. SRI.BIJU .C. ABRAHAM RESPONDENTS/RESPONDENTS/DEFENDANTS: ---------------------------------------- 1. APPUKUTTAN NAIR, S/o. MADHAVAN NAIR DEEPA MANDIRAM, KOOVAPPADY 2. RAMACHANDRAN, S/o. MADHAVAN NAIR MUNDACKAL HOUSE, CHELAMATTAM KARA, PERUMBAVOOR VILLAGE 3. VISWANATHAN, S/o. MADHAVAN NAIR VISWAS HOUSE, PULLUVAZHY KARA RAYAMANGALAM 4. RAVEENDRAN, S/o. MADHAVAN NAIR VISWAS HOUSE, DESAM KARA ALUVA WEST VILLAGE THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 17/11/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: THOMAS P JOSEPH, J. ---------------------------------------- R.S.A.No.973 of 2009G --------------------------------------- Dated this 17th day of November, 2009 JUDGMENT The second appeal arises from judgment and decree of learned Sub Judge, Perumbavoor in A.S.No.128 of 2008 confirming dismissal of the suit for prohibitory injunction in O.S.No.135 of 2006 of the Court of learned Munsiff, Perumbavoor. Respondent claimed that the suit property along with other items belonged to Bhavaniamma and others as per Ext.A2, partition deed No.1445 of 1952 and while so, she executed Ext.A10, Will No.106/1990 in favour of appellants husband, Vijayan Nair in respect of the 1/8th share of Bhavaniamma in the entire 24 cents. Vijayan Nair executed Ext.A1, settlement deed in favour of appellant and others. Appellant claimed to be in possession and enjoyment of the suit property which is described as 3.24 ares (8 cents). Respondents who are the other sharers in the family property contended that description of the plaint schedule is not correct and that the entire suit property did not belong to the appellant. Property was acquired by Bhavaniamma for the thavazhi of herself, respondents and husband of appellant as per Ext.A2. They followed Marumakkathayam law of succession. Respondents learned about Ext.A10, Will only after the suit. At any rate, they contended, Bhavaniamma alone was not competent to dispose of the property as per the Will and the settlement deed. Courts below found that R.S.A.No.973 of 2009 2 appellant could not lay hands on 3.24 ares (8 cents) as Bhavaniamma was not competent to transfer by way of Will that much extent of property and consequently dismissed the suit holding that respondents are also co-owners of the suit property. That verdict is under challenge in this second appeal. It is contended by learned counsel that the property bequeathed to the husband of appellant took in virivu as well and thus there happened to be an excess land in the possession of the appellant. 2. It is not disputed that property was acquired as per Ext.A2 for the thavazhi consisting of Bhavaniamma and others. The property thus acquired is 24 cents. Bhavaniamma executed Ext.A10, Will in respect of her 1/8th share in favour of the husband of the appellant. Courts below found that as per the said Will husband of the appellant would get only 1/8th share of 24 cents. It is also an admitted fact that of the 24 cents, 20.22 cents was subsequently sold and the balance is only 4 cents. Courts below found that even if as per the Will husband of appellant got 1/8th share of the total of 24cents, entitlement of husband of the appellant and thereafter of the appellant is only 3 cents whereas property described in the plaint schedule is 3.24 ares (8 cents). Now the contention is that what was bequeathed to husband of appellant is the property and the way. That contention cannot prevail since Bhavaniamma can only bequeath the share she had in the R.S.A.No.973 of 2009 3 property, i.e., 1/8th share. Courts below found that appellant is seeking relief with respect to a larger area than to which she is otherwise entitled and accordingly, refused to grant relief. Having regard to the contentions raised by the parties, on going through the judgment under challenge and hearing learned counsel, I do not find any substantial question of law involved in the matter requiring admission of the second appeal. Second appeal is dismissed accordingly. THOMAS P JOSEPH, JUDGE Sbna/