IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR MONDAY, THE 8TH FEBRUARY 2010 / 19TH MAGHA 1931 SA.No. 635 of 1996(A) --------------------- AS.87/1990 of SUB COURT, TIRUR OS.305/1987 of MUNSIFF'S COURT,PARAPPANANGADI .................... APPELLANT(S): RESPONDENT/PLAINTIFF -------------------------------------------- ARIKKADAN AHAMMEDKUTTY S/O.ALAVI, RESIDING AT ABDURAHIMAN NAGAR AMSOM AND DESOM IN TIRUR TALUK. BY ADV. SRI.T.G.RAJENDRAN SRI.CIBI THOMAS RESPONDENT(S): APPELLANTS/DEFENDANTS -------------------------------------------------- 1. KARUNTHOTTATHIL MUHAMMEDKUTTY S/O.KUTTIAMU, RESIDING AT ABDURAHIMAN NAGAR AMSOM DESOM.(DIED.LRS RECORDED AND IMPLEADED) 2. VAPPATTIL KUNHIKATHIYA, W/O.MUHAMMEDKUTTY, RESIDING -DO- ADV. SRI.T.KRISHNANUNNI (SENIOR) FOR R2 SUPPLEMENTAL RESPONDENT. 3. RUKHIYA RESIDING AT ABDUL RAHIMAN AMSOM DESOM. 4. SAREENA, RESIDING -D0- 5. HASEENA, RESIDING -D0- 6. SAKKEENA, RESIDING -D0- 7. ABID, RESIDING -D0- 8. KUTTIAMU, RESIDING -D0- 9. AYISHA, RESIDING -D0- THE SECOND RESPONDENT IS RECORDED AS LEGAL REPRESENTATIVE OF DECEASED FIRST RESPONDENT AND SUPPLEMENTAL RESPONDENTS 3TO 9 ARE IMPLEADED AS THE LRS OF DECEASED 1ST RESPONDENT AS PER ORDER DATED 28/10/02 IN CMP 437/2000. THIS SECOND APPEAL HAVING BEEN FINALLY HEARD ON 8/ 2 / 2010, THE COURT ON 08/02/2010 DELIVERED THE FOLLOWING: M.SASIDHARAN NAMBIAR,J. =========================== S.A.No. 635 OF 1996 =========================== Dated this the 8th day of February,2010 JUDGMENT Appellant instituted O.S.305/1987 before Munsiff Court, Parappanangadi seeking partition and separation of one half share in the plaint schedule property. Plaint schedule property is 27 cents in in R.S.476/4 of Kodumayoor Village, which was renamed as Abdurahiman Nagar. Plaint schedule property admittedly originally belonged to Beevi Umma. Beevi Umma had two daughters and one son. Kunhikathiya and Ayisakutty are the daughters. Alavi is the son. Appellant contended that though Kunhikathiya and Ayisakutty transferred their right obtained on the death of Beevi Umma under Exts.B1 and B2, it is only their one half right in the property and the remaining one half right vests with Alavi, the son who died S.A.635/1996 2 subsequently and on his death as a bachelor, his rights also devolved on Kunhikathiya and Ayisakutty who in turn assigned it in favour of the appellant under Ext.A1 sale deed dated 18.9.1987 and he is entitled to get that one half share separated. 2. Respondents resisted the suit contending that Alavi pre-deceased Beevi Umma and therefore on the death of Beevi Umma, her right devolved only on Kunhikathiya and Ayisakutty. Kunhikathiya under Ext.B2 assigned her half right in favour of respondents and Ayisakutty under Ext.B1 assigned her half right in favour of Pathumma who in turn under Ext.B3 assigned it in favour of respondents and therefore respondents have absolute right over the property and appellant did not derive any right under Ext.A1 and therefore the suit is only to be dismissed. 3. Learned Munsiff on the evidence of Pws.1 to 3 Ext.A1 and Exts.B1 to B5 found that if Alavi was alive, when Beevi Umma died, the daughters of Beevi S.A.635/1996 3 Umma, viz., Kunhikathiya and Ayisakutty, would derive only their ¼ share each and the remaining one half would devolve on Alavi and on his death later it would devolve on Kunhikathiya and Ayisakutty and the burden to prove that Alavi pre- deceased Beevi Umma is on the respondents. It was argued that there is a presumption that the eldest died first and so it is to be presumed that Alavi died subsequent to the death of Beevi Umma and if so appellant is entitled to one half share and granted a preliminary decree for separation of the half share. Respondents challenged the judgment before Sub court, Tirur in A.S.87/90. Learned Sub Judge on reappreciation of evidence found that the burden is on the appellant to establish that Alavi was alive when Beevi Umma died and there is no evidence to prove that Alavi was alive when Beevi Umma died. Learned Sub Judge took note of the fact that both in Exts.B1 and B2 in 1974 the daughters have asserted that on the death of Beevi Umma, her S.A.635/1996 4 right devolved only on them. It was argued that in the absence of evidence to prove that Alavi was alive at the time when Beevi Umma died, appellant cannot claim one half right in the property. Learned Sub Judge also found that under Exts.B1 and B2 Kunhikathiya and Ayisakutty transferred their entire rights in the property proclaiming that on the death of Beevi Umma only they obtained her rights. It was that right which was purchased by respondents under Exts.B1 and B2 and therefore in any case applying the principles provided under section 43 of Transfer of Property Act, even if Alavi died subsequently and Kunhikathiya and Ayisakutty derived the rights of Alavi, respondents would derive that right also and hence under Ext.A1 appellant will not get any right to the property. The appeal was allowed and the preliminary decree of the trial court was set aside and the suit was dismissed. Second appeal is filed challenging the judgment of the first appellate S.A.635/1996 5 court. 4. Though notice was issued in the second appeal on 17.9.1996, no substantial question of law was formulated. 5. Learned counsel appearing for the appellant and the learned senior counsel appearing for the respondents were heard. 6. As no substantial question of law was formulated when notice was issued, it is to be decided whether any substantial question of law is involved in the appeal. 7. Plaint schedule property admittedly originally belonged to Beevi Umma. Beevi Umma died. On 28.10.1974 Kuhikathiya and on 26.12.1974 Ayisakutty the daughters executed Exts.B1 and B2 assignment deeds respectively, asserting that on the death of Beevi Umma her right devolved only on the two daughters who succeeded her and under Exts.B1 and B2 that right was transferred. Appellant is claiming right in the plaint schedule S.A.635/1996 6 property based on Ext.A1 assignment deed executed by the very executants of Exts.B1 and B2. What is stated in Ext.A1 is that on the death of Beevi Umma her right devolved on Kunhikathiya, Ayisakutty and Alavi the brother and on the death of Beevi Umma all of them derived her right and subsequently the whereabouts of Alavi is not known since 1970 and he is believed to be dead and therefore his rights also devolved on Kunhikathiya and Ayisakutty and though their individual rights were originally transferred under Exts.B1 and B2, the right devolved on them from Alavi, was transferred under the document to the appellant. Appellant could claim right in the plaint schedule property only if Alavi died subsequent to the death of Beevi Umma and that too after Exts.B1 and B2. Even if Alavi died subsequent to the death of Beevi Umma, if he died prior to the execution of Exts.B1 and B2, on the date of Exts.B1 and B2 only Kunhikathiya and Ayisakutty are the co-owners of all the S.A.635/1996 7 properties . Therefore as stated in Exts.B1 and B2, their entire rights were transferred to the defendant and Pathumma, who in turn assigned their right under Exts.B1 and B3. Therefore it is definitely on the appellant to establish that Alavi was alive on the death of Beevi Umma the mother and also after execution of Exts.B1 and B2. 8. In chief examination appellant has no case about the death of Alavi. He only claimed a share on the ground that under Ext.A1 he got half right. PWs 2 and 3 were examined to prove that Alavi was alive when Beevi Umma died. Though PWs. 2 and 3 deposed that Alavi was there when Beevi Umma died,their evidence do not inspire any confidence. In fact the assignors under Ext.A1, Kunhikathiya and Ayisakutty, could have thrown light into the controversy. Appellant could have examined them, if in fact Alavi was alive subsequent to the death of Beevi Umma and also execution of Exts.B1 and B2. If Kunhikathiya and Ayisakutty were examined, S.A.635/1996 8 respondents would have obtained an opportunity to cross examine them with reference to the averments in Ext.B1 and B2 asserted by them. On the death of Beevi Umma her right devolved on the daughters. Ext.A1 assignment deed was executed later stating that Alavi was also one of the legal heirs on whom derive their right also devolved on them. When the appellant failed to establish that Alavi was alive on the death of Beevi Umma, under Ext.A1 he cannot claim any right as by Exts.B1 and B2 the entire rights which devolved on Kunhikathiya and Aiyasakutty were transferred in 1974 itself. Moreover, as rightly found by the courts below, under Exts.B1 and B2 the daughters assigned their rights asserting that they are the only owners and their half right is being transferred to the defendants and Pathumma. 9. As rightly pointed out by the learned counsel appearing for the respondents, the principle provided in Section 21 of the Hindu S.A.635/1996 9 Succession Act could not have been applied, as done by the trial court, as it is applicable only to Hindus and that too in case of simultaneous death alone. Hence there is no rule or law to presume that Alavi died subsequent to the death of Beevi Umma. As it is for the appellant to prove that when Beevi Umma died, Alavi was alive and it is not proved, appellant cannot claim any right under Ext.A1. 10. Moreover, the principles embodied in Section 43 of Transfer of Property Act would definitely come into play, if subsequently Alavi died having one half right and that right also devolved on Kunhikathiya and Ayisakutty and on that ground also appellant cannot claim any right in the plaint schedule property as her rights were transferred under Exts.B1 and B2, by the assignors under Ext.A1 more than 13 years prior to the execution of Ext.A1. In such circumstances, I find no substantial question of law is involved in the S.A.635/1996 10 appeal. Appeal is dismissed. No cost. M.SASIDHARAN NAMBIAR JUDGE tpl/- M.SASIDHARAN NAMBIAR, J. --------------------- W.P.(C).NO. /06 --------------------- JUDGMENT SEPTEMBER,2006