IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN WEDNESDAY, THE 16TH JUNE 2010 / 26TH JYAISTHA 1932 AS.No. 227 of 2000(A) ------------------------------- OS.256/1992 of ADDL.SUB COURT, PALAKKAD .................... APPELLANTS/DEFENDANTS 1 TO 4 AND 6 TO 8: -------------------------------------------------------------------- **1. P.A. MADHAVAN, AGED 64 YEARS, S/O.ARUMUGHAN.**(DIED) 2. P.M. GOPALAKRISHNAN, AGED 33 YEARS, S/O.MADHAVAN. 3. SIVADAS, AGED 35 YEARS, S/O.LAKSHMANAN. 4. MOHANAN, AGED 32 YEARS, S/O.LAKSHMANAN. 5. CHANDRIKA, AGED 30 YEARS, S/O. RAJAGOPALAN. 6. RENUKA, AGED 28 YEARS, W/O.MOHAN. 7. KALYANI, AGED 60 YEARS, W/O. LAKSHMANAN. APPELLANTS 1 TO 5 AND 7 ARE RESIDING AT VEPPANKOTTIL, VADAKKANTHARA AMSOM, PALAKKAD TALUK. APPELLANT NO.7 IS RESIDING AT EZHUTHASSAN VEETTIL, PUTHUR AMSOM, PALAKKAD TALUK. BY ADV. SRI.O.RAMACHANDRAN NAMBIAR SMT.D.G.BINDU MOL RESPONDENTS/PLAINTIFFS & DEFENDANTS 5, 9 TO 12: -------------------------------------------------------------------------------- 1. P. ARUCHAMI, AGED 54 YEARS, S/O. PONNU. 2. P. VELAYUDHAN, AGED 50 YEARS, S/O.PONNU. ***3. P. MOHANDAS, AGED 36 YEARS, S/O.PONNU. ***(DIED) RESIDING AT PALLIKANDATHUVEETTIL, VELANKOTTIL, VADAKKANTHARA AMSOM, PALAKKAD TALUK. 4. P. THANKA, AGED 56 YEARS, W/O.K.V. PAZHANIYAPPA KARAMPOTTA, KOZHINJAMPARA VILLAGE, CHITTUR TALUK. 5. P. JANAKI, AGED 46 YEARS, W/O.ARUMUGHAN, ENNAPADATHU, KOTTEKAD AMSOM, PALAKKAD. AS.No. 227 of 2000(A) 6. P. OMANA, AGED 34 YEARS, W/O.P. VELAYUDHAN, PARA, ELAPPULLY AMSOM, PALAKKAD. 7. P. NIRMALA, AGED 32 YEARS, W/O.P. RAJAN, THIRUVALATHUR AMSOM DESOM, PALAKKAD TALUK. 8. LEELA, AGED 44 YEARS, W/O.ARUCHAMI, FLAT NO.6, PLOT NO.101, KUNCHURPRASAD HOUSING SOCIETY, BHANDUM EAST, BOMBAY-78. 9. P.B. DEVADAS, AGED 29, S/O.BALAKRISHNAN. 10. GEETHA, AGED 25 YEARS, W/O.BALAKRISHNAN. 11. RUGMANI, AGED 50 YEARS, W/O.P.A. BALAKRISHNAN. *12. MADHAVI, AGED 70 YEARS, D/O.ARUMUGHAN. *(DIED) RESPONDENTS 9 AND 11 ARE RESIDING AT VEPPANKOTTIL, VADAKKANTHARA AMSOM, PALAKKAD. 10TH RESPONDENT IS RESIDING AT MANKAVIL, KOPPAM AMSOM, PALAKKAD. 12TH RESPONDENT IS AT KARINGARAPULLY AMSOM DESOM, PALAKKAD. * ADDL. R13 TO 17 IMPLEADED ADDL.R13: K. THANKAMANI, W/O.KRISHNAN, KALLINGAL HOUSE, THIRUVILATHUR POST, PALAKKAD. ADDL.R14: K. CHINNAKKUTTY, W/O.KUNJACHAN KALIMANPADAM, KADUMTHURUTHY, KUNNASSERY POST, PALAKKAD. ADDL.R15: K. RUGMANI, W/O.VEEMBAN, PODIKKARA VEEDU, CHEMBADOM, PIRIVU SHALA, CHANDRANAGAR POST, PALAKAD. ADDL.R16: K. JANAKI, W/O.MADHAVAN, SIDDHA NIVAS, MENONPARA POST, CHITTUR TALUK, PALAKKAD. ADDL.R17: K. SHANTHA, W/O.T. ARUCHAMI, REMOTHU HOUSE, THAVURRISSI, OLLASSERY, KODUMBY PANCHAYATH, PALAKKAD. *LEGAL REPRESENTATIVES OF THE DECEASED R12 ARE IMPLEADED AS ADDL.R13 TO R17, VIDE ORDER DATED 13/03/2007 IN I.A.224/2007. AS.No. 227 of 2000(A) ** SUPPLEMENTAL RESPONDENTS 18 TO 20 IMPLEADED R18: JANAKI, W/O.P.A. MADHAVAN, PALLIKANDATHU VEEDU, VEPPANKODU, VADAKKANTHARA, PALAKKAD. R19: VIJAYAKUMARI, S/O.MANIKAL, KUNNATHU HOUSE, LALLICKAL, KONGADU, PALAKKAD. R20: SUMITHRA, W/O.BHASKARAN, BLOCK-13, B-40, ESIC, STAFF QUARTERS, KUTTANELLOOR, THRISSUR. ** SECOND APPELLANT IS RECORDED AS ONE OF THE LRS OF 1ST APPELLANT AND SUPPLEMENTAL RESPONDENTS 18 TO 20 ARE IMPLEADED AS LEGAL REPRESENTATIVES OF THE DECEASED 1ST APPELLANT, AS PER ORDER DATED 26/05/2010 IN I.A.4827/2008. ***SUPPLEMENTAL RESPONDENTS 21 TO 23 IMPLEADED R21: PREMALATHA, W/O.P. MOHANDAS, PALLIKANDATHU HOUSE, VADAKKANTHARA, PALAKKAD-678 012. R22: ARCHANA MOHANDAS, D/O.P. MOHANDAS, PALLIKANDATHU HOUSE, VADAKKANTHARA, PALAKKAD-678 012. R23: PRASAD, S/O.P. MOHANDAS (MINOR), PALLIKANDATHU HOUSE, VADAKKANTHARA, PALAKKAD-678 012. (REPRESENTED BY NATURAL GUARDIAN PREMALATHA, W/O.P. MOHANDAS, PALLIKANDATHU HOUSE, VADAKKANTHARA, PALAKKAD-678 012, AS PER ORDER DATED 26/05/2010 IN I.A.3748/2009). ***LEGAL REPRESENTATIVES OF DECEASED R3 IS IMPLEADED AS SUPPLEMENTARY RESPONDENTS 21 TO 23, VIDE ORDER DATED 26/05/2010 IN I.A.3746/2009. R1 TO R7 & R21 TO R23 BY SRI.P.N. ACHAN, SENIOR ADVOCATE, ADV. SRI.K.MOHANA KANNAN, SRI.SAABIR F. HAQ. R9 TO R11 BY ADV. SRI.A.V.XAVIER. THIS APPEAL SUITS HAVING BEEN FINALLY HEARD ON 16/06/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: rs. M.N. KRISHNAN, J. ........................................... A.S.NO.227 OF 2000 ............................................. Dated this the 16th day of June, 2010. J U D G M E N T This is an appeal preferred by defendants 1 to 4 and 6 to 8 in O.S.No.256/1992 of the Subordinate Judge's Court, Palakkad. The suit is one for partition of the plaint schedules and plaintiffs are claiming 1/5th right over the property with future mesne profits. The court below on a consideration of the materials has granted a decree in favour of the plaintiffs and directed the property to be divided into 4 equal shares and to allot one share to the plaintiffs together. The first defendant is entitled to get one such share. Defendants 3 to 8 together and 9 to 11 together are entitled to get one such share each as per the preliminary decree. It is against that decision, the above defendants have come up in appeal 2. The brief facts necessary for the disposal of the appeal are stated as follows: The common ancestor is one Arumughan. He has got 4 sons and a daughter namely Ponnu, Lakshmanan, : 2 : A.S.NO.227 OF 2000 Balakrishnan, Madhavan and Madhavi. Ponnu died in the year 1975 and his legal representatives are the plaintiffs. Lekshmanan died in the year 1968 and his legal representatives are defendants 3, 4 and 6 to 8. Madhavan was D1 and he died during the pendency of the appeal and his legal representaives a re D2 and respondents 18 to 20 in the appeal. Balakrishnan died in the year 1989 and his legal representatives are D9 to D12 in the suit. Madhavi, the 12th defendant died and his legal representatives are R13 to R17. It is the case of the plaintiffs that the property described in the plaint schedule has been kept in common and therefore it has to be divided as prayed for by them. The common ancestor died in the year 1956. From the materials available, it can be seen that during the life time of Arumughan and Ponnu, there was a division between them whereby Ponnu has been given certain properties or in other words, whether it is a self acquired property or joint property so far as Ponnu is concerned, he was given share over the property. Even if it is a joint family property, the plaintiffs can claim right only over the property allotted to Ponnu if no other property is left in common. Subsequently : 3 : A.S.NO.227 OF 2000 by virtue of Ext.B2, Arumughan bequeathed the property that is, one item which is scheduled to the Will jointly to the four sons and then it is recited in the Will that verumpattam krishi and other agricultural implements etc are bequeathed in favour of Lekshmanan, Madhavan and Balakrishan. There is also a recital in the Will to the effect that the wife of Arumughan namely Chinnu has got the life estate over the property and she can enjoy the property without any power of alienation. So by Ext.B2 Will dated 31.5.1954 except the one item of the property scheduled in the Will, all other properties are bequeathed in favour of Lakshmanan, Madhavan and Balakrishnan. This Lakshamanan, Madhavan and Balakrishnan by virtue of a partition Ext.B3 divided the property and the property shown in the plaint schedule is kept as property in common for the above three persons. So the question would be that whether Arumughan by virtue of Ext.B2 had given any other property to Ponnu other than the one mentioned in the Will. Secondly whether by virtue of the Will, any property belonging to Arumughan has been kept in common. So far as the first point is concerned, the item of property : 4 : A.S.NO.227 OF 2000 scheduled to the Will is given to the 4 sons and there has been a suit for partition with respect to that property which reached up to this Court and the court upheld the validity of the Will and the said property was ordered to be divided among all the four sons and their branches. That property is not the subject matter of the present suit. 3. Now we are concerned with the next recital in the Will. As stated by me earlier no property has been kept in common in the Will. So after giving the property to the four sons which is described in the schedule , the executant has given the remaining property in favour of the other three sons who were staying with him. It is quite natural for the reason that the predecessor in interest of the plaintiffs namely Ponnu has been given property by the father even in his life time. Other than the joint property allotted in favour of the four sons in the Will or in other words, Ponnu obtained separate items of property plus joint interest in the property mentioned in the schedule to the Will. The rest of the properties were bequeathed in favour of the other three sons. By virtue of Ext.B3 these three sons divided the property and the present plaint schedule property is kept : 5 : A.S.NO.227 OF 2000 in common. So what is kept in common in Ext.B3 partition deed is the property set apart jointly to Lakshmanan, Madhavan and Balakrishnan. They decided not to have division of the property shown in Ext.B3 last schedule and therefore it is a property as per the document belonging to the three persons mentioned above jointly. No where the name of Ponnu or his children does find a place. 4. The learned counsel for the plaintiffs in the suit before me very strongly contends about the certificate of purchase as well as the order of the Land Tribunal. It has to be stated that the finding of the Land Tribunal conferring 1/4th right on the plaintiffs cannot be said to be valid in law for the solitary reason that other persons had not been given any notice and they have not been impleaded as parties in the certificate of purchase proceedings filed by the plaintiffs. Section 72(F)(3) mandates an individual notice to the party. It may be argued that there were consolidation of 4 petitions and passing of common order by the Tribunal. That does not mean that one party is aware of the number of parties in the other case. Even otherwise when the rights of the parties are governed by valid documents, the mere : 6 : A.S.NO.227 OF 2000 issuance of certificate of purchase by the Land Tribunal will not confer any title on the party. Therefore I cannot agree with the learned Subordinate Judge on his placing reliance on the certificate of purchase to hold that the property belong to them jointly. Here is a very clear case where by virtue of Ext.B2 Will the properties mentioned in the plaint schedule had been set apart in favour of only three children excluding Ponnu. In the Will there is no recital that any other property is kept in common for the benefit of all. It is also to be stated that Ponnu had been given his share over the properties earlier by the father. So there was definite and clear intention for the father to give these properties to his three other sons Lakshmanan, Madhavan and Balakrishnan who were living with him at that point of time. So, the attempt to get share over this property cannot be entertained. So, on an appreciation of the entire materials available before me, I hold that the plaintiffs are not entitled to any share. I had also gone through the oral evidence tendered in this case by the plaintiffs. It is stated therein that there are documents to show that the farm house and tanks are kept in common. But nothing is produced : 7 : A.S.NO.227 OF 2000 before the court. It is also stated that after the partition given to Ponnu, rest of the properties were jointly held by Armughan and the other three sons. So this will confirm the case of the defendants regarding the properties that had been given to them under the Will. Therefore I hold that the learned Subordinate Judge was wrong in holding that the properties are available for partition. The property only belong jointly to Lakshman, Balakrishnan and Madavan and Ponnu or his children did not have any right or possession over the same and therefore they are not entitled to get any partition. Therefore the judgment and decree of the lower court are set aside and the suit is dismissed. Considering the relationship of the parties, they are directed to bear their respective costs. M.N. KRISHNAN, JUDGE. cl : 8 : A.S.NO.227 OF 2000 M.N. KRISHNAN, J. ........................................... A.S.NO.227 OF 2000 ............................................. 16th day of June, 2010. J U D G M E N T