IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH THURSDAY, THE 19TH NOVEMBER 2009 / 28TH KARTHIKA 1931 RSA.No. 1183 of 2009() ---------------------- AS.89/2002 of I ADDL.DISTRICT COURT, KOZHIKODE OS.637/1996 of PRINCIPAL MUNSIFF COURT,KOZHIKODE-II .................... APPELLANT/2ND RESPONDENT/2ND DEFENDANT: -------------------- KOYOLI MANDAKINI, D/O.KUNHANDY, AGED 50 YEARS, CHERUVANNUR AMSOM DESOM, KOZHIKODE TALUK. BY ADV. SRI.K.M.FIROZ SMT.M.SHAJNA RESPONDENT(S)/APPELLANT & 1ST RESPONDENT/PLAINTIFF & 1ST DEFENDANT: --------------- 1. PULIKKAL APPUKUTTAN, S/O.KUNHIMAMAN, AGED 69 YEARS, KADALUNDI AMSOM, PAZHANCHANNUR DESOM, KOZHIKODE TALUK. 2. KARAYIL MATHAKUTTY, D/O.KUNHIMAMAN, AGED 70 YEARS, KADALUNDI AMSOM, PAZHANCHANNUR DESOM, KOZHIKODE TALUK.. THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 19/11/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: THOMAS P. JOSEPH, J. -------------------------------------- R.S.A.No.1183 of 2009 -------------------------------------- Dated this the 19th day of November, 2009. JUDGMENT Regular Second Appeal arises from judgment and decree of learned Additional District Judge-I, Kozhikode in A.S.No.89 of 2002 reversing finding of learned Principal Munsiff, Kozhikode in O.S.No.637 of 1996 and granting decree for partition. Respondent No.1/plaintiff claimed that he is son of Kunhimaman and grandson of Kunhimamu who acquired the suit property. He claimed that himself and other members of the family are following the Mithakshara Law of Succession as they belonged to Thiyya community of Kozhikode. After the death of Kunhimamu, the grand father his legal heirs effected partition as per document No.3139 of 1923. In that partition, the suit property was allotted to the share of Kunhimaman and respondent No.2. Respondent No.1 claimed that he has a right by birth in the properties of the family. His father, Kunhimaman died in the year 1954. Properties were in the joint possession of respondent No.1 and his mother, Kunhipennu who died in the year 1964. On the death of Kunhipennu, respondent No.2 got 1/8th share in the suit property. Thus respondents became co-owners in possession of the suit property. Respondent No.1 demanded partition and separate possession of his share 7/8th share leaving the 1/8th share to respondent No.2. Respondent No.2 did not contest. Appellant/defendant No.2 contended that respondent No.1 is not the son of Kunhimaman but is the son of Cheerancheri Peechan. Kunhimaman had no RSA No.1183/2009 2 son by name Appukuttan (respondent No.1/plaintiff). It is stated that suit property belonged to Kunhimaman, father of respondent No.2. Since respondent No.1 is not the son of Kunhimaman he is not entitled to any share in the property. On the death of Kunhimaman in the year , 1954 entire property devolved on respondent No.2. Respondent No.2 gifted the property to her son, Peethambaran who, in turn assigned the same to the appellant as per assignment deed dated 30.10.1995. It is contended that suit is bad for non- joinder of necessary parties. Learned Munsiff after considering the evidence found that respondent No.1/plaintiff has not succeeded in proving that he is the son of Kunhimaman and dismissed the suit. Respondent No.1 took up the matter in appeal. Learned Additional District Judge-I was of the view that evidence let in by respondent No.1 is sufficient to show that he is son of Kunhimaman. Consequently a preliminary decree for partition was passed. That is under challenge in this Second Appeal at the instance of defendant No.2, the assignee from the son of respondent No.2/defendant No.1. Substantial questions of law raised for consideration are whether finding of first appellate court that respondent No.1/plaintiff is the son of Kunhimaman is supported by any evidence and whether the suit is bad for non-joinder of necessary party. Learned counsel for appellant contends that finding of the courts below that the suit is not bad for non-joinder of necessary party is erroneous. It is also contended by learned counsel that on the evidence on record, a finding that respondent No.1/plaintiff is the son of Kunhimaman ought not have been entered by the first appellate court. RSA No.1183/2009 3 2. So far as the issue regarding non-joinder of son (Peethambaran) of respondent No.2/defendant No.1 is concerned, learned Munsiff observed that in so far as appellant claimed that she got the suit property from the son of respondent No.2/defendant No.1 and partition is sought with respect to that property in the hands of appellant/defendant No.2, non-joinder of her assignor is of no consequence as the assignor of the appellant cannot be said to be a necessary party to the suit. A person can be said to be a necessary party only if in the absence of such a party the dispute cannot be adjudicated and no relief could be granted. That is distinguishable from non-impleadment of a proper party. In this case presence of Peethambaran, son of respondent No.2/defendant No.1 and the assignor of appellant is not absolutely necessary to adjudicate the dispute raised in the case. Therefore, it cannot be said that he is a necessary party in whose absence no decision could be rendered. I do not find anything illegal in the finding entered by the courts below, nor is any substantial question of law involved in that regard. 3. So far as the title claimed by respondent No.1/plaintiff is concerned, it rest on his contention that he is the son of Kunhimaman who got property in partition as per document No.3139 of 1923. Since appellant has denied that respondent No.1 is the son of the said Kunhimaman proof should come from respondent No.1/plaintiff. He has examined PW2 who stated that respondent No.1 is the son of Pulickal Kunhimaman. Ext.A2 is the partition deed executed by respondent No.1 and one Ishabi. Ext.A3 is the copy of assignment deed RSA No.1183/2009 4 executed by the appellant in favour of one Gangadharan. Ext.A4 is the gift deed executed by Devadasan in favour of respondent No.1. Ext.A5 is the electoral identity card issued to respondent No.1 by the Election Commission. Learned Munsiff said that Exts.A2 to A5 and evidence of PW2 are not sufficient to hold that respondent No.1 is the son of Kunhimaman but the first appellate court was not inclined to accept that view. First appellate court after consideration of evidence of PW2 and Exts.A2 to A5 found that evidence is sufficient to show that respondent No.1 is the son of Kunhimaman. First appellate court was inclined to believe the evidence of PW2 who was competent to give evidence regarding the fact in issue. It is on that finding that the finding of the trial court to the contrary was reversed which is under challenge in this Second Appeal. 4. That, Pulickal Kunhimaman referred to by PW2 is the 'Kunhimaman' involved in the present controversy is clear from Ext.A1, partition deed itself. According to the learned counsel for appellant, even if it is assumed that Exts.A2 to A5 said that respondent No.1 is the son of Kunhimaman, there is no guarantee that 'Kunhimaman' referred to in Exts.A2 to A5 is 'Kunhimaman' son of Kunhimamu to whom the property originally belonged. This contention though attractive cannot stand since the contention raised by the appellant in his written statement is not that respondent No.1 is the son of some other Kunhimaman, but his contention is that respondent No.1 is the son of 'Cheerancheri Peechan'. Ext.A5, electoral identity card issued by the Election Commission after due enquiry has to be given due weight. Assuming that RSA No.1183/2009 5 Exts.A2 and 3 are executed by respondent No.1 describing himself as son of Kunhimaman, Ext.A4 shows that one Devadasan executed that document in favour of respondent No.1, there also describing him as the son of Kunhimaman. The entries in Exts.A2 to A5 regarding name of father of respondent No.1 are made much before the controversy in this case arose. First appellate court took into consideration the fact that respondent No.2/defendant No.1 who is the daughter of Kunhimaman did not dare to contend that respondent No.1 is not the son of Kunhimaman, her father. It is in these circumstances that the first appellate court reversed the finding of learned Munsiff and answered the issue in favour of respondent No.1 which being a finding of fact based on proper appreciation of evidence cannot be said to be perverse so as to raise any substantial question of law. On going through the judgment under challenge and hearing learned counsel for appellant I do not find any substantial question of law involved in this Second Appeal requiring its admission and issue of notice to the respondents. Second Appeal is therefore dismissed in limine. I.A.No.2693 of 2009 will stand dismissed. THOMAS P.JOSEPH, Judge. cks RSA No.1183/2009 6