IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.R.RAMAN & THE HONOURABLE MR. JUSTICE T.R.RAMACHANDRAN NAIR FRIDAY, THE 22ND AUGUST 2008 / 31ST SRAVANA 1930 RFA.No. 543 of 2008() --------------------- APPELLANTS/PLAINTIFFS 1, 2 & 5 -------------------------------------- 1. MATHEW, AGED 67, S/O.LONAPPAN KOVATT THACHIL HOUSE, KUTHIYATHODU KARA, PUTHENVELIKKARA VILLAGE, PARUR TALUK. 2. JOHNY, AGED 47, S/O.PORINCHU, -DO- -DO- 3. SUNNY, AGED 30, S/O.PORINCHU, -DO- -DO- BY ADV. SRI.V.A.PRADEEP KUMAR RESPONDENTS: DEFENDANTS & PLAINTIFFS 3 & 4 ---------------------------------------------------- 1. ELIZABATH, AGED 80, W/O.GEORGE, KOVATT THACHIL HOUSE, KUTHIYATHODU KARA, PUTHENVELIKKARA VILLAGE, PARUR TALUK. 2. ELIKUTTY, AGED 62, W/O.GEERVANEES THACHIL HOUSE, KUTHIYATHODU KARA, PUTHENVELIKKARA VILLAGE, PARUR TALUK. 3. ROSY, AGED 60, W/O.ERAPPAI, KANNAMPUZHA VEETTIL, KUZHIKKATTUSSERY KARA, ASHTAMICHIRA, THRISSUR DISTRICT. 4. POLACHAN, AGED 44 YEARS, S/O.PORINCHU, KUTHIATHODU KARA, PUTHENVELIKKARA VILLAGE, PARAVUR TALUK. 5. KOCHURANI, AGED 37, W/O.TOMY, PANIKKULAM HOUSE, PULIYANAM KARA, CHALAKKUDY, THRISSUR DISTRICT. 6. ANIE, AGED 33 YEARS, D/O.PORINCHU THACHIL VEETIL, KUTHIYATHODU KARA, PUTHENVELIKKARA VILLAGE, PARAVUR TALUK. 7. KUSUMAM, AGED 32, D/O.PORINCHU THACHIL VEETIL, KUTHIYATHODU KARA, PUTHENVELIKKARA VILLAGE, PARAVUR TALUK. 8. RAJEENA, AGED 40, D/O.JOSEPH, THACHIL VEETIL, KUTHIYATHODU KARA, PUTHENVELIKKARA VILLAGE, PARAVUR TALUK. 9. VARGHESE, AGED 43, S/O.MATHEW, THACHIL VEETIL, KUTHIYATHODU KARA, PUTHENVELIKKARA VILLAGE, PARAVUR TALUK. 10. VARGHESE, AGED 42, S/O.PORINCHU, KOVATTUTHACHIL VEETTIL, KUTHIYATHODU KARA, PUTHENVELIKKARA VILLAGE, PARAVUR TALUK. 11. JOSE, AGED 38, S/O.PORINCHU, KOVATTUTHACHIL VEETTIL, KUTHIYATHODU KARA, PUTHENVELIKKARA VILLAGE, PARAVUR TALUK. BY THIS REGULAR FIRST APPEAL HAVING BEEN FINALLY HEARD ON 18/08/2008, THE COURT ON 22/8/2008 DELIVERED THE FOLLOWING: ORDER IN IA NO.3388/08 IN RFA 543/08 DISMISSED. 22/8/2008 SD/- P.R. RAMAN, JUDGE. SD/- T.R. RAMACHANDRAN NAIR, JUDGE. // TRUE COPY // P.S. TO JUDGE P.R.RAMAN & T.R.RAMACHANDRAN NAIR, JJ. ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ R.F.A No.543/2008 ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ Dated this the 22nd day of August, 2008 J U D G M E N T J U D G M E N T RAMACHANDRAN NAIR, J. The appellants are plaintiff Nos.1, 2 and 5 before the court below. The suit was one filed claiming declaration and partition. 2. The short facts leading to the filing of the suit are the following: 3. The first plaintiff and defendants.2, 3 and 8 are the brother and sisters of late Sri. George. Plaintiffs 2 to 4 and defendants 4 to 7 are the legal heirs of one Princhu, one of the brothers of the deceased. The first defendant is the widow of the deceased and the ninth defendant is the purchaser of the schedule property from the deceased and the first defendant. The deceased George and the first defendant had no children. He was the owner in possession of the plaint schedule property having an extent of 39.250 cents with a residential building in Puthenvelikkara Village. The plaintiffs and defendants 1 to 8 are the only legal heirs of deceased. The first defendant is entitled to get one half of the share. The plaintiffs 2 to 5 and defendants 4 to 7 are jointly entitled to get one R.F.A No.543/2008 -:2:- third share in the remaining property as being the legal heirs of late Princhu. The first plaintiff and defendants 2, 3 and 8 being the brother and sisters of late Sri. George are entitled to get one sixth share each in the rest of the property. The deceased had executed a sale deed dated 20.1.2005 in respect of 27.625 cents out of the plaint schedule property in favour of the 9th defendant, which according to the plaintiff, is only as a security for a loan transaction. The other sale deed is dated 8.3.2006 executed by the 1st defendant in favour of 9th defendant of the rest of the plaint schedule along with a building. They sought for a declaration that Exts.A4 and A5 sales deeds are sham and executed without any valuable consideration. 4. Defendants 1 and 9 filed written statement separately. It is the common case of the parties that the deceased had executed a sale deed on 20/01/2005 in favour of the ninth defendant. The plaintiffs contended that it was only executed as a security for a loan transaction which was availed for the purpose of meeting the medical expenses of late Shri. George. The defendants 1 and 9 contended that it was executed for valuable consideration and that the possession of the property was also with the ninth defendant. The second sale deed is dated 08/03/2006 in respect of 16 cents of land with a building R.F.A No.543/2008 -:3:- which was executed by the first defendant in favour of the ninth defendant for valuable consideration. 5. PWs.1 to 7 were examined and Exts.A1 to A5, C1 and C1 (a) were marked on the side of the plaintiffs. DWs.1 and 2 were examined and Exts.B1 to B7, X1 and X2 were marked on the defendants' side. 6. The court below found that the case set up by the plaintiffs that Exts.A4 and A5 sale deeds are sham documents is not correct. It was found that there was no loan transaction between the deceased George and the ninth defendant, and that the property was sold for valuable consideration. It was also found that the property was separate from the other properties, going by Exts.C1 and C1(a) and that the ninth defendant is in possession. It was further found that Ext.A5 is a sale deed executed by the first defendant in favour of the ninth defendant for valuable consideration. Thus, it was held that Exts.A4 and A5 are valid sale deeds. Only 11.435 cents of land was found partiable and, accordingly, it was held that the plaintiffs 2 to 5 and defendants 4 to 7 are jointly entitled to get one such share and first plaintiff, defendants 2, 3 and 8 are entitled to get one such share each. Preliminary decree was passed. R.F.A No.543/2008 -:4:- 7. Learned counsel for the plaintiffs/appellants contended that the approach made by the court below is not correct and that Ext.A4 had not taken effect at any time and the ninth defendant also did not obtain the possession as claimed by him. It was contended that the transaction between the deceased George and the ninth defendant was only a loan transaction, and his property was offered only as a security. 8. We find that the above arguments are unsustainable in the light of the clear evidence available in this case. The plaintiffs could not adduce any cogent evidence to prove that the document, Ext.A4, was executed as a security for a loan transaction of Rs.25,000/-. Even though a plea was raised that the loan was being repaid at instalments of Rs.750/-, there was no evidence to support the said plea. The evidence shows that Exts.A1 to A3 are the prior documents in respect of Ext.A4 and the properties covered by Exts.A3 and A4 have been specifically identified by the Advocate Commissioner as per Ext.C1(a) sketch. It was found that the properties covered an extent of 27.625 cents lying separately with specific boundaries by relying on the deposition of the Advocate Commissioner. He has squarely identified the property covered under Ext.A4 which is clear from Ext.C1(a) sketch. The rest of the property (blue-shaded) is lying R.F.A No.543/2008 -:5:- separately bounded with specific boundaries. Thus, the evidence shows that the plea raised by the plaintiffs that the entire plaint schedule is lying contiguously and it cannot be separated and specifically identified with boundaries is not correct. Thus, the plea that Ext.A4 sale deed was executed as a sham document and that the the ninth defendant did not obtain possession was found not proved. We find no reason to differ from the above view taken by the court below. As already noticed above, there is no evidence to show that there was any loan transaction between the deceased George and the ninth defendant, and that the sale deed was executed as a security for the said loan transaction. The court below has referred to the contrary stand taken by PW.1 in his evidence while being cross- examined. 9. It has also been clearly found that as per Ext.A5 the widow has conveyed her right over the remaining property for valuable consideration. Going by Section 33(b) of the Indian Succession Act, the widow is entitled to get only half share in the remaining property. Accordingly, a preliminary decree was passed holding that the remaining 11.435 cents is partiable inclusive of the building. The share of the parties concerned have been determined accordingly. R.F.A No.543/2008 -:6:- Thus, we find that the findings and conclusions arrived at by the court below are clearly based on the evidence and no interference is called for on such findings. Therefore, we find no reason to entertain the appeal and the appeal is thus dismissed. No costs. P.R.RAMAN, Judge T.R.RAMACHANDRAN NAIR, Judge ms