IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR MONDAY, THE 28TH FEBRUARY 2011 / 9TH PHALGUNA 1932 RSA.No. 152 of 2011 --------------------------------- AS.207/2007 of DISTRICT COURT, PALAKKAD OS.146/2003 of MUNSIFF COURT, ALATHUR .................... APPELLANT/APPELLANT/DEFENDANT NO.2: PANKAJAM, W/O LATE MAYANDI, PLACHIKKAD HOUSE, MATHUR, MUDAPPALLUR AMSOM & DESOM, MUDAPPALLUR P.O., ALATHUR TALUK, PALAKKAD. BY ADV. SRI.SAJAN VARGHEESE K. SRI.LIJU. M.P RESPONDENTS/RESPONDENTS/PLAINTIFF & D2 TO D12: 1. KAMALAKSHI, W/O KOYU @ APPU, MATHUR, MUDAPPALLU AMSOM & DESOM, ALATHUR TALUK, PALAKKAD, NOW RESIDING AT ELAVAMPADAM, ELAVAMPADAM POST, KIZHAKKENCHERRY AMSOM, ALATHUR TALUK, PALAKKAD - 678 541. 2. SURESH, S/O LATE MAYANDI, PLACHIKKAD HOUSE, MATHUR, MUDAPPALLUR AMSOM & DESOM, MUDAPPALLUR P.O., ALATHUR TALUK, PALAKKAD - 678 705. 3. USHA, D/O LATE MAYANDI, DO. DO. DO. 4. SHYLAJA, D/O LATE MAYANDI, DO. DO. DO. 5. RAMAN, S/O MAYAN, AYILUR MOOLA, AYILUR P.O., VIA NENMARA, CHITTUR TALUK, PALAKKAD - 678 682. 6. VASU, S/O RAMAN, DO. DO. DO. 7. SUDEVAN, S/O RAMAN, DO. DO. DO. 8. AMBUJAM, D/O RAMAN, DO. DO. DO. 9. KANNAN, S/O RAMAN, DO. DO. DO. 10. KUNCHI @ VIJAYAM, D/O RAMAN, DO. DO. 11. KUTTAN @ SATHEESH, S/O RAMAN, DO. DO. 12. SHEEJA, D/O RAMAN, DO. DO. DO. THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 28/02/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: M.Sasidharan Nambiar, J. ---------------------------------------- R.S.A.No.152 of 2011 ---------------------------------------- JUDGMENT First defendant in O.S.No.146/2003 on the file of Munsiff's Court, Alathur is the appellant. First respondent is the plaintiff and other respondents, the other defendants in the suit. The suit was instituted for partition of the plaint schedule properties. First respondent contended that Item No.1 of plaint schedule properties originally belonged to Mayu and on his death, it devolved on the only daughter Ammu. Her husband Velayudhan died eighteen years prior to the institution of the suit. Plaintiff, Karthyayani and Mayandi are their children. Appellant/first defendant is the widow and defendants 2 to 4 are the children of Mayandi. Fifth defendant is the husband and defendants 6 to 12 are the children of Karthyayani. Item No.2 of plaint schedule properties was obtained by Velayudhan. It is, therefore, contended that both the properties are available for partition and first respondent is entitled to get her share allotted. 2. Appellant filed a written statement disputing the rights of the first respondent and defendants 5 to 12, who remained ex RSA 152/2011 2 parte before trial court. Appellant contended that first respondent and Karthyayani were not the sisters of Mayandi or the children of Ammu and Velayudhan and instead, they are the children of Thayu, the sister of Ammu, who was maintained by Ammu and Velayudhan as Thayu died earlier. It is contended that plaintiff and defendants 5 to 12 are not entitled to claim any share. 3. Learned Munsiff, on the evidence of PWs 1 and 2 and DW1 and Exhibits A1 to A6 and B1 and B2, found that Exhibit A6, executed by Mayandi along with Karthyayani and first respondent, establishes that Mayandi had recognised the fact that first respondent and Karthyayani are his sisters and inherited to the properties left behind by Ammu and Velayudhan and therefore, they are entitled to their shares. A preliminary decree was passed directing division of plaint schedule properties into three equal shares and allotment of one share to the first respondent/plaintiff declaring that defendants 1 to 4 together are entitled to one share and defendants 5 to 12 the remaining share. Appellant challenged the judgment and decree before District Court, Palakkad in A.S.No.207/2007. Learned District Judge, on re-appreciation of evidence, confirmed the RSA 152/2011 3 preliminary decree passed by the learned Munsiff and dismissed the appeal. It is challenged in the second appeal. 4. Learned counsel appearing for the appellant was heard. 5. Argument of the learned counsel is that though Exhibit A6 was relied on by the courts below, in the light of the evidence, it should not have been found, based on Exhibit A6, that Karthyayani and first respondent are the daughters of Ammu and Velayudhan. It was argued that evidence shows that Thayu, their mother, pre-deceased Ammu. It was Ammu who brought up them and therefore, when Exhibit A6 document was executed, as insisted by Rugmini, the assignee, Karthyayani and first respondent were also made parties to the deed and in such circumstances, it should not have been found, based on Exhibit A6, that Karthyayani and first respondent are the daughters of Ammu and Velayudhan. It was argued that in spite of the admission of PW1 that electrol card and revenue records are available to show the relationship, nothing was produced and therefore, the preliminary decree is not sustainable. 6. The fact that Item No.1 of plaint schedule properties originally belonged to Ammu and Item No.2 to Velayudhan are not disputed. On the death of Ammu, her rights devolved on RSA 152/2011 4 Velayudhan, the husband and their children. On the death of Velayudhan, his rights devolved on his children. The dispute is whether Mayandi alone is the child of Ammu and Velayudhan and whether Karthyayani and first respondent are his sisters. As rightly found by the courts below, appellant, who was examined as DW1, is not competent to deny the relationship of Mayandi with Karthyayani and first respondent in the light of the unambiguous statement in Exhibit A6. In Exhibit A6 assignment deed, Mayandi admitted that first respondent and Karthyayani are the children of Ammu and Velayudhan. In the light of the said admission, the widow and children of Mayandi cannot dispute the relationship of Mayandi with Karthyayani and first respondent. Failure to produce the electrol card or revenue records will not disentitle the plaintiff or Karthyayani to get their shares. On the facts and evidence on record, no substantial question of law is involved in the appeal. Appeal is dismissed. 28th February, 2011 (M.Sasidharan Nambiar, Judge) tkv