IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE HARUN-UL-RASHID MONDAY, THE 6TH JULY 2009 / 15TH ASHADHA 1931 RSA.No. 1090 of 2008(D) ----------------------- AS.14/2002 of PRL.SUB COURT,TRIVANDRUM OS.241/1997 of PRL.M.C.,TRIVANDRUM .................... APELLANTS/APPELLANTS/DEFENDANT ------------------------------------------- 1. B.SUKUMARI, W/O.LATE BANDHURANGAN, AGED 67 YEARS, RESIDING AT 'CHANDROLAYAM', KAITHAMUKKU, TRIVANDRUM. 2. B.PRATHAP CHANDRAN, S/O.LATE BANDHURANGAN, AGED 28 YEARS, RESIDING AT 'CHANDROLAYAM', KAITHAMUKKU, TRIVANDRUM. BY ADV. SRI.D.SAJEEV RESPONDENTS: RESPONDENTS/PLAINTIFF AND 3RD DEFENDANT ------------------------------------------------------------------------- 1. JAYA SINDHU, D/O.KRISHNAMMA, AGED 33 YEARS, RESIDING AT "AMBADI", UDAYAGIRI, CHEMPAZHANTHI, TRIVANDRUM. 2. KRISHNAMMA, D/O.PARVATHY, RESIDING AT KANIYANPARA PUTHENVEETTIL VEEDU, KUTTIYANI, VATTAPPARA, NEDUMANGAD, TRIVANDRUM. ADV. SRI.G.S.REGHUNATH(CAVEATOR) THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 06/07/2009,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: HARUN-UL-RASHID, J. ------------------------------------ R.S.A.No.1090 of 2008 ------------------------------------- Dated this the 6th day of July, 2009 JUDGMENT The defendants in O.S.No.241 of 1997 are the appellants. The Second Appeal is directed against the judgment and decree in A.S.No.14 of 2002 on the file of the Principal Sub Court, Thiruvananthapuram. The suit was for partition. The trial court passed preliminary decree allowing partition of plaint A schedule property in the three equal shares and allotted one share to the plaintiffs. Other incidental reliefs are also granted. The decree and judgment was confirmed by the appellate court. Hence this appeal. 2. It is the case of the plaintiffs’ that she is the daughter of late K.N.Bandhurangan born in his wedlock with additional 3rd respondent, Krishnamma, that the first defendant is not legally married wife of his father and therefore she is not having the status of a legally wedded wife and that the second defendant being the daughter of her son is only having the status of an illegitimate son. She admitted that the second defendant is the illegitimate child and is have equal right to R.S.A.No.1090 of 2008 2 share of the property of her father. The suit claim is for one half of the share of the property and the other half being belongs to the second defendant. 3. The first defendant contested the suit and contended that she is the wife of Bandhurangan and the second defendant is her child. It is further contended that the plaintiff is not the daughter of deceased Bandhurangan and therefore she has no right to get any share in the plaint schedule property. The trial court considered the questions raised on the basis of oral and documentary evidence adduced by both sides. The plaintiff examined four witnesses and produced Exts.A1 to A11 documents. The defendants examined six witnesses and produced Exts.B1 to B11 documents. The trial court on evidence held that there is sufficient evidence to show that the plaintiff is none other than the legitimate daughter of Bandhurangan born in his first marriage to the additional third defendant. It has come out in evidence late Bandhurangan dissolved first marriage and therefore the additional third defendant cannot inherit the property of her former husband. The trial court examined the genuineness of Ext.B5 will deed dated 07/12/1985. The R.S.A.No.1090 of 2008 3 execution of Ext.B5 will deed dated 07/12/1985 is not disputed by anybody. It is the plaintiff’s case that Ext.B5 will deed was revoked by late Bandhurangan during his lifetime and Ext.A4 is the cancellation deed. 4. The trial court after considering the respective contentions of parties, the recitals in Ext.B5 will, Ext.A4 revocation deed and oral evidence of PWs.3 and 4 concluded that Bandhurangan executed Ext.A4 revocation deed. PWs.3 and 4 have put their signatures in Ext.A4. After discussing the issue in detail the trial court further concluded that by the execution of Ext.A4 revocation deed Ext.B5 will stood cancelled. On the basis of the said findings the trial court passed a preliminary decree allowing partition and allotting one half share to the plaintiff. The appellate court at the instance of the appellants re-appreciated the entire questions raised and reached the very same conclusions. The findings arrived are purely based on facts and the view taken by the trial court and appellate court are not liable to be interfered with for any reasons. The appellants have not made out any sustainable grounds to invoke the jurisdiction under Section 100 of the C.P.C. No question of law much less R.S.A.No.1090 of 2008 4 any substantial questions of law arises for consideration in this second appeal. Therefore this appeal fails and accordingly it is dismissed in limine. HARUN-UL-RASHID, JUDGE skj.