IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOTTATHIL B.RADHAKRISHNAN & THE HONOURABLE MR. JUSTICE P.BHAVADASAN MONDAY, THE 6TH SEPTEMBER 2010 / 15TH BHADRA 1932 RFA.No. 502 of 2010(C) --------------------------- OS.432/2008 of II ADDL.SUB COURT,ERNAKULAM .................... APPELLANTS/PLAINTIFF NO.1 & 3 TO 9: ----------------------------------------------- 1. CICILY GEORGE, AGED 86 YEARS, W/O.GEORGE, C/O.MARY THOMAS, CHELATTU HOUSE, NEAR KARUNA GAS DODOWN, ELAMKUNNAPUZHA P.O., VYPIN. (DIED). 2. CARMALY ANTONY, AGED 62 YEARS, W/O.ANTONY, MALIEKKAL HOUSE, NEAR KURISINGAL CHURCH, PUTHUVYPU P.O. 3. T.G.ANTONY, AGED 57 YEARS, S/O.GEORGE, THANNIKOTTU HOUSE, THAYIKATTUKARA P.O., ALUVA. 4. ELSY GEORGE, AGED 52 YEARS, W/O.GEORGE, THUNDIYIL HOUSE, MALIPPURAM P.O., PERUMALPADY. 5. MARY THOMAS, AGED 50 YEARS, W/O.THOMAS, CHELATTU HOUSE, NEAR KARUNA GAS DODOWN, ELAMKUNNAPUZHA P.O., VYPIN. 6. ROSY XAVIER, AGED 48 YEARS, W/O XAVIER, PULIYANATH HOUSE, PALLICHAL ROAD, PALLURUTHY P.O., KOCHI-682 006. 7. ANNIE KUNJACHAN, AGED 46 YEARS, W/O.KUNJACHAN, PALAKKAPPILLY HOUSE, ERUMATHALA P.O., CHUNAGAMVELY, ALUVA. ...2/- ...2... 8. JESSY PETER, AGED 44 YEARS, W/O.PETER, PALAMUTTAM HOUSE, VALLARPADAM P.O., KOCHI-31. BY ADVS. SRI.M.P.KRISHNAN NAIR SRI.V.B.NARAYANAN RESPONDENT(S): DEFENDANTS: ------------------------------------- 1. GEORGE MICHAEL, AGED 57 YEARS, S/O.GEORGE, THANNIKOTTU HOUSE, VALLARPADAM P.O., KOCHI-31. 2. SMT.MABLE SHINY, W/O.T.J.SHIBU, AGED ABOUT 32 YEARS, THANNIKOTTU HOUSE, VALLARPADAM P.O., KOCHI-31. 3. T.G.XAVIER, THANNIKOTTU HOUSE, VALLARPADAM P.O., KOCHI-31. THIS REGULAR FIRST APPEAL HAVING COME UP FOR ADMISSION ON 06/09/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: SVS/ THOTTATHIL B.RADHAKRISHNAN & P. BHAVADASAN, JJ. ------------------------------------------- R.F.A.No.502 OF 2010 ------------------------------------------- Dated this the 6th day of September, 2010 JUDGMENT Thottathil B.Radhakrishnan, J. 1.This is an appeal by the plaintiffs against the dismissal of the suit for partition. We have heard learned counsel for the appellants. 2.Plaintiffs 2 to 9 and the first defendant are the children of the first plaintiff who is now no more. They sued the first defendant for partition, alleging that the property involved in the suit which is 10 cents of land, belonged jointly to the plaintiffs and the first defendant, they having inherited it from their father late George. The second defendant, the daughter of the first defendant was thereafter impleaded on the premise that the first defendant had gifted 5 cents out of the 10 cents to her. RFA.502/10 2 3.The court below found that it is not in dispute that Ext.B1 was executed way back on 12.3.1998. By that registered release deed, the other sharers had released their right in the property in favour of the first defendant. The said document shows receipt of Rs.50,000/- as consideration for that release. The plaintiffs had admitted that the release deed was executed. They, however, took the stand that it is a sham document, not intended to be acted upon. The court below was not prepared to act upon this version. It also relied on the evidence of PW1, one of the plaintiffs, that after 1988, she had not gone to the plaint schedule property. The first defendant was a Government servant. He had later gone abroad. He had given evidence and was believed by the court below. There is no reason why the evidence on record should have received a different consideration by the court below, leading to any finding in favour of the plaintiffs. 4.On the question of burden of proof, the court below held that the plaintiffs having admitted the execution of Ext.B1 way back RFA.502/10 3 in 1998, it was not sufficient for them to merely say that the said document is sham. There was nothing to indicate to the satisfaction of the court below that the said registered document was not executed resulting in the release of the rights of the plaintiffs in favour of the first defendant. In the aforesaid scenario, we find no legal infirmity or error in the appreciation of evidence resulting in the dismissal of the suit. Hence we find no grounds to admit this appeal. The appeal is hence dismissed in limine. Sd/- THOTTATHIL B.RADHAKRISHNAN, Judge. Sd/- P.BHAVADASAN, Judge. kkb.7/09.