IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.BHAVADASAN THURSDAY, THE 13TH JANUARY 2011 / 23RD POUSHA 1932 SA.No. 843 of 2000(A) ------------------------------- AS.14/2000 of SUB COURT,NEYYATTINKARA OS.265/1989 of PRINCIPAL MUNSIFF'S COURT,NEYYATTINKARA .................... APPELLANT(S): ----------------------- NESAMMA SULOCHANA, RESIDING AT PUSHPAVILASOM, PONGUMMOODU, MARANALLOOR DESOM, MARANALLOOR VILLAGE FROM PUSHPAVILASOM, PUTHEN VEEDU, THENGUVILA,KUNNATHUKAL DESOM, KUNNATHUKAL VILLAGE. BY ADV. SRI.V.CHITAMBARESH (SENIOR) RESPONDENT(S): ------------------------- 1. ELISA NADAR GEORGE, RESIDING AT ANDIVILA THEKKE PUTHEN VEEDU,KUNNATHUKAL DESOM,KUNNATHUKAL VILLAGE. 2. DASAMMA GNANAM, RESIDING AR ROADARIKATHU PUTHEN VEEDU, VELOLARADA DESOM, VELLARADA VILLAGE. 3. GNANAM SHEELA(MINOR), REPRESENTED BY COURT GUARDIAN SMT.N.D.SOBHANA, ADVOCATE, NEYYATTINKARA MUNSIFF'S COURT. 4. ANTHRIYOSE, RESIDING AT KIZHAKKEKARA PUTHEN VEEDU, PANACHAKUZHY NAINAMCONAM, VELLARADA DESOM, VELLARADA VILLAGE. 5. ANTHRIYOSE ROBERT NIKSON, RESIDING AT KIZHAKKEKARA PUTHEN VEEDU, PANACHAKUZHY NAINAMCONAM,VELLRADA DESOM, VELLARADA VILLAGE. 6. SARASWATHY ANITHA ROSE, RESIDING AT KIZHAKKEKARA PUTHEN VEEDU, PANACHAKUZHY NAINAMCONAM,VELLARADA DESOM, VELLARADA VILLAGE. sts S.A.NO.843/2000 7. SARASWATHY VANITHA ROSE,RESIDING AT KIZHAKKEKARA PUTHEN VEEDU, PANACHAKUZHY NAINAMCONAM,VELLARADA DESOM, VELLARADA VILLAGE. 8. CHARLOTTE, RESIDING AT M.C.VIHAR VALAMKULAM, ELLUVILA.P.O., KUNNATHUKAL VILLAGE,KUNNATHUKAL DESOM. BY THIS SECOND APPEAL HAVING BEEN FINALLY HEARD ON 13/01/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: sts P.BHAVADASAN, J. ------------------------------------- SA No.843 of 2000-A ------------------------------------- Dated this the 13th day of January 2011 Judgment The plaintiff in a suit for partition, is the appellant. Elisa Nadar had six children, namely, Nesamma the plaintiff, Loise the first defendant, Elisa the second defendant, Jose, Sarojam and Charlet the 9th defendant. Admittedly, the properties belonged to Elissa Nadar. After his death, his rights over the property devolved on the plaintiff and and defendants 1 and 2. Claiming 1/5 share, the suit was laid. 2. Defendants 3 and 4 resisted the suit, pointing out that the plaintiff had no manner of right over the suit property. According to them, after the death of Elissa Nadar in 1970, there was a partition by the male children of the family. The plaintiff obtained and got assignment of 12 cents of property as per Ext.B4 sale deed. There was a will executed by Jose and the plaintiff along with others SA 843/2000 2 had filed OP No.45/81 before the Sub Court, Thiruvananthapuram. The said OP was converted into OS No.1/1983 and on a finding that the Will was fraudulently created after the death of Jose, that suit was dismissed. They pointed out that the plaintiff had no manner of right over the suit property and even if she had any right, she is estopped from setting up any claim now. The first defendant supported the plaintiff. 3. On the above pleadings, necessary issues were raised by the trial court. The evidence consists of the documents marked as Ext.A1 from the side of the plaintiff, Exts.B1 to B8 from the side of the defendants and also Exts.X1 and X2 marked as witness exhibits. 4. The trial court, on an evaluation of the evidence, came to the conclusion that the plaintiff had accepted the partition evidenced by Ext.B3 and therefore, she was estopped from claiming any reliefs. The suit was accordingly dismissed. SA 843/2000 3 5. The plaintiff carried the matter in appeal as AS No.14/2000 before the Sub Court, Neyyattinkara. The lower appellate court, on an independent evaluation of the evidence, concurred with the trial court and dismissed the appeal. Hence the second appeal. 6. Notice was ordered on the following questions of law : “i. Whether the courts below were justified in law in dismissing the suit for partition when the plaintiff is not a party to Ext.B3 partition deed executed amongst the male heirs and heirs and hence not bound by the same ? ii. Have not the courts below erred in holding that the plaintiff has accepted the partition for the mere reason that she has obtained assignment of the right of another legal heir under Ext.B4 sale deed ? iii. Whether the courts below were correct in law in non-suiting the plaintiff for the mere reason SA 843/2000 4 that she had sought to rely on a Will executed by her brother in another proceedings ? (iv) Has not the lower appellate court acted unjustifiably in dismissing the appeal in limine without notice to the respondents when the plaintiff has a strong case to claim partition of her share ?” 7. The learned counsel for the appellant pointed out that merely because she had taken an assignment from late Jose, it does not mean that she has given up her right over the property. Both the courts below have erred in law and declined to grant reliefs to the plaintiff. 8. Though the argument may look very attractive, it is without any basis whatsoever. The partition after the death of Elissa was in the year 1970 evidenced by Ext.B3 dated 21.11.1970. From the share allotted to Jose, the plaintiff had purchased as per Ext.B4 dated 06.06.1977. The plaintiff was fully aware of the partition of 1970 and had obtained 12 cents as per Ext.B4. But, she SA 843/2000 5 did nothing in that regard. Having accepted the partition of the year 1970, now she is precluded from turning round and saying that she is not bound by the partition. The courts below are fully justified in non-suiting the plaintiff. No substantial questions of law arise for consideration in this second appeal. The second appeal is devoid of any merits and it is accordingly dismissed. There will be no order as to costs. P.Bhavadasan, Judge sta SA 843/2000 6