IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH FRIDAY, THE 12TH MARCH 2010 / 21ST PHALGUNA 1931 RSA.No. 283 of 2010() --------------------- AS.193/2008 of SUB COURT, CHENGANNUR OS.76/2006 of MUNSIFF COURT,CHENGANNUR .................... APPELLANT/APPELLANT/IST DEFENDANT ----------------------------------------------------- K.R.PONNAMMA, AGED 62 YEARS, W/O.RAMACHANDRAN NAIR,MUNDKKALAYA REKHALAYATHIL, THIRUVANDOOR MURI, THIRUVANDOOR VILLAGE. BY ADV. SRI.S.KRISHNAMOORTHY RESPONDENT(S): RESPONDENTS/PLAINTIFF AND 2ND AND 3RD DEFENDANTS --------------------------------------------------------------- 1. MADHAVI AMMA, AGED 84 YEARS, W/O.GOPALA PILLAI, MUNDAKKAL HOUSE,THIRUVANDOOR VILLAGE. 2. REKHA RAMACHANDRAN, AGED 38 YEARS, D/O.PONNAMMA, MUNDAKKALAYA REKHALAYATHIL, THIRUVANDOOR MURI, THIRUVANDOOR VILLAGE. 3. RESHMI RAMACHANDRAN, AGED 29 YEARS, D/O.PONNAMMA OF DO. DO. THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 12/03/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: THOMAS P. JOSEPH, J. -------------------------------------- R.S.A.No.283 of 2010 -------------------------------------- Dated this the 12th day of March, 2010. JUDGMENT Defendant No.1 is the appellant before me, challenging judgment and preliminary decree for partition passed by the learned Munsiff, Chengannur in O.S.No.76 of 2006 as confirmed by the learned Sub Judge, Chengannur in A.S.No.193 of 2008. Plaint schedule item Nos.1 and 2, it is not disputed belonged to the late Ramachandran, husband of appellant and father of respondent Nos.2 and 3. Exts.A1 and A2 are the copy of documents of title in favour of the late Ramachandran concerning item Nos.1 and 2. Item No.3 belonged to the late Ramachandran and appellant jointly as per Ext.A3, assignment deed. Ramachandran died intestate in 1986. Following that, respondent No.1, his mother sued appellant and respondent Nos.2 and 3 for partition and separate possession. She claimed one fourth share in item Nos.1 and 2 and one fourth share in the half right of the late Ramachandran in item No.3. Appellant and respondent No.2 filed written statement contending that the building in item No.1 was constructed with the funds of the appellant. Respondent No.1 gave evidence as PW1 while contra evidence is given by the appellant as DW1. Trial court found that the property is partiable among appellant and respondents in the way respondent No.1 claimed and accordingly granted a preliminary decree. That was confirmed by the first appellate court. RSA No.283/2010 2 Hence the Second Appeal urging by way of substantial questions of law whether the suit is bad for partial partition and whether respondent No.1 would have been entitled to compensation in the absence of partition of the property. Learned counsel has contended that courts below ought to have invoked Section 89 of the Code of Civil Procedure. 2. Title over item Nos.1 to 3 in the manner pleaded by respondent Nos.1 to 3 as per Exts.A1 to A3 is not under challenge. Appellant had a contention that the house in item No.1 was constructed with her funds but there was absolutely no evidence in that regard except what is stated by her as DW1 against which respondent No.1 gave evidence as PW1. As such the properties are partiable among respondent No.1 and appellant. Contention is that respondent No.1 should have been satisfied with compensation rather enforcing her right of partition. There is no dispute that she is one of the legal representatives of late Ramachandran entitled to succeed to his estate. She cannot be asked to be satisfied with compensation. It is also idle at this stage to contend that courts below ought to have invoked Section 89 of the Code of Civil Procedure as that was not mooted by the parties in the trial court. The question of partial partition raised by the appellant related to item No.3. But it does not involve the right of third parties. Respondent No.1 has claimed one fourth share in the half right of the late Ramachandran in item No.3, the remaining half right RSA No.283/2010 3 going to the appellant. On hearing learned counsel for appellant and going through the judgments under challenge I do not find any substantial question of law is involved in the Second Appeal. Appeal is dismissed in limine. THOMAS P.JOSEPH, Judge. cks