IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.BHAVADASAN TUESDAY, THE 14TH JUNE 2011 / 24TH JYAISHTA 1933 SA.No. 203 of 1999(G) -------------------------------- AS.45/1990 of PRL.SUB COURT,IRINJALAKUDA OS.74/1985 of MUNSIFF COURT, KODUNGALLUR .................... APPELLANT(S): IN SA. RESPONDENTS 1 AND 2/ PLAINTIFF ------------------------------------------------------------------------------------- 1. MADHAVI W/O.KALAPPURAKKAL KOCHURAMAN, PERINJANAM VILLAGE, KODUNGALLUR TALUK. 2. SARASWATHI, W/O. PULIKKAL KOCHUMON, NATTIKA VILLAGE, CHAVAKKAD TALUK. BY ADV. SRI.RENJITH THAMPAN BY ADV. SMT.P.A.ANITHA RESPONDENT(S): APPELLANT AND RESPONDENT NO3/DEFENDANT 1 AND 2. --------------------------------------------------------------------------------------------------------------- *1. KUMARAN, S/O.MOOHHANKOOTU BAVUTTY, PERINJANAM VILLAGE, KODUNGALLUR TALUK(DIED) 2. KRISHNAN, S/O. DO. DO. *ADDL.R3 TO R8 IMPLEADED. 3. JANAKI, W/O.MOONAMKUTT KUMARAN, PERINJANAM WEST PO., KODUNGALLUR TALUK. 4. GOPALAKRISHNAN, S/O. DO. DO. 5. RAMANI, D/O. DO. DO. 6. VISWAN, S/O. DO. DO. 7. MANI, D/O. DO. DO. 8. MINI, D/O. DO. DO. *THE ADDITIONAL RESPONDENTS 3 TO 8 ARE IMPLEADED AS THE LEGAL REPRESENTATIVES OF DECEASED IST RESPONDENT AS PER ORDER DTD. 4.12.2001 IN CMP. 2308/2001. ADDL. R3 TO R8 BY ADV. SRI.K.G.BALASUBRAMANIAN THIS SECOND APPEAL HAVING BEEN FINALLY HEARD ON 14/06/2011 , THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: tss P. BHAVADASAN, J. - - - - - - - - - - - - - - - - - - - - - - - - - - - S.A. No. 203 of 1999 & Cross Objection - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 14th day of June, 2011. JUDGMENT The plaintiffs in O.S.74 of 1985 before the Munsiff's Court, Kodungallur, who were declined relief for partition of item No.3, are the appellants. 2. According to the plaintiffs, the property scheduled to the plaint belonged to Bavutty, their father, and consequent on his death the properties were being managed by the first defendant. They pleaded that they do not wish to continue the joint status and they seek partition. 3. The second defendant remained ex-parte. The first defendant contested the suit. He conceded that item Nos.2 and 3 originally belonged to Bavutty. His case was that Bavutty, father of the parties, had taken the property on lease and that was surrendered in the year 1957 to the jenmi and in 1961 a fresh lease was S.A.203/1999. 2 taken by the first defendant and he has obtained purchase certificate. It is also pointed out that in various proceedings the plaintiffs had admitted his right over the properties and therefore item Nos. 2 and 3 were not partible. On the basis of these contentions, he prayed for a dismissal of the suit as far as item Nos. 2 and 3 were concerned. 4. On the basis of the above pleadings, issues were raised by the trial court. The evidence consists of the testimony of P.Ws. 1 and 2 and documents marked as Exts.A1 to A3 from the side of the plaintiffs. The defendants had D.W.1 examined and Exts.B1 to B14 marked. Ext.C1 is the commission report. 5. The trial court on an appreciation of the evidence found that all the three items are partible and rejected the contention that the admissions said to have been made by the plaintiffs in other proceedings would disentitle them from claiming partition of items 2 and 3. Accordingly, a preliminary decree was passed as follows: S.A.203/1999. 3 “In the result, a preliminary decree for partition is passed in the following terms. Plaintiffs 1 and 2 are allotted ¼ share each in the plaint schedule properties excluding the house situated in plaint item No.1 property. Plaintiffs are allowed to file an application for passing a final decree within 3 months from this date wherein a commissioner will be appointed to measure and demarcate the shares by metes and bounds and to allot ¼ share each to 1st and 2nd plaintiffs.” 6. The first defendant took up the matter in appeal as A.S.45 of 1990. The lower appellate court differed from the trial court with regard to item No.3 and was of the view that the admissions said to have been made by the plaintiffs in various other proceedings are binding on them and that item No.3 is not available for partition. However, the preliminary decree for partition in respect of items 1 and 2 was confirmed. That brings the plaintiffs before this court S.A.203/1999. 4 and the first defendant has filed a cross objection in respect of the finding regarding item No.2. 7. Notice is seen issued on the following questions of law: “A. Is not the finding that plaint schedule item 3 belongs solely to the first defendant and is partible contrary to law. Is the said finding based on any evidence at all? B. Is not the decree excluding the building in plaint item No.1 from partition contrary to law? C. Has the Kerala Joint Family System Abolition Act, 1976 any impact on Section 23 of the Hindu Succession Act.” 8. Sri. Renjith Thampan, learned counsel appearing for the appellants, contended that the lower appellate court has fallen into gross error in coming to the conclusion to exclude item No. 3 from partition. The reasons given by the lower appellate court are clearly unsustainable on the basis of the evidence on record. The very case of the first defendant was that item Nos. 2 and 3 were outstanding on lease with the father of parties and he had surrendered S.A.203/1999. 5 the same and subsequently the first defendant had taken the same on fresh lease. In the light of this specific case put forward by the first defendant, the lower appellate court was not justified in holding that there was no material to hold that Bavutty, at any point of time, was the lessee in respect of item No.3. The so-called admissions evidenced by Exts.B2, B4 and B6, according to the learned counsel, have been misread and have not been construed in the proper perspective. Learned counsel also highlighted that the case of a fresh lease in favour of the first defendant was put forward at the time of filing the written statement. According to learned counsel there has been a total mis-appreciation of the evidence with regard to item No.3 and that has resulted in rejecting the decree as far as that item is concerned. 9. Per contra, learned counsel appearing for the respondents pointed out that the lower appellate court has addressed itself to the questions involved in the proper perspective and found that the plaintiffs have miserably S.A.203/1999. 6 failed to prove title which would entitle them to seek partition in respect of item No.3. Learned counsel highlighted the fact that the plaintiffs have to succeed on their own case and cannot fall back upon the weakness of the defence case. It is also contended that admission is the best evidence and the lower appellate court is right in relying on Exts.B2, B4 and B6 to come to the conclusion that as far as item No.3 is concerned, there is clear admission on the part of the plaintiffs that it belongs exclusively to the first defendant. Learned counsel drew the attention of this court to the notice sent to the first defendant and contended that it does not show as to how Bavutty came into possession of the property, which entitle the plaintiffs to seek partition. According to learned counsel, the reply notice will have to be read in that context. Learned counsel also went on to point out that the lower appellate court has correctly adjudged that item No.3 is not available for partition. S.A.203/1999. 7 10. In support of his cross-objection, learned counsel for the respondents has pointed out that the reasoning adopted for excluding item No.3 should have been adopted while considering the partibility of item No.2 also. Lower appellate court has erred in not accepting the case put forward by the respondents herein in respect of item No.2. 11. It is surprising to note that the lower appellate court has observed that as far as item No.3 is concerned, there is nothing to show that Bavutty was ever the lessee of the property. The lower appellate court has obviously not cared to go into the pleadings and the evidence in the case. The definite stand of the first defendant was that item Nos. 2 and 3 were outstanding on lease with Bavutty, but due to his old age and inability to manage the property, in 1957 he surrendered the property to the jenmi and thereafter in 1961 the first defendant, who was employed in military service, while he had come home on leave he was asked to go and meet the jenmi and items 2 and 3 were entrusted to him on S.A.203/1999. 8 lease. In the light of this specific case, one fails to understand as to how the lower appellate court has rendered the finding that there is nothing to show that Bavutty was ever a lessee of item No.3. 12. The evidence on record is clear to the effect that Bavutty was a lessee of items 2 and 3. The case of the first defendant that those items were surrendered and a fresh lease was taken is a matter to be proved by the first defendant. For this, he relied on Exts.B2, B4 and B6. It is true that in Exts.B2, B4 and B6 it was stated that the property is with the first defendant and he has obtained purchase certificate. But this court is unable to find the clear admission that the first defendant alone is entitled to the properties and the plaintiffs had no manner of right over the properties involved in this case. 13. The plaintiffs have also produced Ext.A3, the certified copy of the assignment deed dated 1.1.1943 that would indicate that Amminiamma, the socalled jenmi from whom the first defendant claims to have obtained the S.A.203/1999. 9 property on lease was no more even at that time. Going by the evidence of D.W.1 it is clear that in the proceedings before the Land Tribunal the jenmi was represented by Krishnankutty Nair. 14. Therefore the trial court went into the evidence available and found that the so-called admissions relied on does not amount to denying the right of the plaintiffs to suit property, but on the other hand has only the effect of saying that the first defendant was in possession of the property and he had obtained purchase certificate. A reading of the evidence of D.W.1 will clearly show that even after the so-called surrender, his father was in possession of the property. 15. It is true that the first defendant has obtained purchase certificate in respect of item Nos. 2 and 3. But as already noticed, there is want of evidence to show that he had taken independent lease of item Nos. 2 and 3 from the jenmi after surrender by his father. He could have atleast examined Krishnankutty Nair to prove his case. If that be S.A.203/1999. 10 so, it can be taken that he continued as a lessee in terms of the lease transaction by which his father became the lessee of the property. Viewed in that manner, the lease is in favour of all the co-owners. 16. The lower appellate court has erred both on facts and in law in coming to the conclusion that item No.3 is not available for partition. There was no reason to reverse the finding of the trial court in that regard. The trial court had arrived at the conclusion that items 2 and 3 are available for partition based on an appreciation of the evidence and materials on record. 17. As regards the cross objection, it is only to be dismissed. The same reasoning as regards item No.3 shall apply to item No.2 also. 18. The result is that the view of the lower appellate court that item No.3 is not available for partition is liable to be set aside. Accordingly the Second Appeal is allowed and that portion of the judgment of the lower appellate court declining to grant relief of partition in S.A.203/1999. 11 respect of item No.3 is set aside and the preliminary decree passed by the trial court is restored. The cross objection is dismissed. The parties will suffer their respective costs. P. BHAVADASAN, JUDGE sb.