IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.M.JOSEPH & THE HONOURABLE MR. JUSTICE M.L.JOSEPH FRANCIS THURSDAY, THE 28TH JULY 2011 / 6TH SRAVANA 1933 AS.No. 396 of 1998(A) ----------------------------- OS.298/1994 of I ADDL.SUB COURT, KOZHIKODE .................... APPELLANT(S): II DEFENDANT: --------------------------------------------- K.P.CHANDRAN, S/O.MELETHADATHIL KANDAN, 54 YEARS, KUTTIPALAKKAL HOUSE, MUKKAM. BY ADV. SRI.MKS.MENON RESPONDENT(S): PLAINTIFF & DEFENDANTS 1,3,4,5: --------------------------------------------------------------------------- 1.M.K.KARUNAKARAN, S/O.MELETHATATHIL KANDAN, 63 YEARS, KRISHNAPURAM HOUSE, THAZHEKKODE AMSOM, KACHERI DESOM, KOZHIKODE TALUK. 2. BHARGAVI, W/O.GOPALAN, 60 YEARS, PARATHIMARAMMEL HOUSE, CHELOOR AMSOM, DESOM, KOZHIKODE. 3. K.P.APPOOTTY, S/O.MELETHADATHIL KANDAN, 53 YEARS, CHANNASSERY KUZHY VEETIL THAMASAM, MUKKAM. 4. VASUMATHY, W/O.V.M.KARUNAKARAN, 51 YEARS, VENJERI MEETHAL HOUSE, KUNNAMANGALAM. 5. K.P.DEVAKI, W/O.K.P.PRABHAKARAN, 49 YEARS, KARIMBANGAL HOUSE, KALARIKKANDI. THIS APPEAL SUIT HAVING COME UP FOR ORDERS ON 28/07/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K.M.JOSEPH & M.L.JOSEPH FRANCIS, JJ. ----------------------------------------- A.S.No.396 of 1998-D ----------------------------------------- Dated, this the 28th day of July, 2011 J U D G M E N T K.M.Joseph, J. Though served there is no appearance for the respondents in the delay petition. We took up the appeal itself for consideration. We heard the learned counsel for the appellant. 2. The appellant is the 2nd defendant in a suit for partition. The case of the plaintiff in the suit is as follows:The plaintiff and defendants are brothers and sisters. They are Thiyyas governed by Hindu Mitakshara Law. The property in dispute was obtained by Ammu @ Pennutty by virtue of kanam assignment. Pennutty is the wife of Ramankutty. She was enjoying the property. She died in 1992. After her death, as per Hindu Succession Act, the plaintiff and defendants obtained the property and they are enjoying the same as co-owners. The 3rd defendant was looking after the affairs for and on behalf of others also. The plaintiff has spent Rs.10,000/- to construct the building and to renovate the house. The suit was filed for partition and getting 1/6th share. AS NO.396/1998 -2- 2. Defendants 1 and 4 filed joint written statement inter alia contending as follows: Pennutty has created a gift deed No.777/1980 on 16.2.1980 to the 3rd defendant. After the creation of gift deed the 3rd defendant was enjoying the property. Life interest is also vested to Pennutty till her death. She has the right to reside in the house in the property. After the death of Pennutty the 3rd defendant was enjoying the property. She has sold 12 1/2 cents of property to one Bhaskaran who was enjoying the property. The 3rd defendant filed written statement virtually on similar lines. The 5th defendant was exparte. The appellant filed written statement supporting the plaintiff. He denied construction of house was by spending Rs.10,000/- by plaintiff and Rs.1,000/- by selling the tharwad property. 3. After framing issues, the court below in answering issue No.6 held as follows: “Issue No.6:-The property belong to Pennutty and she gave the property to the defendant as per Ext.B1 gift deed. The gift deed is dated 16th February, 1980. This property was obtained by Pennutty, during 1936 as per Ext.A1 sale deed. The total extent is not available. The mother has sold a portion of the property. The remaining property is included in the plaint schedule. During 1992 their mother died. The share is claimed as if there is no AS NO.396/1998 -3- gift deed. The third defendant, after obtaining the property, sold 12.5 cents of property to one Bhaskaran as per sale deed No.723/94. This shows that the gift deed has come into effect. The 4th defendant was enjoying the property as if it was his own property. He is paying both the property tax and building tax. 1 acre 43 cents of property was given to the plaintiff on gift. Ext.B2 is the document for giving gift to the plaintiff. The document Number, is 2688/1980. It is pertinent to note that the third defendant was given gift on 6th February, 1980. So, both of them got gift during 1980. The third defendant got gift during February, 1980 and the plaintiff obtained the gift deed during July, 1980. The contention is that she is not in a position to create this document. It is an outcome of fraud. She was incapable of taking a rational decision. If this condition is applicable to third defendant, it is equally applicable to the gift deed in favour of the plaintiff as evidenced by Ext.B2. Ext.B3 is dated 14.6.1979. The three sisters were also given the property by their mother. Ext.B4 is the document. They were given 85 cents of property. Each of her children has entrusted the document and enjoying their property as such. D3 is enjoying the property right from 1980 onwards. So also, the plaintiff is enjoying the property which was gifted to him from 1980 onwards. The third defendant was paying the Land revenue. Ext.B5 is the Land revenue receipt. Ext.B6 is the receipt for payment of Land revenue for the period 1982-83. Ext.B7 is the receipt for paying land revenue for 1984-85. A notice was received by D3 to pay the tax for the period from 1987-88 to 91-92, from Mukkom Panchyat. The notice is marked as Ext.B8. This notice AS NO.396/1998 -4- was addressed to the third defendant. He has paid building tax for the period from 1987-88 to 1988-89, as evidenced by Ext.B9. He has also paid land revenue for the period 1991-92 and the receipt for the same is Ext.B10. Ext.B11 is the encumbrance certificate relating to the property. The encumbrance certificate would show that the property is in the name of Apputty which shows that from 1979 onwards the property is in the name of Apputty. Ext.B12 is the solvency certificate relating to the property. It is seen that the property lies in the name of third defendant. Ext.B13 is the ownership certificate. The building number M.P.3/237 Krishnapuram belongs to K.P.Apputty, the third defendant herein. Ext.B14 is the land tax receipt for the period 1992-93 remitted by the third defendant herein. Ext.B14 is the land tax receipt for the period 1992-93 remitted by the third defendant. Ext.B15 is another ownership certificate dated 3.11.1992 showing that third defendant of Krishnapuram is the owner of house No.3/245. Ext.B16 is the receipt for building tax remitted for the period of 1992-93. Ext.B17 is the land revenue receipt paid to the plaint schedule property by third defendant. All these successive documents show that D3 was residing in the house. He was paying land revenue and building tax. There is no cogent and convincing evidence to show that the plaintiff has effected any construction except the interested testimony. It is stated in the document that this Rs.1,000/- was spent for the construction of the house. It is in 1957 document it is stated that this property was sold for constructing a house. But it is only stated as a protection for the purchaser to avoid future claim that would be raised by minors. Certain previous cases are AS NO.396/1998 -5- referred to. But the judgment of those cases are not produced. Therefore, this court is not in a position to know the actual judgment passed by concerned courts. Thus from the evidence before court, it is clear that Ext.B1 came into existence and D3 is enjoying the property. Thus the plaintiff is not entitled for any share as the plaint schedule property is not partible. It is the personal property of third defendant by virtue of Ext.B1 gift deed. This issue is found against the plaintiff.” 4. We see nothing erroneous in the reasoning or finding of the court below. Learned counsel for the appellant was unable to persuade us to hold that the appellant has any right as claimed in the suit and clearly there was a gift deed executed by Pennutty by Ext.B1 gift deed which was accepted and acted upon. In such circumstances, we see no merit in the appeal. Appeal is dismissed. No order as to costs. (K.M.JOSEPH) JUDGE. (M.L.JOSEPH FRANCIS) JUDGE. MS