IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.RAMKUMAR SUNDAY, THE 6TH JANUARY 2008 / 16TH POUSHA 1929 RSA.No. 1066 of 2008() AS.178/2005 of DISTRICT COURT,KOLLAM OS.68/2003 of MUNSIFF's COURT, KARUNAGAPPALLY .................... APPELLANT/APPELLANT/PLAINTIFF UMMINI NALINI,CHEMANTHOOR VEEDU VILAKKUVATTOM POST, VALAKODE VILLAGE PATHANAPURAM, FROM PULINKEEZHIL THARAYIL ADINADU NORTH, KOTTAKUPURAM MURI, KULASEKHARAPURAM VILLAGE, KARUNAGAPPALLY TALUK. BY ADV. SRI.B.KRISHNA MANI RESPONDENTS/ADDL. RESPONDENTS 2 TO 7/LEGAL HEIRS OF THE DEFENDANT:- 1. OMANA VASAVAN, PULINKEEZHIL THARAYIL VEEDU, ADINADU, KOTTACKUPURAM MURIKULASEKHARAPURAM VILLAGE, KARUNAGAPPALLY TALUK. 2. V.PRAKASH PULINKEEZHIL THARAYIL VEEDU, ADINADU, KOTTACKUPURAM MURI, KULASEKHARAPURAM VILLAGE, KARUNAGAPPALLY TALUK. 3. V.ANILKUMAR, PULINKEEZHIL THARAYIL VEEDU, ADINADU, KOTTACKUPURAM MURI, KULASEKHARAPURAM VILLAGE, KARUNAGAPPALLY TALUK. 4. NISHA, PULINKEEZHIL THARAYIL VEEDU, ADINADU, KOTTACKUPURAM MURI, KULASEKHARAPURAM VILLAGE, KAURNAGAPPALLY TALUK. 5. NEELINA PRASAD, PULINKEEZHIL THARAYIL VEEDU, ADINADU, KOTTACKUPURAM MURI KULASEKHARAPURAM VILLAGE KARUNAGAPPALLY TALUK. 6. NEGA PRASAD, PULINKEEZHIL THARAYIL VEEDU, ADINADU, KOTTACKUPURAM MURI, KULASEKHARAPURAM VILLAGE, KARUNAGAPPALLY TALUK. THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 06/01/2009, THE COURT ON 06/01/2008 PASSED THE FOLLOWING: V. RAMKUMAR, J. ========================= R.S.A. No. 1066 of 2008 ========================= Dated this the 6th day of January, 2009. JUDGMENT The plaintiff in O.S No. 68 of 2003 on the file of the Munsiff's Court, Karunagappally is the appellant in this Second Appeal. The said suit was for realisation of a sum of Rs.18,000/- being the arrears of the plaintiff's share of rent due from the shop rooms in the plaint schedule property and for injunction restraining the defendant from alienating the shop rooms. 2. The admitted facts are the following:- The plaintiff and the defendant are the daughter and son respectively of one Kochuvelumban who died on 24.08.1978. During his life time, Kochuvelumban had executed Ext.A1 registered gift deed dated 21.03.1967 gifting two shop rooms to his son, the defendant and with a direction to the defendant to give to his sister Rs.5/- every month from out of the rent received from the shop rooms. The suit was filed on 31.01.2003 the allegation that until February, 1997, the defendant was paying the plaintiff half of the rents actually received from the two shop rooms and he thereafter R.S.A. No. 1066/2008 : 2 : discontinued the payments of rent. 3. The defendant resisted the suit contending inter alia that his obligation under Ext.A1 gift deed was only to pay a sum of Rs.5/- to the plaintiff every month until her death, that the original shop rooms were completely destroyed and the existing shop rooms were constructed by him and that the defendant had not paid half of the rent actually received as alleged by the plaintiff and that the suit was liable to be dismissed. 4. The trial court dismissed the suit holding that the plaintiff herself examined as PW1 had admitted that the original shop rooms were completely destroyed and were subsequently reconstructed 15 years ago which is after the death of the father. On appeal preferred by the plaintiff, the lower appellate court came to the conclusion that the obligation of the defendant was only to pay a sum of Rs.5/- every month to the plaintiff till her death and that since the defendant admitted that he was liable to pay Rs.5/- every month to the plaintiff and going by the plaint averments, default was committed from February, 1997, the suit was R.S.A. No. 1066/2008 : 3 : decreed in part directing the defendant to pay to the plaintiff Rs.5/- every month from February, 1997 onwards with 6% interest thereon. The appeal was accordingly allowed in part as above. Hence this Second Appeal. 5. The following are the questions of law formulated in the memorandum of Appeal:- (i) Was the lower appellate court right in holding that the plaintiff is entitled to get only a sum of Rs.5/- towards her share of rent in terms of Ext.A1? (ii) Is it not clear that the lower appellate court has completely misconstrued the recitals in Ext.A1? (iii) Is it not clear from the recitals in Ext.A1 that the intention of the donor is that the plaintiff should get half the rent from the shop room that is being received from time to time? (iv) Was the lower appellate court justified in holding that the plaintiff is entitled to get only a sum of Rs.5/- from February, 1977? (v) Is it not clear that the plaintiff entitled to get a sum of Rs.18,000/- as claimed by her, especially when the evidence on record clearly indicates that the plaintiff has spent amounts for reconstruction? (vi) Under the circumstances is it not clear that the trial court has completely gone wrong in its conclusion? (vii) Is it not clear that the trial court has completely misconstrued the recitals in Ext.A1? (viii) Is it should have clear that the suit should have been decreed as prayed for? R.S.A. No. 1066/2008 : 4 : 6. The learned counsel appearing for the appellant/plaintiff made the following submissions before me in support of the appeal:- The obligation to pay Rs.5/- was fixed under Ext.A1 at a time when the rent which was received from the two shop rooms was only Rs.10/-. Thus, the intention of the donor was that his daughter should get ½ of the rent received from the shop rooms. He would not have intended in the year 1967 that the plaintiff should receive only Rs.5/- every month until her death. The defendant examined as DW1 has admitted that at the time of Ext.A1 the actual rent received was only Rs.10/-. 7. I am afraid that I cannot agree with the above submissions. Even assuming that the rent which the two shop rooms fetched at the time of Ext.A1 was only Rs.10/-, nothing prevented the father from stipulating that the son should pay half of the rent actually received from the building instead what was specifically stipulated was that from out of the rents received, he should pay Rs.5/- every month to his sister namely the plaintiff. If so, as rightly observed by the lower R.S.A. No. 1066/2008 : 5 : appellate court, it is far fetched to contend that what was intended was that the plaintiff should receive half of the rent fetched by the shop rooms. No question of law, much less, any substantial question of law arises for consideration in this Second Appeal. The questions of law formulated in the memorandum of appeal also do not arise for consideration in this Second Appeal which is accordingly dismissed in limine. Dated this the 6th day of January, 2009. V. RAMKUMAR, JUDGE. rv R.S.A. No. 1066/2008 : 6 :