IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.BHAVADASAN MONDAY, THE 13TH JUNE 2011 / 23RD JYAISHTA 1933 SA.No. 433 of 1995() ------------------------- AS.116/1990 & AS.117/1990 of II ADDL. DISTRICT COURT,KOLLAM OS.44/1985 of SUB COURT,KOTTARAKKARA .................... APPELLANT(S): APPELLANTS/DEFENDANTS 8 AND 9 ------------------------------------------------------------- 1. CHAKO BABY, BIJU BHAVAN, THEKKUMPURAM MURI, PUTHOOR VILLAGE. 2. RAJAN BABY, NIJU BHAVAN THEKKUMPURAM MURI, PUTHOOR VILLAGE. BY ADVS. SRI.R.RAJASEKHARAN PILLAI SRI.C.S.RAMANATHAN RESPONDENT(S):RESPONDENTS/PLAINTIFFS, D1 TO D7 AND D10 ----------------------------------------------------------------------------- 1. NARAYANAN PILLAI RAMAN PILLAI, RESIDING AT MANAKKATTU HOUSE, KANNAMKODE MURI, ADOOR VILLAGE AND TALUK. 2. LEKSHMIKUTTY AMMAL LAITHAMMAL, LEKSHMI VILASAM PALACE WARD, ALAPPUZHA MURI AND VILLAGE, AMBALAPUHA TALUK. 3. NARAYANA PILLAI, REGUNATH OF DO. DO. 4. LALITHAMMAL SUDHARMA OF DO. DO. 5. LALITHAMMAL JAYALEKSHMI OF DO. DO. 6. NARAYANA PILLAI SASIKUMAR OF DO. DO. 7. NARAYANA PILLAI AJITHKUMAR OF DO. DO. 8. AYYAPPAN PILLAI MADHAVAN PILLAI, PARACKAL VEEDU PUTHUOOR MURI AND VILLAGE, KOTTARAKKARA TALUK. 9. LALITHAMMAL SHOBHANA ALIAS N.SHOBHANA, EMPLOYED AS LABORATORY ASSISTANT, EXPERT INSPECTION AGENCY, KOCHI. 10. SUBHADRAMMAL RAJALEKSHMI AMMAL, BHADRA PALACE WARD, ALAPPUZHA VILLAGE ALAPPUZHA MURI. R1 BY ADV. SRI.P.R.VENKETESH THIS SECOND APPEAL HAVING BEEN FINALLY HEARD ON 13/06/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: svs ORDER ON I.A. NOS.536/2010, 1788/2010 & 1789/2010 IN S.A. NO.433/1995 CLOSED 13/06/2011 SD/- P.BHAVADASAN, JUDGE /TRUE COPY/ P.A. TO JUDGE. svs P.BHAVADASAN, J. ------------------------------------- SA No.433 of 1995-B ------------------------------------- Dated this the 13th day of June 2011 Judgment Defendants 8 and 9 in OS No.44/85 before the Sub Court, Kottarakkara, are the appellants. The parties are facts are hereinafter referred to as they are available before the trial court. 2. The suit was one for partition and separate possession of the plaintiffs' share over suit properties. The first plaintiff is the daughter of late Lakshmikutty Ammal. Besides the first plaintiff, she had three sons and a daughter namely Chellappan Pillai, Ramakrishna Pillai, Narayana Pillai and Sumathi Ammal. At the time when Ext.A1 was executed, Narayana Pillai was no more and the plaint schedule items were set apart to the wife and children of Narayana Pillai. As already stated, Lakshmikutty Ammal had three sons and two daughters. One of them was Narayana Pillai junior, who is no more and his wife and children are defendants 2 to 6 and 10. SA 433/95 2 Subsequent to Ext.A1 partition deed, the parties were in joint possession of the property. It is pointed out that Chellappan Pillai died issueless in 1951. Claiming 1/8 share and separate possession of the plaint schedule property, the suit was laid. 3. Defendants 1, 2, 4, 5 and 6 filed a joint written statement. They pointed out that the plaintiffs have no manner of right over the suit property. The relationship mentioned in the plaint was admitted. According to them, since the parties are governed by Hindu Mitakshara Law, on the death of Chellappan Pillai, Lakshmikutty Ammal does not get any right over the suit property as his heir. They also denied the pliant allegations and claimed that the plaintiffs are not entitled to any reliefs and the suit is only to be dismissed. 4. A separate statement has been filed by defendants 8 and 9 also wherein similar contentions were taken. SA 433/95 3 5. On the basis of the above pleadings, necessary issues were raised by the trial court. The evidence consists of Exts.A1 to A3 marked from the side of the plaintiffs. The defendants had DWs 1 to 5 examined and Exts.B1 to B5 marked. 6. On an appreciation of the evidence in the case, the trial court found the plaint claim to be tenable and accordingly granted a preliminary decree, which reads as follows : “In the result, the suit is decreed and a preliminary decree is passed in the following terms : (1)First plaintiff is allowed to get partition and separate possession of 1/8 share over plaint item No.1 and 4/8 share over plaint item No.3. (2)First plaintiff's right for 4/8 share over item No.2 which is acquired under the Land Acquisition Act is hereby declared. (3)Second plaintiff is allowed to get partition and separate possession of 1/8 share out of plaint items 1 and 3. (4)Second plaintiff's right over 1/8 share in respect of item No.2, which is acquired under the Land Acquisition Act is hereby declared. (5)Plaintiffs 1 and 2 are allowed to realise mesne profits SA 433/95 4 in respect of their share over plaint items 1 and 3 from date of suit till recovery of possession, the quantum of which will be decided in the final decree proceedings. (6)In view of the relationship between the parties, I direct the parties to suffer their respective costs. (7)Plaintiff has to apply for passing a final decree within three months from this date.” 7. Defendants 1 to 6 and 10 carried the matter in appeal as AS No.116/90 before the District Court, Kollam. The lower appellate court, after an elaborate consideration of the matter, found no grounds to interfere and reserving the right of defendants 8 and 9 over plaint schedule item No.3, the appeal was dismissed. Hence the second appeal. 8. Notice is seen issued on the following questions of law raised in the second appeal : 1.When an ancestral co-parcenary property is partitioned in perstirpes, is there a terminus of co-parcenary ? 2.Will a female get a share in a perstirpes partition of ancestral co-parcenary property ? 3.Whether the co-parcenary will not survive on SA 433/95 5 the death of a member of the co-parcenary to the remaining co-parcenaries ? 4.In the absence of any evidence of exercise of possession by the owner for a quarter of a century, can these be not an inference of adverse possession ouster ? 9. The main contention taken before this court is that Lakshmikutty Ammal has no absolute right over the property got in the partition. A reading of Ext.A1 would show that it is a partition deed. Lakshmikutty Ammal, the wife of Narayana Pillai, who was no more at the relevant time, was entitled to a share in the suit property. Even assuming that the share set apart for Lakshmikutty Ammal is in lieu of her maintenance, by virtue of Section 14 of the Hindu Succession Act, her right becomes absolute. 10. The courts below have adverted to the relevant law on the point. The only contention is that Lakshmikutty Ammal is not a co-parcenor and therefore, she is not entitled to share. Being the wife of Narayana SA 433/95 6 Pillai, she was at least entitled to maintenance arrangement. By virtue of Section 14 of the Hindu Succession Act, her right becomes absolute. That is what the courts below have held. Going by the judgment and decree of the courts below, it is seen that no error has been committed by the courts below in coming to the conclusions. 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. No order as to costs. P.Bhavadasan, Judge sta SA 433/95 7