IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE HARUN-UL-RASHID MONDAY, THE 21ST DECEMBER 2009 / 30TH AGRAHAYANA 1931 AS.No. 696 of 1999(D) --------------------- OS.791/1995 of D.C. & ADDL.SUB COURT-II, KOZHIKODE .................... APPELLANT/PLAINTIFF ----------------------------------- P.PADMINI AGED 52 YEARS W/O MADHAVAN, RESIDING AT PAYANGOTTU HOUSE POST AZHINJILAM FAROOK COLLEGE MALAPPURAM DISTRICT. BY ADV. ôRI.P.V.KUNHIKRISHNAN RESPONDENTS/ DEFENDANTS ------------------------------------------------ 1. KALYANI, AGED 71 YEARS, W/O LATE RARUKUTTY MUTHIRAKALAYIL HOUSE PANTHEERANKAVU AMSOM AND DESOM KOZHIKODE TALUK . 2. DASAN, AGED 50 YEARS S/O KALYANI -DO- -DO- 3. RAMADEVI, AGED 40 YEARS D/O KALYANI -DO- -DO- 4. SIVANANDAN, AGED 38 YEARS S/O KALYANI -DO- -DO- 5. LATHA AGED 32YEARS D/O KALYANI -DO- -DO- 6. RAGHAVAN S/O KELUKUTTY -DO- -DO- 7. THANKAMANI W/O VELAYUDHAN -DO- -DO- ADV. SMT.KOCHUMOL KODUVATH FOR R1,2,4 & 5 SRI.JACOB ABRAHAM FOR R1,2,4, & 5 SMT.M.C.BINDUMOL FOR R1,2,4, & 5 THIS APPEAL SUITS HAVING BEEN FINALLY HEARD ON 21/12/2009, THE COURT ON 21/12/2009 DELIVERED THE FOLLOWING: ORDER IN C.M.P. NO.5519 OF 1999 IN A.S. NO. 696 OF 1999 DISMISSED SD/- HARUN-UL-RASHID, JUDGE 21.12.2009 HARUN-UL-RASHID, J. ---------------------------------------- A.S.No.696 of 1999 ---------------------------------------- Dated this the 21st day of December, 2009 JUDGMENT The plaintiff in O.S. No.791/1995 on the file of the II Additional Sub Judge, Kozhikode is the appellant. The suit was filed for partition and separate possession of 1/6th share in the plaint schedule property. The suit was dismissed by the trial court holding that the plaint schedule property is not available for partition. Hence the appeal. The parties hereinafter are referred to as plaintiff and defendants as arrayed in the suit. 2. It is not disputed that the property belonged to one Manikam. She acquired the property as per a registered kanam assignment deed No. 210/1932(Ext.A1) The 1st defendant is the only daughter of Manikam. The plaintiff and defendants 2 to 5 are the children of the 1st defendant. Manikam died in the year 1982. According to the plaintiff, since the parties belong to Thiyya Community of Kozhikode Taluk, it is alleged that, the plaintiff and defendants 1 to 5 are entitled to 1/6th share each. 3. In the joint written statement filed by defendants 1, 2, 4 and 5 it is contended interalia that the plaint schedule property devolved on the 1st defendant, the only daughter of Manikam, that after the death of Manikam in the year 1982 there was no joint possession as alleged in the plaint and that Manikam had never treated the property as a joint family property. According to these defendants Manikkam had alienated 10 A.S.No.696 of 1999 -2- Cents of land during her life time and executed a registered will as document No. 55/1973 bequeathing the balance property in the names of defendant 1, 2 and 4 . These defendants also prayed for the dismissal of the suit. 4. The evidence in this case consists of Ext.A1, A2 C1 and C2 and the testimony of PWs 1 and 2. 5. The trial court examined the issue as to whether the plaint scheduled properties were joint family properties as claimed by the plaintiff and other issues necessary for decision. 6. The plaint schedule property was acquired by the deceased Manikam as per Ext.A1 Kanam assignment deed. The contention of the plaintiff is that since Manikam was enjoying the property as family property and as per customary law of the parties who belonged to Thiyya community of Kozikode Taluk, the plaintiff and defendants are entitled to claim the share of the properties of the deceased. The defendants/respondents contended that the property absolutely belong to Manikam alone and there was no joint family property as contended by the plaintiff and that since the Manikam died in the year 1982, the parties are governed by the Hindu Succession Act 1956.. The trial court examined the question as to whether there is any evidence to show that Manikam has treated the property as a joint family property. The trial court A.S.No.696 of 1999 -3- also placed reliance on the alienations made by the deceased Manikkam to strangers during her lifetime. It is pertinent to note that the deceased Manikam had registered a will in respect of the remaining properties to defendants 1, 2 and 4 . The said circumstances shows that Manikam had obtained absolute right over the property and that it was not joint family property as claimed by the plaintiff. Moreover there is no proper pleading nor proof to show that the plaint schedule property was acquired for the benefit of the joint family. Therefore the trial court rightly held that the plaint schedule property absolutely belongs to late Manikam and the same was not a joint family property as claimed by the plaintiff and dismissed the suit. I do not find any reason to interfere with the findings entered by the trial court. In the result, the judgment and decree passed by the trial court are confirmed. The appeal fails and accordingly dismissed. There will be no order as to costs. (HARUN-UL-RASHID, JUDGE) es. HARUN-UL-RASHID, J. --------------------------- A.S.No.696 of 1999 ---------------------------- JUDGMENT 21st December, 2009