IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR FRIDAY, THE 29TH JANUARY 2010 / 9TH MAGHA 1931 SA.No. 466 of 1996(E) --------------------- AS.126/1991 of SUB COURT, PAYYANNUR OS.111/1987 of MUNSIFF COURT, PAYYANNUR .................... APPELLANTS/RESPONDENT NO.9 TO 12/DEFENDANT 9 TO 12: ---------------------------------------------------------------------- 1. KOTTOORE VEETTIL SAROJINI, AGED 46 YEARS, D/O.LATE KUNHIKKAM AMMA RESIDING AT PERALAM AMSOM, KOZHUMMAM DESOM. 2. K.RAGHAVAN, AGED 44 YEARS, -DO- -DO- 3. K.PADMAVATHI, AGED 42 YEARS, -DO- 4. K.THAMBAI, AGED 34 YEARS, -DO- -DO- BY ADV. A.K.ALEX RESPONDENT(S)/APPELLANTS/ RESPONDENT 3 TO 8/ PLAINTIFF/ DEFENDANT 3 TO 8: --------------------- 1. K.KUNHIRAMAN, S/O.MANIKKAM AMMA, 70 YEARS, NO OCCUPATION RESIDING IN ANANDASRAM, AJANOOR AMSOM 2. PARAKKANDIYIL UNDICHI, W/O.DECEASED KRISHNAN, AGED 57 YEARS, RESIDING IN ANANOOR AMSOM, HOSDURG TALUK 3. KUNHIRAMAN, AGED 42 YEARS, NO OCCUPATION, -DO- -DO- 4. SAROJINI, 40 YEARS, -DO- -DO- 5. YESODA, 38 YEARS, NO OCCUPATION -DO- -DO- 6. SUSHEELA, 36 YEARS, -DO- -DO- 7. JUNHAMBU, 36 YEARS, NO OCCUPATION -DO- -DO- ADV. SRI.O.V.MANIPRASAD FOR R2 TO 7 SRI. R.SHANKAR FOR R1 THIS SECOND APPEAL HAVING BEEN FINALLY HEARD ON 29/01/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: M.SASIDHARAN NAMBIAR,J. ------------------------------------------ S.A.NO.466 OF 1996 ------------------------------------------ Dated 29th January 2010 JUDGMENT Defendants 9 to 12, who were subsequently impleaded in the suit who are the legal heirs of deceased first respondent, are the appellants. First respondent is the plaintiff and respondents 2 to 7 are defendants 3 to 8. Second defendant was not the seen impleaded in the appeal. O.S.No.111/1987 was filed before Munsiff court, Payyannur for partition and allotment of 1/4th share of the first respondent plaintiff. Case of the first respondent was that plaint schedule property originally belonged in jenm to Chennamangalath Illath Eswaran Namboodiri and was outstanding in the possession of Sa 466/96 2 A.T.V.Kunhambi Nambiar on kuzhikanam right and he conveyed the property to Kottoor Veettil Kunhiraman as per document No.2534/1929 and Kunhiraman under Ext.A1 assignment deed of 1944 transferred it in favour of Kottoor Veettil Chiruthayi and Manikyam and they were in possession of the property. First respondent and deceased Krishnan are the children of Manikyam. Respondents 2 to 7 who are defendants 3 to 8 are the legal heirs of deceased Krishnan. Appellants and second defendant are the children of Chiruthayi. According to first respondent on the death of Chiruthayi and Manikyam and deceased Krishnan, son of Manikyam, the property devolved on appellants, second defendant, first respondent and respondents 2 to 7 and they are in joint possession of the property. First respondent Sa 466/96 3 claimed 1/4 share in the property contending that appellants as second defendant legal heirs of deceased first defendant are entitled to ¼ share each and respondents 2 to 7 together are entitled to 1/4 share. 2. Only first defendant contested the suit. First defendant in the written statement expressed ignorance of the property obtained under Ext.A1 and raised a contention that even if Ext.A1 is there, it was a sham document created and no property was transferred thereunder. According to first defendant, an extent of 72 cents was obtained by Chiruthayi, his mother as per an oral lease and has been in possession of the property and on the death of Chiruthayi it devolved on the appellants and second defendant and subsequently second defendant released his rights in favour of the Sa 466/96 4 first defendant and first defendant alone is entitled to the property and plaint schedule property is not the property covered by Ext.A1. 3. Learned Munsiff on the evidence of PW1, DW1, Exts.A1 to A8 and B1 to B32 dismissed the suit holding that plaint schedule property is not proved to be the property obtained under Ext.A1. First respondent filed A.S.126/1991 before the Sub court, Payyannur challenging the decree and judgment. Learned Sub Judge on re-appreciation of evidence found that learned Munsiff did not consider the question of title and instead for the reason that plaint schedule property is not proved to be the property, covered by Ext.A1 dismissed the suit. The question whether Chiruthayi and Manikyam obtained the property under Ext.A1 was not considered. Instead it was found that Sa 466/96 5 identity of the property was not established. Learned Sub Judge found that plaint schedule property is the property obtained by Chiruthayi and Manikyam under Ext.A1 and therefore, it is available for partition and on the death of Chiruthayi her rights devolved on defendants 1 and 2 and on the death of Manikyam her half right devolved on first respondent and deceased Krishnan and each of them has ¼ shares. It was also found that on the death of Krishnan his 1/4 share devolved on respondents 2 to 7. Accordingly a preliminary decree was passed holding that plaint schedule property shall be divided into four equal shares and first respondent is entitled to one share and appellants as legal heirs of deceased first respondent and second defendant are entitled to one share each and respondents 2 to 7 Sa 466/96 6 together are entitled to the remaining one share and first respondent and respondents 2 to 7 are entitled to get their share of profits from the appellants. Second appeal is filed challenging the said preliminary decree passed by the learned Sub Judge in the first appeal. 4. Though records show that on 10/9/1996 notice was ordered to the respondents, substantial questions of law were not formulated. Therefore, it is necessary to decide whether any substantial questions of law in fact, arises in the appeal. 5. Argument of the learned counsel appearing for the appellants is that learned Sub Judge was not justified in granting a preliminary decree in respect of the plaint schedule property when it is not proved that plaint schedule property is the property Sa 466/96 7 obtained under Ext.A1. Learned counsel appearing for the first respondent made available copy of final decree passed by the learned Munsiff in I.A.1893/1996 subsequent to preliminary decree passed by the learned Sub Judge, on 1/3/1999 whereunder plaint schedule property, which is found to be having an extent of 36 cents, was divided into plot A to plot D and first respondent was allotted plot D and plot C was allotted to the appellants, including the residential building. It was also submitted that share allotted to first respondent has already been taken delivery also. 6. Though deceased first defendant expressed ignorance of Ext.A1 property and contended that it is not the plaint schedule property, Ext.A1 establishes that 40 cents Sa 466/96 8 described therein was jointly obtained by Chiruthayi and Manikyam. Appellants and second defendant are the children of Chiruthayi and deceased Krishnan and first respondent are the children of Manikyam. Therefore, if the property covered under Ext.A1 is available for partition as rightly found by learned Sub Judge, first respondent is entitled to 1/4 share appellants and second defendant are entitled to 1/4 share each. Respondents 2 to 7 together are entitled to the remaining 1/4 share. Apart from contending that first defendant is not aware of the property covered under Ext.A1, there is no case for the appellants that the said property was transferred either by Chiruthayi or Manikyam. If that be so, the property obtained under Ext.A1 is liable to be divided among the Sa 466/96 9 sharers as found by the first appellate court. The learned Sub Judge rightly relied on Ext.B32 notice sent by first defendant to Kunhambu Nambiar the assignor of the assignor of Ext.A1 where it is specifically admitted that the property having an extent of 40 cents was obtained by Chiruthayi and another on assignment which could only be Ext.A1. It was also found that in Ext.A6 reply notice the case of the first defendant was that the said 40 cents was obtained on lease and not 72 cents as claimed in the written statement. It was therefore, found that the said property is the plaint schedule property and therefore, it is available property. That factual finding is absolutely correct. Normally, extent and identity of the property could be fixed at the final decree stage. The final decree passed by Sa 466/96 10 the learned Munsiff on 1/3/1999 establishes that plaint schedule property was identified in the final decree and divided in accordance with preliminary decree and allotted to the sharers. In such circumstances, it is futile for the appellants now to contend that there is no property as seen in Ext.A1 or that its identity is not established. 7. The only contention raised by the original first defendant was that plaint schedule property was obtained on an oral lease by Chiruthayi. When was the oral lease and what was the terms were not even pleaded. Even if first defendant or his legal heirs obtained purchase certificate for the property it can only be on the strength of the rights obtained by Chiruthayi along with Manikyam and therefore, based on the purchase certificate Sa 466/96 11 also the claim for partition cannot be resisted. On the facts and evidence I find that absolutely no substantial question of law involved in the appeal. Appeal is dismissed. M.SASIDHARAN NAMBIAR, JUDGE. uj.