IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN THURSDAY, THE 23RD SEPTEMBER 2010 / 1ST ASWINA 1932 AS.No. 963 of 1998(A) ------------------------------ OS.503/1981 of I ADDL.SUB COURT, THRISSUR .................... APPELLANT(S): DEFENDANTS 2 TO 6 ----------------------------------------------------- 1. PADMANABHAN NAIR, S/O. KONNEATH PARUKUTTY AMMA, PUTHIYA MATHUR DESOM, CHIRAMANGATTU VILLAGE, TALAPPILLY TALUK. 2. AMMINI AMMA, KARALAMKKODE HOUSE, W/O. LATE SANKARANKUTTY NAIR, DO. DESOM DO. VILLAGE. 3. SUBAGA, D/O. KARALAMKKODE AMMINI AMMA, W/O. KONNEATH PADMANABHAN NAIR, DO. DESOM DO. VILLAGE. 4. SREE MALINI , D/O. KARALAMKKODE AMMINI AMMA, DO. DESOM, DO. VILLAGE. 5. MAHESWARI, D/O. KARALAMKKODE AMMINI AMMA, PUTHIYA MATHUR DESOM, CHIRAMANGATTU VILLAGE, TALAPPILLY TALUK. BY ADV. SRI.P.R.VENKETESH RESPONDENT(S): PLAINTIFF AND DEFENDANTS 7 TO 9 -------------------------------------------------------------------------------- 1. KOCHU GOVINDAN NAIR, S/O. KONNEATH MUKAMI AMMA, PUTHIYA MATHORE DESOM, CHIRAMANAGATTU DESOM, TALAPPILLY TALUK. 2. SURYA NARAYANAN, D/O. PARAMABATH CHANDRIKA AMMA, PUTHIYA MATHUR, DESOM, DO VILLAGE, DO. TALUK. AS. NO.963/1998 3. MINOR ARUN KUMAR, SURYA NARAYANAN, DO. DO. 4. MINOR PRASAD, S/O. DO. DO. (MINORES REP.BY GUARDIAN NEXT FRIEND, FATHER SECOND RESPONDENT). BY ADV. SRI. K.G.BALASUBRAMANIAN THIS APPEAL SUITS HAVING BEEN FINALLY HEARD ON 23/09/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: M.N.KRISHNAN, J. ------------------------- A.S.No. 963 of 1998 ------------------------------------- Dated this the 23rd day of September, 2010. J U D G M E N T This is an appeal preferred against the judgment and decree of the Subordinate Judges Court, Thrissur in O.S.No.503/1981. The suit is one for a declaration and recovery of possession. The trial Court had decreed the suit and aggrieved by the same, defendants 2 to 6 have come up in appeal. 2. Heard the learned counsel for the appellants as well as the respondents. The brief facts necessary for the disposal of the appeal are stated as follows: 3. It is the case of the plaintiff that the plaint schedule property along with other properties were a subject matter of division in a 1958 partition deed. The plaintiff's father is named Sreedharan Namboodiri. Item No.14 in A schedule was one of the properties that was set apart to Sreedharan Namboodiri. 4. Item Nos. 15 and 16 of C schedule was the property set apart to Kesavan Namboodiri by the very same partition. Sreedharan Namboodiri assigned item No.14 of A schedule to Kesavan Namboodiri and Kesavan Namboodiri in turn assigned A.S.No. 963 of 1998 2 items 15 and 16 of C schedule in favour of Sreedharan Namboodiri by virtue of Ext.A5. The present plaint schedule properties are item nos.15 and 16 of C schedule which was obtained by Sreedharan Namboodiri under Ext.A15 document. The contention of the plaintiff is that there was an oral partition between his brother and mother and in that oral partition plaint schedule property was set apart to his share and defendants had trespassed into that property in the year 1980 and therefore he had sought for a declaration of title and recovery of possession of the property with mesne profits. 5. On the other hand, the defendants would contend that the plaint schedule property admittedly belonged to Sreedharan Namboodiri by virtue of Ext.A5. But there had never been an oral partition and therefore that property has devolved upon the mother and two sons equally and therefore, the plaintiff does not have exclusive title to the property. 6. There was an earlier round of litigation whereby the suit was dismissed and in appeal, this court remanded the case back for fresh trial. It is against the revised judgment the present A.S.No. 963 of 1998 3 appeal is preferred. Learned counsel for the appellants very strongly contends before me that the oral partition is only a story and it is not backed up any materials so as to convince conscience of the court regarding the genuineness of the same. On the other hand plaintiff's counsel would contend that the materials are sufficiently strong to infer the oral partition. It is a settled principle that partition need not be effected by a registered instruments. But when it is reduced to writing it is to be reduced. Oral partition is permissible in law. But oral partition has to be established by the conduct of the parties prior to and subsequent to the alleged oral partition. Now the learned counsel for the plaintiff in the case would contend that the plaintiff is only having this property and he has no other property. The documents in the form of revenue receipts and levy notices would indicate that the plaintiff has measured levy and paid tax for the property which was originally item No.14 of A schedule, which was allotted to Sreedharan Namboodiri as per the partition deed. But by virtue of Ext.A5 that property was given to Kesavan Namboodiri and in turn this property has come A.S.No. 963 of 1998 4 to Sreedharan Namboodiri. As stated by the trial court nobody would measure the levy or pay tax to the property over which he has no interest. Therefore, not showing the survey number etc. properly can legitimately be a mistake. That alone cannot be a ground to uphold the oral partition. Now the mother of the plaintiff and first defendant namely Mookami Amma had executed two documents. One in the form of a will in 1969 which is marked as Ext.A10 and another a gift which is marked as Ext.A7. In Ext. A10 executant traces the title to the property, which is the subject matter of the will and it is specifically stated therein: 7. Ext.A10 relates to four items of property. One item is the property allotted to Mookami Amma in a partition in her family and three other items are the property, which she had inherited from her husband by virtue of the partition. So the factum of an oral partition is explicitly made clear and referred to A.S.No. 963 of 1998 5 in Ext.A10, which is the document of the year 1969. Again with respect to the very same property by virtue of Ext.A7 Mookami Amma had gifted these items to the others. So a reading of Ext.A7 and Ext.A10 together would conclusively show that there had been oral partition in the family in relation to the property of Sreedharan Namboodiri and that Mookami Amma had obtained four items of property and she is dealing with that property. It has to be understood when a partition is effected between the mother and children naturally the property belonging to the father has to be included and divided. Only when it is done the share of the parties can be ascertained. Therefore, Ext.A7 and A10 goes a long way to establish the case of the plaintiff regarding the oral partition. If really there was no oral partition with respect to this property necessarily being a senior most member, the property should have been enjoyed by Mookami Amma and she would have paid the tax and or levy to the property. Not even a solitary paper is produced before court that Mookami Amma or denfendant at any point of time was dealing with the property. Therefore, it has to be stated the sum and A.S.No. 963 of 1998 6 substance of the entire materials available would clinchingly indicate that there had been an oral partition in the family and that plaintiff had been the enjoyment of the property on the strength of the oral partition. When it is so he had title to the property and the interference of his possession over the property has to be prevented and his right has to be preserved and recovery has to be effected. The learned Subordinate Judge has analyzed the matter in the correct perspective and arrived at a proper decision. Therefore, the decree and judgment in the trial court is perfectly correct. The appeal is devoid of merits and therefore it is dismissed, but under the circumstances without any order as to costs. M.N.KRISHNAN, JUDGE ln