IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH WEDNESDAY, THE 7TH OCTOBER 2009 / 15TH ASWINA 1931 RSA.No. 256 of 2009() --------------------- AS.229/2006 of I ADDL. DISTRICT COURT, PALAKKAD OS.124/2005 of MUNSIFF COURT, ALATHUR .................... APPELLANT/APPELLANT/PLAINTIFF --------------------------------------- SUKUMARAN, AGED 68 YEARS S/O.LATE RAMANUNNI KARTHA, MELARCODE MADOM CHERAMANGALAM AMSOM ,ALATHUR TALUK. BY ADV. SRI.U.BALAGANGADHARAN RESPONDENT(S)/RESPONDENTS/DEFENDANTS: --------------- 1. JANAKI AMMA, AGED ABOUT 78 YEARS W/O.AKK UNNI, RESIDING AT AR NAIR COLONY KUNNATHUR MEDU POST, KUNNANUR AMSOM, PALAKKAD DISTRICT. 2. INDIRA, AGED ABOUT 49 YEARS D/O. JANAKI AMMA, RESIDING AT AR NAIR COLONY KUNNATHUR MEDU POST, KUNNANUR AMSOM, PALAKKAD DISTRICT. 3. SUMATHY, AGED ABOUT 48 YEARS D/O. JANAKI AMMA, RESIDING AT AR NAIR COLONY KUNNATHUR MEDU POST, KUNNANUR AMSOM, PALAKKAD DISTRICT. ADV. SRI.RAJESH SIVARAMANKUTTY THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 07/10/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: THOMAS P. JOSEPH, J. -------------------------------------- R.S.A.No.256 of 2009 -------------------------------------- Dated this the 7th day of October, 2009. JUDGMENT Respondents appear through counsel. Heard both sides. 2. This Second Appeal arises from judgment and decree of learned First Additional District Judge, Palakkad in A.S.No.229 of 2006 confirming judgment and decree of learned Munsiff, Alathur in O.S.No.124 of 2005. Appellant/plaintiff and respondents are members of the same tharwad. While so, there was a partition of the properties as per Ext.A1, partition deed No.348 of 1960 dated 18.2.1960. As per that partition deed C schedule was allotted to the appellant and E schedule was allotted to respondent Nos.1 to 3. Other schedules were allotted to other members of the tharwad. It is not disputed that the sharers of D schedule released their right in favour of respondents. Now what remains is only the A, B, C and E schedules. Appellant was given a right of residence in the tharwad house situated in the E schedule allotted to respondent Nos.1 to 3. Appellant filed the suit alleging that respondents are attempting to materially alter or demolish the tharwad house and to alienate the same to affect his right of residence in the tharwad house. Respondents denied the allegation that they are attempting to demolish the house but asserted the right of alienation. Learned Munsiff found that Ext.A1 does not affect right of respondents to alienate the tharwad house situated in the E schedule allotted to RSA No.256/2009 2 them but, subject to the right of residence reserved for appellant. So far as demolition of the structure is concerned, learned Munsiff granted relief in favour of the appellant and restrained respondents from doing so. Learned Munsiff refused to grant injunction against material alteration since it came out that building itself is 100 years old. Injunction against alienation was also refused for the reason above stated. Appellant, not being satisfied with the decree preferred appeal. Learned First Additional District Judge agreed with the findings entered by learned Munsiff and dismissed the appeal. Hence the Second Appeal urging the substantial questions whether without discharging right of residence enjoyed by the appellant, respondents could alienate the tharwad house situated in the E schedule and whether courts below misconstrued recitals in Ext.A1, partition deed. Learned counsel for appellant, placing reliance on the decision in Philipose Thressiamma v. Scaria Chinnamma (1969 KLT 715) contended that right of residence of appellant has to be protected and that the parties to Ext.A1 could not be understood to have intented that appellant should reside in the tharwad house along with the assignees from respondents. Learned counsel for respondents would contend that recitals in Ext.A1 do not in any way affect right of alienation of the respondents though subject to the right of residence of appellant. According to learned counsel courts below have construed Ext.A1 in the correct perspective and no substantial question of law is involved. 3. So far as prayer for injunction against material alteration is RSA No.256/2009 3 concerned, courts below found on the facts, evidence and circumstances that the prayer cannot be allowed. That is a finding of fact entered by the courts below considering the oldness of the structure as well. So far as that finding is not shown to be perverse, interference in Second Appeal is not called for. 4. What remained for consideration is whether on a question of alienation any substantial question of law is involved requiring consideration by this Court. In paragraph No.8 of Ext.A1 it is stated that the share value of A,B, and C shares is fixed as Rs.300/- each, (out of which Rs.150/- each has already been paid on demand by the appellant) and that if the said amount is not paid on demand, appellant can realize the amount even by sale of the tharwad house. Courts below found that the said recital revealed that even the appellant could, in a contingency as above stated arising sell the tharwad house which indicated that the parties did not intend that the tharwad house shall not be sold at any point of time. I am inclined to agree with that view. That apart none of the recitals in Ext.A1 bars the respondents from alienating the tharwad house ofcourse, subject to the right of residence of appellant. Decision relied on by learned counsel for appellant does not apply to the facts of this case. There, what was considered is whether a right of residence can be sold or attached and the question was answered in negative. No such contingency arises in this case. On going through the judgment and decree under challenge and hearing counsel on both sides and also perusing Ext.A1 I find no reason to think that courts below have misconstrued Ext.A1 and came to a wrong conclusion as to the right of respondents to alienate E schedule including the RSA No.256/2009 4 tharwad house subject to the right of residence of appellant. As such no substantial question of law is involved in this Second Appeal requiring its admission. Resultantly, this Second Appeal fails. It is dismissed. THOMAS P.JOSEPH, Judge. cks