IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN FRIDAY, THE 23RD JULY 2010 / 1ST SRAVANA 1932 AS.No. 26 of 2003(C) -------------------- OS.90/1995 of III ADDL.SUB COURT, ERNAKULAM .................... APPELLANT(S): DEFENDANTS 1 TO 16, 18 TO 20, 23, 26 TO 33: --------------------------------------------------------- 1. N.X. JOSEPH (DIED). 2. N.X. PETER, S/O. SOURO, NEDUMPARAMBIL VEEDU, KUNDANOOR, MARADU VILLAGE, KANAYANNUR TALUK. 3. MOLLY, W/O. KALISTER, NEDUMPARAMBIL VEEDU, KUNDANOOR, MARADU VILLAGE, KANAYANNUR TALUK. 4. RANI, D/O. KALISSTER, NEDUMPARAMBIL VEEDU, KUNDANOOR, MARADU VILLAGE, KANAYANNUR TALUK. 5. REENA, D/O. KALISTER, NEDUMPARAMBIL VEEDU, KUNDANOOR, MARADU VILLAGE, KANAYANNUR TALUK. 6. V.R. JOSEPH, HUSBAND OF ROSSY, VAZHAKOOTTATHIL HOUSE, KALOOR, ERNAKULAM. 7. XAVIER ALIAS KUNJUMON, S/O. JOSEPH, VAZHAKOOTTATHIL HOUSE, KALOOR, ERNAKULAM. 8. GEETHA, W/O. GEORGE, RESIDING AT VENKALAPARAMBU, FORT COCHIN, VELY P.O. 9. NEENA ALIAS SALEENA, D/O. ROSY & W/O. PAUL, PANACKAPARAMBIL VEEDU, PALLIPURAM P.O., ERNAKULAM. Kss ..2/- ..2.... AS.NO.26/2003 10. A.A. RAPHAEL, HUSBAND OF MARY, AAYATHUPARAMBIL HOUSE, THAIKOOTTAM CHURCH ROAD, VYTTILA, ERNAKULAM. 11. A.R. ANGONY ALIAS ANTO, S/O. RAPHEL, AAYATHUPARAMBIL HOUSE, THAIKOOTTAM CHURCH ROAD, VYTTILA,ERNAKULAM. 12. A.R. GEORGE ALIAS STANLY, AYATHUPARAMBIL HOUSE, THAIKOOTTAM CHURCH ROAD, VYTTILA, ERNAKULAM. 13. METTILDA GEORGE ALIAS MARY, NEDUMPARAMBIL HOUSE, THAIKOOTTAM, VYTTILA, ERNAKULAM. 14. MINI, D/O. MARY & W/O. SHAJI, NEDUMPARAMBIL HOUSE, THAIKOOTTAM, VYTTILA, ERNAKULAM. 15. XAVIER, S/O. JOSEPH. N.X., NEDUMPARAMBIL HOUSE, MARADU KARA, KANAYANNUR TALUK. 16. PHILIX, S/O. N.X. JOSEPH, NEDUMPARAMBIL HOUSE, MARADU KARA, KANAYANNOOR TALUK. 17. N.P. ROY, S/O. PETER, NEDUMPARAMBIL HOUSE, MARADU KARA, KANAYANNOOR TALUK. 18. XAVIER, S/O. JOSEPH, NEDUMPARAMBIL HOUSE, (KOTTARATHIL), KUNDANNOOR DESOM, MARADU VILLAGE, KANAYANNUR TALUK. 19. M.U. UDHAYAN, S/O. SAROJINI, MAVUMKAL HOUSE, KUNDANOOR DESOM, MARADU VILLAGE, KANAYANNUR TALUK. 20. BEENA ROSSY ALIAS BEENA, D/O. PETER, NEDUMPARAMBIL (KOTTARATHIL) HOUSE, KUNDANNOOR DESOM, MARADU VILLAGE, KANAYANNUR TALUK. 21. VELAYUDHAN, S/O. SANKUNNY, NEDUMPARAMBIL PURAYIDOM, KUNDANOOR DESOM, MARADU VILLAGE, KANAYANNUR TALUK. Kss ..3/- ...3.... AS.NO.26/2003 22. RAJAPPAN, S/O. SANKUNNI, NEDUMPARAMBIL PURAYIDOM, MARADU VILLAGE, KANAYANNUR TALUK. 23. SREEDHARAN, S/O. SANKUNNI, NEDUMPARAMBIL PURAYIDOM, MARADU VILLAGE, KANAYANNUR TALUK. 24. ROSSAKUTTY, W/O. LATE JOSEPH, NEDUMPARAMBIL HOUSE, KUNDANNUR, MARADU VILLAGE, KANAYANNUR TALUK. 25. JAMMA BABY, D/O. N.K. JOSEPH, PATHYALA HOUSE, THAIKOODAM, VYTTILA P.O., KOCHI - 19. 26. SHERLY JOY, C/O. ANJATTU JOSEPH, ANJATTU HOUSE, VALLARPADAM, PANAMBUKADU, KOCHI-31. 27. MELNA ALOSHY, CHERUPUNNATHU HOUSE, NEAR POWER HOUSE, VYTTILA P.O.,KOCHI-19. 28. STELLA WILLY, C/O. XAIVER, KUNNATHU HOUSE, MARADU P.O. BY ADV. SRI.N.P.SAMUEL RESPONDENT(S): PLAINTIFF & DEFENDANTS 17,21,22,24,25: ------------------------------------------------------------------------------------------- 1. PHILOMINA, W/O. ALEXANDER, KURIKAYIL HOUSE, VYTTILA KARA, JANATHA ROAD, POONITHURA VILLAGE, KANAYANNUR TALUK, ERNAKULAM DIST. 2. SAJAN, S/O. N.X. JOSEPH, NEDUMPARAMBIL HOUSE, MARADU KARA, KUNDANNOOR DESOM, KANAYANNUR TALUK, ERNAKULAM DIST. Kss ..4/- ...4.... A.S.NO.26/2003 3. JOSEPH, S/O. SEBASTIAN, ANJATTUPARAMBIL HOUSE, PANAMBUKADU DESOM, MULAVUKAD VILLAGE, KANAYANNUR TALUK, ERNAKULAM DIST. 4. SUNIL NAIR, MANAGING DIRECTOR, POORNA ESTATE AND EXPORTS (P) LTD., NEDUMCHALIL BUILDINGS, MULLASSERY CANAL ROAD, ERNAKULAM,COCHIN-11. * THE NAME OF THE 4TH RESPONDENT IS DELETED FROM THE PARTY ARRAY AT THE RISK OF THE PETITIONERS VIDE ORDER DATED 3/11/2003 ON I.A.NO.2073/2003. 5. SANKUNNI (DIED). 6. CHEERAN (DIED). R1 BY ADVS. SRI.V.EAPEN MATHAI, SRI.MATHAI EAPPEN VETTATH, SMT.P.P.STELLA, SMT.A.R.USHA. R2 BY ADV. SRI. V.R.RUPESH THIS APPEAL SUITS HAVING BEEN FINALLY HEARD ON 23/07/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Kss ORDER ON I.A.NO.146/2003 IN AS NO.26/2003 DISMISSED 23/07/2010 SD/- M.N.KRISHNAN, JUDGE /TRUE COPY/ P.A. TO JUDGE Kss M.N. KRISHNAN, J. = = = = = = = = = = = = = = = A.S. NO. 26 OF 2003 = = = = = = = = = = = = = = = Dated this the 23rd day of July, 2010. J U D G M E N T This appeal is preferred against the judgment and decree passed by the III Additional Subordinate Judge, Ernakulam in O.S.90/95. The suit is one for partition and the trial court has decreed the suit and directed the properties to be divided into six equal shares and to allot one share to the plaintiff. Then the question of equity etc. were considered and provisions are made to protect the interest of purchasers. It is against that decision defendants 1 to 16, 18 to 20, 23, 26 to 33 have come up in appeal. The brief facts necessary for the disposal of the appeal are stated as follows. The properties described in the plaint schedule belonged to one Mathunni, Pethru, Thressia and A.S. 26 OF 2003 -2- Souro. This Thressia and Souro had six children namely Joseph, Peter, Kalister, Thressia, Rosy and Merry. The plaintiff is the daughter of Thressia. D1 and D2 are Joseph and Peter respectively. Defendants 3 to 5 are the legal representatives of Kalister. Defendants 6 to 9 are the legal representatives of Rosy and defendants 10 to 14 are the legal representatives of Merry. During the pendency of the litigation first defendant died and his legal representatives are impleaded as defendants 29 to 33. Defendants 15 to 18 and 19 to 25 are purchasers of portions of the property and defendants 26 to 28 are the legal representatives of one of the purchasers namely 24th defendant. It is the case of the plaintiff that the properties described in the plaint schedule belonged to her ancestors and therefore A.S. 26 OF 2003 -3- on their death it had devolved on her as well. Her specific case is that an extent of 3 acres and 27 cents of the plaint schedule property belonged to Mathunni and Pethru and another extent of one acre and 13½ cents belonged to Thressia(plaintiff's grandmother wife of Souro). The plaintiff is claiming right over the entire properties. 2. The defence is that a partition has been entered into as Ext.A1 in the year 1969 between three sons and their mother Thressia by virtue of which the properties are allotted only to the sons and the mother Thressia has not been allotted any share but the executants to the document had reserved the right in favour of Thressia to enjoy the usufructs of the property mentioned in the document till her death. There is also a provision whereby two daughters Rosy A.S. 26 OF 2003 -4- and Merry as well as granddaughter Thressia namely plaintiff are directed to be paid Rs.500/- each. Now the contention of the plaintiff is that the said document is not binding on her for the reason that she is not a party to the proceedings and her right which is otherwise there in the property cannot be taken away by virtue of the execution of that document. This is presumably on account of the principles laid down by the Hon'ble Supreme Court in Mary Roy's case (Mary Roy and others v. State of Kerala and others (1986 KLT 508). It is true that when there is a property right unless there is a relinquishment of that property right it cannot be get extinguished. But now in this case I feel the case has to be compartmentalized into two, i.e. first compartment is with respect to 3 acres and 27 A.S. 26 OF 2003 -5- cents which belonged to Mathunni and Pethru, the second compartment is with respect to one acre and 13½ cents belonging to Thressia, the grandmother of the plaintiff. So far as three acres and 27 cents are concerned when the plaintiff had acquired right in the property by virtue of the death of her mother without her junction the said right cannot be taken away. So any amount of assertion in Ext.A1 document would not militate against her right and therefore as the legal representative of her mother Threesia and as it is the daughter of Souro and Thrresia she will be entitled to 1/6th shares as there were six children also to this couple. Ext.A1 thus I hold will not affect the right of the plaintiff in the property. 3. Now the next question is regarding one acre and 13½ cents. Even according to the A.S. 26 OF 2003 -6- plaintiff it is the property which belonged to the grandmother, Thressia. During the life time of Thressia in the year 1969 this property has been put into the common hotch pot and division has been effected between the sons and the mother whereby the mother had not reserved any right in her favour but only right to enjoy the income from the property. Therefore by virtue of the provisions in the partition deed the mother had virtually given up her right in the property and therefore when it is accepted the question of succession being opened to that property on the death of grandmother Thressia does not arise. So I find that this one acre and 13½ cents of property are not available for partition. 4. Learned counsel for the appellant had then raised a contention of adverse possession A.S. 26 OF 2003 -7- and limitation or ouster. The classical decision of this Court regarding adverse possession between co-owners is reported in Krishnan v. Raman (1986 KLT SN 104 page 63). The Court held that, “It may not be always possible for each and every co-owner to be in physical possession of the co- ownership property. Some of them or one of them alone may be in actual physical possession and others may be sharing rents and profits from him or them. Some times sharing of rents and profits itself may not be there ans some of them or one of them alone may be appropriating the income without sharing the same with other co-owners. In all these cases law presumes that the co-owner or co-owners in actual possession is or are so in possession not for himself or A.S. 26 OF 2003 -8- themselves alone but on behalf of other co-owners also.” 5. Then this Court went on to consider the question and held that the classical principle to be followed in these types of cases are the principle of nec vi nec claim nec precario. That is, possession required must be adequate in continuity, in publicity and in extent to show that its possession adverse to the rival claimant. 6. Now at the outset I may like to state that the contention of the defendants is to the effect that the plaintiff does not have title over the property at all. So according to them, the plaintiff does not have right over the property at all. When they do not admit the right of the plaintiff necessarily there cannot be any hostile animus against that person. Therefore the fundamental ingredient of hostile A.S. 26 OF 2003 -9- animus does not come for consideration in this case at all. Secondly it is not pleaded properly in the written statement from which date or which period the hostile animus starts. Therefore there is absolutely no materials to hold in favour of adverse possession and limitation. Therefore the plea of adverse possession and limitation or ouster also has to be negatived. 7. So from these discussions I find the result of the case is to the effect that one acre and 13½ cents of property which belonged to the grandmother Thressia is to be deleted from the partition decree and a preliminary decree of partition with respect to the other properties have to be passed as follows. Therefore a revised preliminary decree is passed. A.S. 26 OF 2003 -10- (1) The plaint schedule properties other than one acre and 13½ cents of property which belonged to the grandmother Thressia is ordered to be divided into 6 equal shares and to allot one such share to the plaintiff. (2) The property which belonged to the grandmother Thressia having an extent of one acre and 13½ cents is excluded from partition. (3) When the plaintiff's share is worked out in the final decree as far as the property outstanding with the strangers be not allotted to her share and be allotted to the persons from whom the strangers have purchased the property so that equity can be worked out. (4) The plaintiff shall be entitled to future profits as ordered by the trial Court, the quantum of which can be decided in the final decree proceedings and the respective persons in A.S. 26 OF 2003 -11- possession be liable to pay the same to the plaintiff. Parties are at liberty to apply for final decree proceedings. Let the costs of the appeal as well as the of the suit come out of the estate. Sd/- M.N. KRISHNAN, JUDGE. ul/- “The preliminary decree is further modified directing that the plaint schedule properties, excluding the 1 acre and 13½ cents as included in schedules 3 and 6 of the plaint, shall be partitioned into 7 equal shares and the plaintiff shall be allotted one of such shares”, vide order dated 12/10/2015 in R.P. 994/2010 in A.S.No.26/2003. Sd/- Registrar(Judicial) A.S. 26 OF 2003 -12- M.N. KRISHNAN, J. = = = = = = = = = = A.S. No. 26 OF 2003 = = = = = = = = = = = J U D G M E N T 23rd July, 2010.