IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.RAMKUMAR TUESDAY, THE 2ND DECEMBER 2008 / 11TH AGRAHAYANA 1930 RSA.No. 967 of 2008() --------------------- AS.278/2003 of SUB COURT,NEYYATTINKARA OS.232/1981 of PRL.M.C.,NEYYATTINKARA .................... APPELLANT/1ST DEFENDANT: -------------------------------------------- RAMAN NADAR, VELAYUDHAN NADAR, AGED 69, KALPALLICHALVILAKATHU VADAKKEPUTHEN VEEDU, THIRUPURATHOOR DESOM, THIRUPURAM. BY ADV. SRI.R.T.PRADEEP SRI.V.VIJULAL RESPONDENT(S): RESPONDENTS/PLAINTIFFS/2ND DEFENDANT: ---------------------------------------------------- 1. JANAKI KARTHI, AGED 68, PALLITHOTTATHU VEEDU, IRUMBIL DESOM, NEYYATTINKARA VILLAGE AND ALSO HAVING KALPALLICHALVILAKATHU VADAKKE PUTHEN VEEDU, THIRUPURAM VILLAGE, THIRUPURATHOOR DESOM. 2. JANAKI LEKSHMI, AGED 75, VIRALIVILA VADAKKE NARAYANATHU VEEDU, KULATHOOR DESOM AND VILLAGE AND ALSO HAVING KALPALLICHALVILAKATHU VADAKKE PUTHEN VEEDU, THIRUPURATHOOR DESOM, THIRUPURATHUR VILLAGE. THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 02/12/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: V.RAMKUMAR,J. ................................................... R.S.A. No. 967 of 2008 .................................................... DATED: 2-12-2008 JUDGMENT The first defendant in O.S. No. 232 of 1981 on the file of the Principal Munsiff's Court, Neyyattinkara is the appellant in this Second Appeal. The said suit was one for redemption of Ext.A1 mortgage and for putting up the eastern boundary of the plaint schedule item No. 2. 2. The case of the plaintiff can be summariased as follows:- Plaint schedule item No. 1 belonged to Raman Nadar the father of the plaintiff and the defendant. The plaintiff and the defendant are the legal representatives of the said Raman Nadar. Plaintiff filed O.S. 135/73 for partition and separate possession of her share over the plaint schedule properties and other properties. A final decree for partition had been passed in the said suit as evidenced by Ext.A2 certified copy. The said final decree has been modified by the High Court in R.S.A. No. 967 of 2008 -:2:- C.M.A. 122 of 1996. Specific plots were allotted to the plaintiff as per Ext.A2 final decree. After Ext.A2 the plaintiff filed application to transpose the second plaintiff as additional second plaintiff and for amendment. Plaint schedule item No. 2 is plot A, A1,A2, A3, D,E in Ext.C1 (E) plan which is item No. 5 in Ext.A2. As the defendant was allotted property on the eastern side of item No. 2 of Ext.A2 the plaintiff wants the boundary of plaint schedule item No. 2 to be put up. 3. The first defendant resisted the suit contending that he is not a redeeming co-mortgagor, that the prayer for proportionate mortgage money is misconceived that the suit is barred under Order 2 Rule 2 C.P.C. that the property mortgaged under Ext.A1 is not schedule to the plaint and that plaint schedule item No.1 exclusively belonged to father Raman Nadar and it was co-parcenery property. 4. The learned Munsiff, after trial, as per judgment and decree dated 25-03-2003 came to the conclusion that there is no material produced to show that the plaint schedule item No. 1 was co-parcenery property, that the first defendant had redeemed Ext.A1 mortgage and, therefore, it was suffice for R.S.A. No. 967 of 2008 -:3:- the plaintiff to pay her contribution to the mortgage money, that the suit filed in the year 1981 by the non-redeeming co- mortgagor for payment of the proportionate share of mortgage money to the first defendant was within time, that the present suit was not hit by Order 2 R. 2 C.P.C. Since redemption of the mortgage was not a necessary relief which should have been prayed for by the plaintiff in O.S. 135 of 1973 and that the prayer for putting up a boundary for plaint schedule item No. 2 along the line A1, A2 and A3 was not justified. The suit was, accordingly, decreed in part directing the plaintiff to pay Rs. 28.15 to first defendant being the proportionate mortgage money within a period of three months. However, the prayer for putting up the boundary was not granted in view of Ext.A2 decree. The suit was thus partly decreed. On appeal by the first defendant the lower appellate court has confirmed the decree and judgment as per judgment dated 2-4-2008 in A.S. 278 of 2003. Hence, this Second Appeal. 5. The following are the questions of law framed in the memorandum of appeal:- R.S.A. No. 967 of 2008 -:4:- i) Whether the plaintiff is precluded from seeking redemption of plaint schedule item No.1 property in the absence of pleading and proof that the share allotted to her is comprised of mortgaged property ? ii) Whether the sole co-parcener under Mithakshara Law with whom property devolved by survivorship on the death of other Col-parcener can be equated with a co-owner with whom right of partition devolved ? iii) Whether the sole surviving co-parcener who redeemed a portion of co-parcenary property outstanding on mortgage is an assignee mortgages in relation to other co-owners of property ? 6. The learned counsel for the appellant relying on the uncertified copies of the judgment dated 17-2-1977 in O.S. No. 135 of 1973 on the file of the Munsiff's Court, Neyyattinkara and the common judgment dated 27-8-1979 in A.S. No. in A.S. No. 714/77 and 721/77 on the file of the District Court, Thiruvananthapuram contended that those judgment would conclusively state that the property was co-parcenary property of Raman Nadar. He further argued that there was no issue also regarding coparcenary nature of the property. 7. Except a bald allegation in the written statement the appellant did not adduce any evidence to show that the plaint R.S.A. No. 967 of 2008 -:5:- schedule item No. 1 was co-parcenary property of Raman Nadar. In fact, a perusal of the uncertified copy of the judgment dated 27-8-1979 in A.S. 714 and 721 of 1977 will go to show that in O.S. 135 of 1973 there were 9 items in the plaint A schedule and one item in plaint B schedule. It has not been substantiated by the appellant that any of the suit items in O.S. 135 of 1973 is covered by the present suit. As mentioned earlier except raising the contention that the present property was co-parcenary property, the appellant did not produce any material either in the form of judgment or decree to substantiate the said plea. He did not even mount the witness box to give evidence in support of his contention. The courts below have rightly held that the appellant has failed to show that the property was co- parcinary property of Raman Nadar. The absence of an issue regarding this question need not deter the court from entering a finding on the question since the parties went to trial having in mind the said contention which was very much agitated before both the courts. It is even re-iterated before this Court. Hence, I see no ground to interfere with the judgments and decree passed by the trial court. No question of law, much less, any R.S.A. No. 967 of 2008 -:6:- substantial question of law arises for consideration in this case. The questions of law formulated in the memorandaum of appeal also do not arise for consideration in this Second Appeal which is dismissed in limine. Dated this the 2nd day of December 2008. V.RAMKUMAR, JUDGE ani