IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN FRIDAY, THE 26TH NOVEMBER 2010 / 5TH AGRAHAYANA 1932 AS.No. 405 of 2001(C) ------------------------------- OS.247/1993 of PRINCIPAL SUB COURT, ALAPPUZHA .................... APPELLANTS/DEFENDANTS: ----------------------------------------- *1. SADANANDAN, S/O.AYYANKUTTY, THEKKEVELIYIL HOUSE FROM CHIRAYIL, CHETTIKAD, MARARIKULAM SOUTH, AMBALAPUZHA, ALAPPUZHA. *(DIED) 2. A.L. SASIKALA, ATTIYIL VEEDU, M.S. P.O., PATHIRAPPALLY, ALAPPUZHA. 3. A.L. REMA OF DO. DO. *ADDL. A4 TO A6 IMPLEADED ADDL. A4: LALITHAMBIKA T.B., W/O.LATE SADANANDAN, AGED 75 YEARS, NO OCCUPATION, ATTIYIL HOUSE, CHETTICADU MURI, PATHIRAPPALY P.O., ALAPPUZHA. ADDL. A5: SHYLA V.L., D/O.LATE SADANANDAN, AGED 49 YEARS, ATTIYIL HOUSE, CHETTICADU MURI, PATHIRAPPALLY P.O., ALAPPUZHA. ADDL. A6: PARESH A.S., S/O. LATE SADANANDAN, AGED 46 YEARS, ATTIYIL HOUSE, CHETTICADU MURI, PATHIRAPPALLY P.O., ALAPPUZHA. * THE LEGAL HEIRS OF DECEASED 1ST APPELLANT ARE IMPLEADED AS SUPPLEMENTAL APPELLANTS 4 TO 6, VIDE ORDER DATED 22/06/2010 IN I.A.2034/2010. BY SRI.N.N. SUGUNAPALAN, SENIOR ADVOCATE, ADV. SRI.S.SUJIN, SRI.S.SUDHISH KUMAR. AS.No. 405 of 2001(C) RESPONDENT/PLAINTIFF: -------------------------------------- **1. PADMANABHAN ALIAS RAJAN, S/O.AYYANKUTTY, THEKKEVELIYIL HOUSE FROM CHIRAYIL, CHETTIKAD MURI, MARARIKULAM SOUTH, AMBALAPUZHA, ALAPPUZHA NOW RESIDING AT 'HARIKALA SADANAM' , THEKKEBHAGAM MURI, KAVALAM, KUTTANAD. **(DIED) ** ADDL. R2 TO R4 IMPLEADED ADDL. R2: BHARATHI RAJAN, W/O.LATE PADMANABHAN @ RAJAN, HARIKALA SADANAM, POONTHOPPU WARD, AVALOOKUNNU P.O., ALAPPUZHA, 688 006. ADDL. R3: SREEKUMAR, S/O.LATE PADMANABHAN @ RAJAN, -DO- -DO-. ADDL. R4: HARIKUMAR, S/O.LATE PADMANABHAN @ RAJAN, -DO- -DO-. ** THE LEGAL HEIRS OF DECEASED RESPONDENT ARE IMPLEADED AS SUPPELEMENTARY RESPONDENTS 2 TO 4 VIDE ORDER DATED 12/08/2008 IN I.A.3370/2007. BY ADV. SRI.CHERIYAN KURUVILLA, SRI.V.SATHEESH, SRI.A.KRISHNAN. THIS APPEAL SUITS HAVING BEEN FINALLY HEARD ON 26/11/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: AS.No. 405 of 2001(C) ORDER ON C.M.P.NO.2921/2001 IN A.S. NO.405/2001 DISMISSED 26/11/2010. SD/- M.N.KRISHNAN, JUDGE //TRUE COPY// P.A. TO JUDGE rs M.N. KRISHNAN, J. ........................................... A.S.NO.405 OF 2001 ............................................. Dated this the 26th day of November, 2010. J U D G M E N T This is an appeal preferred against the judgment and decree of the Subordinate Judge's Court, Alappuzha in O.S.No.247/1993. The suit is one for partition. There are five items of property in the plaint schedule of which item 1 was jointly alloted in a partition deed in favour of the plaintiff and the first defendant. All other properties were jointly purchased by the plaintiff and the defendants and thus it is stated that parties are entitled to equal right over the properties. 2. It is the case of the plaintiff that he had also expended money and he had constructed buildings and it is reliably learnt that the first defendant had created false documents as if plaintiff had released right in favour of the defendants and in pursuance of the same, he had created two other documents in favour of the children and defendants 2 and 3. The plaintiff had not executed any document in favour of the defendants and therefore the said document is not : 2 : A.S.NO.405 OF 2001 valid and binding and it is further prayed that a decree for partition may be passed. 3. On the other hand, the first defendant would contend that the property had never been in the possession of the plaintiff and the plaintiff does not have any right over the property and by virtue of the release deed, he had lost the right in the property. It was the first defendant who expended money for the construction of the buildings in the property and the other defendants had also constructed buildings and therefore, it is contended that suit is not liable to be entertained. It is also contended that right of the plaintiff is lost by adverse possession. 4. The trial court after a consideration of the materials held that the deed of surrender executed in 1973 marked as Ext.B1and the two gift deeds executed by the defendants in favourof the children are not valid and binding and thereafter directed the plaint property to be divided into equal shares and it was also made clear that the building in the property has to be not valued and as far as possible the buildings in the plaint schedule property comes within the : 3 : A.S.NO.405 OF 2001 share to be alloted to the first defendant. It is against that decision, the defendants have come up in appeal. 5. Heard the learned counsel for the appellants as well as the respondent. There is no dispute between the parties with respect to the property, but the first defendant would contend that ever from the date of partition, item one has been in his possession and that items 2 to 5 had been purchased by him by spending his money in the name of himself and the plaintiff and therefore the plaintiff does not have any right over the property. 6. Now it is stated that the documents stand in the name of two persons. The defendants cannot be heard to raise a contention like this and there is nothing to show that the document was intended to confer benefit on the first defendant alone. So the documents by itself would create equal right over the properties. This contention is amplified by the conduct of the first defendant in the sense that though it is disputed, he would contend that the plaintiff had executed a release deed in favour of the defendants with respect to the properties. So unless there is a right, the question of : 4 : A.S.NO.405 OF 2001 surrender does not arise at all and therefore, the contention of the first defendant that he alone is entitled to the property has to be rejected. 7. Now the nest contention is regarding Ext.B1 of the year 1973. According to the first defendant, the plaintiff has executed a document of surrender in his favour and therefore by virtue of the same the plaintiff does not have any right over the property. The plaintiff would contend that he has not signed any document and the document so created is a fabricated document to defeat the interest of the plaintiff. The plaintiff had taken care to see that thump impression in the document is sent for comparison by an expert before the Trivandrum Bureau and the expert had submitted a report stating the admitted thump impression of the plaintiff and the disputed thump impression of the plaintiff in Ext.B1 does not have any same characteristics and therefore it is stated that the thump impression found in Ext.B1 document cannot be that of the plaintiff. In order to prove the same, the expert was examined and the trial court has also noted that nothing has been brought out in his examination to discredit : 5 : A.S.NO.405 OF 2001 his evidence. Therefore the most reliable scientific form of evidence namely thump impression had shown that the thump impression seen in the the document - Ext.B1 is not of the plaintiff and therefore the trial court came to the right conclusion that Ext.B1 is not a document executed by the plaintiff in favour of the first defendant. Therefore it has to be stated that Ext.B1 is not valid and binding on the plaintiff. It is further contended that the first defendant had executed the documents of gift in favour of the children, second and third defendants. 8. Now I refer to this document only to answer the question of adverse possession. In order to prove adverse possession among the co-owners, the principle to be followed is nec vi, nec claim and nec precario i.e., continuous uninterrupted possession as of right with hostile animus alone would constitute an ouster. Really the law does not favour ouster among co-owners. That is why it has been held in very many decisions that possession by a co-owner or payment of revenue by a co-owner or enjoyment by a co- owner normally is on and behalf of the other co-owners and : 6 : A.S.NO.405 OF 2001 that it will ensure the benefits of the other co-owners. As stated by me earlier, the most important ingredient is hostile animus. In the document of the year 1971 executed by the first defendant in favour of defendants 2 and 3, a reference is made to the alleged surrender of Ext.B1 which would indicate that right of co-ownership was admitted by the 1st defendant at that point of time. Further it is a well settled proposition of law that when a person is holding the property as co-owner of the property, he is setting up adverse title rather ouster. He has to re-enter the property with hostile animus and it is that date onwards only the question of adverse possession or ouster will arise. Here materials are not sufficient to hold the same and therefore plea of ouster also has to be found against the first defendant. 9. Lastly regarding the equities. The trial court found that though the plaintiff had raised the contention that he had spent money for the construction in the plaint schedule property, the court on analysis found that all the buildings constructed by the first defendant is of his own funds. Therefore the court held that while effecting division, value : 7 : A.S.NO.405 OF 2001 of the buildings to be excluded and also further stated that as far as possible the places where the buildings are situated be allotted to the share of the first defendant so that undue hardships to him can be averted. All these things are matters which the court has to consider only in the final decree proceedings. If wisdom prevails, I also request the parties being brothers to have an amicable settlement of the matter and the disposal of the appeal shall not stand in the way of settlement. Therefore the judgment and decree of the trial court are confirmed and the appeal is dismissed but without costs. M.N. KRISHNAN, JUDGE. cl : 8 : A.S.NO.405 OF 2001 M.N. KRISHNAN, J. ........................................... A.S.NO.405 OF 2001 ............................................. 26th day of November, 2010. J U D G M E N T