IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN TUESDAY, THE 20TH JULY 2010 / 29TH ASHADHA 1932 AS.No. 540 of 2002() ------------------------------ OS.1051/1994 of PRL.SUB COURT,IRINJALAKUDA .................... APPELLANT(S): PLAINTIFF: --------------------------------------- NARAYANAN, SON OF CHAKKAUNGATHODIYIL GOVINDAN, THORAVU VILLAGE, THORAVU DESOM, MUKUNDAPURAM TALUK. BY ADV. SRI.P.R.VENKETESH RESPONDENT(S): DEFENDANTS 1 TO 10,12,15 TO 26, 28 TO 31 & 33-38: --------------------------------------------------------------------------------------------------------- 1. VIJAYALAKSHMY, AGED 54 YEARS, D/O. CHAKKAUNGATHODIYIL DAMODARAN, THORAVU VILLAGE, MUKUNDAPURAM TALUK, WIFE OF THOOMBAYIL SANKARAN, KODANADU P.O. 2. VIMALA, AGED 52 YEARS, D/O. CHAKKAUNGATHODIYIL DAMODARAN, DO. DO., W/O. DR.K.A. CHANDRA BOSE, BOSE VILLA, KUTTIKKADU HOUSE, THOTTATHIL LANE, CHELAKKOTTUKARA, THRISSUR. 3. GOPIKA, AGED 50 YEARS, D/O. DO. DO. W/O. T.A. DHARMADAS, CUSTOMS SUPERINTENDENT, PRAKASH PARKSSVETY, BARODA, GUJARAT. 4. VASANTHA, AGED 48 YEARS, DO. DO. 5. SOJA, AGED 44 YEARS, D/O. DO. DO. W/O. K.K. JAYARAJAN, KONDARAVALAPPIL, 'RAVEENDRA', CHAVAKKAD. 6. PRABHAVATHY, AGED 42 YEARS, D/O. DO. DO. W/O. DR. L.K.P.BABURAJ, ASWATHI NURSING HOME, THAZACK TOWN, BANGALORE EAST. 7. GOVINDAN, AGED 40 YEARS, S/O. DO. DO. THRISSUR VILLAGE, THRISSUR TALUK. A.S. NO.540/2002 8. DR. ANUDATH, SON OF LATE KANAKAPRABHA, D/O. CHAKKAUNGATHODIYIL DAMODARAN, THORAVU VILLAGE, MUKUNDAPURAM TALUK. 9. KRISHNAVENY, AGED 40 YEARS, W/O. KOCHERY BRAHMADATHAN, OLLUR VILLAGE, DESOM,, THRISSUR DISTRICT. 10. NITHA DATH, AGED 24 YEARS, D/O. LATE KANAKAPRABHA AND BRAHMADATHAN, KOCHERY VEETTIL, OLLUR VILLAGE, DESOM. 11. K.R. BRAHAMADATHAN, AGED 50 YEARS, KOCHERY VEETTIL, OLLUR VILLAGE. 12. KRISHNA MOHAN, AGED 38 YEARS, SON OF LATE CHAKKAUNGATHODIYIL RAMAN LPLOT NO.88, NEHRU NAGAR, KURIACHIRA, DO. THRISSUR. 13. LAKSHMANAN, DO. LATE RAMAN, COLLEGE LECTURER, SREE KERALAVARMA COLLEGE, THRISSUR. 14. SUDHA, AGED 33 YEARS, D/O. LATE RAMAN, CHAKKUNGATHODIYIL, THORAVU VILLAGE, MUKUNDAPURAM TALUK. 15. NARAYANA DAS, AGED 29 YEARS, SON OF LATE RAMAN, CHAKKUNGATHODYIL, THORAVU VILLAGE, DESOM. 16. JANARDHANAN. C.J., SON OF LATE JANARDHANAN @ KOCHUNNY, CHAKKUNGATHODYIL, THORAVU VILLAGE, DESOM, MUKUNDAPURAM TALUK. 17. SUKUMARAN M.R., AGED 54 YEARS, SON OF LATE KARTHIAYINI, MOOTHESDATH HOUSE, SAW MILL ROAD, KOORKANCHERRY, THRISSUR. 18. M.R. VENUGOPAN, AGED 52 YEARS, SON OF KARTHIAYANI DO. DO. 19. N.R. SURENDRAN, AGED 40 YEARS, SON OF KARTHIYANI, DO. MAMBILLY HOSPITAL, SHARJA, U.A.E. 20. M.R. SUNANDA, D/O. DO. KARTHIYANI, W/O. MANOHARAN, AGED 50 YEARS, KEEZHARA HOUSE, MELOOR P.O., CHALAKUDY. A.S. NO.540/2002 21. M.R. SUMA, D/O. KARTHIYANI, W/O. T.K. ASOKAN, P.B.NO.46736, ABUDHABHI, U.A.E. 22. M.R. SUDHA, D/O. DO. KARTHIYANI, WIFE OF DR.P.S. MOHAN, NEAR DON BOSCO SCHOOL, IRINJALAKUDA. 23. JAYASREE, D/O. DO. KARTHIYANI, W/O. VIJAYAN, KUNIYARA HOUSE, MYSORE LAMOS, POONKUNNAM, THRISSUR. 24. CHINDA E.V., AGED 34 YEARS, D/O. VIJAYAN, WIFE OF DR.RAMACHANDRAN KANNOLY HOUSE, KUNNAMKULANGARA, THRISSUR. 25. E.V. USHA, AGED 32 YEARS, W/O. PREMANBADHAN, BLUE NIVAS, NEAR THRIKKAKARA TEMPLE, V/181, COCHIN - 682 021. 26. DR. JOSHY, AGED 36 YEARS, P.B.NO.2951, ABUDHABHI, U.A.E. 27. E.V. JYOTHI, AGED 35 YEARS, SON OF VIJAYAN, EZHAVAMPARAMBIL HOUSE, CHIRAKKAL VILLAGE, THRISSUR TALUK. 28. LOKANATHAN. P.M., SON OF LATE KOUSALYA, WING COMMANDER, INDIAN AIRFORCE, 441 STAGE, VINAYAKA KOVIL STREET, KRISHNA SWAMI NAGAR, COIMBATORE-641 018. 29. LALITHALEKHA. P.M., D/O. LATE KOUSALYA A16/A MAG FLAT, MAYAPURI, NEW DELHI. 30. CHANDRAMATHY, D/O. GOVINDAN, W/O. VIJAYARAM, RETD.CUSTOMS SUPDT., PUTHIYAPURAYIL, EDAPALLY, PIPELINE ROAD, VALLATHOL NAGAR, THRIKKAKRA, COCHIN. 31. GOPINATHAN, AGED 59 YEARS, SON OF LATE KUMARAN, CHAKKUNGATHODYIL, THORAVU VILLAGE, MUKUNDAPURAM TALUK. 32. SWAYAMPRABHA, AGED 56 YEARS, D/O. LATE KUMARAN, DO. DO. (DIED) A.S. NO.540/2002 33. SOMASUNDARAN, AGED 53 YEARS, SON OF LATE KUMARAN, DO. DO. *ADDL. R34 & R35 IMPLEADED. 34. ANUPAMA D/O. LATE SOMASUNDARAN, CHAKKUNGATHODIYIL HOUSE, THORAVUR P.O., MUKUNDAPURAM TALUK, TRICHUR. 35. ANOOP, S/O. LATE SOMASUNDARAN DO. DO. *LEGAL HEIRS OF DECEASED R32 ARE IMPLEADED AS ADDL. R34 & R35 AS PER ORDER DTD. 31.3.08 IN IA. 1222/08. ADDL. R34 & R35 BY ADV. SRI.CIBI THOMAS R7 BY ADV. SRI.K.S.BHARATHAN THIS APPEAL SUITS HAVING BEEN FINALLY HEARD ON 20/07/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: tss M.N. KRISHNAN, J. ........................................... A.S.NO.540 OF 2002 ............................................. Dated this the 20th day of July, 2010. J U D G M E N T This is an appeal preferred against the judgment and decree of the Subordinate Judge, Irinjalakuda in O.S.No.151/1994. The suit is one for partition of the plaint schedule property and the court below on a consideration of the materials found it not available for partition and dismissed the suit. It is against that decision, the plaintiff has come up in appeal. 2. Heard. The brief facts necessary for the disposal of the appeal are stated as follows: The property originally belonged to one Govindan, the predecessor in interest of the plaintiff and the defendants. He had property in Malabar as well as in Cochin State. The property in Cochin State was bequeathed in favour of the sons and three daughters in the second wife of Govindan. Thereafter there was a partition among the members of the family and as the plaint schedule property was only a verumpattam property and so it was not included in the : 2 : A.S.NO.540 OF 2002 partition and therefore it has to be treated as kept in common. On the death of Govindan, his children are entitled to the property equally and therefore the plaintiff prays for division. Only the 7th defendant contested the case. He is the grandson of Govindan. It is contended by him that whatever properties are available on the date of partition was partitioned in the 1958 document. According to him, the plaint schedule property which belonged to Govindan was transferred by Govindan and Jenardhanan in favour of the partners of Sree Kaliswary Tile Works of which the plaintiff was also a member. The plaintiff had relinguished his right over the same and therefore the said members thereafter had effected division of the property. Since the plaintiff did not have any right over the property, he is not entitled to claim partition. 3. In the trial court, Exts.A1 to A4 and Exts.B1 to B4 were marked. PW1 and DW1 were examined. On an analysis of the evidence, the trial court dismissed the suit. The point that arises for determination is whether the plaint schedule property is available for partition. There is : 3 : A.S.NO.540 OF 2002 no dispute that the property belonged to Govindan at one point of time. It is the case of the plaintiff that when a division was effected in 1958 as per Ext.B1 document since the property was verumpattam property, it was not included in the division and therefore the said property is available for division. He would contend that Exts.A1 to A4 would prove the title of Govindan over the property. There is no dispute for the parties with respect to the title of Govindan. But what the 7th defendant would contend is that the plaint schedule property was transferred in favour of Sree Kaleeswari Tile Works of which the plaintiff was also a partner who released his right in favour of other partners and therefore, ceased to have any interest over the property. According to the 7th defendant, it is that property which is now the subject matter of division. In order to prove the same, the defendants had produced Ext.B3 a certified copy of the registered document 295/1953. As per that document, 9 cents comprised in RS.No.467/1, 92 cents comprised in RS.No.468/1 and one acre and 50 cents comprised in RS.No.470/1 were transferred by Govindan : 4 : A.S.NO.540 OF 2002 and Jenardhanan in favour of other children. The present plaint schedule property is also included in the very same survey number though the extent is slightly in excess. So, the contention is that when Ext.B1 partition of the year 1958 was entered into between the parties since the property covered by Ext.B3 had gone out of the hands of Govindan, it was not the property available for division under the Will. The said contention of the 7th defendant appears to be correct and probable in the light of the specific recital in Ext.B1 to the effect that “ . It is further recited that if there is any property standing in the name of others, the others will not have any right over the property and nobody shall make any claim with respect to that property. This recital is not a general recital done in Ext.B1 in the backdrop of Ext.B3 document. By Ext.B3 document, it is evident that the plaint schedule property has been transferred by Govindan in favour of Sree Kaleeswary Tile Works. So the partners of Sree Kaleeswary Tile Works were entitled to right over the property. By virtue : 5 : A.S.NO.540 OF 2002 of his retirement from the partnership, the plaintiff has relinquished his right over the property and therefore he cannot claim any right over the property which belonged to Sree Kaleeswari Tile Works. Therefore as discussed and found by the trial court by virtue of Ext.B3 and non inclusion of the property in Ext.B1 coupled with the recital that there is no other property belonging to them jointly, the only inevitable conclusion that can be arrived is that the plaintiff does not have any right over the property sought to be partitioned. Therefore the judgment and decree of the trial court do not call for any interference and so the appeal fails and the same is dismissed but under the circumstances without any order as to costs. M.N. KRISHNAN, JUDGE. cl : 6 : A.S.NO.540 OF 2002 M.N. KRISHNAN, J. ........................................... A.S.NO.540 OF 2002 ............................................. 20th day of July, 2010. J U D G M E N T