IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR TUESDAY, THE 8TH JANUARY 2008 / 18TH POUSHA 1929 RSA.No. 23 of 2008() -------------------- AS.122/1998 of ADDL.DISTRICT COURT (ADHOC), KASARAGOD OS.121/1996 of SUB COURT, KASARAGOD .................... : APPELLANTS IN RSA-APLNTS.IN AS-DFNDTS.2TO5 IN SUIT ------------------------------------------------------------------- 1. BALAKRISHNA, S/O. APPOJI, RESIDING AT MUNDAMOOLE, NETTANIGE VILLAGE AND POST KASARAGOD TALUK AND DISTRICT. 2. CHANDROJI, S/O. -DO- IN -DO- -DO-. 3. LAXMANA, S/O. -DO- IN -DO- -DO-. 4. PAVITHRA, D/O. -DO- IN -DO- -DO-. BY ADV. SRI.K.JAYAKUMAR SRI.P.B.KRISHNAN SRI.R.SURAJ KUMAR SMT.GEETHA P.MENON RESPONDENTS: RSPDTS.1 TO 3 & 5 IN AS-PLNTF.& LR OF D1 IN SUIT: -------------------------------------------------------------- 1. SRIDHARA, S/O. DEVOJI, RESIDING AT PALLAKOCHI, NETTANIGE VILLAGE AND P.O. KASARAGOD TALUK. 2. SUNANDA, D/O. -DO- IN -DO- -DO-. 3. MOHINI, D/O. -DO- IN -DO- -DO-. 4. GIRIJA, WIDOWN OF DEVOJI, IN -DO--DO-. BY THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 08/01/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ORDER ON I.A.No.62/2008 IN R.S.A.23/2008 8.1.2008 DISMISSED Sd/- M.Sasidharan Nambiar Judge /true copy/ P.S. To Judge M.SASIDHARAN NAMBIAR,J. =========================== R.S.A. NO. 23 OF 2008 =========================== Dated this the 8th day of January, 2008 JUDGMENT Defendants 2 to 5 in O.S.121/1996 on the file of Sub Court, Kasaragod are the appellants. Respondents 1 to 3 are the plaintiffs and fourth respondent additional defendant who was impleaded as legal heir of deceased first defendant in the first appellate court. Plaint A schedule property admittedly originally belonged to Appoji. Appoji had only one son Honnoji. Chennamma was his wife. They have three sons, Appoji, first defendant and Veeroji. Plaintiffs are the children of first defendant and appellants are the children of Appoji. Under Ext.A1 partition deed plaint A schedule property was allotted to the share of Veeroji who was a man of unsound mind. It was provided in Ext.A1 that Veeroji, being a man of unsound mind, C schedule property which was allotted to Veeroji, shall be in the possession and R.S.A.23/2008 2 management of mother Chennamma till the death of Veeroji and Chennamma is not entitled to alienate the same and even if she alienates, the other brothers of Veeroji or their representatives are entitled to cancel the same and after the death of Veeroji C schedule property shall devolve only on Appoji and first defendant. Contending that on the death of Veeroji his rights devolved on Appoji and Veeroji and Appoji died and his rights devolved on appellants and being children of first defendant, plaintiffs are entitled to a share. Suit was instituted seeking a decree for partition of plaint A schedule property into nine equal shares and allotment of one such share each to plaintiffs and one such share to first defendant and five such shares including the 1/9th share of Appoji to the appellants. First defendant filed a written statement supporting the case of plaintiffs. Appellants in their written statement admitted that plaint A schedule property was allotted to Veeroji under Ext.A1 partition deed. It was also admitted that Veeroji was a man of unsound mind. It was R.S.A.23/2008 3 also admitted that Veeroji expired in 1974. It was contended that on the death of Veeroji plaint A schedule property devolved on the mother Chennamma and she has been in possession of the property till her death on 27.2.1982 and Chennamma executed Ext.B1 will on 9.2.1979 whereunder on her own volition she bequeathed her rights in favour of appellants and the will has come into effect and therefore only appellants are entitled to the plaint A schedule property and therefore suit is not maintainable. It was contended that in any case after the death of Veeroji, Chennamma has been in possession and enjoyment of the property as absolute owner and after her death appellants have been in possession of the property and therefore the claim of plaintiff is lost by adverse possession and limitation. 2. Learned Munsiff on the evidence of PW1, Dws1 and 2 and Ext.A1 and Exts.B1 to B9 found that Ext.B1 will was executed by Chennamma out of her free will and volition. But it was found that under Ext.A1, Chennamma had only right to manage R.S.A.23/2008 4 the property till the death of Veeroji and on the death of Veeroji, property devolved on the brothers of Veeroji, first defendant and Appoji, and therefore Chennamma did not inherit the property and under Ext.B1 appellants are not entitled to claim exclusive right over the plaintschedule property. Learned Munsiff also found that on the death of Veeroji it devolved on the brothers Appoji and first defendant and on the death of Appoji his rights devolved on appellants and first defendant and plaintiffs are entitled to the property. The claim for adverse possession was also found against the appellants. A preliminary decree for partition was passed directing division of plaint A schedule into nine equal shares and allotment of three shares to the plaintiffs, one share to first defendant and five shares to appellants. It was also found that plaintiffs are entitled to their share of profits quantum of which shall be decided in the final decree proceedings. Appellants challenged the judgment before District Court in A.S.122/1998. Learned R.S.A.23/2008 5 Additional District Judge on reappreciation of evidence confirmed the findings of learned Munsiff and dismissed the appeal. It is challenged in the second appeal. 3. Learned senior counsel appearing for appellants was heard. 4. Learned senior counsel argued that after the death of Veeroji children of two sisters of Veeroji, Appoji and first defendant instituted O.S.140/1992 and evidenced by Ext.B2 plaint the case in the suit was that on the death of Veeroji his rights devolved only on mother Chennamma and on the death of Chennamma it devolved on the legal heirs, and first defendant, father of plaintiffs was the second defendant in that suit and he filed Ext.B4 written statement where the inheritance alleged in Ext.B2 plaint was admitted and first defendant had claimed only 1/4th share and therefore plaintiffs who are the children of first defendant are not entitled to contend that they are entitled to 3/9 shares apart from the 1/9 shares due to first defendant and therefore the R.S.A.23/2008 6 preliminary decree granted by courts below is not sustainable. 5. It is admitted case that plaint A schedule property was allotted to Veeroji, who was a man of unsound mind even at the time of Ext.A1 partition deed. Ext.A1 provides that being a man of unsound mind, plaint A schedule allotted to Veeroji shall be managed and looked after during his life time, by the mother as his guaradian. Ext.A1 also provides that on the death of Veeroji his rights shall devolve only on his brothers first defendant and Appoji. Ext.A1 also contains a specific provision that Chennamma the mother who was authorised to act as guardian and manage the properties on behalf of Veeroji, shall not alienate the property and even if she alienates it is liable to be cancelled at the instance of Appoji and first defendant or their children. Therefore when the parties are admitting the right of Veeroji obtained under Ext.A1 and Ext.A1 specifically provides that on the death of Veeroji,his rights shall devolve only on first defendant and his brother Appoji and R.S.A.23/2008 7 it prohibits any alienation by the guaradian Chennamma and enable even the children of Appoji and first defendant to get any alienation cancelled under Ext.B1 will Chennamma is not entitled to transfer the property. Being legatees appellants cannot claim exclusive right over the plaint A schedule property. Hence the only question is what are the shares for which parties are entitled to. 6. The argument of the learned senior counsel is that when in Ext.B4 written statement first defendant admitted that the contentions in Ext.B2 plaint is correct and he is only entitled to get 1/4 share, courts below should not have directed division of the properties into nine shares and allotment of four shares to the first defedant and his children. It cannot be disputed that by the mere admission title to a property cannot be claimed unless there is a pre-existing title to the property. The admission in Ext.B4 that first defendant is entitled to 1/4 share will not enable first defendant to claim that share, if he R.S.A.23/2008 8 has no such share in the property. So also that admission will not restrict his right to ¼ share alone, if legally he is entitled to a larger share. Therefore on the basis of Ext.B4 alone, it is not possible to hold that first defendant and his children are only entitled to 1/4 share, if otherwise they are entitled to a larger share. It is admitted case that O.S.140 of 1992 was later withdrawn by the plaintiff in that suit. Ext.A1 specifically provide that on the death of Veeroji his rights shall devolve on first defendant and Appoji. The argument of learned senior counsel restricting the share of first defendant or plaintiffs to the one claimed in Ext.B4 written statement could be accepted only if it is found that on the death of Veeroji his right devolved only on mother Chennamma. Even the learned senior counsel has no such case. When Ext.A1 specifically provides that Chennamma has no right in the C schedule property allotted under Ext.A1 to Veeroji and on his death the property shall devolve on Appoji and first defendant the share of first R.S.A.23/2008 9 defendant and plaintiffs cannot be limited to ¼ share. The courts below rightly granted the shares in the preliminary decree. I do not find any reason to interfere with the same. As no substantial question of law is involved in the appeal, it is dismissed in limine. M.SASIDHARAN NAMBIAR JUDGE tpl/- M.SASIDHARAN NAMBIAR, J. --------------------- W.P.(C).NO. /06 --------------------- JUDGMENT SEPTEMBER,2006