IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE PIUS C.KURIAKOSE FRIDAY, THE 29TH AUGUST 2008 / 7TH BHADRA 1930 AS.No. 234 of 1995(C) --------------------- OS.33/1982 of PRL.SUB COURT, KOZHIKODE .................... APPELLANT/2ND DEFENDANT -------------- KANARAN S/O KELAN, RESIDING AT PARACHAL, VAVAD AMSOM AND DESOM, KOZHIKODE TALUK. (DIED) ADDL. APPELLANTS: 2. JANAKI, D/O KANARAN, RESIDING AT PARACHAL, VAVAD AMSOM AND DESOM, KOZHIKODE TALUK, KOZHIKODE DISTRICT. 3. SAROJINI D/O KANARAN, RESIDING AT PARACHAL, VAVAD AMSOM AND DESOM,KOZHIKODE TALUK, KOZHIKODE DISTRICT. 4. DEVAKI D/O KANARAN RESIDING AT PARACHAL, VAVAD AMSOM AND DESOM, KOZHIKODE TALUK. 5. P.C.LAILA D/O KANARAN, RESIDING AT PARACHAL, VAVAD AMSOM AND DESOM, KOZHIKODE TALUK. 6. P.C.RADHAKRISHNAN S/O KANARAN, RESIDING AT PARACHAL, VAVAD AMSOM AND DESOM, KOZHIKODE DIST. 7. NARAYANI D/O KANARAN, RESIDING AT PARACHAL, VAVAD AMSOM AND DESOM, KOZHIKODE DIST. 8. SANTHA D/O KANARAN, RESIDING AT PARACHAL, VAVAD AMSOM AND DESOM, KOZHIKODE DIST. 9. P.C.SULEKHA D/O KANARAN, RESIDING AT PARACHAL, VAVAD AMSOM AND DESOM, KOZHIKODE DIST. 10. P.C.VASU S/O KANARAN, RESIDING AT PARACHAL, VAVAD AMSOM AND DESOM, KOZHIKODE DISTRICT. 11. P.C.UNNI S/O KANARAN, RESIDING AT PARACHAL, VAVAD AMSOM AND DESOM, KOZHIKODE DIST. 12. CHOICHI, WIDOW OF KANARAN, RESIDING AT PARACHAL, VAVAD AMSOM AND DESOM, KOZHIKODE TALUK, KOZHIKODE DISTRICT. ADDL. APPELLANT'S 2 TO 12 ARE IMPLEADED AS THE LEGAL REPRESENTATIVES OF THE DECEASED SOLE APPELLANT VIDE ORDER DT. 9-12-2002 ON CMP. NO. 356/2000. BY ADV. SRI.P.RAMAKRISHNAN NAIR RESPONDENT(S): --------------- 1. V.PENUTTY ALIAS SARADA D/O CHANDU RESIDING AT ALETTIL AMSOM AND AIOLORA DESOM IN KOZHIKODE TALUK. 2. V.CHERIYAMAN ALIAS RAMAN S/O CHANDU, VAVAD AMSOM AND DESOM. (NAME CORRECTED) 3. KORAN S/O PERAVAN, RESIDING AT VAVAD AMSOM KELARATHU DESOM.(DELETED) THE NAME OF 2ND RESPONDENT in the APPEAL IS CORRECTED AS VELLARAMAL CHANDU S/O CHIRYAMAN @ RAMAN, VAVADU AMSOM AND DESOM, KOZHIKODE DISTRICT VIDE ORDER DT. 9-12-02 ON CMP.NO.507/2001. THE NAME OF THE THIRD RESPONDENT IS DELETED FROM THE PARTY ARRAY AT THE RISK OF THE APPELLANTS VIDE ORDER DT. 29-8-2003 ON IA. NO. 1369/2003. ADV. SRI.P.RAMACHANDRAN FOR R2 SRI.A.P.CHANDRASEKHARAN, SENIOR ADVOCATE FOR R1 SMT. PRABHA R. MENON THIS APPEAL SUIT HAVING BEEN FINALLY HEARD ON 29/08/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: PIUS C. KURIAKOSE, J. ----------------------------------------------- AS. No. 234 OF 1995 ----------------------------------------------- Dated this the 29th day of August, 2008 J U D G M E N T The second defendant in a suit for partition is the appellant. The parties will be referred to as they were before the trial court for sake of convenience. The plaint allegations were that item No.1 of the plaint schedule property was acquired by Cheriyamman alias Raman and his wife Pennutty. Cheriyamma alias Raman and Pennutty are the parents of the first defendant and Raru, the father of the plaintiff. Item No.1 property was acquired as per document No.1763 of 1931. Cheriyamman alias Raman died and thereafter Raru and Pennutty executed Otty deed No. 641/1940. The rights of Raru devolved upon the plaintiff. Item No.2 was acquired by Cheriyamman alias Raman by document No.3300/1909. Item No.3 was acquired in the name of Raru by virtue of document No.3004/41 and the plaintiff and the 1st defendant were in joint possession of the same. Item No. 4 and 5 were in the joint possession of Raru and half right of Raru devolved upon the plaintiff. Cheriyamman alias Raman died years back and Pennutty died about 5 years back. Subsequent to the death of Cheriyamman alias Raman the properties devolved upon Raru and the 1st defendant. Upon the death of Raru the properties devolved upon AS. N0. 234/95 -2- the plaintiff and her mother. Later the mother died and the plaintiff got half right over the plaint schedule properties. The first defendant is not giving any share for the last 5 years. The plaint schedule properties would fetch an annual net income of Rs.6000/-. On the above allegations the plaintiff prayed for partition of the plaint schedule property and for allotment of separate possession of her share. 2. The first defendant Cheriyamman alias Raman filed written statement contending that after the lease deed of 1940 in respect of item No.1 the first defendant and Raru had got assignment of the Jenm right by virtue of document No.264/1946. Raru died in 1947 and by custom and law the rights of Raru devolved upon the first defendant. Raru had divorced the mother of the plaintiff and she was residing away from the plaint schedule property and later committed suicide. The plaintiff did not obtain any right over the property. At the time of death of Raru, Pennutty the mother was alive. The right of Pennutty was assigned by document No.362 of 1953 and thereafter the 1st defendant had been holding the property as his own. Even if the plaintiff had got any right over the properties that was lost by ouster and adverse possession and limitation. Item No. 2 was the AS. N0. 234/95 -3- acquisition of Cheriyamman alias Raman. Subsequently the first defendant and Raru got Jenm assignment and upon his death the right devolved upon the first defendant by custom and law. Even if the plaintiff had got any right the same has been lost by adverse possession and ouster. The plaintiff and the 1st defendant had no right over item No.3. Even if the plaintiff had got any right the same was assigned in favour of Kanaran who was subsequently impleaded as the 2nd defendant. Item No.4 is not partible. The first defendant was not aware of document No.366 of 1943 mentioned in the plaint. Item No.5 is also not partible. The father of the plaintiff had no manner of right over item No.5. It was in the possession of Korappan who is the third defendant by virtue of a registered document of 1964. As per the custom and law prevailing among the community on the death of a male his right would devolve upon his brother and it would not devolve upon the widow or the daughter. On these contentions, the first defendant prays for dismissal of the suit. 3. The 2nd defendant contended that item No.3 was obtained to Raru along with the 2nd defendant by virtue of a lease deed No.2670 of 1944. While so, Raru died. Then the 1st defendant and the plaintiff as heirs of Raru executed a release deed as document No.2100/57 and AS. N0. 234/95 -4- thus he got right of the 1st defendant and the plaintiff over item No.3 and the same is not partible. The second defendant had constructed a shop room in that item and he had been holding the same. Even if the plaintiff or the 1st defendant had got any right over the same, the same was lost by adverse possession and limitation. 4. The third defendant in his written statement would contend that item No.5 is not partible and the third defendant has got a lease from the 1st defendant orally in 1960 and subsequently by virtue of document No.3 of 1964, a lease deed executed by the plaintiff and the 1st defendant, the 3rd defendant had got tenancy right over the same and his claim of tenancy had to be referred to the Land Tribunal. Even if the plaintiff had got any manner of right over the same, it is lost to the plaintiff by adverse possession and limitation. 5. The plaint was got amended and as per the amended plaint it is contended that the mother of the plaintiff was not divorced by Raru and it is incorrect to say that on the death of the male his right will devolve upon his brother by custom and law. It is further alleged that on the death of the male his right would devolved upon his widow and children. Item No.5 was leased to Korappan by virtue of a registered document of 1964. Even if any document was created itwas done with AS. N0. 234/95 -5- intent to defeat the plaintiff and it would not affect her right over the property. In the first instance the suit was decreed for partition on 31- 8-1989. The second defendant preferred appeal to this court and this court remanded the case back to the lower court after setting aside the decree allowing partition of item Nos. 3 and 5. In the judgment it is made clear that the lower court after giving opportunity to amend the pleading of the plaintiff as well as of the defendants frame issues arising out of such pleadings and decide on the right of the parties over item Nos. 3 and 5 and dispose of the matter afresh after giving opportunity to both sides to adduce evidence. This court confirmed the decree of partition with respect to items 1, 2 and 4. In fact there was no challenge against the decree of partition with respect to those three items. Pursuant to the order of remand passed by this court parties were given opportunity to amend the pleadings and on the basis of the amended pleadings additional issue was raised to the following effect: Whether the plaintiff has got any right or possession over item Nos. 3 and 5 of the plaint schedule property ? The second defendant was examined as DW-2 and Ext.B11 dated 22-3-1990 was marked. The assignment deed regarding item No.5 was marked as additional evidence. Trial court found that Ext.B6, as per which the AS. N0. 234/95 -6- right of the plaintiff in item No.3 was surrendered by the first defendant acting as guardian has no validity and hence the case of the second defendant regarding acquisition of item No.5 with consideration obtained under Ext.B6 has only to be rejected. The court also found that the question of election as per section 35 of the Transfer of Property Act does not arise for consideration. The court below concluded that item Nos.3 and 5 are partible and the plaintiff is entitled to half share in those items with mesne profits. It is the above decree which is under challenge in this appeal. 6. I have heard the submissions of Sri.P.Ramakrishnan Nair, learned counsel for the appellant and those of Sri.T.Sethumadhavan, learned counsel for the contesting respondent. 7. My attention was drawn by Sri.Ramakrishnan Nair to the order of remand passed by this court on 26-8-1993 in A.S. No. 169 of 1990 and submitted that the scope of the remand order was not properly understood by the trial court. Mr.Ramakrishnan Nair further submitted that after the remand plaint was amended alleging that item No.5 was acquired by the plaintiff and the first defendant by the funds raised from the income derived from item Nos.1 to 4. To the amended plaint additional written statement was filed by the appellant contending that AS. N0. 234/95 -7- the allegation of the plaintiff regarding acquisition of item No.5 is not correct and that the said item was purchased by funds raised by surrendering the right of the plaintiff and the first defendant in item No.3 and it was also contended that item No.3 belongs to the appellant and that the said item is not partible. The learned counsel argued that on the above additional pleading the trial court did not raise proper additional issues and the only additional issue raised was whether the plaintiff has got any right of possession over item Nos.3 and 5 of the plaint schedule properties. Counsel pointed out that it was never the contention of the appellant that the plaintiff had no possession over item No.5. The contention was only that item No.5 was purchased with the funds obtained by the plaintiff and the first defendant by surrendering their one-half right in item No.3 and hence having elected to keep possession of item No.5 they cannot claim any right in item No.3. The court below did not understand or appreciate the above contention correctly. The counsel argued that the finding of the court below that item Nos. 3 and 5 are partible and that the plaintiff is entitled to one-half right in both the items is erroneous. It should have been held on the basis of the testimony of DW-2, the appellant and Ext.B6 that item No.5 was purchased with the AS. N0. 234/95 -8- consideration obtained from the appellant and not with the income obtained from item Nos.1 to 4. Counsel highlighted that the circumstance that item No.5 was purchased the very same day after surrendering their one-half right in item No.3 for the same consideration obtained for surrendering and the recital in the surrender deed that the surrender is being made to purchase another property, the court should have held that item No.5 was purchased as contended by the appellant. Counsel also highlighted that the plaintiff did not adduce any evidence after remand and therefore the evidence given by the appellant as DW2 stands un-rebutted. Counsel submitted that atleast in equity it should have been held by the court below that item No.3 is not partible. Lastly, Sri.Ramakrishnan Nair submitted that at any rate the appellant has prescribed title over the building put up by him on item No.3 property by adverse possession and limitation. 8. The submissions of Mr.Ramakrishnan Nair were stiffly resisted by Mr.T.Sethumadhavan, learned counsel for the first respondent and Mr.P.Ramachandran, learned counsel for the second respondent. I have anxiously considered the rival submissions addressed at the Bar. I have made a re-appraisal of the evidence and I have carefully gone through the impugned judgment as well as the judgment of this court AS. N0. 234/95 -9- in A.S. No.169 of 1990. 9. Notwithstanding the strenuous submissions of Mr.Ramakrishnan Nair I am not persuaded to hold that the findings entered by the trial court on the various issues including the additional issue framed pursuant to amendment of pleadings are liable to be set aside. At the same time, the submission of Mr.Ramakrishnan Nair that even if it cannot be accepted that the appellant has prescribed a title for himself over the buildings put up by the appellant on item No.3 property by adverse possession and limitation, then also the appellant should be held to have special rights over those buildings in view of his constructing them and those buildings, at any rate, should be allotted to his share or the appellant should be given the amount expended by him towards the construction of those buildings has some appeal. Under the above circumstance, even as I decline to interfere with the impugned decree holding that the properties are partible I relegate the question of availability or otherwise of special rights for the appellant over the buildings situated on item No.3 property to the final decree proceedings. The final decree court will enquire into the question whether the appellant is having any special right over the buildings situated on item No.3 property and pass final decree in the AS. N0. 234/95 -10- light of the finding to be entered on that question. Subject to the above modification the impugned preliminary decree stands confirmed. (PIUS C.KURIAKOSE, JUDGE) ksv/- AS. N0. 234/95 -11- PIUS C. KURIAKOSE, J. A.S. No. 234 OF 1995 JUDGMENT 29th August, 2008