IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.T.SANKARAN WEDNESDAY, THE 9TH APRIL 2008 / 20TH CHAITHRA 1930 SA.No. 791 of 1997(C) --------------------- ( AS.339/1992 of II ADDITIONAL DISTRICT COURT, THRISSUR OS.646/1983 of II ADDL.SUB COURT,THRISSUR) APPELLANTS/APPELLANTS 1 &3/ TWO OF THE FOUR L.Rs OF SOLE DEFENDANT: ----------------------------------------------------------------------------------------------------- 1. KATHERINE FRANCIS, W/O. LATE FRANCIS PULIKAN, MANALUR, THRISSUR. 2.. SALY FRANCIS, D/O. KATHERIN FRANCIS OF -DO- BY ADV. SRI.K.P.SATHEESAN ADV. SRI.K.K.GOPINATHAN NAIR RESPONDENTS/RESPONDENTS & 2ND APPELLANT/PLAINTIFFS 1 AND 2 AND TWO OF THE FOUR L.Rs OF THE SOLE DEFENDANT: -------------------------------------------------------------------------------------------------------------- 1. A.T. MARTHA, W/O. PULIKKAN OUSEPH, ARANGASSERY HOUSE, EAST BAZAR, PARAPPUR, THRISSUR. 2. ANNIE P. JOSEPH, D/O. A.T. MARTHA, OF -DO- 3. RAJA FRANCIS, S/O. KATHERIN FRANCIS, MANALUR VILLAGE, THRISSUR TALUK. 4. JOY FRANCIS, S/O. KATHERIN FRANCIS, MANALUR VILLAGE, THRISSUR TALUK. R1 AND R2 BY ADV. SRI.P.V.CHANDRA MOHAN THIS SECOND APPEAL HAVING BEEN FINALLY HEARD ON 09/04/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K.T. SANKARAN, J. ............................................................................ S.A. No. 791 OF 1997 ............................................................................ Dated this the 9th April, 2008 J U D G M E N T Respondent Nos. 1 and 2 in the Second Appeal filed O.S.No. 646 of 1983 on the file of the Sub Court, Thrissur for partition, claiming half share in the plaint schedule properties. The trial court decreed the suit. The appeal filed by the legal representatives of the defendant was dismissed by the appellate court. The concurrent findings of the courts below are challenged by the legal representatives of the defendant in this Second Appeal. 2. The plaint schedule properties belonged to Kunhitti, who died issueless on 15.04.1980. She had executed a will in respect of the plaint schedule properties in favour of Francis, the defendant and the plaintiffs. Francis is the son of the deceased brother of the testatrix. The plaintiffs are the widow and daughter of Ouseph, brother of Francis. On the application of the plaintiffs, letters of Administration was granted as evidenced by Ext. A5. As per the terms of the Will, the plaintiffs are entitled to ½ share. The plaintiffs sent Ext.A1 notice claiming partition. It was replied by the defendant, as per Ext.A2, wherein he even denied execution of the Will. In the written statement filed by the defendant, he contended that he is entitled to ½ share and that the plaintiffs are entitled to ½ share. The defendant had raised a further contention that the house in Item No.1 was constructed by him spending a sum of Rs.15,000/-. He stated that there was difference of opinion between Kunhitti and the parents of the defendant which resulted in separate residence of the parents of the defendant in a S.A. No. 791 OF 1997 2 shed. The shed was thereafter replaced by a pucca building by the defendant spending a sum of Rs. 15,000/-. The defendant claimed that the house should be reserved in his favour. The trial court held that going by the terms of will, the plaintiffs and the defendant were put in possession of the properties even before execution of the Will. The Will was executed in the year 1972. This means that the parties were in possession of the plaint schedule properties . According to the plaintiffs, they were residing in the property. The defendant was working at Thiruvananthapuram. He got a transfer to Thrissur and he started to reside along with the plaintiffs in the house. Later, due to difference of opinion, the plaintiffs had shifted to the house of the father of the first plaintiff. The plaintiffs claimed that the house may be allotted to them after valuing and directing them to pay ½ share of the value of the house to the defendant. The trial court, taking into account the fact that the plaintiffs are widow and daughter of the brother of the defendant, thought it fit to hold that that house should be allotted to the share of the plaintiffs after valuing the same. The recitals in the Will were taken note of by the court below. The intention of the testatrix was also gathered from the various terms in the Will. The conclusion that the house should be allotted to the share of the plaintiffs was arrived at by the court below, after taking into account the relevant facts and circumstances of the case and the evidence on record. 3. The contention raised by the defendant that the house was constructed by him spending a sum of Rs.15,000/- was not accepted by the trial court. It was held that there is no evidence to indicate that the house was constructed by the defendant. On the other hand, the trial court came to the conclusion that going by the recitals in the Will, it can be seen that the house was in existence even in 1972, the year in which the Will was executed. S.A. No. 791 OF 1997 3 4. The defendant was not able to produce any documents to prove that the house was constructed with his own funds. Apart from the interested testimony of the defendant, there is no independent evidence to come to the conclusion that the house was constructed by him. The appellate court held that the discretion exercised by the trial court to allot the house to the share of the plaintiffs was arrived at on sufficient materials and that there is no ground for interference. The appellate court also held on facts that the defendant has failed to prove that the house in item No.1 was constructed by him with his own funds. 5. The findings rendered by the court below are findings of fact. The findings were arrived at on evidence. Even if a different conclusion is possible on evidence, the second appellate court would not be justified in interfering with the concurrent findings of the courts below. No question of law is involved in the Second Appeal. The Second Appeal lacks merit and it is accordingly dismissed. No order as to costs. K.T. SANKARAN, JUDGE. lk S.A. No. 791 OF 1997 4 K.T. SANKARAN, J. ........................................................ S.A. No. 791 OF 1997 ......................................................... Dated this the 9th April, 2008 J U D G M E N T