IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR TUESDAY, THE 28TH JUNE 2011 / 7TH ASHADHA 1933 RSA.No. 1414 of 2010() ---------------------- AS.247/2003 of SUB COURT,NEYYATTINKARA OS.538/2001 of PRL.Munsiff .Court.,NEYYATTINKARA .................... APPELLANT/PLAINTIFF --------------------------------------- D.N.ANILKUMAR, S/O.DIVAKARAN, AGED 45 YEARS, MAVUNINNA ASWATHY, KARICHAL DESOM, KANJIRAMKULAM VILLAGE, PIN-695524. BY ADV. SRI.R.GOPAN RESPONDENT(S): RESPONDENT/DEFENDANTS ------------------------------------ 1. RAMAN DIVAKARAN, AGED 67 YEARS, MAVUNINNA ASWATHY, KARICHAL DESOM, KANJIRAKULAM VILLAGE, PIN-695524. 2. D.M.SURESHKUMAR, S/O.DIVAKARAN, AGED ABOUT 49 YEARS, MAVUNINNA ASWATHY, KARICHAL DESOM, KANJIRAKULAM VILLAGE, PIN-695524. 3. VASANTHA PREETHA, W/O.D.H.SURESH KUMAR, AGED ABOUT 29 YEARS, MAVUNINNA ASWATHY, KARICHAL DESOM, KANJIRAKULAM VILLAGE, PIN-695524. 4. DILEEP KUMAR, S/O.DIVAKARAN, AGED ABOUT 40 YEARS, MAVUNINNA ASWATHY, KARICHAL DESOM, KANJIRAKULAM VILLAGE, PIN-695524. ADV. SRI.S.MOHANDAS FOR R1 THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 28/06/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: M.SASIDHARAN NAMBIAR, J ........................................... RSA No.1414 OF 2010 ............................................ DATED THIS THE 28th DAY OF JUNE, 2011 JUDGMENT Plaintiff in O.S.538 of 2001 on the file of Principal Munsiff Court, Neyyattinkara is the appellant. Respondents are the defendants. Suit was filed for partition. Item No.1 and portion of item No.2 of plaint schedule properties were admittedly obtained by the first respondent as per Ext.A1 partition deed 1979 of 1974. Appellant, respondents 2 and 4 are the children of first respondent. Third respondent is the wife of the second respondent. Appellant would contend that to save the property from creditors, first respondent had executed a sale deed in favour of Sasikumar in 1976 and later, as per sale deed No.360/1983, first respondent obtained back the said property and appellant had constructed a house in the property spending money with the consent of respondents and on the commencement of Hindu Joint Family System (Abolition) Act, plaint schedule properties vested on the appellant, respondents, RSA 1414/2010 2 1, 2 and 4 and therefore, he is entitled to get his ¼ share separated. Respondents resisted the suit contending that the property belonged to first respondent and item Nos.3, 4 and portion of item No.2 were purchased by the first respondent and were not obtained on family partition and later first respondent executed Ext.B6 and assigned the property in favour of the second respondent and appellant is not a co-owner and he is not entitled to the decree sought for. It was also contended that O.S.657/1997 was instituted by the second respondent for eviction of the appellant from the property and the suit was decreed and the decree was confirmed in A.S.83 of 1998 and appellant is therefore not entitled to the decree sought for. 2. Learned Munsiff, on the evidence of PW1, DW1, Exts.A1 and A2, B1 to B6 and C1 and C1(a) dismissed the suit holding that appellant is not a co-owner and he has no right in the property belonging to the father and hence he is not entitled to a share. Appellant challenged the judgment before Sub Court, Neyyattinkara in A.S.247 of 2003. Learned Sub Judge, on reappreciation of the evidence, confirmed the findings of the learned Munsiff and dismissed the appeal. It is challenged in the RSA 1414/2010 3 second appeal. 3. Learned counsel appearing for appellant was heard. The argument of the learned counsel is that courts below did not properly appreciate the facts or evidence and it should have found that plaint schedule properties are joint family properties and though properties were obtained by the first respondent, it belonged to the joint family and in view of the Hindu Joint Family System (Abolition) Act, appellant is entitled to ¼ share. 4. On hearing the learned counsel, I do not find any substantial question of law involved in the appeal. Even though appellant contended that entire plaint schedule properties were alloted to the share of first respondent in his family partition Ext.A1 proves that D schedule therein was alloted to the first respondent and it takes in only item No.1 and portion of item No.2 of the plaint schedule properties. Items 3 and 4 and the remaining portion of item No.2 were obtained by the first respondent under Exts.B2, B5 and B6 sale deeds. So long as first respondent is alive, appellant cannot claim any right in the properties belonging to the first respondent, unless it is a joint family property and appellant is a member of the joint family. RSA 1414/2010 4 Though learned counsel vehemently argued that there is pleading that plaint schedule properties are joint family properties, on perusing the copy of the plaint furnished by the learned counsel, as rightly found by the courts below, appellant has no such case. The allegation in paragraph 1 of the plaint itself is that the properties originally belonged to the first respondent, having obtained them under Ext.A1 partition deed 979/1974 and later first respondent, to save the property, executed a sale deed in favour of Sasikumar in 1976 and thereafter obtained a re- conveyance deed from Sasikumar in 1983. There is no whisper anywhere in the plaint that the appellant and respondents 1, 2 and 4 are members of a coparcenary family. The only allegation in the plaint in paragraph 6 is that because of Hindu Joint Hindu Family System (Abolition) Act, appellant is entitled to ¼ share. Appellant could claim right or share in the properties based on Hindu Joint Family System (Abolition Act) only if he has a pre- existing right, prior to the commencement of the Act. But when the properties are not the family properties, and appellant and respondents are not members of a joint family, finding of the courts below that appellant is not entitled to claim any share is RSA 1414/2010 5 perfectly legal. As no substantial question of law is involved, the appeal is dismissed. M.SASIDHARAN NAMBIAR, JUDGE lgk