IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.BHAVADASAN WEDNESDAY, THE 23RD JUNE 2010 / 2ND ASHADHA 1932 SA.No. 682 of 1996() -------------------- AS.104/1989 of ADDL.SUB COURT, IRINJALAKUDA OS.505/1986 of MUNSIFF COURT, KODUNGALLUR .................... APPELLANT(S): -------------- KOCHUMANIAN, S/O.MANALITHARAYIL KUNJAYYAPPAN THEKKUMCHERI DESOM, MUKUNDAPURAM TALUK, THIRUMUKKULAM VILLAGE, TRICHUR DISTRICT BY ADV. SRI.T.M.CHANDRAN RESPONDENT(S): --------------- 1. KALY, W/O.VATHEKKATT VALLON, KARINGACHIRA DESOM, PUTHEMCHIRA VILLAGE, MUKUNDAPURAM TALUK AND D/O.MANALITHARAYIL KUNJAYYAPPAN. 2.KALLY, W/O. MANALITHARAYIL KUNJAYYAPPAN THEKKUMCHERI DESOM, THIRUMKULAM VILLAGE, MUKUNDAPURAM TALUK 3.THALARI, W/O.NELPPATTAMPURATH KANNAN, PARAKADAVU VILLAGE, ALUVA TALUK. 4. KANJI, W/O.THEVALIPURATH AYYAPPAN, KALLUR VADAKKUMMURI VILLAGE, MUKUNDAPURAM TALUK. 5. AMMINI, D/O.MANALITHARAYIL KUNJAYYAPPAN, THIRUMUKKULAM VILLAGE, MUKUNDAPURAM TALUK ADV. SRI.K.G.BALASUBRAMANIAN THIS SECOND APPEAL HAVING COME UP FOR ADMISSION ON 23/06/2010 ALONG WITH S.A.441 OF 1996, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: P.BHAVADASAN, J. --------------------------------- S.A.Nos.682 & 441 of 1996 --------------------------------- Dated this the 23rd day of June, 2010 JUDGMENT These appeals arise from O.S. No.505/1986 before the Munsiff Court, Kodungallur, which was a suit for partition. 2. According to the plaintiffs property belonged to Kunjayyappan. Plaintiff and defendants 2 to 5 are the children of deceased Kunjayyappan. First defendant is the wife of late Kunjayyappan. Kunjayyappan died on 10.7.1976 leaving behind the plaintiff and defendants as legal heirs. Claiming 1/6th share of the properties, the suit was laid. 3. Defendants 1, 3, 4 and 5 supported the plaintiff. However, the second respondent chose to contest the suit. 4. In his written statement he pointed out that item No.1 property was in possession of late Kunjayyappn on oral pattom from Padinjare Madhappad. But as per the wish and direction of late Kunjayyappan, the second defendant got the jenmom of the plaint schedule item No.1 property assigned as per document No.1026/60 from the landlord. Consequent to that document in the year 1961, later Kunjayyappan released the pattom right also in favour of the second defendant and from that date onwards the second defendant is in uninterrupted, continuous and undisputed possession of plaint item No.1 property. The plaintiff and the other defendants have no manner S.A.Nos.682 & 441 of 1996 2 of right over plaint item No.1 property. Plaint item No.II property lie contiguous to plaint item No.I Kudiyirippa belonging to second defendant. Kunjayyappan was the pattamdar of plaint item No.II property and later in 1975 he assigned the properties to the second defendant and he is in possession and enjoyments of the same. As far as item No.2 was concerned it is contended that Kunjayyappan's had right over only 10 cents of land, but 15 ½ cents are shown in the plaint. It was also pointed out that the second respondent has incurred expenses for the marriage of the sisters. Therefore plaintiff and others who support her have no manner of right over the suit properties and even if they had any, the same had been lost due to adverse possession and limitation. 5. The trial court raised necessary issues for consideration. The evidence consists of testimony of PWs.1 and 2 executed A1 to A6 from the side of plaintiff. Contesting defendant had DW1 and DW2 and B1 to B11 marked. Negativing the contentions put forward by the second defendant a preliminary decree was passed as follows: “In the result, plaintiff is given a preliminary decree for partition allotting 1/6 share in the plaint schedule property. Plaintiff is allowed to file final decree application within 2 months from this date wherein a commissioner will be appointed to measure and divide the property into metes and bounds and allotment of 1/6 share to the plaintiff. Suit decreed without costs”. S.A.Nos.682 & 441 of 1996 3 6. Aggrieved by the preliminary decree, it appears that the second defendant preferred an appeal before the Sub Court, Irinjalakuda. One of the main contentions of the appellant was that by virtue of Section 23 of the Hindu Succession Act the residential house is not available for partition. All other contentions except that the contention based on Section 23 was negatived by the appellate court. The lower appellate court accepted the case of the second defendant with reference to Section 23 of the Hindu Succession Act and to that extent preliminary decree was modified and a modified preliminary decree was passed as follows: “In the result A.S.104/89 is partly allowed. The lower court decree and judgment in O.S.505/1986 is modified to the extent that the dwelling house situated in the plaint schedule property and the appurtenant land there on are exempted from partition under Section 23 of the Hindu succession act as dwelling house is to be allotted to the second defendant/appellant as the male member of the family. In all other respects the decree and judgment of the lower court is confirmed. The property except the dwelling house in the plaint schedule property and the appurtenant land there to will be partitioned into 6 equal shares 1/6th share will be allotted to the plaintiff. The other defendants are entitled for 1/6th share will be allotted to the plaintiff. The other defendants are entitled for 1/6th share each. The equity if any for which the parties are entitled can be considered in the final decree proceedings. The plaintiff is entitled for her 1/6th share in the mesne profits but the quantum of the mesne profits will be decided in the final decree proceedings. The preliminary decree passed by the S.A.Nos.682 & 441 of 1996 4 lower court is modified to that extent. The parties are directed to suffer their respective costs in his appeal”. 7. Aggrieved by the lower appellate court decree, plaintiff, defendants 1 and 3 to 5 have filed S.A.441/1996 and second defendant has filed S.A.682/1996 is the other sharers. 8. The main contention in S.A.441/1996 by the appellants is that finding of the court below that the second defendant is entitled to the benefit of Section 23 of the Hindu Succession Act is erroneous in law and cannot be sustained. The lower appellate court according to the counsel for the appellant, was wrong in accepting the said plea of the second defendant. 9. The second defendant in his appeal contends that going by the facts disclosed in the evidence it is clear that item no.1 belong exclusively to him. If that be so, according to the counsel, it was not partiable. It is also contended that as far as item No.II is concerned father had right only over 10 cents 15 cents could not have been the subject matter of partition. Finally the learned counsel of appellant in S.A.682/1996 also contended that at any rate he is entitled to reservation with regard to residential house which according to the second defendant was put up by him. 10. Coming to the contention based on by the appellants in S.A.Nos.682 & 441 of 1996 5 S.A.441/1996, the appeal is only to be allowed in view of the amendment brought to the Hindu Succession Act. By amendment Act of 2005 Section 23 of Hindu Succession Act is repealed. It stands effaced from the statutory book. That right is no longer available. If that be so, the lower appellate court decree so far as the benefit of Section 23 of the Hindu Succession Act conferred on the second defendant has to be set aside and it is set aside. 11. Coming to the contentions raised by the second respondent in S.A.682/1996, it has to be stated that the contentions are without any merit whatsoever. All the contentions raised now were raised before the courts below and were rejected. The findings are essentially question of fact and no interference is called for in the Second Appeal. The findings cannot be side to be perverse. 12. However one fact needs to be considered. The contention of the second defendant is that originally there was only a dilapidated building in the property and he had put up a pucca residential building there and therefore reservation may be granted in favour of the residential house. The learned counsel appearing for the respondent in S.A.682/1996 stated that this question was agitated before the courts below and had held against his contention. 13. Therefore, the preliminary decree passed by the trial court is S.A.Nos.682 & 441 of 1996 6 only to be confirmed. In the result the preliminary decree passed by the trial court is confirmed, but in the final decree proceedings the court may consider any reservation in equity claimed by the second defendant in relation to the residential house. These appeals are dismissed. There will be no order as to costs. P.BHAVADASAN, JUDGE cms S.A.Nos.682 & 441 of 1996 7 P.BHAVADASAN, J. --------------------------------- S.A.Nos.682 & 441 of 1996 --------------------------------- JUDGMENT 23rd June, 2010