IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN TUESDAY, THE 1ST JUNE 2010 / 11TH JYAISTHA 1932 AS.No. 628 of 2001(F) ------------------------------ (OS.NO.663/1993 OF II ADDL.SUB COURT,THRISSUR) .................... APPELLANTS/ADDITIONAL DEFENDANTS 9 & 10: ----------------------------------------------------------------------- 1. RASAMANI, S/O. THEKKINKATTIL SUBRAMANIAN CHETTIAR, AYYANTHOLE VILLAGE AND DESOM, THRISSUR TALUK. *2. PARUKUTTY, W/O. THEKKINKATTIL SUBRAMANIAN CHETTIAR, AYYANTHOLE VILLAGE AND DESOM, THRISSUR TALUK. *THE SECOND APPELLANT IS REMOVED FROM THE PARTY ARRAY AS PER ORDER DATED 08/01/02 IN CMP. 4959/01. BY ADV. SRI.JIJO PAUL. RESPONDENTS/PLAINTIFFS 1 & 2 AND DEFENDANTS 1 TO 8: ---------------------------------------------------------------------------------------- 1. RAMAN NAMBOODIRIPAD, S/O. LATE KIZHAKKINIYEDATH MANAKAL, NEELAKANDAN NAMBOODIRIPAD, AYYANTHOLE VILLAGE AND DESOM, THRISSUR TALUK. 2. REMA @ KANYAKA, SISTER OF RAMAN NAMBOODIRIPAD, AYYANTHOLE VILLAGE AND DESOM, THRISSUR TALUK. 3. RAMAN NAMBOODIRIPAD, S/O. LATE KIZHAKKINIYEDATH MANAKAL, NEELAKANDAN NAMBOODIRIPAD, AYYANTHOLE VILLAGE AND DESOM, THRISSUR TALUK. A.S. NO. 628/2001-F: 4. NANGHYYA ANTHARJANAM, W/O. RAMAN NAMBOODIRIPAD, AYYANTHOLE VILLAGE AND DESOM, THRISSUR TALUK. 5. RAMAN NAMBOODIRIPAD, S/O. RAMAN NAMBOODIRIPAD, AYYANTHOLE VILLAGE AND DESOM, THRISSUR DIST., 6. NARAYANAN NAMBOODIRIPAD, S/O. RAMAN NAMBOODIRIPAD, AYYANTHOLE VILLAGE AND DESOM, THRISSUR TALUK. 7. SAVITHRI @ KANYAKA, D/O. RAMAN NAMBOODIRIPAD, AYYANTHOLE VILLAGE AND DESOM, THRISSUR TALUK. 8. SREEDEVI ANTHARJANAM, W/O. NADUVATH MANAKAL KRISHNAN NAMBOODIRI, PUDIKKAD VILLAGE, MUKUNDAPURAM TALUK. 9. NEELAKANDAN NAMBOODIRIPAD, S/O. KIZHAKKINIYEDATH MANAKAL, RAMAN NAMBOODIRIPAD, AYYANTHOLE VILLAGE AND DESOM, THRISSUR TALUK. 10. SUBHADRA ANTHARJANAM, W/O. NEELAKANDAN NAMBOODIRIPAD, AYYANTHOLE VILLAGE AND DESOM, THRISSUR TALUK. R5 BY ADV.SRI.MADHU N.NAMBOOTHIRIPAD, R9 & R10 BY ADV. SRI.M.SUNIL. THIS APPEAL SUITS HAVING BEEN FINALLY HEARD ON 01/06/2010,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: A.S. NO. 628/2001-F: ORDER ON C.M.P. NO. 4960/2001 IN A.S. NO. 628/2001-F DISMISSED 01/06/2010. SD/- M.N.KRISHNAN, JUDGE. //TRUE COPY// P.A. TO JUDGE. Prv. M.N. KRISHNAN, J. ........................................... A.S.NO.628 OF 2001 ............................................. Dated this the 1st day of June, 2010. J U D G M E N T This is an appeal preferred against the judgment and decreeof the Subordinate Judge, Thrissur in O.S.No.663/1993. The suit is one for partition of 4 items of property and the court below granted a decree in favour of the plaintiffs declaring two out of ten shares of the plaintiffs over items 1 to 4 and regarding mesne profits etc. 9th and 10th defendants are the appellants before this Court. They are claiming right over 26 cents of land in Sy.No.1105/2. According to them, the said property exclusively belonged to the first defendant Raman Namboodiripad and by virtue of an assignment deed-Ext.B1 dated 11.1.1994 he had assigned the property in favour of the 10th defendant and thereby the said item is not available for division. They have also pleaded for equity. So far as in relation to the item of property claimed by them, they relied upon a certificate of purchase issued in favour of D1 as his basic document of title and also the assignment deed in their favour. On the : 2 : A.S.NO.628 OF 2001 other hand, the plaintiffs would contend on the basis of Ext.A1 that items 3 and 4 of the plaint schedule property belonged to the family. A perusal of Ext.A1 would reveal that a lease deed is executed in favour of the father of the first defendant by one Krishnan Nair. So in the year 1103 ME, the property did belong to the family of the plaintiffs and defendants 1 to 8. It was owned by the father of the first defendant. Therefore the property belonged to the family of the plaintiffs and defendants 1 to 8 stands established by Ext.A1. It is true that certificate of purchase with respect to the items claimed by D9 and D10 that is Ext.B2 stands in the name of D1. It was as per an order of the Tribunal, Thrissur in O.A.No.173/1978. It is a settled principle that when D1 is the senior most member of the family and a certificate of purchase with respect to the property owned by the family is issued in the name of the eldest member of the family, it will enure to the benefits of the other co-owners as well and therefore mere issuance of certificate of purchase in the name of D1 will never confer any independent title on D1. As early as in 1103 ME, it is : 3 : A.S.NO.628 OF 2001 established that the property belonged to the family. So the contention that the property claimed by D9 and D10 under Ext.B1 is not available for division has been rightly rejected by the learned Subordinate Judge. 2. The next question is regarding equity. The learned Subordinate Judge had framed additional issue No.4 and had answered the same in para-10 of the judgment. In para-10, it is very clearly stated that D10 is entitled to get equitable relief by allotting one out of ten shares that the D1 had in the property in his favour. While effecting division of the property, the property now in possession of D10 has to be allotted to his share as far as possible. This finding has not been challenged by any other parties but unfortunately in the operative portion of the decree this is not incorporated. It must be only an omission and that also has to be incorporated and it has to be held that as far as possible, the property in the possession of D10 shall be allotted to the share of D1. It is added as Clause F to the preliminary decree. 3. Since D10 is dead and D9 is claiming exclusive : 4 : A.S.NO.628 OF 2001 right under a Will, the right of D10 on whom it has devolved can be decided in the final decree proceedings with the incorporation of Clause F. On all other aspects finding of the Subordinate Judge is confirmed and the appeal is disposed of accordingly. M.N. KRISHNAN, JUDGE. cl : 5 : A.S.NO.628 OF 2001 M.N. KRISHNAN, J. ........................................... A.S.NO.628 OF 2001 ............................................. 1st day of June, 2010. J U D G M E N T : 6 : A.S.NO.628 OF 2001