IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE HARUN-UL-RASHID MONDAY, THE 20TH SEPTEMBER 2010 / 29TH BHADRA 1932 SA.No. 721 of 1995() --------------------------- AS.209/1990 of DISTRICT COURT, PALAKKAD OS.309/1987 of PRINCIPAL SUB COURT, PALAKKAD .................... APPELLANT(S): APPELLANTS/PLAINTIFFS ------------------------------------------------------------- 1. BHARGAVY, W/O. DAMODARAN, RESIDING AT KUTUPPATHUPURA KUNNANUR AMSOM, MARUTHAROAD PANCHAYATH, CHANDRANAGAR P.O., PALAKKAD. 2. MANONMANI, S/O. DAMODARAN, DO. DO. 3. SIVADASAN, S/O. DO. DO. 4. JAYANTHI, D/O. DAMODARAN, DO. DO. 5. NATARAJAN, S/O. DAMODARAN, DO. DO. 6. PRAKASN, S/O. DAMODARAN, DO. DO. 7. LALITHA, D/O. DAMODARAN, DO. DO. BY SRI.P.SANTHALINGAM, SENIOR ADVOCATE BY ADV. SRI.S.SHARAN RESPONDENT(S): RESPONDENT/ DEFENDANTS --------------------------------------------------------------------- *1. KUNCHAMMAL, W/O. CHAMI, RESIDING AT KARUPATHUPURA KUNNANUR AMSOM, MARUTHAROAD PANCHAYATH, P.O., CHANDRANAGAR, PALGHAT DISTRICT *R1 DIED LRS. RECORDED. *IT IS RECORDED THAT IST RESPONDENT IS DIED AND RESPONDENTS 3 TO 8 AND ADDL. RESPONDENTS 9 TO 13 ARE LRS OF DECEASED IST RESPONDENT AS PER ORDER DTD. 18.7.2003 ON MEMO DTD. 16.7.03 VIDE C.F. NO.3191/03. S.A. NO.721/1995 *2. GANGADHARAN, RESIDING AT DO. DO. (DIED) 3. PRABHAKARAN, RESIDING AT DO. DO. 4. BHASKARAN, RESIDING AT DO. DO. 5. PAZHANIMALA, RESIDING AT DO. DO. (DIED) 6. SUKUMARAN, RESIDING AT DO. DO. 7. SAKUNTHALA, RESIDING AT DO. DO. 8. JAGATHAMBIKA, RESIDING AT DO. DO. *ADDL. R9 TO R13 IMPLEADED. 9. RADHAMANI, W/O. LATE GANGADHARAN, KARUPATHUPURA, KUNNANUR AMSOM, MARUTHAROAD, PANCHAYATH, P.O. CHANDRANAGAR, PALAKKAD. 10. BALADRUVAN, S/O. LATE DO. DO. 11. RAJARAJESWARY, D/O. LATE DO. DO. 12. BHAGEERATHAN, S/O. DO. DO. 13. SREENARAYANAN, S/O. DO. DO. ADDL. RESPONDENTS 9 TO 13 ARE IMPLEADED AS THE LRS OF DECEASED RESPONDENT NO.2, AS PER ORDER DT. 29.5.03 ON CMP. 2058/2001. **ADDL. R14 TO R17 IMPLEADED 14. DEVAKI, W/O. LATE PAZHANIMALA, MUNDAKKODE KARUPATHU VEETTIL, KUNNANUR AMSOM MARUTHAROAD PANCHAYATH, P.O. CHANDRANAGAR, PALAKKAD. 15. RAJESH, S/O. LATE PAZHANIMALA, MUNDAKKODE KARUPATHUVEETTIL, KUNNANUR AMSOM, MARUTHAROAD PANCHAYAT P.O. CHANDRANAGAR, PALAKKAD. 16. RATHEESH, S/O. LATE PAZHANIMALA MUNDAKKODE KARUPATHUVEETTIL, KUNNANUR AMSOM, MARUTHAROAD PANCHAYAT, P.O. CHANDRANAGAR, PALAKKAD. S.A. NO.721/1995 17. RANJITHA, D/O. LATE PAZHANIMALA, MUNDAKKODE KARUPATHU VEETTIL, KUNNANUR AMSOM, MARUTHAROAD PANCHAYAT P.O. CHANDRANAGAR, PALAKKAD. **THE LEGAL REPRESENTATIVES OF DECEASED 5TH RESPONDENT ARE IMPLEADED AS ADDL. RESPONDENTS 14 TO 17 AS PER ORDER DTD. 22.10.09 IN IA. 798/09. R2 & ADDL.R9 TO 13 BY ADV. SRI.P.O.JOSEPH R3 TO R6 BY ADV. SRI.C.P.DAMODARAN NAYAR, SRI.JOJI VARGHESE SRI.M.HARISHARMA SRI.D.KRISHNA PRASAD THIS SECOND APPEAL HAVING BEEN FINALLY HEARD ON 20/09/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ORDER ON CMP. NO. 1771/1995 IN SA. NO.721/1995 - DISMISSED ORDER ON IA. NO.156/2009 IN SA. NO.721/1995 - CLOSED. 20/09/2010 SD/- HARUN-UL-RASHID, JUDGE TRUE COPY P.A. TO JUDGE tss HARUN-UL-RASHID, J. ------------------------ S.A.No.721 Of 1995 ---------------------- Dated this the 20th day of September, 2010. J U D G M E N T Plaintiffs in O.S.No.309 of 1987 on the file of the Sub Court, Palakkad, are the appellants. The appeal is directed against the judgment and decree in A.S.No.209 of 1990 of the District Court, Palakkad. Suit was filed for partition and other consequential reliefs. Trial court held that the plaint schedule properties are not available for partition and therefore the plaintiffs are not entitled to any reliefs claimed in the suit. The lower appellate court confirmed the decree and judgment of the trial court. Parties hereinafter are referred to as the plaintiffs and defendants as arrayed in the suit. 2. Plaintiffs are the legal heirs of one Sri.Damodaran, who is a member of the joint family consisting of Damodaran, his father Chami and defendants 1 to 8. The first plaintiff is the wife of deceased Damodaran and plaintiffs 2 to 7 are his children. The father of Damodaran is one Chami. The first defendant is the wife of Chami and defendants 2 to 8 are the other children of Chami. S.A.No.721 Of 1995 ::2:: 3. Plaintiffs' case is that Chami left the country some 16 years back and his whereabouts are unheard of since 1971. Therefore it has to be presumed that he is dead for all purposes. Plaint A schedule items 1 to 7 belonged to the joint family of the plaintiffs and defendants, that as per Ext.B1 partition deed dated 27.5.1963, the said items were allotted to the sakha consisting of Chami and the defendants. It is recited in Ext.B1 partition deed that the deceased Damodaran got his share separated. It is the case of the plaintiffs that Chami had 1/6 share over plaint items 1 to 7 and the said share devolved on the plaintiffs and defendants. Plaintiffs claimed 1/9 share over the said right at the time of his presumed death. The plaintiffs also claimed share over items 8 to 20 stating that in Ext.B1 partition deed these properties were not included as there were some disputes outstanding to be settled with the landlords. The plaintiffs also claimed share over items 21, 22 and 23 stating that these items were acquired by the defendants with the income from the joint family properties. The last item is item No.24 which according to the plaintiff was purchased by Chami and that it is a self acquired property. 4. The defendants denied the allegations in the plaint and prayed for dismissal of the suit. According to them plaint S.A.No.721 Of 1995 ::3:: items 1 to 7 alone originally belonged to the joint family and those items were partitioned between the plaintiffs and defendants, that the plaintiffs' predecessor got separate share under Ext.B1 partition deed, and that the contentions of the plaintiffs regarding the rest of items are not correct. Items 8 to 24 are not available for partition and therefore the suit has to be dismissed as not maintainable. 5. The trial court and the lower appellate court examined the contentions of the plaintiff. Admittedly, items 1 to 7 properties belonged to the joint family consisting of Chami, Damodaran and the defendants. It is also an admitted case that there was a partition in 1963. Ext.B1 is the partition. A reading of Ext.B1 would show that the members entered into a division and deceased Damodaran got his share over items 1 to 7. The trial court as well as the lower appellate court relied on the specific recital in Ext.B1 that all the movable items belong to the joint family such as seeds, cattle, vessels etc. have already been divided among the sharers and that the properties scheduled in Ext.B1 partition deed only were available for partition. The court below also taken note of the other recital in Ext.B1 partition deed that as per the partition deed division of joint family property S.A.No.721 Of 1995 ::4:: were finally effected and there is no relationship whatsoever between them regarding the properties. The court below also examined in detail the contentions raised by the plaintiffs regarding the partibility of items 8 to 20 separately. The plaint allegation is that those items belonged to the family as tenant and had fixity of tenure, that it was not divided in 1963 partition as there were some disputes outstanding to be settled with the landlords. The court below examined the contention on the basis of Exts.B1 & B2. Ext.B2 is the sale deed dated 15.5.1965 as per which plaint items 8 to 20 were purchased in the name of Chami and some of the defendants. The recitals in Ext.B2 is that Chami and others were having oral lease of the properties. The court below noticed that there is no recital in Ext.B2 to the effect that the oral lease was in favour of Damodaran also or oral lease was granted earlier to the execution of Ext.B1 partition deed. The court found that there is no evidence to show that oral lease of the properties was given to Chami and others earlier to Ext.B1 partition deed and that explanation 2 to Section 6 of the Hindu Succession Act would directly apply in the case of plaint schedule items 8 to 20 acquired after the execution of Ext.B1 partition deed and the plaintiffs as the legal heirs of Damodaran, a S.A.No.721 Of 1995 ::5:: member of the joint family separated from the family, will not be entitled to any share over the said items. 6. The court below also examined as to whether the plaintiffs are entitled to share in the plaint items 21, 22 and 23. The case of the plaintiffs is that those items were purchased by utilising the income from the joint family properties. The court below on evidence found that the plaint items 21 to 23 are individual properties of the second defendant and that there is no evidence to prove that the said items were purchased by the defendants by investing the income from the joint family properties. The last item in the plaint schedule is item No.24. Plaintiffs claimed share over that item also. The first defendant claimed that it is her self acquired property. Ext.B16 is produced to show that the plaint item No.24 is not the self acquired property of the first defendant. The said documents stands in the name of the first defendant and her minor children. The court below found that there is no basis for the claim that plaint schedule item No.24 is the self acquired property of Chami and the plaintiffs are not entitled to claim share on that basis. Thus, each and every contentions raised by the parties were examined by both courts and found that the plaintiffs are not entitled to any S.A.No.721 Of 1995 ::6:: reliefs. The contentions of the plaintiffs were considered in detail by the fact findings courts. The courts on the basis of the materials, facts and evidence found that the plaintiffs are not entitled to any relief sought for in the plaint. The questions raised in the second appeal are pure questions on facts which was decided by the fact finding courts on merits. In these circumstances, this Court is of the view that the appellants have not succeeded in raising valid grounds for interference by this Court in exercise of powers under Section 100 of the Code of Civil Procedure. No question of law muchless any substantial question of law arises for consideration in this second appeal. In the result, the appeal fails and accordingly, dismissed. No order as to costs. HARUN-UL-RASHID, Judge. bkn/-