IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.RAMKUMAR FRIDAY, THE 14TH NOVEMBER 2008 / 23RD KARTHIKA 1930 RSA.No. 402 of 2008(F) ---------------------- AS.64/2006 of SUB COURT, PALA OS.177/2002 of MUNSIFF COURT, PALA .................... APPELLANTS/PLAINTIFFS -------------------- 1. M.J. SCARIA, S/O. OUSEPH, 62 YEARS, MEPPALLIL HOUSE, MARIDAM KARA, KIDANGOOR VILLAGE, MEENACHIL TALUK, KOTTAYAM DISTRICT 2. SMT. MARIYAKUTTY, W/O. SCARIA, MEPPALLIL HOUSE, MARIDAM KARA, KIDANGOOR VILLAGE, MEENACHIL TALUK KOTTAYAM DISTRICT BY ADV. SRI.N.K.MOHANLAL RESPONDENT(S): --------------- 1. CHANDY, S/O. OUSEPH, 69 YEARS, MEPPALLIL HOUSE, RESIDING AT MANGALATHIL HOUSE, MARIDAM KARA, KIDANGOOR VILLAGE, MEENACHIL TALUK,. DISTRICT KOTTAYAM 2. GEORGE, S/O. SCARIA, 29 YEARS, MEPPALLIL HOUSE, MARIDAM KARA, KIDANGOOR VILLAGE, MEENACHIL TALUK, KOTTAYAM DISTRICT 3. K.S. SIBY, S/O. SRI. SREEDHARAN, AGED 29 YEARS, KOLLAPPALLIL HOUSE, MEENACHIL TALUK, KOTTAUAM DISTRICT THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 14/11/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: V. RAMKUMAR, J. * * * * * * * * * * * * * * * * * * R.S.A. No. 402 of 2008 * * * * * * * * * * * * * * * * * * Dated: 14-11-2008 JUDGMENT The plaintiffs in O.S. No. 177 of 2002 on the file of the Munsiff's Court, Pala are the appellants in this Second Appeal. The said suit was one for setting aside Exts.B1 gift deed dated 22-10-2001 and Ext. B2 sale deed dated 7-10-2002 and for consequential injunction. 2. The case of the plaintiff was that the plaint schedule property admeasuring 8.650 cents forms part of the property bequeathed to him by his father Ouseph as per Ext. A1 will dated 6-10-1975 and while so, defendants 1 and 2 fraudulently executed Ext.B1 gift deed dated 22-10-2001 whereunder the first defendant purported to gift the plaint schedule property to the plaintiff's son the second defendant who in turn had sold the property to a stranger, the 3rd defendant as per Ext.B2 sale deed dated 7-2-2002. Since the plaint schedule property is part of 1.56 acres bequeathed to the first plaintiff by his father under R.S.A. No. 402 of 2008 -:2:- Ext.A1 will, it could not have been the subject matter of a gift deed executed by his brother the first defendant nor could the 2nd defendant donee under Ext.B1 assign the property to a stranger as has been done under Ext.B2. 3. The suit was resisted by the defendants contending inter alia that the plaint schedule property formed part of the one acre of land bequeathed to the first defendant under Ext.A1 will executed by father Ouseph and that plaintiffs' claim that the plaint schedule property was part of 1.56 acres bequeathed under Ext.A1 was not true. 4. The first plaintiff and the first defendant are brothers. 2nd plaintiff is the wife of the first plaintiff. The 2nd defendant is the son of plaintiffs 1 and 2. The third defendant is a stranger to whom the 2nd defendant had sold the property obtained under Ext.B1 as evidenced by Ext.B2 sale deed. The courts below have concurrently held that plaintiffs have failed to establish that the plaint schedule property admeasuring 8.650 cents is part of 1.56 acres given to the Ist plaintiff as the B schedule under Ext.A1 will executed by Ouseph. The courts below have accordingly dismissed the suit. It is said decree R.S.A. No. 402 of 2008 -:3:- which is assailed in this Second Appeal. 5. The learned counsel appearing for the appellant made the following submissions before me in support of the Second Appeal:- In Ext.B1 gift deed itself there is an admission by the first defendatn that the plaint schedule property belongs to both the first plaintiff and the first defendant. So, the case of the first defendant that it was part of the property bequeathed him under Ext.A1 will is false. The Commissioner who identified the property has found that the first defendant is still in possession of one acre of property after assigning the plaint schedule property. This means the first defendant is in possession of more than one acre bequeathed to him under Ext.A1. This fortifies the contention of the plaintiffs. 6. The appellants are the plaintiffs and they have to succeed or fall on the strength of their own evidence. The courts below have concurrently found that the plaintiffs have failed to establish that the plaint schedule property admeasuring 8.650 cents is part of 1.56 acres bequeathed as per Ext.A1 will dated 6-10-1975 executed by Ouseph, the father to the first R.S.A. No. 402 of 2008 -:4:- plaintiff. If so, Ext.B1 gift deed executed by the first defendant in favour of the second defendant who is is none other than the son of the plaintiffs/appellants cannot be taken exception to by the plaintiffs. Resultantly, Ext.B2 sale deed dated 7-2-2002 executed by the 2nd defendant in favour of the 3rd defendant also cannot be assailed by the plaintiffs. The findings recorded by the courts below are pure findings of fact. No question of law, much less any substantial question of law arises in this Second Appeal. The questions of law formulated in the memorandum of Second Appeal also do not arise for consideration in this Second Appeal which is accordingly dismissed in limine. Dated this the 14th day of November 2008. Sd/- V. Ramkumar, Judge. /true copy/