IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR FRIDAY, THE 11TH MARCH 2011 / 20TH PHALGUNA 1932 RSA.No. 1367 of 2004 ----------------------------------- AS.222/1997 of II ADDL. DISTRICT COURT, TRIVANDRUM OS.415/1995 of PRL.SUB COURT, TRIVANDRUM .................... APPELLANTS/ADDL. APPELLANTS 2 TO 6 & LRS OF D1: 1. C.VIJAYAMMA, RESIDING AT KILIKUNNATHU VEEDU, ANAYARA, THIRUVANANTHAPURAM. 2. B.BALACHANDRAN NAIR, DO.DO. 3. C.GANGADEVI AMMA, DO.DO. 4. C.SOBHANA KUMARI, DO.DO. 5. B.SYAMAKUMARAN NAIR, DO.DO. BY ADV. SRI.V.N.ACHUTHA KURUP, SENIOR ADVOCATE SRI.K.G.RENGANATH SRI.B.S.SWATHY KUMAR RESPONDENTS/R 2 TO 4, ADDL.R6-8 & 9-11(R1 PLAINTIFF DIED LRS OF PLAINTIFF 6-8 AND 9-11, LRS OF R5 (D5): 1. PADMAVATHI AMMA, W/O.JANARDHANAN NAIR, VADAKKE POOVAN VEEDU, MELEPUTHEN VEEDU, MARANALLOOR, NEYYATTINKARA P.O., THIRUVANANTHAPURAM. 2. MOHANA KUMARAN NAIR, S/O.JANARDHANAN NAIR, T.C.12/245, THAMPURANMUKKU, KUNNUKUZHY, THIRUVANANTHAPURAM. 3. GEETHAKUMARI, D/O.PADMAVATHY AMMA, VADAKKE POOVAN VILA, MELEPUTHEN VEEDU, MARANALLOOR, NEYYATTINKARA 4. K.JAYACHANDRAN NAIR, S/O.KUMARA PILLAI, KILIKUNNATHU VEEDU, ANAYARA, THIRUVANANTHAPURAM. 5. K.SOBHA RANI, D/O.K.KAMALAM, RESIDING AT DO.DO. 6. K.UPENDRA LAL, S/O.KUMARA PILLAI, RESIDING AT KILIKUNNATHU VEEDU, ANAYARA, THIRUVANANTHAPURAM. 7. G.RADHAKRISHNAN NAIR, H/O.LATE SHEELA KUMARI, RESIDING AT ANAMON UTHRADOM PONGUMMODU, MARANALLOOR, KATTAKADA. 8. MIDHUN KRISHNAN, S/O.RADHAKRISHNAN NAIR, RESIDING AT ANAMON UTHRADOM, PONGUMOODU, MARANALLOOR, KATTAKKADA. 9. NIDHIN KRISHNAN, S/O.G.RADHAKRISHNAN NAIR, R/AT ANAMON UTHRADOM, PONGUMMODU, MARANALLOOR, KATTAKKADA. (RESPONDENTS 8 AND 9 WHO ARE MINORS ARE REP. BY THEIR GUARDIAN AND FATHER 7th RESPONDENT) ADV. SRI.R.S.KALKURA FOR R4 - 6 SRI.BLAZE K.JOSE FOR R1 & R3 THIS REGULAR SECOND APPEAL HAVING BEEN FINALLY HEARD ON 11/03/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: M.Sasidharan Nambiar, J. ----------------------------------------- R.S.A.No.1367 of 2004 ---------------------------------------- JUDGMENT Legal heirs of deceased first defendant in O.S. No.415/1995 on the file of Principal Sub Court, Thiruvananthapuram are the appellants. Respondents 1 to 3 are defendants 2 to 4, who are the legal heirs of deceased Janardanan Nair. Respondents 4 to 6 are the legal heirs of deceased plaintiff. Respondents 7 to 9 are the legal heirs of deceased fifth defendant. Plaintiff instituted the suit seeking a decree for partition. It is contended that plaint schedule properties originally belonged to Killikunnathu Veedu tharwad. By a partition of 1101 M.E., it was allotted to the share of the thavazhy of Kochuparvathi Amma, consisting of her children, the plaintiff, first defendant daughter and son Janardanan and children of the first defendant. Subsequently, under Exhibit A1 partition deed dated 26.11.1120 M.E., the properties obtained by the thavazhy were divided. Plaint A schedule property was allotted to the share of mother Kochuparvathy Amma. Plaint B schedule property was allotted to the share of first defendant and her children. Plaint C schedule RSA 1367/04 2 property was allotted to the plaintiff and her children and plaint D schedule property to Janardanan Nair. On the death of Janardanan Nair, his rights devolved upon defendants 2 to 5, his widow and children. Kochuparvathy Amma died in 1967. On the death of Kochuparvathy Amma, her rights devolved on her children, plaintiff, first defendant and children of Janardanan Nair, the predeceased son, as a group. It is contended that each of them is entitled to 1/3 share. Only first defendant resisted the suit. First defendant contended that under the partition deed, plaint A schedule property was allotted to the share of Kochuparvathy Amma and that allotment was for her sub tharwad and on the death of Kochuparvathy Amma, it would devolve on all the members of the sub tharwad. It is further contended that after the death of Kochuparvathy Amma in 1967, first defendant has been in exclusive possession and enjoyment of the property and even if other children of Kochuparvathy Amma had any right, it has been lost by ouster, adverse possession and limitation. It is contended that from 1967 onwards, it was the first defendant who was taking the income and in possession of the property and in such circumstances, RSA 1367/04 3 plaintiff or the other defendants are not entitled to claim any share. 2. Learned Sub Judge, on the evidence of PW1, DWs 1 to 3 and Exhibits A1 to A3 and B1 to B5, passed a preliminary decree finding that on the death of Kochuparvathy Amma, her rights devolved on her children, namely, plaintiff, first defendant and deceased Janardanan Nair and each of them is entitled to 1/3 share. Learned Sub Judge also found that when first defendant is a co-owner, it is up to her to establish the ouster and even if she has been in possession of the property, unless there is an ouster, the rights of the co-owners will be lost and on the evidence, found that first defendant did not establish ouster. First defendant challenged the decree before District Court, Thiruvananthapuram in A.S.No.222/1997. As she died during the pendency of the appeal, appellants were impleaded as her legal heirs. Learned Additional District Judge, on re-appreciation of evidence, found that deceased first defendant is only one of the co-owners and as rightly found by the trial court, first defendant did not establish any ouster and therefore, held that rights of other co-owners are not barred by adverse possession and RSA 1367/04 4 upheld the preliminary decree. It is challenged in the second appeal. 3. Second appeal was admitted formulating the following substantial questions of law: i. Are the plaintiff and defendants co-owners? If so, has the first defendant proved ouster by legal evidence? ii. Have the courts below acted in accordance with law in the matter of appreciating the evidence on record? 4. Learned counsel appearing for the appellants and respondents were heard. 5. When, admittedly, the thavazhy of Kochuparvathy Amma was disrupted under Exhibit A1 partition deed and property was allotted separately to Kochuparvathy Amma, the said property will not carry the incidents of thavazhy thereafter. Hence, the property obtained by the mother is her absolute property. On her death, it would devolve on her legal heirs as provided under Section 17 of Hindu Succession Act. Hence, the property is not a property of the sub tharwad, but that of the mother alone. There is no dispute on the question of inheritance or that each of the RSA 1367/04 5 children will inherent 1/3 share. In such circumstances, the only question for consideration is whether rights of the co-owners are barred by ouster and adverse possession. 6. As rightly found by the courts below, even if one of the co-owners are in continuous possession of the property for any number of years, that will not bar the rights of other co-owners unless there is an ouster. There cannot be an ouster without the knowledge of other co-owners. Possession by one co-owner for any number of years will not by itself operate as adverse possession against the non possessing co-owners. There should be positive plea and evidence to establish that to the knowledge of other non possessing co-owners, first defendant has been in possession of the property, denying their right and ousting them. Learned Sub Judge and Learned Additional District Judge, on appreciating the evidence, found that there is no evidence to prove ouster. That finding is only a finding of fact. Though learned counsel argued that appreciation of evidence is perverse, on going through the judgment and the evidence, I cannot agree with the submission. On the evidence, it can only be found that there is no evidence to establish the ouster so as to RSA 1367/04 6 deny the rights of other co-owners. In such circumstances, the preliminary decree granted by the courts below is perfectly correct. But, evidence show that first defendant started living in the plaint schedule property, as she was not having any other house. In such circumstances, at the time of passing of the final decree, as far as possible and feasible, the house is to be allotted to the legal heirs of deceased first defendant. Appeal is dismissed. 11th March, 2011 (M.Sasidharan Nambiar, Judge) tkv