IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE HARUN-UL-RASHID TUESDAY, THE 28TH JULY 2009 / 6TH SRAVANA 1931 RSA.No. 219 of 2009() --------------------- AS.87/2005 OF DISTRICT COURT,KOZHIKODE OS.342/1992 OF ADDL.MUNSIFF-I COURT,KOZHIKODE .................... APPELLANT/6TH RESPONDENT/2ND DEFENDANT: --------------------------------------------------------------------- K.T. AYYAPPAN, @ KARUNAKARAN, AGED 80 YEARS, RESIDING AT PUTHIYOTTIL HOUSE, KOTTULY AMSOM AND DESOM, KOZHIKODE TALUK, KOZHIKODE DIST. BY ADV. SRI.K.M.JAMALUDHEEN SMT.LATHA PRABHAKARAN SMT.SARASWATHI.P. RESPONDENTS: ---------------------- 1. K.T. RADHA AGED 67 YEARS, W/O. CHIRACKAL RAJU RESIDING AT VILLYGAL KOTTAPARAMBIL, CHEVAYOOR AMSOM DESOM, KOZHIKODE TALUK. 2. KUNHIPERACHAN, S/O. KALOOR THOTTULY UNICHOYI, AGED 73 YEARS, 3. REMADEVI, W/O. KUNHIPERACHAN, AGED 58 YEARS,. 4. SHERIN, AGED 36 YEARS, S/O.KUNHIPERACHAN 5. SHAJU, AGED 35 YEARS, S/O. PERACHAN. 6. YADHAVEN, AGED 33 YEARS, S/O.KUNHIPERACHAN (ALL ARE RESIDING AT PUTHIYOTTIL, THOTTULY AMSOM DESOM, KOZHIKODE TALUK). 7. SANTHA, W/O. AYYAPPAN AGED 67 YEARS 8. AJITHAKUMARI, AGED 45 YEARS D/O. AYYAPPAN 9. SANILKUMAR, AGED 43 YEARS, S/O.AYYAPPAN 10. REJITHAKUMARI, AGED 41 YEARS, S/O. AYYAPPAN. RSA.No. 219 of 2009() 2 11. SUSHEELKUMAR, AGED 38 YEARS, S/O. AYYAPPAN. 12. SAJITHKUMARI, AGED 36 YEARS, D/O. AYYAPPAN. (ALL ARE RESIDING AT PUTHIYOTTIL, THOTTULI AMSOM DESOM, , KOZHIKODE TALUK). 13. K.T. LEELA AGED 58 YEARS, W/O. ALAMVATTA SOMAN RESIDING AT SATI VIHAR KADALUNDI AMSOM DESOM, KOZHIKODE TALUK. 14. THAYIL JAYAPALAN, AGED 69 YEARS, S/O. THAYYIL GOVINDAN RESIDING AT PADIKKALKANDI PARAMBIL, KOOTOLI AMSOM DESOM KOZHIKODE TALUK 15. SANTHA AGED 61 YEARS, D/O. THAYYIL GOVINDAN. 16. MARIYIL DATHAN, AGED 51 YEARS, S/O. MARIYIL KRISHNAN NAIR, (ALL ARE RESIDING AT PADIKKALKANDI PARAMBIL, KOOTOLI AMSOM DESOM KOZHIKODE TALUK) ADV. SRI.SAJU.S.A FOR R1 & 13 SRI.S.V.BALAKRISHNA IYER, SENIOR ADVOCATE FOR R 2 TO 6 WITH M/S.JAYAKUMAR, SRI.P.B.KRISHNAN, SMT.N.AJITHA & P.M.NEELAKANDAN SRI.P.R.SREEJITH FOR R14 & 15 THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 28/07/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: HARUN-UL-RASHID, J. ---------------------------------- R.S.A. No.219 of 2009 ----------------------------------- Dated this the 28th day of July, 2009 JUDGMENT The 2nd defendant in O.S.No.342/1992 on the file of the Additional Munsiff-1 Court, Kozhikode is the appellant. The appeal is directed against the judgment and decree in A.S.No.87/2005 on the file of the District Court, Kozhikode. The suit was filed by 5 plaintiffs for partition. The suit was decreed by the trial court and confirmed in appeal. Hence the second appeal. 2. The first plaintiff, the defendants 1,2,10 and 11 are the children of Unichoyi. The properties belonging to the family of Unichoyi were partitioned in the year 1928. The plaint schedule items 1 and 2 properties are the properties obtained by Unichoyi, his wife and children by virtue of document No. 2300/1928. Plaint schedule items 3 & 4 properties are self acquired property of Unichoyi. Unichoyi died in the year 1978. The plaint schedule properties 1 to 4 devolved upon his wife and children who are the sharers. After the death of the wife of Unichoyi, her share in the property devolved upon the plaintiffs and the defendants jointly. The suit was filed for partition R.S.A. No.219 of 2009 2 claiming 1/5th share with mean profits. 3. The defendants 2 to 5 filed written statement raising the following contentions. The suit is bad for misjoinder of cause of action. Second plaintiff who is the wife of the first plaintiff is not a member of the family and therefore she is not entitled for any share. The items 1 and 3 of the properties are not partible. The plaint items 1 and 3 are family properties having been acquired and earned from the income of the family properties. The deceased Unichoyi had only 1/4th right in the family properties. The remaining 3/4th right in the family properties are being held by the 1st plaintiff, 1st defendant and 2nd defendant who constitute joint family along with their respective male children born prior to 1/12/1976. The defendants 10 and 11 also filed written statement. They supported the claim of the plaintiff. 4. The trial court examined the questions raised by the respective parties at length. The oral evidences entered by PW1, DW.1,DW2, Ext.A1 to A6, Ext.B1, B25 are considered and discussed. The trial court on evidence held that plaint schedule items 1 to 4 properties are partible properties. The plaintiff, R.S.A. No.219 of 2009 3 second, 10th & 11th defendants are the persons entitled to the items 1 & 2 shall be divided into 60 shares. The first plaintiff and second defendant are entitled to 21/60 shares each. 10th & 11th defendants entitled to 9/60 shares each. Items 3 & 4 properties shall be divided into 4 between first plaintiff, 2nd,10th and 11th defendants and to share the property equally. Other incidental reliefs are also granted. On the basis of the various contentions raised by the contesting defendants 2 to 9 especially the second defendant who is the appellant herein the trial court raised several issues mainly issue Nos.1 to 11 and answered each and every issue. The trial court held that the suit is not bad for misjoinder of parties, and that the matter need not be referred to the Land Tribunal under Section 125(3) of KLR Act for the reason that the second defendant has already obtained purchase certificate for item No.2 in the plaint schedule property. The order of the land tribunal in the O.A. filed by the second defendant was confirmed. The trial court also noted that the order of the land tribunal confirmed by this court in C.R.P.No.187/1996(1). Therefore the claim of the second defendant for further reference was found to be absolutely R.S.A. No.219 of 2009 4 baseless and unsustainable. All other issues are considered together on the basis of the evidence of record. The trial court on evidence held that there is no evidence to show that the items 3 & 4 properties were joint family properties of Unichoyi. The court further held that there is no proof to show that item 4 property is the property acquired by first plaintiff and defendants 1 and 2. The court rests its conclusion based on Exts.A3 and A4 and held that item 3 & 4 properties are self acquired properties of Unichoyi. The court further held that the plaintiff, second, 10th & 11th defendants are entitled to get 1/4th share in items 3 & 4 properties. The item No.1 property was considered separately. The contentions of the plaintiffs and defendants were examined in detail in Ext.A1 document and the position of law. Since Ext.A1 document is of the year 1928, the position of law as on that date was considered in the light of Section 14 of the Hindu Succession Act and finally the trial court held that the plaint schedule item No.1 is also partible and the plaintiff and second defendant are entitled to get 21/60 shares each and D10 and D11 are entitled to get 9/60 shares each. 5. The main contentions raised in this case regarding the R.S.A. No.219 of 2009 5 partibility of item 2 property. The appellant herein claimed exclusive title to the property. According to the plaintiffs and defendants 10 & 11 plaint schedule item No.2 is the joint family property which is obtained by Unichoyi by virtue of Ext.A1 partition deed and therefore it is partible among all the children of Unichoyi. The defendants 2 to 9 contended that plaint schedule item No.2 property exclusively belongs to D2 and therefore it is not partible among plaintiffs and other defendants. The trial court examined the rival contentions on the basis of the oral and documentary evidence of PW.1, DW.1, Ext.A1, D1 to D4, B20, 21,23,24 & 25. Exts.B5 to B19 was also relied on to enter the finding on item No.2. The trial court rightly held that the item 2 is item 19 of A schedule in Ext.A1 partition deed, which was set apart to the branch consisting of Unichoyi, his wife and children. The case set up by the second defendant that in the year 1960 Unichoyi entrusted the property to him by way of an oral lease and thereafter he was directly paying rent to the jenmi was considered in detail. The court examined as to whether the case of oral lease pleaded by D2 to D9 can be accepted or not. The court below rightly held that Unichoyi had only 1/5th right in R.S.A. No.219 of 2009 6 plaint schedule item No.2 and that he cannot create oral lease in respect of entire property. Ext.A6 receipt, Exts.B1 to B4 receipts was also considered by the trial court. 6. Ext.B2 purchase certificate and Ext.B3 proceedings are seen issued after the death of Unichoyi Ext.B23 assignment order is dated 16/11/1981 and B22 purchase certificate is dated 10/3/1982. Plaintiffs and defendants 10 & 11 were not made parties to Ext.B23. Therefore, the findings in Ext.B23 are not binding on them and they have right over the property as contended by defendants 11 & 12. The contention of the second defendant on the basis of the judgment in the reference cases L.A.R.286/1981 has also been repelled. In the LAR case a small portion of the item 2 property was acquired. Though the property belongs to 5 persons, the deceased wife, Unichoyi, the 10th & 11th defendants were not made parties. The first plaintiff was a party but he remained exparte. The second defendant claimed the amount and the reference court passed the judgment directing payment of compensation to the second defendant. The trial court in this case held that since 3 of the sharers are not parties to the LAR proceedings that would not operate as R.S.A. No.219 of 2009 7 resjudicata against them and the said arguments are found to be devoid of any merit. The trial court further held that the decree in LAR.No.286/1981 become final, that it is only in respect of 15 cents of land which forms a small portion of the property having an extent of more than 2 acres. The trial court also held that the decision in LAR.286/1981 against the first defendant in respect of a very small extent of land ie, 0.057 H. does not debar him from claiming right over the remaining property. After elaborately considering the contentions one by one of defendants 2 to 9 the trial court held that the plaint schedule properties item No.2 is the joint family property. Unichoyi’s wife and 3 sons namely first plaintiff, first defendant and second defendant were holding the same jointly by virtue of Ext.A1 partition deed of the year 1928 and each of them have 1/5th right. 7. Against the decree of the trial court neither the second defendant nor his wife and children who are defendants 3 & 4 to 9 filed any appeal. The first appeal was filed by the 10th defendant claiming more share in items 1 & 2. Three cross objections were filed. One filed by the 11th defendant, another by the plaintiff and the 3rd one by the 14th defendant. R.S.A. No.219 of 2009 8 8. The appellate court considered the matter again in the light of the contentions raised by the parties and dismissed the appeal and 3 cross objections. The above said parties who had aggrieved by the trial court judgment and the appellate court judgment had not chosen to file any appeal before this court. The second defendant in the suit who is aggrieved by the judgment and decree passed by the trial court and who suffered findings against him does not choose to file any appeal. The question raised by him and his contentions were considered and discussed very elaborately by the trial court and on the basis of the facts and evidence, the trial court held that the contentions cannot stand in the light of the over whelming evidence. The trial court rightly held that item 2 also belongs to the joint family and therefore is partible. The appellate court considered the question of partibility of item 2 property at the instance of the 10th defendant. The appellate court also concluded that all the plaint items are partible and the contentions of the second defendant who is the appellant now before this court is not tenable. In the light of the decision taken by the trial court and lower appellate court on the basis of facts, I do not find that R.S.A. No.219 of 2009 9 there is any merit in the appeal filed by the appellant who is the second defendant. It is also noticed by this court that the 8th defendant filed R.S.A.No.945/2008 challenging the findings of the trial court and the appeal was dismissed. In the light of the facts, circumstances and legal principles examined by the trial court and appellate court and the concurrent findings on facts I am of the view that the appeal shall fail due to more than one reason as stated supra. The appellant has not made out any ground to invoke jurisdiction under Section 100 C.P.C. No question of law much less any substantial questions of law arises for consideration in this second appeal. The appeal is therefore dismissed in limine. HARUN-UL-RASHID, JUDGE Skj.