IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.S.SATHEESACHANDRAN FRIDAY, THE 3RD SEPTEMBER 2010 / 12TH BHADRA 1932 SA.No. 658 of 1995() -------------------- AS.12/1994 of SUB COURT, VADAKARA OS.171/1990 of MUNSIFF COURT, NADAPURAM .................... APPELLANT(S): -------------- KUROOLIKANDIYIL PUSHPA, D/O KAMALA, AGED 17 YEARS, MINOR, REPRESENTED BY NEXT FRIEND MATERNAL UNCLE BABU, KUROOLIKKANDIYIL, SON OF CHATHU, AGED 29, PONMENI PARAMBU P.O, (VIA) VILLIAPPILLY, VADAKARA, CALICUT. BY ADV. SRI.M.K.DAMODARAN, SENIOR ADVOCATE RESPONDENT(S): --------------- 1. PADIKKAPOYIL KUMARAN, S/O KELAPPAN, AGED 38 YEARS, MILITARY SERVICE, NARIPATA AMSOM DESOM, VADAKARA TALUK. * 2. PADIKKAPOYIL CHATHU, S/O KELAPPAN, 58 YEARS, AGRICULTURIST, NARIPATTA AMSOM DESOM, DIED VADAKARA TALUK. 3. PADIKKAPOYIL MATHU, S/O KELAPPAN, AGED 50, AGRICULTURIST, NARIPATTA AMSOM DESOM, VADAKARA TALUK. 4. KUROOLIKANDIYIL JANU, D/O KELU, 35 YEARS, PALAYAD AMSOM, DESOM VADAKARA TALUK. 5. KUROOLIKANDIYIL BALAKRISHNAN, S/O KELY, PONMERI AMSOM, PARAMBIL DESOM, VADAKARA TALUK. 6. KUROOLIKANDIYIL LAKSHMI, 28 YEARS, D/O KELU, PONMERI AMSOM, PARAMBIL DESOM, VADAKARA TALUK. 7. KUROOLIKANDIYIL BABU, 26 YEARS, S/OKELU, PONMERI AMSOM, PARAMBIL DESOM, VADAKARA TALUK. ADDL. R8. MEETHALE PARAMBATH SANTHA, W/O PADIKKAPOYIL CHATHU, KNOOKKARA P.O, ONGIYAM VIA 673102, VADAKARA TALUK. SA.No. 658 of 1995() 2 ADDL. R9. SHANILA, D/O PADIKKAPOYIL CHATHU, - DO - ADDL.R10. CHANDRAN, S/O PADIKKAPOYIL CHATHU, - DO - ADV. SRI.R.PARTHASARATHY FOR R1 SRI.R.PARTHASARATHY FOR R.3 SRI.R.PARTHASARATHY FOR R6-9 * R2 DIED. ADDITIONAL R8 TO R10 IMPLEADED AS THE LEGAL HEIRS OF DECEASED R2 AS PER ORDER DATED 29/07/2010 IN I.A NO.310/2008. THIS SECOND APPEAL HAVING BEEN FINALLY HEARD ON 03/09/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: S.S.SATHEESACHANDRAN, J -------------------------------------- S.A No.658 OF 1995 -------------------------------- Dated this the 3rd day of September 2010 JUDGMENT Preliminary decree passed in a suit for partition by the lower appellate court reversing the dismissal of the suit by the trial court is challenged in the second appeal by the 5th defendant. 2. Plaint 'A' schedule property having an extent of 68 cents originally belonged to one Chathu. On the death of Chathu, the right over the property devolved on one Kelappan. Kelappan had five children namely Kelu, Mathu, Chathu, Gopalan and Madhavi. Kelappan executed Ext.A6 gift deed assigning 'A' schedule property in favour of his five children. Kelu, one among his children executed Ext.A1 sale deed assigning his 1/5 right over the property in favour of the plaintiff. That assignment, however, was made during the pendency a previous suit filed by one Ammalu, O.S No.93/1980, which ultimately led to passing of a final decree in respect of the property covered by the present suit. Ammalu was the daughter of the original acquirer Chathu. She had two sisters apart from a brother. She had claimed one half right over 'A' schedule property. Kelu, it is admitted, was the nephew of Chathu and had married one of his daughters, namely Chiruthai. In the suit O.S 93/1980, Ammalu had claimed absolute title over 'A' schedule property, with her two sisters, in which the S.A No.658 OF 1995 2 above said Kelu was the additional 7th defendant. Kelu had resisted the suit claiming absolute right over the property. After trial, a decree was passed holding that Ammalu and her two sisters have one half right over the property, and Kelu, the other one half, by way of inheritance as per the Marumakkathayam Law. The decree so passed in O.S 93/1980, it is conceded, has become final. The property excluding the portion in 'A' schedule allotted to Ammalu and first defendant is 'B' schedule in the present suit which was set apart as the allotment due to defendants 1 to 3 in the present suit and Kelu and Gopalan. Gopalan, the brother of Kelu, it is conceded had passed away issueless during the final decree proceedings in the above referred suit and his rights have devolved upon his legal heirs, his brother and sisters, D1 to D3. Admitting to the allotment made in the previous suit O.S 93/1980, as under Ext.A5 final decree, the plaintiff laid the suit for partition of his share on the basis of Ext.A1 title deed, but for the lesser extent that would be available to the executant of that deed, Kelu, in the 'B' schedule property set apart towards the share of D1 to D3 and Kelu and Gopalan. The claim of the plaintiff was resisted by the defendants 1 to 3 filing a joint written statement, in which, among other contentions, they impeached the maintainability of the suit S.A No.658 OF 1995 3 contending that without seeking a declaration of title on the basis of Ext.A1 assignment deed, the plaintiff cannot seek for a division of his share from the 'B' schedule property under Ext.A5 decree. It was further contended that he cannot claim any share from 'B' schedule property and his remedy is after getting a declaration of his title to seek a division from plaint 'A' schedule property. Defendants 4 and 5 also filed a joint written statement in which repudiating the claim of partition by the plaintiff they sought to rake up the contentions advanced in the previous suit as to the competency of Kelappan to execute a gift deed in favour of his children. The trial court, after consideration of the pleadings and also materials tendered by both sides, which consisted of Ext.A1 to Ext.A7 for the plaintiffs and B1 for the defendants and PW1 and PW2 towards oral evidence on behalf of the plaintiff dismissed the suit as not mainatianable. In the appeal preferred by the plaintiff, the lower appellate court, after reappreciating the materials tendered with reference to the pleadings of the parties, came to the conclusion that the dismissal of the suit by the trial court on the ground that it is not maintainable was incorrect and not sustainable. Noticing that though Ext.A1 assaignment deed in favour of the plaintiff by Kelu was for a larger right than what he had over the 'A' schedule property it was held that the assignee, S.A No.658 OF 1995 4 the plaintiff, was fully competent to limit his right to the extent it was determined in the previous suit under Ext.A6 decree. In that view of the matter, reversing the dismissal of the suit, a preliminary decree was passed by the lower appellate court in favour of the plaintiff holding that the plaintiff is entitled to 1/5 right in 'B' schedule property under Ext.A6 decree. Propriety and correctness of that decree is challenged in this appeal. 3. I heard the counsel on both sides. The contentions raised before the lower appellate court, which were found against the defendants by that court had been reiterated before me by the learned counsel to hold that the plaintiff, without filing a suit for declaration of title on the basis of his title deed Ext.A1 and seeking partition of his share in the 'A' schedule property, was incompetent to seek a share on the basis of Ext.A1 deed from 'B' schedule property in Ext.A6 decree. I do not find any merit in the challenge so canvassed to impeach the decree passed by the court below. Plaintiff has no challenge against Ext.A6 decree and his assignment under Ext.A1 in his favour admittedly was after the commencement of the suit leading to Ext.A6 decree. Whatever rights adjudicated and determined in the previous suit for partition is conclusive and binding on the plaintiff, a subsequent assignee. Plaintiff has rightly and correctly restricted S.A No.658 OF 1995 5 his right to the extent Kelu, his assigner, had right over 'B' schedule property, with other sharers, defendants 1 to 3, in the present suit. Of course, the title deed Ext.A1 executed in his favour by Kelu speaks of a larger right over the property. As indicated earlier, whatever be the larger right stated to have been conveyed in that deed, he can claim only the right which his assignee had over the undivided property. That alone was asked by the plaintiff when he sought for allotment of his share in 'B' schedule under the present suit. Challenge against the maintainability of the suit raised by the appellant and other contesting defendants was rightly and correctly repelled by the court below especially where these defendants had no challenge against the validity of Ext.A1 title deed executed by Kelu in favour of the plaintiff assigning whatever right he had in the undivided 'A' schedule property. The appeal is found to be devoid of any merit, and is dismissed. Sd/- S.S.SATHEESACHANDRAN JUDGE //True Copy// P.A to Judge vdv