IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.M.JOSEPH & THE HONOURABLE MR. JUSTICE M.L.JOSEPH FRANCIS TUESDAY, THE 27TH SEPTEMBER 2011 / 5TH ASWINA 1933 RFA.No. 750 of 2010() --------------------- OS.133/2008 of II ADDL.SUB COURT,ERNAKULAM .................... APPELLANT/SECOND DEFENDANT ---------------------------------------------- ANTONY,S/O.AUGUSTINE, PERINGATHARA HOUSE,CHENGANATHU PURAYIDOM, ELAMAKKARA PO, KOCHI 682 026. BY ADV. SRI.P.B.SURESH KUMAR SRI.LEO GEORGE RESPONDENT(S): PLAINTIFF AND DEFENDANTS I AND 3 TO 7 ---------------------------------------------------- 1. P.A.JOHN,S/O.AUGUSTINE,PERINGATHARA HOUSE,CHUTTUPADUKARA,EDAPPALLY PO,KOCHI 682 024. 2. JOSEPH,S/O.AUGUSTINE,PERINGATHARA HOUSE,CHUTTUPADUKARA,EDAPPALLY PO,KOCHI 682 024. 3. ELISHIA ALIAS ELIZY,W/O.GEORGE, PANACKAL HOUSE,SOUTH CHITTOOR PO, KOCHI 682 027. 4. JOSEPH,S/O.VAREETH,PURAKKATTU HOUSE, KATHRIKKADAVU, KALOOR,KOCHI 682 017. 5. VARGHESE,S/O.JOSEPH,PURAKKATTU HOUSE, KARTHRIKKADAVU, KALOOR,KOCHI 682 017. 6. SUNIL ANTONY,S/O.JOSEPH,PURAKKATTU HOUSE KARTHRIKKADAVU, KALOOR,KOCHI 682 017. 7. P.J.JOHNSON,S/O.JOHN,PERINGATHARA HOUSE, CHUTTUPADUKARA,EDAPPALLY PO, KOCHI 682 024 (DELETED) (R7 IS DELETED FROM THE PARTY ARRAY AT THE RISK OF THE APPELLANT VIDE ORDER DATED 8.3.2011 IN I.A.406/11) ADV. SRI.T.K.AJITHKUMAR (VALATH) FOR R1 SRI.P.K.SAJEEVAN FOR R1 SRI.GEORGE THOMAS (MEVADA), SENIOR ADVOCATE FOR R2 TO 6 SRI.MANU GEORGE KURUVILLA FOR R2 TO 6 SMT.RINU JOSE FOR R2 TO 6 THIS REGULAR FIRST APPEAL HAVING COME UP FOR ADMISSION ON 27/09/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: K.M.JOSEPH & M.L.JOSEPH FRANCIS, JJ. ----------------------------------------------- R.F.A. No.750 of 2010 ----------------------------------------------- Dated 27th September, 2011. J U D G M E N T Joseph, J. This appeal is filed against the preliminary decree in a suit for partition. The appellant is the second defendant. Respondents are plaintiff and defendants 1 and 3 to 7 in the suit. The case of the plaintiff was that the plaint schedule property belonged to Mariyam, who is the mother of plaintiff and defendants 1 and 2, by document No.2746/66 of SRO, Edappally. The said Mariam died intestate on 23.10.1989 and her 1/3 share over the property devolved upon her legal heirs. The plaintiff, late Thressia, late Mary, defendants 1 to 3, late Treesa @ Chinnamma are the children of Mariyam. The elder daughter Thressia, who died on 6.4.2007 had released her share in favour of the plaintiff on 1.9.2003 by document No.4567/03. The second daughter Mary died on 2.5.2007. She had executed a will bequeathing her share in favour of the 7th defendant. Treesa @ Chinnamma died on 2.9.1989 and survived by the defendants 4 to 6. 2. Defendants 1 and 3 to 6 filed a joint written RFA 750/2010 2 statement. A counter claim was filed by the first defendant that he is the absolute owner of the plaint schedule property. He set up a case that late Mariyam and second appellant were only name lenders. He lodged a counter claim that sale deed No.4567/03 and will No.115/04 are null and void. The second defendant/appellant also interalia contended by filing a written statement that mother did not contribute anything towards purchase of the property. It is stated that in 1994, the third defendant and the legal heirs of Chinnamma, and defendants 5 and 6 released their share over the property to defendants 1 and 2 by document No.573/94 and thereafter, the property was partitioned between the defendants 1 and 2 as per partition deed no.3356/08. In 1981, by document no.2370 of SRO, Edappally, the said Mariyam had sold 5.330 cents situated in south western corner, to the wife of the second defendant. [It is pointed out by the learned counsel for the appellant that actually, not only Mariyam, but the other co-owners had joined in the document and the said document is Ext.B7]. The other contentions may not be fully relevant, in view of the nature of RFA 750/2010 3 the contentions taken by the appellant. 3. The court has passed a preliminary decree, wherein, the court has found that Mariyam had a share and the plaint schedule properties were divided into 18 equal shares. It is interalia found that the share of defendants 5 and 6, i.e., 1/3 of 1/18 shall go to defendants 1 and 2. 4. It was found that the 4th defendant is entitled to get 1/3 share of 1/18 share as one of the legal representatives of Treesa @ Chinnamma on payment of court fee. It is further ordered that the present possession of the properties, subject to the extent of actual shares of parties shall be protected, as far as possible at the time of partition. The appeal is filed feeling aggrieved by the said three directions in the preliminary decree. Of course, the appellant has also a case that the plaint schedule property should be reckoned after deducting an extent of 5.330 cents, which was sold by the co-owners in favour of the wife of the appellant by Ext.B7 document. 5. We heard the learned counsel appearing on behalf of the appellant, plaintiff and defendants 1 and 3 to 6. RFA 750/2010 4 As far as the 7th defendant is concerned, on an application filed by the appellant, we had deleted his name from the party array, at the risk of the appellant. 6. When the matter came up for admission, we heard the learned counsel appearing for the parties, as aforesaid. We must first consider whether there is any vital flow in the appeal consequent upon the deletion of the 7th defendant. The 7th defendant made his appearance in the plaint on the basis of the pleading by the plaintiff that Mary, one of the sisters of the plaintiff had executed a will by which she had bequeathed her share to the 7th defendant. The 7th defendant is none other than the son of the plaintiff. Even though such a contention was set up, neither the plaintiff nor the 7th defendant have made an attempt to prove the case by producing the will. In fact, the 7th defendant has not cared to appear in the court below. In such circumstances, we think that the appeal cannot be held to be defective. 7. The further contention taken by the appellant is essentially as follows : The 4th defendant, who is the 4th RFA 750/2010 5 respondent herein, is the husband of late Treesa @ Chinnamma, who died on 2.9.1989. Her mother Mariyam, who is the mother of the plaintiff also, on the other hand, died on 23.10.1989. According to the learned counsel for the second appellant, the 4th respondent will not get any share in regard to the property of Mariyam on her dying intestate. In this connection, he invokes Section 40 of the Indian Succession Act, which reads as follows : “Where intestate leaves lineal descendants not all in same degree of kindred to him, and those through whom the more remote are descended are dead.--(1) If the intestate has left lineal descendants who do not all stand in the same degree of kindred to him, and the persons through whom the more remote are descended from him are dead, the property shall be divided into such a number of equal shares as may correspond with the number of the lineal descendants of the intestate who either stood in the nearest degree of kindred to him at his decease, or, having been of the like degree of kindred to him, died before him, leaving lineal descendants who survived him. (2) One of such shares shall be allotted to each of the lineal descendants who stood in the nearest degree of kindred to the intestate at his decease; and one of such shares shall be RFA 750/2010 6 allotted in respect of each of such deceased lineal descendants; and the share allotted in respect of each of such deceased lineal descendants shall belong to his surviving child or children or more remote lineal descendants, as the case may be; such surviving child or children or more remote lineal descendants always taking the share which his or their parent or parents would have been entitled to respectively if such parent or parents had survived the intestate. Illustrations (i) A had three children, John, Mary and Henry; John died, leaving four children, and Mary died, leaving one, and Henry alone survived the father. On the death of A, intestate, one- third is allotted to Henry, one-third to John's four children, and the remaining third to Mary's one child. (ii) A left no child, but left eight grand-children, and two children of a deceased grand-child. The property is divided into nine parts, one of which is allotted to each grand-child, and the remaining one-ninth is equally divided between the two great- grand-children. (iii) A has three children, John, Mary and Henry; John dies leaving four children; and one of John's children dies leaving two children. Mary dies leaving one child. A afterwards dies intestate. One-third of his property is allotted to Henry, one- third to Mary's child and one-third is divided into four parts, one RFA 750/2010 7 of which is alloted to each of John's three surviving children, and the remaining part is equally divided between John's two grand-children. (iv) A has two children, and no more, John and Mary. John dies before his father, leaving his wife pregnant. Then A dies leaving Mary surviving him, and in due time a child of John is born. A's property is to be equally divided between Mary and the posthumous child.” 8. In other words, it is his contention in as much as Treesa, the daughter of Mariyam, whose husband is the 4th respondent, had predeceased Mariyam, the son-in-law of Mariyam, viz., the 4th respondent will not get any share in her property. There is no objection to the acceptance of this contention on the side of either the plaintiff or defendants 1 and 3 to 6. We see no reason why we should not accept this contention, in view of the legal provision. Accordingly, we hold that the 4th defendant will not get any share in the plaint schedule property. There is no dispute that defendants 5 and 6, who are the children of Treesa @ Chinnamma referred to herein before, are the only sharers and their share will be 1/18, RFA 750/2010 8 and this share is purchased by defendants 1 and 2. If that be so, the directions in the preliminary decree under challenge must be modified. We direct that the share of defendants 5 and 6 will be 1/18, which shall go to defendants 1 and 2. We further direct that the 4th defendant will not get any share and the direction that the 4th defendant will be entitled to 1/3 of 1/18 share as one of the legal heirs of Treesa @ Chinnamma will stand deleted. 9. The further contention is that 5.330 cents of property was sold to the wife of the appellant vide document no.2370/81. Ext.B7 was the certified copy of the said document. Learned Judge, in fact, noted in paragraph 14 that the said property is not available for partition and an endorsement on the plaint is also made in view of Ext.B7. The plaint schedule has not been amended and the court has in fact issued a direction in respect of the entire plaint schedule property. In such circumstances, we only clarify that the plaint schedule property shall be treated as an extent of 26.548 less 5.330 cents covered by Ext.B7. RFA 750/2010 9 10. As far as last complaint is concerned, that there is no mention about ovelty, is a matter to be gone into at the stage of passing of the final decree. We dispose of the appeal with the above directions. Parties are directed to suffer their respective costs. Sd/- K.M.JOSEPH, JUDGE. Sd/- M.L.JOSEPH FRANCIS, JUDGE. tgs (True copy) P.S. to Judge.