IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.P.BALACHANDRAN TUESDAY, THE 12TH AUGUST 2008 / 21ST SRAVANA 1930 SA.No. 734 of 1993(D) ----------------------------------- AS.71/1989 of SUB COURT, HOSDRUG OS.160/1985 of MUNSIFF COURT, HOSDRUG .................... APPELLANTS/APPELLANTS/D1 & D2 & R1 & R2: 1. KALLYANI, D/O CHANDU KOMARAM, HOUSE HOLD. 2. K.PADMAVATHI, AGED 45, W/O BALAKRISHNAN, HOUSE HOLD. BOTH ARE RESIDING AT KANDATHIL VEEDU, THOYAMMAL, KANHANGAD VILLAGE, HOSDURG TALUK, P.O.BALLA. BY ADV. SRI.KODOTH SREEDHARAN RESPONDENTS/RESPONDENTS/PLAINTIFF, D3 & 5-9 & R3-8: 1. K.SHEELAVATHI, AGED 35, W/O VIJAYAN, HINDU, HOUSEHOLD, CHEMMATTAMRAYAL IN BALLA VILLAGE, P.O. BALLA. 2. UMAVATHI, AGED 33, W/O C.AMBU, HINDU, HOUSE HOLD, BILLIKOTH, AJANUR VILLAGE, P.O.AJANUR. 3. SAROJINI, W/O C.KELU NAIR, AGED 50, HINDU, HOUSE HOLD, NEAR NGO QUARTERS CHEMMATTAMRAYAL, BALLA VILLAGE, P.O.BALLA. 4. ANDUNHI, S/O MAVUNGAL USEPH, AGED 51, MUSLIM, AGRICULTURIST, KOVVAPALLI, KANHANGAD VILLAGE, P.O. KANHANGAD. (DIED. LRs IMPLEADED). 5. JANAKI, W/O NARAYANAN, AGED 30, VELLAMUNDA, BELUR VILLAGE, P.O.ATTENGANAM, VIA ANANDASRAM. 6. RATHEESH, AGED 9 (MINOR). 7. ANITHA, AGED 7 (MINOR). (MINORS REP. BY THEIR GUARDIAN NEXT FRIEND MOTHER R5 JANAKI). LRs IMPLEADED 8. NABESA, W/O ANDUNHI, AGED 55. 9. ASSAUBAN, S/O ANDUNHI, AGED 36. 10. RUKHIYA, D/O ANDUNHI, AGED 34. 11. MOHAMMED, S/O ANDUNHI, AGED 32. 12. ABOOBACKER, S/O ANDUNHI, AGED 29. 13. SUBAIDA, D/O ANDUNHI, AGED 26. 14. ZEENATH, D/O ANDUNHI, AGED 23. 15. ALI, S.O ANDUNHI, AGED 21. RESPONDENTS 8 TO 15 ARE RESIDING AT KOVVALPALLI, KANHANGAD P.O., HOSDURG. (Impleaded as per order dt. 3.4.08 on IA 790/07) BY ADV. SRI.M.RAMESH CHANDER FOR R1, R2 & R5-R7 SMT.K.A.SANJEETHA SRI.M.SASINDRAN FOR R3 SRI.M.P.ASHOK KUMAR FOR R4 SRI.M.S.MANIKANDAN SRI.A.KUMAR SRI.K.V.SOHAN FOR R8-10,13-15 SMT.SREEJA SOHAN.K. THIS SECOND APPEAL HAVING BEEN FINALLY HEARD ON 12/08/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ORDER ON C.M.P.NO.1821/1993 IN S.A. 734/1993 DISMISSED 12.8.2008 SD/-K.P.BALACHANDRAN, JUDGE /TRUE COPY/ K.P. Balachandran, J. --------------------------- S.A.No.734 of 1993 --------------------------- JUDGMENT Defendants 1 and 2 in O.S.No.160/85 on the file of the Munsiff's Court, Hosdurg are the appellants in this second appeal. Respondents are the plaintiff and defendants 3 and 5 to 9. 2. The first respondent/plaintiff instituted O.S.No.160/85 aforesaid for partition and separate possession of her share in the scheduled property, inter alia, on the following allegations: Plaint items 1 to 5 properties originally belonged in jenm right to one Narayana Das; that he orally assigned those properties for cultivation to Chandu Komaram fixing an annual rent to the jenmi; that plaint items 6 to 8 originally belonged to one Ramji in jenm right and those properties were also in possession of the aforesaid Chandu Komaram on kuzhikanam right; that Chandu Komaram died about 25 years back and his right over the properties devolved upon his children, namely, the first SA 734/93 2 defendant, Kunhambu and Madhavi; that Kunhambu died unmarried and his right devolved on his two sisters Kallyani and Madhavi; that Madhavi also died and her right devolved upon the plaintiff and defendants 2 to 4, who are the legal heirs of deceased Madhavi; that Chandu Komaram was residing in the house constructed by him in the suit property; that after his death the properties were jointly held by the first defendant and deceased Madhavi till her death about 20 years back; that they were jointly residing in the house constructed by Chandu Komaram; that after the death of Madhavi, plaintiff and defendants 1 to 4 were jointly residing in the house and the properties had been managed by the first defendant for and on behalf of the plaintiff and defendants 2 to 4, since they were minors at the time of death of their mother Madhavi; that after attaining majority, the plaintiff and defendants 2 and 3 got married and they were jointly cultivating the properties and SA 734/93 3 they were taking the income jointly from the scheduled properties; that the marriage of the plaintiff and defendants 2 and 3 took place from the same house at the instance of the first defendant; that the second defendant, along with her husband and children, are still residing along with the first defendant in the new house constructed by the plaintiff and defendants 1 to 4 in the year 1978 out of the income from the scheduled properties; that the old house that was in existence, which was constructed by Chandu Komaram, is now occupied by tenants on monthly rent; that after the construction of the new house in the year 1978, some misunderstanding arose between the plaintiff and defendants 1 to 4 regarding the expenses incurred for the construction of the house and the first defendant did not allow the plaintiff or defendants 2 to 4 to take income from the properties thereafter; that on 10.5.1985, the plaintiff approached the first SA 734/93 4 defendant and demanded partition of the suit properties and to allot separate share to her, but the first defendant was not amenable to accede to the request and hence the suit. On the above allegations, the plaintiff prayed for partition of the suit properties into eight equal shares and allotment of one such share to her with future mesne profits. It is further alleged by the plaintiff that she understands that the first defendant has alienated portions of the suit properties to defendants 5 and 6 and hence they are impleaded in the suit in order to avoid any resistance from them at the time of delivery. The fourth defendant died pending suit and supplemental defendants 7 to 9, who are his widow and children, are impleaded, they being the heirs and legal representatives of the deceased fourth defendant. 3. Defendants 1 and 2 resisted the suit filing written statement raising the following contentions: SA 734/93 5 The suit is false, frivolous and is not maintainable. It is incorrect to say that plaint items 1 to 5 properties originally belonged to Narayana Das and they were orally entrusted to Chandu Komaram for cultivation; that plaint items 6 and 7 originally belonged to one Ramji and those were also obtained by Chandu Komaram on lease; that after the death of Chandu Komaram, the properties devolved upon his children, namely, the first defendant, Kunhambu and Madhavi; that after the death of Madhavi and Kunhambu, the plaintiff and defendants 1 to 4 were jointly residing in the house constructed by Chandu Komaram and the plaintiff and defendants 1 to 4 were in joint possession and enjoyment of the suit properties are also incorrect; that it is not correct to say that Chandu Komaram is the father of the first defendant alone, but he had got two other children also by name Kunhambu and Madhavi; that Chandu Komaram was having some landed properties, but he was not in SA 734/93 6 possession and enjoyment of plaint items 1 to 5 properties; that it is true that plaint items 6 and 7 properties originally belonged to Chandu Komaram on kuzhikanam right; that plaintiff and defendants 2 to 4 are the legal heirs of deceased Madhavi, the daughter of deceased Chandu Komaram; that plaint items 1 to 5 properties originally belonged to defendants 1 and 2 on oral lease having been obtained from jenmi Vasudeva Kamath on a stipulation to pay an annual purappad to the jenmi; that they were in possession and enjoyment of the aforesaid properties on lease-hold right paying rent to the jenmi and assessment to the Government; that they also effected purchase of jenm right in respect of the aforesaid properties through the Land Tribunal, Kanhangad vide proceedings in O.A. No.5364/1975 and a purchase certificate also has been issued in their favour jointly; that ever thereafter they are in joint possession and enjoyment of the said properties; that the SA 734/93 7 plaintiff or other defendants have no manner of right over the aforesaid properties or the house constructed by them; that the said properties are paddy fields; that plaint items 6 and 7 originally belonged in jenm right to one Seetharamayya and they were obtained by Chandu Komaram on kuzhikanam right; that while he was in possession and enjoyment of the said properties, he executed a registered will dated 11.7.1961 of S.R.O., Hosdurg bequeathing all his properties in favour of his daughter Kallyani; that as per the said will, all his properties devolved upon the first defendant after the death of Chandu Komaram; that thus, the first defendant is in possession and enjoyment of plaint items 6 and 7 properties; that she purchased jenm right in respect of items 6 and 7 respectively vide proceedings in O.A.Nos.360/1974 and 5342/1975 of the Land Tribunal, Kanhangad and purchase certificates have also been issued in her favour; that defendants 1 and 2 have constructed a new SA 734/93 8 house in R.S.No.264/1 of Hosdurg Village measuring 21 cents with their own funds; that there is an old house in R.S.No.244/4C of Hosdurg Village measuring 35 cents and that was constructed by the first defendant with her own funds; that the plaintiff or the other defendants have no manner of right over the properties or the house owned by defendants 1 and 2; that they have jointly executed a sale deed in respect of 19 cents in R.S.No.65/3, viz., in relation to plaint item 3 of the suit properties in favour of the sixth defendant as per a registered sale deed dated 21.9.1976 of S.R.O., Hosdurg; that the sixth defendant has constructed a house in the said item of property and that the suit properties are not liable to be partitioned. Without prejudice to the above contentions, defendants 1 and 2 contended further that in the event of partition, they are entitled to their shares and also the value of improvements effected by them. SA 734/93 9 4. Defendants 1 and 2 filed an additional written statement contending further that suit items 1 to 6 originally belonged to defendants 1 and 2 as per an oral lease from the jenmi Vasudeva Kamath and thereafter they purchased the jenm right over the said properties; that they executed a sale deed in respect of plaint item 6 in favour of the sixth defendant; that plaint items 7 to 10 originally belonged to one Seetharamayya and same was obtained by Chandu Komaram on kuzhikanam right; that he was in possession and enjoyment of those properties, but subsequently, on 11.7.1961 he executed a registered will in favour of the first defendant and thereafter the first defendant is in possession and enjoyment of plaint items 7 to 10 properties; that the first defendant also purchased the jenm right from the Land Tribunal, Kanhangad in respect of plaint items 7 to 10; that she is, thus, having absolute right and possession over plaint items 7 to 10 properties and she has assigned SA 734/93 10 plaint item 10 in favour of the fifth defendant as per sale deed dated 11.12.1979; that they constructed a house in plaint item 7 and is residing therein; that the old house situated in plaint item 8 was constructed by the first defendant using her own funds and that the plaintiff and other defendants have no manner of right over the properties. 5. Defendants 1 and 2 filed another additional written statement also on 29.6.1988 contending that the suit properties are not liable to be partitioned. They filed a further additional written statement on 6.9.1988 contending that the plaintiff has no right over plaint item 8 property and she is not in possession thereof; that plaint item 8 property belonged to Chandu Komaran and he had executed a registered will in favour of the first defendant and thus, the first defendant is in possession of plaint item 8 property and that she obtained purchase certificate also in respect of SA 734/93 11 that property from the Land Tribunal, Kanhangad. Hence, defendants 1 and 2 payed for a dismissal of the suit. 6. Defendants 3 and 4 filed written statement contending that the suit properties originally belonged to Chandu Komaram and after his death the properties devolved upon his legal heirs - the first defendant, Madhavi and Kunhambu; that after the death of Kunhambu, his right jointly devolved upon the first defendant and Madhavi and that after the death of Madhavi, her right devolved upon the plaintiff and defendants 2 to 4. They supported the claim for partition, though they have not paid the court fee for allotment of their shares. 7. The fifth defendant filed written statement raising the following contentions: The first defendant has assigned 52 cents of paddy field in R.S.No.164/1A in her favour on 11.12.1979 and thereafter she is in possession of the said property; that the said property does not SA 734/93 12 form part of the plaint schedule properties; that the plaintiff has no title or possession over the said property and that the said property is not available for partition. 8. The sixth defendant filed a written statement raising the following contentions:- The suit property originally belonged to Chandu Komaram and after his death it devolved upon his legal heirs, viz., the first defendant, Kunhambu and Madhavi; that after the death of Madhavi, her rights devolved upon her children, who are defendants 2 to 4; that the right of Kunhmabu has also jointly devolved upon defendants 1 to 4; that thereafter defendants 1 and 2 jointly executed a sale deed in respect of 19 cents comprised in R.S. No.65/3, which is plaint item 3, in his favour as per sale deed dated 27.9.1976; that he has also effected improvements in the said property and he has constructed a tiled house in the said property and is residing therein; that it is incorrect to SA 734/93 13 say that the house in plaint item 6 property is not constructed by him; that plaint item 6 property is having separate boundaries and that is not available for partition and that he is not in joint possession with the plaintiff and defendants 1 to 4 and he is not liable to pay any mesne profits. Without prejudice to his contentions, he has further claimed that in the event of partition, the said 19 cents be allotted to him by way of reservation and contended that the suit is liable to be dismissed with costs. 9. The sixth defendant filed an additional written statement contending that he is in possession of 19½ cents and that property is covered by plaint item 7 of the suit properties. 10. Defendants 7 to 9 filed a joint written statement contending that they are entitled to the share of deceased fourth defendant and prayed for that share being allotted to them in the event of partition. SA 734/93 14 11. On the above pleadings, the trial court raised necessary issues for trial and considering the evidence adduced at trial, which consisted of oral evidence of PWs 1 and 2 and DWs 1 to 5 and documentary evidence Exhibits A1, A2, B1 to B10(c) and C1 to C4, passed a preliminary decree in the suit for partition of plaint items 1 to 6 and 9 into eight equal shares and allotment of one such share to the plaintiff with proportionate mesne profits from the date of plaint till date of delivery, the quantum of which was deferred to be adjudged in the final decree proceedings. It was further provided in the decree that out of the remaining seven shares, four such shares will be allotted to the first defendant, one share to the second defendant, one share to the third defendant and the remaining one share to defendants 7 to 9, being the legal heirs of deceased fourth defendant. It was also provided in the preliminary decree that the shares of the defendants will be separately SA 734/93 15 allotted only on payment of requisite court fee. 12. The present appellants, who were defendants 1 and 2 in the suit, preferred A.S.No.2/90 before the appellate court assailing the preliminary decree so passed by the trial court and the plaintiff filed A.S.No.71/89 assailing that part of the decree, whereby partition was disallowed in relation to plaint items 7 and 8 properties. The appellate court dismissed the appeal filed by the present appellants/defendants 1 and 2, but allowed the appeal filed by the plaintiff, allowing partition of plaint items 1 to 10 properties and allotment of 1/8 share in all those properties to the plaintiff. It is assailing the common judgment so passed in A.S.Nos.2/90 and 71/89 that defendants 1 and 2 have filed this second appeal, assailing allowing partition of plaint items 1 to 10 properties and allotment of one such share to the plaintiff. SA 734/93 16 13. It is contended before me by the learned counsel for the appellants that plaint items 1 to 6 properties exclusively belong to defendants 1 and 2 under tenancy right, having obtained directly from the jenmi and they have obtained Exhibit B2 purchase certificate also vide proceedings in O.A.No.5364/1975 of the Land Tribunal, Kanhangad and that A.A.No.72/86 filed assailing the order of the Land Tribunal is also dismissed and that has become final and so, plaint items 1 to 6 properties are to be found not partible. It is further contended that plaint items 7 to 10 properties are covered by Exhibit B3 registered will executed in favour of the first defendant by Chandu Komaram, who passed away on 12.8.1961, as evidenced by Exhibit B4 and that therefore, those items exclusively belong to the first defendant and those are also not partible. It is also contended that the jenm right over plaint item 7 property was purchased by the first defendant vide Exhibit B5 SA 734/93 17 purchase certificate in O.A.No.360/1974, which was confirmed by the judgment of the appellate authority in A.A.No.273/86; that the jenm right over plaint items 8 and 9 was purchased by the first defendant vide Exhibit B6 purchase certificate issued by the Land Tribunal, Kanhangad vide proceedings in O.A.No.5342/75, which was confirmed in A.A.No.274/86; that plaint item 10 property is purchased by the first defendant vide proceedings in O.A.No.358/74 and that therefore, those items do belong to the first defendant absolutely. Thus, according to the learned counsel, even if the will is not accepted as genuine, plaint items 7 to 10 properties are covered by purchase certificates admitted by PW1 at pages 17 and 18 of her deposition and that, therefore, partition of those items should not have been allowed by the first appellate court. 14. The contentions advanced by the learned counsel for the appellants are vehemently countered SA 734/93 18 by the learned counsel for the respondents Smt.K.A.Sanjeetha, according to whom, vide Exhibit A2 executed by the first defendant in favour of the second defendant in relation to plaint item 6 property, there is admission to the effect that the property was obtained for cultivation from the jenmi by Chandu Komaram as per varachit dated 4.1.1951; that the executant - first defendant obtained plaint item 6 property alloted to her share under an oral partition entered into among the legal representatives of Chandu Komaram after his death on 12.8.1961; that in the event of plaint item 6 property being allotted to the first defendant, to the knowledge of the sixth defendant, who is the vendee under Exhibit A2, there must have been a partition of more items than one when only plaint item 6 property can be allotted exclusively to the first defendant; that this suggests that other than plaint item 6 property, other items of properties also devolved on the legal SA 734/93 19 representatives of Chandu Komaram on his death and that as to the details of the properties, the varachit made mention of in Exhibit A2 and dated 4.1.1951 would be the best evidence, which the defendants have withheld with a view to contend, by filing written statements in this suit setting up contentions contrary to the oral partition made mention of in Exhibit A2, that the varachit dated 4.1.1951, if produced, would have shown that plaint items 1 to 10 properties were properties that belonged in tenancy right to Chandu Komaram. She also contends that the burden to produce the varachit dated 4.1.1951 is on defendants 1 and 2, as they are having possession of the said documents as evidenced from the recitals in Exhibit A2, which contains the details thereof. 15. The varachit dated 4.1.1951 made mention of in Exhibit A2 is not, however, produced by either wide. As rightly contended by the learned counsel for the respondents, if at all there was a SA 734/93 20 varachit dated 4.1.1951 as stated in Exhibit A2, that would have shown the details of the properties held by Chandu Komaram as a cultivating tenant. The admissions made in Exhibit A2 executed by the first defendant in favour of the second defendant, both of whom are the legal heirs of deceased Chandu Komaram, cast burden on them to be bound by the recitals in Exhibit A2. 16. The contention advanced by the learned counsel for the appellants that the admission that the scheduled properties belonged to Chandu Komaram under a varachit dated 4.1.1951 does not confer any right on Chandu Komaram and that fact has to be independently established by the plaintiff, who claims right in the scheduled properties alleging that the properties belonged to Chandu Komaram and has devolved on his legal heirs including the plaintiff. I am of the view that the contention is not tenable in the circumstances of this case. SA 734/93 21 17. Exhibit A2 is executed by the first defendant in favour of the second defendant. Both of them are aware of the details of devolution of the property dealt with under Exhibit A2. They also make reference of the varachit in favour of Chandu Komaram specifying it as varachit dated 4.1.1951. Obviously, they must have been in possession of the said varachit, without which such details, they will not be able to make mention of in Exhibit A2. It was up to them to produce the said varachit. The admissions, thus, made by the first defendant bind the second defendant also. The burden to disprove which admission is on the appellants/defendants 1 and 2 themselves. As long as they have not made attempt to explain away the admissions evidenced by Exhibit A2, it cannot be said nor can it be heard from defendants 1 and 2 that they are not bound by anything mentioned in Exhibit A2 and that the burden is on the plaintiff to establish title in Chandu Komaram irrespective SA 734/93 22 of the admissions made by them in Exhibit A2. Hence, repelling the contentions advanced on behalf of the appellants, I hold that plaint items 1 to 10 properties do belong to Chandu Komaram on tenancy right. 18. It is further worthy to note that contesting defendants 1 and 2, who are the appellants, admit the title of Chandu Komaram over the properties scheduled as items 7 to 10 when they attempt to fasten their exclusive title on those items under Exhibit B3 will. To repel the claims of the appellants over plaint items 7 to 10 properties under Exhibit B3 registered will, it is contended by the counsel for the respondents that Exhibit B3 will does not stand proved and that therefore, there is no force in the contention that plaint items 7 to 10 properties do exclusively belong to defendants 1 and 2 under Exhibit B3 will. 19. Exhibit B3 is the registered will alleged to have been executed by Chandu Komaram, wherein SA 734/93 23 the sole beneficiary is the first defendant. Though there are only three schedules in Exhibit B3, according to the counsel for the appellants, that takes in all scheduled items 7 to 10, whereas according to the learned counsel for the respondents, it does not take in item 9 property. According to the learned counsel for the appellants, even in the event of Exhibit B3 not being accepted for reason of any technical flaw in proving the will, item 7 property has been purchased by the first defendant vide Exhibit B5 purchase certificate issued in O.A.No.360/74 which was