IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN FRIDAY, THE 17TH DECEMBER 2010 / 26TH AGRAHAYANA 1932 AS.No. 335 of 2002() ------------------------- OS.157/1996 of PRL.SUB COURT,IRINJALAKUDA .................... APPELLANT(S): 1ST DEFENDANT: --------------------------------------- SASIDHARAN, S/O. KATTIL VELAYUDHAN, POOMANGALAM VILLAGE, EDAKKULAM DESOM, MUUNDAPURAM TALUK. BY ADVS. SRI.K.G.BALASUBRAMANIAN SRI.ALEXANDER MATHEW SMT.SREEKALA KRISHNA DAS RESPONDENT(S): PLAINTIFF & DEFENDANTS 2 & 3: ------------------------------------------------------------ 1. LALITHA W/O. ADILAKKUZHI SEKHARAN & KATTIL VELAYUDHAN, PALISSERY VILLAGE, PALAKKAL DESOM, THRISSUR TALUK. 2. ARUNA W/O. THAYYIL GOPINATHAN, DO. DO. 3. KAUSALLIA W/O. KATTIL VELAYUDHAN, DO. DO. 4. VIJAYHALAKSHMY D/O. DO. DO. R1 & R2 BY ADVS. SRI.P.K.JOSE SMT.TESSY JOSE SRI.GREENY SRI.JOICE GEORGE R4 BY ADVS. SRI.DINESH R.SHENOY SRI.T.N.MANOJ THIS APPEAL SUITS HAVING BEEN FINALLY HEARD ON 17/12/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: svs ORDER ON C.M.P. NO. 4185/2002 IN A.S. NO. 335/2002 DISMISSED 17/12/2010 SD/- M.N. KRISHNAN, JUDGE /TRUE COPY/ P.A. TO JUDGE svs M.N. KRISHNAN, J. ........................................... A.S.NO.335 OF 2002 ............................................. Dated this the 17th day of December, 2010. J U D G M E N T This is an appeal preferred against the judgment and decree of the Subordinate Judge's Court, Irinjalakkuda in O.S.No.157/1996. The suit is one for partition with respect to two items of property. There is no dispute with respect to item 2 of the plaint schedule. The dispute is with respect to item 1 of the plaint schedule. The plaintiffs and the third defendant are the daughters of deceased Velayudhan and the first defendant is his son and the second defendant is the widow. So far as it relates to item 1 of the plaint schedule property is concerned, the property was obtained under a Will executed by Ayyappankutty, father of velayudhan which is marked as Exts.B1 and B1(a). Ext.B1 (a) is the certified copy. 2. I may just extract the relevant portion for understanding the contention of the parties and for appreciation of the mater. There are 3 items in the B schedule attached to Ext.B1 or Ext.B1(a). Items 2 and 3 : 2 : A.S.NO.335 OF 2002 in the B schedule therein are exclusively set apart to the share of Velayudhan. So far as item 1 in Ext.B1/Ext.B1(a) is concerned “ Now this clause was interpreted by the learned Subordinate Judge and held that absolute estate is given to Velayudhan and subsequently restriction is added and therefore, restriction is a repugnant one and therefore the repugnant clause cannot take away the right of Velayudhan which is already there. 3. I am afraid that the learned Subordinate Judge had gone wrong in doing so. There is no absolute conferment of any right on Velayudhan with respect to item 1 of the B schedule property at all. Item 1 of the B schedule property is conferred to Velayudhan and sons born and to be born and they have to jointly enjoy the property. Therefore the : 3 : A.S.NO.335 OF 2002 said approach of the learned Subordinate Judge is erroneous which requires correction. 4. The learned counsel for the appellant would submit that the said clause has to be read as a clause whereby the property would only devolve upon the members survive as stipulated in Ext.B1(a) i.e., only on the male children and therefore, it will best absolutely vest in Sasidharan, the first defendant in this case. 5. I am afraid that such an argument cannot be accepted for the reason that the property is directed to be enjoyed by the father and the sons. The father is never excluded. Therefore the said contention also cannot be accepted. 6. Velayudhan had two sons namely Sukumaran and the first defendant. So item 1 therefore would be inherited or enjoyed by Velayudhan one out of 3 shares, Sukumaran one out of 3 shares and the first defendant one out of 3 shares. 7. PW1 has deposed that Sukumaran was born in 1947 and died in 1966. He died without wife and children. : 4 : A.S.NO.335 OF 2002 Therefore by virtue of the provisions of the Hindu Succession Act, under Section 8 the sole legal heir will be his mother namely the second defendant. So on the death of Sukumaran, the right with respect to item 1, the first defendant will get 1 out of 3 shares, the second defendant will get 1 out of 3 shares and Velayudhan will get 1 out of 3 shares. This Velayudhan died in the year 1990 leaving behind his 3 daughters, widow and a son. So his 1/3rd right is to be divided into 1/5 which means each of the children will be entitled to 1 out of 5 shares over the property which belonged to Velayudhan. If item 1 of the plaint schedule property is divided into 15 equal shares, plaintiffs 1, 2 and 3rd defendant each will be entitled to 1 out of 15 shares. 1st defendant will be entitled to 6 out of 15 shares and 2nd defendant will be entitled 6 out of 15 shares. Therefore, the decree passed by the trial court is modified with respect to item 1 and share is to be substituted in the above line. 8. In the result, a preliminary decree for partition is passed as follows: i. Let item 1 of the plaint schedule property be divided : 5 : A.S.NO.335 OF 2002 into 15 equal shares and one such share each will be alloted to the plaintiffs 1 and 2 and the 3rd defendant and six out of 15 shares to the 1st defendant and 6 out of 15 shares to the 2nd defendant. ii. Let the plaint schedule item 2 be divided into 5 equal shares and allot 2/5 shares to the plaintiffs jointly and 1/5 share each to the defendants 1 to 3. iii. Rest of the findings of the trial court is retained and the appeal is disposed of accordingly. M.N. KRISHNAN, JUDGE. cl : 6 : A.S.NO.335 OF 2002 M.N. KRISHNAN, J. ........................................... A.S.NO.335 OF 2002 ............................................. 17th day of Decemmber, 2010. J U D G M E N T