IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE HARUN-UL-RASHID TUESDAY, THE 2ND NOVEMBER 2010 / 11TH KARTHIKA 1932 SA.No. 672 of 1997(E) -------------------------- AS.44/1992 of I ADDL.SUB COURT,TRIVANDRUM OS.270/1983 of I ADDL.M.C.,TRIVANDRUM .................... APPELLANT/ADDL.9TH RESPONDENT/ADDL.9TH DEFENDANT ----------------------------------------------------------------------- ANIAMMA ABRAHAM, W/O.ABRAHAM P. LUKOSE, ORESENTLY RESIDING AT PANDARAVILAKOM(T.C.3/696(2) T.K.D. ROAD, MATTADA P.O., THIRUVANANTHAPURAM - 25. BY ADVS. SRI.P.GOPAKUMARAN NAIR SRI.AJITH MURALI SRI.C.S.DIAS RESPONDENT/ APPELLANT/PLAINTIFF/1ST RESPONDENT/ 1ST DEFENDANT/2ND DEFENDANT/3RD DEFENDANT --------------------------------------------------------------------- 1. KOUSALYA BHASKARAN,D/O.MEENAKSHI, T.C.16/1302, KANNATTUMUKKU WARD, JAGATHY, CHENGAZHASSERY VILLAGE, THIRUVANANTHAPURAM TALUK (DIED.LR'S IMPLEADED) 2. BHAGEERATHI ALIAS BHAI (DIED) NOTICE NEED NOT BE ISSUED LEGAL HEIRS-RESPONDENTS 4 TO 9 HEREIN. 3. N.SASI, S/O.BHAI,KAVUVILA VEEDU, VALLUVEETU MURI, MADATHUVILAKOM VILLAGE, THIRUVANANTHAPURAM (NOTICE NEED NOT BE ISSUED TO THIS RESPONDENT SINCE THIS RESPONDENT AND 7TH RESPONDENT HEREIN-NAMELY N.SASIDHARAN ARE IDENTICAL PERSONS AND THIS RESPONDENT WAS WRONG IMPLEADED THE SUIT AND ALSO IN THE A.S. DUE TO OVERSIGHT) 4. B.SULOCHANA, D/O. BHAI, T.C.11/838, RESIDING AT KAVUVILA VEEDU, VALLUVEETTU MURI, MADATHUVILAKOM VILLAGE, THIRUVANANTHAPURAM. .......2/-.. ...2... 5. B.SWARNAMMA, D/O.BHAI, D/O. BHAI, RESIDING AT KAVUVILA VEEDU, VALLUVEETTU MURI, MADATHUVILAKOM VILLAGE, THIRUVANANTHAPURAM. 6. B.SAKUNTHALA, D/O. BHAI, RESIDING AT KAVUVILA VEEDU, VALLUVEETTU MURI, MADATHUVILAKOM VILLAGE, THIRUVANANTHAPURAM. 7. N.SASIDHARAN, ALIAS N.SASI,S/O. BHAI, RESIDING AT KAVUVILA VEEDU, VALLUVEETTU MURI, MADATHUVILAKOM VILLAGE, THIRUVANANTHAPURAM. 8. B.SARALAMMA,D/O. BHAI, RESIDING AT KAVUVILA VEEDU, VALLUVEETTU MURI, MADATHUVILAKOM VILLAGE, THIRUVANANTHAPURAM. 9. N.ASOKAN,S/O. BHAI, RESIDING AT KAVUVILA VEEDU, VALLUVEETTU MURI, MADATHUVILAKOM VILLAGE, THIRUVANANTHAPURAM. (R3 TO R9 ARE RECORDED AS LRS OF THE DECEASED 1ST RESPONDENT AS PER ORDER DATED 02/11/2010 IN I.A.NO.1195/2007). * ADDL. R10 IMPLEADED 10. LATHA W/O.LATHIKAN, BHASKARA NIVAS, TC 16/302 KANNATHUMUKKU, JAGATHY, TRIVANDRUM. * ADDL. R10 IS IMPLEADED AS THE LR'S OF DICEASED 1ST RESPONDENT AS PER ORDER DATED 04/10/2006 ON C.M.P. 1669/1999. R1 BY ADVS.SRI.MOHAN JACOB GEORGE SRI.SHEEJO CHACKO SRI.JOJY K.JACOB R10 BY ADV. SRI.G.S.REGHUNATH THIS SECOND APPEAL HAVING BEEN FINALLY HEARD ON 02/11/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: svs/ ORDER ON C.M.P. NO. 1732/2007 IN S.A. NO.672/1997. DISMISSED O2/11/2010 SD/- HARUN-UL-RASHID, JUDGE /TRUE COPY/ P.A. TO JUDGE svs/ HARUN-UL-RASHID,J. ------------------------------- S.A. NO. 672 OF 1997 ------------------------------- DATED THIS THE 2ND DAY OF NOVEMBER, 2010 JUDGMENT Additional 9th defendant in O.S.No.270/83 on the file of the Ist Additional Munsiff's Court, Thiruvananthapuram is the appellant. The appeal is directed against the judgment and decree in A.S.No.44/92 on the file of the Ist Additional Sub Court, Thiruvananthapuram. The suit for partition claiming one half share over the plaint schedule property was dismissed by the trial court. The Lower Appellate Court set aside the decree and judgment passed by the trial court and a preliminary decree was passed allowing partition and separate possession of one half share of the plaintiff over the plaint schedule on division by metes and bounds. The property scheduled in the plaint is 22 cents. On measurement it was found that the extent is only 12.350 cents. The plaintiff is the wife of deceased Bhaskaran. The lst defendant is the sister of Bhaskaran and defendants 2 and 3 are the children of the lst -2- S.A.No.672/97 defendant. The plaintiff's case is that the plaint schedule property jointly belonged to deceased Bhaskaran and his sister, the lst defendant. It is stated that after the death of Bhaskaran, the plaintiff demanded partition; but the lst defendant has not acceded to the demand. Hence, the suit was filed. Defendants 1 and 2 filed a written statement disputing the status of the plaintiff as the wife of deceased Bhaskaran. They contended that the plaintiff has no right over any portion of the property and the lst defendant is the absolute owner of the plaint schedule property. Pending suit the lst defendant died. Her legal heirs are defendants 2 and 3 and additional defendants 4 to 8. It is pointed out that by mistake the 2nd respondent N. Sasi was again impleaded as additional 6th defendant. The trial court found that the plaintiff has failed to prove that she is the legal wife of Bhaskaran and therefore she is not entitled to succeed to his estate. In the said circumstances, the suit was dismissed. The Appellate Court reversed the findings of the trial court. The Appellate Court found that the plaintiff is the wife and sole legal heir of deceased Bhaskaran and therefore, the -3- S.A.No.672/97 plaintiff is entitled to get partition and separate possession of her one half share over the available extent in the plaint schedule property on division by metes and bounds. 2. The additional 9th defendant is a third party. She got herself impleaded in the suit as per the order in IA.No.27/89 dated 10/1/1991. She filed a written statement and contested the suit. Some of the legal heirs of the deceased lst defendant executed a sale deed in favour of the additional 9th defendant on 4/8/1986 conveying their right over the plaint schedule property. According to the additional 9th defendant, she is a bona fide purchaser of 6.615 cents of property which form part of the plaint schedule property as per Ext.B4 sale deed. It is submitted that from the date of Ext.B4 sale deed she is in possession and enjoyment of the property covered by the sale deed. It is submitted on behalf of the appellant that she may be allotted the property which she had purchased as per Ext.B4 sale deed towards the share of her vendor, namely, the legal heirs of the deceased lst defendant and a partition may be effected in such a way that the present possession of the -4- S.A.No.672/97 additional 9th defendant may not be disturbed. 3. In this case the decree passed by the Lower Appellate Court is for partition and division of one half of the plaint schedule property by metes and bounds. Neither the appellant nor the legal heirs of the lst defendant challenge the findings of the Lower Appellate Court regarding division. It is requested by the additional 9th defendant in the appeal that the portion of the property in her possession as per Ext.B4 sale deed shall be allotted to her. The additional 9th defendant is a person who purchased the property pending suit. In the final decree proceedings it was found that the total extent of property is 12.350 cents. The Commissioner suggested division of the property into two by allotting 6.175 cents to the plaintiff. The Commissioner reported that the residential building of the defendant is located in the eastern half of the plaint schedule property and that the western half of the property is lying vacant. The Commissioner suggested that the western half can be allotted to the plaintiff. The matter is now pending before the final decree court. It is for the final decree court to make appropriate -5- S.A.No.672/97 allotment of the property to the plaintiff in the light of the decree. No question of law much less any substantial questions of law arise for consideration in this appeal preferred by the additional 9th defendant against the preliminary decree passed by the Lower Appellate Court. The appeal is dismissed with the observation that the appellant is at liberty to move the final decree court for redressal of her grievances. No order as to costs. HARUN-UL-RASHID, Judge. kcv. -6- S.A.No.672/97 HARUN-UL-RASHID,J. -------------------------- S.A.NO.672 OF 1997 -------------------------- JUDGMENT 2nd November,a 2010