IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR WEDNESDAY, THE 16TH JANUARY 2008 / 26TH POUSHA 1929 RSA.No. 314 of 2004() --------------------- AS.370/1996 of SUB COURT, NEDUMANGAD OS.742/1993 of ADDL.MUNSIFF COURT,NEDUMANGAD .................... : APPELLANTS/APPELLANT/DEFENDANTS 3 TO 11 AND LEGAL HEIRS OF 6TH DEFENDANTS ------------------------------------------------------------------------------ 1. KARTHIYAYANI AMBUJAKSHI,ANAKI MANDIRAM, ARUVIKKARA, IRUMBAMURI, ARUVIKKARA VILLAGE. 2. KUTTAPPAN PLRABHAKARAN, JANAKI MANDIRAM, ARUVIKKARA, IRUMBAMURI, ARUVIKKARA VILLAGE. 3. AMBUJAKSHI DAMAYANTI, JANAKI MANDIRAM, ARUVIKKARA, IRUMBAMURI, ARUVIKKARA VILLAGE. 4. AMBUJAKSHI INDIRA. V., JANAKI MANDIRAM, ARUVIKKARA, IRUMBAMURI, ARUVIKKARA VILLAGE. 5. AMBUJAKSHI YASODA, JANAKI MANDIRAM, ARUVIKKARA, IRUMBAMURI, ARUVIKKARA VILLAGE. 6. AMBUJAKSHI KRISHNAMMA, JANAKI MANDIRAM, ARUVIKKARA, IRUMBAMURI, ARUVIKKARA VILLAGE. 7. AMBUJAKSHI SHANTAKUMARI, JANAKI MANDIRAM, ARUVIKKARA, IRUMBAMURI, ARUVIKKARA VILLAGE. 8. AMBUJAKSHI GIRIJA KUMARI, D/O.AMBUJAKSHI FROM JANAKI MANDIRAM, ARUVIKKARA, IRUMBAMURI, ARUVIKKARA VILLAGE. 9. KARUNAKARAN, JANAKI MANDIRAM, ARUVIKKARA, IRUMBAMURI, ARUVIKKARA VILLAGE. 10. RAJEEV, S/O. KARUNAKARAN, JANAKI MANDIRAM, ARUVIKKARA, IRUMBAMURI, ARUVIKKARA VILLAGE. 11. SAJI, S/O. KARUNAKARAN, JANAKI MANRIDRAM ARUVIKKARA, IRUMBAMURI, ARUVIKKARA VILLAGE. 12. SHAJI, S/O. KARUNAKARAN, JANAKI MANDIRAM, ARUVIKKARA, IRUMBAMURI, ARUVIKKARA VILLAGE. BY ADV. SRI.R.S.KALKURA SRI.FAIZAL P.LATHEEF SRI.M.S.KALESH SMT.VIDYA RAVI SRI.AJAYA KUMAR. G SMT.K.L.SREEKALA SRI.M.R.SARIN RESPONDENTS: RESPONDENTS/PLAINTIFF AND 1ST DEFENDANT ------------------------------------------------------------------------ 1. AMMUKUTTY NALINI, THENGUVILA VEEDU, ARUVUKKARA, THUMBAYIL MURI, ARUVIKKARA VILLAGE. 2. LALITHKUMARI, THENGUVILA VEEDU, ARUVIKKARA, THUMBAYIL MURI, ARUVIKKARA VILLAGE. 3. KUTTAN NATARAJAN, THENGUVILA VEEDU, ARUVIKKARA, THUMBAYIL MURI, ARUVIKKARA VILLAGE. 4. LALITHAKUMARI, THENGUVILA VEEDU, ARUVIKKARA, THUMBAYIL MURI, ARUVIKKARA VILLAGE. 5. SAT6HYABHAMA, JANAKIVILASOM, ARUVIKKARA MURI, ARUVIKKARA VILLAGE. 6. SASIDHARAN, THENGUVILA VEEDU, ARUVIKKARA, THUMBAYIL MURI, ARUVIKKARA VILLAGE. 7. SIVARAJAN, THENGUVILA VEEDU, ARUVIKKARA, THUMBAYIL MURI, ARUVIKKARA VILLAGE. 8. JANAKI SUKUMARI, THENGUVILA VEEDU, ARUVIKKARA, THUMBAYIL MURI, ARUVIKKARA VILLAGE. 9. RADHAKRISHNAN, THENGUVILA VEEDU, ARUVIKKARA, THUMBAYIL MURI, ARUVIKKARA VILLAGE. 10. MOHANKUMAR, THENGUVILA VEEDU, ARUVIKKARA, THUMBAYIL MURI, ARUVIKKARA VILLAGE. 11. AJANTHA, RESIDING AT REVATHI, ERUMBA MURI, ARUVIKKARA VILLAGE. 12. ARUN T., RESIDING AT REVATHI, ERUMBA MURI, ARUVIKKARA VILLAGE. 13. ASWATHY, RESIDING AT REVATHI, ERUMBA MURI, ARUVIKKARA VILLAGE. BY ADV. SRI.G.S.REGHUNATH FOR R1 TO R4 THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 16/01/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: M.SASIDHARAN NAMBIAR,J. =========================== R.S.A. NO. 314 OF 2004 =========================== Dated this the 16th day of January, 2008 JUDGMENT Defendants 3 to 11 in O.S.742/1993 on the file of Munsiff Court, Nedumangad are the appellants. Respondents 1 to 4 are the legal heirs of plaintiff and other respondents the legal heirs of first defendant and some of the legal heirs who also died. Respondent instituted the suit seeking a decree for partition. Plaint schedule property admittedly originally belonged to deceased Kochu Narayanan. He died as a bachelor. Defendants 1 and 2 are his brothers. According to appellants, on the death of Kochu Narayanan, his rights devolved on first respondent and defendants 1 and 2 and she is entitled to get her 1/3rd share separted. Third defendant is the wife of the second defendant and defendants 4 to 11 their children. Defendants 1 and 11 remained ex parte. Defendants 2 to 10 filed a joint written statement R.S.A.314/2004 2 contending that Kochu Narayanan was living with them and he was treating third defendant as his wife and was also treating defendants 4 to 11 as his children and on the death of Kochu Narayanan, his rights devolved only on defendants 3 to 11 and therefore it is not liable to be partitioned and plaintiff and defendants 1 and 2 are not entitled to claim any share. 2. Learned Munsiff on the evidence of PW1 and DW1 and Exts.A1 and A2 and Exts.B1 to B3 found that even according to defendants 4 to 10 third defendant is the wife of second defendant and defendants 4 to 11 are the children of the second defendant and therefore third defendant cannot be the wife and respondents 4 to 11 cannot be the children of Kochu Narayanan. Even according to defendants Kochu Narayanan did not marry. As he died as a bachelor and being the sister, plaintiff is entitled to 1/3rd share and defendants 1 and 2 are entitled to one share each. A preliminary decree for partition was passed. Appellants challenged the decree and judgment before Sub Court, Nedumangad. Learned Sub Judge on R.S.A.314/2004 3 reappreciation of the evidence, confirmed the findings of learned Munsiff and dismissed the appeal. It is challenged in the second appeal. 3. Learned counsel appearing for appellants was heard. 4. The argument of the learned counsel is that under Ext.B1 gift deed executed by Kochu Narayanan in favour of defendants 3 to 11, it has been specifically stated by the donor that third defendant was treated as his wife and defendants 4 to 11 as their children and Ext.B1 establish the intention of deceased Kochu Narayanan that on his death his property shall go only to defendants 3 to 11. Learned counsel argued that in view of the recitals in Ext.B1 and as the provisions of Section 63 of Indian Succession Act and section 68 of Indian Evidence Act were complied, courts below should have treated Ext.B1 as a will and should have found that Kochu Narayanan had bequeathed the property in favour of defendants 3 to 11 and so plaintiff or defendants 1 and 2 are not entitled to any share and the preliminary decree and judgment is not sustainable. R.S.A.314/2004 4 5. On hearing the learned counsel, I do not find that any substantial question of law is involved in the appeal. 6. The properties covered under Ext.B1 settlement deed executed by Kochu Narayanan are not included in the plaint schedule property and no share is claimed in those properties. Though it was contended before courts below that third defendant is the wife and defendants 4 to 11 are the children of Kochu Narayanan, courts below rightly rejected that claim. When it is admitted case that third defendant is the wife of second defendant and defendants 4 to 11 are their children, appellants are not entitled to contend that third defendant is also the widow and defendants 4 to 11 are the children of deceased Kochu Narayanan. As it is admitted case that defendants 4 to 11 are the children of the second defendant, they cannot claim to be the children of deceased Kochu Narayanan. Even according to appellants, third defendant is the legally wedded wife of second defendant and therefore she cannot be treated as the widow of Kochu Narayanan and they R.S.A.314/2004 5 cannot claim that they inherited to the share estate of deceased Kochu Narayanan. 7. Though learned counsel vehemently argued that because of the recitals in Ext.B1 which shows the intention of Kochu Narayanan that his remaining properties shall go to defendants 3 to 11, and so it is to be treated as a will, I find that such a contention was not reaised in the written statement. There is no pleading in the written statement that the deceased Kochu Narayanan executed a will or that Ext.B1 is a will or is to be treated as a will and in view of the will plaint schedule properties exclusively belong to appellants and are not available for partition. On the other hand, the plea raised in the written statement was that they inherited the property on the death of Kochu Narayanan, as Kochu Narayanan treated third defendant as his wife and defendants 4 to 11 their children. The said claim was not defended on the ground that the deceased Kochu Narayanan died executing a will and on the other hand right was claimed on the basis that Kochu Narayanan died intestate and by inheritance, R.S.A.314/2004 6 they got the right. Therefore without pleading appellants are not entitled to contend that Kochu Narayanan executed Ext.B1 as a will and therefore plaint properties are not available for partition. Moreover, the recital in Ext.B1, at best, could be taken as a mistaken impression of law of inheritance by Kochu Narayanan and does not show that he had bequeathed the remaining properties thereunder to the appellants. Therefore courts below rightly found that on the death of Kochu Narayanan his rights devolved on plaintiff and defendants 1 and 2 and passed a preliminary decree. Appeal is dismissed in limine. M.SASIDHARAN NAMBIAR JUDGE tpl/- M.SASIDHARAN NAMBIAR, J. --------------------- W.P.(C).NO. /06 --------------------- JUDGMENT SEPTEMBER,2006