IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE HARUN-UL-RASHID MONDAY, THE 11TH JANUARY 2010 / 21TH POUSHA 1931 AS.No. 213 of 1998(C) --------------------- OS.390/1994 of ADDL.SUB COURT, ALAPPUZHA .................... APPELLANT/IST DEFENDANT: ----------------- 1. G. GOPINATHAN, S/O.LATE GOVINDAN, PUTHENVEETIL, PUTHOOCHIRA, THOTTAPPALLY P.O., ALAPPUZHA DIST. BY ADV. SMT.I.SHEELA DEVI SMT.REJI RAMACHANDRAN\ RESPONDENTS/PLAINTIFF AND DEFENDANTS 2 TO 8: ---------------------- 1. G. SOMASHRMAN, S/O. LAGE GOVINDAN, AIKKARAPARAMBIL, VADAKKANARYAD MURI, KOMALAPURAM VILLAGE. 2. SUSEELA, D/O.LATE LAKSHMI, KANIYAMPARAMBIL HOUSE, POONTHOPPU WARD, AVALOOKUNNU P.O. ALAPPUZHA. 3. L. AMMINI, D/O.LATE LAKSHMI, SIJI BHAVAN, PEYADU P.O., TRIVANDRUM. 4. G. KUTTAPPAN, S/O. LATE GOVINDAN, KAYICHIRAYIL HOUSE, NORTH ARYAD P.O., ALAPPUZHA. 5. L. PONNAMMA, SABTGU NADAN (KANNATTU), NORTH ARYAD P.O., ALAPPUZHA. 6. L. PADMAVATY, BIJU BHAVAN, VELANCHIRA, KEERIKKAD P.O., KAYAMKULAM. 7. THE SOUTH INDIAN BANK LTD., ALAPPUZHA BRANCH, REPRESENTEDL BY ITS MANAGER. 8. CANARA BANK, MULLACKAL BRANCH, REPRESENTED BY ITS MANAGER. ADV. SRI.K.PRABHAKARAN FOR R7 SRI.V.M.KURIAN FOR R8 SRI.MATHEW B. KURIAN SUSELA (PARTY) SOMASHARMAN (PARTY) L.AMMINI (PARTY) G.KUTAPPAN (PARTY) L.PONNAMMA(PARTY) L.PADMAVATHY(PARTY) THIS APPEAL SUIT HAVING BEEN FINALLY HEARD ON 11/01/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: HARUN-UL-RASHID,J. -------------------------- A.S.NO.213 OF 1998 -------------------------- DATED THIS THE 11TH DAY OF JANUARY, 2010 JUDGMENT The lst defendant in O.S.No.390/91 on the file of the Additional Sub Court, Alappuzha is the appellant. The plaintiff filed the suit for partition of 27 items of properties described in the plaint schedule. Plaintiff and defendants 1 to 6 are the children of late Govindan. The court below passed a preliminary decree for partition as follows: 1(a) Plaint items 1 to 5 shall be divided into 3 equal shares and allot one such share to the plaintiff. (b) Defendants 1 and 4 are entitled to get one such share each from items 1 to 5 and separate allotment shall be made on payment of requisite court fee. (c) Plaint schedule items 6 and 7 shall be divided into 21 equal shares and allot 2 such share to the plaintiff. (d) First Defendant is entitled to get 9/21 shares -2- A.S.No.213/98 from items 6 and 7. Defendants 2 to 6 are entitled to get 2/21 shares each. 2(a) Plaint schedule items 8 to 25 shall be divided into 7 equal shares and allot one such share to the plaintiff. (b) Defendants 1 to 6 are entitled to get 1/7 share each and separate allotment shall be made on payment of requisite court fee. (c) The question of reservation is relegated to the final decree proceedings. (d) The cost of the suit shall come out of the estate. (e) The plaintiff and defendants who pays the court fee are entitled to apply for passing a final decree. 2. The appellant/lst defendant claimed exclusive right over items 6 and 7 and contended that they are not partible. Admittedly, items 6 and 7 stand in the name of the appellant's father, appellant and his sister by name Manikutty, who died during childhood. According to the appellant, the intention of his father was that items 6 and 7 should be owned exclusively by appellant and the said Manikutty and after her death, by the -3- A.S.No.213/98 appellant. 2. The court below examined the contentions raised by the appellant. The evidence in support of the said claim is the interested testimony of DW1. There is no sufficient evidence adduced by the lst defendant in support of his contentions. Parties are Hindus. The trial court held that since the special right set up by the defendants stands not proved, the lst defendant would be entitled to get 9/21 shares, the plaintiff 2/21 shares and other defendants 2/21 shares each in items 6 and 7. Since the contention cannot be accepted for want of proof, the appeal has to fail. In the result, the appeal fails and accordingly dismissed. No order as to costs. HARUN-UL-RASHID, JUDGE. kcv.