IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.S.GOPINATHAN THURSDAY, THE 16TH JULY 2009 / 25TH ASHADHA 1931 SA.No. 576 of 1996(B) -------------------------------- AS. NO.46/1989 OF THE SUB COURT, CHERTHALA OS.36/1983 of MUNSIFF COURT, CHERTHALA .................... APPELLANT(S): --------------------- MADHAVAN BALAKRISHNAN, NEPHEW OF MADHAVAN KANAPARAMPIL HOUSE, NOW RESIDING IN KUNNATHU HOUSE, PADINJATTUMKARA VADKKUM MURI, THURAVOOR VADAKKU VILLAGE, HINDU RELIGION, MERCHANT, AGED 68 YEARS. (IST DEFENDANT IN OS. 36/83 & APPELLANT IN AS. N.46/89). BY ADV. MR.R.HARIKRISHNAN RESPONDENT(S): (ADDL.PLAINTIFF 3- 7 AND DEFENDANTS 2-5 IN THE SUIT) ------------------------- 1. NAMMATTU RAMAN RAVEENDRAN, RESIDING IN RAMYA NIVAS, PADINJATTUMKARA, VADAKKUM MURI, THURAVOOR VADAKKU VILLAGE, HINDU RELIGION. 2. RAMAN RAMANAN, RESIDING IN RAMYA NIVAS, PADINJATTUMKARA, VADAKKUM MURI, THURAVOOR VADAKKU VILLAGE, HINDU RELIGION. 3. RAMAN BABU, RESIDING AT RAMYA NIVAS, PADINJATTUMKARA , VADAKKUM MURI, THURAVOOR VADAKKU VILLAGE, HINDU RELIGION. 4. AMBUJAKSHI REGHUVATHI, RESIDING IN RETHESH BHAVAN, PADINJATTUMKARA VADAKKUM MURI, THURAVOOR VADAKKU VILLAGE, HINDU RELIGION. S.A. NO.576/1996 5. RAMAN HARIDAS, RESIDING IN NAMMANATTU HOUSE, PADINJATTUMKARA VADAKKUM MURI, THURAVOOR VADAKKU VILLAGE, HINDU RELIGION. LEGAL REPRESENTATIVES OF DECEASED IST PLAINTIFF & 2ND PLAINTIFF AND IMPLEADED AS ADDL. PLAINTIFFS 3-7 IN OS. 36/83 AND RESPONDENTS 2-7 IN THE APPEAL A.S. NO.46/89.). 6. MADHAVAN KARUNAKARAN, RESIDING AT MULLAPPALLIL HOUSE, PADINJATTUMKARA, VADAKKUM MURI, THURAVOOR VADAKKU VILLAGE. 7. MADHAVAN SUKUMARAN, RESIDING AT KUNNATTU HOUSE, PADINJATTUMKARA, VADAKKUM MURI, THURAVOOR VADAKKU VILLAGE. 8. MADHAVAN LAMBODARAN, RESIDING IN KOTTAM VELI VEEDU, PADINJATTUMKARA , VADAKKUM MURI, THURAVOOR VADAKKU VILLAGE. 9. K.B.SATHYADEVAN, SON OF BALAKRISHNAN, RESIDING IN KUNNATHU HOUSE, PADINJATTUMKARA, VADAKKUM MURI, THURAVOOR VADAKKU VILLAGE. (RESPONDENTS 8,9, 10 AND 11 IN A.S. NO.46/89 AS WELL AS DEFENDANTS 2,3,4 AND 5 IN THE SUIT OS. NO.36/83. R1 TO R5 BY ADV. MR.M.C.NAMBIAR THIS SECOND APPEAL HAVING BEEN FINALLY HEARD ON 16/07/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: P.S.GOPINATHAN, J. == = = = = = = = = = = = = = = = = = SA.No.576 of 1996. = = = == = = = = = = = = = = = = = = Dated this the 16th day of July, 2009. J U D G M EN T The first defendant in OS.No.36 of 1983, a suit for partition on the file of the Addl. Munsiff, Cherthala is the appellant. The suit was originally instituted by Cheeramma Ambujakshi and her husband. Pending suit, the first plaintiff died and the children were impleaded as additional plaintiffs 3 to 7. Defendants 1 to 4 are the brothers of the appellant. Fifth defendant is the son of the first defendant. It was pleaded that the plaint schedule property, two items belonged to the mother of the first plaintiff and defendants 1 to 4 as was obtained as per Ext.A5 sale deed and that on the death of the mother, the plaint schedule property devolved upon the heirs who were the first plaintiff and defendants 1 to 4 and that each of them is entitled to 1/5 share. Item No.2 of the plaint schedule is a building situated in item No.1. Without the consent or knowledge of the first plaintiff, the defendants 1 to 4 executed Ext.A3 partition deed and that thereafter the first defendant got Ext.B1 sale deed from the 4th defendant assigning the share of the 4th respondent in favour of the first defendant. So also, the appellant got SA.No.576 of 1996. -: 2 :- Ext.B3 sale deed from the 2nd defendant in favour of the 5th defendant assigning the share of the 2nd defendant over the plaint schedule property. The request of the first plaintiff to effect a partition fell in deaf years and she was denied mesne profit. 2. The appellant contended that item No.2 building situated in item No.1 is not partible as it was constructed by the appellant himself by his own funds and hence the first plaintiff or other defendants have got no manner of right over the same and that Ext.A3 partition deed was executed with the consent and knowledge of the first plaintiff and hence the plaint schedule properties are not partible and that though the first plaintiff is entitled to 1/5 share, she is not entitled to get any mesne profits. 3. Defendants 2 to 4, in their written statement supported the claim of the appellant over item No.2 building. They also admitted that the first plaintiff had 1/5 share over the plaint schedule property. But contended that after Ext.A3, plaintiff is entitled to 12 cents set apart to her as per Ext.B3 and she had been enjoying the mesne profits from that property and further supported to the pleadings of the first defendant. The 5th defendant also supported the written statement filed by other defendants. 4. After raising the issues the parties were sent for trial. The first SA.No.576 of 1996. -: 3 :- plaintiff was examined as Pw1 and Exts.A1 to A5 were marked. The appellant and two others were examined as Dws.1 to 3 and Exts.B1 to B3 were marked. Report of the commissioner and plan were also marked. 5. The trial court on appraisal of evidence arrived a finding that Ext.B3 partition deed was executed without the consent or knowledge of the first plaintiff. So, it is not binding upon the plaint schedule properties. It was found that item No.1 is partible but item No.2 is not partible. The mesne profits was determined at Rs.195/- per annum and the appellant was found liable for the same. 6. Aggrieved by the above judgment and decree, an appeal as AS.No.46 of 1989 was filed. The learned Sub Judge, Cherthala by judgment and decree dated 5.10.1995 dismissed the appeal. Now this second appeal. 7. The following are the substantial questions of law raised in the appeal memorandum. (i) Whether the mere fact that a particular sharer of a tharawad property did not sign the partition deed at the time of registration would render the partition not binding on that sharer, if just, proper and legal share of the property is separately allotted to that sharer by that partition deed. (ii) Whether it is imperative on the part of that sharer to SA.No.576 of 1996. -: 4 :- include a prayer for setting aside that partition deed, in a fresh suit for partition filed by that sharer. 8. The courts below found that Ext.A3 was executed without the consent or knowledge of the first plaintiff and hence it is not binding upon the first plaintiff/first respondent. It is a finding of fact and no question of law is involved. There is no material to show the plaint schedule property is a tharavad property. But it is the acquisition of the mother of the appellant. Consequent to the death of the mother, it devolved upon the five children. The disputed property being a small item, it could not be said that Ext.A3 is family arrangement. Neither the appellant nor the other defendants have no such a case also. So, for no good reason, the appellant can sustain a challenge against the concurrent findings of the courts below regarding the binding nature of Ext.A3 against the first plaintiff. Since Ext.A3 was executed without the consent and knowledge of the first plaintiff, she can very well ignore the same and seek partition without a prayer to set aside the partition deed. Ext.A3 having executed behind the first respondent it wouldn't be binding upon her. Decree for partition is unassailable. 9. The learned counsel for the appellant submitted that though there is a finding by the courts below that item No.2 building was constructed by the appellant, no reservation is granted. Since item No.2 is SA.No.576 of 1996. -: 5 :- excluded from partition, no question of reservation arises, that too in second appeal. The appellant is at liberty to request the commissioner to request for allocation of his share of property in and around item No.2. There is no substantial questions of law involved. There is no merit in the appeal. Hence it is dismissed. Costs would come out of the estate. P.S.GOPINATHAN, JUDGE. Kvs/- SA.No.576 of 1996. -: 6 :- P.S.GOPINATHAN, J. ================== SA.No.576 of 1996. ================== JUDGMENT 16th July, 2009.