IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.BHAVADASAN MONDAY, THE 3RD OCTOBER 2011 / 11TH ASWINA 1933 AS.No. 520 of 2001(B) --------------------- OS.789/1995 of PRINCIPAL SUB COURT, PALAKKAD .................... APPELLANT/DEFENDANT: ------------------------------------- KANDAMUTHAN, S/O.VELAYUDHAN MULLEYIRI, THAMBRAK ILLATHU PARAMBU KINNASSERI, PALGHAT BY ADV. SRI.T.M.SUNIL SMT.S.CHITHRA RESPONDENT/PLAINTIFF ------------------------------------ MATHU @ MADHAVI, D/O.VELAYUDHAN MULLEYIRIKKAL, THAMBRAK ILLATHU PARAMBU KINNASSERI, PALGHAT ADV. SRI.S.V.BALAKRISHNA IYER, SENIOR ADVOCATE SRI.P.B.KRISHNAN THIS APPEAL SUITS HAVING BEEN FINALLY HEARD ON 03/10/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: P.BHAVADASAN, J. ------------------------------------- AS No.520 of 2001 ------------------------------------- Dated this the 3rd day of October 2011 Judgment The defendant in a suit for partition is the appellant. The parties and facts are hereinafter referred to as they are available before the trial court. 2. The plaintiff and the defendant are siblings. The plaint schedule property was owned and possessed by their father Velayudhan, who died in 1994. The plaint contains two items of properties. The plaintiff would say that consequent on the death of their father, half right over the suit property has devolved on her and she does not intend to continue joint possession. Hence she sued for partition. 3. The defendant resisted the suit. As regards Item No.2 of the plaint schedule, it was contended that it was the ancestral property which belonged to their grandfather and therefore, the plaintiff is not entitled to half AS 520/01 2 share in it. It is also mentioned in the written statement filed by the defendant that there was another item of property which was also liable to be partitioned and it was scheduled to the written statement. Pointing out that the plaintiff is not entitled to any share as she claimed, the defendant prayed for dismissal of the suit. 4. On the above pleadings, issues were raised. The plaintiff was examined as PW1 and the defendant as DW1. No other evidence was adduced by both sides. 5. On an appreciation of the evidence, the trial court found the contentions raised by the defendant to be untenable and decreed the suit, granting half share to the plaintiff. That brings the defendant before this court. 6. The learned counsel for the appellant raised three points for consideration of this Court : 1)There is no issue regarding the character of Item No.2 of the plaint schedule, which the defendant claimed to be ancestral property and the absence of that issue has caused considerable prejudice to the defendant. AS 520/01 3 2)The dwelling house situated in the property could not have been made a subject matter of partition, by virtue of S.23 of the Interpretation Act, as it stood then. 3)The suit is bad for partial partition. Highlighting on the above contentions, it was pointed out that there was a specific contention in the written statement that so far as item No.2 is concerned, it is an ancestral property and that belonged to the grandfather of the parties. There was no issue regarding this matter and therefore, considerable prejudice has been caused to the defendant. It was then contended that going by S.23 of the Interpretation Act, as it then stood, a decree could not have been granted to the plaintiff. It is asserted by the learned counsel for the appellant that the defendant had scheduled an item of property which according to him, had been omitted by the plaintiff and which was liable for partition. That aspect has also not been considered by the court below. AS 520/01 4 7. The learned counsel for the respondent, after taking this court through the judgment of the court below, pointed out that all the above contentions are without any basis. If the defendant had a case that item No.2 was an ancestral property, it was for him to establish the said fact. Having not adduced any evidence in that regard, the court below was perfectly justified in holding that the property belonged to the father of the parties. It is also pointed out that the contention raised by the learned counsel for the appellant regarding the dwelling house also cannot be countenanced in view of the amendment brought about to the provisions of the Hindu Succession Act. The lower court has categorically found that though there was a contention in the written statement, that was not pursued. It is on this basis that the decree was passed and no grounds are made out warranting interference by this court with the judgment and decree passed by the court below. 8. True, there is no issue as such regarding the character of Item No.2 of plaint schedule property. It is AS 520/01 5 equally true that the defendant had contended in the written statement that the property belonged to the grandfather of the parties and that it was an ancestral property in the hands of their father Velayudhan. But, at the time when the parties went for trial, they were clear as to their respective claims and contentions and adduced evidence in that respect. It is not as if the court below has not considered this aspect at all. In fact, one could say that Issue No.2 already raised takes in this issue also. Whatever that be, the defendant and plaintiff were fully aware of the nature of their contentions. So, it could not be said that for want of issues, any prejudice has been caused to the parties. The lower court has noticed the contention of the defendant and has come to the conclusion that in the absence of evidence, it could not be held that it was an ancestral property. The court below was perfectly justified in holding that the burden was on the defendant to prove that it is an ancestral property. Even assuming that there is no issue as such, no prejudice has been caused to the AS 520/01 6 defendant. 9. As far as the dwelling house is concerned, as rightly pointed out by the learned counsel for the respondent, that issue does not survive for consideration in view of the amendment brought about to the Hindu Succession Act. By virtue of the amendment brought about to S.23 of the Hindu Succession Act, the contention that the dwelling house is not available for partition, cannot be entertained. 10. As regards the third contention raised by the appellant, the court below has found that it was not seriously pursued by the defendant at the time of evidence that it was given up by him. The plaintiff has also given statement to the effect that it was a portion where she had put up a kitchen for her use and the court below has found that it is not separate property, but it is part of plaint schedule item No.2. 11. There is nothing to show that the findings of the court below are either perverse or unwarranted by the AS 520/01 7 evidence on record. No grounds are made out warranting interference with the judgment and decree of the court below. The appeal is without any merits and it is accordingly dismissed. No order as to costs. P.Bhavadasan, Judge sta AS 520/01 8