IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.BHAVADASAN FRIDAY, THE 27TH MAY 2011 / 6TH JYAISHTA 1933 SA.No. 235 of 1999(C) --------------------- AS.44/1995 of ADDL. DISTRICT COURT, NORTH PARAVUR OS.359/1991 of MUNSIFF COURT, PERUMBAVOOR .................... APPELLANT/APPELLANT/DEFENDANT: -------------------------------------------------------- KUNJAN, S/O.PADMANABHAN, POTTACKAL, IRINGOL KARA, PERUMBAVOOR VILLAGE, PATTAL P.O., KUNNATHUNADU TALUK. BY ADVS. SRI.K.N.NARAYANA PILLAI SRI.S.VIDYA SAGAR RESPONDENT/RESPONDENT/PLAINTIFF: ---------------------------------------------------------- PARUKUTTY, W/O.KUMARAN, PATHRAMALI HOUSE, PULLUVAZHI KARA, RAYAMANGALAM VILLAGE. BY ADV. SRI.K.SREESAKUMAR THIS SECOND APPEAL HAVING BEEN FINALLY HEARD ON 27/05 /2011 , THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: SA.No. 235 of 1999(C) ------------------------------- ORDER ON CMP 688/1999 IN SA 235/1999 DISMISSED 27.5.2011 Sd/- P.BHAVADASAN, JUDGE / TRUE COPY / P.A. TO JUDGE VK P. BHAVADASAN, J. - - - - - - - - - - - - - - - - - - - - - - - - - - - S.A. No. 235 of 1999 - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 27th day of May, 2011. JUDGMENT The defendant in O.S. 359 of 1991 before the Munsiff's Court, Perumbavoor, who suffered a preliminary decree for partition which was confirmed in appeal is the appellant. Parties and facts are hereinafter referred to as they are available before the trial court. 2. The plaintiff and the defendant are siblings. According to the plaintiff, plaint schedule property belonged to their mother and consequent on her death she got half share going by the Hindu Succession Act. On that basis she laid claim for partition claiming future mesne profits at the rate of Rs.250/- per year with interest. 3. The defendant resisted the suit. He pointed out that the property was not available for partition. According to him, at the time of marriage the S.A.235/1999. 2 plaintiff was given 5 sovereigns of gold and Rs.550/- as her share. She purchased 35 cents of land with the amount given to her at the time of marriage. Moreover, after receiving a sum of Rs.550/- from the father of the plaintiff, the father-in-law executed a mortgage in her favour. He pointed out that he had spent considerable amount for the treatment of his parents. He also pointed out that plaint schedule property takes in a temple and the common property of the tarwad and at any rate that portion is not available for partition. On the basis of these contentions, he prayed for a dismissal of the appeal. 4. The trial court raised necessary issues for consideration. The evidence consists of Exts.A1 and A2 marked from the side of the plaintiff. The defendant examined D.W.1 and had marked Exts.B1 to B3. The trial court found that even assuming that the father had given a share of the property to his daughter namely, the plaintiff, she is entitled to claim partition of the property owned and possessed exclusively by the mother of the parties and the S.A.235/1999. 3 mere fact that the plaintiff had been given a share will not preclude her from claiming her share from mother's property. It was also observed by the trial court that at the time of partition if it is found that the plaint schedule property takes in a temple and common property, that should be excluded from partition. Accordingly a preliminary decree was passed in the following terms: “The plaint schedule property shall be divided into two equal shares by meters and bounds and the plaintiff is entitled to one share with future mesne profits from the date of decree till delivery of possession or three years whichever is earlier. The quantum of mesne profits will be decided in the final decree proceedings. While allotting the shares in the final decree proceedings the division of property should be done in such a way that the portion wherein the house and outhouse is situated shall be allotted to the share of the defendant. The costs shall come out of the estate. Any of the interested parties can apply for a final decree.” S.A.235/1999. 4 5. The aggrieved defendant took up the matter in appeal as A.S. 44 of 1995. The lower appellate court was unable to find any error in the judgment and decree of the trial court and accordingly confirmed the judgment and decree. It may be observed that both the courts below have taken caution to reserve the right of the defendant as far as possible to have the building allotted to the share of the defendant. 6. Notice is seen issued on the following questions of law: “(a) Whether the interpretation given to the deeds Ext.B1 and Ext.B2 by the lower courts is correct? (b) Whether Ext.B1 and Ext.B2 be interpreted in such a way as not to give effect to all provisions contained in it? (c) Whether the lower courts is correct in leaving open the question of partibility of the Family temple and the Idol in the suit property, to be decided in the final decree proceeding? (d) Whether the defendant has a right to claim partition of the suit property, in view of the S.A.235/1999. 5 exchange she has already effected by obtaining valid consideration by way of her due share in the suit property?” 7. Learned counsel appearing for the appellant contended that both the courts below have not considered the vital issues involved in the case and that has resulted in miscarriage of justice. According to the learned counsel, the execution of Ext.B1 by the father-in-law of the plaintiff in her favour shows that she has received her share of property and she thereafter is in no manner entitled to any share from the properties of her parents. It was also emphasized that Ext.B2 would reveal that she had obtained 35 cents also. Further it is contended that the question as to whether the plaint schedule property contained temple premises and the common property ought to have been decided by the court below and without doing so, a preliminary decree ought not to have been passed. 8. The contention that since Ext.B1 has been executed in favour of the plaintiff, she is disentitled to claim S.A.235/1999. 6 a share in the plaint schedule property is without any basis whatsoever. Even assuming that as rightly noticed by the courts below father had given a share to the plaintiff either in cash or property does not mean that she has to be disinherited in respect of her mother's property. In paragraph 2 of the plaint it has been specifically averred that the plaint schedule property exclusively belonged to the mother of the parties and consequent on her death it devolves in equal shares on the parties to the suit. It is true that in the written statement it is stated that a family temple is situated in the property. 9. A reading of Exts.B1 and B2 does not advance the case of the defendant much. That only shows that having received Rs.550/- from the father of the plaintiff, the father-in-law of the plaintiff mortgaged the property to the plaintiff. Ext.B2 is the gift deed executed by the husband of the plaintiff in her favour wherein it is recited that the gift of certain properties are being given to her in lieu of the share amount given to her. As rightly held by the courts S.A.235/1999. 7 below the plaintiff is entitled to claim partition of mother's property. 10. There is some substance in the grievance voiced by the counsel for the defendant that the property takes in temple as well as common property set apart to the tarwad and partition ought not have been ordered. However, it needs to be noticed that the trial court has by way of abundant caution mentioned that if it is so found that the plaint schedule property takes in a temple and common property, that should be excluded from partition. However that is omitted to be included in the preliminary decree as such. The lower appellate court has not adverted to this aspect at all. 11. It is felt that it is sufficient if an opportunity is given to the defendant to show that the plaint schedule property takes in a temple and common property, in which case it shall be exempted from partition at the time of final decree proceedings. S.A.235/1999. 8 12. None of the other contentions raised have any basis or foundation. In the result, while confirming the judgment and decree of the court below, it is made clear that the defendant will be at liberty to establish that the plaint schedule property takes in the temple and common property and if he succeeds, that portion will be excluded from partition. Reservation of the house as made by the court below will stand. With this observation the Second Appeal is dismissed. There will be no order as to costs. P. BHAVADASAN, JUDGE sb.