IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE HARUN-UL-RASHID THURSDAY, THE 17TH DECEMBER 2009 / 26TH AGRAHAYANA 1931 AS.No. 811 of 1999(F) --------------------- OS.291/1994 of II ADDL.SUB COURT,THRISSUR .................... APPELLANT --------------- *1. BHARATHI AMMA, AGED 54 YEARS, (DIED) D/O LATE VADUKUTTU KUNJIPENNAMMA KODANNUR VILLAGE AND DESOM THRISSUR TALUK ADDL.A2. KITTU NAIR, S/O VADAKKOOT KUNJIPENNAMMA, KODANNUR VILAGE AND DESOM THRISSUR ( LEGAL REPRESENTATIVES OF THE DECEASED 1ST APELLANT IS IMPLEADED AS ADDITIONAL 2ND APPELLANT AS PER ORDER DATED 19.8.2009 IN C.M.P. NO.5050/2001) BY ADV. SRI.JIJO PAUL RESPONDENTS/DEFENDANTS --------------------------------------------- 1. ACHUTHAN NAIR, AGED 63 YEARS, S/O LATE VADAKKUTTU KUNJIPENNAMMA KODANNUR VILLAGE AND DESOM THRISSUR TALUK 2. AMMINI AMMA, AGED 58 YEARS, D/O LATE VADAKKUTTU KUNJIPENNAMMA KODANNUR VILLAGE AND DESOM THRISSUR TALUK . 3. KARTHIAYANI AMMA, AGED 56 YEARS D/O LATE VADAKKUTTU KUNJIPENNAMMA RESIDING AT KODANNUR VILLAGE AND DESOM THRISSUR TALUK. 4. THANKAM , AGED 44 YEARS, W/O ACHUTHAN NAIR, VADUKKUTTU HOUSE KODANNUR VILLAGE AND DESOM THRISSUR TALUK . 5. UDAYAKUMAR, AGED 24 YEARS S/O 1ST AND 4TH RESPONDENT RESIDING WITH THEM. 6. JYOTHI, AGED 24 YEARS D/O 1ST AND 4TH RESPONDENT RESIDING WITH THEM. 7. SUNDARSANKUMAR AGED 18 YEARS S/O 1ST AND 4TH RESPONDENT RESIDING WITH THEM. ADV. SRI.DINESH MATHEW J.MURICKEN FOR R1 THIS APPEAL SUITS HAVING BEEN FINALLY HEARD ON 17.12.2009 THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ORDER IN C.M.P. NO. 5048 OF 2001 IN A.S. NO. 811 OF 1999 DISMISSED SD/- HARUN-UL-RASHID, JUDGE 17.12.2009 HARUN-UL-RASHID, J. ---------------------------------------- A.S.No. 811 of 1999 ---------------------------------------- Dated this the 17th day of December, 2009 JUDGMENT The plaintiff in O.S No. 291/1994 on the file of the Sub court, Thrissur, is the appellant. The suit is for partition. The suit was dismissed. The plaint schedule property scheduled in the plaint originally belonged to plaintiff, 1st defendant and Kunjipennamma, the mother of plaintiff and defendants 1 to 3. As per Ext.A1 partition deed the plaint schedule property was set apart in their joint names. it is averred in the plaint that one Cent out of 16 Cents was given by 3rd defendant in favour of plaintiff towards her marriage purposes. It is further averred in the plaint that there was an oral partition and that the plaint schedule property was divided into 5 Cents each to the plaintiff, 1st defendant and 6 Cents to the mother respectively. On the death of Kunjipennamma, on 20.7.1991 her share devolved upon plaintiff, defendant 1 to 3, other sons by name Sankaran Nair, Kittu Nair and Madhavan Nair. The above mentioned Kittu Nair Madhavan Nair and Sankaran Nair released their right on the mother's property in favour of the plaintiff as per Ext.A2 release deed dated 22.6.1993. The 1st defendant who is the brother of the plaintiff purchased the shares of 2nd and 3rd defendants who are the daughters of late Kunjipennamma(mother) by Ext.B4 document. Plaintiff is not amenable for keeping the plaint schedule property as a joint property. Plaintiff is A.S.No. 811 of 1999 -2- claiming her share in the property. The trial court dismissed the suit. Aggrieved by the judgment and decree passed by the trial court, the plaintiff in the suit has preferred this appeal. Pending suit the plaintiff/appellant assigned her right over her share of property to her brother who is impleaded herein as additional 2nd appellant. The parties hereinafter are referred to as plaintiff and defendants as arrayed in the suit. 2. The 1st defendant interalia contended that the suit is bad for non-joinder of necessary parties. He denied the allegation in the plaint that 1 cent of land out of 16 Cents was given to the plaintiff for her marriage purposes. The 1st defendant also contended that there was an oral partition in the year 1981 and pursuant thereto late Kunjipennamma obtained 6 Cents of land as her share in the oral partition and he and the plaintiff obtained 5 cents of land each and are in separate possession and enjoyment of their respective items. According to him, 6 cents of land belonging to the mother devolved upon her children after her death, and defendants 2 and 3 released their right in the property of the mother in favour of himself as per Ext.B4 document. 3. Defendants 4 to 7 have filed a joint written statement raising the following contentions. Five Cents of land out of 16 Cents shown in the plaint schedule was given to 1st defendant and it was in his possession and enjoyment. The said 5 cents of land along with 10 Cents belonging to 1st defendant lying adjacent to it were conveyed in their favour as per Ext.B8 A.S.No. 811 of 1999 -3- document. The said properties are now in the exclusive possession and enjoyment of these defendants. Therefore the 5 cents of land out of the plaint schedule property that was given to these defendants by the 1st defendant has to be set apart to the share of defendants 4 to 7. 4. There is a residential building in the property wherein the 1st defendant and his family members are residing . The 1st defendant's wife and the children have been arrayed as defendants 4 to 7 in the suit. It is the case of the plaintiff that the building is jointly owned by all including the 1st defendant. But in the light of the evidence given by DW1 and DW2 coupled with Exts. B9 to B14 documents the trial court held that the building was constructed by the 1st defendant with his own money and is paying tax, that the building and property belong to the 1st defendant exclusively and is not available for partition. The case of the 1st defendant that there was an oral partition in the year 1981 was accepted by the trial court. 5. Even after accepting all the findings of the trial court to the effect that the western 5 Cents is set apart to the plaintiff and eastern 5 cents to the 1st defendant, there remains 6 cents of land which originally belonged to the mother deceased Kunjipennamma,to be partitioned equally among the sharers. It is submitted by both sides that there were altogether 7 children who are entitled to inherit the property of late mother KunjiPennamma. It is also not disputed that 3 shares of 3 children of the A.S.No. 811 of 1999 -4- deceased Kunjipennamma were purchased by the plaintiff vide Ext.A2 sale deed and two shares of defendants 2 and 3 (other two children of the deceased Kunjipennamma) were purchased by the 1st defendant. Since the mother died long before the filing of the suit, the property belonged to the mother ( 6 Cents of land) which is lying in between the properties of the plaintiff and 1st defendant, is liable to be partitioned in the names of the plaintiff and 1st defendant. Even if the oral partition is accepted, the trial court went wrong in not effecting the partition of the six cents of land which is now in the possession and enjoyment of the additional 2nd appellant ( son of the deceased mother Kunjipennamma). 6. The counsel on both sides requested that the sharing and allotment of the plaint schedule property may be made in such a way for the convenient enjoyment of both sides. The request is accepted. 7. In the circumstances, this Court is of the view that the plaint schedule property is liable to be partitioned between the sharers. The additional 2nd appellant is entitled to the western 5 cents and 4/7 shares of middle 6 cents and the 1st defendant or his legal heirs are entitled to the eastern 5 Cents and the remaining 3/7 shares of the aforesaid 6 cents. It is already mentioned that the western 5 Cents lying on the western extremity is in the possession of the plaintiff or her legal heirs as the case may be. Hence the 4/7 shares allotted to the additional 2nd appellant out of the middle 6 Cents shall be allotted in such a way touching his 5 cents. The defendants 4 to 7 are in possession of property lying on the A.S.No. 811 of 1999 -5- eastern portion of the property Similarly the 1st defendant or his legal heirs shall be alloted the balance 3/7 shares in such a way touching their eastern property. The sharers are at liberty to file application for passing the final decree by paying the requisite court fee In the result, the appeal is allowed . The judgment and decree under appeal are set aside. A preliminary decree for partition by metes and bounds is passed declaring that the additional 2nd appellant is entitled to western 5 cents and the adjacent 4/7 shares of the middle 6 Cents out of 16 Cents and the 1st defendant or his legal heirs are entitled to the balance eastern 5 cents and the adjacent 3/4 shares. Costs shall come out of the estate. (HARUN-UL-RASHID, JUDGE) es. HARUN-UL-RASHID, J. --------------------------- A.S.No. 811 of 1999 ---------------------------- JUDGMENT 17th December, 2009