IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOTTATHIL B.RADHAKRISHNAN & THE HONOURABLE MR. JUSTICE S.S.SATHEESACHANDRAN THURSDAY, THE 26TH MAY 2011 / 5TH JYAISHTA 1933 RFA.No. 302 of 2011() -------------------------------- OS.465/2009 of IST ADDL. SUB COURT,ERNAKULAM .................... APPELLANT/IST DEFENDANT ------------------------------------------- C.T.PETER, AGED 66 YEARS, S/O.C.P.THAVU, CHRUVATHOOR HOUSE, PARAMARA ROAD, ERNAKULAM,KOCHI-682018 BY ADVS. SRI.M.RAJASEKHARAN NAYAR SMT.K.N.RAJANI SRI.G.ARUN GOPAN RESPONDENT(S): /PLAINTIFF & DEFENDANTS 2 TO 5 ----------------------------------------------------------------------------- 1. C.T.CHUMMAR,S/O.C.P.THAVOO, CHERUVATHOOR HOUSE, M.M.ROAD, ERNAKULAM, KOCHI-682014 2. ANNAMMA ZACHARIA, W/O.LATE C.T.ZACHARIA, CHERUVATHOOR HOUSE, KARIMUGAL, ERNAKULAM-682301 3. SONY ZACHARIA, P.B.NO.373, P.O-113,SULTANATE OF OMAN, RUBY HIGH STREET, MUSCAT.682 301. 4. BONY ZACHARIA, S/O.LATE C.T.ZACHARIA, CHERUVATHOOR HOUSE, KARIMUGAL, ERNAKULAM-682301 5. TONY ZACHARIA, S/O.LTATE C.T.ZACHAIRA, CHERUVATHOOR HOUSE, KARIMUGAL, ERNAKULAM-682301 THIS REGULAR FIRST APPEAL HAVING COME UP FOR ADMISSION ON 26/05/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: tss ORDER ON IA. NO. 1438/2011 IN RFA. NO.302/2011 DISMISSED 26/05/2011 SD/- THOTTATHIL B.RADHAKRISHNAN, JUDGE SD/- S.S.SATHEESACHANDRAN, JUDGE TRUE COPY P.S. TO JUDGE tss Thottathil B.Radhakrishnan & S.S.Satheesachandran, JJ. = = = = = = = = = = = = = = = = = = = = = = = = R.F.A.No.302 of 2011 = = = = = = = = = = = = = = = = = = = = = = = = Dated this the 26th day of May, 2011. Judgment Thottathil B.Radhakrishnan, J. 1.The first defendant in a suit for partition is the appellant. 2.The suit property originally belonged to Martha, who purchased it as per Ext.A1 deed in 1983. She died leaving behind the plaintiff, the first defendant and late C.T.Zacharia whose legal representatives are defendants 2 to 5. The plaintiff sued for partition of that estate of Martha conceding rights to the defendants in terms of the Indian Succession Act. 3.The first defendant alone contested. He pleaded that there was a partnership called 'C.T.Candle Works', executed way back on 14.10.1978 between RFA302/11 -: 2 :- the three brothers, i.e., plaintiff, first defendant and late Zacharia and after demise of Martha, the suit property, which is a building where business of that firm was being run, was dealt with while the partnership was dissolved as per Ext.B1 on 16.8.1993, whereby the three brothers had agreed in clause 2 in Ext.B1 that the property will belong to the first defendant. This contention was overruled by the court below and a preliminary decree has been passed. Hence, this appeal. 4.We heard the learned counsel for the appellant. We have seen a copy of Ext.B1. It is nothing but a dissolution deed in relation to a partnership. Clause 2 of Ext.B1 referred to, in support of the appeal, reads as follows: “2. The 2nd Party Sri.C.T.Peter shall take over the assets and liabilities of the firm as it stood as per books of accounts as on 16-8-1993, entirely and shall have the right to carry on RFA302/11 -: 3 :- the business in the same business premises at Building No.41/2410 Paramara Road, EKM and shall have the exclusive right to carry on the business using the firm name including all its furniture fixtures, settings and all other useful items such as Candle Tanks, Candle Dies, Electric Fittings, Furniture and fixtures and all other items that are fixed or lying in Building No.41/2410 situated in survey No.154/2 at Paramara Road, EKM.” 5.The aforesaid clause does not, in any manner, confer any title or deal with any item of immovable property much less the property covered under Ext.A1. Not only that, Ext.A1 is an item of property of value more than Rs.100/-. There is no registered document by which Ext.A1 property was transferred in favour of the partnership. Even if we were to assume that it is a case where the said property is treated as partnership property, this is just impossible because the said property belonged to Martha till she died in 1987 while RFA302/11 -: 4 :- the partnership firm came into existence long before Martha purchased Ext.A1 property; and Martha was never a partner of the firm. The dissolution deed Ext.B1 in relation to a partnership cannot, in any manner, deal with the right, title and interest of the heirs of late Martha which accrued by way of non-testamentary succession on the date of her demise in 1987. For the aforesaid reasons, we find no merit in this appeal. The same is accordingly dismissed in limine. Thottathil B.Radhakrishnan, Judge. S.S.Satheesachandran, Judge. Sha/3005