IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH WEDNESDAY, THE 18TH NOVEMBER 2009 / 27TH KARTHIKA 1931 RSA.No. 476 of 2003(F) ---------------------- AS.195/1995 of SUB COURT, TIRUR OS.31/1992 of M.C.,PARAPPANANGADI .................... APPELLANTS/PLAINTIFFS IN OS & APPELLANTS IN AS: ------------------------------------------------------------------- 1. PATHUMMA, D/O. VAKKATHODUKA KUNHAHAMMED, MOONNIYOOR AMSOM AND DESOM, TIRUR TALUK, MALAPPURAM DIST. *2. VAKKATHODUKA KUTTU'S CHILDREN VEERAN, (DIED) -DO- -DO-. 3. PATHUMMA -DO- -DO-. 4. MUHAMMED -DO- -DO-. 5. SAIDALAVI -DO- -DO-. *6. POCKER -DO- -DO-. (DIED) 7. NABEESA, -DO- -DO-. BY ADV. SRI.T.KRISHNAN UNNI, SENIOR ADVOCATE RESPONDENT(S): DFNTS.1 TO 11 IN O.S. & RESPDTS.1 TO 11 IN A.S: -------------------------------------------------------------- 1. ABDUL KAREEM, S/O. ERANHIKKAL KUNHEEN, MOONNIYOOR AMSOM AND DESOM, TIRUR TALUK, MALAPPURAM DISTRICT. 2. AHAMMED, -DO- -DO-. 3. IBRAHIMKUTTY, -DO- -DO-. 4. BUSHARA, -DO- -DO-. 5. ABDUL AZEEZ, -DO- -DO-. 6. FATHIMATH ZUHARA, -DO- -DO-. 7. HAJARA, -DO- -DO-. 8. SUBAIR, -DO- -DO-. 9. ERANTHIKKAL KUNHEEN, -DO- -DO-. 10. VADAKKETHODUKA KOYAMUTTY, -DO- -DO-. 11. CHOMARI MAMMUTTY, -DO- -DO-. (* IT IS RECORDED THAT THE LR'S OF DECEASED APPELLANTS 2 AND 6 ARE NOT NECESSARY PARTIES TO THIS APPEAL AT THE RISK OF THE APPELLANT VIDE ORDER DATED 04-12-2008 IN MEMO BEARING OF 5975/08) ADV. SRI.K.RAMACHANDRAN FOR R SRI.K.RAMACHANDRAN FOR R2,3,5,8 TO 11 SRI.P.RAMACHANDRAN FOR R2,3,5,8 TO 11 THIS REGULAR SECOND APPEAL HAVING BEEN FINALLY HEARD ON 18/11/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: THOMAS P JOSEPH, J. ---------------------------------------- R.S.A.No.476 of 2003F --------------------------------------- Dated this 18th day of November, 2009 JUDGMENT The genealogy is given in the plaint A schedule and it is not in dispute. Plaintiff No.1 is the daughter of the late Ithikutty Umma in her first marriage. Plaintiff Nos.2 to 7 are legal heirs of Kuttu, maternal grandfather of plaintiff No.1. Muhammed and Kathiyumma are children of the late Ithikutty Umma in her second marriage with defendant No.10. Defendant Nos.1 to 9 are legal heirs of Kathiyumma. Defendant No.11 is an assignee from Muhammed. The suit concerned 1.15 acres of land acquired by defendant No.10 as per Ext.B1, assignment deed dated 31-03-1942. Defendant No.10 executed Ext.A1, assignment deed dated 15-09-1951 in favour of his children, Muhammed and Kathiyumma through Ithikutty Umma. As per Ext.A1 the suit property was assigned to Muhammed and Kathiyumma. That was followed by a partition deed Ext.B2, dated 01-08-1969 between Muhammed and Kathiyumma. Muhammed assigned the property allotted to his share in partition to defendant No.11 as per Exts.B8 to 10 dated 02-04-1973, 29-05-1975 and 24-11-1981, respectively. It is not disputed that Kathiyumma assigned a portion of the property allotted to her in partition to a third person. While so in the year 1992 plaintiffs brought the suit for partition. They alleged that acquisition of the property by defendant No.10 as per Ext.B1 was utilising the gold R.S.A.No.476 of 2003 2 ornaments of the deceased mother of plaintiff No.1, Ithikutty Umma. It is also stated in the plaint that the sale in favour of Muhammed and Kathiyumma was in consideration of their share in the value of the gold ornaments of Ithikutty Umma appropriated by defendant No.10 for business purposes. According to the plaintiffs in the above circumstances, they are co-owners of the suit property along with defendant Nos.1 to 11 (defendant No.11 being an assignee from Muhammed) and sought partition and separate possession of their share. Contesting defendants disputed that acquisition of the property was by making use of ornaments of the late Ithikutty Umma. They contended that property exclusively belonged to defendant No.10 who assigned the same in favour of Muhammed and Kuthiyumma and hence, plaintiffs have no partible interest in the suit property. Learned Munsiff answered the issue against the plaintiffs and dismissed the suit. That was confirmed by the first appellate court. Hence the second appeal. The following substantial question of law is framed for a decision. “Are the courts below justified in not attaching due significance to the specific recitals in Ext.A1 with respect to the appropriation of gold ornaments of Ithikutty Umma by defendant No.10?.” 2. It is contended by learned Senior Advocate appearing for appellants/plaintiffs that the finding of courts below as to the source of money for acquisition of property as per Ext.B1 is not correct and at R.S.A.No.476 of 2003 3 any rate courts below did not consider the issue whether sale as per Ext.A1 was in consideration of appropriation of ornaments of the late Ithikutty Umma by defendant No.10 and hence the sale (as per Ext.A1) in favour of Muhammed and Kuthiyumma created a trust in favour of other legal heirs of Ithikutty Umma as well. Learned Senior Advocate submitted that since the courts below have not framed an issue regarding that inspite of specific averment in the plaint and entered a finding, in case this Court finds that acquisition of the suit property as per Ext.B1 is not making use of the ornaments of the late Ithikutty Umma, the case may be sent back to the trial court for a decision of the issue involved in the substantial question of law framed. Learned counsel for defendants in response contend that even if the recital in Ext.A1 is accepted as true, that will not confer any right on the plaintiffs over the suit property. It is also pointed out by learned counsel that even when plaintiff No.1 was examined as PW1 she never had a case that there was any trust resulting from the assignment as per Ext.A1 and hence a remand of the case at this stage is not necessary or warranted. 3. So far as contention of plaintiffs regarding acquisition of the property as Ext.B1 is concerned, there is no evidence to show that consideration for the acquisition was raised by sale of the ornaments allegedly belonging to the late Ithikutty Amma. Ext.B1 also does not say that funds for the acquisition was raised in that manner. Plaintiff R.S.A.No.476 of 2003 4 No.1 when examined as PW1 was not able to give any acceptable evidence regarding the source of consideration for acquisition of the property as per Ext.B1. Courts below, in the absence of any reliable evidence found, and rightly that acquisition as per Ext.B1 is not proved to be by making use of ornaments of the late Ithikutty Umma. No substantial question of law is involved in regard to that finding. 4. Then the next question is whether remand of the case is necessary to consider the question whether sale of the suit property to Muhammed and Kathiyumma as per Ext.A1 created any trust in favour of plaintiffs and other legal heirs of Ithikutty Umma as contended by the plaintiffs. The thrust of argument of learned Senior Advocate for plaintiffs is on the recital in Ext.A1 that consideration for the sale in favour of Muhammed and Kathiyumma (Rs.200/-) is their share in the value of gold ornaments of the late Ithikutty Umma appropriated by defendant No.10 for his business purposes. It is true that the trial court has not framed an issue in that regard and none of the courts below considered the question of Ext.A1 creating trust in favour of plaintiffs or other legal heirs of Ithikutty Umma though such an averment was made in the plaint. Question is whether a remand of the case is required to decide that question at this stage. 5. Apart from the fact that there is no evidence let in by the plaintiffs that Ithikutty Umma had any ornaments to be appropriated by defendant No.10 for his business, assuming so in the affirmative, R.S.A.No.476 of 2003 5 what exactly was the extent and its value. Taking the recital in Ext.A1 above stated as correct, will anybody other than the assignees under Ext.A1 get right in the suit property? Assuming that defendant No.10, the assignor as per Ext.A1 had appropriated ornaments of the late Ithikutty Umma, that may give a cause of action for other legal heirs of Ithikutty Umma to proceed against defendant No.10 for realisation of their share in the value of ornaments of Ithikutty Umma. That, defendant No.10 appropriated the ornaments of the late Ithikutty Umma for his business purposes will not, cannot, and did not confer any right on the legal heirs of Ithikutty Umma on the properties of defendant No.10. Even if it is assumed that the sale consideration (Rs.200/-) referred to in Ext.A1 is the share of Muhammed and Kathiyumma in the value of gold ornaments of their mother, the late Ithikutty Umma appropriated by defendant No.10, it can only be taken that by assigning the suit property to Muhammed and Kathiyumma as per Ext.A1, defendant No.10 has discharged his liability towards Muhammed and Kathiyumma. That does not mean that the other legal heirs of Ithikutty Umma whose claim for share in the value of gold ornaments of the late Ithikutty Umma was not satisfied by defendant No.10 got any right in the suit property assigned by defendant No.10 as per Ext.A1. Under cover of such a claim they cannot claim even the semblence of a right in the suit property assigned to Muhammed and Kathiyumma as per Ext.A1, the validity of which otherwise is not under R.S.A.No.476 of 2003 6 challenge. The recital in Ext.A1 highlighted by the plaintiffs in this appeal even if accepted will not confer any right on the plaintiffs in the suit property. This position of law and fact being explicit from Ext.A1, I am not inclined to think that a remand is necessary for the reason that the courts below did not say so, and also since apart from raising a bald plea in the plaint, plaintiffs also did not highlight the issue when PW1 was examined. A remand for the reasons stated above will only be an empty formality and a protraction of this litigation. The substantial question of law framed is answered accordingly. The second appeal is dismissed without any order as to cost. THOMAS P JOSEPH, JUDGE Sbna/