IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR MONDAY, THE 11TH JULY 2011 / 20TH ASHADHA 1933 RSA.No. 250 of 2011() --------------------- AS.146/2007 of ADDL. DISTRICT COURT, THALASSERY O.S.NO.220/2005 OF SUB COURT, THALASSERY .................... APPELLANT/APPELLANT/DEFENDANT ------------------------------------------------------------ P.SUDHANYA,D/O.LATE VASUDEVAN, AGED 42 YEARS,PUTHANPEEDIKAYIL HOUSE,P.O.TEMPLE GATE,THALASSERY-12. BY ADV. SRI.K.T.SHYAMKUMAR SRI.HARISH R. MENON SMT.M.S.KIRAN RESPONDENT: RESPONDENT/PLAINTIFF --------------------------------------------------------- P.SUMODA,D/O.LATE VASUDEVAN,AGED 40 YRS, PUTHANPEEDIKAYIL HOUSE,P.O.TEMPLE GATE, THALASSERY-2. ADV. SRI.M.SASINDRAN THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 11/07/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: M.SASIDHARAN NAMBIAR,J. =========================== R.S.A. No. 250 OF 2011 =========================== Dated this the 11th day of July,2011 JUDGMENT Defendant in O.S.No.220/2005 on the file of Sub Court, Thalassery is challenging the preliminary decree passed by the trial court as confirmed by Additional District Court, Thalassery in A.S.146/2007. Plaint schedule property is 57 cents in R.S.No.34/3A of Kodiyeri Village, Thalassery Taluk. Under Ext.A1 partition deed 1273/01 the joint property were divided between Achuthan, Vasudevan, Ramakrishnan, appellant and respondent the co-owners. Item 1 was allotted to Achuthan, item 2 jointly to Vasudevan, Ramakrishnan, appellant and respondent. On the death of Vasudevan his rights devolved on respondent and appellant his legal heirs. Ramakrishnan subsequently released his right in R.S.A.250/2011 2 favour of the respondent under Ext.A2 gift deed No.1028/2005. Respondent instituted the suit seeking partition and allotment of 5/8 shares due to her, contending that appellant is entitled to the balance 3/8 shares. Appellant resisted the suit contending that Ramakrishnan did not execute a gift deed and appellant and her family are also residing in the house in the plaint schedule property and husband of the respondent is employed in gulf countries and capable of constructing a house and respondent being a teacher by profession is also capable of constructing a house. Learned Sub Judge on the evidence of Ext.A1 to A6 found that the plaint schedule property is available for partition and respondent is entitled to 5/8 shares and appellant is only entitled to the remaining three shares upholding the right obtained by the respondent under Ext.A2 gift deed. Respondent challenged the judgment before District Court, Thalassery in A.S.146/2007. Learned District Judge on proper appreciation of the evidence confirmed R.S.A.250/2011 3 the preliminary decree. It is challenged in the second appeal. 2. Learned counsel appearing for the appellant was heard. 3. The argument of the learned counsel is that though plaint schedule property is available for partition, the share calculated by the courts below is not correct. It is contended that Devaki to whom the plaint schedule property originally belonged had seven children, Gopalan, Kunhikannan, Krishnan, Govindan, Narayanan, Nani and Achuthan. Vasudevan and Ramakrishnan are the children of Gopalan. Ammukutty and Lakshmikutty are the children of Nani. Appellant and respondent are the children of Vasudevan. Achuthan has thus 8/21 shares, appellant respondent together 13/21 shares as he has his 3/21 shares, 3/21 shares of Krishnan as well as 2/3 share of Govindan which he acquired on partition among himself, Krishnan and Narayanan. Likewise Lakshmikutty has 10/21 shares i.e. the shares of her mother Nani, Kunhikrishnan and R.S.A.250/2011 4 Narayanan and 1/3 of the share of Narayanan in the share of Govindan which she later acquired. Thus she is entitled to 10/21 share which devolved equally on the appellant, respondent and their father Vasudevan. The remaining 3/21 share of Gopalan was taken by Vasudevan and Ramkrishnan equally. It is therefore contended that Vasudevan had 1/3 share of 10/21 share of Lakshmikutty and 1/2 of 3/21 share of Gopalan, Ramakrishnan had 1/2 of 3/21 share of Gopalan, appellant had 1/3 share of 10/21 share of Lakshmikutty and respondent has 1/3 share of 10/21 share of Lakshmikutty and the finding of the courts below that respondent is entitled to 5/8 shares is not correct. 4. On hearing the learned counsel, I do not find any substantial question of law involved in the appeal. 5. As rightly found by the courts below, under Ext.A1,respondent and appellant are co-owners as it was jointly allotted to them, Vasudevan and Ramakrishnan. Ramakrishnan had gifted his rights R.S.A.250/2011 5 in favour of the respondent under Ext.A2 gift deed. On the death of Vasudevan his rights devolved equally on the appellant and respondent. When the joint properties were divided and under Ext.A1 plaint schedule property was allotted, appellant is not entitled to contend that the inheritance is to be reopened. As per Ext.A1 partition deed, respondent is entitled to 5/8 shares as found by the courts below as the share due to Ramakrishnan was released to the respondent under Ext.A2. In such circumstances, the finding of the courts below that respondent is entitled to five shares and the appellant the remaining three shares is perfectly correct. As no substantial question of law involved in the appeal, appeal is dismissed. M.SASIDHARAN NAMBIAR JUDGE tpl/- M.SASIDHARAN NAMBIAR, J. --------------------- W.P.(C).NO. /06 --------------------- JUDGMENT SEPTEMBER,2006