IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR MONDAY, THE 11TH FEBRUARY 2008 / 22ND MAGHA 1929 RSA.No. 936 of 2007() --------------------- AS.111/2000 of ADDL.DISTRICT COURT (ADHOC)-II, THALASSERY OS.372/1995 of PRL.S.C.,THALASSERY .................... : APPELLANT/APPELLANT/PLAINTIFF: ----------------------------------------------- MARYANKANDY KUNHIKANNAN, KOODALI AMSOM, MATTANNUR DESOM, KANNUR DISTRICT. BY ADV. SRI.V.PREMCHAND RESPONDENTS: RESPONDENTS/DEFENDANTS 1, 3 TO 13: ----------------------------------------------- 1. MARYANKANDY KUNJIANANDAN, ANANDAPURAM, KOODALI AMSOM, MATTANNUR DESOM. 2. MARYANKANDY KARTHYAYANI, PUTHIYA VEEDU, KOODALI AMSOM, MATTANNUR DESOM. 3. MARYANKANDY GOPALAN, PUTHIYA VEEDU, KOODALI AMSOM, MATTANNUR DESOM. 4. MARYANKANDY SAROJINI, KANHIRODE AMSOM, THALAMANDA DESOM. 5. MANANGATHIL LAKSHMI, MANGATT HOUSE, KOODALI AMSOM, MATTANNUR DESOM. 6. MANGATHIL INDIRA, MAYYIL AMSOM, CHEMPAZHARI DESOM, P.O. MAYYIL. 7. MANGATHIL RAJAN, BILL COLLECTOR, DISTRICT CO-OPERATIVE BANK, THAZHE CHOVVA, KANNUR. 8. MANGATHIL SURESHAN, KOODALI AMSOM, MATTANNUR DESOM. 9. MANANGATHIL SUSHAMA, KOODALI AMSOM, MATTANNUR DESOM. 10. MANANGATHIL OORMILA, KOODALI AMSOM, MATTANNUR DESOM. 11. MANANGATHIL KAILASAN, KOODALI AMSOM, MATTANNUR DESOM. 12. MARYANKANDY PRAMELA, KOODALI AMSOM, MATTANNUR DESOM. 13. T.V.SREEMATHI, THEKKEVEETTIL HOUSE ELAYYAVOOR AMSOM, CHOVVA DESOM. 14. T.V.DILEEP, OF DO...DO.... 15. T.V.SUNIL OF DO...DO... 16. SUNITH, OF DO...DO.. 17. T.V.DEEPA, OF DO...DO..... 18. T.V.DEEPTHI,OF DO...DO... BY THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 11/02/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: M.SASIDHARAN NAMBIAR,J. =========================== R.S.A. NO. 936 OF 2007 =========================== Dated this the 11th day of February, 2008 JUDGMENT Plaintiff in O.S.372/1995 on the file of Sub Court, Thalassery is the appellant. Defendants are the respondents. Appellant instituted the suit for a declaration that appellant and first respondent alone have right to the plaint schedule property as being legatees under Ext.A2 will dated 1.10.1971 executed by Kunhambu, the father and for partition and separation of his half share. The case of appellant is that plaint schedule property was originally obtained by Kunhambu and Othenan as per registered kuzhikanam deed in 1932 and later Karinji purchased jenm right under Ext.A3 sale deed on 16.12.1969 and Kunhambu died in 1983 leaving behind appellant and respondents 1 to 5 as his legal heirs and respondents 6 to 13 are the legal heirs of Kumaran, the other deceased son of Kunhambu and Kunhambu had executed Ext.A2 will R.S.A.936/2007 2 whereunder the property was bequeathed equally to appellant and first respondent and therefore he has half right in the plaint schedule property. It was contended that there were litigations and suits for partition and in those prior litigations the right covered under the will were not considered and plaint schedule property being in the joint possession of appellant and first respondent are liable to be divided. Respondents 1 and 4 to 6 resisted the suit contending that suit is barred by res judicata in view of the decree and judgment in O.S.544/1988. It was also contended that in view of the institution of O.S.408/1991 appellant is estopped from instituting the suit. Fourth respondent had filed O.S.544/1988 seeking partition of the properties including the plaint schedule properties left behind by Kunhambu and Karinji the parents and item No.1 therein is the plaint schedule property. One half right originally belonged to Othenan was purchased by Karinji as per assignment deed 211/1934 and eversince Kunhambu the R.S.A.936/2007 3 father and Karinji the mother were in joint possession of the property and Kunhambu died in 1983 and Karinji died in 1986 and in O.S.544/1988 all the properties left behind by them were partitioned and though appellant raised a contention based on the will set up in the suit, that was rejected and a final decree was also passed and property was also taken delivery in E.P.264/93 and E.P.336/1995 and therefore the suit is to be dismissed with compensatory costs. 2. Learned Sub Judge on the evidence of DW1 and Exts.A1 to A37, B1 to B7 dismissed the suit holding that O.S.544/1988 was instituted by fourth defendant and as evidenced by Exts.A34 it is clear that partition of the properties left behind by parents of the appellant were sought for in that suit and appellant contended that plaint schedule property which is item No.1 therein was the exclusive property of Kunhambu and it was bequeathed to him and therefore not available for partition. The said contention was repelled by the R.S.A.936/2007 4 court and a preliminary decree for partition was passed and therefore appellant is not entitled to claim partition of the plaint schedule property. The suit was dismissed. Appellant challenged the judgment before Additional District Court, Thalassery in A.S.111/2000. Learned Additional District Judge on reappreciation of evidence found that the pleading in O.S.544/1988 was not produced and therefore it is not possible to find out the property involved and in view of Ext.A36 judgment and the appeal preferred against the judgment in O.S.544/1988, when it was found that there is remaining property apart from the property covered under the will, the judgment will not operate as res judicata. Learned District Judge also found that appellant did not establish that Kunhambu obtained any other property than the property which was divided under the decree in O.S.544/1988 and therefore confirmed the findings of trial court and dismissed the appeal. 3. Learned counsel appearing for appellant was R.S.A.936/2007 5 heard. 4. The argument of learned counsel is that though trial court under Ext.A35 judgment found that appellant herein is not entitled to claim right under the will and therefore plaint schedule properties is not available for partition, in Ext.A36 judgment first appellate court found that property sought to be divided lesser than the actual extent available and therefore for the reason that properties were directed to be divided in O.S.544/1988 it cannot be said that appellant is not entitled to get a decree for declaration of his right under Ext.A2 will. It was argued that Ext.A2 will was not produced in the earlier suit and was not considered by courts and Ext.A2 shows that under the will properties were bequeathed in favour of appellant and first respondent and therefore appellant is entitled to get his share separated and courts below should not have dismissed the suit. 5. On hearing the learned counsel and on R.S.A.936/2007 6 going through the judgments of the courts below, I do not find any substantial question of law is involved in the appeal. 6. Ext.A35 and A36 judgments as well as the contentions raised by appellant establish that the property which was found to be available for partition and directed to be divided between the legal heirs of Kunhambu and his wife Karinji are the properties originally obtained by Kunhambu and Othenan under a registered marupat. Kunhambu had only one half right and the remaining one half vested with Othenan. It is also not disputed that subsequently Othenan assigned his one half right in favour of Karinji who is none other than the wife of Kunhambu. Though learned counsel vehemently argued that under Ext.A3, Kunhambu purchased jenm right and therefore Kunhambu alone had absolute right in the property, so long as the tenancy right was obtained jointly by Kunhambu and Othenan and the one half right of Othenan was purchased by Karinji, it cannot be said that by R.S.A.936/2007 7 obtaining jenm right under Ext.A3 Kunhambu can claim the property. Whatever it be, the properties sought to be divided in O.S.544/1988 is the very same property which was obtained by Kunhambu and Othenan. In that suit, appellant resisted the claim for partition on the ground that item No.1 of the plaint schedule property therein which is the plaint schedule property herein, exclusively belonged to Kunhambu and Othenan which was bequeathed to him under the will. The will was not produced before the trial court. Though copy of the will produced before first appellate court, first appellate court did not receive it as additional evidence. Appeal was dismissed confirming the finding of trial court that plaint schedule properties are available for partition. The argument of the learned counsel is that under Ext.A36 judgment first appellate court found that the property directed to be divided under the decree in O.S.544/1988 is of a lesser extent than the total extent available and therefore the claim R.S.A.936/2007 8 raised by appellant under Ext.A2 will cannot be rejected because of the decree passed in O.S.544/1988. The submission of the learned counsel appearing for appellant could have been accepted, if appellant has a case that apart form the property covered under the registered kuzhikanam deed whereunder Kunhambu and Othenan obtained the properties, Kunhambu obtained some other properties separately which was subsequently bequeathed under Ext.A2. That is not the case. Even the case of appellant is that the property is the very same property which was obtained by Kuhambu and Othenan. O.S.544/1988 was filed by fourth respondent herein claiming that the properties which vested in Kunhambu and Othenan and subsequently Karinji who purchased the half right of Othenan, and on their death all properties are available for partition. Courts below as per Exts.A35 and A36 judgment found that properties are available for partition and they were to be divided between the sharers. As long as appellant R.S.A.936/2007 9 has no case that Kunhambu had obtained any other property which is not the subject matter of Ext.35 judgment,appellant is not entitled to claim a share in the property in the light of the decree granted in O.S.544/1988. In such circumstance, courts below rightly dismissed the suit. Appeal is dismissed in limine. M.SASIDHARAN NAMBIAR JUDGE tpl/- R.S.A.936/2007 10 M.SASIDHARAN NAMBIAR, J. --------------------- W.P.(C).NO. /06 --------------------- JUDGMENT SEPTEMBER,2006