IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.BHAVADASAN TUESDAY, THE 24TH MAY 2011 / 3RD JYAISHTA 1933 SA.No. 318 of 1998(D) --------------------- AS.185/1990 of III ADDL. DISTRICT COURT, TRIVANDRUM OS.462/1986 of ADDL.MUNSIFF COURT,NEDUMANGAD .................... APPELLANT(S): IST RESPONDENT/PLAINTIFF ----------------------------------------------------------------- J.Y.DAS, POOVATHIKONATHU VEEDU, VADAKKUMKARA MURI, NEDUMANGAD VILLAGE. BY ADVS. SRI.G.S.REGHUNATH SRI.JOLY K.JACOB RESPONDENT(S): (RESPONDENTS 2 TO 4 & APPELLANT/DEFENDANTS 2 TO 5) ----------------------------------------------------------------------------------------------------------------- 1. HABEL JOHNSON, KUKKURUNNI KULATHUMKARAMELE PUTHEN VEEDU, KIZHAVUR VILLAGE, KIZHAVOOR DESOM. 2. JAINY JASEENTHA, RESIDING IN DO. DO. 3. GRACY LILLY BAI, POOVATHUKONATHU VEEDU VADAKKUMKARA , NEDUMANGAD VILLAGE. 4. JAINY, W/O.ENOSE, POOVATHUKONATHU VEEDU, VADKKUMKARA MURI, NEDUMANGAD VILLAGE.(DIED) *LRS. DECEASED 4TH RESPONDENT. 5. LAWRANCE, CHIRATHALAKKAL VEEDU, MANGINIKONAM, KARIPPOOR P.O., NEDUMANGAD (ADDL. 5TH RESPONDENT). 6. ANILKUMAR, POOVATHUKONATHU VEEDU, THEVARUKUZHI, PALIPPARA , NEDUMANGAD P.O., TRIVANDRUM (6TH RESPONDENT) tss S.A. NO.318/1998 7. LATHA, POOVATHUKONATHU VEEDU, PALLIMUGAL, PALIPPARA, NEDUMANGAD P.O., TRIVANDRUM (7TH RESPONDENT). 8. SHEELA, POOVATHUKONATHU VEEDU, PALLIMUGAL, PULIPPARA, NEDUMANGADU PO., TRIVANDRUM(8TH RESPONDENT) 9. LISSY, POOVATHUKONATH VEEDU, PALLIMUGAL, PULIPPARA, NEDUMANGADU P.O., TRIVANDRUM (9TH RESPONDENT). *LEGAL HEIRS OF DECEASED 4TH RESPONDENT IMPLEADED AS ADDL. RESPONDENTS 5 TO 9 AS PER ORDER DTD. 18.1.2011 IN IA. 1188/2007 IN RSA. R1 & R2, R7 TO R9 BY ADV. SRI.L.MOHANAN THIS SECOND APPEAL HAVING BEEN FINALLY HEARD ON 24/05/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: tss P.BHAVADASAN, J. ------------------------------------- SA No.318 of 1998-D ------------------------------------- Dated this the 24th day of May 2011 Judgment The plaintiff in OS No.462/86 before the Munsiff's Court, Nedumangad, who was non-suited by the lower appellate court, is the appellant. The short facts necessary for the disposal of the appeal are as follows : 2. It is not in dispute that the property involved in this suit belonged to Vedamuthu. At the time of her death, two of her children were alive. One is the plaintiff's mother and the other is the first defendant. It is seen that the original acquiror had mortgaged the suit property as per Exts.A1 and A2. It is also not in dispute that the first defendant had redeemed the mortgage by Exts.B1 and B2. The plaintiff's mother Mary died in the year 1961. Vedamuthu died in 1958. It has to be noted here that the parties are governed by the provisions of the Indian Succession Act. The suit was laid for partition of one half SA 318/98-D 2 share of one acre of property with a building therein. 3. The first defendant resisted the suit. He denied that the plaintiff had any manner of right over the suit property. He claimed that the plaintiff's mother had no subsisting rights over the suit property at the time of her death. Various other contentions are also taken, which are not very relevant for the present purpose. Suffice is to say that it was contended that the plaintiff is not entitled to any reliefs in the suit. 4. On the basis of the pleadings, necessary issues were raised by the trial court. The evidence consists of the testimony of PWs1 and 2 and documents marked as Exts.A1 and A2 from the side of the plaintiff. The defendants had DW1 examined and Exts.B1 to B4(a) marked. It may be mentioned here that during the pendency of the suit, the first defendant died and his legal heirs have been brought on the party array. 5. The trial court, on a consideration of the materials before it, came to the conclusion that the parties SA 318/98-D 3 are governed by the Indian Succession Act and that the claim of the plaintiff is justified and accordingly granted a preliminary decree in his favour, which reads as follows : “In the result, a preliminary decree for partition is passed in the following terms : The plaintiff is allowed to gt the southern one half of the plaint schedule property by metes and bounds and recover possession of the same from defendants 2 to 4 and the additional 5th defendant. The plaintiff is directed to deposit Rs.75/- as one half of the mortgage amount and he is allowed to release the mortgage charge in respect of his share and to get partition of the property by metes and bounds. The plaintiff is also directed to file a final decree application with a commission application within two months for partition of the property by metes and bounds to allot one half share at the southern side of the schedule property without causing prejudice to the northern property owners who are defendants 2 to 4 in this case.” SA 318/98-D 4 6. The disappointed 5th defendant carried the matter in appeal as AS No.185 of 1990 before the District Court, Thiruvananthapuram. The lower appellate court felt that the trial court was erroneous in its findings and accordingly, reversed the judgment and decree of the trial court and dismissed the suit. 7. Notice is seen issued on the following questions of law raised in the second appeal : (a) If succession opens after 1952, due to the death of Vedamuthu, admittedly, a Christian, is not her daughter entitled to a share in her properties ? (b) Is the lower appellate court legally correct in applying the Travancore Christian Succession Act to the properties of Vedamuthu who died after the repealing of the said Act ? (c) Is the finding of the lower appellate court correct in drawing an inference that the right of the plaintiff is barred by adverse possession ? SA 318/98-D 5 (d) On whom does the burden of proof lie to prove that sthreedhanam has been given to the plaintiff's mother ? Can a presumption be drawn that sthreedhanam is paid ?” 8. The learned counsel for the appellant pointed out that the lower appellate court has erred both on facts and in law. It is pointed out that admittedly, the original acquiror of the property, through whom the parties traced their rights, died in 1958, i.e., after the repealing of the Travancore Christian Succession Act and when the law applicable to the parties, was the Indian Succession Act. The lower appellate court was, therefore, not justified in relying on the provisions of the Travancore Christian Succession Act in non-suiting the plaintiff. The finding regarding adverse possession and limitation was without any evidence whatsoever and it was not justified at all. Therefore, it is contended that the decree of the lower appellate court is clearly unsustainable in law. SA 318/98-D 6 9. Per contra, the learned counsel for the respondents pointed out that it was only after Mary's death that the suit was instituted and it was rightly found by the lower appellate court that the provisions of the Travancore Christian Succession Act would apply in this case. It is also contended that it was utilising the funds of the defendants that the redemption was made and that the first defendant was asserting rights over the property, which exclusively belongs to him. The sale deeds mentioned in the pleadings, according to the learned counsel, is adverse to the interest of the plaintiff and that any right of the plaintiff was lost by adverse possession and limitation. 10. Unfortunately, the contentions taken by the learned counsel for the respondents are clearly untenable. There is no dispute regarding the fact that Vedamuthu acquired the property and she had mortgaged the property. She died in the year 1958. At that time, she had two children, namely, the first defendant and Mary, the mother of the plaintiff. The evidence shows that Mary did in 1961. SA 318/98-D 7 That means that Vedamuthu and Mary died after the Travancore Cochin Christian Succession Act stood repealed and the Indian Succession Act became applicable to the parties involved in this proceedings. Succession opens on the death of a person. Therefore, the succession in this case would open in 1958. 11. The redemption of mortgage by the first defendant is as a co-owner and therefore, he cannot claim adverse possession over the plaintiff. At any rate, there is nothing to show that at any point of time, the first defendant had asserted any right hostile to the right of the plaintiff. Of course, the sale deed namely, Ext.B3 would show that there was a transaction by the first defendant in respect of the property in question. But, it has to be noted that the total extent is one acre and the transaction effected by the first defendant is with respect to only 50 cents. It is conceded by the plaintiff that both the plaintiff and the defendants have half share over the suit property and even assuming there was any transaction, it has to be confined SA 318/98-D 8 to the share of the first defendant. The lower appellate court was, therefore, in error in applying the law which was not in force at the relevant time. Accordingly, the judgment and decree of the lower appellate court are set aside and that of the trial court is restored. There will be no order as to costs. P.Bhavadasan, Judge sta SA 318/98-D 9