IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.R.RAMAN & THE HONOURABLE MR. JUSTICE P.BHAVADASAN FRIDAY, THE 26TH JUNE 2009 / 5TH ASHADHA 1931 RFA.No. 492 of 2005() --------------------- AGAINST THE ORDER IN IA 5070/04 IN OS.269/2003 of II ADDL.SUB COURT,KOZHIKODE .................... APPELLANT/DEFENDANTS 1 TO 4 ----------------------------------------------- 1. PALAT RAVEENDRAN, S/O.MOIOTHORAN, VAZHAVALAPPIL PARAMBA, PANNIYANKARA AMSOM DESOM, CHAKKUMKADAVU, KALLAI P.O., KOZHIKODE. 2. PALAT SUREENDRAN, S/O.MOOTHORA, VAZHAVALAPPIL PARAMBA, PANNIYANKARA AMSOM DESOM, CHAKKUMKADAVU, KALLAI P.O., KOZHIKODE. 3. PALAT SARASWATHI, D/O.MOOTHORAN, VAZHAVALAPPIL PARAMBA, PANNIYANKARA AMSOM DESOM, CHAKKUMKADAVU, KALLAI P.O., KOZHIKODE. 4. PALAT MEENAKSHI, W/O.MOOTHORAN, VAZHAVALAPPIL PARAMBA, PANNIYANKARA AMSOM DDESOM, CHAKKUMKADAVU, KALLAI P.O., KOZHIKODE. BY ADV. SRI.P.V.KUNHIKRISHNAN RESPONDENT(S): PLAINTIFF AND DEFENDANT NO.5 AND 6 ------------------------------------------------------------------------------------ 1. PALAT SAMIKUTTY, S/O.PALAT KUTTAMAN, VAZHAVALAPPIL PARAMBA, PANNIYANKARA AMSOM DESOM, CHAKKUMKADAVU, KALLAI P.O., KOZHIKODE. 2. PALAT NAYADI @ P.M.KOYA, S/O.KUTTAMAN, KOVILAKAM PARAMBU, PANNIYANKARA AMSOM, MEENCHANDA P.O., ARTS COLLEGE, KOZHIKODE. 3. PALAT RAMADAS, S/O.KUTTAMAN, VAZHAVALAPPIUL PARAMBA, PANNIYANKARA AMSOM DESOM, CHAKKUMKADAVU, KALLAI P.O., KOZHIKODE. ADV. SMT.PRABHA R.MENON FOR R1 SRI.M.KRISHNAKUMAR FOR R1 THIS REGULAR FIRST APPEAL HAVING BEEN FINALLY HEARD ON 22/06/2009, THE COURT ON 26/06/2009 DELIVERED THE FOLLOWING: P.R. RAMAN & P. BHAVADASAN, JJ. - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - R.F.A. No. 492 of 2005 - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 26th day of June, 2009. JUDGMENT Bhavadasan, J, Defendants 1 to 4 in O.S. No.269 of 2003 before the Additional Sub Court, Kozhikode, who suffered a preliminary decree for partition are the appellants. The parties and facts are hereinafter referred to as they are available before the court below. 2. According to the plaintiff, plaint A schedule property was acquired by Kuttaman, father of the plaintiff and defendants 5 and 6 and grand father of defendants 1 to 4, who acquired it under document No.3196/1919. On the death of Kuttaman, the property devolved on his sons, defendants 5 and 6 and deceased Moothoran, father of defendants 1 to 4. After the death of Kuttaman, these persons continued to be in joint possession of the property. It is averred in the plaint that the eldest son Moothoran obtained purchase certificate as per Ext.B2 dated 11.3.1976 on behalf of all the co-owners. On his death in 1999, the rights devolved on defendants 1 to 4 and the plaint B schedule are R.F.A. 492/2005. 2 movables, which are available in the plaint schedule property. Claiming a share in the property, the suit was laid. 3. Defendants 1 to 4 contested the suit and pointed out that the property belonged exclusively to their father Moothoran, who died in 1999. Consequent on his death, property devolved on them alone. It was admitted by them that the property was acquired by their grandfather Kuttaman in 1919 as per the document made mention of in the plaint. They would say that there were several transactions thereafter, which has been suppressed in the plaint and the property ultimately come to vest in Moothoran. Defendants 1 to 4 continued to be in joint possession after the death of Moothoran and the property is not partible. The plaintiff has no right over the suit property. 4. It appears that subsequently the plaint was amended and additional written statement was filed. 5. For the purpose of the suit, the court below had P.W.1 examined and Ext.A1 marked on the side of the plaintiff. Defendants examined P.W.1 and had Exts.B1 to B4 marked. Ext.C1 is the commission report. The court below on an appreciation of the evidence came to the conclusion that the purchase certificate said to have been R.F.A. 492/2005. 3 obtained by Moothoran was on behalf of the co-owners and the plaintiff too had a share in the property, which was taken in by Ext.B2. Accordingly preliminary decree was passed allotting one fourth share to the plaintiff. The said judgment and decree are assailed. 6. There is no dispute between the parties that the property originally belonged to Kuttaman, who acquired in 1919 as per a kanam deed. Kuttaman died in 1942 and his wife in 1943. There is no dispute regarding the fact that if as a matter of fact Moothoran, father of defendants 1 to 4, who are the appellants herein did not possess exclusive right over the property, plaintiff is entitled to one fourth share. The contention of defendants 1 to 4 appears to be that by virtue of the subsequent deeds the property came to vest exclusively with Moothoran, who was in possession of the same. He obtained Ext.B2 purchase certificate from the Land Tribunal in O.A. No.958/76. Since the purchase certificate stands in the name of Moothoran alone, these defendants contended that none other than defendants 1 to 4 had any manner of right over the property. 7. The court below found that Ext.B1 produced by the defendants themselves betray their claim. That was a deed executed by R.F.A. 492/2005. 4 one of the co-owners in favour of Moothoran. Under those circumstances, the court below was inclined to hold that even though Ext.B2 purchase certificate stood in the sole name of Moothoran, it enured to the benefit of all the co-owners. The court below also found that defendants 1 to 4 were unable to show that Moothoran had exclusive right over the property. 8. It can be seen from the evidence that there is nothing to indicate that the property at any point of time came to vest exclusively with Moothoran. Even though the contesting defendants have stated that by subsequent deeds the property came to vest solely with Moothoran, they were unable to establish the said fact. Even though there was a contention that the property was the subject matter of a court sale, the contesting defendants failed to establish that also. As rightly found by the lower court even if Ext.B2 stands in the sole name of Moothoran, it does not matter because he would deemed to have obtained it on behalf of all the co-owners. He cannot claim exclusive right. 9. It was in the above circumstances, the court below was inclined to hold that the plaintiff too had a share in the suit property. It R.F.A. 492/2005. 5 also needs to be noticed that while the first appeal was pending, final decree has been passed. Considering the above circumstances also and the evidence on record, it could not be said that the finding of the court below is unjustified and illegal. The court below was perfectly justified in granting one fourth share to the plaintiff and passing the preliminary decree. This appeal is without merit and it is accordingly dismissed. There will be no order as to costs. P.R. Raman, Judge P. Bhavadasan, Judge sb.