IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR THURSDAY, THE 3RD MARCH 2011 / 12TH PHALGUNA 1932 RSA.No. 163 of 2011() -------------------------------- AS.47/2008 of ADDITIONAL. DISTRICT COURT-I, PALAKKAD OS.34/2007 of ADDITIONAL MUNSIFF COURT, PALAKKAD .................... APPELLANT/APPELLANT/2ND DEFENDANT -------------------------------------------------------------- UDHAYA BHASKAR, S/O.RANGANATHA MANNADIAR, AGED 50 YEARS, MALLIKA BHAVANAM, VADAKKANTHARA AMSOM, PALAKKAD. BY ADV. SRI.H.BADARUDDIN, SMT.NILA. C.V. RESPONDENTS/RESPONDENTS/PLAINTIFFS AND DEFENDANTS 1 & 3 TO 8 -------------------------------------------------------------------------------------------------------------- 1. JAYALAKSHMI, W/O.S. GOPALAN, AGED 57 YEARS, JAYAM, DHONY P.O., AKATHETHARA AMSOM, PALAKKAD-678 009. 2. R. DAKSHYANI, W/O.K.P. MURALEEDHARAN, AGED 57 YEARS, APSARA, MANAPPULLIKKAVU, YAKKARA EAST, PALAKKAD-678 504. 3. R. NALINI, W/O.SIVAPRASAD, AGED 53 YEARS, AISWARYA KANDAMKULAM, POKKUNNI, VADAVANOOR, PALAKKAD-678 504. 4. SUNDARAPRASAD, S/O.GOPALAKRISHNAN, AGED 24 YEARS, KUTTIPALAM, PANNIPERUNTHALA, CHITTOOR-678 101. 5. JAYALAKSHMI, D/O.GOPALAKRISHNAN, AGED 23 YEARS, RESIDING AT DO. DO. 6. VAISAKH (MINOR), S/O.GOPALAKRISHNAN, AGED 16 YEARS, DO. DO. (REPRESENTED BY NEXT FRIEND R4). RSA.No. 163 of 2011 7. R. RAJAMMAL, W/O.LATE RANGANATHA MANNADIAR, AGED 83 YEARS, MALLIKA BHAVANAM, VADAKKANTHARA ROAD, PALAKKAD-678 012. 8. R. SASIREKHA, D/O.RANGANATHA MANNADIAR, AGED 54 YEARS, DO. DO. 9. R. SUDHANI, D/O.RANGANATHA MANNADIAR, AGED 56 YEARS, DO. DO. 10. R. MALLIKA, W/O.SOMASUNDARAN, AGED 57 YEARS, NOCHUR GRAMAM, KODUVAYUR, CHITTUR-678 501. 11. K. VASUDEVAN, S/O.V. KUMARAN, AGED 39 YEARS, VASUDEVA NIVAS, VALLANGHI, NEMMARA, PALAKKAD-678 508. 12. K. SUNILAKUMARI, W/O.PADMANABHAN, AGED 44 YEARS, KRISHNAKRIPA, SAROJINI NAGAR, NARELA POST, HARYANA STATE. 13. K. SUDHEER, S/O.V. KUMARAN, AGED 71 YEARS, ANTONY NAGAR, CHENNAI-600 109. BY THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 03/03/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: rs M.Sasidharan Nambiar, J. --------------------------------------- R.S.A.No.163 of 2011 --------------------------------------- JUDGMENT Second defendant in O.S.No.34/2007 on the file of Additional Munsiff's Court, Palakkad is the appellant. Respondents 1 to 6 are the plaintiffs and other respondents, the other defendants in the suit. The suit was instituted for partition. First defendant is the mother. She is the wife of Ranganatha Mannadiar. Plaintiffs 1 to 3, defendants 2 to 5 and deceased Kali Selvi and deceased Kumari are admittedly the children of Ranganatha Mannadiar and first defendant. On the death of Kali Selvi, her rights devolved on plaintiffs 4 to 6. Defendants 6 to 8 are the legal heirs of deceased Kumari. Plaintiffs contended that plaint schedule property was purchased in the name of the first defendant by her husband using his own funds and till his death, he was in actual possession and enjoyment of the property and he constructed a house in the property during his life time and on his death, his rights devolved on all his legal heirs and therefore, plaintiffs are entitled to get their share separated. Appellant alone filed a written statement. Appellant contended RSA 163/2011 2 that Ranganatha Mannadiar, the father, had not purchased the property using his own funds and it is the first defendant who had put up the house in the plaint schedule property under the supervision of her husband and the property was purchased by the first defendant using her own funds and the document also stands in the name of the first defendant, which shows that contention of the plaintiffs is not correct. It is contended that as the property is the self acquired property of the first defendant during her life time, the children cannot claim right in the property and hence, it cannot be divided and therefore, the suit is not maintainable. Though first defendant mother did not file a written statement, she was examined as DW1. Appellant was also not examined. A witness was also examined on the side of the defence. 2. Learned Munsiff, on the evidence, found that though the property was purchased in the name of the first defendant, it was purchased by her husband and it should enure to the benefit of the first defendant and her children. It is, therefore, found that property is liable to be divided into ten equal shares and one such share is to be allotted to each of plaintiffs 1 to 3, one share RSA 163/2011 3 together to plaintiffs 4 to 6, one share each to defendants 1 to 5 and the remaining one share to defendants 6 to 8. Appellant challenged the judgment before Additional District Court, Palakkad in A.S.No.47/2008. Learned Additional District Judge, on re-appreciation of evidence, confirmed the findings of the learned Munsiff and dismissed the appeal. It is challenged in the second appeal. 3. Learned counsel appearing for the appellant was heard. 4. Argument of the learned counsel is that even though the suit was filed for partition, the title deed of the plaint schedule property, which, admittedly, stands in the name of the first defendant was not produced and when the title deed shows that consideration was paid by the first defendant, without seeking a declaration that acquisition was by Ranganatha Mannadiar, the father, the property acquired by the mother cannot be divided during her life time. Learned counsel also argued that as first defendant did not file a written statement, her evidence should not be taken as an admission in the light of the provisions of Code of Civil Procedure and therefore, a substantial question of law is involved in the appeal. RSA 163/2011 4 5. Though the title deed, by which the plaint schedule property was purchased, is not produced either by the plaintiffs or by the second respondent, who alone contested the suit, it is pleaded in the plaint itself that the property was acquired in the name of the first defendant mother. It is specifically pleaded that first defendant had no funds of her own and the consideration was paid by the husband and he has been in possession and enjoyment of the property and the house was also constructed by the husband. What was contended by the appellant in the written statement was that property was purchased by the mother using her own funds and the building was also constructed by the mother and therefore, it is not available for partition. 6. Though the title deed was not produced, first defendant mother was examined as DW1. Being the person in whose name the property stands and who is a sharer, even though no written statement was filed, she could be examined as a witness in a suit for partition, all sharers, though a defendant, is similar to the position of a plaintiff. When the crucial question involved in the suit is whether the acquisition of plaint schedule property was by the first defendant using her own funds or by the husband of the RSA 163/2011 5 first defendant with his funds in the name of the wife, the evidence of DW1 is the most relevant evidence. Evidence of DW1 establishes that though the property was acquired in her name, it was acquired by her husband in her name. The non filing of a written statement would only mean that first defendant has not disputed the contention raised in the plaint that the property was acquired by the husband and the funds for the acquisition was also that of husband. Her evidence as DW1 establishes that the property was purchased by her husband using his own funds. In such circumstances, I find no substantial question of law involved in the appeal. As per the preliminary decree, the properties were divided equally to the first defendant and all her children. Appeal is dismissed. 3rd March, 2011 (M.Sasidharan Nambiar, Judge) tkv