IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE HARUN-UL-RASHID TUESDAY, THE 16TH JUNE 2009 / 26TH JYAISHTA 1931 RSA.No. 1070 of 2008() ---------------------- AS.37/2003 of SUB COURT,NEYYATTINKARA OS.212/1998 of I ADDL.M.C.,NEYYATTINKARA .................... APPELLANTS/APPELLANTS/DEFENDANTS -------------------------------- 1. NELSON, S/O. ESREL, LATHIKA VILASOM, MYLAKKARA, MUKUNDARA DESOM KALLIKKADU, VILLAGE, NEYYATTINKARA TALUK, THIRUVANANTHAPURAM. 2. WILSON, S/O. ESREL, GRACE COTTAGE, PUTHICHAKKONAM MURIYIL, VETTIYOORKAVU, RANDAMADA VILLAGE, THIRUVANANTHAPURAM. 3. STEPHENSON, S/O. ESREL,PANDARAVILA PUTHEN VEEDU, MUKUNDARA DESOM, KALLIKADU VILLAGE, TIRUVANANTHAPURAM. 4. ROBINSON, RESIDING AT DO...DO... 5. BESON, RESIDING AT DO....DO..... 6. DENNISON, RESIDING AT DO....DO.... 7. LILLY STELLAMMA, ST. MARY VILLA, NEAR KATTAKKADA POLICE CIRCLE OFFICE, THIRUVANANTHAPURAM. 8. MANAS RADHA, W/O. LATE ESREL JOHNSON RESIDING AT MYLAKARA, PANDARAVILA PUTHEN VEEDU, MUNDARA DESOM, KALLIKKADU VILLAGE, THIRUVANANTHAPURAM. 9. SMITHA, D/O. RADHA, RESIDING AT DO..DO. 10. SAJITH JOHN, S/O. JOHNSON, RESIDING AT DO...DO.... 11. SAJITHA , D/O. RADHA, RESIDING AT DO.. BY ADV. SRI.K.B.PRADEEP RESPONDENT(S): ---------------------- 1. SANTHAPPU MERCY LAWRANCE, MANACHADIVILA VEEDU, MUKKOLAKKAL, KARIPPOOR VILLAGE, NEDUMANGADU TALUK, THIRUVANANTHAPURAM. 2. RAJI SAROJAM GLADIS, GRACE COTTAGE, PUTHICHAKKONAM MURIYIL, KANJIRAPPARA WARD, PEROORKKADA, THIRUVANANTHAPURAM. 3. SUMANGALA LEELAKUMARI, MYLAKKARA LATHIKA VILASOM MUKUNDARA DESOM, KALLIKKADU VILLAGE, THIRUVANANTHAPURAM. 4. LEELAKUMARI RESIDING AT -DO- DO- 5. KUMARAN BOBAN (MINOR), RESIDING AT -DO- -DO- 6. DHANAM DHARMADAS, RESIDING AT -DO- -DO- 7. SUMANGALA LATHIKAKUMARI -DO - -DO- ADV. SRI.K.RAJESH KANNAN FOR R1 SRI.HARIKUMAR.S. FOR R1 SRI.A.S.SHAMMY RAJ FOR R1 THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 16/06/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: HARUN-UL-RASHID, J. ---------------------------------------- R.S.A. No. 1070 of 2008 ---------------------------------------- Dated this the 16th day of June, 2009 JUDGMENT This Second Appeal is directed against the judgment and decree in A.S. 37/2003 on the file of the Subcourt Neyyattinkara which arises from the judgment and decree in O.S. No. 212/1998 on the file of the 1st Additional Munsiff's Court, Neyyattinkara. The trial court passed a preliminary decree for partition dividing the plaint schedule property into 9 equal shares, allotting 1/9 th share to the plaintiff separately and 1/9 th share each to the brothers and sisters of the plaintiff including the legal heirs of deceased brother of the plaintiff, Johnson. The preliminary decree passed by the trial court was confirmed in appeal by the lower appellate court. Hence this Second Appeal.Defendants 1 to 11 in the suit are the appellants herein. The parties hereinafter referred to as plaintiff and defendants as arrayed in the suit. 2. Defendants 1 to 7 are brothers and sisters of the plaintiff and defendants 8 to 11 are the legal heirs of deceased Johnson brother of the plaintiff and defendants 1 to 7 . Defendants 12 to 17 are impleaded in the suit as they were assignees of some properties out of the plaint schedule by defendants 1 and 2. The trail court allotted 1/9 th share to the plaintiff and 1/ 9 th share each to defendants 1 to 7 and 1/9 th share to defendants 8 to 10 together. The defendants objected the separate allotment of 1/9 th share R.S.A. 1070 of 2008 -2- to the plaintiff. It is an admitted fact that the plaint schedule property belonged to the father of the plaintiff and defendants 1 to 7. It cannot be disputed that all the children male or female are not entitled to equal shares over the plaint schedule property left behind by their parents. 3. The defendants contended that out of the property in item No.3 of plaint schedule 2 acres on the western side was gifted by their father to the 7th defendant as per gift deed No.3549/69 dated 11.9.1969 and therefore only the balance extent of 92 cents is available in that item, that the properties left behind by their father are not partiable, the plaintiff is not entitled for any share as she was given streedhanam at the time of marriage, that the plaint schedule properties were exclusively enjoyed by the 2nd defendant and his brother as absolute owners, that the plaintiff filed the suit after 22 years of the death of their father and thus the suit is barred by limitation. The 2nd defendant and his brother also denied the plaintiff's claim and contended that since they were in absolute possession and enjoyment of the plaint schedule properties , the plaintiff's right was lost by ouster. 4. The courts below after appreciating the evidence on record held that a co-owner cannot claim bar of limitation or ouster against other co-owners, that the partition deed of 1978 was executed by defendants 1 to 6 and deceased Johnson in which the plaintiff was not a party and that the same was not binding on the plaintiff. The courts below also noted R.S.A. 1070 of 2008 -3- that there was no evidence to show that the plaintiff was given her share as streedhanam at the time of her marriage and the said partition deed was not produced by the parties. The courts below also concurrently held that the the plaintiff is entitled for the separate allotment of her 1/ 9 th share. I have heard the learned counsel for the appellants/ defendants 1 to 11 and examined the facts, evidence circumstances and contentions of the learned counsel. I find that no sustainable grounds are urged by the learned counsel for interfering with the judgments and decrees passed by the courts below to invoke Section 100 of the C.P.C. It is not possible to take a different view from the views taken by the courts below. No question of law much less any substantial question of law arises for consideration in this appeal. This appeal fails and accordingly dismissed. (HARUN-UL-RASHID, JUDGE) es. HARUN-UL-RASHID, J. --------------------------- R.S.A. No. 1070 of 2008 ---------------------------- JUDGMENT 16th June , 2009