IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN THURSDAY, THE 18TH NOVEMBER 2010 / 27TH KARTHIKA 1932 AS.No. 725 of 1996()& CROSS OBJECTIONS --------------------------------------------------- OS.228/1994 of II ADDL.SUB COURT,ERNAKULAM .................... APPELLANT(S)/DEFENDANTS 1 TO 4 ------------------------------------------- 1. N.O.PETER, S/O.LATE OUSO, NEDUMPARAMBIL HOUSE, MARADU P.O., MARADU VILLAGE , KANAYANNUR TALUK. 2. N.O.ROCKEY, S/O. LATE OUSO OF DO. DO. 3. N.O.JOSEPH, S/O.LATE OUSO, DO. THOTTAKKATTUKARA ALWAYE VILLAGE, ALWAYE TALUK. *4. N.O.MICHAEL, S/O.LATE OUSO, DO. HOUSE, KUNDANNOOR DESOM, MARADU P.O., MARADU VILLAGE, KANAYANNUR TALUK.(DIED). * ADDL. A5 IMPLEADED 5. P.O.MARY, AGED 52, W/O. LATE N.O.MICHAEL, NEDUMPARAMBIL HOUSE, KUNDANNOOR, MARADU VILLAGE, KANAYANNUR TALUK. BY ADV. SRI.K.A.SEBASTIAN RESPONDENT(S)/PLAINTIFF AND DEFENDANTS 5 TO 9. ----------------------------------------------------------------- 1. N.O.LILLY, W/O.,MANUEL, VALLANAT HOUSE, CHALIKKAVATTOM KARA, VENNALA P.O., COCHIN - 28. 2. N.O.MARY, W/O.GEORGE, PUTHENVEETTIL HOUSE, NETTOOR DESOM, NTTOOR P.O., MARADU VILLAGE, KANAYANNUR TALUK. 3. N.O.ELIZABETH, W/O.JOHN, ILLIPARAMBIL HOUSE, ELAMAKKARA, COCHIN - 26. svs .......2/-... ...2... AS.No. 725 of 1996 4. N.O.JELTROOD, W/O.GEORGE, KUNNEL HOUSE, THURAVOOR P.O., NEAR MANAKKOTTAM CHURCH, THURAVOOR DESOM, DO. VILLAGE, SHETHALA TALUK. 5. N.O.JESSY, D/O.OUSO, NEDUMPARAMBIL HOUSE, KUNDANNOOR DESOM, MARADU P.O., MARADU VILLAGE, KANAYANNUR TALUK. 6. N.O.METILDA, W/O.JOSY, KUTTIPURATH HOUSE, MUNDAMVELIL P.O., NEAR MANASSERY CHURCH. ** ADDL.R7 & R8 IMPLEADED 7. JEEVAN, AGED 39, S/O.LATE N.O.MICHAEL, NEDUMPARAMBIL HOUSE, KUNDANNOOR, MARADU VILLAGE, KANAYANNUR TALUK. 8. VIJI, AGED 34, S/O. LATE N.O.MICHAEL. NEDUMPARAMBIL HOUSE, KUNDANNOOR, MARADU VILLAGE, KANAYANNUR TALUK. ** ADDL. A5 & ADDL.R7, R8 ARE IMPLEADED AS PER ORDER DATED 18/11/2010 IN I.A.NO.2603/2009. R5 BY ADVS.SRI.S.SREEKUMAR SRI.P.MARTIN JOSE SRI.P.PRIJITH SRI.S.VAIDYANATHAN R3 & R6 BY ADVS. SRI.SHAJI P.CHALY SRI.C.K.GOVINDAN R7 & R8 BY ADVS. SRI.T.K.RADHAKRISHNAN SRI.S.SREEKUMAR THIS APPEAL SUITS HAVING BEEN FINALLY HEARD ON 18/11/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ORDER ON C.M.P. NO. 4385/1996 IN A.S.NO. 725/1996 DISMISSED 18/11/2010 SD/- M.N. KRISHNAN, JUDGE /TRUE COPY/ P.A. TO JUDGE svs/ M.N. KRISHNAN, J. ........................................... A.S.NO.725 OF 1996 & CROSS OBJECTIONS ............................................. Dated this the 18th day of November, 2010. J U D G M E N T This is an appeal preferred against the judgment and decree of the Second Additional Subordinate Judge, Ernakulam in O.S.No.228/1994. Cross objections are filed by the first respondent in the appeal as well as respondents 2 to 4 and 6 in the appeal. The brief facts necessary for the disposal of the appeal are stated as follows: 2. The property sought to be partitioned, according to the plaintiff, belonged to the father of the plaintiff and the defendants namely late Ouso, who died intestate on 28.1.1975. The mother also died on 22.3.1991. So it is contended that all the 10 children of Ouso are entitled to one out of 10 shares each in the property and therefore, the property is sought to be divided accordingly. Defendants 1 to 4 filed a written statement contending that daughters were given in marriage paying sthridhanam and ornaments and thereafter they have no right to inherit the property. It is also contended : 2 : A.S.NO.725 OF 1996 & CROSS OBJECTIONS that right of the plaintiff if any over the property is lost by ouster and limitation. The 4th defendant who is residing in the family house would contend that he had made some additions extending to Rs.35,000/= and that the second defendant had constructed a separate residential building in item 3 at his expense. It is also contended that total extent of the property available for division in item 7 is only 1 acre and 86 cents. The 5th defendant also would contend regarding partition and separation as well as defendants 6 and 7. 3. The trial court on a consideration of the entire materials found that the plaint schedule items 1 to 6 and 1 acre and 86 cents in item 7 are liable to be divided. It is also contended that the building put up by the second defendant and the improvements made by the 4th defendant in the family house will have to be excluded from division. There is also a direction for past and future profits so fas as the plaintiff and defendants 6,7 and 9 are concerned. It : 3 : A.S.NO.725 OF 1996 & CROSS OBJECTIONS is also made clear that defendants 6,7 and 9 will be only entitled to future profits. It is against that decision, the appeal is preferred by defendants 1 to 4. 4. The contentions of the defendants are that ladies were given in marriage with ornaments and sthridhanam and therefore they are entitled to get right over the property. So they challenged the very partibility of the property. Cross objectors namely the first respondent who is none other than the plaintiff would contend that the extent of the property ordered to be divided under item 7 is incorrect. Respondents 2 to 4 and 6 in the appeal would contend that they also contend regarding the extent of the property etc. 5. Let me first consider about the arguments in the appeal. Admittedly there are 7 items of property included in the plaint schedule. The trial court found that the properties described as items 1 to 6 and 1 acre and 86 cents of property in item 7 alone are available for division on : 4 : A.S.NO.725 OF 1996 & CROSS OBJECTIONS the ground that the plaintiff has not succeeded in proving any document to evidence that deceased Ouso was in possession of more than 1 acre and 86 cents in item 7 of the plaint schedule property. By virtue of the decision reported in Mary Roy v. State of Kerala it has been held that: “therefore on coming into force of Part B State (Laws) Act, 1951, the Travancore Christian Succession Act 1092 stood repealed and Chapter II of Part V of Indian Succession Act, 1925 became applicable and intestate succession to the property of members of the Indian Christian Community in the territories of the erstwhile State of Travancore was thereafter governed by Chapter II of Part V of the Indian Succession Act, 1925”. 6. By virtue of Section 39 of the said Act, the widow is entitled to one third and remaining two third is to be divided equally among the children. Here the mother is also no more and therefore he has left only 10 children. So by virtue of Section 39, all of them are entitled to get equal shares and therefore, properties have to be divided into 10 : 5 : A.S.NO.725 OF 1996 & CROSS OBJECTIONS equal shares and one such share shall be allowed to each of the children. So the finding of that question does not call for any interference. 7. Let me consider about the other objections as well. It is contended that the entire property in item 7 has not been ordered to be divided and so it requires interference. The trial court has found that it is for the plaintiff to establish that Ouso was in possession of more extent of property so as to make division. The trial court held that the documents available would reveal that Ouso was only in possession of 1 acre and 86 cents of property in item 7 of the plaint schedule. When it is so, the finding of the trial court that it alone is available for division under item 7 cannot be said to be incorrect. So the said finding also confirmed. 8. Lastly the question is regarding improvements made by the 4th defendant in the house and also construction of a new house made by the second defendant in item 3. It is also admitted by the plaintiff that improvements had been effected : 6 : A.S.NO.725 OF 1996 & CROSS OBJECTIONS to the family house as well as a new house has been constructed by the second defendant in item 3 of the plaint schedule. What the trial court has done is to exclude valuation of those when the property is partitioned. But it has to be made clear that as far as possible the house in item 3 and the family house had to be alloted to the share of 2nd and 4th defendants respectively. But it is made clear that the land wherein houses are situated is to be valued for the purpose of arriving at the valuation of the property. 9. As stated by me earlier, there is an interse dispute that had arisen after the filing of the appeal on account of the death of the 4th appellant. Supplemental 5th appellant would contend that she is the widow of the 4th appellant and supplemental respondents 7 and 8 are the children of the 4th appellant in his first wife. But the children would contend that the 5th appellant is not the wife. Therefore it is a matter of interse dispute between the supplemental 5th appellant and respondents 7 and 8. This has to be adjudicated at the : 7 : A.S.NO.725 OF 1996 & CROSS OBJECTIONS stage of final decree proceedings. So from these discussions I do not find anything to interfere with the judgment and decree passed by the trial court. The appeal as well as cross objections fail. They are dismissed but under the circumstances without any order as to costs. M.N. KRISHNAN, JUDGE. cl : 8 : A.S.NO.725 OF 1996 & CROSS OBJECTIONS M.N. KRISHNAN, J. ........................................... A.S.NO.725 OF 1996 & CROSS OBJECTIONS ............................................. 18th day of November, 2010. J U D G M E N T