IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.RAMKUMAR THURSDAY, THE 20TH NOVEMBER 2008 / 29TH KARTHIKA 1930 RSA.No. 725 of 2008(C) ------------------------------ AS.366/2004 of I ADDL.DISTRICT COURT, KOZHIKODE OS.236/1977 of II ADDL.SUB COURT,KOZHIKODE .................... APPELLANT/ APPELLANT/ DEFENDANT NO.1 : -------------------------------------------------------- POONCHOLA SADANANDAN, S/O.RAMAN, AGED 68 YEARS, PANNIYANKARA AMSOM, DESOM, KOZHIKODE TALUK. BY ADV. SRI.JACOB SEBASTIAN RESPONDENTS/RESPONDENTS/ PLAINTIFFS AND DEFENDANTS : -------------------------------------------------------------------------------- 1. POONCHOLA VIJAYAN, S/O.SADANANDAN, AGED 72 YEARS, CHERUVANNUR AMSOM DESOM, KOZHIKODE TALUK. 2. POONCHOLA SANTHA, AGED 65 YEARS, D/O.MUKKATTIL CHANTHUKUTTY, CHERUVANNUR AMSOM DESOM, KOZHIKODE TALUK. 3. POONCHOLA JAYARAJAN, S/O.SANTHA, AGED 35 YEARS, CHERUVANNUR AMSOM DESOM, KOZHIKODE TALUK. 4. E.P.SETHUMADHAVAN NAIR (DIED), S/O.RAMANATHA IYER, AGED 66 YEARS, SANKTHI AUTOMOBILES, KASABA AMSOM DESOM, KOZHIKODE TALUK. RSA.No. 725 of 2008 5. POONCHOLA SOUMINI, D/O.POONCHOLA MADHAVI AGED 64 YEARS, CHERUVANNUR AMSOM AND DESOM, KOZHIKODE TALUK. 6. MEENAKSHI, AGED 51 YEARS, D/O.GOPALA IYER, 19/421, KAILASA BHAVAN, P.O.CHALAPPURAM, KOZHIKODE. THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 20/11/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: V.RAMKUMAR, J. ---------------------------------- R.S.A. No.725 OF 2008 ---------------------------------- Dated this the 20th day of November, 2008 JUDGMENT The first defendant in O.S.No.236 of 1977 on the file of the Second Additional Sub Court, Kozhikode is the appellant in this Second Appeal. The aforesaid suit was one for partition and separate possession of the plaintiffs share over the plaint schedule property. The plaintiff in the suit is none other than the son of the petitioner herein. A preliminary decree was passed in the suit. Final decree application was filed by the petitioner's sister, Soumini on the strength of an assignment deed executed by her mother, Madhavi, who was the second defendant in the suit. Ext.A1 was the said assignment deed registered as document No.357/1988 executed on 09.02.1988. The petitioner filed I.A.No.649 of 2001 for passing an additional preliminary decree on the ground that consequent to the death of his mother Madhavi, there was fluctuation of shares whereby her half right over the property had devolved equally among her son and daughter, who are the petitioner herein and the said Soumini. In the final decree application R.S.A.725 of 2008 2 Soumini opposed the application contending inter alia that Madhavi had during her life time executed Ext.A1 document assigning her share in favour of Soumini and therefore there was no question of any fluctuation of shares. The petitioner resisted the assignment deed on the ground that it was not supported by consideration and that it was created fraudulently. The final decree court rejected the said contention and held that as per Ext.A1 sale deed which was validly executed by Madhavi, the deceased second defendant, in favour of Soumini, her share had come to vest in Soumini and that therefore there was no question of any fluctuation of shares necessitating a supplemental preliminary decree. I.A.No.649 of 2001 was thus dismissed. Aggrieved by the order passed by the final decree court, the petitioner filed an appeal before the District Court, Kozhikode as A.S.No.366 of 2004. As per judgment dated 27.11.2007, the learned Additional District Judge dismissed the appeal confirming the findings recorded by the final decree court. Hence, this Second Appeal. 2. Learned counsel appearing for the appellant assailed the findings recorded by the courts below contending R.S.A.725 of 2008 3 inter alia that Ext.A1 was fraudulently executed and since it is not supported by consideration, it is null and void and it did not confer any title over the mother in favour of Soumini. 3. Both the courts have after a careful evaluation of the oral and documentary evidence in the case come to the conclusion that Ext.A1 sale deed dated 09.02.1988 was validly executed by deceased second defendant, Madavi, in favour of her daughter Soumini assigning her all shares over the plaint schedule property. The said findings are pure findings of fact. No question of law, much less, any substantial question of law arises for consideration in this Second Appeal. The questions of law formulated in the memorandum of Second Appeal also do not arise for consideration. This Second Appeal is accordingly dismissed in limine. V.RAMKUMAR, JUDGE pac