IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.BHAVADASAN THURSDAY, THE 15TH JULY 2010 / 24TH ASHADHA 1932 RSA.No. 645 of 2005() -------------------------------- AS.12/2003 of ADDL.SUB COURT,KOCHI OS.104/2002 of PRL.MUNSIFF COURT, KOCHI .................... APPELLANT (S): APPELLANT/PLAINTIFF: ----------------------------------------------------- M.S. THULASIDAS, S/O. LATE MADHAVAN, RESIDENT OF C.E.X/171 AND 172, AMARAVATHY, FORT COCHIN, TEMPORARILY AT KURUMPATHU HOUSE, XIX/267, KAVUMPADY, MUVATTUPUZHA. BY ADVS. SRI.V.N.SWAMINATHAN SRI.S.DILEEP SRI.FELIX.K.J. RESPONDENT(S)/ RESPONDENT/DEFENDANTS -------------------------------------------------------------------- 1. M.S. RAMANATHAN, S/O. LATE MADHAVAN, RESIDING AT POOVAMPALLY PARAMBU, NEAR DETHADORA TEMPLE, ELAMAKKARA P.O., KOCHI-26. 2. M.S. JANARDHANAN, S/O. LATE MADHAVAN, RESIDING AT THUNDIPARAMBIL, C.C.19/348 (C), WATERLAND ROAD, RAMESWARAM VILLAGE, PALLURUTHY, KOCHI. 3. MRS. BHUMIDEVI, ALIAS LATHA, D/O.LATE MADHAVAN AND W/O. SURESH, RESIDING AT KOTHOTIPARAMBU, C.C.23/2152, MARUNNUKADA BUS STOP, RAMESWARAM VILLAGE, KOCHI. 4. M.S. JANAK RAO, S/O. LATE MADHAVAN, C.C.X/171 AND 172, S.J.D. STREET, AMARAVALLY, FORT KOCHI VILLAGE, KOCHI TALUK. R3 BY ADV. SRI.G.KRISHNAKUMAR THIS REGULAR SECOND APPEAL HAVING BEEN FINALLY HEARD ON 15/07/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: tss P.BHAVADASAN, J. ------------------------- R.S.A No. 645 of 2005 -------------------------- Dated this the 15th July, 2010 J U D G M E N T Plaintiff in a partition suit, who has been non-suited by the courts below, is the appellant. 2. The plaintiff and defendants are the children of late D.S Madhavan and Ahallya. Late Madhavan was the owner of the plaint schedule property and the building. The suit was instituted for partition on the allegation that the plaint schedule property belonged to late Madhavan and after his death, plaintiff and defendants who are entitled to get 1/5 share each. 3. Defendants resisted the suit. Except the 2nd defendant, all others filed separate written statement. The written statement filed by the 1st defendant in fact supported the claim of the plaintiff. Third defendant filed written statement contending that the property was the self acquired property of Madhavan and that Madhavan had executed a will. As per the will, defendants 3 and 4 got right in the property and property was not available for partition. The written statement filed by the R.S.A No. 645 of 2005 2 4th defendant did support the claim of the plaintiff. Thereafter the plaintiff came forward with a replication in which he alleged that Madhavan had no right to bequeath the entire plaint schedule property in favour of defendants 3 and 4 since it was ancestral property is in the hands of Madhavan. According to the plaintiff, the will relied on by the defendants 3 and 4 can be no help and does not confer any right on them. 4. Based on the pleadings issues were raised by the trial court. The evidence consists of the testimony of PW1 and Exts.A1 to A6 marked from the side of the plaintiff. Defendants had examined DW1 and DW2 and Exts.B1 and B5 were marked. 5. The trial court on evaluation of the evidence came to the conclusion that property was self acquired property of Madhavan and he had absolute right over the same. The will in favour of defendants 3 and 4 relied on by them was accepted and plaintiff was non-suited. 6. Plaintiff carried the matter in appeal as A.S 12/2003 before the Sub Court, Kochi. The lower appellate R.S.A No. 645 of 2005 3 judge on independent evaluation of the evidence concurred with the trial court. The lower appellate court has observed that the claim that the property was ancestral property in the hands of Madhavan cannot be accepted. The court below was of the opinion that there was no clear pleadings to that effect. Plaintiff relied on Ext.A3 document. The lower appellate court after going through the same came to the conclusion that Madhavan succeeded in his claim in that suit based on the plea of adverse possession and limitation. Therefore, the lower appellate court was of the opinion that the claim of the plaintiff that the property was ancestral property in the hands of Madhavan cannot be countenanced. The appeal was dismissed. 7. Plaintiff has come to this court with concurrent findings against him. The following questions of law have been raised in this appeal. "i. Whether court below misread and interpreted the pleadings? ii. Whether the coparcenary character and right in the property by birth of one's own descendants can be defeated by making a successful plea of adverse possession against another coparcener? R.S.A No. 645 of 2005 4 iii. Whether coparcenary character of the property can be altered by the acts of one of the coparceners " 8. Learned counsel appearing for the appellant pointed out that both the courts below were wrong in not accepting the case putforward by the plaintiff that property in the hands of Mahdavan was ancestral property. The records indicate that property was outstanding with father of Madhavan and consequent on his death Madhavan came into possession. 9. Learned counsel pointed out that replication filed by the plaintiff before the trial court clearly explained the nature of the property in the hands of Madhavan. Merely because particulars were given in the replication it does not mean that it need not be considered. In support of his contentions regarding pleadings, learned counsel placed reliance on the following decisions in Mukundi Lal Vs. Ram Pyari [1971 ALL LJ 137] Jugal Kishore Vs. M.T. Goniti Kuar [AIR 1914 ALLAHABAD 479] Someshwar Dutt Vs. Tribhawan Dutt [AIR 1934 PC 130] Kedar Lal Seal & R.S.A No. 645 of 2005 5 another Vs. Harilal Seal [ AIR 1952 SC 47] Bhagwati Prasad Vs. Chandra Maul [ AIR 1966 SC 735]. 10. Learned counsel for the plaintiff contended that it is not correct to say that averments in the plaint and replication are inconsistent. According to the counsel it is not stated in the plaint that property was self acquired property of Madhavan. Therefore, there is no contradiction between the plaint and replication . According to the counsel, the court below ought to have accepted the case putforward by the plaintiff. 11. Per contra learned counsel for the respondents pointed out that a new plea could not be raised by filing a mere replication and plaintiff was bound to get the plaint amended so as to incorporate fresh pleadings and also seek appropriate reliefs. In support of his claim, learned counsel relied on the decisions reported in A Gangadhara Rao Vs. Gangarao [1968 A.P 291] 12. It is also contended by the counsel that by replication the plaintiff cannot be allowed to withdraw the admission made in the plaint or take contentions which is R.S.A No. 645 of 2005 6 totally inconsistent. In support of his contentions, learned counsel relied on the decision reported in Canara Bank Vs. Standard Chartered Bank [2002 SC 132]. 13. Learned counsel pointed out that the courts below were justified in holding that the property was self acquired property of Madhavan especially in view of the pleadings in the plaint and evidence adduced by the parties. 14. The plaint mentioned that property belonged to Madhavan and consequent on his death property devolved on his legal heirs namely the plaintiff and defendants. Therefore the plaintiff and defendants are entitled to get 1/5 share each. Defendants 3 and 4 filed written statement pointing out that Madhavan had executed a will in favour of defendants 3 and 4, whereby, the entire properties belong to defendants 3 and 4. Plaintiff came forward with the replication contending that the plaint schedule property was not the self acquired property of Madhavan. It was the ancestral property. Till then, he had no case that Madhavan had inherited the property from his ancestor. Of course, if as a matter of fact, the property is R.S.A No. 645 of 2005 7 ancestral in the hands of Madhavan, the mere fact that he had obtained purchase certificate will not confer exclusive right on him. The question is whether the plaintiff can be heard to say in the light of the pleadings and evidence on record that Madhavan had inherited the property as ancestral property. 15. A reading of the plaint will show that initially the plaintiff had no such case at all. A reading of paragraphs 2,3 and 5 of the plaint will clearly indicate that there was no dispute initially regarding the fact that the property belonged to Madhavan. 16. Learned counsel appearing for the appellant tried to wriggle out the situation by pointing out that there was no assertion in the plaint that property exclusively belonged to Madhavan. What is stated is that property belonged to Madhavan and not belonged to him exclusively. Therefore, the replication has the only effect of supplying better particulars. 17. I cannot agree. On a reading of the plaint, it is clear that assertion made by the plaintiff initially was that R.S.A No. 645 of 2005 8 property belonged to Madhavan exclusively and consequent on his death, the property devolved on his legal heirs namely defendants 3 and 4. One has to notice that if the claim was one based on ancestral property the entire complexion of the suit will change and the shares will also differ. 18. Considerable reliance is placed by the counsel for the appellant in support of his contention on Ext.A3 document. i.e the suit between the Madhavan and the son of the brother of Madhavan namely Ananthan. Ananthan laid the suit with the contention that the parties were governed by Hindu Mithkshara Law and therefore after the death of grandfather, the property devolved upon the plaintiff and defendants in equally and hence he claimed half share in the property. In that suit Madhavan did accept that the property was outstanding on lease with his father and consequent on his death the property was obtained by him. In that suit, Madhavan succeeded on the plea of having acquired title to the property absolutely by ouster, adverse possession and limitation. R.S.A No. 645 of 2005 9 19. If that be so, the finding of the court in Ext.A3 cannot be of any help to the plaintiff. There is no averment either in the plaint or replication and that the plaintiff and defendants have acquired right by birth. Several facts will have to be considered if that plea had been taken. If the claim of the plaintiff is to be accepted, the case of the plaintiff that he is entitled to claim 1/5th share may not be correct. The plaintiff was examined as PW1 and says that the property belonged to his father and his father obtained the same from his predecessors. 20. It cannot be disputed that the pleadings in the plaint and replication cannot go together. Plaintiff has expressly stated that property had belonged to Madhavan. If one is to treat the property as ancestral in the hands of Madhavan, the pleadings in the plaint cannot stand. In the replication filed by the plaintiff, it is stated that the plaint schedule property is ancestral property but there is no averment that he acquired right by birth. 21. Further, the question of the applicability of Kerala Joint Hindu Family System (Abolition) Act, 1975 R.S.A No. 645 of 2005 10 will also have to be considered in case the plea of ancestral property is accepted. . The personal law applicable to the parties will have to be considered. Both the courts below have observed that the suit is on the basis that property belonged to Madhavan exclusively in evidence was also to that effect. In fact Exts A2 and A3 would show that the property had belonged to Madhavan,. There is no reference as to Madhavan holding the property as ancestral property in any of the document produced by the plaintiff and he and the defendants acquired a right in the property by birth. i. In fact, the lower appellate court has considered these aspects elaborately and found that claim cannot be sustained. There is no reason to take a different view that property exclusively belonged to Madhavan. The contentions that Madhavan Could not have bequeathed his entire property, since it was ancestral property cannot be countenanced. This appeal is without merits and it is accordingly dismissed. P.BHAVADASAN, JUDGE ma R.S.A No. 645 of 2005 11 R.S.A No. 645 of 2005 12