IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN THURSDAY, THE 5TH AUGUST 2010 / 14TH SRAVANA 1932 AS.No. 463 of 1996() ------------------------------ OS.208/1992 of SUB COURT, PAYYANNUR .................... APPELLANT(S): DEFENDANTS 1,3 AND 6 TO 9 ------------------------------------------------------------------ 1. VAYALIL THANKAMMA, W/O. SANKARA PILLAI, AGED 65 YEARS, VELLORA AMSOM DESOM, KARIAPPALLY, POST, VELLORA, VIA. MATHAMANGALAM BAZAR, DIST. KANNUR. 2. KUMBILUM THADATHIL GOURIKUTTY, D/O. SANKARAN PILLAI, AGED 43 YEARS, RESIDING AT THALICHAL, VELLORA AMSOM DESOM, P.O. VELLORA, VIA. MATHAMANGALAM BAZAR, DIST. KANNUR. 3. KUMBILUM THADATHIL SARASAMMA, D/O. SANKARA PILLAI, AGED 30 YEARS,. RESIDING AT OTTAPALAKKAL HOUSE, KADANKUNNU, VELLORA AMSOM, P.O. KAKKARA, DIST. KANNUR. 4. KUMBILUM THADATHIL LEELAMMA, D/O. SANKARA PILLAI, AGED 27 YEARS, RESIDING AT ANIKKAT HOUSE, KOTTAYAD, NELLIPARA P.O., VIA.ALAKKOT, THALIPARAMBA TALUK, DIST. KANNUR. 5. KUMBILUM THADATHIL RAJENDRAN, S/O. SANKARA PILLAI, AGED 24 YEARS, RESIDING AT VELLORA AMSOM DESOM, KARIAPPALLY, P.O. VELLORA, VIA. MATHAMANGALAM BAZAR, DIST. KANNUR. 6. KUMBILUM THADATHIL VINOD, S/O. SANKARAN PILLAI, AGED 20 YEAR, DO.D O. BY ADV. SMT.A.C.VIDYA A.S. NO.463/1996 RESPONDENT(S): PLAINTIFFS AND DEFENDANTS 2,4, AND 5 ---------------------------------------------------------------------------------------- 1. KUMBILUM THADATHIL BHASKARA PILLAI, S/O. SANKARA PILLAI, AGED 45 YEARS, AGRICULTURIST, VELLORA AMSOM DESOM, KARIAPPALLI, P.O. KAKKARA, TALIPARAMBA TALUK, DIST. KANNUR. 2. KUMBILUM THADATHIL GOPLINATHA PILLAI, S/O. SANKARA PILLAI, AGED 43 YEARS, RESIDING AT VELLORA AMSOM DESOM, KARIAPPALLI, P.O.VELLORA, VIA. MATHAMANGALAM BAZAR, DIST. KANNUR. 3. KUMBILUM THADATHIL JANARDHANAN PILLAI, S/O. SANKARA PILLAI, AGED 38 YEARS, DO. DO. 4. KUMBILUM THADATHIL JANAKI AMMA, AGED 35 YEARS, D/O. SANKARAN PILLAI, RESIDING AT KRISHNA VILASAM HOUSE, KARIAPPALLY, VELLORA AMSOM DESOM, P.O. KAKKARA, DIST. KANNUR. ADV. SRI.R.SHANKAR THIS APPEAL SUITS HAVING BEEN FINALLY HEARD ON 05/08/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: tss M.N. KRISHNAN, J. ........................................... A.S.NO.463 OF 1996 ............................................. Dated this the 5th day of August, 2010. J U D G M E N T This is an appeal preferred against the judgment and decree of the Subordinate Judge's Court, Payyannur in O.S.No.208/1992. The suit is one for partition. The plaintiff and defendants 2 to 9 are the children of one Sankara Pillai born in the first defendant. It is the case of the plaintiff that the property described in the plaint schedule belonged to Sankara Pillai and he died 3 years back and therefore the plaintiff and defendants are entitled to equal right over the property and therefore, the suit is filed for partition for one out of 10 shares over the plaint schedule property. 2. On the other hand defendants 1, 3 and 5 to 9 had filed a joint written statement admitting that the property was taken by Sankara Pillai. Their dispute is regarding the correctness of the extent. In para 4, the specific averment is to the effect that Sankara Pillai during his life time had handed over properties to the wife and children. Accordingly, the property described in the plaint schedule is given to defendants 1, 8 and 9 and they are in possession of the : 2 : A.S.NO.463 OF 1996 property for the last 15 years. It is also contended that the plaintiff and other defendants had been given property but with respect to the property given to defendants 8 and 9, no documentation has been done. Therefore it is stated that the property exclusively belonged to them and it is not available for division. 3. In the trial court, PW1 and DW1 were examined and Exts.A1 to A4 were marked. On an analysis of the materials, the trial court granted a decree dividing the property into 10 shares and one out of such shares each be alloted to the plaintiff as well as defendants 1 to 9. The liability to pay mesne profits and quantum of the same were ordered to be decided in the final decree proceedings. 4. Heard. Perused the records. The suit is one for partition of two items of property. Admittedly the property belonged to deceased Sankara Pillai. The plaintiff and defendants 2 to 9 are his children and the first defendant is his widow. The plaintiff seeks partition on the death of Sankara Pillai. Defendants 1,3 and 5 to 9, on the other hand, would contend that Sankara Pillai during his life time had : 3 : A.S.NO.463 OF 1996 given properties to the children and wife and accordingly, the present plaint schedule property had been set apart to the share of defendants 1, 8 and 9 together and documentation has not been done because the children were minors. But, it can be seen at the time of evidence that the 8th defendant on behalf of the defendants would depose that no property has been given to the mother and defendants 8 and 9. It is totally against the pleaded case. Similarly, though it is stated in the plaint that such and such extent had been given to the plaintiff etc., not even a scrap of paper is produced to show that Sankara Pillai had given any property to any of the children or the wife. When the property belongs to Sankara Pillai, on his death it will devolve upon the hires unless the defendants are able to establish that before the death of Sankara Pillai he had transferred his right in the property to somebody else. Defendants 1,3 and 5 to 9 cannot substantiate their contention. As stated by me earlier, these defendants are having an inconsistent stand in the written statement and in the evidence. Nothing is produced to prove giving of any property to any children. So the trial : 4 : A.S.NO.463 OF 1996 court granted a decree dividing the property into 10 shares and one out of such shares each be alloted to the plaintiff as well as defendants 1 to 9. The liability to pay mesne profits and quantum of the same were ordered to be decided in the final decree proceedings. The said findings are correct. I do not want to interfere with the said, finding. Therefore, the appeal is devoid of any merit and it is dismissed but in the circumstances without any order as to costs. M.N. KRISHNAN, JUDGE. cl : 5 : A.S.NO.463 OF 1996 M.N. KRISHNAN, J. ........................................... A.S.NO.463 OF 1996 ............................................. 5th day of August, 2010. J U D G M E N T