IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.BHAVADASAN FRIDAY, THE 20TH AUGUST 2010 / 29TH SRAVANA 1932 SA.No. 649 of 1999(B) -------------------------------- AS.72/1992 of I ADDL. DISTRICT COURT, PALAKKAD OS.140/1986 of ADDL.SUB COURT, PALAKKAD .................... APPELLANTS/APPELLANTS 1 & 3/DEFENDANTS 1 & 12: --------------------------------------------------------------------------------- *1. THANGAN, S/O.APPU *(DIED) 2. ARUMUGHAN, S/O.KUNJAN. BOTH ARE RESIDING AT KUMMANKUZHI, KUTHANOOR AMSOM, ALATHUR TALUK, PALAKKAD DISTRICT. *SUPPL. APPELLANTS 3 TO 8 IMPLEADED 3. DAKSHAYANI, WIDOW OF THANGAN. 4. VELAYUDHAN, S/O. THANGAN. 5. RAMACHANDRAN, S/O. THANGAN. 6. LAKSHMANAN, S/O. THANGAN. 7. SREEDHARAN, S/O. THANGAN. 8. KAMALAKSHI, D/O.THANGAN. ALL ARE RESIDING AT KUMMANKUZHI, KUTHANOOR AMSOM, ALATHUR TALUK, PALAKKAD DISTRICT. *LR'S OF DECEASED APPELLANT NO.1 ARE IMPLEADED AS SUPPL. APPELLANTS 3 TO 8 AS PER ORDER DATED 10/10/2001 ON C.M.P.NO.1649/2001. BY ADV. SRI.V.CHITAMBARESH, SRI.T.C.SURESH MENON, SRI.KRISHNA PRASAD. S. RESPONDENTS/RESPONDENTS 2 TO 23/APPELLANTS 4 TO 12/ PLAINTIFFS 2 TO 4/DEFENDANTS 4 TO 11 & 13 TO 20: --------------------------------------------------------------------------------------------- 1. KUTTIKRISHNAN, S/O.KUNJU, RESIDING AT KUMMANKUZHI, KUTHANOOR AMSOM, ALTHUR TALUK, PALAKKAD DISTRICT. SA.No. 649 of 1999(B) 2. KRISHNAN, S/O.KUNJU, RESIDING AT KUMMANKUZHI, KUTHANOOR AMSOM, ALATHUR TALUK, PALAKKAD DISTRICT. 3. LEELAVATHY, W/O.PONNANKUTTY AND D/O.KUNJU, RESIDING AT CHERUPULLISSI HOUSE, KUNISSERI AMSOM, ALATHUR TALUK, PALAKKAD DISTRICT. 4. RAJAN, S/O. LATE CHINNAN, RESIDING AT KUMMANKUZHI, KUTHANOOR AMSOM, ALATHUR TALUK, PALAKKAD DISTRICT. 5. NARAYANAN ALIAS CHENTHAMARA, S/O. LATE CHINNAN, RESIDING AT KUMMANKUZHI, KUTHANOOR AMSOM, ALATHUR TALUK, PALAKKAD DISTRICT. 6. DAKSHAYANI, W/O.CHAMIYAR, RESIDING AT KOTERIKALAM KOPPAM AMSOM, PALAKKAD TALUK. 7. DEVAKI, W/O.GOPALAKRISHNAN, RESIDING AT EZHUTHACHAN VEEDU, PANANTHURAVU, PUTHUR, PALAKKAD DISTRICT. 8. SUROMANI, W/O.CHANDRAN, RESIDING AT EZHUTHACHAN VEEDU, PANANTHURAVU, PUTHUR, PALAKKAD DISTRICT. 9. SAROJINI, D/O.KUNJAN, RESIDING AT KUMMANKUZHI, KUTHANOOR AMSOM, PALAKKAD TALUK. 10. SATHYABHAMA, D/O.KUNJAN, RESIDING AT KUMMANKUZHI, KUTHANOOR AMSOM, PALAKKAD TALUK. 11. MADURAMEENAKSHI, D/O.KUNJAN, RESIDING AT KUMMANKUZHI, KUTHANOOR AMSOM, PALAKKAD TALUK. 12. LAKSHMI, W/O. LATE APPUKUTTAN, RESIDING AT KUMMANKUZHI, KUTHANOOR AMSOM, PALAKKAD TALUK. 13. VISWANATHAN, S/O.LATE APPUKUTTAN, NAYAK NO.14559009, 271 F.D. WKSP. COPY. C/O.99A.P.O. 14. SANTHAKUMARI, W/O.GANGADHARAN, RESIDING AT KUMMANKUZHI, KUTHANOOR AMSOM, ALATHUR TALUK, PALAKKAD DISTRICT. 15. KANAKAM, W/O.MOHANDAS, RESIDING AT KARAPOTTA HOUSE, KANNAMBRA AMSOM, PALAKKAD TALUK. SA.No. 649 of 1999(B) 16. VIJAYAKUMARI, W/O.RAJAKUMAR, RESIDING AT PADINJARE VEEDU, YAKKARA AMSOM, PALAKKAD TALUK. 17. VINODKUMAR, S/O.LATE APPUKUTTAN, RESIDING AT KUMMANKUZHI, KUTHANUR AMSOM, ALATHUR TALUK, PALAKKAD DISTRICT. 18. HARIDAS, S/O.LATE APPUKUTTAN, RESIDING AT KUMMANKUZHI, KUTHANUR AMSOM, ALATHUR TALUK, PALAKKAD DISTRICT. 19. SARASWATHY, W/O.LATE SAHADEVAN, RESIDING AT KUMMANKUZHI HOUSE, CHIMBUKADU, KUTHANUR AMSOM, ALATHUR TALUK, PALAKKAD DISTRICT. 20. SATHEESH KUMAR, S/O.LATE SAHADEVAN, RESIDING AT KUMANKUZHI HOUSE, CHIMBUKADU, KUTHANUR AMSOM, ALATHUR TALUK, PALAKKAD DISTRICT. 21. SMITHA, D/O. LATE SAHADEVAN, RESIDING AT KUMMANKUZHI HOUSE, CHIMBUKADU, KUTHANUR AMSOM, ALATHUR TALUK, PALAKKAD DISTRICT. 22. KRISHNAKUMAR (MINOR), S/O.LATE SAHADEVAN, RESIDIANG AT KUMMANKUZHI HOUSE, CHIMBUKADU, KUTHANUR AMSOM, ALATHUR TALUK, PALAKKAD DISTRICT. (MINOR 22ND RESPONDENT REPRESENTED BY HIS GUARDIAN MOTHER THE 19TH RESPONDENT) **23. AMMU, W/O.KUNJAN, RESIDING KUMMANKUZHI, KUTHANOOR AMSOM, ALATHUR TALUK, PALAKKAD DISTRICT. **(DIED) **IT IS RECORDED THAT R23 IS DIED AND SECOND APPELLANT & R7, R9, R10 AND R11 ARE THE LR'S OF THE DECEASED R23 AS PER ORDER DATED 31/03/2003 ON MEMO DATED 13/03/2003 (C.F.1378/2003). 24. LAKSHMI, W/O. LATE KOCHU, RESIDING AT KUMMANKUZHI HOUSE, CHIMBUKADE, KUTHANUR AMSOM, ALATHUR TALUK, PALAKKAD DISTRICT. 25. K. VILASII, D/O.LATE KOCHU, RESIDING AT CHORAMKULAM HOUSE, CHITTALANCHERRY AMSOM, ALATHUR TALUK, PALAKKAD DISTRICT. 26. RADHAMANI, D/O.LATE KOCHU, RESIDING AT KUNDUKADE HOUSE, CHIMBUKADE, KUTHANUR, ALATHUR, PALAKKAD DISTRICT. SA.No. 649 of 1999(B) 27. K. APPUNNI, S/O. LATE KOCHU RESIDING AT KUMMANKUZHI HOUSE, CHIMBUKADE, KUTHANUR, ALATHUR, PALAKKAD DISTRICT. 28. KUNTHIDEVI, D/O.LATE KOCHU, RESIDING AT THEKKANCHIRA HOUSE, NENMENI, KOLLENGODE, CHITTUR TALUK, PALAKKAD DISTRICT. 29. KOMALAVALLI, D/O.LATE KOCHU, RESIDING AT KAMMACHI KALAM, KAMBRATH CHALLA, CHITTUR TALUK, PALAKKAD DIST. 30. SUDHA K.SASI, RESIDING AT VALIYAPARAMBIL HOUSE, KIZHUPULLYKKARA, THRISSUR. 31. K.KANNAN, S/O. LATE KOCHU, RESIDING AT KUMMANKUZHI HOUSE, CHIMBUKADE, KUTHANUR AMSOM, ALATHUR TALUK, PALAKKAD DISTRICT. R1 BY ADV. SRI.P.CHADRASEKHAR. THIS SECOND APPEAL HAVING BEEN FINALLY HEARD ON 16/08/2010,THE COURT ON 20/08/2010 DELIVERED THE FOLLOWING: P. BHAVADASAN, J. - - - - - - - - - - - - - - - - - - - - - - - - - - - S.A. No. 649 of 1999 - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 20th day of August, 2010. JUDGMENT Defendants 1, 2, 12 and 13, who suffered a preliminary decree at the hands of the Sub Court, Palakkad and whose appeal turned out to be a futile exercise are the appellants before this court. The parties and facts are hereinafter referred to as they are available before the trial court. 2. The facts absolutely necessary for the disposal of this appeal are as follows: According to the plaintiffs the plaint schedule property belonged to Appu and on his death it devolved on his legal heirs namely, Kunju, Chinnan, Kunjan, Thangan, Kochu and Appukuttan. The parties belong to Hindu-Ezhava community and they follow Mithakshara Law. Plaintiffs are the children of Kunju. Chinnnan, another son of Appu, died and his wife pre-deceased S.A.649/1999. 2 him. Defendants 4 to 6 are the children of Chinnan. Kunjan, another son of Appu died and defendants 5 to 13 are the legal heirs of Kunjan. During the pendency of the suit, it appears that the fourth defendant died and his legal heirs were brought on the party array as defendants 14 to 20. According to the plaintiffs, Appu acquired several items of property along with the plaint schedule item 1 property. After his death, there was an oral partition among the legal heirs of Appu, In O.S. 406 of 1957 the said oral partition was recognized. According to the plaintiffs, the plaint schedule items were kept in common. The plaintiffs do not wish to continue the joint status and hence the suit. 3. Defendants 1, 2, 12 and 13 resisted the suit. They disputed that the acquisition of the plaint schedule property was by late Appu. According to them item No.1 was taken on independent lease by the first defendant and item No.2 by the second defendant. Both of them have obtained purchase certificates in respect of the properties and it belongs absolutely to them. The plaintiffs have no S.A.649/1999. 3 right over plaint schedule item No.2. They also contended that the suit is bad for non-joinder of necessary parties and they have not scheduled an item, which they claimed to be partitioned. 4. It seems that a replication was filed by the plaintiffs, which was followed by a rejoinder by the defendants. 5. The trial court raised necessary issues for consideration. The evidence consists of the testimony of P.W.1 and documents marked as Exts.A1 to A6 from the side of the plaintiffs. The defendants had D.Ws.1 and 2 examined and Exts. B1 to B19 marked. Exts.C1 and C2 are the commission report and mahazar. On an appreciation of the evidence in the case, the court below found that the suit items are liable for partition and passed a preliminary decree as follows: “In the result, a preliminary decree for partition is passed on the following terms: S.A.649/1999. 4 (a) The properties scheduled in the plaint will be divided into 6 equal shares and one of such share will be allotted to the plaintiffs. (b) The 1st defendant is entitled to 1/6 share, the 2nd defendant is entitled to 1/6 shares, defendants 14 to 18 together are entitled to 1/6 share, defendants 4 to 6 together are entitled to 1/6 share, defendants 7 to 13 together are entitled to 1/6 share. © The building in item No.2 will be allotted to the share of the 1st defendant without separately valuing it, and the building on the southern side of the thekkinipura in item No.1 will be allotted to the share of defendant 7 to 13 without separately valuing it.“ 6. It appears that both the plaintiffs as well as defendants 1, 2, 12 and 13 carried the matter in appeal. The plaintiffs were aggrieved by that portion of the decree, which provided a reservation of the house to defendants 1 and 2. Defendants 1, 2, 12 and 13 were aggrieved by the preliminary decree itself. Both the appeals were jointly heard and disposed of by a common judgment dated S.A.649/1999. 5 31.10.1998, by which the appeals were dismissed. The aggrieved defendants, namely, defendants 1, 2, 12 and 13 assail the judgment and decree of the court below. 7. The following substantial questions of law are seen formulated in the memorandum of second appeal: “(i) Whether the courts below were justified in law in upholding the plea of oral partition of the property scheduled to the written statement for the mere reason that some of the sharers are in possession of the same and had surrendered a part thereof as excess lands? (ii) Whether the courts below were correct in law in holding that item No.2 of the plaint schedule belongs to the joint family and is partible on the basis of an ambiguous pleading in an earlier litigation without probing further as regards its title and partibility? (iii) Have not the courts below erred in holding that Exts.B1 and B2 purchase certificates issued under Section 72 of the Kerala Land Reforms Act do not reflect the title and possession of the holder and that it enures to the benefit of the other co-owners also without anything more?” S.A.649/1999. 6 8. Learned counsel appearing for the appellants pressed only two points for consideration before this court. It is pointed out that the courts below have not considered the question regarding partial partition set up by the contesting defendants and the effect of purchase certificates in the name of defendants 1 and 2 has not been properly considered. 9. According to learned counsel for the appellants in respect of two items in plaint item No. II, they were independent acquisitions of defendants 1 and 2 and they have obtained purchase certificates in respect of the same. As per Section 72K of the Kerala Land Reforms Act the purchase certificate is conclusive regarding the title, interest and possession of the person in whose name it is issued. Therefore the burden was heavy on the plaintiffs to prove that they had right over the suit properties. There is no evidence adduced by the plaintiffs to do so and the courts below were wrong in granting preliminary decree in respect S.A.649/1999. 7 of those items. It was also contended that the suit was bad for partial partition and the courts below were not right in holding to the contrary. There was no evidence at all to show that the property scheduled to the written statement had been partitioned earlier and that it was not available for partition. The reasons given by the courts below to reject the above plea in the written statement are clearly unsustainable in law. 10. Learned counsel appearing for the respondents on the other hand pointed out that both the contentions are without any merit whatsoever. According to learned counsel a careful reading of the judgment of the court below will clearly show that the above contentions have been considered in detail. The courts below have given cogent reasons as to why the above contentions cannot be accepted. There is nothing to show that the reasons given are erroneous either on facts or in law. S.A.649/1999. 8 Accordingly, it is contended that no grounds are made out to interfere with the judgments and decrees of the courts below. 11. The claim of the appellants that the courts below have not considered the two contentions put forward before this court does not appear to be correct. It is true that defendants 1 and 2 claimed exclusive right over plaint schedule item No.2 on the basis of an independent lease followed by a purchase certificate. Except for claiming that they had taken those properties on lease, no other details whatsoever were given by them. Details like the day on which the lease was taken, payment of rent etc are conspicuously absent both in the written statement and in the evidence furnished by D.W.1. 12. It was the definite case of the defendants that the suit properties were acquisitions of Appu and consequent on his death, it devolved on the plaintiffs as well as the defendants. The courts below have placed considerable reliance on Ext.A2 dated 9.1.1958, which is the S.A.649/1999. 9 certified copy of the written statement of the defendants in O.S. 406 of 1957. Defendants in the suit are the predecessor in interest of the contesting defendants. In that written statement it is conceded that there is a 'puram valappu', which according to the courts below is nothing other than the scheduled item of property to the plaint. The said statement in the written statement was put to D.W.1 while he was in box. He simply denied it without offering any explanation whatsoever. His denial does not enable the contesting defendants to avoid the clear admission made in the written statement in the previous suit. 13. There are two items of property scheduled as item No.2 to the plaint. The first one having an extent of 59 cents and other having 31 cents of land. As already stated, for establishing that these properties were taken on independent lease by defendants 1 and 2, they were unable to offer any evidence regarding the claim. But there is evidence to show that it was an acquisition of late Appu. It is well settled that in such situation, when one of the S.A.649/1999. 10 co-owners obtained purchase certificate in his name, it enures to the benefit of all other co-owners. There is nothing to indicate that defendants 1 and 2 had independent and exclusive right over items 1 and 2. If that be so, the purchase certificate obtained by them can be of no help to them. 14. Equally without basis is the contention based on partial partition. It is true that in the written statement of the contesting defendants it has been stated that the property scheduled to the written statement is available for partition. But when D.W.1 was extensively cross-examined with respect to that statement, he pretended ignorance to many of the queries put to him. It is interesting to note that it was the son of the first defendant, who was examined as D.W.1. Neither first defendant nor the second defendant mounted the box for obvious reasons. 15. Learned counsel appearing for the appellants pointed out that when partial partition is set up by the defendants, it was for the plaintiffs to say that the property S.A.649/1999. 11 scheduled to the written statement is the subject matter of a partition already effected. Learned counsel pointed out that the plaintiffs have a case that a portion of the suit property, which was set apart to the defendants was surrendered by them in the ceiling proceedings. If that be so, they should have got the relevant document produced. In the absence of any evidence to show that there was a partition in respect of the properties scheduled in the plaint, the courts below were not justified in holding that the present suit is not bad for partial partition. 16. Though the argument may look very attractive at the first blush, it is without any merit whatsoever. The property, which is claimed to be available for partition is known by the name Nedungottu paramba. The evidence of P.W.1 shows that there was an oral partition, in which portions of properties were set apart to various sharers. It is not in dispute that Nedungottu paramba had a total extent of 7 acres. What is interesting is that the measurement of the property given in the schedule S.A.649/1999. 12 to the written statement shows that the property is far less than in extent of 7 acres. There is no explanation as to what has happened to the balance extent of property. True, the plaintiffs have not caused production of the ceiling statement to show that the defendants had surrendered portions of property to the State. But the portion of the cross examination of D.W.1 extracted in the trial court judgment clearly shows the attitude of D.W.1. It is not as if both the courts below have not considered these aspects. They have given cogent reasons as to why the contention on the basis of partial partition cannot be accepted. There is nothing to show that the view taken by the lower courts are not justified going by the evidence on record. 17. The result is that none of the grounds urged before this court are sustainable either on facts or in law. It is not shown that the findings of the courts below are either perverse or that the courts below have taken irrelevant matters into consideration. No substantial question of law arises for consideration in this second appeal. S.A.649/1999. 13 The second appeal is without merits and it is accordingly dismissed. There will be no order as to costs. P. BHAVADASAN, JUDGE sb.