IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE HARUN-UL-RASHID MONDAY, THE 5TH OCTOBER 2009 / 13TH ASWINA 1931 AS.No. 387 of 1997() -------------------- OS.379/1993 of II ADDL.SUB COURT,KOZHIKODE .................... APPELLANTS/DEFENDANTS ----------------------------------------- 1.SAVITHRY ANDHARJANAM W/O LATE KODAKKATILLATH CHERIYA SANKARAN MOOSAD, D/O RAMAN MOOSAD 2. VASUNNI ALIAS SANKARAN MOOSAD S/O SAVITHRY ANDHARJANAM 3. RAMACHANDRAN S/O SAVITHRY ANDHARJANAM 4. RAJAN S/O SAVITHRY ANDHARJANAM 5. RAVEENDRAN S/O SAVITHRY ANDHARJANAM 6.SURESHAN S/O SAVITHRY ANDHARJANAM 7. VALSALA D/O SAVITHRY ANDHARJANAM (APPELLANTS ARE RESIDING AT KUNNAMANGALAM AMSOM DESOM IN KOZHIKODE TALUK) BY ADV. SRI.T.KRISHNANUNNI SRI.C.P.MOHAMMED NIAS RESPONDENTS: PLAINTIFF ------------------------------------- LEELA ALIAS DEVAKIKUTTY, D/O LATE KODAKKATILLATH CHERIYA SANKARAN MOOSAD, NELLIKODE AMSOM KOVOOR DESOM, KOZHIKODE TALUK ADV. SRI.A.P.CHANDRASEKHARAN, SENIOR ADVOCATE SMT.PRABHA R.MENON SRI.PUSHPARAJAN KODOTH SRI.M.KRISHNAKUMAR SRI.K.JAYESH MOHANKUMAR THIS APPEAL SUITS HAVING BEEN FINALLY HEARD ON 5.10.2009 , THE COURT ON 05/10/2009 DELIVERED THE FOLLOWING: ORDER IN C.M.P. NO. 3254 OF 1997 IN A.S. NO. 387 OF 1997 DISMISSED SD/- HARUN-UL-RASHID, JUDGE 5.10.2009 HARUN-UL-RASHID, J. ---------------------------------------- A.S.No.387 of 1997 ---------------------------------------- Dated this the 5th day of October, 2009 JUDGMENT The defendants in O.S. No. 379/1993 on the file of the Sub court, Kozhikode are the appellants. The suit for partition was decreed by the trial court holding that the plaint items 1 and 4 will be partitioned into 40 equal shares and the plaintiff will be allotted 10/40 shares in item No.1 5/40 share in item No.4 and for other consequential reliefs. Aggrieved by the decree and judgment the defendants in the suit have filed this appeal. The parties hereinafter referred to as plaintiff and defendants. 2. The plaintiff and defendants are members of Kodakkadu illam. According to the plaintiffs, the plaint schedule items 1 to 3 were allotted to the plaintiff, 1st defendant , 2nd defendant, their father Sankaran Moosad and also to the plaintiff's sister Kumari who died subsequently. The suit for partition was filed subsequent to the death of the said Kumari and Sankaran Moosath. According to the plaintiff, subsequent to the death of Kumari and Sakaran Moosad, altogether in item Nos. 1 to 3 the plaintiff has got 10/40 shares and defendants 1 and 2 have got 10/40 shares each and that defendants 3 to 7 are each entitled to 2/40 shares . The plaintiff also submits that item No.4 of the plaint schedule belonged to Sankaran moosad as per a partition deed of 1972, on the death of the father the plaintiff has got 1/8 shares in the properties and item Nos. 2 and 3 in the A.S. No. 387 of 1997 -2- plaint schedule were already in the possession of the tenants and by the coming into force of the Land Reforms Act, the jenm right has also vested in the Government. The plaintiff also reiterated that in item Nos. 1 and 4 she is entitled to get her share partitioned. According to her, even though she demanded for partition by a notice dated 28.12.1990, the defendants 1 to 3 are not amenable for it. Hence the suit. 3. Defendants filed a joint written statement denying the claim of the plaintiff. According to them in 1964 the plaintiff was given away with money and gold ornaments towards her share as per customary rites in marriage and the plaintiff ceased to be a member of the thavazhi. Therefore they contended that the plaintiff is not entitled to any share in any item of the plaint schedule property,that even if she had any right in the properties, the same is lost by adverse possession and limitation. The defendants also contended that after the death of Sankaran Moozad the properties were orally partitioned and at that time the plaintiff's share was given in cash. They also contended that the suit is not maintainable and prayed for the dismissal of the suit. 4. The evidence in this case consists of oral evidence of PW1 and DW1 and documentary evidence viz Exts. A1 to A4. 5. The parties are Hindu Brahmins following the Namboodiri's Act. There are 4 items in the plaint schedule out of which item Nos. 1 to 3 are said to have been allotted to the thavazhi including the plaintiff as per partition deed of 1957 (Ext.A1). In Ext.A1 partition the plaintiff is party A.S. No. 387 of 1997 -3- No.8 and her father Sankaran Moosad is party No.6. The 1st defendant is party No.7 in the document. Party Nos. 6 to 10 in the document were allotted the present plaint schedule item Nos. 1 to 3 as a group. The trial court held that the contentions of the defendants that on getting married the plaintiff was given away with money and gold ornaments according to customary rites towards her share and the plaintiff looses her right in the properties is lacking merit and cannot be acceptable. The trial court concluded that Ext.A1 partition deed was subsequent to the coming into force of the Hindu Succession Act and the property was obtained by the plaintiff also on partition who is a party in Ext.A1 and therefore as a sharer in Ext.A1 partition deed the plaintiff gets 1/5th share in item No.1 of the plaint schedule. Her further claims of 1/8th share due to the death of her sister and another 1/8th share due to the death of her father are opposed by the defendants contending that the plaintiff was given away those shares at the time of oral partition in 1975 after the death of Sankaran Moozad .The defendants contended that the plaintiff is also not entitled to 1/8th share in item No.2 since such share was also given on oral partition in money value. Item No.4 property admittedly belonged to Sankaran Moozad (the father of the plaintiff) being obtained by him by virtue of Ext. A2 partition deed. 6. The Defendants/appellants filed I.A No. 2040/2007 under Order 41 Rule 27 of the code of Civil Procedure to receive in evidence the pattayam/Purchase Certificate dated 10.07.1976. Since the receipt of A.S. No. 387 of 1997 -4- Pattayam/Purchase Certificate dated 10.7.1976 in evidence is necessary for a proper adjudication of the dispute and to avoid further litigation I do so. The Purchase certificate/Pattayam produced will go to show that defendants 1 to 4 jointly applied for assignment, right, title and interest in respect of item No.1 of the plaint schedule . The Purchase certificate / Pattayam is issued to the benefit of the sharers and it will enure to the benefit of all the co-owners. Since the contentions of the defendants that there was an oral partition in the year 1975, that the plaintiff's shares were given on the basis of the said oral partition in money value and that the plaintiff's right is lost by adverse possession and limitation are not substantiated by the defendants by adducing evidence. Considering the fact that plaintiff is a sharer in Ext.A1 partition deed, and further that the plaintiff is entitled to inherit the property left behind by her father along with other defendants, the decree passed by the trial court granting 10/40 shares in item No.1 and 5/40 shares in item No.4 cannot be assailed successfully by the defendants. In view of the above admitted position the contentions raised by the defendants challenging the decree and judgment passed by the court below are not sustainable. In the result, the appeal is dismissed confirming the judgment and decree passed by the trial court. There will be no order as to costs. (HARUN-UL-RASHID, JUDGE) es. HARUN-UL-RASHID, J. --------------------------- A.S.No.387 of 1997 ---------------------------- JUDGMENT 5th October, 2009