IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN TUESDAY, THE 16TH NOVEMBER 2010 / 25TH KARTHIKA 1932 AS.No. 412 of 1996() -------------------- OS.202/1994 of SUB COURT, MUVATTUPUZHA .................... APPELLANT(S): 1ST DEFENDANT: --------------------------------------------------- KUMARAN, S/O.AYYAPPAN, AGED 58 YEARS, PARAPPATTU, PAMPAKUDA KARA, ONAKKOOR. BY ADVS. SRI.S.CHANDRASENAN, SRI. P.K.SOMARAJAN. RESPONDENT(S) 1 TO 5/PLAINTIFFS IN OS:RESPONDENT 6 AND 7/ DEFENDANT 2 AND 3 IN OS: ------------------------------------------------------------------------------ *1. RAJAPPAN, S/O. SANKARAN, AGED 47 YEARS, THAZHATHEPARAPPURATHU, MEMURI KARA, MEMURI VILLAGE. (D I E D). 2. RAJAMANY, D/O. SANKARAN, AGED 44 YEARS, ..DO..DO... 3. SANTHA, D/O. SANKARAN, AGED 42 YEARS, ...DO...DO..... 4. PREMAVATHY, D/O.SANKARAN, AGED 31 YEARS, ..DO..DO..... 5. CHANDRAMATHY, D/O.SANKARAN, AGED 31 YEARS, ...DO..DO... 6. MANI, W/O.NARAYANAN, AGED 64 YEARS, RESIDING AT ANDYALUNGAL, KIZHUMURY KARA, RAMAMANGALAM VILLAGE. 7. S.SASI, RAMACHANDRIAH COMPOUND, MALLASANDRA NAGASANDRA P.O., BANGALORE - 560 073. Kss ..2/- ..2... AS.NO.412/1996 *ADDL.R8 & R9 IMPLEADED: R8. PUSHPA RAJAPPAN, W/O.(LATE) RAJAPPAN, AGED 55 YEARS, RAJESH BHAVAN, PAMPAKUDA, ERNAKULAM DISTRICT. R9. RAJESH RAJAPPAN, S/O.(LATE) RAJAPPAN, AGED 38 YEARS, RAJESH BHAVAN, PAMPAKUDA, ERNAKULAM DISTRICT. (* LEGAL REPRESENTATIVES OF DECEASED R1 IMPLEADED AS ADDL.RESPONDENTS R8 & R9 ORDER DTD. 18/10/2010 ON I.A.NO.4772/08). R2 TO R5 BY ADV. SRI.VIJU ABRAHAM SRI. A.K.AVIRAH R7 BY ADV. SRI.S.SHYAM ADDL.R8 & R9 BY ADVS.SRI.GHOSH YOHANNAN, SRI.K.RAKESH ROSHAN. THIS APPEAL SUITS HAVING BEEN FINALLY HEARD ON 16/11/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Kss ORDER ON CMP.NO.2654/1996 IN AS NO.412/1996 DISMISSED 16/11/2010 SD/- M.N.KRISHNAN, JUDGE /TRUE COPY/ P.A.TO JUDGE Kss M.N. KRISHNAN, J. = = = = = = = = = = = = = = = A.S. NO. 412 OF 1996 = = = = = = = = = = = = = = = Dated this the 16th day of November , 2010. J U D G M E N T This appeal is preferred against the judgment and decree passed by the Subordinate Judge, Muvattupuzha in O.S.202/94. The suit is one for partition. It is the case of the plaintiffs that the property described in the plaint schedule belonged to one Ayyappan. According to them Ayyappan had three children namely defendants 1 and 2 and one Narayanani. Plaintiffs and 3rd defendant are the children of said Narayanani. Narayanani died in the year 1962 and Ayyappan died in the year 1984. Therefore plaintiffs are claiming 1/3rd right over the property of which they had obtained from their mother Narayanani as the predeceased daughter of Ayyappan. A.S. 412 OF 1996 -2- 2. Now the first defendant would contend that he has no sister called Narayanani to start with but later would submit that he had a sister called Narayanani who was given in marriage long back and the plaintiffs and 3rd defendant are not children of Narayanani and further it is contended that during the life time of the father in 1960 the father had made a family arrangement whereby the property has been given to the first defendant and in confirmation of the same to make it a perfect, a document has been executed by the 2nd defendant in favour of the first defendant and therefore the first defendant is the absolute owner in possession of the property and so the plaintiffs are not entitled to any relief. 3. In the trial court PWs.1 to 5 and DWs.1 to 3 were examined. Exts.A1 to A4 and B1 to B4, A.S. 412 OF 1996 -3- C1 and X1 and X2 were marked. On the materials available the trial court found in favour of the plaintiffs and granted a decree. It is against that decision the first defendant has come up in appeal. 4. Heard the learned counsel for the appellant as well as respondents. As stated by me earlier the suit is one for partition of 1/3 share of the property which the mother of the plaintiff and D3 Narayanani would have got through her father Ayyappan. It is true that Narayanani predeceased Ayyappan and plaintiffs and 3rd defendant are claiming the right as the children of predeceased daughter of Ayyappan. The defence is a denial of the maternity of the plaintiffs and 3rd defendant as children of Narayanani and also a case of family arrangement whereby the father of the first defendant had A.S. 412 OF 1996 -4- put him in possession of the property as early as in 1960. It has come out in evidence that Narayanani is the mother of the plaintiff and 3rd defendant. The plaintiff and 3rd defendant are claiming right only through Narayanani. So irrespective of the question who is the husband of Narayanani the plaintiffs are entitled to inherit the right which the Narayanani has got in the property. Therefore the said contention raised by the first defendant will not help her very much. 5. Now the crucial question argued by the learned counsel for the appellant is regarding the family arrangement. According to the first defendant the family arrangement was done during the year 1960. The suit is filed in the year 1994. The first defendant was aged 58 years in 1994. So he must have been about 24 years at A.S. 412 OF 1996 -5- the time of the alleged family arrangement. In order to impress upon the Court regarding the family arrangement the evidence relied upon is the oral evidence of DW2 and DW3. I may first hold that if a person had been inducted into possession of the property exclusively by the father from 1960 onwards and when the father had lived for another 24 years after the alleged family arrangement at least there would have been a scrap of paper evidencing the act of possession by the first defendant over the property during the life time of his father. It is totally absent here. The documents produced by the first defendant relates to 1988, 1989, 1990, 1994 and 1995. Admittedly these documents have come into being after 10 years after the death of the father. So any amount of argument regarding the family arrangement cannot be A.S. 412 OF 1996 -6- accepted. Further what is a family arrangement. When there is only a father and a son and if the property is to be enjoyed by both and some arrangement is made in that fashion then one can call it as a family arrangement. Here the contention of the first defendant is, it is an out and out giving of the property to the first defendant, the only son. So in the absence of any acceptable materials like act of possession it is very difficult to rely upon the oral evidence of two persons to arrive at a decision regarding the family arrangement. Therefore I am inclined to not to accept the case of family arrangement. 6. Ext.A1 is a document which is written by the 2nd defendant in favour of the first defendant. The 2nd defendant is none other than the sister of the first defendant. Even in the A.S. 412 OF 1996 -7- year 1992 the first defendant did not have a case that a family arrangement was there in pursuance of which he was put into possession of the property whereas the recitals in Ext.A1 would go to show that it jointly belongs to the executants of Ext.A1. When confronted with such a difficult situation it was stated that this document was just executed to seal the title of the first defendant. But the recitals in the document would show that even in the year 1992 the first defendant had accepted that the properties are in joint possession as the legal representatives of the father. So Ext.A1 also will go a long way to show that the case of family arrangement set up by the plaintiff is not true. Therefore, when it is so, the division effected by the trial court is only in order and nothing remains to be interfered with. A.S. 412 OF 1996 -8- 7. I am informed that some of the persons have entered into a settlement. If any settlement is arrived at between the parties or they propose to have another settlement I make it very clear that this judgment shall not stand in the way of an amicable settlement between the parties. With this observation the judgment and decree are confirmed and the appeal is dismissed but without costs. M.N. KRISHNAN, JUDGE. ul/- A.S. 412 OF 1996 -9- M.N. KRISHNAN, J. = = = = = = = = = = A.S. No. 412 OF 1996 = = = = = = = = = = = J U D G M E N T 16th November, 2010.