IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.R.RAMAN & THE HONOURABLE MR. JUSTICE T.R.RAMACHANDRAN NAIR WEDNESDAY, THE 2ND JULY 2008 / 11TH ASHADHA 1930 AS.No. 565 of 1993() -------------------- OS.105/1990 of SUB COURT, VADAKARA .................... APPELLANT/16TH DEFENDANT: ----------------- KELOTH INDIRA, W/O.P.JAYARAM, DOHA, QUATER BY ADV. SRI.P.N.KRISHNANKUTTY ACHAN(SR.) SRI.T.SETHUMADHAVAN RESPONDENTS/PLAINTIFF & DEFENDANTS 1 TO 15 & 17 TO 19: --------------------- 1. KELOTH RAGHAVAN NAMBIAR, MARAM PUTHIYOTTIL HOUSE, IRINGANOOR P.O., VIA. THUNERI, KOZHIKODE. PIN. 673 514. 2. MARAM PUTHIYA VEETTIL LAKSHMIKUTTY AMMA, -DO- 3. -DO- BROTHER KUNHIKELU KURUP, (DIED) CHENTHALATH HOUSE, ELAYADOM P.O., VIA. VILLYAPILLY, BADAGARA. 4. -DO- SISTER K. KUMUDA BAI, VRINDAVAN HOUSE, IRINGANOOR P.O., VIA. IRINGANNOOR, THUNERI, KOZHIKODE 14. 5. V.C.KARTHIYAHINI AMMA, D/O.GOVINDAN NAMBIAR, KOTTARATHIL HOUSE, KUTTIYATTUR P.O., VIA. MAYYIL, KANNUR DISTRICT. 6. K.T.PADMINI AMMA, D/O.KELU NAMBIAR, JAYA VIHAR, P.O.KOODALI, KOZHIKODE. 7. K.T.RAVINDRANATH, ENGINEER, 1074/F-XI-TH STAGE, INDIRA NAGAR, BANGALORE 560 038. 8. K.T.HARINDRANATH, JAYA VIHAR, KOODALI P.O., KANNUR DISTRICT. -2- A.S.NO.565/93 9. K.T.SATHISH CHANDRAN, CLERK, NO.1L732-LIX-TH MAIN ROAD, MAL III STAGE, INDIRA NAGAR, BANGALORE 560 038. 10. JAYASREE KRISHNAN, NO.7 1ST FLOOR-AR. AVENUE, NEAR THIPPUSANDARA, BANGALORE. 11. KELOTH JANAKI AMMA, ABHILASH, IRINGANOOR P.O. VIA. THUNERI, KOZHIKODE 673 514. 12. MALLIKA @ KANCHANA, ANJALI. HOUSE NO.6-G/62 HOUSING COLONY, MAKKAPARAMBA P.O., CALICUT L673 009. 13. SAROJINI AMMA, TEMPLE VIEW, IRINGANNUR P.O. VIA. THUNERI, KOZHIKODE 673 514. 14. M.K.MOHAN NAMBIAR, D.622 HUDCO COLONY SPAN NAGAR SASWAD, PURANDAR TALUK, PUNE DISTRICT 412 301. 15. M.K.MURALEEDHARAN (L.T.), 1326-SECTOR II, R.K.PURAM, NEW DELHI. 16. PRAKASH NAMBIAR, BHAGYASREE A. P.OT NO.6, GAIKAWAD COLONY, AHAMMED NAGAR 414 001. 17. K. SURESH KUMAR, UN-SKILLED WORKER LTRAINEE, KERALA ELECTRIC AND ALLOIED ENGINEERING CO. (KEL) P.O., BADIADUKKA, KASARAGOD. 18. K. SUNIL KUMAR, TEMPLE VIEW, IRINGANUR P.O. VIA. THUNERI, KOZHIKODE 673 514. 19. K. SUDHA, TEMPLE VIEW, -DO- -DO- ADDL. 20. VIJAYALAKSHMI, W/O. KUNJIKELU KURUP, CHEMBALATH VEEDU, ELAYADOM (VIA VILLIAPPALLY), BADAGARA. '' 21. SIVAJI, SON OF KUNJIKELU KURUP, -DO- -DO- '' 22. SINESH, SON OF KUNHJIKELU KURUP, -DO- -DO- '' 23. SIVAN, S/O.-DO- -DO- '' 24. SIVANI, -DO- -DO- (LEGAL REPRESENTAIVES OF THE 3RD RESPONDENT ARE IMPLEADED AS ADDL. 20 TO 24, AS PER ORDER IN CMP.NO.1970/95). BY ADV. SRI.B.KRISHNAN FOR R4 SRI.M.P.ASHOK KUMAR SRI.R.PARTHASARATHY FOR R4, 20 TO 22, 24 THIS APPEAL SUIT HAVING BEEN FINALLY HEARD 02/07/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ORDER ON CMP.NO.4823/1994 IN A.S.NO.565/93 --- Dismissed Sd/- P.R.RAMAN, JUDGE. 2/7/2008 Sd/- T.R.RAMACHANDRAN NAIR, JUDGE. P.R.RAMAN & T.R.RAMACHANDRAN NAIR,JJ. ------------------------------- A.S.NO.565 OF 1993 -------------------------------- Dated this the 2nd day of July, 2008 JUDGMENT Raman,J. Defendant No.16 in the suit O.S.No.105/90 is the appellant herein. The suit is one for partition of the plaint schedule items which are schedule E and F in a partition karar 1959 produced as Ext.A1 in the case. The definite case of the appellant in the written statement was that since schedule E and F were kept in common as tavazhy property, the appellant is entitled to his due share. During the course of argument, this contention was accepted by the plaintiff and accordingly, the court below has held in paragraph 15 as follows: “.......At the stage of argument it was fairly conceded by the counsel for the plaintiff also that the properties are tavazhi properties. So the properties are to be partitioned among the plaintiff and defendants as members of the tavazhy. The issues are found accordingly.” 2. Further defendants 13 to 19 were also entitled to 15/225 shares each. Thus, it is clear that the appellant is also allotted share. Whether there is any mistake in the calculation of the share is not a matter on which any ground is made out in the appeal. As such, it does not arise -2- A.S.No.565/1993 for consideration in this appeal. Accordingly, it is dismissed. 3. It is contended by the learned counsel for the appellant that schedule E and F were kept in common as thavazhy of female descendants and therefore male members of the thavazhy are not entitled to any share. But we do not find that any specific argument was raised before the court below in this regard. Even if it is raised in the written statement, in the absence of any specific contention at the time of argument, we cannot find fault with the court below for not considering such a plea. If as a matter of fact, any such plea was raised and argued, nothing prevented the appellant from seeking review of the judgment. In so far as this contention has not been adverted to by the court below and no contention as such is seen raised as per the judgment, we find that the appellant is not entitled to raise this contention for the first time in this appeal. P.R.RAMAN, Judge. T.R.RAMACHANDRAN NAIR, Judge. kcv. -3- A.S.No.565/1993 P.R.RAMAN & T.R.RAMACHANDRAN NAIR J. -------------------------- A.S.NO.565 OF 1993 -------------------------- JUDGMENT 2nd July, 2008