IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN MONDAY, THE 2ND AUGUST 2010 / 11TH SRAVANA 1932 AS.No. 69 of 2000() ------------------------- OS.335/1993 of PRL.SUB COURT,THALASSERY .................... APPELLANT(S): DEFENDANTS ------------------------------------------- *1. PALLIKKARA MUTTIATTOOR MATHU AMMA, D/O. LAKSHMI AMMA, KEERIKUNNUMMAL HOUSE, MUZHAKUNNU AMSOM, PALA DESOM, THALASSERY , KANNUR DT.(DIED) *2. DO. NARAYANI AMMA, THEKKEYIL HOUSE, KOLAYAD AMSOM, PUTHALAM DESOM, THALASSERY, KANNUR DT. *3. DO. CHIRUTHAYI AMMA, DO. DO. 4. DO. JANAKI AMMA, KEERIKUNNUMMAL HOUSE, MUZHAKUNNU AMSOM, PALA DESOM, TELLICHERRY, KANNUR DT. 5. DO. PARVATHI AMMA, CHETHUMBAL HOUSE, MUZHAKUNNU AMSOM, PALA DESOM, THALASSERY, KANNUR DT. 6. DO. BALAKRISHNAN NAMBIAR, GEET NIVAS, MUZHAKUNNU AMSOM, PALA DESOM, THALASSERY, KANNUR DT. *SUPPL. APPELLANT 7 IMPLEADED. 7. PALLIKKARA KUTTIATOOR, DEVAKI AMMA, THEKKEYIL HOUSE, KOLAYAD AMSOM, PUTHALAM DESOM, CHALASSERY, KANNUR DT. *SUPPLEMENTAL APPELLANT NO. 7 IS IMPLEADED AS THE LEGAL HEIR IF DECEASED APPELLANT NO.2 VIDE ORDER IN CMP. 2279/2000 DTD. 12.6.2000. AS. NO.69/2000 *SUPPL. APPELLANTS 8 & 9 IMPLEADED 8. PALLIKKARA KUTTIATOOR BHARGAVI, D/O. LATE CHIRUTHAYI AMMA, KEERIKUNNUMMAL HOUSE, P.O. KAKKAYANGAD, VIA PERAVOOR, KANNUR DISTRICT. 9. PALLIKKARA KUTTIATOOR SARASWATHI, D/O. LATE CHIRUTHAYI AMMA, KEERIKUNNUMMAL HOUSE, P.O. KAKKAYANGADI, VIA PERAVOOR, KANNUR DISTRICT. *SUPPL. APPELLANTS 8 & 9 ARE IMPLEADED AS THE LEGAL HEIRS OF DECEASED 3RD APPELLANT VIDE ORDER ON CMP. 6188/2002 DT. 22.11.02. SUPPL. APPELLANTS 1O TO 14 IMPLEADED. 10. PALLIKKARA KUTTIATTOOR KARTHIYAYANI AMMA, D/O. LATE P.K. MATHU AMMA, KEERIKUNNUMMAL HOUSE, PALA, P.O. KAKKAYANGAD, VIA PERAVOOR 670 673. 11. DO. BALAKRISHNAN, S/O. DO. DO. DO. 12. DO. KAMALAKSHI, DO. DO. 13. DO. MADHAVAN, S/O. DO. DO. 14. DO. LAKSHMIKUTTY, D/O. DO. DO. SUPPLEMENTAL APPELLANTS 1`0 TO 14 ARE IMPLEADED AS LEGAL REPRESENTATION OF THE DECEASED IST APPELLANT AS PER ORDER DTD. 11.4.03 ON CMP. 1579/03. BY ADV. SRI.K.V.SOHAN RESPONDENT(S): PLAINTIFFS -------------------------------------------- 1. KALATHUMKANDY MURIKKOLI SANTHAKUMARI, MUZHAKUNNU AMSOM, PALA DESOM, THALASSERY TALUK, KANNUR DT. 2. DO. DO. LAKSHMANAN, DO. DO. A.S. NO.69/2000 3. DO. DO. GIRIJA, DO. DO. 4. DO. GOVINDAN, DO. DO. 5. DO. DO. VANAJA, DO. DO. 6. DO. DO. MURALEEDHARAN, DO. DO. 7. DO. DO. KRISHNAN, DO. DO. ADVS. SRI.T.A.RAMADASAN SMT.S.ANITHA SRI.CIBI THOMAS THIS APPEAL SUITS HAVING BEEN FINALLY HEARD ON 02/08/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ORDER ON CMP. NO.638/2000 IN AS. NO.69/2000 DISMISSED 02/08/2010 SD/- M.N.KRISHNAN, JUDGE TRUE COPY P.A. TO JUDGE tss M.N. KRISHNAN, J. ........................................... A.S.NO.69 OF 2000 ............................................. Dated this the 2nd 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, Thalassery in O.S.No.335/1993. The suit is one for partition with respect to five items of property and the court below has ordered partition of items 3 and 4 by dividing it into 18 equal shares and to allot one such share to the plaintiffs and to divide 7.5 acres of of land in item 5 into 9 equal shares and to allot one out of 9 shares to the plaintiffs. It is against that decision, the defendants have come up in appeal. 2. Since there is no cross objection or any other appeal, the point that has to be determined in the case is with respect to items 3 and 4 and 7.5 acres of land in item 5. Items 3 and 4 of the plaint schedule property had been jointly acquired by Lakshmi Amma and Govindan Nambiar or in other words Lakshmi Amma did have half right over the property. Lakshmi Amma had 9 children of which defendants 1 to 5 are alive and others are Kunhikrishnan Nambiar, : 2 : A.S.NO.69 OF 2000 Govindan Nambiar, Rayarappan Nambiar and Thambayi Amma. Lakshmi Amma died in the year 1973 and Kunhikrishnan Nambiar died in 1997. It is the contention of the defendants that they had partitioned the property in the year 1972 and therefore there is no property available for partition. With respect to items 3 and 4, the trial court had considered it elaborately in para-13 of the judgment. It is a joint acquisition as per Ext.A3 assignment deed in 1954. As per that, Lakshmi Amma is having half right over the property. 3. It is the contention of defendants 1 to 5 that the said property was in the exclusive possession of late Govindan Nambiar and on his death it had devolved upon the defendants. It is further contended that as per Ext.B9 partition deed, item 4 was set apart to the 5th defendant. It has to be remembered that neither Lakshmi Amma nor legal representatives of deceased Kunhikrishnan Nambiar namely the plaintiffs were party to Ext.B9 document. The trial court after an elaborate consideration found that the contention that item 4 taken in Ext.B9 partition deed is : 3 : A.S.NO.69 OF 2000 incorrect and it did not take in either items 3 or 4 of the plaint schedule. The court below also found that Ext.A10 is a partition deed entered into between defendants 1 to 5 in the year 1993 regarding items 3 and 4 and other properties. Therefore the contention that Lakshmi Amma did not have any right over the property cannot be of any avail to them. The court below also found that since the plaintiffs are children of Kunhikrishnan Nambiar, they are also entitled to one out of 18 shares of the plaint schedule. Therefore, I hold that the said finding does not call for any interference. 4. The next question is regarding 7.5 acres of property comprised in item 5 of the plaint schedule. Admittedly the said property was obtained as per Ext.B4 assignment deed in 1945. It was in the name of Lakshmi Amma. The contention of the defendants is that the said property was in the exclusive possession of Rayarappan Nambiar from 1962 onwards and on his death by virtue of Ext.B9 partition deed other legal representatives have divided the property. It is not known or stated how : 4 : A.S.NO.69 OF 2000 Rayarappan Nambiar got the property. At a later stage, they would contend that all the children of Lakshmi Amma except Kunhikrishnan Nambiar had taken lease of the property and that property has been divided by virtue of Ext.B9. It has to be stated that there is no consistent case regarding any lease and therefore, the lease set up by the defendants either on Rayarappan Nambair or on all the children of Lakshmi Amma except Kunhikrishnan Nambair were holding the property as lessees also cannot be accepted. When it is so, the property covered by item 5 to an extent of 7.5 acres has to be treated as the property of Lakshmi Amma. Lakshmi Amma died in the year 1973. Ext.B9 does not take in Lakshmi Amma or legal representatives of Kunhikrishnan Nambair. That document will not take away the right of persons as the children of the pre-deceasd son. The plaintiffs are entitled to one share over the property and therefore the finding of the trial court that they are having one out of 9 shares in the property is acceptable and valid. So from these discussions, I find that items 3 and 4 and 7.5 acres in item 5 are properties which : 5 : A.S.NO.69 OF 2000 are partible as stated in the previous paragraphs. This is what is exactly done by the trial court. Therefore the judgment and decree of the trial court do not call for any interference and therefore the appeal is dismissed but without any order as to costs. M.N. KRISHNAN, JUDGE cl : 6 : A.S.NO.69 OF 2000 M.N. KRISHNAN, J. ........................................... A.S.NO.69 OF 2000 ............................................. 2nd day of August, 2010. J U D G M E N T