IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.T.SANKARAN MONDAY, THE 11TH FEBRUARY 2008 / 22ND MAGHA 1929 SA.No. 590 of 1999(C) AS.156/1992 of PRL.SUB COURT,IRINJALAKUDA OS.470/1988 of MUNSIFF COURT, KODUNGALLUR APPELLANT: APPELLANT: 2ND DEFENDANT: ----------- LALITHA. W/O.PUTHOOR VISAKHAN, KAIPAMANGALAM VILLAGE, KODUNGALLUR TALUK. BY ADV. SRI.K.G.BALASUBRAMANIAN RESPONDENTS: RESPONDENTS: PLAINTIFF & FIRST DEFENDANT: ------------- 1. PADMAKSHI, W/O.PUTHOOR VASUDEVAN, KAIPAMANGALAM VILLAGE, KODUNGALLOR. (DELETED) 2. PREETHI, D/O.KARAYIL VELAYUDHAN, -DO- -DO- 3. PRIYA D/O. -DOL- -DO- 4. VISAKHAN, S/O.PUTHOOR VASUDEVAN, -DO- -DO- THE NAME OF FIRST RESPONDENT IS DELETED FROM THE PARTY ARRAY AT THE RISK OF THE APPELLANT AS PER ORDER DATED 9.8.2005 ON I.A.NO.1516/2005. BY THIS SECOND APPEAL HAVING BEEN FINALLY HEARD ON 11/02/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K.T.SANKARAN, J. -------------------------------------------- S.A. NO. 590 OF 1999 -------------------------------------------- Dated this the 11th February, 2008 JUDGMENT The second defendant in O.S.No.470 of 1988, on the file of the Munsiff's Court, Kodungallur, is the appellant in this Second Appeal. The trial court rejected the contentions raised by the appellant and her husband, the first defendant, and decreed the suit for partition declaring 2/3 share to the plaintiffs. On appeal by the appellant, the Appellate Court confirmed the judgment and decree of the trial court. 2. The property belonged to Vasudevan. Vasudevan died. His widow is Padmakshi, first plaintiff in the suit. The children of Vasudevan are Visakhan (the first defendant) and Gowri. Gowri died. Her children are plaintiffs 2 and 3. The appellant is the wife of Visakhan. The appellant as such has no share in the property. The plaintiffs claimed 2/3 share. It was contended that the first plaintiff is entitled to one share and plaintiffs 2 and 3 together are entitled to the share due to Gowri and the first defendant is entitled to another share. The case put forward by the first defendant was that there was an oral partition and that the share of Gowri was paid. The first defendant also raised a contention that certain items of properties were sold by the first plaintiff and that the suit is bad S.A. NO.590 OF 1999 :: 2 :: for partial partition. The contentions raised by the first defendant and his wife the second defendant were rejected by the court below. The case of oral partition was also not accepted due to dearth of sufficient evidence to establish such oral partition. 3. Learned counsel for the appellant submitted that subsequent to the institution of the suit the first respondent (first plaintiff) had transferred her rights in the property to the appellant and her husband (fourth respondent - first defendant) as per registered assignment deed. The document was produced before the Appellate Court and appropriate reliefs were prayed for recognising that the first respondent had assigned her rights to defendants 1 and 2. It is stated in the Memorandum of Appeal that I.A.No.3027 of 1994 was filed by defendants 1 and 2 before the Lower Appellate Court to bring these facts to the notice of the Court and that the Lower Appellate Court failed to consider the same. 4. The shares of the parties have been declared. If a sharer assigns his/her right to another sharer that can be brought to the notice of the Court which deals with the final decree application. It is not necessary to consider the same in the appeal against the preliminary decree. The only ground pressed by the learned counsel for the appellant is that the court should have recognised the right of defendants 1 and 2 being the S.A. NO.590 OF 1999 :: 3 :: assignees of the share of the first plaintiff. It is not necessary to admit the Second appeal to decide this question. It is always open to a party who has obtained a share of another sharer to bring the said fact to the notice of the final decree court by producing the original document and appropriate contentions could be taken for allotment of that share in favour of the assignee. Leaving open this right of the appellant, the Second Appeal is dismissed. (K.T.SANKARAN) Judge ahz/ K.T.SANKARAN, J. ------------------------------------------- ------------------------------------------- S.A.NO. 590 OF 1999 C JUDGMENT 11th February, 2008 -------------------------------------------