IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.BHAVADASAN THURSDAY, THE 15TH DECEMBER 2011 / 24TH AGRAHAYANA 1933 SA.No. 661 of 2000(D) --------------------- AS.386/1991 of III ADDL. DISTRICT COURT, TRIVANDRUM OS.1581/1989 of II ADDL.M.C.,NEYYATTINKARA .................... APPELLANT / APPELLANT/ DEFENDANT: -------------- KUMARAN RAGHAVAN, KALLIKKATTU VEEDU, VADACODE DESOM PERUMPAZHUTHOOR VILLAGE. BY ADVS. SRI.K.JAJU BABU SMT.C.S.SHEEJA SMT.A.S.BEENU SRI.BRIJESH MOHAN SRI.M.V.BIPIN RESPONDENT(S): --------------- VELAYUDHAN BHASKARAN, KALLIKATTU PUTHEN VEEDU, VADACODE DESOM, PERUMPAZHUTHOOR VILLAGE. BY ADV. SRI.L.MOHANAN THIS SECOND APPEAL HAVING BEEN FINALLY HEARD ON 15/12/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: kkj P.BHAVADASAN, J. - - - - - - - - - - - - - - - - - - - - S.A.No. 661of 2000 - - - - - - - - - - - - - - - - - - - - - - - Dated this the 15th day of December , 2011 J U D G M E N T The defendant in O.S.No.1581 of 1989 before the Additional Munsiff Court, Neyyattinkara who suffered a preliminary decree for partition is the appellant. 2. The parties and facts hereinafter referred to as they are arrayed before the trial court. 3. The plaintiff laid claim to 2 cents out of the 4 cents covered by Ext.A2 and A3 documents in favour of the plaintiff’s parents. The plaintiff claims to have obtained right to the property over which the partition is sought by virtue of Ext.A1 dated 07.10.1989, a settlement deed said to have been executed by his mother. Pointing out that he did not wish to continue the joint possession, the suit was laid. 4. The defendants resisted the suit by pointing out that the plaintiff’s mother has no manner of right over the suit property and it belonged exclusively to Velayudhan, father of the plaintiff who had assigned the property and -:2:- S.A.No. 661of 2000 ultimately it came to vest with the defendant. He therefore prayed for a dismissal of the suit. 5. On the basis of the above pleadings, issues were raised. The evidence consists of the testimony of PW1 and documents marked as Exts.A1 to A3. The defendants had Exts.B1 to B5 series marked. No oral evidence had been adduced by the defendants. 6. On an appreciation of the evidence before it, the court below came to the conclusion that the claim of the defendant that Velayudhan alone had right over the suit property was not acceptable and that the plaintiff is entitled to a preliminary decree for half share of the property of which he sought partition. The defendant who was aggrieved by the preliminary decree passed by the trial court preferred A.S.No.386 of 1999 before Additional District Court, Thiruvananthapuram. The appellate court after an independent consideration of the evidence in the case, concurred with the trial court and dismissed the appeal. Hence this second appeal. -:3:- S.A.No. 661of 2000 7. Notice is seen issued on the following questions of law:- (i) In the facts and circumstances of the case, whether the courts below are justified in holding that the plaint schedule property is liable to partitioned? (ii) Ext.A1 document has got any legal validity and the courts below were justified in accepting the same which is not properly proved? (iii) In the facts and circumstances of as the case, has the plaintiff got any legal right to claim partition? (iv) Whether the findings of the courts below are legally justified? (v) Whether in the facts and circumstances of the case, the courts below are justified in decreeing the suit filed by the plaintiff? 8. The question that arises for consideration is that whether the finding of the courts below that the property covered by Ext.A1 and A2 is not the same as the property covered by Exts.B1 to B4 is correct? 9. The learned counsel appearing for the appellant pointed out that the finding of the court below that properties covered by Exts.A2 and A3 and Exts.B1 to B4 are different cannot be sustained. A reading of the recitals in -:4:- S.A.No. 661of 2000 the various documents clearly show that they are identical properties. The learned counsel pointed out that if that be so, the plaintiff’s mother had no right over the suit property which she could have gifted to the plaintiff and therefore the suit has dismissed. 10. The learned counsel appearing for the respondent on the other hand pointed out that the plaint A schedule property is a portion of the property obtained by the parents of the plaintiff under Exts. A2 and A3. Out of the 14 cents obtained under these documents, partition was sought for only on 4 cents. The claim was laid on with respect to 2 cents out of the 4 cents obtained under Exts.A2 and A3. The learned counsel pointed out that the courts below were justified in coming to the conclusion that Exts.B1 to B4 related to a different property. 11. The issue could have been simplified by looking it at from another angle. Exts. A2 and A3 are admitted documents. Ext.A2, the mortgage deed of the year 1117 and Ext.A3 is the receipt of the same mortgage. Properties -:5:- S.A.No. 661of 2000 covered by both the documents are identical. It consist of three items of properties namely 5 cents known as Kallikattu Purayidom, the middle 4 cents known as Manackakam Purayidom and 5 cents on the northern side known as Panayil Vadakkedath. The mortgage was in favour of the parents of the plaintiff. The claim of the defendant that even though the name of the mother of the plaintiff was included in the documents she had no right been found against. Being concurrent findings on fact, that finding cannot call for any interference. 12. If that be so, out of the 14 cents conveyed under Exts.A2 and A3, the plaintiff' mother had right over 7 cents which she could deal with as she liked and that is precisely what she has done by executing Exts.A1 document. 13. The present suit is only in respect of the middle portion 'Manackakam property' that is 4 cents out of 18.5 cents of which the plaintiff has only ½ share that is 2 cents. That is shown as the B schedule property. Since the case of the defendant that the plaintiff's mother had no right was -:6:- S.A.No. 661of 2000 found against, no objection can be taken to the claim of partition put forward by the plaintiff. The courts below were justified to that extent in coming to the conclusion that the plaintiff is entitled to a preliminary decree for partition and separate allotment of plaint B schedule property. The apprehension expressed by the learned counsel for the appellant is that Velayudhan had another 4 cents of property which is dealt with under Exts.B1 and B4 and under the guise of present suit, attempt may made to get partition of the property so obtained by Velayudhan independent of Exts.A2 and A3. 14. The apprehension seems to be misplaced. However the courts below have embarked on a scrutiny as to whether Exts.B1 to B4 taking the same documents property as covered by Exts.A2 and A3. It is quite unnecessary. It is clear that the plaintiff lays claim only to that portion of the property covered by Exts.A2 and A3. To be more specific 4 cents out of 18.5 cents conveyed under Exts.A2 and A3 and to no other property. -:7:- S.A.No. 661of 2000 15. Therefore the only clarification required is that the plaintiff will be entitled to partition of only 4 cents out of 18.5 cents of property mentioned by Exts.A2 and A3 which is described as Manackakam property. To the said right of the plaintiff, the defendant has no objection. Subject to the above clarification this appeal is dismissed. There will be no order as to costs. BHAVADASAN JUDGE kkj