IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.BHAVADASAN FRIDAY, THE 18TH FEBRUARY 2011 / 29TH MAGHA 1932 SA.No. 126 of 1999(F) -------------------------- AS.179/1996 of SUB COURT, NEDUMANGAD OS.277/1989 of PRL.MUNSIFF COURT,NEDUMANGAD .................... APPELLANT(S):APPELLANT/1ST DEFENDANT ---------------------------------------------------- JAYACHANDRAN ASSARI, S/O. NARAYANAN ASSARI, RESIDING AT PARAYANVILAKATHU MELATHIL VEEDU, THUVALOORKONAM, PARACHAL MURI, KULATHUMMAL VILLAGE. BY ADVS. SRI.L.MOHANAN SRI.D.SAJEEV SMT.SINDHU MANOJ RESPONDENT(S):RESPONDENTS(PLAINTIFFS AND DEFTS. 2 AND 3 ------------------------------------------------------------------------------ *1. SIVANADAN ASSARI, S/O. NARAYANAN ASSARI, FROM PARAYANVILAKATHU VEEDU, PARACHAL MURI, KULATHUMMAL VILLAGE, RESIDING AT T.C.43/287, NAYAKODU VEEDU, MANAKKAD, SREEVARAHAM, MUTTATHARA VILLAGE, THIRUVANANTHAPURAM.(DIED). 2. NAGAPPAN ASSARI, S/O. NARAYANAN ASSARI, GEETHA BHAVAN, THUVALOORKONAM, PARACHAL MURI, KULATHUMMAL VILLAGE. 3. PADMAKUMARI, D/O. DEVAKI AMMA, BINDU BHAVAN, KULATHINKARA KUSAVOORKONAM, VENPAKAL, ARALUMMODU VILLAGE, NEYYATTINKARA TALUK, FROM PARAYANVILAKATHU VEEDU, PARACHAL MURI, KULATHUMMAL VILLAGE. **4. DEVAKI AMMA, RESIDING AT PARAYANVILAKATHU MELATHIL VEEDU, THUVALOORKONAM, PARACHAL MURI, KULATHUMMAL VILLAGE. (DIED) LR'S RECORDED. svs ............2/-... ...2... S.A. NO.126/1999 5. SUNDAREASAN ASSARI, S/O. NARAYANAN ASSARI, RESIDING AT -DO- -DO- ** ADDL. R6 TO R10 IMPLEADED 6. P.SARASWATHY AMMA, W/O. LATE SIVANADAN ASSARI, T.C.43/287,NAYAKODU VEEDU, PARACHAL MURI, KULATHUMMAL VILLAGE, MANAKKAD, SREEVARAHAM, MUTTATHARA VILLAGE, THIRUVANANTHAPURAM. 7. S. SREEKUMAR, S/O.LATE SIVANADAN ASSARI, T.C.43/287,NAYAKODU VEEDU, PARACHAL MURI, KULATHUMMAL VILLAGE, MANAKKAD, SREEVARAHAM, MUTTATHARA VILLAGE, THIRUVANANTHAPURAM. 8. S. SAJI, S/O.LATE SIVANADAN ASSARI, T.C.43/287,NAYAKODU VEEDU, PARACHAL MURI, KULATHUMMAL VILLAGE, MANAKKAD, SREEVARAHAM, MUTTATHARA VILLAGE, THIRUVANANTHAPURAM. 9. AJITHA, S., D/O.LATE SIVANADAN ASSARI, T.C.43/287,NAYAKODU VEEDU, PARACHAL MURI, KULATHUMMAL VILLAGE, MANAKKAD, SREEVARAHAM, MUTTATHARA VILLAGE, THIRUVANANTHAPURAM. 10. S. AJI, S/O. LATE SIVANADAN ASSARI, T.C.43/287,NAYAKODU VEEDU, PARACHAL MURI, KULATHUMMAL VILLAGE, MANAKKAD, SREEVARAHAM, MUTTATHARA VILLAGE, THIRUVANANTHAPURAM. * ADDL. R6 TO R10 ARE IMPLEADED AS THE LR'S OF THE DECEASED FIRST RESPONDENT VIDE ORDER DATED 10/07/2009 IN.I.A. NO.181/2004. ** APPELLANT & RESPONDENTS 1 TO 3 AND 5 ARE RECORDED AS THE LEGAL HEIRS OF THE DECEASED 4TH RESPONDENT AS PER ORDER DATED 30/05/2000 IN C.M.P. NO.1076/1999. R1 TO R3 BY ADV. SRI.G.S.REGHUNATH THIS SECOND APPEAL HAVING BEEN FINALLY HEARD ON 18/02/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: svs ORDER ON C.M.P. NO.374/1999 & I.A. NO.1957/2005 IN S.A. NO.126/1999 CLOSED 18/02/2011 SD/- P.BHAVADASAN, JUDGE /TRUE COPY/ P.A. TO JUDGE svs P.BHAVADASAN, J. ------------------------------------- SA No.126 of 1999-F ------------------------------------- Dated this the 18th day of February 2011 Judgment The first defendant in OS No.277/89 before the Munsiff's Court, Nedumangad, who suffered a preliminary decree for partition, is the appellant before this court. The parties and facts are hereinafter referred to as they are available before the trial court. 2. The plaintiffs and defendants 1 and 3 are siblings of late Narayanan Assari and the second defendant. It is not in dispute that the plaint schedule property belonged to late Narayanan Assari. Consequent on his death, the plaintiffs claimed that the plaint schedule property devolved on them by the law of succession and they are co-owners of the suit property. Since they did not wish to continue the joint status, they sued for partition, claiming 3/6 share over the suit property. SA 126/99 2 3. The suit was resisted by the first defendant. He pointed out that the suit is bad for partial partition. According to him, the second defendant, styling herself as the sole legal heir of late Narayanan Assari, as per the personal law applicable to them, executed Ext.B1 sale deed in relation to the suit property in his favour. The contention was that property is not available for partition. On the above pleadings, necessary issues were raised by the trial court. The evidence consists of the documents marked as Exts.A1 to A4 from the side of the plaintiffs. The first defendant had DW1 examined and Exts.B1 and B2 marked. 4. The trial court, on a consideration of the materials on record, found the contentions of the first defendant to be untenable and passed a preliminary decree for partition. The aggrieved first defendant carried the matter in appeal as AS No.179/96 before the Sub Court, Nedumangad. It is stated that before the appellate court, the appellant had produced a settlement deed SA 126/99 3 executed by his mother, which is more or less similar to Ext.B1 in respect of some other property in favour of some of the children of late Narayanan Assari, which was not challenged by any body and which was accepted by all persons. Since a similar recital is there in Ext.B1 also, the contention was that the lower appellate court ought to have accepted it and held that the property is not available for partition. The lower appellate court did not accept the contention and confirmed the decree of the trial court. Hence the second appeal. 5. Notice is seen issued on the following questions of law raised in the second appeal : 1.Whether the courts below have applied the correct principles of law regarding estoppel by deed when the respondents have accepted and admitted the status of mother as the sole legal heir of their father. 2.Is not the court below misinterpreted the question of law reported in 1966 KLT 181 and thereby the law followed by the parties as modified by custom. SA 126/99 4 3.Is not the parties aware about the law of inheritance prevailing in their community especially when the same was explained in documents which are admitted and acted upon by them. 4.Is not the court below correct in finding that a customary right should be pleaded meticulously and in the absence of such a pleading the parties are not bound to follow their customary right and precedents prevailing in their community ? 5.Is not the court below erred in dismissing the appeal without considering the fresh documents produced before it to substantiate the claim and status of the parties ? 6.Whether the court below is justified in holding that the suit is not bad for partial partition especially when the documents showing the properties of late Narayanan Assari are before court ? 6. The learned counsel for the appellant pointed out that the suit is bad for partial partition and the lower SA 126/99 5 appellate court has not given required significance and consideration to the document produced by him at the appellate stage. That would clearly show that the parties had accepted the second defendant the mother of the plaintiffs and defendants 1 and 3, as the sole legal heir of the deceased Narayanan Assari who had executed another document in favour of the children, giving the properties to them. 7. There is no basis for the above contention at all. In the written statement, it is stated that the parties are governed by the Hindu Succession Act. There is no pleading in relation to any special law as applicable to the parties which makes the second defendant the sole legal heir on the death of Narayanan Assari, to the exclusion of the children. May be that the document produced by the appellant at the appellate stage might have contained a similar recital as contained in Ext.B1. May be also that the parties have accepted that document. But, that does not take away the right, if any, available to the plaintiffs as per SA 126/99 6 the law applicable to them. Having conceded that the parties are governed by the Hindu Succession Act, the appellant cannot, now be heard to say that a different law applies to them. The courts below were, therefore, right in rejecting that contention. 8. The contention of partial partition is based on a document produced by the appellant at the appellate stage and it is pointed out that as a matter of fact, if Ext.B1 is bad, so is the document produced by the appellant at the appellate stage and the property ought to have been made part of the plaint schedule. 9. One must remember here that the first defendant is also in the same position as the plaintiffs in the suit for partition. Nothing prevents the parties from seeking partition of only one item of property, leaving the other properties in common enjoyment. 10. Therefore, the courts below are perfectly justified in declining to accept the contention based on partial partition also. Moreover, if the appellant had a case SA 126/99 7 that properties were not available for partition, nothing prevented him from proceeding in accordance with law in respect of the property. No substantial questions of law arise for consideration in this second appeal. The second appeal is without any merits and it is accordingly dismissed. However, there will be no order as to costs. P.Bhavadasan, Judge sta SA 126/99 8