IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR WEDNESDAY, THE 20TH JULY 2011 / 29TH ASHADHA 1933 RSA.No. 433 of 2011() --------------------- AS.44/2000 of SUB COURT, PAYYANNUR OS.232/1996 of MUNSIFF COURT, PAYYANNUR .................... APPELLANT/RESPONDENT/ 2ND DEFENDANT : --------------------------------------------------- THULLUVAN VEETTIL NEELAKANDAN NAIR, AGED 59,S/O.LATE THULLUVAN VEETTIL MEENAKSHI AMMA, ERAMAM AMSOM AND PEROOL DESOM,P.O.M.M BAZAR, KANNUR DISTRICT. BY ADV. SRI.T.K.VIPINDAS RESPONDENT/ APPELLANT/ PLAINTIFF : --------------- THULLUVAN VEETTIL PARVATHI AMMA,AGED 47, D/O.LATE MEENAKSHI AMMA,RESIDING AT PULLOOR VILLAGE,P.O HARIPURAM,KANHANGAD,HOSDURG TALUK, KASARGOD DISTRICT. PIN - 671 531. ADV. SRI.MAHESH V RAMAKRISHNAN THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 20/07/2011, ALONG WITH RSA NO.434 OF 2011 THE COURT ON THE SAME DAY PASSED THE FOLLOWING: M.SASIDHARAN NAMBIAR,J. ----------------------------------- R.S.A.NO.433 OF 2011 & R.S.A.NO.434 OF 2011 --------------------------------- Dated20th July, 2011 JUDGMENT Second defendant in O.S.232 of 1996 on the file of Munsiff court, Payyannur is the appellant. Respondent is the plaintiff. The first defendant died during the pendency of the suit and appellant was recorded her legal heir. The suit was filed for partition and allotment of 1/3 share due to the respondent. Plaint schedule property admittedly acquired by first defendant mother and appellant and respondent her children, under Ext.A1 assignment deed dated 25.2.1973. Subsequently, appellant along with the first defendant assigned RSA 433 & 434/11 2 their 2/3 right in favour of Kunhiraman under Ext.B1 assignment deed dated 31.7.1974. Later appellant purchased the rights of Kunhiraman under Ext.B2 sale deed dated 8.10.1993. Thus appellant is having 2/3 shares and respondent the remaining 1/3 share. The suit was for partition and separation of that share. The trial court passed a preliminary decree. It was confirmed in appeal. The appellant is not disputing the right of the respondent to get her 1/3 share separated. The only surviving dispute is with regard to the reservation of the house provided by the modified preliminary decree in the appeal by Sub Court, Payyannur. The respondent in the plaint pleaded that she constructed the house in the plaint schedule property with her funds after obtaining the permission of the appellant and the first defendant, under Ext.A2, unregistered agreement RSA 433 & 434/11 3 dated 25.2.1973 and therefore, the house is not available for partition and it is to be alloted to her share without valuation. Appellant resisted the claim for reservation contending that Ext.A2 is a fabricated document and it was not executed by the appellant and his mother, explaining that making use of a signed stamp paper given to the brother of the husband of the respondent, Ext.A2 was created. It was also contended that the property covered under Ext.A2 is not the plaint schedule property, but the tarward property. 2. Learned Munsiff on the evidence found that Ext.A2 was executed by the appellant and his mother. But it was found that it is not in respect of the plaint schedule property and therefore, held that appellant is not entitled to claim reservation of the house based on Ext.A2. A preliminary decree was passed RSA 433 & 434/11 4 directing division of the plaint schedule property into three shares and allotment of one share to the respondent. Appellant filed A.S.48/2000 before Sub Court, Payyannur, challenging the preliminary decree. Respondent filed A.S.44/2000 challenging the refusal of the reservation claimed in respect of the house. Learned Sub Judge on re-appreciation of the evidence found that Ext.A2 is in respect of the plaint schedule property and respondent constructed the house on obtaining permission of the appellant and his mother and held that the respondent is entitled to reservation. Preliminary decree was modified holding that the house situated in the plaint schedule property constructed by the respondent is not available for partition and it is to be allotted to the respondent. These appeals are filed challenging the decree. R.S.A.433/2011 is RSA 433 & 434/11 5 filed against the decree in A.S.44/2000 and R.S.A.434/2011 challenging the decree in A.S.48/2000. 3. Learned counsel appearing for the appellant and learned counsel appearing for the respondent, who appeared as notice was ordered in the application filed under Section 5 of Limitation Act to condone the delay, were heard. 4. Argument of the learned counsel appearing for the appellant is that even if Ext.A2 is accepted as an agreement executed by the appellant, it is not in respect of the plaint schedule property. Learned counsel would argue that as rightly found by the learned Munsiff, when the husband of the respondent was examined as PW1, it was admitted that it is not in respect of the property obtained under Ext.A1 but in respect of tharawad property and therefore, first RSA 433 & 434/11 6 appellate Court was not justified in granting the reservation. Learned counsel pointed out that Ext.A2 shows that permission granted thereunder is in respect of joint property belonging to the tharawad, which is to be divided and not the property purchased from Narayanan Nair under Ext.A1 and therefore, Ext.A2 does not relate to the plaint schedule property. Learned counsel also argued that first appellate court was not justified in relying on Ext.A6, as appellant was not a party to Ext.A6 proceedings and there is no evidence to prove that Ext.A2 is in respect of the plaint schedule property, and hence the finding that the house was constructed pursuant to Ext.A2 and therefore, not available for partition is not correct. 5. Learned counsel made available copies of Ext.A2 and A6 and the depositions of RSA 433 & 434/11 7 the witnesses examined before the trial court. On hearing the learned counsel I do not find any substantial question of law involved in the appeal. 6. True, Ext.A2 agreement shows that permission granted thereunder is in respect of a joint property owned by the appellant, respondent and their mother. What is stated therein is it is that tharawad property. The plaint schedule property is admittedly not the tharawad property, but a property jointly acquired under Ext.A1 from Narayanan Nair. It is also true that when PW1 was confronted with the recitals in Ext.A1, he deposed that Ext.A2 shows that it is in respect of tharawad property and not in respect of the property purchased from Narayanan Nair. At the same time, it is not disputed that appellant was an employee of Morazha Kalliassery Service Co- RSA 433 & 434/11 8 operative Bank and proceedings were initiated by the bank for realisation of the amount due from the appellant. It is also admitted that immovable properties as well as movable properties from the residential house were attached. Respondent along with her mother filed a claim petition contending that the movables attached are from her house constructed with the permission of other co-owners under Ext.A2. Under Ext.A6 order, claim petition was allowed. It is also not disputed that challenging Ext.A6 order, the bank instituted O.S.119/1985 before Sub Court, Thalassery. Respondent was the second defendant, and appellant was the first defendant and the mother was the fourth defendant. Ext.A8 is the written statement filed by the appellant in that suit. In Ext.A8 written statement, appellant unambiguously RSA 433 & 434/11 9 admitted that the house from which E schedule movables were attached belong exclusively to the respondent. Ext.A6 establishes that the claim petition was filed on the strength of Ext.P4 marked therein, which is Ext.A2 agreement in this case. Though learned counsel argued that there is no evidence to prove that Ext.A2 was Ext.P4 in Ext.A6 proceedings, the evidence would establish that Ext.A2 was produced and marked as Ext.P4. Appellant, when examined as DW1, unambiguously admitted this fact. It is therefore, clear that it was based on Ext.A2 agreement respondent claimed right over the attached movables properties in that proceedings and Sale Officer upheld the claim and found that under Ext.A2, respondent is entitled to the attached movable properties. When that order was challenged before Sub court, Ext.A8 written statement establishes RSA 433 & 434/11 10 that appellant admitted that the house belong to the respondent. Therefore, the only question is whether the movables were attached from the plaint schedule house or from another house as canvassed by the appellant. 7. Evidence of the appellant as DW1 establishes that subsequent to execution of Ext.A1, under Ext.B1 sale deed, appellant and his mother transferred their right in favour of Kunhiraman in 1974 and only under Ext.B2 assignment deed dated 8/10/1993 the property was obtained back by the appellant alone from Kunhiraman in 1993. Evidence of DW1 establishes that the movables were attached from the house covered under Ext.B1, which could only be the house in the plaint schedule property, as even according to the appellant under Ext.B2 appellant regained the 2/3 right available with Kunhiraman in respect of the RSA 433 & 434/11 11 plaint schedule property. Therefore, appellant is not entitled to contend that the house from which the movables were attached, is from another house and not from the house in the plaint schedule property. If that be so, it is clear that appellant is not entitled to contend that permission granted under Ext.A2 is not in respect of the house in the plaint schedule property, but it is in respect of another house. On the evidence, I do not find any reason to interfere with the factual findings of the first appellate court that under Ext.A2, permission was granted to the respondent to construct a house in the plaint schedule property, which was constructed later. Therefore, respondent is entitled to the reservation of the house granted by the first appellate court and no interference is warranted. RSA 433 & 434/11 12 Learned counsel argued that even if Ext.A2 is a valid agreement executed by the appellant, there was no consideration and therefore, it is void. Under Ext.A1, no right was transferred. It was only a permission granted by two co-owners to the remaining co-owner to construct a house in the co- ownership property. No consideration is necessary for granting such permission. Therefore, for want of consideration also it cannot be contended that Ext.A2 is void. Appeals are dismissed. M.SASIDHARAN NAMBIAR, JUDGE. uj.