IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.Q.BARKATH ALI TUESDAY, THE 12TH JANUARY 2010 / 22TH POUSHA 1931 AS.No. 522 of 1996() -------------------- OS.638/1991 of ADDL.SUB COURT, IRINJALAKUDA .................... APPELLANT(S): DEFENDANT -------------- KOCHUTHERESA, W/O. KANNUKKADAN DEVASSY, NOW RESIDING AT VELLANCHIRA P.O., VIA. KALLETTUMKARA, THRISSUR DIST. BY ADV. SRI.K.G.BALASUBRAMANIAN RESPONDENT(S): 1ST PLAINTIFF --------------- ANTONY, S/O. MAROTTIKKAL ANTONY, EAST CHALAKUDY, CHALAKUDY P.O., THRISSUR DIST. ADV. SRI.P.R.VENKETESH THIS APPEAL SUIT HAVING BEEN FINALLY HEARD ON 1/10/;2009, THE COURT ON 12/01/2010 DELIVERED THE FOLLOWING: C.M.P. 3221 OF 1996 IN AS.No. 522 of 1996 ........ DISMISSED. 12.1.2010. SD/- P.Q.BARKATH ALI, JUDGE. P.Q. BARKATH ALI, J. ------------------------------------------------------ A.S. 522 of 1996 ------------------------------------------------------ Dated: JANUARY 12, 2010 JUDGMENT The challenge in this appeal by the defeated defendant is to the judgment of the Additional Sub Judge, Irinjalakuda, dated March 15, 1996 in OS. 638/1991 granting a preliminary decree for partition and separate possession of first plaintiff's half share over the plaint A schedule immovable property and B schedule amounts with mesne profits. 2. The appellant is the defendant and the respondent is the 1st plaintiff in the suit. There were six plaintiffs in the suit. The case of the plaintiffs as testified by the 1st plaintiff as PW.1 before the lower court and as detailed in the plaint in brief is this: The respondent/1st plaintiff is the father and the 2nd plaintiff is the mother of the deceased Rappai, who died on January 25, 1991. Plaintiffs 2 to 6 are the brothers and sisters of deceased Rappai. Plaint A schedule property was purchased by the deceased Rappai and he constructed a house therein. Plaint B schedule is the Gratuity, Provident Fund and Group Insurance Scheme amounts belonged to the deceased. Plaintiffs claimed one-half share over the plaint A schedule property and B schedule amounts. Plaintiffs and defendant are Christians governed by Indian Succession Act. 3. The appellant/defendant, who is the wife of deceased Rappai, AS 522/96 2 resisted the suit contending that the plaint A schedule property was purchased and the house therein was constructed out of her money, that after the death of Rappai, she had discharged the debt of deceased Rappai to the tune of Rs.60,000/- and that if the properties are partitioned, one half of that amount should be reimbursed to her. She further contended that as plaint A schedule property is in the possession of plaintiffs, she is entitled to mesne profits. 4. PWs.1 to 3 were examined and Exts.A1 to A5 were marked on the side of the respondent/1st plaintiff. Dws.1 to 9 were examined and Exts.B1 to B21 were marked on the side of the appellant/defendant. Exts.X1 to X3 series were also marked. 5. The leaned Sub Judge on an appreciation of evidence found that 1st plaintiff and defendant are the legal heirs of deceased as provided under secs.33 and 42 of the Indian Succession Act and granted a preliminary decree for partition and separate possession of 1st plaintiff's half share over plaint A schedule property and B schedule amounts with mesne profits. The claim of the defendant for reimbursement of the alleged debt discharged by her is rejected by the lower court. The defendant has now come up inn appeal challenging the said decree and judgment. 6. The following point arises for consideration:- Whether the decree and judgment of the lower court can be sustained? The Point 7. The fact that plaint A schedule property belonged to AS 522/96 3 deceased Rappai by virtue of sale deed Ext.A1 (copy) dated May 31, 1986 and that plaint B schedule amounts are the death-cum- retirement benefits i.e. Provident Fund, Gratuity etc. of deceased Rappai and that on his death it devolved in equal shares to respondent/1st plaintiff and appellant/defendant is not disputed. 8. Counsel for the appellant mainly argued that the appellant has spent about Rs.60,000/- to discharge the debt of deceased Rappai and that therefore at the time of partition half of that amount should be reimbursed from 1st plaintiff. This is disputed by the 1st plaintiff. Therefore the question for consideration is whether the defendant has proved her case regarding the alleged discharge of debt of deceased Rappai to the tune of Rs.60,000/-. Defendant examined Dws.1 to 9 and produced Exts.B1 to B21 to prove her case before the trial court. Ext.B1 is the receipt issued by DW.6, defendant's sister's son dated November 8, 1991 for Rs.10,000/-. DW.6 would say that he paid the amount in May 1985 for the purchase of the property. But Ext.A1 is in 1986. Further Ext.B1 is after the date of suit notice on 30.10.1991. Therefore the lower court is perfectly justified in rejecting the same. 9. Ext.B2 is the receipt issued by DW.3, the father of DW.6, for Rs.10,000/-. But Ext.B2 bears no date. DW.6 testified that defendant paid that amount on 8.11.1992 i.e. after the filing of the suit. DW.6 has testified that DW.3 is not financially sound to pay any amount. Therefore, the lower court is right in not relying on Ext.B2. Ext.B3 is a receipt for Rs.3,000/- issued by DW.5 who is a teacher in St. Joseph's AS 522/96 4 Convent Lower Primary School, Elanjippara wherein defendant was also employed. It is dated March 5, 1992, after the date of suit. It is clear from the above that the same cannot be relied on. 10. Ext.B4 is a receipt for repayment of Rs.8493.50 issued by M.J.Cherian, Peon of AUP School, Meloor dated 17.10.1991. Ext.B5 dated 20.10.1991 is a receipt for Rs.10,000/- issued by DW.4, the sister of defendant. Ext.B6 is a receipt issued by P.P.George, teacher of St.Joseph's H.S., Angamaly for repayment of Rs.3673/- dated 12.9.1991. Ext.B7 is a receipt issued by Sri C.I.Ouseph for Rs.8130/- dated 12.9.91. Ext.B8 is a receipt dated 12.9.91 for Rs.1195/- issued by Sri M.A. Johnson. As these receipts are seen issued prior to the date of suit notice i.e. prior to 30.10.1991, I feel that those receipts can be accepted and the version of PW.1 that the repayments made thereunder were for discharging the debt incurred by the deceased Rappai can be believed. The learned Sub Judge has observed that the repayments mentioned in those receipts were not mentioned in the written statement and that therefore those receipts cannot be accepted. But in the written statement the defendant has averred that she had discharged the debts incurred by the deceased Rappai to the tune of Rs.60,000/-. Therefore merely because the repayments mentioned in those receipts were not mentioned in the written statement, those receipts cannot be discarded. Therefore accepting Exts.B4, B5, B6, B7 and B8, I hold that defendant has repaid Rs.21,391/- towards the debt incurred by the deceased Rappai and half AS 522/96 5 of that amount she is entitled to get reimbursement from 1st plaintiff. 11. As regards Ext.B17 series receipts issued by the Kuri company, those were obtained after the filing of the suit. The receipts Ext.B9 and B10 allegedly issued by Mrs. Baby Devassy for Rs.500/- and Mr. M.o.Jose for Rs.545/- respectively do not bear any date. Therefore the lower court is justified in rejecting the same. 12. As regards the plaint B schedule amounts which is the death-cum-retirement benefits of deceased Rappai received by defendant, Ext.X1, X2, X3m X4 series, X5 series prove the total amount as Rs.70,992/- which is not disputed by defendant and 1st plaintiff has half share over the same. 13. For all these reasons the preliminary decree passed by the lower court has to be confirmed, but the defendant will be entitled to reimbursement of Rs.10,695/- as found above from 1st plaintiff which she is entitled to adjust in the final decree in the amount due to 1st plaintiff from plaint B schedule amount. In the result, confirming the decree and judgment of the lower court, the appeal is dismissed. In the circumstances, parties shall bear their own costs. P.Q. BARKATH ALI, JUDGE mt/-