IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.P.BALACHANDRAN MONDAY, THE 16TH JUNE 2008 / 26TH JYAISHTA 1930 RSA.No. 400 of 2008 ------------------------- AS.55/2004 of II ADDL. DISTRICT COURT, PALAKKAD OS.281/1999 of PRL.MUNSIFF COURT, PALAKKAD .................... APPELLANTS:DEFENDANTS 1 TO 6/RESPONDENTS 1 TO 6 ----------------------------------------------------------------- 1. MARIAPAPPU, W/O.DORAISAMY, KOTTILPARA, ELAPPULLY AMSOM AND DESOM, PALAKKAD TALUK AND DISTRICT. 2. YAGAPPAN, S/O.DORAISAMY, -DO-, -DO-. 3. PAKIASAMY, S/O.DORAISAMY, -DO-, -DO-, NOW RESIDING AT MANIKARAN CHALLA, VADAKARAPATHY VILLAGE, CHITTUR TALUK, PALAKKAD DISTRICT. 4. HRIDAYASAMY, S/O.DORAISAMY, -DO-, -DO-. 5. CLORA MARY, W/O.THANKAM, ODAKKARAN HOUSE, ERUTHEMPATHY, VADAKARAPATHY VILLAGE, CHITTUR TALUK, PALAKKAD DIST. 6. ANNAMMA, W/O.LATE DHANUSILAS, -DO-,-DO-. BY ADV. SRI.SAJAN VARGHEESE K. SRI.LIJU. M.P RESPONDENTS: APPELLANTS /PLAINTIFF NO.1 AND L.Rs --------------------------------------------------------------- OF PLAINTIFF No. 2 1. ANTHONYSAMY, S/O.DORAISAMY, KOTTILPARA, ELAPPULLY AMSOM DESOM, PALAKKAD DIST. RESIDING AT : KILAKKIVITTAR VEEDU, CHANDRAPURAM, CHANDRAPURAM POST , PALAKKAD DIST. 2. HRIDAYAMARY, W/O.SANTHIYAGU, KOTTILPARA HOUSE, ELAPPULLY AMSOM DESOM, PALAKKAD DIST. RESIDING AT : KILAKKIVITTAR VEEDU, ATTUPATHY, CHANDRAPURAM POST , PALAKKAD DIST. 3. AMALDAS, S/O.SANTHIYAGU, KOTTILPARA HOUSE, ELAPPULLY AMSOM DESOM, PALAKKAD DIST. RESIDING AT : KILAKKIVITTAR VEEDU, SULLIMADA, KANJIKODE P.O, PALAKKAD DIST. 4. ALPHONS MARY, D/O.SANTHIYAGU, AND W/O.RAJU (ANTONY RAJ), KOTTILPARA HOUSE, ELAPPULLY AMSOM DESOM, PALAKKAD DIST. RESIDING AT ATTUPATHY, CHANDRAPURAM POST , PALAKKAD DIST. 5. ROSALIE, D/O.LATE DHANUSILAS, W/O.PETER, KOTTILPARA HOUSE, ELAPPULLY AMSOM DESOM, PALAKKAD DIST. RESIDING AT PARAIKALAM, BEHIND ELIPARA MARKET, KOZHIPARA POST, PALAKKAD DISTRICT. 6. KAROLI, W/O.MARTIN, D/O.LATE DHANUSILAS, KOTTILPARA HOUSE, ELAPPULLY AMSOM DESOM, PALAKKAD DIST. RESIDING AT ODAKKARAN VEEDU, ERUTHENPATHY, ERUTHENPATHY P.O. PALAKKAD DIST. 7. KETHARI, W/O.SELVARAJ, D/O.LATE DHANUSILAS, KOTTILPARA HOUSE, ELAPPULLY AMSOM DESOM, PALAKKAD DIST. RESIDING AT PALAKKATTAR VEEDU, SULLIMADA, KANJIKODE P.O., PALAKKAD DISTRICT. 8. EMILI, W/O.KUMAR, D/O.LATE DHANUSILAS, KOTTILPARA HOUSE, ELAPPULLY AMSOM DESOM, PALAKKAD DIST. RESIDING AT: OLD POST OFFICE STREET NEICKER VEEDU, KOZHIPARA, KOZHIPARA POST, PALAKKAD DISTRICT. 9. ALESU, S/O.LATE DHANUSILAS, KOTTILPARA HOUSE, ELAPPULLY AMSOM DESOM, PALAKKAD DIST. RESIDING AT: PARAIKALAM, BEHIND ELIPARA MARKET, KOZHIPARA P.O., PALAKKAD DIST. THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 16/06/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: K.P. BALACHANDRAN, J. --------------------------------------------------- R.S.A. No 400 of 2008 --------------------------------------------------- Dated this the 16th June 2008 JUDGMENT The defendants 1 to 6 in O.S. No 281 of 1999 on the file of the Munsiff's Court, Palakkad are the appellants in this R.S.A. They challenge in this appeal the decree passed by the first appellate court decreeing the suit in reversal of the judgment passed by the trial court dismissing the suit. 2. Out of the two plaintiffs, the second plaintiff died while the appeal was pending before the first appellate court and supplemental appellants 3 to 5 were impleaded before the first appellate court as legal representatives of deceased second appellant - second plaintiff. The first plaintiff was the first appellant in the first appellate court. The first appellant and supplemental appellants 3 to 5 impleaded in the first appellate court and defendants 7 to 11 are the respondents in this appeal. 3. Original plaintiffs filed O.S.No 281 of 1999 aforesaid for a decree for partition and separate possession of their 2/8 shares in the schedule property on the allegation that the schedule property RSA 400/08 2 originally belonged on “tharikuthu right” to Sandhyagu, paternal grandfather of plaintiffs and defendants 2 to 5 as also Dhanusilas, the deceased father of defendants 7 to 11. The first defendant is the mother of plaintiffs 1 and 2 and defendants 2 to 5. Plaihntiffs alleged that on the death of Sandhyagu his properties had been orally partitioned between his two sons Arogyaswamy and Doraiswamy and the schedule property was obtained on such oral partition by Doraiswamy who died intestate in relation to the schedule property. 4. Defendants filed joint written statement resisting the suit contending that the first defendant who is the widow of Doraiswamy obtained a lease in relation to the schedule property from the jenmis and that she got the property assigned under Ext B1 purchase certificate and she has executed sale deed in respect of a portion of the schedule property in favour of a stranger and has assigned rest of the property to the second defendant and that the property is not partible as the first defendant she was having absolute right. 5. The trial court, considering the pleadings advanced by the parties and the evidence adduced at trial which consisted of oral evidence of P.Ws 1 and 2 and D.Ws 1 and 2 and documentary RSA 400/08 3 evidence Exhibits B1 and B2 and C1 and C2 dismissed the suit. On appeal by the plaintiffs the decree and judgment of the trial court was reversed and a preliminary decree for partition was passed by the first appellate court for partition of the schedule properties in eight equal shares and allotment of one such share each to the plaintiffs, one such share each to the defendants 1 to 5 and one such share jointly to defendants 6 to 11. It is the said preliminary decree that is assailed in this R.S.A by defendants 1 to 6 in the suit. 4. It is vehemently contended before me by the learned counsel for the appellants that the evidence adduced before the trial court examining the parties cannot be relied upon in the circumstances of this case as the first defendant was an aged woman and was not giving answers understanding the questions put to her and however that she has deposed that she has got the lease in relation to the schedule property from Alathur Iyer and the evidence also shows that under Ext B1, right of the jenmis is assigned in favour of the first defendant and that therefore the first appellate court went in error in concluding that the purchase of right obtained by Ext B1 purchase certificate was for the benefit of the first defendant and the children born to her through Doraiswamy as Doraiswamy did not get any right RSA 400/08 4 by intestacy from Sandhyagu. 5. The first appellate court which has passed a preliminary decree has considered the entire evidence in the case to arrive at a conclusion that the plaintiff is entitled to decree for partition as claimed. It is observed by the first appellate court that D.W.1 the first defendant has no idea at all about the alleged lease and at the time of giving evidence she stated that she obtained “tharikuthu avakasom” from Venkiteswara Iyer at Alathur, without any pleadings to that effect in the written statement. However, in cross-examination she has admitted that her marriage was at a time when she was aged only 15 years and thereafter she had been living with her husband, deceased Doraiswamy at Chittur in her matrimonial house along with his parents. It was also noticed that DW.1 has deposed that the father of her husband constructed a house in that property and they were living there and that after the death of Sandhyagu herself and her husband had been living in that house and after the death of her husband the schedule property had not been partitioned. It is also observed that DW.1 admitted that on the death of Doraiswamy his right over the property devolved upon the plaintiffs and defendants and that they are having equal rights over the RSA 400/08 5 property and further that the scheduled property belonged to her husband. The above admission is conclusive proof that the plaintiffs and defendants are co-owners in respect of the schedule property. It was also observed that D.W.2, the second defendant had filed a suit O.S. No 342 of 1998 against the plaintiff but he did not produce any document in that suit for establishing his right over the properties. D.W.2 further admitted that the schedule property belonged to his grand father who died about 50 years ago and that the schedule property was owned by his grandfather. It is stated that he further admitted that the property obtained by him by Ext B1 assignment from the first defendant is not a different property other than the schedule property. The admission made by D.W.2 is further elicited in the judgment of the first appellate court that Ext B1 was obtained by him from his mother who obtained it from his father and that the property obtained by his father had not been partitioned among the plaintiffs and defendants. It was for these reasons that the first appellate court concluded that the admission of D.Ws 1 and . 2 coupled with Exts B1 and B2 would reveal that the plaint schedule property originally belonged to Sandhyagu and that on his death his right over the property devolved upon Arogyaswamy and RSA 400/08 6 Doraiswamy and they orally partitioned that property and the right of Doraiswamy on his death devolved upon the plaintiffs and defendants as he died intestate and therefore plaintiffs and defendants are having equal rights over the schedule property and that the share to which plaintiffs and defendants 1 to 5 are entitled is 1/8 each and that the share due to defendants 6 to 11 together is 1/8 share. The findings so arrived at by the first appellate court are valid and there is no reason to interfere with the said findings entered into by the first appellate court. This R.S.A is hence devoid of merit. There is no question of law and much less any substantial question of law made out in the memorandum of appeal. In the result, I dismiss this appeal in limini refusing admission. Sd/- K.P. BALACHANDRAN Judge 16/06/2008 en [true copy]