High Court Kerala High Court

Mariapappu vs Anthonysamy on 16 June, 2008

Kerala High Court
Mariapappu vs Anthonysamy on 16 June, 2008
       

  

  

 
 
  IN THE HIGH COURT OF KERALA AT ERNAKULAM

RSA.No. 400 of 2008()


1. MARIAPAPPU, W/O.DORAISAMY,
                      ...  Petitioner
2. YAGAPPAN, S/O.DORAISAMY,
3. PAKIASAMY, S/O.DORAISAMY,
4. HRIDAYASAMY, S/O.DORAISAMY,
5. CLORA MARY, W/O.THANKAM,
6. ANNAMMA, W/O.LATE DHANUSILAS,

                        Vs



1. ANTHONYSAMY, S/O.DORAISAMY,
                       ...       Respondent

2. HRIDAYAMARY, W/O.SANTHIYAGU,

3. AMALDAS, S/O.SANTHIYAGU,

4. ALPHONS MARY, D/O.SANTHIYAGU,

5. ROSALIE, D/O.LATE DHANUSILAS,

6. KAROLI, W/O.MARTIN,

7. KETHARI, W/O.SELVARAJ,

8. EMILI, W/O.KUMAR, D/O.LATE DHANUSILAS,

9. ALESU, S/O.LATE DHANUSILAS,

                For Petitioner  :SRI.SAJAN VARGHEESE K.

                For Respondent  : No Appearance

The Hon'ble MR. Justice K.P.BALACHANDRAN

 Dated :16/06/2008

 O R D E R
                        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

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