IN THE HIGH COURT OF KERALA AT ERNAKULAM
RSA.No. 256 of 2009()
1. SUKUMARAN, AGED 68 YEARS
... Petitioner
Vs
1. JANAKI AMMA, AGED ABOUT 78 YEARS
... Respondent
2. INDIRA, AGED ABOUT 49 YEARS
3. SUMATHY, AGED ABOUT 48 YEARS
For Petitioner :SRI.U.BALAGANGADHARAN
For Respondent :SRI.RAJESH SIVARAMANKUTTY
The Hon'ble MR. Justice THOMAS P.JOSEPH
Dated :07/10/2009
O R D E R
THOMAS P. JOSEPH, J.
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R.S.A.No.256 of 2009
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Dated this the 7th day of October, 2009.
JUDGMENT
Respondents appear through counsel. Heard both sides.
2. This Second Appeal arises from judgment and decree of learned
First Additional District Judge, Palakkad in A.S.No.229 of 2006 confirming
judgment and decree of learned Munsiff, Alathur in O.S.No.124 of 2005.
Appellant/plaintiff and respondents are members of the same tharwad. While so,
there was a partition of the properties as per Ext.A1, partition deed No.348 of
1960 dated 18.2.1960. As per that partition deed C schedule was allotted to the
appellant and E schedule was allotted to respondent Nos.1 to 3. Other
schedules were allotted to other members of the tharwad. It is not disputed that
the sharers of D schedule released their right in favour of respondents. Now
what remains is only the A, B, C and E schedules. Appellant was given a right of
residence in the tharwad house situated in the E schedule allotted to respondent
Nos.1 to 3. Appellant filed the suit alleging that respondents are attempting to
materially alter or demolish the tharwad house and to alienate the same
to affect his right of residence in the tharwad house. Respondents denied the
allegation that they are attempting to demolish the house but asserted the right
of alienation. Learned Munsiff found that Ext.A1 does not affect right of
respondents to alienate the tharwad house situated in the E schedule allotted to
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them but, subject to the right of residence reserved for appellant. So far as
demolition of the structure is concerned, learned Munsiff granted relief in favour
of the appellant and restrained respondents from doing so. Learned Munsiff
refused to grant injunction against material alteration since it came out that
building itself is 100 years old. Injunction against alienation was also refused for
the reason above stated. Appellant, not being satisfied with the decree preferred
appeal. Learned First Additional District Judge agreed with the findings entered
by learned Munsiff and dismissed the appeal. Hence the Second Appeal
urging the substantial questions whether without discharging right of residence
enjoyed by the appellant, respondents could alienate the tharwad house situated
in the E schedule and whether courts below misconstrued recitals in Ext.A1,
partition deed. Learned counsel for appellant, placing reliance on the decision in
Philipose Thressiamma v. Scaria Chinnamma (1969 KLT 715)
contended that right of residence of appellant has to be protected and that the
parties to Ext.A1 could not be understood to have intented that appellant should
reside in the tharwad house along with the assignees from respondents.
Learned counsel for respondents would contend that recitals in Ext.A1 do not in
any way affect right of alienation of the respondents though subject to the right
of residence of appellant. According to learned counsel courts below have
construed Ext.A1 in the correct perspective and no substantial question of law is
involved.
3. So far as prayer for injunction against material alteration is
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concerned, courts below found on the facts, evidence and circumstances that
the prayer cannot be allowed. That is a finding of fact entered by the courts
below considering the oldness of the structure as well. So far as that finding is
not shown to be perverse, interference in Second Appeal is not called for.
4. What remained for consideration is whether on a question of
alienation any substantial question of law is involved requiring consideration by
this Court. In paragraph No.8 of Ext.A1 it is stated that the share value of A,B,
and C shares is fixed as Rs.300/- each, (out of which Rs.150/- each has
already been paid on demand by the appellant) and that if the said amount is
not paid on demand, appellant can realize the amount even by sale of the
tharwad house. Courts below found that the said recital revealed that even the
appellant could, in a contingency as above stated arising sell the tharwad house
which indicated that the parties did not intend that the tharwad house shall not
be sold at any point of time. I am inclined to agree with that view. That apart
none of the recitals in Ext.A1 bars the respondents from alienating the tharwad
house ofcourse, subject to the right of residence of appellant. Decision relied
on by learned counsel for appellant does not apply to the facts of this case.
There, what was considered is whether a right of residence can be sold or
attached and the question was answered in negative. No such contingency
arises in this case. On going through the judgment and decree under challenge
and hearing counsel on both sides and also perusing Ext.A1 I find no reason to
think that courts below have misconstrued Ext.A1 and came to a wrong
conclusion as to the right of respondents to alienate E schedule including the
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tharwad house subject to the right of residence of appellant. As such no
substantial question of law is involved in this Second Appeal requiring its
admission.
Resultantly, this Second Appeal fails. It is dismissed.
THOMAS P.JOSEPH,
Judge.
cks