IN THE HIGH COURT OF KERALA AT ERNAKULAM
SA.No. 721 of 1995()
1. BHARGAVY
... Petitioner
Vs
1. KUNCHAMMAL
... Respondent
For Petitioner :SRI.P.SANTHALINGAM (SR.)
For Respondent :SRI.P.O.JOSEPH
The Hon'ble MR. Justice HARUN-UL-RASHID
Dated :20/09/2010
O R D E R
HARUN-UL-RASHID, J.
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S.A.No.721 Of 1995
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Dated this the 20th day of September, 2010.
J U D G M E N T
Plaintiffs in O.S.No.309 of 1987 on the file of the Sub Court,
Palakkad, are the appellants. The appeal is directed against the
judgment and decree in A.S.No.209 of 1990 of the District Court,
Palakkad. Suit was filed for partition and other consequential
reliefs. Trial court held that the plaint schedule properties are
not available for partition and therefore the plaintiffs are not
entitled to any reliefs claimed in the suit. The lower appellate
court confirmed the decree and judgment of the trial court.
Parties hereinafter are referred to as the plaintiffs and defendants
as arrayed in the suit.
2. Plaintiffs are the legal heirs of one Sri.Damodaran,
who is a member of the joint family consisting of Damodaran, his
father Chami and defendants 1 to 8. The first plaintiff is the wife
of deceased Damodaran and plaintiffs 2 to 7 are his children.
The father of Damodaran is one Chami. The first defendant is the
wife of Chami and defendants 2 to 8 are the other children of
Chami.
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3. Plaintiffs’ case is that Chami left the country some 16
years back and his whereabouts are unheard of since 1971.
Therefore it has to be presumed that he is dead for all purposes.
Plaint A schedule items 1 to 7 belonged to the joint family of the
plaintiffs and defendants, that as per Ext.B1 partition deed dated
27.5.1963, the said items were allotted to the sakha consisting of
Chami and the defendants. It is recited in Ext.B1 partition deed
that the deceased Damodaran got his share separated. It is the
case of the plaintiffs that Chami had 1/6 share over plaint items 1
to 7 and the said share devolved on the plaintiffs and defendants.
Plaintiffs claimed 1/9 share over the said right at the time of his
presumed death. The plaintiffs also claimed share over items 8
to 20 stating that in Ext.B1 partition deed these properties were
not included as there were some disputes outstanding to be
settled with the landlords. The plaintiffs also claimed share over
items 21, 22 and 23 stating that these items were acquired by
the defendants with the income from the joint family properties.
The last item is item No.24 which according to the plaintiff was
purchased by Chami and that it is a self acquired property.
4. The defendants denied the allegations in the plaint
and prayed for dismissal of the suit. According to them plaint
S.A.No.721 Of 1995
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items 1 to 7 alone originally belonged to the joint family and
those items were partitioned between the plaintiffs and
defendants, that the plaintiffs’ predecessor got separate share
under Ext.B1 partition deed, and that the contentions of the
plaintiffs regarding the rest of items are not correct. Items 8 to
24 are not available for partition and therefore the suit has to be
dismissed as not maintainable.
5. The trial court and the lower appellate court examined
the contentions of the plaintiff. Admittedly, items 1 to 7
properties belonged to the joint family consisting of Chami,
Damodaran and the defendants. It is also an admitted case that
there was a partition in 1963. Ext.B1 is the partition. A reading
of Ext.B1 would show that the members entered into a division
and deceased Damodaran got his share over items 1 to 7. The
trial court as well as the lower appellate court relied on the
specific recital in Ext.B1 that all the movable items belong to the
joint family such as seeds, cattle, vessels etc. have already been
divided among the sharers and that the properties scheduled in
Ext.B1 partition deed only were available for partition. The court
below also taken note of the other recital in Ext.B1 partition deed
that as per the partition deed division of joint family property
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were finally effected and there is no relationship whatsoever
between them regarding the properties. The court below also
examined in detail the contentions raised by the plaintiffs
regarding the partibility of items 8 to 20 separately. The plaint
allegation is that those items belonged to the family as tenant
and had fixity of tenure, that it was not divided in 1963 partition
as there were some disputes outstanding to be settled with the
landlords. The court below examined the contention on the basis
of Exts.B1 & B2. Ext.B2 is the sale deed dated 15.5.1965 as per
which plaint items 8 to 20 were purchased in the name of Chami
and some of the defendants. The recitals in Ext.B2 is that Chami
and others were having oral lease of the properties. The court
below noticed that there is no recital in Ext.B2 to the effect that
the oral lease was in favour of Damodaran also or oral lease was
granted earlier to the execution of Ext.B1 partition deed. The
court found that there is no evidence to show that oral lease of
the properties was given to Chami and others earlier to Ext.B1
partition deed and that explanation 2 to Section 6 of the Hindu
Succession Act would directly apply in the case of plaint schedule
items 8 to 20 acquired after the execution of Ext.B1 partition
deed and the plaintiffs as the legal heirs of Damodaran, a
S.A.No.721 Of 1995
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member of the joint family separated from the family, will not be
entitled to any share over the said items.
6. The court below also examined as to whether the
plaintiffs are entitled to share in the plaint items 21, 22 and 23.
The case of the plaintiffs is that those items were purchased by
utilising the income from the joint family properties. The court
below on evidence found that the plaint items 21 to 23 are
individual properties of the second defendant and that there is no
evidence to prove that the said items were purchased by the
defendants by investing the income from the joint family
properties. The last item in the plaint schedule is item No.24.
Plaintiffs claimed share over that item also. The first defendant
claimed that it is her self acquired property. Ext.B16 is produced
to show that the plaint item No.24 is not the self acquired
property of the first defendant. The said documents stands in the
name of the first defendant and her minor children. The court
below found that there is no basis for the claim that plaint
schedule item No.24 is the self acquired property of Chami and
the plaintiffs are not entitled to claim share on that basis. Thus,
each and every contentions raised by the parties were examined
by both courts and found that the plaintiffs are not entitled to any
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reliefs. The contentions of the plaintiffs were considered in detail
by the fact findings courts. The courts on the basis of the
materials, facts and evidence found that the plaintiffs are not
entitled to any relief sought for in the plaint. The questions
raised in the second appeal are pure questions on facts which
was decided by the fact finding courts on merits. In these
circumstances, this Court is of the view that the appellants have
not succeeded in raising valid grounds for interference by this
Court in exercise of powers under Section 100 of the Code of Civil
Procedure. No question of law muchless any substantial question
of law arises for consideration in this second appeal.
In the result, the appeal fails and accordingly, dismissed.
No order as to costs.
HARUN-UL-RASHID,
Judge.
bkn/-