IN THE HIGH COURT OF KERALA AT ERNAKULAM
RSA.No. 1090 of 2008(D)
1. B.SUKUMARI, W/O.LATE BANDHURANGAN,
... Petitioner
2. B.PRATHAP CHANDRAN,
Vs
1. JAYA SINDHU, D/O.KRISHNAMMA, AGED 33
... Respondent
2. KRISHNAMMA, D/O.PARVATHY, RESIDING AT
For Petitioner :SRI.D.SAJEEV
For Respondent :SRI.G.S.REGHUNATH(CAVEATOR)
The Hon'ble MR. Justice HARUN-UL-RASHID
Dated :06/07/2009
O R D E R
HARUN-UL-RASHID, J.
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R.S.A.No.1090 of 2008
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Dated this the 6th day of July, 2009
JUDGMENT
The defendants in O.S.No.241 of 1997 are the appellants.
The Second Appeal is directed against the judgment and decree
in A.S.No.14 of 2002 on the file of the Principal Sub Court,
Thiruvananthapuram. The suit was for partition. The trial court
passed preliminary decree allowing partition of plaint A
schedule property in the three equal shares and allotted one
share to the plaintiffs. Other incidental reliefs are also granted.
The decree and judgment was confirmed by the appellate court.
Hence this appeal.
2. It is the case of the plaintiffs’ that she is the daughter
of late K.N.Bandhurangan born in his wedlock with additional
3rd respondent, Krishnamma, that the first defendant is not
legally married wife of his father and therefore she is not having
the status of a legally wedded wife and that the second
defendant being the daughter of her son is only having the
status of an illegitimate son. She admitted that the second
defendant is the illegitimate child and is have equal right to
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share of the property of her father. The suit claim is for one half
of the share of the property and the other half being belongs to
the second defendant.
3. The first defendant contested the suit and contended
that she is the wife of Bandhurangan and the second defendant
is her child. It is further contended that the plaintiff is not the
daughter of deceased Bandhurangan and therefore she has no
right to get any share in the plaint schedule property. The trial
court considered the questions raised on the basis of oral and
documentary evidence adduced by both sides. The plaintiff
examined four witnesses and produced Exts.A1 to A11
documents. The defendants examined six witnesses and
produced Exts.B1 to B11 documents. The trial court on evidence
held that there is sufficient evidence to show that the plaintiff is
none other than the legitimate daughter of Bandhurangan born
in his first marriage to the additional third defendant. It has
come out in evidence late Bandhurangan dissolved first marriage
and therefore the additional third defendant cannot inherit the
property of her former husband. The trial court examined the
genuineness of Ext.B5 will deed dated 07/12/1985. The
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execution of Ext.B5 will deed dated 07/12/1985 is not disputed
by anybody. It is the plaintiff’s case that Ext.B5 will deed was
revoked by late Bandhurangan during his lifetime and Ext.A4 is
the cancellation deed.
4. The trial court after considering the respective
contentions of parties, the recitals in Ext.B5 will, Ext.A4
revocation deed and oral evidence of PWs.3 and 4 concluded that
Bandhurangan executed Ext.A4 revocation deed. PWs.3 and 4
have put their signatures in Ext.A4. After discussing the issue in
detail the trial court further concluded that by the execution of
Ext.A4 revocation deed Ext.B5 will stood cancelled. On the basis
of the said findings the trial court passed a preliminary decree
allowing partition and allotting one half share to the plaintiff.
The appellate court at the instance of the appellants
re-appreciated the entire questions raised and reached the very
same conclusions. The findings arrived are purely based on facts
and the view taken by the trial court and appellate court are not
liable to be interfered with for any reasons. The appellants have
not made out any sustainable grounds to invoke the jurisdiction
under Section 100 of the C.P.C. No question of law much less
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any substantial questions of law arises for consideration in this
second appeal. Therefore this appeal fails and accordingly it is
dismissed in limine.
HARUN-UL-RASHID, JUDGE
skj.