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.
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R.S.A. No 400 of 2008
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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
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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
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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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