IN THE HIGH COURT OF KERALA AT ERNAKULAM
AS.No. 26 of 2003(C)
1. N.X. JOSEPH (DIED).
... Petitioner
2. N.X. PETER, S/O. SOURO,
3. MOLLY, W/O. KALISTER, NEDUMPARAMBIL
4. RANI, D/O. KALISSTER, NEDUMPARAMBIL
5. REENA, D/O. KALISTER, NEDUMPARAMBIL
6. V.R. JOSEPH, HUSBAND OF ROSSY,
7. XAVIER ALIAS KUNJUMON,
8. GEETHA, W/O. GEORGE, RESIDING
9. NEENA ALIAS SALEENA,
10. A.A. RAPHAEL, HUSBAND OF MARY,
11. A.R. ANGONY ALIAS ANTO,
12. A.R. GEORGE ALIAS STANLY,
13. METTILDA GEORGE ALIAS MARY,
14. MINI, D/O. MARY & W/O. SHAJI,
15. XAVIER, S/O. JOSEPH. N.X.,
16. PHILIX, S/O. N.X. JOSEPH,
17. N.P. ROY, S/O. PETER,
18. XAVIER, S/O. JOSEPH, NEDUMPARAMBIL
19. M.U. UDHAYAN, S/O. SAROJINI,
20. BEENA ROSSY ALIAS BEENA,
21. VELAYUDHAN, S/O. SANKUNNY,
22. RAJAPPAN, S/O. SANKUNNI,
23. SREEDHARAN, S/O. SANKUNNI,
24. ROSSAKUTTY, W/O. LATE JOSEPH
25. JAMMA BABY, D/O. N.K. JOSEPH,
26. SHERLY JOY, C/O. ANJATTU JOSEPH,
27. MELNA ALOSHY, CHERUPUNNATHU HOUSE,
28. STELLA WILLY, C/O. XAIVER,
Vs
1. PHILOMINA, W/O. ALEXANDER,
... Respondent
2. SAJAN, S/O. N.X. JOSEPH,
3. JOSEPH, S/O. SEBASTIAN, ANJATTUPARAMBIL
4. SUNIL NAIR, MANAGING DIRECTOR,
5. SANKUNNI (DIED).
6. CHEERAN (DIED).
For Petitioner :SRI.N.P.SAMUEL
For Respondent :SRI.RUPESH V.R.
The Hon'ble MR. Justice M.N.KRISHNAN
Dated :23/07/2010
O R D E R
M.N. KRISHNAN, J.
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A.S. NO. 26 OF 2003
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Dated this the 23rd day of July, 2010.
J U D G M E N T
This appeal is preferred against the
judgment and decree passed by the III Additional
Subordinate Judge, Ernakulam in O.S.90/95. The
suit is one for partition and the trial court
has decreed the suit and directed the properties
to be divided into six equal shares and to allot
one share to the plaintiff. Then the question
of equity etc. were considered and provisions
are made to protect the interest of purchasers.
It is against that decision defendants 1 to 16,
18 to 20, 23, 26 to 33 have come up in appeal.
The brief facts necessary for the disposal of
the appeal are stated as follows. The
properties described in the plaint schedule
belonged to one Mathunni, Pethru, Thressia and
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Souro. This Thressia and Souro had six children
namely Joseph, Peter, Kalister, Thressia, Rosy
and Merry. The plaintiff is the daughter of
Thressia. D1 and D2 are Joseph and Peter
respectively. Defendants 3 to 5 are the legal
representatives of Kalister. Defendants 6 to 9
are the legal representatives of Rosy and
defendants 10 to 14 are the legal
representatives of Merry. During the pendency
of the litigation first defendant died and his
legal representatives are impleaded as
defendants 29 to 33. Defendants 15 to 18 and 19
to 25 are purchasers of portions of the property
and defendants 26 to 28 are the legal
representatives of one of the purchasers namely
24th defendant. It is the case of the plaintiff
that the properties described in the plaint
schedule belonged to her ancestors and therefore
A.S. 26 OF 2003
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on their death it had devolved on her as well.
Her specific case is that an extent of 3 acres
and 27 cents of the plaint schedule property
belonged to Mathunni and Pethru and another
extent of one acre and 13= cents belonged to
Thressia(plaintiff’s grandmother wife of Souro).
The plaintiff is claiming right over the entire
properties.
2. The defence is that a partition has been
entered into as Ext.A1 in the year 1969 between
three sons and their mother Thressia by virtue
of which the properties are allotted only to the
sons and the mother Thressia has not been
allotted any share but the executants to the
document had reserved the right in favour of
Thressia to enjoy the usufructs of the property
mentioned in the document till her death. There
is also a provision whereby two daughters Rosy
A.S. 26 OF 2003
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and Merry as well as granddaughter Thressia
namely plaintiff are directed to be paid
Rs.500/- each. Now the contention of the
plaintiff is that the said document is not
binding on her for the reason that she is not a
party to the proceedings and her right which is
otherwise there in the property cannot be taken
away by virtue of the execution of that
document. This is presumably on account of the
principles laid down by the Hon’ble Supreme
Court in Mary Roy’s case (Mary Roy and others v.
State of Kerala and others (1986 KLT 508). It
is true that when there is a property right
unless there is a relinquishment of that
property right it cannot be get extinguished.
But now in this case I feel the case has to be
compartmentalized into two, i.e. first
compartment is with respect to 3 acres and 27
A.S. 26 OF 2003
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cents which belonged to Mathunni and Pethru, the
second compartment is with respect to one acre
and 13= cents belonging to Thressia, the
grandmother of the plaintiff. So far as three
acres and 27 cents are concerned when the
plaintiff had acquired right in the property by
virtue of the death of her mother without her
junction the said right cannot be taken away.
So any amount of assertion in Ext.A1 document
would not militate against her right and
therefore as the legal representative of her
mother Threesia and as it is the daughter of
Souro and Thrresia she will be entitled to 1/6th
shares as there were six children also to this
couple. Ext.A1 thus I hold will not affect the
right of the plaintiff in the property.
3. Now the next question is regarding one
acre and 13= cents. Even according to the
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plaintiff it is the property which belonged to
the grandmother, Thressia. During the life time
of Thressia in the year 1969 this property has
been put into the common hotch pot and division
has been effected between the sons and the
mother whereby the mother had not reserved any
right in her favour but only right to enjoy the
income from the property. Therefore by virtue
of the provisions in the partition deed the
mother had virtually given up her right in the
property and therefore when it is accepted the
question of succession being opened to that
property on the death of grandmother Thressia
does not arise. So I find that this one acre
and 13= cents of property are not available for
partition.
4. Learned counsel for the appellant had
then raised a contention of adverse possession
A.S. 26 OF 2003
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and limitation or ouster. The classical
decision of this Court regarding adverse
possession between co-owners is reported in
Krishnan v. Raman (1986 KLT SN 104 page 63).
The Court held that,
“It may not be always possible
for each and every co-owner to be
in physical possession of the co-
ownership property. Some of them
or one of them alone may be in
actual physical possession and
others may be sharing rents and
profits from him or them. Some
times sharing of rents and
profits itself may not be there
ans some of them or one of them
alone may be appropriating the
income without sharing the same
with other co-owners. In all
these cases law presumes that the
co-owner or co-owners in actual
possession is or are so in
possession not for himself or
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themselves alone but on behalf of
other co-owners also.”
5. Then this Court went on to consider the
question and held that the classical principle
to be followed in these types of cases are the
principle of nec vi nec claim nec precario. That
is, possession required must be adequate in
continuity, in publicity and in extent to show
that its possession adverse to the rival
claimant.
6. Now at the outset I may like to state
that the contention of the defendants is to the
effect that the plaintiff does not have title
over the property at all. So according to them,
the plaintiff does not have right over the
property at all. When they do not admit the
right of the plaintiff necessarily there cannot
be any hostile animus against that person.
Therefore the fundamental ingredient of hostile
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animus does not come for consideration in this
case at all. Secondly it is not pleaded
properly in the written statement from which
date or which period the hostile animus starts.
Therefore there is absolutely no materials to
hold in favour of adverse possession and
limitation. Therefore the plea of adverse
possession and limitation or ouster also has to
be negatived.
7. So from these discussions I find the
result of the case is to the effect that one
acre and 13= cents of property which belonged to
the grandmother Thressia is to be deleted from
the partition decree and a preliminary decree of
partition with respect to the other properties
have to be passed as follows. Therefore a
revised preliminary decree is passed.
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(1) The plaint schedule properties other
than one acre and 13= cents of property which
belonged to the grandmother Thressia is ordered
to be divided into 6 equal shares and to allot
one such share to the plaintiff.
(2) The property which belonged to the
grandmother Thressia having an extent of one
acre and 13= cents is excluded from partition.
(3) When the plaintiff’s share is worked out
in the final decree as far as the property
outstanding with the strangers be not allotted
to her share and be allotted to the persons from
whom the strangers have purchased the property
so that equity can be worked out.
(4) The plaintiff shall be entitled to
future profits as ordered by the trial Court,
the quantum of which can be decided in the final
decree proceedings and the respective persons in
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possession be liable to pay the same to the
plaintiff. Parties are at liberty to apply for
final decree proceedings. Let the costs of the
appeal as well as the of the suit come out of
the estate.
M.N. KRISHNAN, JUDGE.
ul/-
A.S. 26 OF 2003
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M.N. KRISHNAN, J.
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A.S. No. 26 OF 2003
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J U D G M E N T
23rd July, 2010.