IN THE HIGH COURT OF KERALA AT ERNAKULAM
RSA.No. 685 of 2008()
1. PARAMESWARAN, AGED 54 YEARS,
... Petitioner
Vs
1. MADHAVI, AGED 71 YEARS,
... Respondent
2. VALSAMMA, AGED 53 YEARS,
3. SARASAMMA, AGED 52 YEARS,
4. SANTHAMMA, AGED 49 YEARS,
For Petitioner :SRI.K.A.HASSAN
For Respondent : No Appearance
The Hon'ble MR. Justice V.RAMKUMAR
Dated :17/09/2008
O R D E R
V. RAMKUMAR, J.
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R.S.A.No.685 of 2008
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Dated this the 17th day of September, 2008
JUDGMENT
The 1st defendant in O.S.No.211 of 2000 on the file of the
Munsiff’s Court, Kanjirappally is the appellant in the Second
Appeal. The said suit, instituted by the Appellant’s mother, 1st
respondent herein namely Madhavi, was one for partition and
consequential injunction.
2. The case of the plaintiff can be summarised as follows:-
The plaint schedule property admeasuring 5.99 acres of
land is an unregistered forestland which was originally in the
possession of Kunjukutty, the deceased husband of the plaintiff.
The 1st defendant is the son and defendants 2 to 4 are the
daughters of the said Kunjukutty and the plaintiff. Kunjukutty
died in testate in the year 1987 leaving behind the plaintiff and
the defendants as his legal heirs. Upon his death the plaint
schedule property devolved upon the plaintiff and the defendants
in equal shares as per the law of succession applicable to the
parties belonging to Malayaraya community. As per the law as
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well as as per the ancient custom prevailing among the parties
the plaintiff being the widow of the deceased Kunjukutty is
entitled to equal shares over the plaint schedule property along
with the children of the deceased Kunjukutty. The plaintiff is
entitled to get 1/5 share over the plaint schedule property and
defendants 2 to 4 are also entitled to get 1/5 share each over the
plaint schedule property. The plaintiff understands that the
defendants are taking hasty steps to induct strangers to the
plaint schedule property and cut and remove valuable trees
standing in the property. The defendants have no right or
authority to do so. The cause of action for the suit has arisen on
2.7.2000 and continuously thereafter when the 1st defendant
refused the plaintiff’s attempts for partition, the suit for partition
and separate possession of the plaintiff’s 1/5th share is filed.
3. Defendants 2 to 4, the daughters of the plaintiff’s
remained ex parte. The suit was contested by the 1st defendant,
the only son of the plaintiff and the deceased Kunjukutty . The
1st defendant filed written statement contending, inter alia, that
the suit is not maintainable either in law or on facts. The extent
of the plaint schedule property is not 5.99 acres but 6.99 acres
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comprising Sy.No.385/1 of Erumerly South, Village Office in
Kanjirappally Taluk. During the life time of Kunjukutty, the
father of the defendants obtained entire plaint schedule property
as his share from his father. The plaint schedule property is not
liable to be partitioned. During the life time of the father,
defendants 2 to 4, who are the sisters of the 1st defendant, were
given in marriage after giving their due shares. On 4.6.2000, the
2nd defendant trespassed into the plaint schedule property and
reduced 1 cent of property to her possession and constructed a
shed therein. The 1st defendant filed O.S.No.172 of 2000 before
the Munsiff’s Court, Kanjirappally for evicting her from the
trespassed area and the said suit is pending. Defendants 2 to 4
have not effected any improvements in the plaint schedule
property. The plaintiff who is the mother of the defendants is
now residing along with the 1st defendant. The plaintiff is not
entitled to get any reliefs as prayed for in the plaint. Hence the
suit is liable to be dismissed with costs to the defendants.
4. The trial court framed four issues for trial. On the side
of the plaintiff, Ext.A1 Marriage Register was marked and
plaintiff examined herself as PW1. On the side of the appellant/
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1st defendant 7 documents were got marked as Exts.B1 to B7
and he examined himself as DW1.
5. The learned Munsiff after trial as per judgment and
decree dated 27.3.02 accepted the plaintiff’s contention and
passed a preliminary decree for partition directing division of
6.99 acres of land into five equal shares and allotment of 1/5
share of the same to the plaintiff.
6. On appeal preferred by the appellant/1st defendant
before the District Court, Kottayam as A.S.No.87 of 2002, the
lower appellate court as per judgment and decree dated 31.3.08
dismissed the appeal confirming the preliminary decree passed
by the trial court. Hence this Second Appeal
7. The questions of law formulated in the memorandum of
appeal are the following:-
1. Whether there is essentially an erroneous approach in
the finding that the property is partible and the plaintiff
is entitled for 1/5th share from a forest land, which is a
settlement area, possessed and enjoyed by the
appellant, who is a Malayaraya.
2.In a specific case of possession of the scheduled
property by the appellant even from the lifetime of the
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father, whether the question of succession arises.
3.Whether customs alleged by the plaintiffs is proved
under Section 13 of the Evidence Act by particular
instances in which the custom was asserted or
recognised. The existence of custom is mixed question
of fact and law.
4. Whether the courts below acted without regard to
standard of acceptable evidence of custom.
8. I heard the learned counsel appearig for the appellant.
Assailing the concurrent decrees passed by the court, the
learned counsel for the appellant made the following
submissions before me:-
This is a case where the plaintiff has come before the Court
setting up a custom that was prevailing among Malayaras. The
widow and daughter inherit the properties left behind the
common ancestor in equal shares. In support of the said custom
the plaintiff alone was examined as PW1. In order to get judicial
recognition of a custom, the party setting up a custom should
prove the same to the hilt in terms of Section 13 of the Evidence
Act. The custom should not only be long, continuous but should
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also be of reasonable antiquity as insisted by Section 13 of the
Evidence Act vide 1960 KLT 1195, 1971 KLT 458, 1966 KLT 181
and ILR 1975 Kerala 156. The plaintiff has failed to adduce
sufficient evidence to prove the custom set up by her. As against
this, the case of the appellant was that even during the lifetime
of the father the property was entrusted by him to the appellant
and the appellant had effected valuable improvements including
the residential building in the property which has a Panchayat
Number assigned in the name of the 1st defendant. During the
lifetime of the father himself the three daughters were given
away in marriage after giving their share. In the year 2000, the
State Government in recognition of the exclusive possession and
cultivation of the property by the 1st defendant had issued an
extract of the record of rights on 19.1.2000. The said document
issued by the Tahasildar, Kanjirappally and countersigned by the
Forest Range officer, Erumely has been produced by the
Appellant as an additional document in the Second Appeal The
appellant has also produced five other documents as additional
evidences in the second appeal. The 2nd document is a
possession certificate dated 22.11.04 issued in respect of a
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portion of the property in the name of Manoj, the son of the
appellant/1st defendant by the Village Officer, Erumely south.
The 3rd document is also a possession certificate dated 23.3.04
issued by the village officer, Erumely South in favour of the said
Manoj. The 4th document is a Survey plan dated 26.2.95 which is
produced in O.S.No.132 of 1993 on the file of the Munsiff’s
Court, Kanjirappally. The 5th document is a copy of the judgment
in O.S.No.132 of 1993 on the file of the Munsiff’s Court,
Kanjirappally. The 6th document is the true certified copy of the
Commission Report dated 19.10.94 in O.S.No.132 of 1993.
These documents will reinforce the contention of the 1st
defendant. He has been in exclusive possession of the entire
property in his own right to the exclusion of his mother and his
sisters. These documents were not relied upon by the court
below since they could not file the same before the court below.
9. I am afraid that I cannot agree with the above
submissions. There is no dispute that the property admeasuring
6.99 acres comprising Re.survey No.13 of Erumely Village of
Kanjirappally Taluk which is a Government forest land was
encroached upon by the deceased Kunjukutty who was the
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husband of the plaintiff Madhavi and the father of three
daughters(D2 to D4) and one son(1st defendant),. The said
Kunjukutty died in the year 1987. The parties are admittedly
Malayarayas who belonged to the scheduled tribe. It is true that
the plaintiff came to court setting up a custom that was among
the Malayarayas. If the father dies in testate then the property
devolves in equal shares on the widow and all the children. It is
also true that except the interested testimony, no other
individual evidence was adduced by the plaintiff to prove the
said custom set up by her. But then the worst that can be said
about it is that the plaintiff has failed to prove the custom set up
by her. From that alone it does not follow that the contentions of
the defendant is to be accepted. Apart from the fact that there
was only oath against oath of the disputing parties, there was no
evidence regarding the in testate succession of the estate of the
person. Of course the right of Kunjukutty was only a
possessinary right, the ownership being vested in the
Government. In the absence of any evidence in support of the
custom set up by the plaintiff the law is well settled that the
principles to be applied are justice, equity and good conscience.
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In applying the said principles also justice demands that the
right of possession over the property should be allowed to be
partitioned in equal shares between the widow and all children.
The appellant/1st defendant should plead an entrustment by the
father in his favour did not either give the date of entrust or the
terms of entrustment. Hence, the said case of the appellant also
falls to the ground.
10. Coming to the additional documents produced in this
Second Appeal, apart from the fact that the appellant has not
made out sufficient grounds in respect of the additional evidence
in the Second Appeal by virtue of the provisions of Order XLI
Rule 27 C.P.C, the extract of record of rights only proves that
one of the co-owners was in possession and cultivation of a
portion of the property in the year 2000. That cannot have the
effect of excluding the other co-owners from possession or
enjoyment of the property. It is significant to note that the
appellant has not even pleaded adverse possession or ouster
much less adduced in evidence to that effect. Hence as
concluded by the courts below, he is only a recipient of record of
rights from Tahasildar of Kanjirappally. He cannot walk away
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with the property with the exclusion of his mother and sisters.
The record of rights will have to be constituted as the document
which ensues in favour of all the co-owners ( See 1986 KLT..SN)
The other documents also, apart from the fact that it is not being
relevant for deciding the issues, could have been produced
before the court below and no exclusion is forthcoming for non-
production of the documents before the court below. Hence,
I.A.No.168 of 2008 filed in respect of the above additional
documents is dismissed.
After an anxious consideration of the matter, I see no
reason to interfere with the preliminary decree for partition
passed by the court below. This Second Appeal is accordingly
dismissed as in limine.
Dated this the 17th day of September, 2008.
V. RAMKUMAR, JUDGE
sj