High Court Kerala High Court

Sukumaran vs Janaki Amma on 7 October, 2009

Kerala High Court
Sukumaran vs Janaki Amma on 7 October, 2009
       

  

  

 
 
  IN THE HIGH COURT OF KERALA AT ERNAKULAM

RSA.No. 256 of 2009()


1. SUKUMARAN, AGED 68 YEARS
                      ...  Petitioner

                        Vs



1. JANAKI AMMA, AGED ABOUT 78 YEARS
                       ...       Respondent

2. INDIRA, AGED ABOUT 49 YEARS

3. SUMATHY, AGED ABOUT 48 YEARS

                For Petitioner  :SRI.U.BALAGANGADHARAN

                For Respondent  :SRI.RAJESH SIVARAMANKUTTY

The Hon'ble MR. Justice THOMAS P.JOSEPH

 Dated :07/10/2009

 O R D E R
                             THOMAS P. JOSEPH, J.
                            --------------------------------------
                               R.S.A.No.256 of 2009
                            --------------------------------------
                     Dated this the 7th day of October, 2009.

                                      JUDGMENT

Respondents appear through counsel. Heard both sides.

2. This Second Appeal arises from judgment and decree of learned

First Additional District Judge, Palakkad in A.S.No.229 of 2006 confirming

judgment and decree of learned Munsiff, Alathur in O.S.No.124 of 2005.

Appellant/plaintiff and respondents are members of the same tharwad. While so,

there was a partition of the properties as per Ext.A1, partition deed No.348 of

1960 dated 18.2.1960. As per that partition deed C schedule was allotted to the

appellant and E schedule was allotted to respondent Nos.1 to 3. Other

schedules were allotted to other members of the tharwad. It is not disputed that

the sharers of D schedule released their right in favour of respondents. Now

what remains is only the A, B, C and E schedules. Appellant was given a right of

residence in the tharwad house situated in the E schedule allotted to respondent

Nos.1 to 3. Appellant filed the suit alleging that respondents are attempting to

materially alter or demolish the tharwad house and to alienate the same

to affect his right of residence in the tharwad house. Respondents denied the

allegation that they are attempting to demolish the house but asserted the right

of alienation. Learned Munsiff found that Ext.A1 does not affect right of

respondents to alienate the tharwad house situated in the E schedule allotted to

RSA No.256/2009

2

them but, subject to the right of residence reserved for appellant. So far as

demolition of the structure is concerned, learned Munsiff granted relief in favour

of the appellant and restrained respondents from doing so. Learned Munsiff

refused to grant injunction against material alteration since it came out that

building itself is 100 years old. Injunction against alienation was also refused for

the reason above stated. Appellant, not being satisfied with the decree preferred

appeal. Learned First Additional District Judge agreed with the findings entered

by learned Munsiff and dismissed the appeal. Hence the Second Appeal

urging the substantial questions whether without discharging right of residence

enjoyed by the appellant, respondents could alienate the tharwad house situated

in the E schedule and whether courts below misconstrued recitals in Ext.A1,

partition deed. Learned counsel for appellant, placing reliance on the decision in

Philipose Thressiamma v. Scaria Chinnamma (1969 KLT 715)

contended that right of residence of appellant has to be protected and that the

parties to Ext.A1 could not be understood to have intented that appellant should

reside in the tharwad house along with the assignees from respondents.

Learned counsel for respondents would contend that recitals in Ext.A1 do not in

any way affect right of alienation of the respondents though subject to the right

of residence of appellant. According to learned counsel courts below have

construed Ext.A1 in the correct perspective and no substantial question of law is

involved.

3. So far as prayer for injunction against material alteration is

RSA No.256/2009

3

concerned, courts below found on the facts, evidence and circumstances that

the prayer cannot be allowed. That is a finding of fact entered by the courts

below considering the oldness of the structure as well. So far as that finding is

not shown to be perverse, interference in Second Appeal is not called for.

4. What remained for consideration is whether on a question of

alienation any substantial question of law is involved requiring consideration by

this Court. In paragraph No.8 of Ext.A1 it is stated that the share value of A,B,

and C shares is fixed as Rs.300/- each, (out of which Rs.150/- each has

already been paid on demand by the appellant) and that if the said amount is

not paid on demand, appellant can realize the amount even by sale of the

tharwad house. Courts below found that the said recital revealed that even the

appellant could, in a contingency as above stated arising sell the tharwad house

which indicated that the parties did not intend that the tharwad house shall not

be sold at any point of time. I am inclined to agree with that view. That apart

none of the recitals in Ext.A1 bars the respondents from alienating the tharwad

house ofcourse, subject to the right of residence of appellant. Decision relied

on by learned counsel for appellant does not apply to the facts of this case.

There, what was considered is whether a right of residence can be sold or

attached and the question was answered in negative. No such contingency

arises in this case. On going through the judgment and decree under challenge

and hearing counsel on both sides and also perusing Ext.A1 I find no reason to

think that courts below have misconstrued Ext.A1 and came to a wrong

conclusion as to the right of respondents to alienate E schedule including the

RSA No.256/2009

4

tharwad house subject to the right of residence of appellant. As such no

substantial question of law is involved in this Second Appeal requiring its

admission.

Resultantly, this Second Appeal fails. It is dismissed.

THOMAS P.JOSEPH,
Judge.

cks