{"id":162583,"date":"2007-08-17T00:00:00","date_gmt":"2007-08-16T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/sreedevi-and-another-vs-appukuttan-others-on-17-august-2007"},"modified":"2014-06-23T16:04:22","modified_gmt":"2014-06-23T10:34:22","slug":"sreedevi-and-another-vs-appukuttan-others-on-17-august-2007","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/sreedevi-and-another-vs-appukuttan-others-on-17-august-2007","title":{"rendered":"Sreedevi And Another vs Appukuttan & Others on 17 August, 2007"},"content":{"rendered":"
Kerala High Court<\/div>\n
Sreedevi And Another vs Appukuttan & Others on 17 August, 2007<\/div>\n
       \n\n  \n\n  \n\n \n \n  IN THE HIGH COURT OF KERALA AT ERNAKULAM\n\nAS No. 204 of 1993(C)\n\n\n\n1. SREEDEVI AND ANOTHER\n                      ...  Petitioner\n\n                        Vs\n\n1. APPUKUTTAN & OTHERS\n                       ...       Respondent\n\n                For Petitioner  :SRI.T.C.MOHANDAS\n\n                For Respondent  : No Appearance\n\nThe Hon'ble MR. Justice K.PADMANABHAN NAIR\n\n Dated :17\/08\/2007\n\n O R D E R\n                           K. PADMANABHAN NAIR ,J\n                      -------------------------------------------------\n                                  A.S.No.204 of 1993\n                                             &\n                                     Cross Appeal\n                      -------------------------------------------------\n                    Dated, this the 17th day of August, 2007\n\n                                     JUDGMENT\n<\/pre>\n
       Defendants 2 and 3 in O.S.No.212\/1989 on the file of the Subordinate<\/p>\n
Judge’s Court, Palakkad are the appellants. Appeal is filed against the decree and<\/p>\n
judgment passed by the court below by which it was found that the plaintiff in the<\/p>\n
suit was entitled to get 5\/12 shares in the suit property. Plaintiff filed the suit for<\/p>\n
partition alleging that the entire suit properties were ancestral properties. It was<\/p>\n
alleged that the suit properties belonged to the family of plaintiff and defendants<\/p>\n
and there was a partition in the year 1932 and as per that partition deed the<\/p>\n
properties were allotted to Theyyunni. The first defendant was his widow. The<\/p>\n
plaintiff, deceased Surendranath and fourth defendant were born to them in the<\/p>\n
wedlock.     It was averred that the properties were in joint possession of the<\/p>\n
members of the family. It was also averred that plaintiff and defendants are<\/p>\n
followers of Hindu Mithakshara Law.               Theyyunni died in the year 1987.<\/p>\n
According to the plaintiff after the death of Theyyunni he was entitled to get 5\/12<\/p>\n
shares, first defendant was entitled to get 1\/12 share, defendants 2 and 3 together<\/p>\n
5\/12 shares and fourth defendant was entitled to get 1\/12 share. It was averred that<\/p>\n
Theyyunni executed a sale deed in favour of the sister of the first defendant for<\/p>\n
Rs.8,000\/-. But the parties never intended to give effect to that document and<\/p>\n
AS No.204\/1993                         -: 2 :-<\/span><\/p>\n
Devaki never got the possession and she was never enjoyed the property and she<\/p>\n
was residing somewhere else and died 12 years prior to the date of filing of the<\/p>\n
suit. It was averred that defendants were creating documents so as to defeat the<\/p>\n
claim of the plaintiff. Hence the suit for partition.\n<\/p>\n
       2.      First defendant filed written statement contending that the plaintiff<\/p>\n
did not get any right over the suit properties. It was averred that joint family<\/p>\n
properties were orally partitioned and the plaintiff had included only some of the<\/p>\n
properties which were allotted to him under the oral partition but included<\/p>\n
properties allotted to other sharers with ulterior motive and mala fide intention. It<\/p>\n
was contended that after the       oral partition   no joint family properties were<\/p>\n
available for partition. It was contended that some properties were acquired and<\/p>\n
the plaintiff had appropriated amounts awarded under the Land Acquisition Act. It<\/p>\n
was also contended that the plaintiff had cut and removed valuable trees stood in<\/p>\n
the properties and sold the same. It was also contended that all the movables kept<\/p>\n
in the house of the first defendant were forcibly taken away by the plaintiff. It was<\/p>\n
also contended that the husband of the second defendant who was the father of<\/p>\n
third defendant filed a suit for allotment of share given to him under oral partition.<\/p>\n
That suit was subsequently compromised. It was contended that item No.21 was<\/p>\n
obtained by the first defendant under a court sale in O.S.No.28\/1948 and that was<\/p>\n
not a joint family property available for partition. It was also contended that the<\/p>\n
properties allotted to the first defendant under oral partition cannot be re-<\/p>\n
AS No.204\/1993                        -: 3 :-<\/span><\/p>\n
partitioned. So the first defendant prayed for dismissal of the suit.<\/p>\n
       3.     First defendant filed additional written statement contending that<\/p>\n
plaint schedule item Nos.3, 6, 21, 24, 25 and 28 absolutely belonged to first<\/p>\n
defendant and she was in absolute possession and enjoyment of those items. It<\/p>\n
was contended that plaint schedule item Nos.10, 19 and 20 absolutely belonged to<\/p>\n
defendants 1 and 2 and item No.22 was allotted to the share of plaintiff and he is in<\/p>\n
possession of the same. First defendant claimed certain reservations and equities<\/p>\n
also. It was contended that Theyyunni’s one fourth right devolved upon the first<\/p>\n
defendant, plaintiff and defendants 2 and 3. It was contended that item No.27 is a<\/p>\n
place of worship and the same is not partiable. It was contended that item No.28<\/p>\n
absolutely belonged to first defendant and not available for partition.<\/p>\n
       4.     Defendants 2 and 3 filed written statement contending that the<\/p>\n
properties were obtained by Theyyunni under partition deed No.1209\/1932 and he<\/p>\n
was in possession and enjoyment of the same. It was contended that those<\/p>\n
properties absolutely belonged to Theyyunni and he incurred heavy debts and for<\/p>\n
settling those debts some of the items in the plaint schedule properties were sold to<\/p>\n
Devaki, sister of first defendant and in the year 1938 first defendant took those<\/p>\n
properties on lease for an annual rental of 330 paras of paddy and she was in<\/p>\n
absolute possession and enjoyment of the property as a lessee.           It was also<\/p>\n
contended that those properties were sold to the husband of the second defendant<\/p>\n
who was the father of third defendant under sale deed No.652\/1982 and he was in<\/p>\n
AS No.204\/1993                         -: 4 :-<\/span><\/p>\n
possession and after his death the properties devolved upon defendants 2 and 3<\/p>\n
alone. It was contended that item Nos.1 to 4, 7, 9, 11 ti 14, 18 to 20, 22 to 25 and<\/p>\n
27 were included in the sale deed and the plaintiff had no right over the same. It<\/p>\n
was also contended that the properties other than those mentioned in paragraphs 6<\/p>\n
and 7 were in the joint possession of the parties and the parties were entered into<\/p>\n
an oral partition and the they were in separate possession and enjoyment of the<\/p>\n
same. It was contended that in case court finds that any item of the plaint<\/p>\n
schedule property was liable to be partitioned, 5\/12 shares shall be allotted to the<\/p>\n
defendants 2 and 3. Though in paragraph 8 it was stated that the details of the<\/p>\n
right of defendants 2 and 3 are stated in paragraphs 6 and 7, paragraph 7 in the<\/p>\n
original written statement reads as follows:\n<\/p>\n
Obviously the pleading in paragraph 8 was incomplete. Unfortunately no one had<\/p>\n
noticed this aspect.   A copy of the written statement is made available for my<\/p>\n
perusal by both sides. The copies given to me by the parties contains more details.<\/p>\n
It was stated that the deceased Theyyunni had executed sale deed No.652\/1980<\/p>\n
in favour of Surendranathan; and the vendee became the absolute owner. It was<\/p>\n
AS No.204\/1993                          -: 5 :-<\/span><\/p>\n
further stated that after the death of Surendranathan the properties devolved upon<\/p>\n
defendants 2 and 3.\n<\/p>\n
       5.      Though defendants 2 and 3 raised a very specific contention that<\/p>\n
some of the properties were sold by entire members of the joint family together to<\/p>\n
Devaki and from Devaki the first defendant took the property on lease and she<\/p>\n
assigned the lease hold right to Surendranathan, the husband of second defendant<\/p>\n
and father of third defendant, no issue as to whether defendants 2 and 3 had<\/p>\n
obtained any lease hold right over the property was seen framed for consideration.<\/p>\n
Even though it was contended that some of the properties were sold by Theyunni<\/p>\n
in the year 1980, no issue as to whether those properties were available for<\/p>\n
partition was seen raised.\n<\/p>\n
       6.      Ext.A1 is the registered sale deed executed by Theyyunni in favour<\/p>\n
of Devaki to which his sons, first defendant and fourth defendant were signatories.<\/p>\n
Trial court found that the vendee under Ext.A1 did not get possession.     The court<\/p>\n
below heavily relied on the fact that the plaintiff produced the original sale deed<\/p>\n
from his custody. First defendant gave evidence to the effect that when she took<\/p>\n
the entire properties on oral lease Devaki entrusted the original sale deed with<\/p>\n
her. She further deposed that the same was kept by her and that was stolen by the<\/p>\n
plaintiff. The court below did not consider the fact that the first defendant was the<\/p>\n
mother of the plaintiff.     The endorsement in Ext.A1 shows that document after<\/p>\n
registration was returned to one Lakshmanan. It is very pertinent to note that in<\/p>\n
AS No.204\/1993                         -: 6 :-<\/span><\/p>\n
the plaint the plaintiff had no case that he was having the original sale deed in his<\/p>\n
possession.\n<\/p>\n<\/p>\n
       7.      Learned counsel appearing for the appellants\/defendants 2 and 3<\/p>\n
relied on a decision reported in Tacoordeen Tewarry v. Nawab Syed Ali<\/p>\n
Hossein Khan (Indian Appeals Vol.I, Page 192) and argued that the mere<\/p>\n
production of a document may not be sufficient in all cases.       The court below<\/p>\n
failed to take into account the close relationship of parties. The mere production<\/p>\n
of the original sale deed alone is not sufficient to hold that the sale deed had not<\/p>\n
taken effect.\n<\/p>\n<\/p>\n
       8.     Court below did not consider whether Ext.A1 had taken effect or not.<\/p>\n
It did not consider the explanation offered by the first defendant that she was<\/p>\n
having possession of those properties as a lessee and subsequently she assigned<\/p>\n
those properties to the predecessor-in-interest of  defendants 2 and 3. Defendants<\/p>\n
2 and 3 had raised a very specific contention that Dakshayani was having a lease<\/p>\n
hold right over the property and that was assigned to Surendranathan under<\/p>\n
Ext.B1. No issue regarding oral lease was raised by the court below and referred<\/p>\n
to Land Tribunal for its decision. It also did not consider the evidenciary value<\/p>\n
and relevancy of Ext.B6 series tax receipts produced by first defendant. She had<\/p>\n
produced certain tax receipts to show that from 27.7.1963 onwards she was<\/p>\n
AS No.204\/1993                         -: 7 :-<\/span><\/p>\n
paying the land tax. If, as a matter of fact, properties were joint family properties<\/p>\n
and was in the possession of Theyyunni, how the first defendant paid land tax<\/p>\n
that too while Theyyunni was alive was not considered by the court below. Trial<\/p>\n
court also took a view that properties covered under Ext.B2 also ancestral<\/p>\n
properties. A reading of the recital of Ext.B2 shows that 2nd item included in that<\/p>\n
was obtained by Theyyunni in the year 1973, that too in execution of decree<\/p>\n
passed in O.S.No.125\/1973. If he obtained the property under execution of decree<\/p>\n
passed in O.S.No.125\/1973, how could that property be treated as ancestral<\/p>\n
property was also    not considered by the court below. Even assuming that first<\/p>\n
item in Ext.B2 sale deed was an ancestral property. Theyyunni can transfer his<\/p>\n
right over item No.2 in Ext.B1. A reading of the judgment shows that the court<\/p>\n
below has not considered any of the issues arising for consideration.          Even<\/p>\n
necessary issues were not raised. So I have no option but to set aside the judgment<\/p>\n
and decree passed by the court below and remand the case for fresh disposal after<\/p>\n
raising necessary issues and considering the same in accordance with law.<\/p>\n
       In the result, Appeal Suit is allowed.     Judgment and decree passed in<\/p>\n
O.S.No.212\/1989 are hereby set aside and the matter is remanded for fresh<\/p>\n
disposal after raising necessary issues and considering the same in accordance with<\/p>\n
law. Parties shall appear before the court below on 28.9.2007.     Being an old suit<\/p>\n
the trial court shall make every endeavour to dispose of the suit as expeditiously<\/p>\n
AS No.204\/1993                          -: 8 :-<\/span><\/p>\n
as possible, at any rate, within a period of six months from the date of receipt of a<\/p>\n
copy of this judgment.\n<\/p>\n
      Plaintiff has filed a cross appeal. That cross appeal is also allowed.<\/p>\n
      C.M.P.No.1007\/1993 will stand dismissed.\n<\/p>\n<\/p>\n
                                                    K. PADMANABHAN NAIR
\n                                                                JUDGE<\/p>\n
cks<\/p>\n
AS No.204\/1993    -: 9 :-<\/span><\/p>\n
                     K.PADMANABHAN NAIR, J.\n<\/p>\n
                     A.S.No.204 of 1993<\/p>\n
                     JUDGMENT<\/p>\n
                     17th August, 2007<\/p>\n","protected":false},"excerpt":{"rendered":"
Kerala High Court Sreedevi And Another vs Appukuttan & Others on 17 August, 2007 IN THE HIGH COURT OF KERALA AT ERNAKULAM AS No. 204 of 1993(C) 1. SREEDEVI AND ANOTHER … Petitioner Vs 1. APPUKUTTAN & OTHERS … Respondent For Petitioner :SRI.T.C.MOHANDAS For Respondent : No Appearance The Hon’ble MR. Justice K.PADMANABHAN NAIR Dated […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[8,21],"tags":[],"class_list":["post-162583","post","type-post","status-publish","format-standard","hentry","category-high-court","category-kerala-high-court"],"yoast_head":"\nSreedevi And Another vs Appukuttan & Others on 17 August, 2007 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/sreedevi-and-another-vs-appukuttan-others-on-17-august-2007\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Sreedevi And Another vs Appukuttan & Others on 17 August, 2007 - 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