Full Judgment
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT THE HONOURABLE MR. JUSTICE SATHISH NINAN FRIDAY, THE 31ST DAY OF JANUARY 2020 / 11TH MAGHA, 1941 RSA.No.793 OF 2018 AGAINST THE JUDGMENT AND DECREE DATED 31.01.2018 IN AS 39/2013 OF DISTRICT COURT, PALAKKAD AND THE JUDGMENT AND DECREE DATED 31.01.2013 IN OS 213/2012 OF MUNSIFF'S (PRINCIPAL) COURT, PALAKKAD ----- APPELLANT/APPELLANT/DEFENDANT NO.1: SURESH P., AGED 59 YEARS, S/O LATE PAZHANIYANDI, RAMANCHENNATH HOUSE, PANDARAKKAVU, YAKKARA AMSOM, KUNNATHURMEDU POST, PALAKKAD TALUK AND DISTRICT. BY ADVS. SRI.SAJAN VARGHEESE K. SRI.LIJU. M.P RESPONDENTS/RESPONDENTS NO.1 & 3 TO 6/PLAINTIFF, DEFENDANT NO.3 & LRS OF DEFENDANT 2: 1 VASANTHA, D/O LATE THANKAM, AGED 66 YEARS, TALUK, PALAKKAD DISTRICT, 678101. 2 BAGYAM, W/O.SIVARAM, D/O.PAZHANIANDI, AGED 53, KARTHYAYANI NIAVAS, KADUKKAMKUNNAM AMSOM AND POST, PALAKKAD TALUK AND DISTRICT-678501. 3 MALLIKA, W/O.LATE ANANTHAN, AGED 44, RAMANCHENNATH VEEDU, PANDARAKAVU, YAKKARA, KUNNATHURMEDU POST, PALAKKAD- 678509. 4 UNNIKRISHNAN, S/O.LATE ANANTHAN, AGED 31, RAMANCHENNATH VEEDU, PANDARAKAVU, YAKKARA, KUNNATHURMEDU POST, PALAKKAD-678509. RSA.No.793 OF 2018 -2- 5 UNNIMAYA, D/O.LATE ANANTHAN, AGED 15, RAMANCHENNATH VEEDU, PANDARAKAVU, YAKKARA, KUNNATHURMEDU POST, PALAKKAD- 678509. THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 31.01.2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
SATHISH NINAN, J.
================== ================== Dated this the 31st day of January, 2020
JUDGMENT
The concurrent preliminary decree in a suit for partition is under challenge in this second appeal.
2. The appellants-defendants are the children born to one Pazhaniandi and Thankam. The plaintiff
is the daughter born to Thankam in her first marriage. The claim for partition is made on the averment that the plaint schedule property belonged to Thankam as per Ext.A1 purchase certificate and that on her death the plaintiff, as a daughter of Thankam, is entitled for a share in the property. The defendant would on the other hand contend that
the plaint schedule property belonged to Pazhaniandi, the husband of Thankam and that since Pazhaniandi pre-deceased Thankam, Ext.A1 purchase certificate was issued in the name of Thankam. Therefore, on the death of Pazhaniandi, the property devolves on his wife and children viz. the defendants. The plaintiff is not entitled for any :- 2 :- share in the property.
3. The courts below found that the materials on
record indicates that the plaint schedule property belonged to Thankam, and held that the plaintiff being the daughter of Thankam is also entitled for a share in the property.
4. Heard Sri.Sajan Varghese, learned counsel on behalf of the appellant, on admission.
5. Even on the contention of the defendants that the property belonged to Pazhaniandi, the plaintiff would be entitled to a share out of the interest which Thankam got over the property on the death of Pazhaniandi. Therefore, the plaintiff cannot be, at any rate, non-suited.
6. Now coming to the question as to whether
Pazhaniandi or Thankam was the original owner of the property, Ext.B6 is the partition deed between the defendants wherein, in the recitals regarding tracing of title to the plaint schedule property it is stated that it belonged in Verumpattom right to their mother Thankam and the Jenmom right was assigned to her as per the suo motu proceedings :- 3 :- No.416/07 of the Palakkad Land Tribunal; that their father Pazhaniandi pre-deceased Thankam and on the death of Thankam, the property devolved on the defendants. Therefore, the recital is very specific that the property belonged to Thankam, the mother of the parties. It is very pertinent to note that the defendants have in Ext.B6 partition referred to the fact that their father Pazhaniandi pre-deceased Thankam. After having made reference to Pazhaniandi, if he was the original lessee, there is no reason why they would not have stated so in Ext.B6 partition. This is a strong circumstance to hold that Thankam the mother of the parties was the owner of the property.
7. The courts below have considered the recital
in Ext.B6 along with all the other evidence available in the suit and have held that Thankam was the owner of the property. The findings are based on materials. Even assuming that another view of the matter might be possible, that by itself does not confer a right for interference with the decree in exercise of jurisdiction under Section
:- 4 :- 100 of the Code of Civil Procedure. The question mooted is purely one of fact and is in the realm of appreciation of evidence. It could not be said that the appreciation of the evidence by the courts below is perverse. No question of law much less any substantial question of law arises for consideration in this second appeal. Appeal fails and is accordingly dismissed. Sd/- SATHISH NINAN JUDGE kns/- //True Copy// P.S. to Judge