Kerala High Court · 2012

Judgment

1. BHARATHI, W/O.PADMANABHAN, PADINJARE NAMBIYATTU HOUSE, EDAVATTOM, KULASEKHARAMANGALAM, KOTTAYAM.(DIED)

5. SUKUMARAN, S/O. PADMANABHAN, -DO- -DO- PUSHPANGADAN, (PSYCHIATRIC PATIENT), -DO- -DO- (DIED) BHARATHI SANTHAKUMARI, -DO- -DO- VIDYADHARANJ -DO- -DO- It is recorded that the 3rd appellant died and that appellants 1, 2, 4 & 5 already in the party array are the legal representatives of deceased A3 vide order dtd. 11/11/11 in Memo dtd. 15/1/2007. appellant died and that appellants 2, 4 & 5 already in the party array are recorded as legal heirs of deceased A1 vide order dtd. 11/11/11 in Memo dtd. 2/6/08. It is recorded that the 1ST

BY ADVS.SRI.V.G.ARUN SRI.T.R.HARIKUMAR RESPONDENTS/PLAINTIFFS 2 TO 7: ----------- 1. BHASKARAVILASOM FROM PADINJARE NAMBYATTU, MARAVANTHURUTHU, KALLYANI GOURI, W/O. BHASKARAN KULASEKHARAMANGALAM, KOTTAYAM DIST. (DIED)

3. SIVAN, SON OF BHASKARAN, -DO- -DO- KANCHANA SUKUMARAN, PONNITTAYIL VAIKAPRAYAR KAFRA, VADAKKE MURI, VAIKOM.

4. VINODINI AJAYAKUMAR, VADAKKEKKARA MATTAL FKROM MOOTHAKONIL, PADINJAREKKARA, NADUVILE VILLAGE, VAIKOM.

5. RAJENDRAN, S/O.BHASKARAN, BHASKARA VILASOM, MARAVANTHURUTHU, KULASEKHARAMANGALAM, VAIKOM.

6. SABU OF -DO- -DO- A.S.NO.406/1998 -2- ADDL.7. SUDHARMA VIJAYAN, D/O.KALLIYANI GOURI, CHATHANEZHATHU PADINJAREKKARA P.O. ADAYAR, VAIKOM. It is recorded that the lst respondent died and that respondents 2 to 6 already in the party array are her legal heirs and the other legal heir is impleaded as additional R7 as per order dated 11/11/2011on CMP.NO.5110/2011. BY ADV. SMT.I.SHEELA DEVI BY ADV. SMT.K.A.ANITHA THIS APPEAL SUIT HAVING BEEN FINALLY HEARD ON 12-06-2012, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: HARUN-UL-RASHID,J. ----------------------------- A.S.NO.406 OF 1998 ----------------------------- DATED THIS THE 12TH DAY OF JUNE, 2012 JUDGMENT Defendants are the appellants. The appeal is directed against the judgment and decree in O.S.No.287/1995 on the file of the Sub Court, Pala. The suit was filed for partition. The court below passed a preliminary decree for partition. It is declared that the plaintiffs are entitled to half share and the defendants are entitled to other half share over item Nos. 1 to 8 of the plaint schedule property. The parties are hereinafter referred to as the plaintiff and defendants as arrayed in the suit.

2. Plaintiff and defendants are near relatives. Defendants 2 to 5 are the children of the lst defendant, who is the wife of Padmanabhan. Plaintiff and Padmanabhan are brothers. Padmanabhan died on 19/3/1986. The plaint schedule property consists of 9 items. Item Nos.1 to 8 are immovable properties and item No.9 is a building situated in item No.5. A.S.No.406/1998 -2-

3. It is not disputed that the properties, namely, item Nos.1 to 8 originally belonged to the plaintiff and his brother Padmanabhan jointly. Defendants are residing in the building situated in item No.1 of the plaint schedule property. The building situated in item No.1 also belongs to the plaintiff and Padmanabhan jointly and they resided together in the said building. Subsequently, the plaintiff shifted the residence to the building situated in item No.5. It is pleaded that the building situated in item No.5 exclusively belongs to the plaintiff, that the plaint schedule item Nos. 1 to 8 are in joint possession and enjoyment of the plaintiff and defendants and that the plaintiff has got one half share over item Nos.1 to 8. It is stated in the plaint that the plaintiff is taking income from the property described in item Nos.2, 3, 5 and 7 and southern half of item No.8 of the plaint schedule and the defendants are taking income from item Nos.1, 4, 6 and northern half of item No.8 of the plaint schedule on the basis of a temporary arrangement. It is also stated that such an arrangement was made A.S.No.406/1998 -3- for convenience in enjoyment.

4. In the written statement filed by the defendants it is admitted that the plaint schedule property originally belonged to the plaintiff and late Padmanabhan. According to them, long before the death of Padmanabhan, there was an oral partition between the plaintiff and late Padmanabhan by mutual consent as early as in 1966. It is contended that 21 cents exclusively belongs to the 2nd defendant and 18 cents exclusively belongs to the 3rd respondent were put in common hatch-pot in order to equalise the shares and these two items were also allotted to the plaintiff in the oral partition. It is further contended that in the oral partition, the properties were divided by metes and bounds and that after the death of Padmanabhan, the defendants are in exclusive possession and enjoyment of the properties allotted to late Padmanabhan. It is admitted that the building in item No.5 was constructed by the plaintiff at the time of oral partition. The defendants further contended that item Nos.1, 4 and 6 and northern one half of item A.S.No.406/1998 -4- No.8 are in exclusive possession and enjoyment of the defendants and the rest of the property and 21 cents and 18 cents referred above are in the exclusive possession and enjoyment of the plaintiff. In short, the defendant contended that ever since the partition, the parties are in separate possession and enjoyment of the plots. In the said factual background, the defendants contended that the suit for partition is not maintainable.

5. The parties adduced oral and documentary evidence. Pws. 1 to 3 were examined and Exts.A1 to A3 were marked on the side of the plaintiff and DW1 was examined on the side of the defendants.

6. It is not disputed that the plaint schedule item Nos.1 to 8 jointly belonged to the plaintiff and his brother Padmanbhan. Defendants 1 to 5 are the legal heirs of deceased Padmanabhan. Plaintiff produced Ext.A1 partition deed and Ext.A2 sale deed. Under Ext.A1 partition deed the plaintiff and late Padmanabhan got right over item Nos. 1 to 4 and under Ext.A2 sale deed they got A.S.No.406/1998 -5- right over items 5 to 8. It is not disputed by the parties that item Nos.1 to 8 also jointly belonged to the plaintiff and late Padmanabhan. The defendants contended that in 1966 item Nos.1 to 8 were subject to an oral partition. The court below examined the question as to whether the plaint schedule properties are available for partition or as to whether the properties were orally partitioned in 1966 as contended by the defendants. The court below also examined the contention raised by the defendants that as a result of the alleged oral partition, the parties are in exclusive possession and enjoyment of the separate plots and as such the prayer for partition can be granted or not.

7. In paragraph 5 of the plaint the plaintiff averred that a temporary arrangement was made by him and defendants for convenient enjoyment of the property and as a result of this, the original plaintiff is taking income from item Nos.2, 3, 5, 7 and southern one half of item No.8 and the defendants are taking income from item Nos.1, 4, 6 and northern half of item No.1. But A.S.No.406/1998 -6- the plaintiff contended that this arrangement is short of an oral partition and it is only an amicable arrangement between the parties for convenient enjoyment of the properties. The court below observed that if the agreement entered into between the parties is an amicable arrangement, the suit for partition can be filed and that if there is a threat bare partition among the co-owners by an oral agreement, further partition cannot be effected by filing a suit. The court below noticed the fact that the date on which an amicable arrangement as alleged by the plaintiff has come into existence, is not at all pleaded in the plaint. The court below also noticed the testimony of 6th plaintiff as PW1, who deposed before the court that the amicable arrangement was made during 1987, that the case set up while PW1 was examined is conspicuously absent, that the plaintiff and late Padmanabhan were jointly residing in item No.1 of the plaint schedule and that about 20 years back the plaintiff has shifted his residence to the property described in item No.5. After appreciating the oral evidence of A.S.No.406/1998 -7- PW1, the court below concluded that in all probability the family arrangement might have been made about 20 years back and not in 1987 as claimed in the plaint. The court below also found that the case pleaded by the defendants that the arrangement was made in 1966 appears to be more probable, especially in the light of the fact that the suit was filed in 1987. After evaluating the evidence on record, the court below held that there was no partition by metes and bounds as contended by the defendants. The court below on facts, observed that if there was an out right oral partition, definitely the 2nd and 3rd defendants would have executed document transferring the title over those properties in favour of the plaintiff, especially in the light of the fact that it is not a co- ownership property, but the separate property of the 2nd and 3rd defendants. Mutation was not effected in respect of the properties put in possession of the respective parties and all the properties still remain in the joint names of the original plaintiff and Padmanabhan even at this distance of time. The court below A.S.No.406/1998 -8- rightly concluded that the defendants failed to establish that they have apparently exercised right over the properties put in possession as sole owners. There is no independent evidence to show that there was an oral partition by metes and bounds by agreement between the parties. Moreover, no evidence was adduced to prove that the properties are measured and the value of the same was assessed by taking into account the advantages and disadvantages. In these circumstances, the court below believed the case of the plaintiff that there was only an amicable arrangement for enjoyment among the co-owners and the parties never intended to partition the properties.

8. The parties are in possession and enjoyment of separate items of properties for a pretty long time. In the said context, the court below held that it is only equitable to allot the properties in the possession of the respective parties. It is proved that the building described as item No.9 was constructed by the original plaintiff spending his own money. Therefore, the court A.S.No.406/1998 -9- below held that the building shall be alloted to the share of the plaintiff without taking into consideration the value of the same for the purpose of equalisation of shares.

9. In the facts, circumstances and evidence noticed above, this Court also agree with the findings recorded by the court below. I find that different conclusions are not possible in the given facts and circumstances. Therefore the preliminary decree passed by the court below is sustained in all respects. In the result, the appeal fails and accordingly dismissed. No order as to costs. kcv. HARUN-UL-RASHID, JUDGE. A.S.No.406/1998 -10- HARUN-UL-RASHID, J. ------------------------------------ A.S.NO.406 OF 1998 ------------------------------------ JUDGMENT 12th June, 2012