BY AD vs M.S.UNNIKRISHNAN

BY ADVS. M.S.UNNIKRISHNAN SRI.K.SUNIL SRI.JITHIN PAUL VARGHESE SMT.C.V.VEENA SMT.A.G.NISHA SMT.M.ARDRA KRISHNAN RESPONDENT S/RESPONDENTS/PLAINTIFFS : 1 2 3 GOPALAPILLA AGED 74 YEARS S/O.PARAMESWARAN PILLAI, VILAYIL VEEDU, THOTTINKARA PUTHEN VEEDU, PANAYAMCHERRY MURI, ANCHAL VILLAGE, PUNALUR TALUK, PIN-691305. KAMALAMMA,(DIED) LHS RECORDED AGED 84 YEARS W/O.GANGADHARAN PILLAI, KRISHNA SADANAM, ELAMADU VILLAGE, ELAMADU MURI, KOTTARAKARA TALUK, PIN-693531. (RESPONDENTS 3 TO 6 ARE RECORDED AS LEGAL HEIRS OF DECEASED SECOND RESPONDENT AS PER ORDER DATED 17.10.2024 IN MEMO DATED 07.09.2024) RADHAMANI, AGED 64 YEARS D/O.GANGADHARAN PILLAI, KRISHNA SADANAM, ELAMADU VILLAGE, ELAMADU MURI, KOTTARAKARA TALUK, PIN-693531. RSA NO. 451 OF 2020 3 4 5 6 7 8 9 CHANDRIKA, AGED 56 YEARS D/O.GANGADHARAN PILLAI, KRISHNA SADANAM, ELAMADU VILLAGE, ELAMADU MURI, KOTTARAKARA TALUK, PIN-693531. THULASEEDHARAN PILLAI, AGED 53 YEARS S/O.GANGADHARAN PILLAI, KRISHNA SADANAM, ELAMADU VILLAGE, ELAMADU MURI, KOTTARAKARA TALUK, PIN-693531. MURALI, AGED 51 YEARS S/O.GANGADHARAN PILLAI, KRISHNA SADANAM, ELAMADU VILLAGE, ELAMADU MURI, KOTTARAKARA TALUK, PIN-693531. THANKAMANI, AGED 61 YEARS D/O.PONNAPPAN PILLAI, KOCHUKALEEZHAKATHU VEEDU, EROOR VILLAGE, NAMBALIKUNNATHU VEEDU, PANAYAMCHERRY MURI, EROOR VILLAGE, PUNALUR TALUK, PIN-691312. LEELA, AGED 54 YEARS W/O.SOMAN, KOCHUKALEEZHAKATHU VEEDU, PANAYAMCHERRY MURI, EROOR VILLAGE, PUNALUR TALUK, PIN-691312. ANILA, AGED 31 YEARS D/O.SOMAN, KOCHUKALEEZHAKATHU VEEDU, PANAYAMCHERRY MURI, EROOR VILLAGE, PUNALUR TALUK, PIN-691312. 10 ANI, AGED 29 YEARS S/O.SOMAN, KOCHUKALEEZHAKATHU VEEDU, PANAYAMCHERRY MURI, RSA NO. 451 OF 2020 11 12 13 14 15 16 4 EROOR VILLAGE, PUNALUR TALUK, PIN-691312. ANEESH, AGED 26 YEARS S/O.SOMAN, KOCHUKALEEZHAKATHU VEEDU, PANAYAMCHERRY MURI, EROOR VILLAGE, PUNALUR TALUK. SEETHA, AGED 51 YEARS W/O.RAJENDRA KURUP, KOCHUKALEEZHAKATHU VEEDU, PANAYAMCHERRY MURI, EROOR VILLAGE, PUNALUR TALUK, PIN-691312. RAJESH, AGED 31 YEARS S/O.RAJENDRA KURUP, KOCHUKALEEZHAKATHU VEEDU, PANAYAMCHERRY MURI, EROOR VILLAGE, PUNALUR TALUK, PIN-691312. RAHULAN, AGED 29 YEARS S/O.RAJENDRA KURUP, KOCHUKALEEZHAKATHU VEEDU, PANAYAMCHERRY MURI, EROOR VILLAGE, PUNALUR TALUK, PIN-691312. RADHIKA, AGED 27 YEARS D/O.RAJENDRA KURUP, KOCHUKALEEZHAKATHU VEEDU, PANAYAMCHERRY MURI, EROOR VILLAGE, PUNALUR TALUK, PIN-691312. KAMALAKSHY AMMA, AGED 81 YEARS W/O.DAMODHARAN PILLAI, AKHILASH BHAVAN, PANAYAMCHERRY MURI, VATTAYATHU PUTHEN VEEDU, PANAYAMCHERRY MURI, EROOR VILLAGE, PUNALUR TALUK, PIN-691312. RSA NO. 451 OF 2020 5 17 18 19 VIJAYAKUMAR @ MANIYAN PILLAI, AGED 64 YEARS W/O.DAMODHARAN PILLAI, AKHILASH BHAVAN, VATTAYATHU PUTHEN VEEDU, PANAYAMCHERRY MURI, EROOR VILLAGE, PUNALUR TALUK, PIN-691312. SREEDEVI, AGED 61 YEARS W/O.DAMODHARAN PILLAI, AKHILASH BHAVAN, VATTAYATHU PUTHEN VEEDU, PANAYAMCHERRY MURI, EROOR VILLAGE, PUNALUR TALUK, PIN-691312. MOHANAN, AGED 56 YEARS S/O.DAMODHARAN PILLAI, AKHILASH BHAVAN, VATTAYATHU PUTHEN VEEDU, PANAYAMCHERRY MURI, EROOR VILLAGE, PUNALUR TALUK, PIN-691312. BY ADVS. FOR R1 AKHIL K.MADHAV ANESH PAUL THIS REGULAR SECOND APPEAL HAVING BEEN FINALLY HEARD ON 27.03.2025, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: RSA NO. 451 OF 2020 6 JUDGMENT

1. The defendants 19 to 22 in a suit for partition are the appellants. The 1st Respondent filed the suit. The Trial Court passed a preliminary decree finding that the plaint schedule property is partible, allotting 1/5 share to the plaintiff, 1/5 share to the defendants 1 to 5, 1/5 share to the defendants 6 to 14, 1/5 share to defendants 15 to 18 and 1/5 share to the defendants 19 to 22. Though the appeal was filed by the defendants 19 to 22, the same was dismissed by the First Appellate Court.

2. This Regular Second Appeal is filed challenging the judgment and decree passed by the Trial Court which is confirmed by the First Appellate Court.

3. I heard the learned counsel for the appellants Sri.M.S Unnikrishnan.

4. The learned counsel for the appellants contended that RSA NO. 451 OF 2020 7 though the plaintiff contended that the plaint schedule property of 32 cents belongings to Omanakutty Amma, as per Exts.A3 to A5, Omanakutty Amma was not having the said extent at the time of death. She had transferred the property covered by Exts.A3 to A5 documents. The further contention is that the property is not correctly identified by the Advocate Commissioner in Ext.B6 Commission Report, Plan, and Mahazar, which is relied on by the Trial Court. Now another property is sought to be executed on the strength of the preliminary decree.

5. I have considered the contentions.

6. It is seen that the plaintiff is the brother of the deceased Omanakutty Amma who died on 09/09/2008. Apart from the plaintiff, the Omanakutty Amma had Gangadharan Pillai, Ponnappan Pillai, Damodaran Pillai and Balan Pillai as brothers. The defendants are the legal heirs of those brothers of Omanakutty Amma. Admittedly, Omanakutty RSA NO. 451 OF 2020 Amma died unmarried and issueless. 8

7. The defendants 19 to 22 alone contested the suit. They are the legal heirs of Balan Pillai, brother of Omanakutty Amma. It is seen that the Omanakutty Amma had mortgaged 10 cents out of the plaint schedule property in favour of Balan Pillai and his wife. Balan Pillai and his wife filed O.S. No.57/84 seeking an injunction. In the said suit, Omanakutty Amma filed a counterclaim seeking redemption of the mortgage. The suit was dismissed, and the counterclaim was decreed. On the strength of the said decree in the counter claim, the said 10 cents was redeemed. But during the pendency of the execution the Omanakutty Amma died. Consequently, Balan Pillai also became one of the legal heirs of Omanakutty Amma. Since Balan Pillai stepped into the shoes of legal heirs, the execution proceedings were disposed of holding that the proper remedy is to seek suit for partition. Thereafter, RSA NO. 451 OF 2020 the present suit is filed for partition. 9

8. It is seen from the Trial Court judgment that the plaintiff produced Exts.A3 to A5 documents to prove that Omanakutty Amma had 32 cents of land at the time of her death. Though the defendants 19 to 22 contended that the said extent was not available at the time of the death of Omanakutty Amma, they had no case that Omanakutty Amma alienated any part of the said property to anyone. No documents were produced showing that Omanakutty Amma sold any part of the said 32 cents. On the basis of the said facts, the Trial Court found that the Omanakutty Amma had 32 cents of land at the time of her death. Consequently, the preliminary decree for partition was passed with respect to the said 32 cents of land. If the defendants 19 to 22 have a contention that on the strength of the said decree, a property other than the 32 cents is sought to be executed, the said matter is to be RSA NO. 451 OF 2020 10 agitated in the final decree proceedings. It is not a ground for setting aside the preliminary decree.

9. Hence with the aforesaid observations, this Regular Second Appeal is dismissed. Sd/- M.A.ABDUL HAKHIM JUDGE