BY AD v. A.BALAGOPALAN

BY ADVS. A.BALAGOPALAN SRI.A.RAJAGOPALAN SRI.M.N.MANMADAN SRI.M.S.IMTHIYAZ AHAMMED SMT.P.SEENA RESPONDENTS/RESPONDENTS/PLAINTIFF AND DEFENDANTS 6 TO 11: 1 2 POULOSE AGED 66 YEARS S/O SOURIYAR, KANAVALA HOUSE, KARUKITTI VILLAGE, ALUVA TALUK--683576. ROSY AGED 65 YEARS W/O LATE THOMAS, KANAVALA HOUSE, KORATTI VILLAGE, THRISSUR-680308. RSA NO. 623 OF 2020 2 3 4 5 6 7 LINTY NELSON AGED 36 YEARS W/O NELSON, POTTAMPLACKAL HOUSE, KARUKITTI VILLAGE, ALUVA TALUK-683576. BEENA SEBI AGED 40 YEARS W/O SEBI, PUTHUSERRY HOUSE, KORATTI VILLAGE, THRISSUR- 680308. LEENA SAJU, AGED 38 YEARS, W/O SAJU, KILIYELKKUDI HOUSE, KARUKITTI VILLAGE, ALUVA TALUK-683576. VARKI ALIAS VARGHESE, AGED 70 YEARS, S/O SHOURIYAR, KANAVALA HOUSE, VKC NAGAR STREET, 35/20, KOUNDAMPALAYAM, SREENIVASA NAGAR, COIMBATORE-641019. K.T. THOMAS AGED 56 YEARS S/O LATE DEVASI, KANAVALA HOUSE, KOLAYAD P.O, PUNNAPALAM, THALASSERY-670650. BY ADVS. SRI.SAIBY JOSE KIDANGOOR – R1 ANNIE EDNA ARAKKEL - R6 SANEESH KUMAR - R7 THIS REGULAR SECOND APPEAL HAVING COME UP FOR ORDERS ON 11.01.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: RSA NO. 623 OF 2020 3 J U D G M E N T The preliminary decree of partition passed in O.S.No.404 of 2010 on the files of the Munsiff Court, Aluva, which was confirmed by the Additional District Judge, North Paravur, as per judgment in A.S.No.16 of 2018 dated 15.11.2019 are under challenge in this appeal at the instance of defendants 2 to 5 in the above suits. The respondents are the other parties to the suit.

2. On adjudication of the right claimed by the plaintiff over plaint A and B Schedule properties left by his father Sri.Souriyar, the trial Court passed preliminary decree as under: “i) Plaint schedule property can be divided into 5 shares by meters and bounds. ii)Plaintiff, 10th and 11th defendants are entitled for 1/5 shares each. Defendants 1 to 5 together and defendants 6 to 9 together are entitled for 1/5 shares each. iii) Costs of the suit shall come out of the estate. iv) Any of the parties are at liberty to purchase stamp papers for engrossing the final decree. v) Suit shall adjourn sine die.” The said preliminary decree was challenged A.S.No.16 of 2018 and the same was dismissed.

3. The learned counsel for the appellants/defendants 2 to 5 would submit that as of now, the 7th respondent in this appeal, who is the original 11th defendant filed an affidavit stating that RSA NO. 623 OF 2020 4 the share of the 11th defendant to be allotted in favour of defendants 2 to 5. On perusal of the affidavit filed by the 7th respondent/11th defendant, the averments as under: “I am the 7th respondent in the above appeal. The above Regular Second Appeal arises against the judgement and decree passed in A.S. No. 16/2018 dated 15/11/2019 passed by the Additional District Judge, North Paravoor confirming the decree and judgement passed by the Munsiff's Court Aluva in O.S. No. 404/2010 dated 09/03/2018.

2. I was the 11th defendant in the suit O.S. No. 404 of 2010, a suit for partition filed by the 1st respondent herein praying for a decree dividing the plaint scheduled properties into five equal shares and to allot one share to the 1st Respondent herein. The Munsiff's Court Aluva passed a preliminary decree directing the division of plaint schedule properties into five equal shares. As per the said decree, I was allotted 1/5 share in the plaint schedule properties.

3. I beg to submit that I do not want any share in the plaint schedule properties and the same can be given to the appellants herein. I am relinquishing my share over the plaint schedule properties due to the fact that the plaint schedule properties were agreed to be sold to the mother of the appellants by my father late Devassy and his brothers, the 1st respondent herein and late Thomas on the basis of an agreement dated 17/11/1997 and the possession of the properties were given to the mother of the appellants.”

4. Therefore, the learned counsel for defendants 2 to 5 submitted that the preliminary decree requires modification by granting share due to the 11th defendant also in favour of defendants 2 to 5. He also submitted that, the Trial Court as well as the Appellate Court did not notice I.A.No.217 of 2013 and a statement filed on 08.02.2013 by defendants 6 to 8 before the RSA NO. 623 OF 2020 5 trial Court relinquishing their right in favour of the 2 nd defendant – Sri.Sevi. Therefore, the preliminary decree requires modification allowing their share in favour of the 2nd defendant.

5. On perusal of the averments in I.A.No.217 of 2013 and the statement dated 08.02.2013, the submission appears to be true. If so, acting on the statement supported by the averments in I.A.No.217 of 2013, the share due to defendants 6 to 8 shall be given in favour of the 2nd defendant. Apart from that, the other parties are entitled to get shares granted by the Trial Court and confirmed by the Appellate Court.

6. Therefore, the preliminary decree of partition requires modification in view of the affidavit filed by the 11th defendant and statement filed by defendants 6, 7 and 8. Accordingly, the preliminary decree partition passed by the Trial Court is modified as under: 1) It is ordered that the plaint scheduled property shall be divided into five equal shares. 2) 2/5th shares are entitled by the defendants 2 to 5. Apart from that the 2nd defendant would get 3/4th shares out of 1/5th share due to late Thomas entitled by defendants 6, 7 and 8. 3) The plaintiff and 10th defendant are entitled to get 1/5th share. RSA NO. 623 OF 2020 6 4) Similarly, the 9th defendant – Smt.Leena Saju is entitled to get 1/4th of 1/5th share devolved upon late Thomas. Matter stands adjourned sine die with liberty to the sharers to move the final decree. SD/- A. BADHARUDEEN JUDGE