Kerala High Court
Omana vs Pavamani on 1 August, 2025
Author: Sathish Ninan
Bench: Sathish Ninan
2025:KER:57847
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE SATHISH NINAN
&
THE HONOURABLE MR.JUSTICE P. KRISHNA KUMAR
FRIDAY, THE 1ST DAY OF AUGUST 2025 / 10TH SRAVANA, 1947
RFA NO. 604 OF 2012
AGAINST THE JUDGMENT DATED 24.02.2012 IN OS NO.404 OF 2008 OF
PRINCIPAL SUB COURT, PALAKKAD
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APPELLANTS/PLAINTIFFS:
1 OMANA,
W/O.THANKAPPAN, AGED 57 YEARS, RESIDING AT MUPPANPURA,
ARTHIKODE, PARUTHIPULLY, PALAKKAD DISTRICT.
2 SULOCHANA,
W/O.RAJAN, AGED 55 YEARS,
RESIDING AT PALALAMPADINNHAKARA HOUSE,
KARIMBA NO.1 VILLAGE, MANNARKKAD TALUK,
PALAKKAD DISTRICT.
3 PREMAKUMARI,
W/O.GOPALAN, KONANPURA, PARUTHIPULLY,
PALAKKAD DISTRICT.
BY ADVS.
SHRI.JACOB SEBASTIAN
SMT.SHAMSEERA. C.ASHRAF
2025:KER:57847
RFA NO. 604 OF 2012
RESPONDENT/DEFENDANT:
1 PAVAMANI, [DIED; LRS IMPLEADED]*
S/O.MURUGAN, MANGOTTUPURA, AGED 61 YEARS,
KADUKKAMKUNNAM, MALAMPUZHA, PALAKKAD DISTRICT,
PIN:678 005.
* ADDL. RESPONDENTS 2 TO 6
2 RUGMINI,
W/O.LATE PAVAMANI, RESIDING AT MANGOTTUPURA,
KADUKKAMKUNNAM MALAMPUZHA, PALAKKAD DISTRICT,
PIN : 678005.
3 MANOJ,
S/O.LATE PAVAMANI, RESIDING AT MANGOTTUPURA,
KADUKKAMKUNNAM, MALAMPUZHA, PALAKKAD DISTRICT,
PIN : 678005.
4 LATHIKA, D/O LATE PAVAMANI, RESIDINT AT MANGOTTUPURA,
KADUKKAMKUNNAM, MALAMPUZHA, PALAKKAD DISTRICT,
PIN : 678005.
5 MRIDULA,
D/O.LATE PAVAMANI, RESIDING AT MANGOTTUPURA,
KADUKKAMKUNNAM, MALAMPUZHA, PALAKKAD DISTRICT,
PIN : 678005.
6 SHEEBA,
D/O.LATE PAVAMANI, RESIDING AT MANGOTTUPURA,
KADUKKAMKUNNAM, MALAMPUZHA, PALAKKAD DISTRICT,
PIN : 678005
*[ADDITIONAL RESPONDENTS 2 TO 6 ARE IMPLEADED BEING THE
LEGAL REPRESENTATIVES OF THE DECEASED SOLE RESPONDENT
VIDE ORDER DATED 03/04/2025 IN IA 2/2012 (IA 1737/2012)
IN RFA 604/2012.]
BY ADVS.
SRI.BINOY VASUDEVAN
SRI.R.MANIKANTAN
SRI.SREEJITH SREENATH
THIS REGULAR FIRST APPEAL HAVING COME UP FOR HEARING ON
01.08.2025, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
2025:KER:57847
SATHISH NINAN &
P. KRISHNA KUMAR, JJ.
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R.F.A. No.604 of 2012
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Dated this the 1st day of August, 2025
J U D G M E N T
Sathish Ninan, J.
The suit for partition was dismissed by the trial court. The plaintiffs are in appeal.
2. The plaintiffs and the defendant are the children of late Murugan. The plaint schedule consists of 12 items of properties. The plaint claim is that the properties belonged to Murugan. Murugan and his wife are no more. The plaintiffs seek for partition and separate possession of one out of four shares each.
3. The defendant contended that plaint schedule item Nos.8 to 10 did not belong to Murugan. He claimed independent right of the same. With regard to the remaining items it was contended that, though the properties belonged to the father Murugan, in the year 1974, Ext.B1 Partition Deed was executed between the father, mother and the R.F.A. No.604 of 2012 2025:KER:57847 -: 2 :- defendant. In the said partition, plaint items 11 and 12 were allotted to the share of the mother. After the death of the mother plaintiffs executed a power of attorney in favour of the defendant empowering sale of the properties. On the strength of the said power of attorney the properties were sold. Hence they are not available for partition. With regard to plaint item Nos.1 to 7 which were the properties allotted to the father under Ext.B1 partition it was contended that, in the year 1966, the father had executed Ext.B2 Will whereunder, the properties were bequeathed in favour of the defendant. Thus it was prayed that the suit be dismissed.
4. The trial court accepted the defendant's contentions and the suit was dismissed.
5. We have heard learned counsel on either side.
6. The points that arise for determination are: -
(i) Has the defendant proved Ext.B2 Will in accordance with law?
(ii) In the light of Ext.B1 Partition and Ext.B2 Will, are the plaintiffs entitled for partition in respect of plaint items 1 to 7?
(iii) Have the plaintiffs proved the title of Murugan over plaint items 8, 9 and 10 and its availability for partition?
(iv) Are plaint item Nos.11 and 12 available for partition?R.F.A. No.604 of 2012
2025:KER:57847 -: 3 :-
(v) Does the decree and judgment of the trial court warrant any interference?
7. Ext.B1 is the Partition Deed dated 12.02.1974, executed between Murugan, his wife Thanka, and the defendant-their son. The properties included in the partition belonged to Murugan. Under the partition, plaint item Nos.1 to 7 were allotted to the share of the father. Plaint item Nos.11 and 12 were allotted to the mother. Certain other properties were allotted to the son; they are not subject matter of the suit. Under Ext.B2 Will dated 23.02.1960 Murugan-the father, bequeathed plaint items 1 to 7 to the defendant.
8. With regard to the proof of Ext.B2 Will, the defendant claimed that none of the witnesses to the Will are alive. Summons was taken out to the witness, but were returned since they were no more. DW2 is the son of the first witness in Ext.B2. He has identified the signature of his father in Ext.B2. Nothing could be brought out in the cross-examination of DW2 to discredit his evidence. DW1, the defendant has identified the signature of Murugan. The admitted signature of Murugan is available in Ext.B1 R.F.A. No.604 of 2012 2025:KER:57847 -: 4 :- partition. On a comparison of the signature of Murugan in Exts.B1 and B2, it admits of no doubt that it is one and the same. The Will has been sufficiently proved in terms of Section 69 of the Indian Evidence Act. In the light of the same, the claim for partition over plaint item Nos.1 to 7 fails.
9. With regard to the claim for partition of items 11 and 12, it is not in dispute that the properties were allotted to the share of the mother under Ext.B1 partition. Admittedly the plaintiffs had executed a power of attorney in favour of the defendant, empowering sale of the said properties. It is not in dispute that the properties were sold on the strength of the said power of attorney. The argument of the learned counsel for the appellants is that, though the properties were sold, the share of the plaintiffs from out of the proceeds have not been given to them. Pertinently there is no pleading to the said effect. As to when the sale was effected, has not been brought out. What was the sale consideration is not in evidence. Added to all these, no relief is sought with regard to the same. It needs R.F.A. No.604 of 2012 2025:KER:57847 -: 5 :- only to be held that, plaint items 11 and 12 are not available for partition.
10. With regard to plaint item Nos.8 and 9, the plaintiffs claim that the property was held on a leasehold right by the father. The argument of the learned counsel for the appellant is that, the father was the lessee and the purchase certificates obtained by the defendant, who was the eldest among the children, enures to the benefit of all of them. The leasehold right had devolved on all the children. Thus they are co-owners of the property, it is claimed. The learned counsel relied on the judgment of a Full Bench of this Court in Viswambaran P.N. v. T.P.Sanu & ors (2018 (3) KHC 73) in support of the proposition that the purchase certificate issued to one co-owner enures to the benefit of the other co-owners also. The defendant on the other hand contended that he was the lessee. He had obtained Exts.B3 and B4 purchase certificates in respect of the same in his name and he is the owner.
11. As DW1, the defendant has deposed about the lease of the property obtained from its Jenmi, the family of R.F.A. No.604 of 2012 2025:KER:57847 -: 6 :- Puthuparyaram Kalyani Amma. There is no evidence to find that Murugan had taken the property on lease. The purchase certificates stand in the name of the defendant. In the circumstances, the claim of the plaintiffs over plaint item Nos.8 and 9 as a co-owner is bound to fail.
12. With regard to plaint item No.10, there is no evidence that the property belonged to Murugan or his wife. Therefore, the claim for partition of the same is unsustainable.
13. The trial court has considered the evidence on record in the right perspective. The suit was rightly dismissed by the trial court.
There is no merit in the appeal. The appeal fails and is dismissed.
Sd/-
SATHISH NINAN JUDGE Sd/-
P. KRISHNA KUMAR JUDGE kns/-
//True Copy// P.S. To Judge