Kerala High Court
Bibin vs Sarala on 17 October, 2024
Author: Sathish Ninan
Bench: Sathish Ninan
2024:KER:77655
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE SATHISH NINAN
&
THE HONOURABLE MR. JUSTICE JOHNSON JOHN
THURSDAY, THE 17TH DAY OF OCTOBER 2024 / 25TH ASWINA, 1946
RFA NO. 157 OF 2024
AGAINST THE JUDGMENT DATED 17.10.2023 IN OS NO.93 OF 2020
OF SUB COURT, CHAVAKKAD
APPELLANT/1ST DEFENDANT:
BIBIN
AGED 36 YEARS
S/O MANAYIL RAJENDRAN, MANAYIL HOUSE,
KUNNAMKULAM VILLAGE, KAKKAD DESOM,
KUNNAMKULAM P.O, KUNNAMKULAM TALUK,
THRISSUR DISTRICT - 680503
REPRESENTED BY POWER OF ATTORNEY HOLDER SREEJA,
AGED 36 YEARS, W/O BIBIN, MANAYIL HOUSE,
KUNNAMKULAM VILLAGE, KAKKAD DESOM,
KUNNAMKULAM P.O, KUNNAMKULAM TALUK,
THRISSUR DISTRICT, PIN - 680503
BY ADVS.
ANAND KALYANAKRISHNAN
C.DHEERAJ RAJAN
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R.F.A.No.157 of 2024
-: 2 :-
RESPONDENTS/PLAINTIFF/2ND DEFENDANT:
1 SARALA
AGED 61 YEARS
W/O MANAYIL RAJENDRAN, MANAYIL HOUSE,
KUNNAMKULAM VILLAGE, KAKKAD DESOM, KUNNAMKULAM
P.O, KUNNAMKULAM TALUK, THRISSUR DISTRICT,
PIN - 680503
2 BINDHYA
AGED 40 YEARS
W/O KUMMATHU SANAL, KUMMATHU HOUSE, KAKKAD
VILLAGE, KAKKAD DESOM, KUNNAMKULAM P.O,
KUNNAMKULAM TALUK, THRISSUR DISTRICT,
PIN - 680503
BY ADVS.
RAHUL SURENDRAN
ASHWIN SETHUMADHAVAN(K/527/2006)
THIS REGULAR FIRST APPEAL HAVING COME UP FOR ADMISSION
ON 17.10.2024, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
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SATHISH NINAN & JOHNSON JOHN, JJ.
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R.F.A.No.157 of 2024
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Dated this the 17th day of October, 2024
JUDGMENT
Sathish Ninan, J.
The preliminary decree in a suit for partition is
under challenge in this appeal by the 1 st defendant.
2. The plaintiff is the wife of late Rajendran.
The defendants are their children. The plaint schedule
property belonged to the plaintiff and her husband, as
per Ext.A1 Sale Deed. On the death of Rajendran, the
plaintiff claims partition and separate possession of
her 4/6 shares in the plaint schedule property.
3. The 2nd defendant admitted the plaint claim.
The 1st defendant contended that the plaint schedule
property is not partible. According to him, the
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plaintiff and the 1st defendant had jointly owned 1 acre
of property. The 1st defendant had given a power of
attorney in favour of the plaintiff for assignment of
that property. Though the property was assigned, the
share of the 1st defendant thereunder was not given to
him. This was for the reason that, at the time of
execution of the power of attorney there was an oral
partition, whereunder, the plaint schedule property was
allotted to him.
4. The trial court held against the claim of oral
partition and accordingly, passed a preliminary decree
for partition.
5. We have heard the learned counsel on either
sides.
6. The points that arise for determination are;
(i) Is the finding of the trial court negativing the plea of oral
partition, sustainable on the evidence?
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(ii) Does the decree and judgment of the trial court warrant
any interference?
7. Though the 1st defendant-appellant raised a
plea of oral partition, he did not even care to mount
the witness box and adduce any evidence in support of
the claim. As noticed by the trial court, there is total
lack of evidence, oral or documentary, to find any oral
partition. The learned counsel for the appellant could
not point out any material to prove otherwise.
Therefore, the trial court was right in having negatived
the plea. The point No.(i) is answered accordingly.
8. The property belonged to the plaintiff and her
husband under Ext.A1 Sale Deed. They are entitled to 1/2
shares each. On the death of the husband (Rajendran),
his 1/2 shares devolved equally on the plaintiff and the
defendants, they being entitled to 1/3 shares each.
Therefore, the plaintiff is entitled to 4/6 shares and
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the defendants are entitled to 1/6 shares each. The
shares declared by the trial court is correct. The
decree and judgment of the trial court warrants no
interference.
Resultantly, the appeal lacks merits and is
dismissed. No cost.
Sd/-
SATHISH NINAN
JUDGE
Sd/-
JOHNSON JOHN
JUDGE
yd
