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:
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SATHISH NINAN &
P. KRISHNA KUMAR, JJ.
= = = = = = = = = = = = = = = = = =
R.F.A. No.604 of 2012
= = = = = = = = = = = = = = = = = =
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
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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?
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(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
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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
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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
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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
