Kerala High Court
Kalyani vs Velayudhan And Others on 24 September, 2025
RFA 457/2010
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IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE C.PRATHEEP KUMAR
WEDNESDAY, THE 24TH DAY OF SEPTEMBER 2025 / 2ND ASWINA,
1947
RFA NO. 457 OF 2010
OS NO.859 OF 2008 OF II ADDITIONAL SUB COURT,
THRISSUR
APPELLANT/PLAINTIFF
1 KALYANI, AGED 86 YEARS, W/O.LATE KUZHIPARAMBIL
GANGADHARAN,, KILLANNOOR VILLAGE, KOZHIKUNNU
DESOM, THRISSUR TALUK AND D/O.LATE SANKARAN &,
LAKSHMI THAIVALAPPIL. [DIED ]
ADDL.A2 K.G.SOUDAMINI, D/O.KALYANI, KUZHIPARAMBIL HOUSE,
KOZHIKUNNU DESOM, M.G.KAVU P.O., THRISSUR-
680010
ADDL.A3 AMBIKA, D/O.KALYANI, KUZHIPARAMBIL HOUSE,
KOZHIKUNNU DESOM, M.G.KAVU P.O., THRISSUR -
680010.
BY ADV SRI.V.V.SURESH
RESPONDENTS/DEFENDANTS
1 VELAYUDHAN, AGED 80 YEARS,
S/O.LATE THAIVALAPPIL SANKARAN & LAKSHMI,
KILLANNOOR VILLAGE, KOZHIKUNNU DESOM, THRISSUR
TALUK, PIN-680 581. [DIED]
2 SAROJINI, AGED 72 YEARS,
D/O.LATE THAIVALAPPIL SANKARAN & LAKSHMI,
KILLANNOOR VILLAGE, KOZHIKUNNU DESOM, THRISSUR
TALUK, PIN-680 581.
3 KALYANI AGED 79 YEARS
RFA 457/2010
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W/O.LATE RAVUNNY THAIVALAPPIL, KILLANNOOR
VILLAGE, KOZHIKUNNU DESOM,, THRISSUR TALUK, PIN-
680 581.
4 THANKAMOL @ PARVATHY AGED 59 YEARS,
D/O.LATE RAVUNNY AND W/O. PULIKUNNATH BALAN,
PUTHURUTHY DESOM, MUNDATHIKODE VILLAGE,
THALAPPILLY TALUK -680 585.
5 PRABHAKARAN AGED 49 YEARS
S/O.LATE THAIVALAPPIL RAVUNNY, KILLANNOOR
VILLAGE, KOZHIKUNNATH DESOM, THRISSUR TALUK-680
581.
6 CHANDRIKA, AGED 73 YEARS,
W/O.LATE CHANDRAN, S/O.LATE THAIVALAPPIL
SANKARAN & LAKSHMI, KILLANNOOR VILLAGE,
KOZHIKUNNU DESOM, THRISSUR TALUK-680 581.
7 JAYAN AGED 42 YEARS, S/O.LATE
THAIVALAPPIL CHANDRAN, KILLANNOOR VILLAGE,
KOZHIKUNNU DESOM, THRISSUR TALUK-680 581.
8 CHINNAN @ SASI AGED 40 YEARS,
S/O.LATE THAIVALAPPIL CHANDRAN, KILLANNOOR
VILLAGE, KOZHIKUNNU DESOM, THRISSUR TALUK-680
581.
9 GEETHA, AGED 44 YEARS
D/O.LATE THAIVALAPPIL CHANDRAN, KILLANNOOR
VILLAGE, KOZHIKUNNU DESOM, THRISSUR TALUK-680
581.
10 GEETHA, AGED 41 YEARS
W/O.LATE THILAKAN, S/O.LATE THAIVALAPPIL
CHANDRAN, KILLANNOOR VILLAGE, KOZHIKUNNU DESOM,,
THRISSUR TALUK-680 581.
11 LIJU, AGED 21 YEARS,
D/O.LATE THILAKAN, S/O.LATE THAIVALAPPIL
CHANDRAN, KILLANNOOR VILLAGE, KOZHIKUNNU DESOM,
THRISSUR TALUK-680 581.
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12 LINJU, AGED 19 YEARS
S/O.LATE THAIVALAPPIL CHANDRAN, KILLANNOOR
VILLAGE, KOZHIKUNNU DESOM,, THRISSUR TALUK-680
581.
ADDL.13 VILASINI, D/O.KALYANI, KUZHIPARAMBIL HOUSE,
KOZHIKUNNU DESOM, M.G.KAVU P.O., THRISSUR -680
010
ADDL.14 KANAKAM, D/O.KALYANI, VADERIYATTIL HOUSE,
P.O.ANJUR, MUNDUR, ANDAPARAMBU, THRISSUR.
ADDL.15 SEETHALAKSHMI, D/O.KALYANI, KUZHIPARAMBIL HOUSE,
KOZHIKUNNU DESOM, M.G.KAVU P.O., THRISSUR -680
010
ADDL.16 SADHASIVAN, C/O.RAGHAVAN, RARAMPARAMBIL HOUSE,
VAYANASALA VIA, P.O.VELUR, WADAKKANCHEI,
THRISSUR.
ADDL.17 SAMBASIVAN, KUZHIPARAMBIL HOUSE, ATHANI,
UDAYANAGAR, THRISSUR.
ADDL.18 SATHEESAN, S/O.KALYANI, KUZHIPARAMBIL HOUSE,
KOZHIKUNNU DESOM, M.G.KAVU P.O., THRISSUR -680
581 (DIED)
ADDL.19 SHEEBA GOVINDANKUTTY,
KUNNATH HOUSE, P.O. MAYANNOOR, THRISSUR.
ADDL.20 DEVIKA (MINOR), KUZHIPARAMBIL HOUSE, KOZHIKUNNU
DESOM, M.G.KAVU P.O., THRISSUR -680 581
ADDL.21 AKHILESH (MINOR), KUZHIPARAMBIL HOUSE,
KOZHIKUNNU DESOM, M.G.KAVU P.O., THRISSUR -680
581
[THE LEGAL HEIRS OF DECEASED 1ST APPELLANT IS
IMPLEADED AS ADDITIONAL APPELLANTS 2 AND 3 AND
ADDITIONAL RESPONDENTS 13 TO 21 AS PER ORDER
DATED 10/9/13 IN IA 1852/13
ADDL.R22 AMMINI, AGED 80 YEARS, W/O LATE VELAYUDHAN,
THAIVALAPPIL HOUSE, KILLANNOOR VILLAGE,
RFA 457/2010
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KOZHIKUNNATH DESOM, THRISSUR TALUK
ADDL.R23 MOHANAN, S/O LATE VELAYUDHAN, THAIVALAPPIL
HOUSE, KILLANNOOR VILLAGE, KOZHIKUNNATH DESOM,
THRISSUR TALUK
ADDL.R24 RAJAN, S/O LATE VELAYUDHAN, THAIVALAPPIL HOUSE,
KILLANNOOR VILLAGE, KOZHIKUNNATH DESOM, THRISSUR
TALUK
ADDL.R25 LATHA, D/O LATE VELAYUDHAN, THAIVALAPPIL HOUSE,
KILLANNOOR VILLAGE, KOZHIKUNNATH DESOM, THRISSUR
TALUK
ADDL.R26 USHA, D/O LATE VELAYUDHAN, THAIVALAPPIL HOUSE,
KILLANNOOR VILLAGE, KOZHIKUNNATH DESOM, THRISSUR
TALUK
ADDL.R27 RATHI, D/O VELAYUDHAN, THAIVALAPPIL HOUSE,
KILLANNOOR VILLAGE, KOZHIKUNNATH DESOM, THRISSUR
TALUK
ADDL.R28 MANOHARAN, S/O LATE VELAYUDHAN, THAIVALAPPIL
HOUSE, KILLANNOOR VILLAGE, KOZHIKUNNATH DESOM,
THRISSUR TALUK.
[ LEGAL HEIRS OF DECEASED 1ST RESPONDENT ARE
IMPLEADED AS ADDITIONAL RESPONDENTS 22 TO 28
VIDE ORDER DATED 11.7.2018 IN I.A.1853/13 ]
ADDL.R29 SREERANJINI K.V., AGED ABOUT 37 YEARS, W/O LATE
SATHEESAN, KUZHIPARAMBIL HOUSE, KOZHIKUNNATH
DESOM, MULANGUNNATHUKAVU PO, THRISSUR - 680581
[LEGAL HEIR OF DECEASED R18 IS IMPLEADED AS R29
VIDE ORDER DATED 15.1.2016 IN I.A.107/16 ]
BY ADVS.
SHRI.T.M.CHANDRAN
SMT.S.A.SHERLY
SRI.V.A.SASIDHARAN
SRI.JOSEPH
THIS REGULAR FIRST APPEAL HAVING BEEN FINALLY HEARD
ON 18.9.2025, THE COURT ON 24.09.2025 DELIVERED THE
FOLLOWING:
RFA 457/2010
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JUDGMENT
Dated : 24th September, 2025
The plaintiff in OS No. 859 of 2008, on the file of the II Additional Sub
Court, Thrissur, is the appellant. (For the purpose of convenience, the parties are
hereafter referred to as per their rank before the trial court).
2. The plaintiff filed this suit for partition. The plaint schedule property
originally belonged to the plaintiff's mother Lakshmi and father Sankaran.
Admittedly Lakshmi and Sankaran died intestate. The children of Lakshmi and
Sankaran are the plaintiff, Velayudhan; the first defendant, Sarojini; the second
defendant, deceased Ravunni and deceased Chandran. Defendants 3 to 5 are the
legal representatives of deceased Ravunni and defendants 6 to 12 are the legal
representatives of deceased Chandran. According to the plaintiff, since Lakshmi
and Sankaran died intestate, the plaint schedule property is liable to be partitioned
into five shares and the plaintiff is entitled to get one such share.
3. The second defendant filed a written statement contending that, out of
the property comprised in Survey No. 875/3, she obtained a purchase certificate for
20 cents of property on 22.04.1977 and she constructed a residential building in the
said property. Out of the above 20 cents, 10 cents was already assigned in favour of
her second daughter and husband, as per document No. 3796 of 1994 and the
remaining 10 cents is in her possession and enjoyment. According to the second
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defendant, she is entitled to get 1/5 share from the remaining property.
4. The other defendants filed a joint written statement contending that
the plaint schedule properties are not partible. Though in the plaint the extent of
plaint 'A' schedule property is shown as 1.5 acre, its actual extent is only 90 cents
and its present Sy.No. is 876. According to the defendants, there was an oral
partition in the family about 40 years back. From the above 90 cents of property
comprised in Sy.No. 876, 20 cents each was given to Chandran and Ravuni and 30
cents was given to Velayudhan and the remaining 20 cents was jointly given to
Kalyani; the plaintiff and Sarojini. Kalyani and Sarojini obtained a purchase
certificate in respect to the above 20 cents. Later on, the plaintiff assigned her right
over the above 20 cents property in favour of Sarojini, the second defendant, and in
turn received the property of the husband of the second defendant. Later on,
Sarojini obtained pattayam in respect of the above 20 cents. According to the
defendants, plaint schedule item No. 2 was leased out by the male members of the
family and they are cultivating the said property. They are also paying tax for the
said property. The defendants nos. 1, 3 and 6 obtained pattayam for the said
property and the plaintiff is not entitled to get any share from the said property
also. Therefore, they prayed for dismissing the suit.
5. The trial court framed three issues. The evidence in the case consists
of the oral testimonies of PW1, DW1 to 4, Ext. A1 and B1 to B9, X1 and X2. After
evaluating the evidence on record, the trial court dismissed the suit. Aggrieved by
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the above judgment and decree of the trial court, the plaintiff preferred the appeal.
6. Now the points that arise for consideration are the following:
1) Whether there was an oral partition in the plaintiff's family, as
contended by the defendants?
2) Whether the plaint schedule properties are partible?
7. Heard Sri.V.V.Suresh, the learned counsel for the plaintiff and Sri
Joseph, the learned counsel for the defendants.
8. The points: The plaintiff filed this suit for partition. Admittedly, the
plaint schedule property originally belonged to Lakshmi and Sankaran, the parents
of the plaintiff, defendant 1 and 2 and late Ravunni and Chandran. According to the
defendants, there was an oral partition in the family about 40 years back and in the
said oral partition, the properties were partitioned among the sharers and they have
taken separate possession of their respective sharers and are enjoying the respective
shares as their exclusive properties and as such, the plaint schedule properties are
not partible. Though the extent of plaint 'A' schedule property is shown as 1. 5
acres, as per Survey No. 876, its present extent is only 90 cents. According to the
defendants, in the oral partition, 20 cents each was given to Chandran and Ravunni,
30 cents was given to Velayudhan and the remaining 20 cents was jointly allotted
to the plaintiff Kalyani and the second defendant Sarojini. The defendants would
further contend that on the basis of the above oral partition, the respective sharers
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took possession of their respective shares, obtained purchase certificates in their
names and are enjoying the said properties as their exclusive properties. Further
according to the Defendants, 20 cents allotted to the plaintiff and the second
defendant was also taken possession by them, obtained purchase certificate in their
favour and thereafter, the plaintiff assigned her right in the said 20 cents in favour
of the second defendant and in consideration of the same, she received another
property from the husband of the second defendant. According to the defendants, a
lesser extent of property was allotted to the plaintiff and the second defendant in
the oral partition, as the expense for their marriage was met by the male siblings.
9. The defendants relied upon Exhibit B1 and B6 purchase certificates
obtained on 22.04.1977, Exhibit B2 to B5 and B9 series land tax receipts and
building tax receipts in the name of the defendants. The second defendant as DW 4
also deposed that on the basis of the family partition she obtained 20 cents a
property and she is in exclusive possession and enjoyment of the said property for
the last 50 years. According to her, out of the above 20 cents, she had assigned 10
cents in favour of her daughter by Document No. 3796 of 1994. Exhibit B6 is the
pattayam in respect to the above 20 cents in her favour. She also deposed that the
shares allotted to Ravunni, Chandran and Velayudhan are lying separately with
distinct boundaries.
10. Relying upon the decision of this court in Narayanan v. Sankaran
2024 (4) KLT 71, the learned counsel for the defendants would argue that in this
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case, the plaintiff has no case that the defendants obtained purchase certificate in
their name by fraud or collusion and as such, the bar under Section 125 of the KLR
Act does not apply in this case. As argued by the learned counsel for the
defendants, in this case, the plaintiff has no case that the purchase certificates
obtained by the defendants are for and on their behalf also. Since the plaintiff has
no case that the purchase certificates obtained by the defendants are for and on
behalf of the plaintiff also and since they have not challenged the validity of the
above purchase certificates, the above circumstance also substantiates the case of
the defendants about the oral partition in their family about 40 years back.
11. The defendants examined DW3 also to prove the oral partition. At the
time of evidence, DW3 in clear terms deposed about the oral partition, as pleaded
by the defendants in their written statement. He also deposed that, on the basis of
the oral partition, the respective sharers took possession of their shares, constructed
residential buildings and obtained Pattayam in their favour. The plaintiff has not
adduced any evidence to prove that the pattayam obtained by the defendants in
pursuance to the oral partition was for and on behalf of all the other family
members.
12. In this context, it is to be noted that the plaintiff has not entered the
witness box to swear her case on oath and to offer herself to be cross-examined by
the defendants. Instead, her daughter was examined as PW1. Since the specific case
of the defendants is that there was an oral partition in the family between the family
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members and on the basis of the above oral partition, the scheduled property was
partitioned among the sharers and the respective sharers have taken possession of
the respective shares, it is the burden of the plaintiff to deny the above case set up
by the defendants. Since the plaintiff has not entered the witness box to swear her
case and she has not denied the oral partition as claimed by the defendants, the
version of the defendants that there was an oral partition in the family before 40
years is to be believed.
13. Moreover, though the defendants disclosed through their written
statement that on the basis of oral partition they have obtained pattayam in respect
of their shares and the second defendant has even assigned a portion of the
property obtained by her to her daughter, the plaintiff has not taken any steps to get
the above pattayam and assignment deed set aside, by incorporating necessary
prayers in the plaint. Therefore, from the available evidence, the trial court was
justified in holding that there was an oral partition in the family of the plaintiff and
defendants and as such, on the basis of the above oral partition, the plaint schedule
properties were already partitioned and as such, the finding that the plaint schedule
properties are not partible, is liable to be accepted. I do not find any irregularity or
illegality in the impugned judgment and decree of the trial court, so as to call for
any interference. Points answered accordingly.
14. In the result, this appeal stands dismissed, confirming the judgment
and decree of the trial court. Considering the facts, I direct all the parties to suffer
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their respective costs.
All pending interlocutory applications in the appeal will stand dismissed.
Sd/-
C.Pratheep Kumar, Judge
Mrcs/19.9.25
