Kerala High Court
Narayani V.K vs Kuttiatha Alias Malu on 25 July, 2024
Author: Sathish Ninan
Bench: Sathish Ninan
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE SATHISH NINAN
&
THE HONOURABLE MR. JUSTICE JOHNSON JOHN
THURSDAY, THE 25TH DAY OF JULY 2024 / 3RD SRAVANA, 1946
RFA NO. 63 OF 2015
AGAINST THE JUDGMENT DATED 29.11.2014 IN OS NO.33 OF 2008
OF I ADDITIONAL SUB COURT, KOZHIKODE
-----
APPELLANTS/PLAINTIFFS:
1 NARAYANI V.K,
AGED 72 YEARS,
D/O.KUTTAN MADATHILKANDIYIL HOUSE, NELLIKKA
PARAMBIL, P.O.KODIYATHOOR AMSOM AND DESOM OF
KOZHZIKODE TALUK.
2 RAGHAVAN V.K.,
AGED 71 YEARS,
S/O.KUTTAN, VAISAKH HOUSE, KANDANAD P.O.,
ERNAKULAM.
3 KARTHIYANI ALIAS MALU, [DIED; LRs IMPLEADED]*
3
AGED 59 YEARS,
D/O.KUTTAN, VARANGAL HOUSE, P.O.KUNNAMANGALAM
(MIE),NEAR CHETHUKADAVE, CALICUT, PRESENTLY
RESIDING AT EDAPARAMBATH HOUSE, POOLAKKAD AMSOM
AND DESOM OF KOZHIKODE TALUK.
4 CHANDRA BABU V.K.,
AGED 57 YEARS,
S/O.APPU, VATTAKANDIYIL HOUSE, ALLI P.O.,
KUMARANELLOOR AMSOM, ALLI DESOM, MUKKOM,
KOZHIKODE.
HEADNOTE-RFA 63/2015
-: 2 :-
5 VEERENDRAKUMAR V.K.,
AGED 45 YEARS,
S/O.APPU, VATTAKANDIYIL HOUSE, ALLI P.O.,
KUMARANELLOOR AMSOM, ALLI DESOM, MUKKOM,
KOZHIKODE.
6 VASANTHAKUMAR V., [DIED; LRs IMPLEADED]*
1
AGED 51 YEARS,
S/O.APPU, VATTAKANDIYIL HOUSE, ALLI P.O.,
KUMARANELLOOR AMSOM, ALLI DESOM, MUKKOM,
KOZHIKODE.
7 SIVADASAN V.K.,
AGED 53 YEARS,
S/O.APPU, VIPANCHIKA HOUSE, P.O.MAYANADE,
(VIA) MEDICAL COLLEGE CALICUT, CALICUT.
8 SHYMALA V.K.,
AGED 59 YEARS,
D/O.APPU, VENDAM PARAMBIL HOUSE,
MANNAMANGALAM P.O., TRICHUR.
9 SHYLAJA V.K.,
AGED 47 YEARS,
D/O.APPU, PARAMBIL HOUSE, P.O.PANNIKKODU,
KODIYATHOOR AMSOM, PANNIKKODU DESOM,
KOZHIKODE.
10 V.K.CHANDRAN,
AGED 58 YEARS,
S/O.KUTTAN, EDAPARAMBATH HOUSE,
P.O.NARIKUZHI, POOLAKODE, CALICUT.
11 A.RAJAN, [DIED; LRs IMPLEADED]*
2
AGED 55 YEARS,
S/O.JANAKI, AMBAYAKKUNNATH HOUSE,
P.O.VELLALASSERY, CHOOLLOR AMSOM, POOLAKKOD
DESOM OF KOZHIKODE TALUK.
HEADNOTE-RFA 63/2015
-: 3 :-
12 SUBRAMANINAN,
AGED 52 YEARS,
S/O.JANAKI, VALIYAPARAMBATH HOUSE,
P.O.VENGERI, CALICUT.
13 A.BABY SREEDHAN,
AGED 47 YEARS,
D/O.JANAKI, CHENGOTTU POONTHOTTATHIL,
P.O.RAMANATTUKARA, VELIPRAM AMSOM AND DESOM
OF KOZHIKODE.
14 A.RATHNAVATHI BALAKRISHNAN,
AGED 59 YEARS,
D/O.JANAKI,NAMBONATHIL HOUSE,
P.O.,PAYHIMBRA, KARUVATTOOR AMSOM, PAYIMBRA
DESOM OF KOZHIKODE TALUK.
15 A.NALINI,
AGED 50 YEARS,
D/O.JANAKI, 'AISWASRYA', 17/288, P.O.
VELLIPARAMBA, KUTTIKKATTOOR AMSOM AND DESOM
OF KOZHIKODE.
16 MINI SOBHANANDAN,
AGED 42 YEARS,
D/O.JANAKI, CHITTARIKUZHIYIL HOUSE,
P.O.PERUVAYAL MANA, PERUVAYAL AMSOM AND
DESOM OF KOZHIKODE TALUK.
*1 SUPPLEMENTAL APPELLANTS 17 TO 19
SUP.APPL. 17 SINDHU P., AGED 48 YEARS, W/O LATE
VASANTHAKUMAR V., VAYAPPARTHODI HOUSE,
PANNIKODE PO, KOZHIKODE-673602.
SUP.APPL. 18 ARJUN V., AGED 24 YEARS, S/O LATE
VASANTHAKUMAR V., VAYAPPARTHODI HOUSE,
PANNIKODE PO., KOZHIKODE-673602.
HEADNOTE-RFA 63/2015
-: 4 :-
SUP.APPL. 19 AKSHAY V., AGED 16 YEARS, S/O LATE
VASANTHAKUMAR V., VAYAPPARTHODI HOUSE,
PANNIKODE PO., KOZHIKODE.
*1 [SUPPLEMENTALAPPELLANTS 17 TO 19 ARE IMPLEADED AS
LEGAL HEIRS OF THE DECEASED 6TH APPELLANT VIDE ORDER
DATED 24.02.2022 IN IA 1/2022]
*2 SUPPLEMENTAL APPELLANTS 20 TO 22
SUP.APPL. 20 SOUMINI, AGED 62 YEARS, W/O LATE A. RAJAN,
AMBAZHAMKUNNTH HOUSE, VELLALASSERY PO.,
CHOOLUR REC VIA, KOZHIKODE-673601.
SUP.APPL. 21 RENNI RAJA, AGED 38 YEARS, S/O LATE A RAJAN,
AMBAZHAMKUNNTH HOUSE, VELLALASSERY PO,
CHOOLUR REC VIA, KOZHIKODE-673601.
SUP.APPL. 22 ASHVIN RAJA, AGED 28 YEARS, S/O LATE A
RAJAN, AMBAZHAMKUNNTH HOUSE, VELLALASSERY
PO, CHOOLUR, REC VIA, KOZHIKODE-673601.
*2[SUPPLEMENTAL APPELLANTS 20 TO 22 ARE IMPLEADED AS
LEGAL HEIRS OF THE DECEASED 11TH APPELLANT, VIDE ORDER
DATED 24.02.2022 IN IA 3/2022]
*3 ADDITIONAL APPELLANTS 23 TO 24
ADDL. A23 SINDHU, AGED 43 YEARS, D/O LATE KARTHIYANI
ALIAS MALU, VADAKKE NEDUNKANDATHIL HOUSE,
PILASSERY PO., KUNNAMANGALAM, VALICUT-
673571.
ADDL. A24 SANDHYA, AGED 41 YEARS, D/O LATE KARTHIYANI
ALIAS MALU, VARANGAL HOUSE, PO.KUNNAMANGALAM
(MIE), NEAR CHETHUKADAVE, CALICUT-673571.
*3 [LEGAL HEIRS OF DECEASED APPELLANT NO.3 ARE IMPLEADED AS
ADDITIONAL APPELLANTS NOS.23 AND 24, VIDE ORDER DATED 22.07.2024
IN IA NO.4/2022]
HEADNOTE-RFA 63/2015
-: 5 :-
BY ADVS.
SRI.T.SETHUMADHAVAN (SR.)
SRI.BLAZE K.JOSE
SMT.DEEPA NARAYANAN
PREETHI. P.V.
M.V.BALAGOPAL
RESPONDENTS/DEFENDANTS:
1 KUTTIATHA ALIAS MALU,
AGED 75 YEARS,
W/O.KORU, SRAMBIKKAL HOUSE, P.O.ALLI,
KUMARANELLOOR AMSOM, ALLI DESOM OF KOZHIKODE
TALUK.
2 SAUBHAGYAVAN,
AGED 55 YEARS,
S/O.KORU, SRAMBIKKAL HOUSE, SRAMBIKKAL
HOUSE, P.O. ALLI, KUMARANELLOOR AMSOM, ALLI
DESOM OF KOZHIKODE TALUK.
3 RAVEENDRAN,
AGED 50 YEARS,
S/O.KORU, SRAMBIKKAL HOUSE, P.O.ALLI,
MUKKOM, KUMARANELLOOR AMSOM, ALLI DESOM OF
KOZHIKODE TALUK.
4 KOMALAVALLI VIJAYABABU E.T.,
D/O.KORU, KANNAN NIVAS, P.O.MANASSERI,
KAYYERIKKAL THAZHEKODU AMSOM AND DESOM OF
KOZHIKODE TALUK.
5 JAYAPRAKASAN,
AGED 47 YEARS,
S/O.KORU,KANNAN NIVAS,THAZHEKODE AMSOM AND
DESOM OF KOZHIKODE TALUK.
HEADNOTE-RFA 63/2015
-: 6 :-
6 JANAKI,
AGED 53 YEARS,
W/O.VASU IRINGAL, PATTAKUNNU HOUSE, NEAR
MUKKAM, THAZHEKODE AMSOM AND DESOM OF
KOZHIKODE.
7 SINDURAJ,
AGED 34 YEARS,
S/O.VASU IRINGAL, PATTAKUNNU HOUSE, NEAR
MUKKAM HIGH SCHOOL,P.O. MUKKOM, THAZHEKODU
AMSOM AND DESOM OF KOZHIKODE.
8 SAJI,
AGED 36 YEARS,
D/O. VASU IRINGAL, PATTAKUNNU HOUSE, NEAR
MUKKAM HIGH SCHOOL, P.O. MUKKOM, THAZHEKODU
AMSOM AND DESOM OF KOZHIKODE.
9 BINDU,
AGED 34 YEARS,
D/O.VASU IRINGAL, PATTAKUNNU HOUSE, NEAR
MUKKAM HIGH SCHOOL ,P.O. MUKKOM THAZHEKODU
AMSOM AND DESOM OF KOZHIKODE.
10 JANAKI RAMAN,
AGED 59 YEARS,
W/O.RAMAN, KAITHONA HOUSE, P.O.MUKKOM,
THAZHEKODEU AMSOM AND DESOM OF KOZHIKODE
TALUK.
11 BIJA,
AGED 33 YEARS,
D/O.RAMAN, KAITHONA HOUSE, P.O.MUKKOM,
THAZHEKODU AMSOM AND DESOM OF KOZHIKODE
TALUK.
12 REENA,
AGED 33 YEARS,
D/O.RAMAN, KAITHONA HOUSE, P.O.MUKKOM,
THAZHEKODU AMSOM AND DESOM OF KOZHIKODE
TALUK.
HEADNOTE-RFA 63/2015
-: 7 :-
13 GOVINDAN,
AGED 81 YEARS,,
S/O.CHANDUKUTTY, KARINGALLIL HOUSE,
P.O.MANASSERY, MUKKOM, THAZHEKODU AMSOM AND
DESOM OF KOZHIKODE TALUK.
14 RAJU,
AGED 41 YEARS,
S/O.GOVINDAN, KARINGALLIL HOUSE,
P.O.MANASSERY,MUKKOM, THAZHEKODU AMSOM AND
DESOM OF KOZHIKODE.
15 REEJA,
AGED 34 YEARS,
D/O.GOVINDAN, KARINGALLIL HOUSE,
P.O.MANASSERY, MUKKOM,THAZHEKODE AMSOM AND
DESOM OF KOZHIKODE.
16 SHYJA,
AGED 32 YEARS,
D/O. GOVINDAN, KARINGALLIL HOUSE, P.O.
MANASSERY, MUKKOM,THAZHEKODE AMSOM AND DESOM
OF KOZHIKODE TALUK.
17 BAPPUTTY,
AGED 61 YEARS,
S/O.CHERIYA MANIKYAM, THEKKUM THOTTATHIL
HOUSE,P.O. ALLI, MUKKOM,KUMARANELLOOR AMSOM
AND DESOM OF KOZHIKODE TALUK.
18 KELUKUTTY, [DIED; ADDL. R24 TO R28 IMPLEADED]*
4
AGED 73 YEARS,
S/O CHERYA MANIKYAM,PARATHA PARAMBATH HOUSE,
P.O.ALLI, (VIA) MUKKOM,KUMARANELLOOR AMSOM
AND DESOM OF KOZHIKODE TALUK.
19 VASU,
AGED 70 YEARS,
S/O CHERIYA MANIKYAM,PERUMTHOTTATHIL HOUSE,
P.O. NAYARKUZHI,MANASSERY, POOLAKKODU
AMSOM,NAYARKUZHI DESOM, KOZHIKODE TALUK.
HEADNOTE-RFA 63/2015
-: 8 :-
20 JANAKI KUNHAN,
AGED 52 YEARS,
S/O KUNHAN,NADUKKANDIYIL
HOUSE,NAYARKUZHI(VIA) REC,POOLAKKODU AMSOM
AND DESOM OF KOZHIKODE TALUK.
21 LEELA GOPALAN,
AGED 50 YEARS,
W/O GOPALAN,NELLOLI
PARAMBIL,P.O.CHATHAMANGALAM,
(VIA)REC,POOLAKKODU AMSOM AND DESOM OF
KOZHIKODE TALUK.
22 DEVAKI,
AGED 57 YEARS,
W/O POYYERI VASU,POYYERI
HOUSE,P.O.MANASSERY,(VIA)MUKKOM,CALICUT
DISRTICT.
23 MANIKYAM,
AGED 74 YEARS,
W/O.KUNHIPERACHAN, VARIYAM KANDIYIL HOUSE,
THIRUVAMBADI AMSOM AND DESEOM, THIRUVAMBADI
P.O., KOZHIKODE.
*4 ADDL. RESPONDENTS 24 TO 28 (LRs of 18TH RESPONDENT)
ADDL. R24 LAKSHMI,
AGED 67 YEARS,
W/O LATE KELUKUTTY, PARATHA PARAMBATH
HOUSE,P.O. ALLI, NEAR VALLATHAIPARA,
KUMARANELLOOR AMSOM,ALLI DESOM,(VIA) MUKKOM,
CALICUT DISTRICT-673602.
ADDL. R25 REEJA,
AGED 45 YEARS,
D/O LATE KELUKUTTY,MUTHEDATH HOUSE, P.O
KUMARANELLOOR, NEAR KALPUR, (VIA) MUKKAM,
CALICUT DISTRICT-673602.
HEADNOTE-RFA 63/2015
-: 9 :-
ADDL. R26 BAIJU,
AGED 42 YEARS,
S/O LATE KELUKUTTY,PARATHA PARAMBATH HOUSE,
P.O.ALLI, NEAR VALLATHAIPARA KUMARANELLOOR
AMSOM, ALLI DESOM (VIA) MUKKOM, CALICUT
DISRTICT-673602.
ADDL. R27 REENA,
AGED 38 YEARS,
D/O LATE KELUKUTTY, NAMBIPARAMBATH HOUSE,
NEAR KALARIKANDI, P.O. PALLIASSERY, CALICUT,
PIN-673571.
ADDL. R28 SHYJU, AGED 35, S/O LATE KELUKUTTY, PARATHA
PARAMBATH HOUSE, PO ALLI, NEAR
VALLATHAIPARA, KUMARANELLOOR AMSOM, ALLI
DESOM, (VIA) MUKKAM, CALICUT DT.-673602.
*4 [LEGAL HEIRS OF DECEASED 18TH RESPONDENT ARE
IMPLEADED AS ADDITIONAL RESPONDENTS 24 TO 28 VIDE ORDER
DATED 03.08.2016 IN IA 1493/2015]
BY ADVS.
SRI.T.KRISHNANUNNI (SR.)
SRI.M.DEVESH
M .DEVESH
M.DEVESH
SRI.K.M.FIROZ
K.M.FIROZ
K.MOHANAKANNAN
SRI.S.KANNAN
SMT.M.SHAJNA
SMT.MEENA.A.
SRI.K.C.KIRAN
SRI.SAJU.S.A
M.A.ZOHRA
THIS REGULAR FIRST APPEAL HAVING COME UP FOR
HEARING ON 25.07.2024, THE COURT ON THE SAME DAY
DELIVERED THE FOLLOWING:
SATHISH NINAN &
JOHNSON JOHN, JJ.
= = = = = = = = = = = = = = = = = =
R.F.A. No.63 of 2015
= = = = = = = = = = = = = = = = = =
Dated this the 25th day of July, 2024
J U D G M E N T
Sathish Ninan, J.
Challenging the dismissal of a suit for partition, the plaintiffs are in appeal.
2. One Rarukutti and his wife Itti had four children : Notti (daughter), Valiya Manikyam (daughter), Cheriya Manikyam (daughter) and Koru (son). The plaintiffs are the successors of Notti. Defendants 1 to 5 who are the contesting defendants are wife and children of Koru. Defendants 6 to 16 are the successors of Valiya Manikyam and defendants 17 to 23 are the children of Cheriya Manikyam. The plaint 'A' schedule is the genealogy and the plaint 'B' schedule are the properties, six in number, which are sought to be partitioned.
RFA No.63/2015-: 2 :-
3. According to the plaintiffs, plaint schedule items 1 to 3 belonged in Jenmom to one Karrattu Illam. Rarukutti the predecessor-in-interest of the parties held the properties under Kanam right under the Jenmi. After the death of Rarukutti, the Jenmi had filed a suit as OS 938/1927 against Itti (wife) and children for arrears of rent. The suit was settled and Ext.A1 Kanam deed dated 17.11.1927 was executed in favour of Itti and the four children. The properties thus belonged jointly to Itti and the four children.
4. Plaint schedule item Nos.4 to 6 were acquired by Rarukutti under Ext.A4 Jenmom assignment deed. Itti died in the year 1971. Notti died in the year 1955. Valia Manikyam and Cheriya Manikyam died in the year 1992. Koru died in the year 1970. The property devolved on each of the branches of four children in the share of ¼ each. It is accordingly that the suit for partition was filed. The plaintiffs jointly claim the ¼ share of Notti RFA No.63/2015 -: 3 :- out of the plaint 'B' schedule properties.
5. On behalf of the contesting defendants (defendants 1 to 5), it was contended that the parties are governed by Mithakshara Law as modified by custom. Over the plaint scheduled properties the mother Itti and the sisters had only a right of maintenance, the right of the sisters being only up to their marriage. The Kanam right which belonged to Rarukutti and his predecessor became vested with the only son Koru. Ext.A1 Kanam deed was only a renewal of the existing arrangement. This was followed by a further renewal of Kanam in 1945 under Ext.B1. Ext.B1 is in the name of Koru alone.
6. In the year 1964 Itti-the mother released her rights under Ext.B4 to Koru. Koru died in the year 1970. The rights of Koru devolved on defendants 1 to 5 who are his wife and children along with his mother Itti. The mother executed Ext.X2 Will bequeathing the right RFA No.63/2015 -: 4 :- devolved on her to Valia Manikyam and Cheriya Manikyam. Itti died in the year 1971. Thereafter legal heirs of Koru, and Valia Manikyam and Cheriya Manikyam jointly, executed Ext.B3 Partition Deed of the year 1971. In the year 2002, the widow and children of Koru executed a Partition Deed effecting division between them. The plaintiffs do not have any manner of right over the plaint schedule properties, it is contended.
7. The trial court held that, on the death of Rarukutti the property belonged to his son Koru and that the mother Itti and the daughters had only right of maintenance. The rights of the daughters ceased on they being given in marriage. Exts.X2, B3 and B4 documents were upheld. Thus it was held that the plaintiff does not have any manner of right over the plaint schedule properties.
8. I have heard Sri.T.Sethumadhavan the learned Senior Counsel for the appellants-plaintiffs and RFA No.63/2015 -: 5 :- Sri.T.Krishnanunni the learned Senior Counsel on behalf of the contesting respondents-defendants 1 to 5 and Smt.M.A.Zohra, the learned counsel for the 14 th and 17th respondents.
9. The points that arises for determination are :-
(i) Is the finding of the trial court that, Ext.A1 Kanam deed was only a renewal deed and that thereunder the property vested with Rarukutti with only a right of maintenance for the mother Itti and the daughters, sustainable?
(ii) Could Itti-the mother, validly release her rights obtained under Ext.A1 in favour of Koru under Ext.B4?
(iii) Is the finding of the trial court with regard to the genuineness of Ext.X2 Will sustainable on the materials?
(iv) Is the finding of the trail court on the plea of adverse possession liable to be interfered with?
(v) Does the decree and judgment of the trial court warrant any interference?
10. It is not in dispute that the parties are governed by Mithakshara Law as modified by custom. That as per the custom, the widow and daughters had only a right of maintenance, and for the daughters it was only upto their marriage, are not in dispute. According to RFA No.63/2015 -: 6 :- the learned senior counsel for the appellant, under Ext.A1 there has been a fresh kanam arrangement in favour of Itty and children on surrender of the earlier arrangement. It enures to all of them, it is contended. The question is, whether Ext.A1 kanam deed is only a renewal of the existing kanam arrangement or did it create a fresh arrangement vesting absolute rights on Itty and her children.
11. The recitals in Ext.A1 kanam deed indicate that the property was in the possession and enjoyment of Rarukutti under Kanam Deed No.2592/1909. On the demise of Rarukuttyi, the Jenmi filed O.S. 938/1927 against his wife and children viz. Itti, Notti, Valia Manikyam, Cheriya Manikyam and Koru, for arrears of rent. The suit was settled and Ext.A1 kanam deed was executed in the year 1927. Ext.A1 shows that at the time of its execution all the children were minors. The document further acknowledges the earlier kanam arrangement in RFA No.63/2015 -: 7 :- favour of Rarukutti. It is also seen that the kanam due under the earlier arrangement taken consideration of when Ext.A1 was executed. In Ext. A1 it is stated that the document is executed as "s]m-fn-s¨-gp¯v" In Chandanapurath Raghavan & Ors. v. Raveendran & Ors. (2020 (1) KLT 539) this Court held that, the expression, "s]m-fn-s¨-gp¯v"
represents renewal and not a fresh arrangement.
12. As noticed above, under the law governing the parties, the wife and unmarried daughters had only a right of maintenance over the property. The property vests with Koru the only son, after he became a major. Ext.B1 Kanam deed was executed in the year 1945 further renewing the arrangement. The mother or the daughters never had any quarrel with regard to the same. By that time the daughters were given away in marriage. It is in the said background that Exts.A1 and B1 are to be understood. The circumstances above indicate that Exts.A and B were only renewal deeds and that the right over RFA No.63/2015 -: 8 :- the property vested with Koru alone. In accordance with the law applicable to the parties, the mother and the unmarried daughters had only a right of maintenance.
13. Referring to the relevant provisions of the Malabar Tenancy Act, 1929, the learned Senior Counsel for the appellants would contend that, a right of fixity of tenure was conferred on the kanamdars by virtue of the Amendment Act of 1951. The mother and the children had thus acquired the right of fixity of tenure, it is claimed.
14. It has already been held that under Exts.A1 and B1 the property vested with Koru, and that the mother Itti and the daughters had only a right of maintenance. Hence the argument based on the Tenancy Act has no force.
15. The trial court while concluding that the property belonged to Koru has taken note of the above circumstances. The said finding warrants no RFA No.63/2015 -: 9 :- interference. Point No.1 is answered accordingly.
16. The learned counsel Smt.Zohra would urge that, even assuming that the mother Itti had only a limited right of maintenance, the same was inalienable. She could not have released the rights to his son Koru, it is contended.
17. It is to be noticed that, Itti had only a limited interest over the property. On the advent of the Hindu Succession Act by virtue of Section 14 thereof, the limited estate bloomed into an absolute estate. Itti was entitled to deal with her interest over the property absolutely. In the year 1964, under Ext.B4 she released her rights. She was competent to do so. Therefore, the said contention fails. Point (2) is answered accordingly.
18. Now coming to, proof of Ext.X2 Will, it is executed by Itti in favour of her two daughters, Valia Manikyam and Cheriya Manikyam with regard to the share RFA No.63/2015 -: 10 :- devolved on her consequent on the death of Koru as one of the legal heirs. An attesting witness was examined as DW3. He is the 17th defendant in the suit. He turned hostile. He is a person who claims share over the property in partition and hence interested to deny the Will. Ext.X2 Will is of the year 1970. It is a registered Will. The Thumb Impression Register was summoned and marked as Ext.B1. Based on the said Will the legal heirs of Koru and the legatees under the Will viz. Valia Manikyam and Cheriya Manikyam had executed Ext.B3 Partition Deed. The Will was admitted by PW1 in the earlier suit O.S.424 of 1985. Ext.B51 is the judgment in that suit. On the evidence on record, the trial court found the genuineness of the Will. No material is brought to the notice of this Court to upset the said finding. The evidence on record coupled with the subsequent conduct of the parties lends credence to the genuineness of the Will. Point (3) is answered as RFA No.63/2015 -: 11 :- above.
19. In the year 1985 the second plaintiff had filed a suit against the present contesting defendants viz. defendants 1 to 5 for a prohibitory injunction against trespass into another property which belonged to him. In the boundary description of the plaint schedule therein, the northern property was the plaint schedule item No.4 herein and described as belonging to the defendants; the western boundary described thereunder was plaint schedule item No.3 herein as belonging to the defendants 1 to 5 herein. Ext.B48 is the plaint in OS 424/1985. In the said suit defendants 1 to 5 herein filed a written statement (Ext.B49) asserting their right, title and interest over the plaint schedule properties herein relying on the title deeds relied on by them herein. This further fortifies the claim of defendants 1 to 5.
20. The contesting defendants have also raised an alternate plea of ouster. Plaintiffs are the successors RFA No.63/2015 -: 12 :- in interest of Notti, the daughter of Rarukutti and Itti. Notti died in the year 1955. However, the present suit filed only in the year 2008 claiming partition and separate possession of the share of Notti. Though the plaintiffs alleged to have been in joint possession of the property, there is nothing to indicate the same. Though mere non-participation in income is not a ground to find ouster in the case of co-owners, the circumstances in the case as noticed above fortifies the claim of ouster. As noticed before, in Ext.B49 written statement they had asserted their title and possession over the properties. The present suit is filed even beyond twenty years thereafter. Hence even assuming that defendants 1 to 5 failed to establish their proprietary title, their plea of having acquired the title by adverse possession and limitation is liable to be upheld. The trial court has correctly answered the issue of Adverse Possession accordingly. Point No.(4) is RFA No.63/2015 -: 13 :- answered as above.
21. Thus, viewed in any manner the claim of the plaintiffs for partition cannot be recognised. The trial court has taken into consideration all the relevant materials while holding that the plaintiffs have failed to establish their right over the property. The decree and judgment of the trial court warrants no interference.
The appeal fails and is dismissed.
Sd/-
SATHISH NINAN JUDGE Sd/-
JOHNSON JOHN JUDGE kns/-
//True Copy// P.S. To Judge