Kerala High Court
Menakkoth Ayisha vs Mathath Mariyam on 10 April, 2012
Author: Thomas P.Joseph
Bench: Thomas P.Joseph
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE THOMAS P.JOSEPH
TUESDAY, THE 10TH DAY OF APRIL 2012/21ST CHAITHRA 1934
RSA.No. 1411 of 2010 ( )
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AS.32/2008 of SUB COURT, VADAKARA
OS.159/2007 of MUNSIFF COURT, NADHAPURAM
APPELLANT(S)/APPELLANTS/PLAINTIFFS:
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1. MENAKKOTH AYISHA, W/O.KUNHAVULLA,
AGED 84 YEARS, KUMMAMKODE AMSOM, NADAPURAM DESOM
VATAKARA TALUK, KOZHIKODE DISTRICT, KERALA STATE.
2. MENAKKOTH ABDURAHIMAN HAJI,
S/O.KUNHAVULLA,AGED 50 YEARS,KUMMAMKODE AMSOM
NADAPURAM DESOM,VATAKARA TALUK, KOZHIKODE DISTRICT
KERALA STATE.
BY ADVS.SRI.V.T.MADHAVANUNNI
SRI.V.A.SATHEESH
SRI.J.ABHILASH
RESPONDENT(S)/RESPONDENTS/DEFENDANTS:
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1. MATHATH MARIYAM, D/O.MAMMAD,
AGED 57 YEARS, IYYAMKODE AMSOM AND DESOM
VATAKARA TALUK, KOZHIKODE DISTRICT, KERALA STATE-673101.
2. VEERALIYAMBATH ANDRU HAJI, S/O.MAMMAD,
AGED 52 YEARS, KUMMAMKODE AMSOM, NADAPURAM DESOM
VATAKARA TALUK, KOZHIKODE DISTRICT, KERALA STATE-673101.
3. KALLERINTAVIDA THAMASIKKUM MENAKKOTH
FATHIMA HAMEED, D/O.KUNHAVULLA, AGED 40 YEARS
KUMMAMKODE AMSOM, NADAPURAM DESOM, VATAKARA TALUK
KOZHIKODE DISTRICT,KERALA STATE-673101.
ADVOCATE MR. P.K. BEHANAN- CAVEATOR (R1)
ADVOCATE MR.D.KRISHNAPRASAD - R1 & R2
THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON
10-04-2012, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
THOMAS P.JOSEPH, J.
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R.S.A. No. 1411 of 2010
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Dated this the 10th day of April, 2012
J U D G M E N T
Plaintiffs' attempt to get partition of the suit property failed in the courts below and hence this Second Appeal.
2. According to the appellants-plaintiffs who claim to be legal heirs of Kunhavulla, the suit property originally belonged to Kunhippathu and her two sons, Mammed and the said Kunhavulla as per assignment deed No.3800 of 1925, a copy of which is marked as Ext.A1. It is alleged that Kunhavulla got employment at Singapore and was at his place of employment, occasionally visiting his native place where his wife (first appellant) was staying. In the meantime Kunhippathu died and her right also devolved on her two sons, Mammed and Kunhavulla. Appellants 2 and 3 and the 3rd respondent are the children born to the first appellant in the said Kunhavulla. Mammed died in the year, 1998. Kunhavulla died in the year, 2000. Right of Kunhavulla (allegedly) devolved on the appellants and third respondent. Hence the demand for partition.
3. Respondents 1 and 2 who are the legal heirs of R.S.A. No.1411 of 2010 -: 2 :- Mammed claimed that Kunhavulla had released his right in the suit property to Mammed as per Ext.B1, assignment deed No.2656 of 1945. Later the lease was renewed in favour of Mammed and one Mammed Musaliyar as per Ext.B2, kuzhikamnom deed No.1400 of 1953. Mammed Musaliar assigned his right in favour of Mammed as per Ext.B3, assignment deed No.133 of 1966. Thus Mammed got absolute right over the property. He purchased landlord's right from the land Tribunal in the year, 1974 as evidenced by Ext.B4, purchase certificate. On the death of Mammed the suit property devolved on respondents 1 and 2.
4. Trial court accepted the contention of respondents 1 and 2, found that appellants or the third respondent have no partible right over the suit property and dismissed the suit (O.S. No.159 of 2007 of the Munsiff's Court, Nadapuram). That was confirmed by the learned Sub Judge, Vatakara in A.S. No.32 of 2008. Hence this second appeal.
5. Learned counsel for appellants contends that evidence on the side of the appellants was shut out by the trial court. It is contended that appellants had filed I.A. No.144 of 2008 to send Exts.A2 and B1 to an Expert for comparison of signature and R.S.A. No.1411 of 2010 -: 3 :- the left thumb impression of Kunhavulla. But that application was dismissed for no valid reason. It is contended that if the thumb impression/signature of Kunhavulla in Ext.A2 was compared with those in Ext.B1, it was possible to show that Ext.B1 is not executed by the said Kunhavulla. It is contended that Ext.A2 would show that Kunhavulla was permanently staying at Singapore from at least 10.03.1945 while Ext.B1 is stated to be executed on 27.07.1945. According to the learned counsel, there was no possibility of Kunhavulla executing Ext.B1.
6. Exhibits B1 to B3 are the original of document Nos.2656 of 1945, 1400 of 1953 and 133 of 1966. According to the respondents 1 and 2 it is by Ext.B1 dated 27.07.1945 that Kunhavulla released his right to Mammed (predecessor in interest of respondents 1 and 2). That document is said to be the result of forgery.
7. Appellants relied on Ext.A2, the Passport (said to be) issued to Kunhavulla on 10.03.1950 at Singapore as he was a citizen of that country. According to the appellants, in order to make Kunhavulla eligible to get a Passport of that country it was necessary that he should have permanently stayed in that country for a minimum of five years. The trial and first appellate R.S.A. No.1411 of 2010 -: 4 :- courts held that though it was so contended, no statutory provision or order requiring such a condition was brought to the notice of the courts below.
8. Courts below noticed that at any rate during the time Ext.A2 was (allegedly) issued in favour of Kunhavulla, he must have been having an Indian Passport but that Passport was not produced to show whether on 27.07.1945 (when Ext.B1 is said to have been executed) Kunhavulla was at Singapore. Trial court also noticed that there is no entry in Ext.A2 to show that Kunhavulla was permanently residing at Singapore for five years preceding the issue of Ext.A2 on 10.03.1950 (i.e., since 10.03.1945). A further finding trial court has made is that Kunhavulla might have been making use of his Indian Passport to come to India. Even according to the appellants, Kunhavulla was occasionally visiting his native place though according to them, during the period Ext.B1 is said to be executed, he was staying at Singapore. Regarding that, what is available is only the interested version of appellants, Ext.A2 being not sufficient to conclude so. A further fact which the courts below noticed is that following Exts.B1, B2 and B3, documents were also executed in the year, 1953 and 1966 and following that, Mammed, R.S.A. No.1411 of 2010 -: 5 :- predecessor in interest of respondents 1 and 2 got Ext.B4, purchase certificate from the land Tribunal in the year, 1974.
9. It is relevant to note that even as per the admitted version of appellants, Kunhavulla returned to his native place in the year, 1994 and died in the year 2000. It is pertinent to note that during 1994-2000 Kunhavulla did not make any demand for partition if he had a case that he has fractional interest in the suit property. True, appellants have a contention that they were getting share of profits from the suit property. But that version is difficult to be accepted in the light of Exts.B2 to B4 whereby the predecessor in interest of respondents 1 and 2 asserted absolute right over the property. It is unlikely that in the light of Exts.B2 to B4 appellants or even Kunhavulla were given share of profits from the suit property.
10. So far as I.A. No.144 of 2008 to send Ext.B1 and A2 for Expert opinion is concerned, trial court has observed that Ext.A2 does not contain the left thumb impression (LTI) of the late Kunhavulla and that what is available in Ext.A2 is only the right thumb impression of Kunhavulla while Ext.B1 contains (allegedly) the left thump impression of Kunhavulla and hence there could be no comparison of the thumb impressions with reference to Ext.B1 R.S.A. No.1411 of 2010 -: 6 :- and A2. Trial court also found that Ext.A2 does not contain the signature of Kunhavulla so that the said document could be made use of for comparison of the signature in Ext.B1.
11. Learned counsel for appellants produced a registered document of the year, 1997 which (allegedly) contains the signature of Kunhavulla. But I am not inclined to think that the signature, allegedly of Kunhavulla in the document of the year, 1997 could be made use of for comparison with the disputed signature of Kunhavulla in the year 1945. In 1997, Kunhavulla was aged about 81 years while at the time of Ext.B1, he was aged 52 years. In the circumstances it is quite unlikely that signatures would be similar.
12. Courts below, having regard to the facts and circumstances of the case concluded that the contention that Ext.B1 is the result of forgery is not proved and that circumstance justified the contention of respondents 1 and 2 that Kunhavulla executed Ext.B1 in favour of their predecessor. If that be so, the suit property is not available for appellants and the third respondent for partition.
R.S.A. No.1411 of 2010 -: 7 :-
13. On going through the judgments under challenge and hearing learned counsel, I do not find any substantial question of law involved requiring admission of this appeal.
Regular Second Appeal is dismissed.
All pending Interlocutory Applications will stand dismissed.
THOMAS P. JOSEPH, JUDGE.
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