Kerala High Court
Anju vs Gopinathan Nair on 18 January, 2010
Author: Thomas P.Joseph
Bench: Thomas P.Joseph
IN THE HIGH COURT OF KERALA AT ERNAKULAM
RSA.No. 51 of 2010()
1. ANJU, D/O.SIVASANKARAN NAIR,
... Petitioner
Vs
1. GOPINATHAN NAIR, S/O.KRISHNAN NAIR,
... Respondent
For Petitioner :SRI.K.JAYAKUMAR
For Respondent : No Appearance
The Hon'ble MR. Justice THOMAS P.JOSEPH
Dated :18/01/2010
O R D E R
THOMAS P JOSEPH, J.
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R.S.A.No.51 of 2010
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Dated this 18th day of January, 2010
JUDGMENT
The second appeal arises from judgment and decree of learned Additional District Judge, North Paravur in A.S.No.136 of 2009 granting preliminary decree for partition in favour of the respondent in reversal of dismissal of the suit. Parties are referred to as plaintiffs and defendant as in the trial court for convenience. Plaintiff No.1 is the son of plaintiff No.2 (the latter died pending appeal in the first appellate court). Defendant is the grand daughter of plaintiff No.2. The parties belonged to the Hindu Nair community. According to the plaintiffs, Bhanumathi, mother of defendant (and daughter of plaintiff No.2) got the suit property as C schedule as per Ext.B1 partition deed No.2344 of 1991 as per which a life interest was provided in favour of plaintiff No.2. It is the further case of plaintiffs that plaintiff No.1 constructed a shop building in the said property with the consent of Bhanumathi and plaintiff No.2. Bhanumathi died intestate. Her right in the suit property devolved on defendant and plaintiff No.2 (daughter and mother) as per section 17 of the Hindu Succession Act. While so on 06-06-2000 plaintiff No.2 sold her right in the suit property in favour of plaintiff No.1 as per Ext.A1, assignment deed No.3137 of 2000. Thus plaintiff No.1 and defendant became co-owners of the suit property R.S.A.No.51 of 2010 2 and hence the suit for partition. Defendant contended that Bhanumathi got absolute right over the property as per Ext.B1 and that plaintiff No.2 had only a right to take income from the property. Plaintiff No.1 constructed the building with permission of the defendant on condition that it will be removed as and when required by the latter. Plaintiff No.2 had not acquired any other right over the suit property. On the death of Bhanumathi, entire property devolved on the defendant, her only legal heir. It is contended that Ext.A1 sale deed is sham and fraudulently created. Defendant also made a counter claim for mandatory injunction to direct plaintiff No.1 to remove the building in the suit property. Learned Munsiff came to the conclusion that Ext.A1, assignment deed allegedly executed by plaintiff No.2 in favour of plaintiff No.1 is fraudulent, sham and hence void. It was also found that plaintiffs have no right over the suit property except the life interest of plaintiff No.2. Accordingly the suit was dismissed. First appellate court found that Ext.A1 is valid and has taken effect. It was also of the view that section 17 of the Hindu Succession Act applied and on the death of Bhanumathi, her share devolved on defendant and plaintiff No.2. Plaintiff No.2 has assigned that right in favour of plaintiff No.1 (as per Ext.A1) and hence property is partible among plaintiff No.1 and the defendant. In that view of the matter, plaintiff No.1 was given a preliminary decree for partition. That is under challenge in the second appeal on the substantial questions of law urged, whether first R.S.A.No.51 of 2010 3 appellate court erred in decreeing partition on the basis of Ext.A1 which the trial court rightly found to be void, whether the first appellate court has not gone wrong in granting partition without impleadment of legal heirs of plaintiff No.2 (who died pending the first appeal) and whether the first appellate court erred in not properly construing Exts.B1 and B2. It is contended by learned Senior Advocate appearing for the appellant/defendant that on the above points the decision of the first appellate court cannot stand.
2. So far as execution of Ext.A1 is concerned, learned Munsiff observed that there is some difference in the signature of the executant (plaintiff No.2) but, fact remained that document is allegedly executed by plaintiff No.2 who was a party to the suit. Plaintiff No.2 asserted and acknowledged execution of Ext.A1 in favour of plaintiff No.1. When the execution of Ext.A1 is admitted and asserted by plaintiff No.2, the executant there was little scope for the defendant to dispute its execution even during the life time of the executant. It is also to be seen that as pointed out by first appellate court, there was no serious contention regarding the due execution of Ext.A1 except a bald plea that it is fraudulently created but, without stating particulars of the alleged fraud as is required to be furnished under Order 6 Rule 4 of the Code of Civil Procedure. First appellate court found in favour of due execution of Ext.A1 which in the circumstance stated and in the light of evidence on record I do not find reason to interfere as it does R.S.A.No.51 of 2010 4 not involve any substantial question of law.
3. It is not disputed that as per section 17 of the Hindu Succession Act on the death of Bhanumathi (intestate) plaintiff No.2 also inherited a share in the suit property along with the defendant. If that be so, plaintiff No.2 was competent to assign her share in favour of plaintiff No.1. First appellate court has rightly found that plaintiff No.1 is a co-owner of the suit property along with the defendant and hence it is partible among them. In view of that finding, the decree on the counter claim was set aside.
4. Another contention advanced in the second appeal is that since plaintiff No.2 died pending first appeal her legal representatives ought to have been impleaded. Since it has been found by the first appellate court (and there is no reason to interfere with that finding) that right of plaintiff No.2 has been assigned in favour of plaintiff No.1, question of impleadment of other legal heirs of plaintiff No.2 was not required in this case.
5. On hearing learned Senior Advocate and going through the judgment under challenge I do not find any substantial question of law involved requiring its admission.
Accordingly the second appeal is dismissed.
THOMAS P JOSEPH, JUDGE Sbna/