The Kerala High Court dismissed the appeal by the first defendant/challenger against a preliminary decree for partition. The court held that the claim of exclusive ownership over two property items was unsupported by sufficient evidence, and the partition decree was correctly passed.
The appeal was dismissed, and no order was passed as to costs.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT :
THE HONOURABLE MR. JUSTICE HARUN-UL-RASHID
MONDAY, THE 11TH JANUARY 2010 / 21TH POUSHA 1931 AS.No. 213 of 1998(C)
--------------------OS.390/1994 of ADDL.SUB COURT, ALAPPUZHA
ALAPPUZHA.
THIS APPEAL SUIT HAVING BEEN FINALLY HEARD ON 11/01/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
HARUN-UL-RASHID,J.
A.S.NO.213 OF 1998
DATED THIS THE 11TH DAY OF JANUARY, 2010
JUDGMENT
The lst defendant in O.S.No.390/91 on the file of the
Additional Sub Court, Alappuzha is the appellant. The plaintiff filed the suit for partition of 27 items of properties described in the plaint schedule. Plaintiff and defendants 1 to 6 are the children of late Govindan. The court below passed a preliminary decree for partition as follows:
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from items 6 and 7. Defendants 2 to 6 are entitled to get 2/21 shares each.
over items 6 and 7 and contended that they are not partible. Admittedly, items 6 and 7 stand in the name of the appellant's father, appellant and his sister by name Manikutty, who died during childhood. According to the appellant, the intention of his father was that items 6 and 7 should be owned exclusively by appellant and the said Manikutty and after her death, by the
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appellant.
by the appellant. The evidence in support of the said claim is the interested testimony of DW1. There is no sufficient evidence adduced by the lst defendant in support of his contentions. Parties are Hindus. The trial court held that since the special right set up by the defendants stands not proved, the lst defendant would be entitled to get 9/21 shares, the plaintiff 2/21 shares and other defendants 2/21 shares each in items 6 and 7. Since the contention cannot be accepted for want of proof, the appeal has to fail.
In the result, the appeal fails and accordingly dismissed. No order as to costs.
HARUN-UL-RASHID, JUDGE. kcv.
2 issues framed by the court
Whether the appellant has established exclusive rights over specific property items precluding partition.
Whether the assertion of a special right of ownership over items 6 and 7 is supported by sufficient evidence.
G. GOPINATHAN
G. SOMASHRMAN
SUSEELA
L. AMMINI
G. KUTTAPPAN
L. PONNAMMA
HARUN-UL-RASHID
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
