Dismissed

Rugmini v. N.K.Sreenivasan Nair

Kerala HC16 Aug 2012RSA/144/2012

Case brief

AI extract

What is this about?

In a second appeal regarding a partition suit, the High Court of Kerala dismissed the appeal. The deceased father had executed multiple gift deeds; the appellant wife of the son from the first marriage claimed one acre remained for partition. The court held that the extent of land acquired by the deceased matched the partition deals, leaving no personal property to devolve.

What did the court decide?

The second appeal is dismissed and all pending interlocutory applications are dismissed.

Rugmini Vs N.K.Sreenivasan Nair — Partition | Kerala HC (2012)

¶1

IN THE HIGH COURT OF KERALA AT ERNAKULAM

¶2

PRESENT:

¶3

THE HONOURABLE MR.JUSTICE THOMAS P.JOSEPH

¶4

THURSDAY, THE 16TH DAY OF AUGUST 2012/25TH SRAVANA 1934

¶5

RSA.NO. 144 OF 2012 ()

¶6

AS.234/2008 OF SECOND ADDITIONAL DISTRICT COURT, KOZHIKODE OS.13/2007 OF SUB COURT, QUILANDY

¶7

APPELLANT(S)/APPELLANTS/PLAINTIFF:

¶8

1. RUGMINI AMMA, AGED 59 YEARS,

¶9

W/O.(LATE)BHASKARAN NAMBIAR, SWASTHAM

¶10

RESIDING AT THALAYANKULATH(H) KUNNATHARA AMSOMPUTHANCHERI DESOM, KOYILANDY TALUK

¶11

KOZHIKODE DISTRICT.

¶12

2. LALITHA, AGED 37 YEARS,

¶13

D/O.(LATE)BHASKARAN NAMBIAR,SWASTHAM

¶14

RESIDING AT THALAYANKULATH(H) KUNATHARA AMSOM PUTHANCHERI DESOM, KOYILANDY TALUK KOZHIKODE DISTRICT.

¶15

BY ADV. SRI.P.V.JYOTHI PRASAD

¶16

RESPONDENT(S)/RESPONDENTS/DEFENDANTS:

¶17

1. N.K.SREENIVASAN NAIR AGED 65 YEARS,S/O.(LATE)UNNI NAIR,SWASTHAM 'PAVIZHAM',KUNNATHARA AMSOM,PUTHANCHERI DESOM KOYILANDY TALUK,KOZHIKODE DISTRICT-673327.

¶18

2. N.K.BALAKRISHNAN NAIR, AGED 51 YEARS,S/O.(LATE)UNNI NAIR CENTRAL GOVT.EMPLOYEE,PAYANKOOL HOUSE KUNNATHARA AMSOM,PUTHANCHERI DESOM, KOYILANDY TALUK KOZHIKODE DISTRICT, PIN-673327.

¶19

R.S.A. NO.144 OF 2012

¶20

3. AMBUJAKSHI AMMA, AGED 59 YEARS,D/O.(LATE)UNNI NAIR,SWASTHAM PAYANKOOLHOUSE,KUNNATHARA AMSOM,PUTHANCHERI DESOM KOYILANDY TALUK,KOZHIKODE DISTRICT-673327.

¶21

4. PUSHPA KUMARI, AGED 53 YEARS,D/O.(LATE)UNNI NAIR,SWASTHAM PAYANKOOLHOUSE,KUNNATHARA DESOM, PUTHANCHERI DESOM KOYILANDYTALUK,KOZHIKODE DISTRICT-673327.

¶22

5. SHOBANA KUMARI, AGED 50 YEARS,D/O.(LATE)UNNI NAIR,CHAITHRAM ATHOLI AMSOM,MODAKKALLUR DESOM, KOZHIKODE DISTRICT PIN-673321.

¶23

6. BEENA KUMARI, AGED 43 YEARS,D/O.(LATE)UNNI NAIR,SWASTHAM KRISHNA VIHAR,NANMINDA AMSOM, CHEEKILODE AMSOM KOZHIKODETALUK-673315.

¶24

7. ANIL KUMAR, AGED 45 YEARS,S/O.UNNI NAIR,SWASTHAM PAYANKOOL HOUSE,KUNNATHARA AMSOM, PUTHANCHERI DESOM KOYILANDY TALUK,KOZHIKODE DISTRICT-673327.

¶25

BY ADV. SRI.ABRAHAM MATHEW R1 TO R7

¶26

THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 16-08-2012, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

¶27

THOMAS P. JOSEPH, J.

¶28

R.S.A. No.144 of 2012

¶29

Dated this the 16^th day of August, 2012. JUDGMENT

¶30

Appellants/plaintiffs who successively lost in the trial and first appellate courts in getting a preliminary decree for partition have preferred this second appeal. The property described in the plaint schedule is one acre in survey No.9/4 which according to the appellants belong to the late Unni Nair. Unni Nair had a son by name Bhaskaran Nambiar born in his first wife who predeceased Unni Nair. Appellants are the wife and daughter of the said Bhaskaran Nambiar. Parvathy Amma is the second wife of Unni Nair and the respondents/defendants are legal heirs of the said Parvathy Amma.

¶31

Appellants claimed that Unni Nair had executed gift deed No.2114 of 1983 concerning 1.63 acres in favour of the 2^nd respondent and gift deed No.2113 of 1983 in favour of respondents 1, 4 and 5. He executed gift deed No.2112 of 1983 in favour of Parvathy Amma, his second wife and respondents 3, 4, 6 and 7 (the children born to him in the said Parvathy Amma) and Bhaskaran Nambiar (son born to him in the first wife, Naniyamma). According to the appellants as item No.6 of Ext.A1, property allotted to Parvathy Amma is 1.89 acres. There is one acre (according to the appellants, the suit property) remaining with Unni Nair which he retained and in respect of that one acre, he

¶32

¶33

RSA No.144/2012

¶34

died intestate. Hence the claim for partition of one acre referred to in the plaint schedule.

¶35

Respondents denied that there is any such property available as described in the plaint schedule. The description of the suit property is fictious. While executing Ext.A1, Unni Nair had not retained him any property as now claimed by the appellants. They also claimed that after the death of Parvathy Amma, they executed Ext.A5, partition deed dated 30.01.2007 concerning the property (item No.6 of Ext.A1) allotted to Parvathy Amma. Hence no property was available with Unni Nair to devolve on the appellants and respondents as the former claimed to be partitioned.

¶36

The courts below held that appellants were not able to produce any document to show that Unni Nair had retained any property while he executed the gift deeds above mentioned. Accordingly, it was held that appellants are not entitled to seek partition of the suit property. The learned Sub Judge, Koyilandy dismissed the suit - O.S.No. 13 of 2007 which the learned II Additional District Judge, Kozhikode confirmed in appeal – A.S.No.234 of 2008.

¶37

The learned counsel for the appellants contends that what Parvathy Amma acquired as item No.6 of plaint schedule is only 1.89 acres which alone could be the subject matter of Ext.A5, partition deed. But, it is seen from Ext.A5 that respondents as legal heirs of Parvathy Amma have dealt with 2.86 acres tracing title to Exts.A1 and B1. According to the learned counsel, it is clear that there was one acre of land remaining with Unni Nair which also the

¶38

¶39

RSA No.144/2012

¶40

respondents have included in Ext.A5. The said one acre is the suit property according to the appellants and that is available for partition. Learned counsel contends that the reasons for non-suiting the appellants is that the appellants did not produce the relevant documents. Learned counsel submits that the appellants had filed application to the Sub Registrar concerned for issue a copy of document No.1634 of 1942 which would show the extent of property acquired by Unni Nair but, the reply received was that the said document was destroyed following the Quit India struggle. Learned counsel further submits that the respondents had filed O.A.No.6456 of 1975 for issue of purchase certificate but, that application was rejected. These circumstances were not taken into consideration by the courts below, it is argued.

¶41

Learned counsel who took notice for respondents contended that there was no property available with or retained by Unni Nair while executing the gift deeds referred above. It is contended by the learned counsel that description of the property and the boundaries in Exts.A1 and B1 would show that whatever that was acquired by Unni Nair in survey No.9/4 was allotted to Parvathy Amma as item No.6 of Ext.A1. It is further contended by the learned counsel that there is no indication in any of the gift deeds executed by the late Unni Nair that he had retained any property.

¶42

It is not disputed before me that in gift deed Nos.2112, 2113 and 2114 of 1983 executed by Unni Nair in respect of the properties he acquired, there is no mention of his retaining any property after the execution of the said

¶43

¶44

RSA No.144/2012

¶45

documents. Now, reference is made to the extent of property mentioned in item No.6 of Ext.A1 (1.89 acres) and the extent referred in Ext.A5 (partition deed dated 30.01.2007 (2.86 acres) as also the evidence of DW1 that the respondents have partitioned 2.90 acres as per Ext.A5. It is also pointed out by the learned counsel that it was after the demand for partition was made by the appellants that the respondent ventured to execute to Ext.A5.

¶46

The question I have to consider is whether Unni Nair had retained any property not dealt with as per the documents above referred so that on his death it would devolve on the appellants and respondents. It is not disputed that Unni Nair acquired item No.6 of Ext.A1 by Ext.B1. In Ext.B1, the extent of the property either in cent or Acre is not given. Instead, extent of the property is given by kole measurement - 54 X 42 six feet koles (it must be 1.89 acres). But, the property is described as 'payankul paramba' bounded by payankul paramba on the east, chettiyankandi paramba on the south, Panamkul paramba Meethalekkandam on the west and Thekkechalilum Chalilekandiyoor parambukal on the north. It is relevant to note that it is the very same description that is given in item No.6 of Ext.A1.

¶47

Thus, either it must be taken that Unni Nair acquired as per Ext.B1 only 1.89 acres (54 X 42 six feet koles) in which case the respondents or appellants claiming right over the remaining one acre referred to in the plaint schedule does not arise or whatever Unni Nair got as per Ext.B1 was allotted to Parvathy Amma as item No.6 of Ext.A1. But that is not the case of appellants.

¶48

¶49

RSA No.144/2012

¶50

They say that 2.85 Acres dealt with as per Ext.A5 was acquired by Unni Nair as per Ext.B1. But of that, what was allotted to Parvathy Amma as item No.6 of Ext.A1 is only 54 X 42 six feet koles (1.89 acres). It is thus that they claim that Unni Nair left behind one acre at the time of his death.

¶51

I must notice that description of the property given in item No.6 of Ext.A1 exactly tallies with the description in Ext.B1 The measurement (54 X 42 six feet koles) also tallies. Therefore it is clear that by Ext.B1 though notwithstanding that the measurement of the property is given as 54X42 six feet koles, Unni Nair had acquired a larger extent than 1.89 acres and lying within the specific boundaries mentioned therein (which I said tally with the property acquired by Unni Nair in Ext.B1). In that view of the matter the claim of appellants that Unni Nair had left behind one acre of land which is available for partition cannot be accepted. In that view of the matter, it makes no difference that to the demand for partition by way of registered notice the respondents gave no reply and thereafter entered into Ext.A5, partition.

¶52

Though the learned counsel has contended that the appellants were not able to get a copy of document No.1634 of 1942 for the reason as I have first stated it is not shown in what way that document clinches the issue

¶53

¶54

RSA No.144/2012

¶55

involved in the case. Nor am I impressed by the argument that the application for purchase certificate preferred by the appellants was rejected and that has a bearing upon the decision in this case.

¶56

Having heard the learned counsel and gone through the judgments under challenge I am not satisfied that any substantial question of law is involved in this appeal requiring its admission.

¶57

Second Appeal is dismissed.

¶58

All pending interlocutory applications will stand dismissed.

¶59

THOMAS P.JOSEPH, Judge.

¶60

cks

Rugmini v. N.K.Sreenivasan Nair

Case brief

What is this about?

What did the court decide?

Rugmini v. N.K.Sreenivasan Nair

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Parties & counsel

Coram

Case details

Similar cases

Ammukuttyamma-Padmavathyamma Vs Velayudhan Parameswaran @ Sivan

Velayudhan Parameswaran @ Sivan Vs Padmavathy Amma

Kandamuthan & 2 Others Vs Velappan

]Oloth Mammad Vs Vadakke Kandi Sakkeena

Mrs.Malathy Balagopal Vs Mrs.Mini Sivan

Paulose Vs K.C.John