Dismissed

Vinodkumar v. Visalakshy

Kerala HC11 Jan 2016RFA/923/2015

Case brief

AI extract

What is this about?

The High Court of Kerala allowed an appeal filed by a second defendant in a partition suit. The appellant contested a gift deed benefiting the first defendant. The court held the appeal was devoid of merit as no regular suit was filed to set aside the gift deed, leading to dismissal in limine.

What did the court decide?

Appeal dismissed in limine due to lack of merit and absence of a suit to set aside the gift deed.

Vinodkumar Vs Visalakshy — Partition | Kerala HC (2016)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT:

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THE HONOURABLE MR.JUSTICE ANTONY DOMINIC &

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THE HONOURABLE MR. JUSTICE A.HARIPRASAD

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MONDAY, THE 11TH DAY OF JANUARY 2016/21ST POUSHA, 1937

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RFA.No. 923 of 2015 ()

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AGAINST THE JUDGMENT AND DECREE IN OS NO.212/2013 of III ADDL.SUB COURT, KOZHIKODE DATED 29-06-2015

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APPELLANT(S)/2ND DEFENDANT:

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VINODKUMAR, AGED 45 YEARS S/O BHASKARAN, 'SUJANIVAS', KATTUSSERY PO GOVINDAPURAM, VALAYANAD AMSOM, KOMMERI DESOM KOZHIKODE TALUK

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BY ADV. SRI.E.NARAYANAN

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RESPONDENT(S)/PLAINTIFF AND DEFENDANTS 1 AND 3:

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VISALAKSHY, AGED 65 YEARS W/O BHASKARAN, 'SUJA NIVAS KATTUSERY PO . GOVINDAPURAM VALAYANAD AMSOM KOMMERI DESOM KOZHIKODE TALUK-673 016

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RATHIBAI, AGED 47 YEARS W/O DEVARAJ, 'SUJA NIVAS, ERANHOLI PO ERANHOLI AMSOM AND DESOM, RESPONDENTS/PLAINTIFF D1 & D3, THALASSERY TALUK-670 107

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SUJABAI, AGED 43 YEARS

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W/O SHAJIMON, 'UNNICHAMKANDY HOUSE, PO VENGERI VENGERI AMSOM VARATHUR DESOM KOZHIKODE TALUK-673 010

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THIS REGULAR FIRST APPEAL HAVING COME UP FOR ADMISSION ON 11-01-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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ANTONY DOMINIC & A.HARIPRASAD, JJ.

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R.F.A.No.923 of 2015

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Dated this the 11^th day of January, 2016

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JUDGMENT

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A.Hariprasad, J.

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Second defendant in a suit for partition is the appellant. Plaintiff and defendants 1 and 3 are the respondents.

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Heard the learned counsel for the appellant.

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Short facts necessary for disposal of this appeal are as

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follows: Plaint item No.1 in B schedule along with a large extent was jointly acquired by the plaintiff and her husband Bhaskaran as per Ext.A1 document. Thereafter they were in joint possession and ownership of the property. Plaintiff and her husband had jointly applied for purchase of jenm right through the Land Tribunal concerned. Ext.A5 is the purchase certificate. While so, a plot measuring three cents was gifted to the first defendant as per a registered gift deed. First defendant accepted the gift and she took possession of the property. She is the absolute owner in respect of that portion of the property. Remaining properties are described as plaint item No.1 in B schedule. Item No.2 in plaint B schedule was acquired by the plaintiff and her husband as per Ext.A4 document in the

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RFA No.923/2015 2

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year 1993. In respect of that property also, they obtained jenm right through the Land Tribunal. Out of item No.2 in B schedule, ten cents was sold out. Rest of the land is sought to be partitioned. Plaintiff's husband died on 07.09.2007. Defendants are children of the plaintiff and deceased Bhaskaran. Plaint A schedule is the genealogy of the parties. Plaintiff claimed 5/8 shares over plaint B schedule properties. Each defendant is having 1/8 share over plaint B schedule properties. Since the second defendant raised objections against partition of the properties, plaintiff was constrained to file a suit for partition.

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Defendants 1 and 3 supported the plaint claim. Appellant/second defendant did not challenge the derivation of title claimed in the plaint. Fact that the first defendant is in possession of three cents as owner of the property obtained by virtue of a gift deed is also admitted. According to the second defendant, the gift deed was executed in favour of the first defendant only to enable her to secure a loan. That apart, the second defendant had spent lot of amounts to improve the property. Therefore, he contended that the property is not partible as shown in the plaint and the shares shown are also incorrect.

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After hearing the learned counsel for the appellant and on going through the judgment passed by the court below, we are of the view that the appeal is devoid of any merit. Even though the appellant

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RFA No.923/2015 3

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challenged the legality of the gift deed executed in favour of the first defendant, neither a regular suit nor a counter claim was filed to set the document aside. That apart, the contentions raised in the written statement will go to show an admission that the said document was properly executed and the first defendant took possession of the property as she has accepted the gift during the life time of the donor.

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Other contention raised by the appellant regarding improvement to the property was also not proved. Therefore, we are of the view that the appellant has no sustainable claim in the appeal. Hence we dismiss the appeal in limine.

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ANTONY DOMINIC, JUDGE.

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A. HARIPRASAD, JUDGE.

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cks

Vinodkumar v. Visalakshy

Case brief

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What did the court decide?

Vinodkumar v. Visalakshy

Case brief

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