Dismissed

Mowery Venugopalan v. Mowery Mohanan

Kerala HC24 Nov 2016RSA/1133/2016

Case brief

AI extract

What is this about?

The High Court of Kerala dismissed a regular second appeal regarding a partition suit. The High Court found no reason to interfere with the lower courts' dismissal of the suit notwithstanding defenses regarding partial partition and reserved rights. It held that omitted properties were unpleaded and reservation issues would be addressed in the final decree.

What did the court decide?

The regular second appeal was dismissed with no reason to interfere with the impugned judgment passed by the lower appellate court.

Mowery Venugopalan Vs Mowery Mohanan — 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 K.HARILAL

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THURSDAY, THE 24TH DAY OF NOVEMBER 2016/3RD AGRAHAYANA, 1938

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RSA.No. 1133 of 2016 (B)

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AGAINST THE JUDGMENT IN AS.73/2013 of SUB COURT, KANNUR AGAINST THE JUDGMENT IN OS.505/2012 OF PRINCIPAL MUNSIFF'S COURT, KANNUR

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APPELLANT/APPELLANT/4TH DEFENDANT:

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MOWERY VENUGOPALAN, AGED 71 YEARS S/O. RAMAN, MOWERY HOUSE NEAR PUTHIYATHERU MANDAPAM, P.O.CHIRAKKAL, KANNUR.

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BY ADVS.SRI.P.U.SHAILAJAN SMT.D.N.NISHANI SMT.K.B.REKHA SRI.M.SURESH KUMAR

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RESPONDENTS/RESPONDENTS/PLAINTIFF & DEFENDANTS 1 TO 3 & 5:

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MOWERY MOHANAN, AGED 67 YEARS, S/O. M.RAMAN, AISWARYA PANANKAVU, P.O.CHIRAKKAL, KANNUR - 670 011.

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MOWERY MEENAKSHI, AGED 78 YEARS, D/O. M.RAMAN, PUTHIYONNAN HOUSE EDAKKAD AMSOM, KIZHUNNA DESOM, KANNUR - 670 007.

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MOWERY KARTHIYAYANI, AGED 75 YEARS, D/O. M.RAMAN, 'SHEEJAS' NEAR CIVIL STATION, KOZHIKODE - 673 001.

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MOWERY SUSHEELA, AGED 69 YEARS, D/O.M.RAMAN, ORAKKAN HOUSE KOOTHUPARAMBA AMSOM, DESOM, KANNUR - 670 643.

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MOWERY PRAMEELA, AGED 65 YEARS, D/O.M.RAMAN, VRINDAVAN PALLIKKUNNU AMSOM, DESOM, KANNUR - 670 004.

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THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 24-11-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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K. HARILAL, J.

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R.S.A. No.1133 of 2016

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Dated this the 24^th day of November, 2016

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J U D G M E N T

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~ ~ ~ ~ ~ ~ ~ ~ ~

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The appellant is the 4^th defendant in O.S. No.505/2012 on the files of the Munsiff's Court, Kannur and the appellant in A.S. No.73/2013 on the files of the Sub Court, Kannur. The aforesaid original suit was one for partition. According to the plaintiff, the plaint schedule property belongs to Mowery Raman, the father of the plaintiff and defendants, and he died in 1962. Their mother also died in 2001 and one brother by name Lakshmanan was died in 2006 as a bachelor. Thus, the plaintiff and defendants are entitled to get 1/6^th share each in the plaint schedule property.

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RSA.1133/2016

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: 2 :

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Defendants 1, 2, 3 and 5 admitted co-ownership

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right in the written statement. According to them, the properties cannot be partitioned as the house is situated adjacent to the road and there is no convenient access from the road on the rear side of the building. Hence, the property has to be sold in auction and the sale proceeds have to be divided into six equal shares.

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The appellant, who is the 4^th defendant, in his written statement contended that he has been residing with his family in the house for the last more than 35 years. He renovated the house and spent a huge amount for the same. He denied the allegation that he had an intention to demolish the building and to commit waste in the property. There was an oral partition and in that oral partition, he was allotted 9 cents of land and he paid ₹6 lakhs to the plaintiff as per the oral partition. That apart, he had spent ₹15 lakhs for the renovation of the house. Hence, he prayed for

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RSA.1133/2016

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: 3 :

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dismissal of the suit. It is also contended that the two items of immovable properties stand left out of the plaint schedule properties and partial partition is not permissible.

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Based on the aforesaid contentions, both parties adduced evidence consisting of oral testimony of PW1, DWs 1 and 2 and Exts.A1 to A5 and B1 to B3. After considering the evidence on record, the trial court dismissed the suit and in appeal, the appellate court also confirmed the findings whereby the trial court dismissed the suit.

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In this R.S.A., the learned counsel for the appellant mainly contended that two other items of immovable properties were left out of the plaint schedule properties and partial partition is impermissible. It is also contended that the long residence of the appellant and his family in the plaint schedule residential building in the land more than 40 years was not considered by the court below, while passing the preliminary decree.

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RSA.1133/2016

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: 4 :

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Going by the trial court judgment as well as the

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appellate court judgment, it could be seen that the courts below have addressed these issues as regards the questions of partial partition. Though in the written statement, the 4^th defendant had raised a contention that two more immovable properties were left out of the plaint schedule properties which are sought to be partitioned in the plaint, the particulars of those properties were neither pleaded nor brought out in evidence, during the course of trial. The courts below concurrently held that in the absence of pleadings and evidence with respect to the immovable properties which stand left out of the suit, it cannot be held that the plaintiff has sought for partial partition only. I do not find any reason to interfere with the said finding.

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Coming to the question of reservation, the trial

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court as well as the appellate court relegated that question to the final decree proceedings. Thus, it appears that the

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RSA.1133/2016

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: 5 :

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appellant is not deprived of his right to raise his right of reservation. Certainly, this question also will be considered

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during the course of final decree proceedings. In the above view, I do not find any reason to interfere with the impugned judgment passed by the lower appellate court. No question of law arises for consideration in this appeal.

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R.S.A. is dismissed accordingly.

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Sd/- (K. HARILAL, JUDGE)

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aks/24/11

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// True Copy //

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PA to Judge

Mowery Venugopalan v. Mowery Mohanan

Case brief

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Mowery Venugopalan v. Mowery Mohanan

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