Allowed

Nani v. Viswambharan

Kerala HC29 Jan 2016RSA/1178/2015

Case brief

AI extract

What is this about?

Second appeal filed by plaintiffs in a partition suit dismissed below. Court held that despite an agreement covering 5 cents for construction, plaintiffs are entitled to partition of remaining property during the first plaintiff's lifetime. Preliminary decree for 1/7 share each passed. Set aside impugned judgments.

What did the court decide?

Second appeal allowed; impugned judgments set aside; preliminary decree passed declaring 1/7 share each of plaintiffs in suit property excluding 5 cents.

Nani Vs Viswambharan — 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 P.B.SURESH KUMAR

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FRIDAY, THE 29TH DAY OF JANUARY 2016/9TH MAGHA, 1937

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RSA.No. 1178 of 2015 () ------------------------

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AS 105/2014 of PRINCIPAL SUB COURT, NORTH PARAVUR OS 315/2011 of MUNSIFF COURT, ALUVA

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APPELLANT(S)/APPELLANTS/PLAINTIFFS:

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1. NANI,

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AGED 89 YEARS, W/O. MOLATHPARAMBIL RAMAKRISHNAN, KUNNATHERI KARA, ALUVA WEST VILLAGE, ALUVA TALUK.

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2. SUSEELA, AGED 59 YEARS, W/O.PARACKAPARAMBIL RAGHAVAN, CHERUVALOOR KARA, KADUDUTTY VILLAGE, ALUVA TALUK.

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3. RAJAMMA,

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AGED 56 YEARS, D/O. MOLATHPARAMBIL RAMAKRISHNAN, KUNNATHERI KARA, ALUVA WEST VILLAGE, ALUVA TALUK.

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4. SUJATHA,

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AGED 47 YEARS, W/O. UNNI, VANIYAPPILLY HOUSE, KUTTAMASSERY KARA, ALUVA WEST VILLAGE, ALUVA TALUK.

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5. AJITHA,

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AGED 42 YEARS, D/O. MOLATHPARAMBIL RAMAKRISHNAN, KUNNATHERI KARA, ALUVA WEST VILLAGE, ALUVA TALUK.

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BY ADVS.SRI.A.BALAGOPALAN

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SRI.A.RAJAGOPALAN

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SRI.M.S.IMTHIYAZ AHAMMED RESPONDENT(S)/RESPONDENTS/DEFENDANTS:

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1. VISWAMBHARAN, AGED 65 YEARS, S/O. MOLATHPARAMBIL RAMAKRISHNAN, KUNNATHERI KARA, ALUVA WEST VILLAGE, ALUVA TALUK-683 101.

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2. BALACHANDRAN, AGED 50 YEARS, S/O. MOLATHPARAMBIL RAMAKRISHNAN, KUNNATHERI KARA, ALUVA WEST VILLAGE, ALUVA TALUK-683 101.

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***(POWER OF ATTORNEY RECORDED)**

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3. SUNEEDRAN,

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AGED 41 YEARS, S/O. MOLATHPARAMBIL RAMAKRISHNAN, KUNNATHERI KARA, ALUVA WEST VILLAGE, ALUVA TALUK-683 101.

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***(POWER OF ATTORNEY RECORDED)**

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(AS PER THE ORDER DATED 29/01/2016 ON MEMO BEARING CF 67/16 DATED 22/12/2015, THE 1ST RESPONDENT, VISWAMBHARAN, BROTHER OF RESPONDENTS 2 AND 3 IS RECORDED AS THEIR POWER OF ATTORNEY HOLDER)

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BY ADV. SRI.V.K.VEERAVUNNY.

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THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 29-01-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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rvs.

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P.B.SURESH KUMAR, J.

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R.S.A. No.1178 of 2015

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Dated 29^th January, 2016.

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J U D G M E N T

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The plaintiffs in a suit for partition are the appellants in this second appeal.

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The suit property belonged to one Ramakrishnan. The first plaintiff is the wife of Ramakrishnan and the remaining plaintiffs are his daughters. The defendants are the sons of Ramakrishnan. According to the plaintiffs, on the death of Ramakrishnan, the suit property devolved on the plaintiffs and the defendants and they are entitled to 1/8 share each in the suit property. The defendants resisted the suit contending that as per Ext.B1 agreement, after the death of Ramakrishnan, the parties to the suit other than the third defendant have agreed that they would release their co-ownership rights in respect of 5 cents out of the suit property specified in the agreement in

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RSA No.1178 of 2015

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favour of the third defendant to enable him to construct a residential building therein. According to the defendants, the suit filed without disclosing the said agreement is liable to be dismissed. The trial court accepted the contention of the defendants and dismissed the suit. Though the plaintiffs took up the matter in appeal, the appellate court confirmed the decision of the trial court. While confirming the decision of the trial court, the appellate court held that as per Ext.B1 agreement, the parties have also agreed that they will claim partition in respect of the remaining property only after the death of the first defendant and that therefore, the suit is premature also. The plaintiffs, who are aggrieved by the concurrent decisions against them, have come up in this second appeal.

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Heard the learned counsel for the appellants as also the learned counsel for the respondents.

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The learned counsel for the appellants conceded that in the light of Ext.B1 agreement, the appellants are not claiming any relief in respect of the 5 cents of property covered

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RSA No.1178 of 2015

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by Ext.B1 agreement. However, he contended that in so far as the co-ownership rights of the plaintiffs over the suit property excluding the property covered by Ext.B1 agreement has been admitted by the defendants, the courts below ought to have granted the plaintiffs a decree in respect of the said property. He also pointed out that the recital in Ext.B1 agreement to the effect that the children of Ramakrishnan other than the third defendant can partition the remaining property after the death of the first plaintiff was intended only to indicate that the third defendant cannot claim any right over the remaining property and the said recital ought not have been treated by the appellate court as a fetter for the plaintiffs to claim partition of the remaining property during the lifetime of the first plaintiff. In the light of the aforesaid submissions made by the learned counsel for the appellants, the following question of law is formulated for decision in the second appeal :

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Were the courts below justified in declining relief to the plaintiffs in respect of the property excluding the property covered by Ext.B1 agreement?

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RSA No.1178 of 2015

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It is seen that after the death of Ramakrishnan, as per Ext.B1, the parties to the suit other than the third defendant have agreed that they will release their co-ownership rights in respect of 5 cents out of the suit property mentioned in Ext.B1 in favour of the third defendant to enable him to construct a residential building therein and that they will claim partition only of the remaining property. True, the plaintiffs have not disclosed about this agreement in the suit, but in so far as the co-ownership rights of the plaintiffs over the remaining property is not disputed by the contesting defendants, I do not think that the courts below were justified in non-suiting the plaintiffs on that ground. The view taken by the appellate court that the plaintiffs are entitled to partition of the property other than the property earmarked for the third defendant as per Ext.B1 only after the death of the first plaintiff, cannot also be accepted. It is beyond dispute that Ext.B1 is an agreement entered into between the parties so as to enable the third defendant to construct a residential building in a portion of the suit property. As such, the terms of the said agreement are to be construed

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RSA No.1178 of 2015

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keeping in mind the purpose for which the document was executed. True, Ext.B1 contains a recital to the effect that the children of Ramakrishnan other than the third defendant can partition the remaining property after the death of the first plaintiff, the mother. The said recital, according to me, only indicates that the third defendant cannot claim any right in the remaining property. The said recital, at any rate, cannot be interpreted to hold that the first plaintiff will not be entitled to claim a share in the remaining property or the remaining children of Ramakrishnan cannot claim partition of their respective shares until the death of the first plaintiff. In the said view of the matter, the impugned decisions are liable to be set aside and the suit has to be decreed. The question of law formulated for decision is thus answered in favour of the appellants.

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In the result, the second appeal is allowed, the impugned judgments are set aside and a preliminary decree is passed declaring the 1/7 right each of the plaintiffs in respect of the suit property excluding the 5 cents of property earmarked

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RSA No.1178 of 2015

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for the third defendant as per the terms of Ext.B1 agreement. The plaintiffs are at liberty to move the trial court for passing of the final decree in terms of this preliminary decree. It is made clear that while effecting partition, the final decree court is free to allot the 5 cents of property referred to in Ext.B1 exclusively

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to the third defendant.

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Sd/-

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P.B.SURESH KUMAR, JUDGE.

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tgs

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(true copy)

Nani v. Viswambharan

Case brief

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Nani v. Viswambharan

Case brief

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