Dismissed

Marcose v. Clara and Others

Kerala HC9 Mar 2018RFA/678/2008

Case brief

AI extract

What is this about?

The High Court of Kerala dismissed the appeal against a preliminary decree in a partition suit. The court upheld the finding that the property was a 'kudikidappu' inherited by the appellant and his siblings, whose shares were subject to a valid release deed by one brother in favor of the appellant.

What did the court decide?

The appellant's appeal against the preliminary decree of the trial court was dismissed.

Marcose Vs Clara and Others — Partition | Kerala HC (2018)

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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.ABRAHAM MATHEW

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FRIDAY, THE 9TH DAY OF MARCH 2018 / 18TH PHALGUNA, 1939

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RFA.No. 678 of 2008

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AGAINST THE JUDGMENT IN OS 149/2006 of II ADDL.SUB COURT,ERNAKULAM DATED 31-10-2007

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APPELLANT/1ST DEFENDANT

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MARCOSE, AGED 69 YEARS, S/O.LONAN, KALRAIKKAPARAMBIL HOUSE, PUTHAKKATTU, VENNALA KARAYIL, EDAPPALLY SOUTH VILLAGE, KANAYANNUR TALUK.

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BY ADV.SRI.P.SIVARAJ

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RESPONDENTS/PLAINTIFF : 2ND DEFENDANT :

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CLARA , AGED 72, W/O.VARGHESE, KALARIKKAPARAMBIL, KARIYADU DESOM, MANALITHARA VILLAGE, THALAPPILLY TALUK.

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THOMAS, BUSINESS, AGED 34,

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S/O. VARGHESE, KALARIKKARPARAMBIL, KARIYADU DESOM,

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MANALITHARA VILLAGE, THALAPPILLY TALUK.

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VERONICKA, AGED 40 YEARS,

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W/O. OUSEPH, THAIKKATUCHIRAYIL,, OORKKADU DESOM,

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MANALITHARA VILLAGE, THALAPPILLY TALUK.

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MARIYAM, AGED 42, W/O. OUSEPH KUTTIKKADAN, KARATTU DESOM, MANALITHARA VILLAGE, THALAPPILLY TALUK.

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K.L.A.ELEESHO, W/O. T.M.GEORGE,

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AGED 72, THEENTANGARA HOUSE, MALAKKAPPARA P.O., SHOLAYAR 642125.

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K.L.ANTONY, AGED 75, S/O. LONAN,

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RESIDING AT KALARIKKAPARAMBIL, NJATTUMALAYIL VEEDU, THENGODU DESOM, KAKKANADU VILLAGE, KANAYANNOOR TALUK. [DIED]

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RFA.No. 678 of 2008 -2-

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R6 DIED

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DEATH OF 6TH RESPONDENT IS RECORDED AS PER ORDER DATED 7.10.2015 IN MEMO DATED 25.9.2015 (CF NO.5127/15)

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ADDL.RESPONDENTS IMPLEADED

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Addl.7. ELAMMA ANTONY, W/O ANTONY, RESIDING AT KALARIKKAPARAMBIL, NJATTUMALAYIL VEEDU, THENGODU DESOM, KAKKANADU VILLAGE, KANAYANNOOR TALUK, ERNAKULAM DISTRICT, PIN-682021.

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Addl.8. JOHN ANTONY, S/O ANTONY, RESIDING AT KALARIKKAPARAMBIL, NJATTUMALAYIL VEEDU, THENGODU DESOM, KAKKANADU VILLAGE, KANAYANNOOR TALUK, ERNAKULAM DISTRICT, PIN-682021.

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Addl.9. THAMPI ANTONY,S/O ANTONY, RESIDING AT KALARIKKAPARAMBIL, NJATTUMALAYIL VEEDU, THENGODU DESOM, KAKKANADU VILLAGE, KANAYANNOOR TALUK, ERNAKULAM DISTRICT, PIN-682021

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Addl.10. MOLLY D/O ANTONY, RESIDING AT KALARIKKAPARAMBIL, NJATTUMALAYIL VEEDU, THENGODU DESOM, KAKKANADU VILLAGE, KANAYANNOOR TALUK, ERNAKULAM DISTRICT, PIN-682021

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Addl.11. JOY ANTONY, S/O ANTONY, RESIDING AT KALARIKKAPARAMBIL, NJATTUMALAYIL VEEDU, VENPILLY, ERNAKULAM DISTRICT, PIN- 683565.

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(LEGAL HEIRS OF DECEASED 6TH RESPONDENT ARE IMPLEADED AS ADDITIONAL R7 TO R11 AS PER ORDER DATED 7.7.2016 IN I.A.NO.2119/2015)

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R1 TO 6,R7 -R 11 BY ADV. SMT.M.A.ZOHRA

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THIS REGULAR FIRST APPEAL HAVING BEEN FINALLY HEARD ON 09-03-2018, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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cms

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K.ABRAHAM MATHEW J.

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R.F.A.No.678 of 2008

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Dated this the 9^th day of March, 2018

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JUDGMENT

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This appeal arises from the preliminary decree passed in a suit for partition. The appellant was the first defendant. The 6^th respondent, who is now no more and whose legal representatives are the additional respondents, was the second defendant. The other respondents were the plaintiffs. In this judgment, to avoid confusion, the parties are referred to as they appear in the plaint.

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The plaint schedule property was the 'kudikidappu' of one Lona, whose wife was Mariyam. Defendants 1 and 2 and deceased Varghese and deceased Paily are the sons of Lona and Mariyam. The 5^th plaintiff is the only daughter of Lona and Mariyam. Lona died intestate in 1942 and Mariyam died intestate in 1965. Their rights in the property devolved on all their children. In O.A.No.1651 of 1970 the Land Tribunal, Palluruthy issued a purchase certificate in the name of the first defendant and Paily. They obtained it on behalf of the other co-owners. Varghese the eldest son of Lona and Mariyam died. His wife and children are plaintiffs 1 to 4. Paily died unmarried and issueless in 1998. The plaintiffs allege that they are entitled to 1/4 share in the plaint schedule property. They pray that their share may be separated and they may be put in its possession. The second defendant filed a written statement claiming separation of his 1/4^th share in the property. The first defendant denies that the plaint schedule property was the 'kudikidappu' of Lona and the purchase certificate was obtained by the first defendant and Paily on behalf of the other

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R.F.A.No.678 of 2008 2

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brothers and sister. Varghese and the second defendant left the place and the 5^th plaintiff was married off decades ago. The first defendant would say that the house was constructed by him and Paily released his right in his favour. He prayed for dismissal of the suit. The learned Sub Judge found that Lona was the 'kudikidappukaran' in the property and all his children became equally entitled to the property after the death of Lona and his wife, Mariyam. He accepted the contention of the first defendant that Paily released his share in his favour and it was he who constructed the house in it. The decree is challenged by the first defendant.

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The following points arise for consideration.

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Whether the lower court was justified in finding that the plaint

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schedule property was the 'kudikidappu' of Lona and all his children became

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equally entitled to the property on the death of Lona and his wife, Mariyam?

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Is the preliminary decree of the trial court liable to be set aside

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Heard the learned counsel for the appellant and the respondents.

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In O.A.No.1651 of 1970 the Land Tribunal, Palluruthy issued a purchase certificate in favour of the first defendant and his brother Paily. It is not in dispute that Paily released his right in favour of the first defendant by Ext B2 release deed executed in 1996.

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The first defendant denied the allegation in the plaint that the plaint schedule property was the 'kudikidappu' of the predecessor of the parties, Lona. The application for purchase of 'Kudikidappu' filed by the first defendant and his brother Paily in Land Tribunal Palluruthy, which is Ext X1(a), contains an admission that they claimed right in the property by succession. It is a clear

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R.F.A.No.678 of 2008 3

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admission that Lona was the 'kudikidappukaran' in the property. That apart, in his cross-examination the first defendant, who was examined as DW1, in no uncertain terms admitted that he and his siblings were born and brought up in the plaint schedule property. The learned Sub Judge rightly found that the plaint schedule property was the 'kudikidappu' of Lona.

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It is not disputed before me that all the children of Lona and Mariyam have equal right in his property. As noted above, Lona and Mariyam had five children. Each of them became entitled to 1/5^th share in the plaint schedule property. But Paily released his right in favour of the first defendant. Thus the first defendant became entitled to 2/5 shares. This is the finding of the learned Sub Judge and it is right.

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There is a house in the plaint schedule property. The trial court found that it was built up by the first defendant with his own fund and it is not liable to be partitioned and to the extent possible the portion of the land in which it is situated shall be allotted to the share of the first defendant. Its propriety is not challenged by the respondents. The points are found against the appellant.

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In the result, this appeal is dismissed.

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K.ABRAHAM MATHEW JUDGE

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cms

Marcose v. Clara and Others

Case brief

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Marcose v. Clara and Others

Case brief

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