Allowed

Rajamma v. Mary @ Ammani

Kerala HC22 Aug 2019RFA/874/2015

Case brief

AI extract

What is this about?

The High Court of Kerala allowed an appeal challenging a partition decree. It held that a female signatory to a 1953 partition deed was a sharer in her individual capacity, not just a guardian. Consequently, the appellant was entitled to 1/8th share in the specified property.

What did the court decide?

Preliminary decree modified to declare 1/8th share of the appellant over the plaint A schedule property.

Rajamma Vs Mary @ Ammani — Partition | Kerala HC (2019)

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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 SATHISH NINAN

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THURSDAY, THE 22ND DAY OF AUGUST 2019 / 31ST SRAVANA, 1941

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RFA.No.874 OF 2015

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AGAINST THE JUDGMENT AND PRELIMINARY DECREE IN OS 43/2012 DATED 31-07-2015 OF ADDITIONAL SUB COURT,NORTH PARAVUR

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APPELLANT/ PLAINTIFF:

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RAJAMMA

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AGED 57 YEARS

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D/O.THRESSIAKUTTY AND W/O.JOLLY, CHITTINAPPILLY HOUSE, CHOONDI, ERUMATHALA PO, PIN CODE-683 105, ALUVA EAST VILLAGE, ERNAKULAM DISTRICT.

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BY ADVS. SRI.K.C.ELDHO SRI.ANEESH JAMES SRI.JIJO THOMAS SMT.KRISHNA SANTHOSH

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RESPONDENTS / DEFENDANTS:

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1 MARY @ AMMANI

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AGED ABOUT 78, W/O.KUNJI CHAKKU, PAYYAPPILLY HOUSE, KARUKUTTY POST, KARUKUTTY, ANGAMALY, ERNAKULAM DISTRICT, PIN CODE-683 576.

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2 GEETHA

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AGED ABOUT 53, D/O.KUNJI CHACKU, PAYYAPPILLY HOUSE, KARUKUTTY POST, KARUKUTTY, ANGAMALY, ERNAKULAM DISTRICT, PIN CODE-683 576.

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3 REENA

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AGED ABOUT 49, D/O.KUNJI CHACKU, PAYYAPPILLY HOUSE, KARUKUTTY POST, KARUKUTTY, ANGAMALY, ERNAKULAM DISTRICT, PIN CODE-683 576.

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4 LIBY AGED ABOUT 47, D/O.KUNJI CHACKU, PAYYAPPILLY HOUSE, KARUKUTTY POST, KARUKUTTY, ANGAMALY, ERNAKULAM DISTRICT, PIN CODE-683 576.

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5 SANTHOSH, AGED ABOUT 51, S/O.KUNJI CHACKU, PAYYAPPILLY HOUSE, KARUKUTTY POST, KARUKUTTY, ANGAMALY, ERNAKULAM DISTRICT, PIN CODE-683 576.

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RFA.No.874 OF 2015

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6 REETHA,

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AGED ABOUT 71, D/O.KOCHU MARIAM AND DEVASSY, PAYYAPPILLY HOUSE, KARUKUTTY POST, KARUKUTTY, ANGAMALY, ERNAKULAM DISTRICT, PIN CODE-683 576.

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7 REETHA PAUL AGED ABOUT 73, W/O.P.D.PAULOSE, PAYYAPPILLY HOUSE, KARUKUTTY POST, ERNAKULAM DISTRICT, PIN CODE-683 576.

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8 RAYIMES PAUL AGED ABOUT 41, S/O.P.D.PAULOSE, PAYYAPPILLY HOUSE, KARUKUTTY POST, ERNAKULAM DISTRICT, PIN CODE-683 576.

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9 VINNI PAUL AGED ABOUT 39, S/O.P.D.PAULOSE, PAYYAPPILLY HOUSE, KARUKUTTY POST, ERNAKULAM DISTRICT, PIN CODE-683 576.

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10 MRIDULA SOJAN AGED ABOUT 33, D/O.P.D.PAULOSE AND W/O.SOJAN, GOPURANTHINKAL HOUSE, PULIYANAM POST, ELAVOOR VIA, ANGAMALY-683 576.

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R1-5 BY ADV. SMT.K.S.LOVELY R1-5 BY ADV. SMT.C.A.RAKHI ANTONY R7-10 BY ADV. SRI.GEORGE VARGHESE KIZHAKKAMBALAM R7-10 BY ADV. SRI.V.RAJENDRAN PERUMBAVOOR

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THIS REGULAR FIRST APPEAL HAVING BEEN FINALLY HEARD ON 22.08.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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RFA.No.874 OF 2015

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JUDGMENT

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The plaintiff in a suit for partition is the appellant. The plaint relates to A and B schedule properties. The issue involved in the appeal is confined to plaint A schedule property.

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That the property sought to be partitioned originally belonged to Devasi, the predecessor-in-interest of the parties, is not in dispute. Devasi had married twice, the second marriage being contracted on the death of the first wife. Between the legal heirs of Devasi, there was a partition in the year 1953 as Partition Deed No.1034/1953, which is marked as Ext.A4. Therein, partition was effected into two, one share to the heirs under the first marriage and the other share with different properties to the heirs under the second marriage. The present suit for partition relates only to properties so allotted to the branch under the second wife, Kochumariyam.

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The only question that arises for determination in this appeal is as to whether under Ext.A4 partition,

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RFA.No.874 OF 2015

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Kochumariyam became a sharer or was she a signatory therein only as representing her minor children, in her capacity as guardian. The relevant recital in Ext.A4 reads thus:

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"ടടി ദദേവസടിയയുടട മക്കൾ കകൃഷടി ഇരയുപതടിരണയു വയസസ കയുഞടിചച്ചാക്കയു സസ്വന്തനടിലയടിലയുലും അനയുജനച്ചാർ മമനർകൾ കയുരടിയൻ പപൗദലച്ചാസയു ഇവർക്കയു ദവണടി രക്ഷകർതച്ചാവയു സച്ചാനതയുലും സസന്വ ്തനടിലയടിലയുല ജനനടിയയുലും ടടി ദദേവസടിയയുടട ദേസ്വടിതതീയ ഭച്ചാരര്യ യുമച്ചായ നസസച്ചാണടി സസതതീ ഗകൃഹദജച്ചാലടി അമ്പതയു വയസസ ടകച്ചാ സ മറടിയവയുലും കകൂടടി രണച്ചാലും നസമ്പകച്ചാരച്ചായയുലും"

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A reading of Ext.A4 makes it clear that Kochumariyam was a signatory to Ext.A4, not only in her capacity as a guardian of the minor children but also in her individual capacity. Therefore, it admits of no doubt that under Ext.A4, she also becomes a sharer. Even assuming that prior to Ext.A4, on the premise that the Travancore-Cochin Christian Succession Act was applicable wherein the widow had only a maintanence right, she did not have any share in the property, it is always open to the parties to have a share given to her under the partition, which under law would have the

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RFA.No.874 OF 2015

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effect of a gift to a non-sharer. Suffice to notice that, under Ext.A4 she also became a sharer.

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That if, Kochumariyam is also a sharer under Ext.A4, the plaintiff as a legal heir would be entitled to 1/8 share in the plaint A schedule property, is not in dispute. In view of the finding above that Kochumariyam is also a sharer under Ext.A4, the plaintiff is entitled to 1/8 share over the plaint A schedule property.

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In the result, the appeal is allowed. The decree and judgment passed by the trial court, in so far as it relates to plaint A schedule property, will stand modified, and a preliminary decree for partition is passed declaring 1/8 share of the plaintiff over the plaint A schedule property. The decree and judgment of the trial court will stand confirmed in other respects.

Sd/-

SATHISH NINAN

JUDGE

rsr

Rajamma v. Mary @ Ammani

Case brief

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What did the court decide?

Rajamma v. Mary @ Ammani

Case brief

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