Allowed

Smt.Rosamma v. K.Jayan

Kerala HC26 Jul 2019RSA/437/2009

Case brief

AI extract

What is this about?

In a restriction special appeal against the First Appellate Court, the High Court set aside the preliminary decree allowing partition and restored the Trial Court's dismissal of the suit. The court held that the plaintiff's share was forfeited due to prior alienation by the mother, making the current suit false and frivolous.

What did the court decide?

The decree and judgment of the First Appellate Court set aside, Trial Court decree restored, suit dismissed with exemplary costs against the plaintiff.

Smt.Rosamma Vs K.Jayan — Succession and Inheritance | 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 P.SOMARAJAN

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FRIDAY, THE 26TH DAY OF JULY 2019 / 4TH SRAVANA, 1941

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RSA.No.437 of 2009

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AGAINST THE JUDGMENT AND DECREE DATED 26-02-2008 IN AS 51/2005 of DISTRICT COURT, THIRUVANANTHAPURAM

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AGAINST THE JUDGMENT AND DECREE DATED 11-10-2004 IN OS 979/2002 of II ADDITIONAL MUNSIFF COURT, THIRUVANANTHAPURAM

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APPELLANT: (2ND DEFENDANT IN THE TRIAL COURT AND THE 2ND RESPONDENT IN THE LOWER APPELLATE COURT)

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SMT.ROSAMMA,

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D/O. SMT. KALU CHELLAMMA, RESIDING AT T.C. 18/3378 (OLD NO. TC 3/87), PUTHUVAL PUTHEN VEEDU, NEAR M.G. COLLEGE, KESAVADASAPURAM, PATTOM POST, THIRUVANANTHAPURAM.

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BY ADV. SRI.K.B.PRADEEP

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RESPONDENTS: (PLAINTIFFS & 1ST DEFENDANT IN THE TRIAL COURT AND APPELLANTS & 1ST RESPONDENT IN THE LOWER APPELLATE COURT

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1 K.JAYAN S/O. LATE KUTTAPPAN, RESIDING AT T.C. 18/3379 U (NEW), T.C 3/87 OLD, PUTHUVAL PUTHEN VEEDU, NEAR M.G. COLLEGE, KESAVADASAPURAM, PATTOM POST, THIRUVANANTHAPURAM.

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2 K.JOB, S/O. LATE KUTTAPPAN, RESIDING AT DO. DO.

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3 K.JOSE, S/O. KUTTAPPAN, RESIDING AT DO. DO.

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4 SMT. PACKYAM, D/O. SMT. MARIAMMA, RESIDING AT SAMTHOM GARDENS, PANENVILA, NALANCHIRA POST, THIRUVANANTHAPURAM.

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R1 TO R3 BY ADV. SRI.V.PHILIP MATHEW

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THIS REGULAR SECOND APPEAL HAVING BEEN FINALLY HEARD ON 26.07.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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RSA.No.437 of 2009 2

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JUDGMENT

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A suit for declaration of title, recovery of

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possession and for setting aside the document of alienation of minors right dismissed by the Trial Court but in appeal it was decreed, against which the second defendant came up with this second appeal.

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The subject matter of the suit comes to

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1¹ /4 cents sold by the first defendant/mother to the

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second defendant, a stranger for a valuable consideration, out of the property left out by her husband having an extent of 15 cents which form part of 20 cents, over which the minor plaintiffs are having¹ /3^rd right each. The suit was filed claiming² /3^rd right over the property by way of partition after setting aside Ext.A3 (Ext.B1 document) sale deed executed by the mother/first defendant in favour of the second defendant with

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respect to the plaint schedule property 1¹ /4 cents.

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The suit was dismissed by the Trial Court but it

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RSA.No.437 of 2009 3

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was decreed by the First Appellate Court, allowing

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a preliminary decree by giving¹ /3^rd right to the widow, the first defendant and² /3^rd right jointly to the plaintiff.

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It is an admitted case of plaintiff that

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their predecessor in interest, father had left out

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15 cents of property out of large extent of 20 cents. It is out of that 15 cents 1¹ /4 cents was

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sold to the second defendant. Now the plaintiff

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after attaining majority came up with this suit for setting aside the above said document and for partition.

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The suit for partition will not stand simply

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on the reason that the entire property left out by the father has not been scheduled and no partition was sought with respect to the entire estate left out by the deceased father which comes 15 cents. A suit for partial partition will not stand and hence liable to be dismissed. The said legal position was not considered by the First Appellate Court,

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which has resulted in miscarriage of justice.

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Secondly, the simple reason to non-suit the

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RSA.No.437 of 2009 4

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plaintiff is that they have frustrated right to get

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a partition over the plaint schedule property. Admittedly their mother on an earlier occasion had conveyed 12.158 cents of property out of the 15 cents left out by the father to strangers after obtaining permission from the court. Since the said

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sale was executed after obtaining leave of the court for and on behalf of the minors, it would be

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a document of alienation executed by the minors through their guardian, their mother and it is binding on the minors. The² /3^rd share of the minor would come to somewhat 10 cents out of 15 cents. The sale with respect to 12.158 cents of property would cover the entire fractional interest entitled by the minors and thereby they have forfeited the right of partition with respect to the remaining extent which comes to only 1¹ /4 cents. The legal position was very much settled by this court in

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Gopakumar and others v. Kamalakshy Purushothaman and others (2019(3)KHC 478) that an act of a

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co-owner who had alienated interest over

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co-ownership property, than what he is legally

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RSA.No.437 of 2009 5

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entitled would amount to forfeiture of right of partition over the remaining interest, and cannot sue for partition and claim any right of partition. The alienation of 12.158 cents of property out of the large extent of 15 cents is not under challenge by the minors. It was executed for and on behalf of the minors also by the mother, the first defendant and sold the property for valuable consideration. Even otherwise Ext.A3 (Ext.B1) as the one executed by the mother, it would operate against her share. It is the first document executed by the mother. At that time she was

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having¹ /3^rd right over 15 cents which would

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approximately come to 5 cents. But what she had conveyed under the first sale deed is only 1¹ /4

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cents. So the document would stand as valid as against the fractional interest of mother. No suit for partition was filed in respect of the entire

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estate of 15 cents left out by the deceased father. The present suit hence is a false and frivolous one and liable to be dismissed with exemplary cost. No exemplary cost was allowed either by the Trial

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RSA.No.437 of 2009 6

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Court or by the First Appellate Court. Hence I am of the view that it is proper to order exemplary cost at the second appellate stage. The decree and judgment of the First Appellate Court is set aside by restoring the decree of the Trial Court dismissing the suit.

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The appeal is allowed. The decree and judgment of the First Appellate Court is set aside by restoring the decree of the Trial Court. The suit will stand dismissed but with cost of 2^nd defendant though out from the plaintiffs.

Sd/-

P.SOMARAJAN

JUDGE

//TRUE COPY//

P.A. TO JUDGE

msp

Smt.Rosamma v. K.Jayan

Case brief

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Smt.Rosamma v. K.Jayan

Case brief

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