Dismissed

Ramakrishnan & Others v. Ramadas & Others

Kerala HC17 Nov 2020RFA/687/2011

Case brief

AI extract

What is this about?

Appeal against a preliminary decree for partition of property. The High Court upheld the trial court's finding that the plaintiffs are the legal heirs of the deceased owner based on school admission registers and corroborative oral and DNA evidence, confirming their entitlement to a 2/7 share. The appeal was dismissed.

What did the court decide?

Appeal dismissed; preliminary decree confirmed; no costs.

Ramakrishnan & Others Vs Ramadas & Others — Succession and Inheritance | Kerala HC (2020)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT

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THE HONOURABLE MR.JUSTICE T.V.ANILKUMAR

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TUESDAY, THE 17TH DAY OF NOVEMBER 2020 / 26TH KARTHIKA, 1942

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RFA.No.687 OF 2011

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AGAINST THE JUDGMENT AND DECREE DATED 16-02-2011 IN O.S.NO. 171/2007 OF II ADDITIONAL SUB COURT,ERNAKULAM

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APPELLANTS/DEFENDANTS 1 TO 3 AND 5:

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1 RAMAKRISHNAN, AGED 46 YEARS, S/O. NARAYANAN,POOPALLIL HOUSE,MARADU P O, KUNDANOOR.

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2 NANDANAN, AGED 46 YEARS, S/O.NARAYANAN, POOPALLIL HOUSE,MARADU P O, KUNDANOOR.

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3 RAMANI, AGED 41 YEARS W/O.SHYLAN, POOPALLIL HOUSE, MARADU P O, KUNDANOOR.

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4 CHANDRAMATHI, AGED 69 YEARS, W/O.LATE NARAYANAN, POOPALLIL HOUSE, MARADU P O, KUNDANOOR.

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BY ADVS.SRI.A.T.ANILKUMAR

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SMT.V.SHYLAJA

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RESPONDENTS/ PLAINTIFFS, 4TH DEFENDANT AND DEFENDANT 6 AND 7 1 RAMADAS, AGED 63 YEARS,S/O. NARAYANAN, MASON,POOPALLIL HOUSE,MARADU P.O., KUNDANOOR,NOW RESIDING AT KANDOTH CHANIYIL HOUSE,CHIRAYIL ROAD, PERUMBADAPPU, KOCHIN-6.

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R.F.A.No.687 of 2011

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2 SANTHA, AGED 57 YEARS, D/O.NARAYANAN, VEDAKKATTU VELI, AROOR,CHERTHALAI, PIN-688524. 3 MAHESHAN @ KUNJUMON, AGED 39 YEARS, S/O.NARAYANAN,POOPALLIL HOUSE,MARADU P.O., KUNDANOOR, ERNAKULAM DISTRICT, PIN-682304.

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4 M/S.THOMSUN REALTORS PRIVATE LTD COMPANY, XL/9784, 4TH FLOOR,THOMSUN TOWERS,KOCHI, REP.BY ITS DIRECTOR AND AUTHORIZED REPRESENTATIVE K.V.THOMAS, AGED 59 YEARS,S/O.VARGHESE, KUTTIPARAMBIL HOUSE,VADAVATHOOR P O, KOTTAYAM, PIN-686010.

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5 K.V.THOMAS, AGED 59 YEARS, S/O.VARGHESE, KUTTIPARAMBIL HOUSE,VADAVATHOOR P.O., KOTTAYAM, PIN-686010, DIRECTOR AND AUTHORIZED REPRESENTATIVE, M/S.THOMSUN REALTORS PRIVATE LTD COMPANY, XL/9784, 4TH FLOOR,THOMSUN TOWERS, KOCHI. R1& R2 BY ADVS.SRI.G.KRISHNAKUMAR SRI.B.S.SURAJ KRISHNA SRI.P.H.SHAJI THRIKKAKARA SRI.TITTO THOMAS R4 & 5 BY ADVS.SRI.SREELAL N.WARRIER(EA) SRI.C.DILEEP

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THIS REGULAR FIRST APPEAL HAVING BEEN FINALLY HEARD ON 13-11-2020, THE COURT ON 17-11-2020 DELIVERED THE FOLLOWING:

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R.F.A.No.687 of 2011

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Dated this the 17^th day of November, 2020

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J U D G M E N T

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Plaintiffs in O.S.No.171/2007 before Sub Court,

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Ernakulam, obtained a preliminary decree for partition of plaint schedule 5 cents of land and building by 2/7 share in the property. The defendants 1 to 3 and 5 who resisted the suit contending the suit property to be not partible lost their plea and being aggrieved by the decree and judgment, this appeal is preferred.

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The property originally belonged to

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Narayanan who died on 19.8.1999. The plaintiffs

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claimed that they are the children of Narayanan

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born in his first wife Devaki. Defendants 1 to 4

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contended that plaintiffs are not the children of Narayanan nor was Devaki married to Narayanan. They contended to be the children of Narayanan born to 5^th defendant, Chandramathi. The crux of the issue

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R.F.A.No.687 of 2011

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before the court below was whether plaintiffs were entitled to 2/7 share claimed in the property of Narayanan as his legal heirs. The suit property was already sold by defendants 1 to 5 in favour of defendant No.6 under Ext.A4 sale deed dated 6.12.2006. The alienee in the separate written statement adopted the same contentions of defendants 1 to 5 and raised an additional plea that he is a bona fide purchaser for value without notice of the claim of plaintiffs 1 and 2.

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The trial court considered two

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questions as to,

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(1) whether the plaintiffs were the children of deceased Narayanan and were co-owners in the property ? and,

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(2) whether sixth defendant is a bona fide purchaser for value ?

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On the side of the respondents/plaintiffs,

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second and first plaintiffs were examined as PWs.1

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R.F.A.No.687 of 2011

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and 3 respectively and brother of Narayanan by name

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Velayudhan was examined as PW2. Exts.A1 and A5

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extract of school admission registers were proved through the respective Headmistress/Headmaster examined as PWs.4 and 5. Exts.A2 to A4 are the

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previous registered documents executed in respect of the suit property. On the side of appellants, the first defendant was examined as DW1 and the purchaser of the property was examined as DW2. DW3 is the keeper in a cemetery who proved Ext.X3 diary. Exts.X1 and X2 are the connected records.

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In order to determine the question as to the disputed relationship of the plaintiffs with the deceased Narayanan, scientific evidence seeking to prove their relationship was adduced by the plaintiffs by calling for Ext.C1 DNA report from Rajiv Gandhi Centre for Biotechnology, Thiruvananthapuram. The expert who prepared the

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report was examined as CW1.

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R.F.A.No.687 of 2011

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The court below entered into a definite

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finding that plaintiffs 1 and 2 are the children of deceased Narayanan in his first wife. In coming to

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this conclusion, the trial court relied on the oral evidence given by the plaintiffs and the brother of Narayanan and also the admission registers proved through the school authorities. In corroboration of the oral evidence, the scientific evidence based on DNA profiles of PWs.1 and 3 and PW2 Velayudhan were also relied on by the court below. The contention raised by the purchaser that he is a bona fide transferee for value was not accepted and ultimately the suit property was found to be

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partible fixing plaintiffs' share by 2/7.

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All the findings entered into by the court

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below are challenged in this appeal.

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The first question that arises for

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consideration is whether the finding that the plaintiffs are the children of Narayanan is based

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R.F.A.No.687 of 2011

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on evidence and legal.

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The issue as to whether fifth defendant,

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Chandramathi was married to Narayanan and defendants 1 to 4 were born to the couple does not arise for consideration and it has no relevance

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also. Since the property admittedly belonged to Narayanan, the sole question which is to be decided is whether the plaintiffs claiming co-ownership in the property are the children of deceased.

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There is contention in the plaint that the plaintiffs were born to Devaki who was the first wife of Narayanan. Strictly speaking, there is no convincing evidence in this respect. No marriage records are available or were produced. Except the oral testimony of PW2, brother of Narayanan, there is no satisfactory evidence in this respect. That question is not much relevant also.

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The formidable evidence which plaintiffs

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bank upon to prove the relationship with deceased

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R.F.A.No.687 of 2011

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Narayanan consists of Exts.A1 and A5 school admission registers. These registers were proved through the respective plaintiffs as well as the Headmaster. Ext.A5 admission register relates to first plaintiff whereas Ext.A1 register is related

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to second plaintiff, PW3. He was admitted to school on 5.6.1953. Shantha, PW1 was admitted to school on 20.5.1957. In both these records, the name of their father is shown as Narayanan. There is no contention by the defendants that these documents were not genuine.

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The learned counsel for the appellants submitted that evidence on record is quite insufficient to prove that parent Narayanan in the school records is the father of plaintiffs who owned the plaint schedule property. The trial court noticed the house name of Narayanan in Ext.A5 as Pooppilly in a place called Kundannur. There is no dispute that this was the address of Narayanan and

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R.F.A.No.687 of 2011

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further it is evident from Ext.A3 deed in which

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Narayanan himself was a party.

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In Ext.A1 admission register, though Narayanan's name is mentioned, the house name mentioned is different. It is quite natural to

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assume that by this time, the name of his residence changed. The school where second plaintiff was admitted is also different. So long as there is no dispute that second plaintiff is the sister of PW3, the difference in the residential address in Ext.A1 is quite irrelevant. Taking the school records along with the testimony of PW2 brother of Narayanan, the court below found that plaintiffs were the children of Narayanan. Brother Velayudhan spoke that plaintiffs were the children of Narayanan and they resided in Pooppilly house. Even in the absence of marriage records, PW2 said that

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before fifth defendant was married to Narayanan, he

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had first wife by name Devaki to whom the

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plaintiffs were born. Even though the learned counsel for the appellants submitted that the testimony given by PW2 is not convincing, on a reconsideration of the entire evidence on record

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and especially in the light of Exts.A1 to A5, I do not find any reason to disagree with the findings of the court below that the plaintiffs are the children of deceased Narayanan.

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It seems that the court below was satisfied with the conclusion arrived at in Ext.C1 DNA report endorsing the case of relationship set up by the plaintiffs. I am not going into the acceptability of Ext.C1 report or to the soundness of view taken by the court below drawing adverse possession against the defendants who did not co-operate for DNA profile analysis test by offering their blood.

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It suffices to say that evidence adduced through the school records as well as the corroborative oral evidence of Pws.1 to 3 is satisfactory and

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sufficient to conclude that plaintiffs are the children of deceased Narayanan.

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In view of this finding, it goes without saying that the plaintiffs are also co-owners of the suit property. The property was purchased by the sixth defendant under Ext.A4 sale deed dated 6.12.2006 and by all means, this document cannot bind the plaintiffs at all.

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The purchaser has put forth a contention that the purchase was made for consideration and without notice of any legal claims in favour of third parties. Whatever be the merit of this contention, it is not capable of defeating the right of the plaintiffs over suit property and claim partition. The remedy of the purchaser under law lies against the vendors who executed Ext.A4. I do not want to make any remark as to this question on merits.

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On reconsideration of entire evidence on

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R.F.A.No.687 of 2011

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record, I do not find any legal reason to interfere with the findings entered into by the court below and reverse the impugned decree and judgment as sought for by the appellants. The preliminary decree is liable only to be confirmed.

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In the result, appeal fails and it is

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dismissed. No costs.

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All pending interlocutory applications are

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closed.

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Sd/-

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T.V.ANILKUMAR JUDGE

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ami/

Ramakrishnan & Others v. Ramadas & Others

Case brief

What is this about?

What did the court decide?

Ramakrishnan & Others v. Ramadas & Others

Case brief

What is this about?

What did the court decide?

What the court decided

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