Dismissed

Chalikandi Peedikayil Kunhamina v. K.R.Kunhimmayan

Kerala HC7 Feb 2022AS/480/1999

Case brief

AI extract

What is this about?

The High Court dismissed the appeal against the trial court's dismissal of a partition suit. The Court held that a leasehold right obtained by a deceased father under a paper executed by his mother was fully devolved upon his children (the defendants) upon the mother's death, merging into their absolute title, leaving nothing for the appellants.

What did the court decide?

Second appeal to the High Court is dismissed. No costs.

Chalikandi Peedikayil Kunhamina Vs K.R.Kunhimmayan — Partition | Kerala HC (2022)

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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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MONDAY, THE 7^th DAY OF FEBRUARY 2022 / 18TH MAGHA, 1943

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AS NO. 480 OF 1999 (G)

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AGAINST THE JUDGMENT AND DECREE DATED 27.02.1999 IN OS No.236/1995 OF

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ADDITIONAL SUB COURT, THALASSERY

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APPELLANTS/PLAINTIFFS:

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1 CHALIKANDY PEEDIKAYIL KUNHAMINA, AGED 45 YEARS, D/o VALIYA MAMMU, RESIDING IN PUDUVILAYI AMSOM, VENGAD DESOM, THALASSERY TALUK, KANNUR DISTRICT. 2 CHALIKANDY PEEDIKAYIL KUNHAMMAD, AGED 28 YEARS, S/o CHALIKANDY PEEDIKAYIL KUNHAMINA, RESIDING IN PUDUVILAYI AMSOM, VENGAD DESOM, THALASSERY TALUK, KANNUR DISTRICT.

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BY ADVS. SRI.K.MOHANAKANNAN SMT.M.A.ZOHRA

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RESPONDENTS/DEFENDANTS:

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1	K.R.KUNHIMMAYAN, S/o KUTTIATH, 66 YEARS OF AGE, (DIED) BUSINESS, V.B. HOUSE, KUTHUPARAMBA AMSOM, NARAVOOR DESOM, THALASSERY TALUK, KANNUR DISTRICT.
2	K.N. PATHOOTTY (KUNHI NELLI), AGED 67 YEARS, THAIPARAMBIL HOUSE, KUTHUPARAMBA AMSOM (DIED)
3	K.R. SIDDIQU, AGED 37 YEARS, S/o NABEESU, BUS OWNER, KUTHUPARAMBA AMSOM, NAVOOR DESOM.
4	AZEEZ, AGED 35 YEARS, S/o NABEESU, BUS OWNER, KUTHUPARAMBA AMSOM, NARAVOOR DESOM. (DIED)
5	K.R. SUHARA, AGED 31 YEARS, D/o NABEESU, KUTHUPARAMBA AMSOM, NARAVOOR DESOM.
6	K.R. AYISHA, AGED 29 YEARS, D/o NABEESU, KUTHUPARAMBA AMSOM, NARAVOOR DESOM.
7	K.R. SHADIA, AGED 26 YEARS, D/o NABEESU, KUTHUPARAMBA AMSOM, NARAVOOR DESOM.

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AS No.480 of 1999

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ADDL.R8 V.B. BEEVI, W/o KUNHIMAYIN BANGLA, KUTHUPARAMBA, NEAR PUMP HOUSE, KUTHUPARAMBA.

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ADDL.R9 RABIA V.B., D/o KUNHIMAYIN BANGLA, KUTHUPARAMBA, NEAR PUMP HOUSE, KUTHUPARAMBA.

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ADDL.R10 V.B.AZEEZ, S/o KUNHIMAYIN BANGLA, KUTHUPARAMBA, NEAR PUMP HOUSE, KUTHUPARAMBA.

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ADDL.R11 V.B ASHRAF, S/o KUNHIMAYIN BANGLA, KUTHUPARAMBA, NEAR PUMP HOUSE, KUTHUPARAMBA.

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ADDL.R12 V.B. SHAHIDA, D/o KUNHIMAYIN BANGLA, KUTHUPARAMBA, NEAR PUMP HOUSE, KUTHUPARAMBA.

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ADDL.R13 V.B. KADER, S/o KUNHIMAYIN BANGLA, KUTHUPARAMBA, NEAR PUMP HOUSE, KUTHUPARAMBA.

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ADDL.R14 V.B. NASEEMA, D/o KUNHIMAYIN BANGLA, KUTHUPARAMBA, NEAR PUMP HOUSE, KUTHUPARAMBA.

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ADDL.R15 V.B. NASARI, D/o KUNHIMAYIN BANGLA, KUTHUPARAMBA, NEAR PUMP HOUSE, KUTHUPARAMBA.

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(ADDL.R8 TO R15 IMPLEADED AS THE LEGAL REPRESENTATIVES OF THE DECEASED R1 AS PER ORDER DATED 29.01.2008 IN CMP No.949/01).

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ADDL.R16 K.N. AKBAR, S/o LATE K.N. PATHOOTTY (KUNHI NALLI), TAHAIPARAMBIL HOUSE, KUTHUPARAMBA AMSOM, AMBILAD, KANNUR DISTRICT. (DIED)

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(LEGAL HEIR OF THE DECEASED R2 IS IMPLEADED AS SUPPLEMENTAL RESPONDENT No.16 AS PER ORDER IN I.A. 652/08 DATED 04.01.2010)

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ADDL.R17 NASEEMA, W/o AZEEZ, KUTHUPARAMB AMSOM, NARAVOOR DESOM.

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ADDL.R18 MUHAMMED AFINAS, S/o AZEEZ, AGED 10 YEARS, KUTHUPARAMB AMSOM, NARAVOOR DESOM.

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ADDL.R19 NABEESATHMOL AFSEENA, AGED 8 YEARS, D/o AZEEZ, KUTHUPARAMB AMSOM, NARAVOOR DESOM

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(LEGAL HEIRS OF THE DECEASED R4 ARE IMPLEADED AS SUPPLEMENTAL RESPONDENTS 17 TO 19 AS PER ORDER DATED 19.3.2010 IN I.A. 4560/2009).

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ADDL.R20 ALEEMA, W/o AKBAR, TAHAIPARAMBIL HOUSE,

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AS No.480 of 1999

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KUTHUPARAMBA AMSOM, AMBILAD, KANNUR DISTRICT

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ADDL.R21 MUHAMMED BASHEER K.N, S/o AKBAR, TAHAIPARAMBIL HOUSE, KUTHUPARAMBA AMSOM, AMBILAD, KANNUR DISTRICT

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ADDL.R22 RAHMATH BEEVI K.N, D/o AKBAR, TAHAIPARAMBIL HOUSE, KUTHUPARAMBA AMSOM, AMBILAD, KANNUR DISTRICT

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ADDL.R23 AYISHA BEEVI K.N, D/o AKBAR, TAHAIPARAMBIL HOUSE, KUTHUPARAMBA AMSOM, AMBILAD, KANNUR DISTRICT

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ADDL.R24 SEENATH BEEVI K.N, D/o AKBAR, TAHAIPARAMBIL HOUSE, KUTHUPARAMBA AMSOM, AMBILAD, KANNUR DISTRICT

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ADDL.R25 MUHAMMED SHAMEER K.N, S/o AKBAR, TAHAIPARAMBIL HOUSE, KUTHUPARAMBA AMSOM, AMBILAD, KANNUR DISTRICT

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ADDL.R26 MUHAMMED SHAJEER K.N., S/o AKBAR, TAHAIPARAMBIL HOUSE, KUTHUPARAMBA AMSOM, AMBILAD, KANNUR DISTRICT

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ADDL.R27 SHAMEENA.K.N, D/o AKBAR, TAHAIPARAMBIL HOUSE, KUTHUPARAMBA AMSOM, AMBILAD, KANNUR DISTRICT

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ADDL.R28 SHAMEERA BEEVI K.N, D/o AKBAR, TAHAIPARAMBIL HOUSE, KUTHUPARAMBA AMSOM, AMBILAD, KANNUR DISTRICT (LRs OF DECEASED R16 ARE IMPLEADED AS ADDITIONAL R20 TO 28 VIDE ORDER DATED 10.1.2022 IN IA 1/2018)

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R7,9,10, 11 & 14 BY ADV. A.C.VIDHYA R16 BY ADV. SRI.R.O.MUHAMMED SHEMEEM

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R16 & R21 BY ADV. SRI.T.P.SAJID

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R3,5,6,12, 17 TO 19 BY ADV. MAHESH V. RAMAKRISHNAN

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THIS APPEAL SUITS HAVING COME UP FOR HEARING ON 07.02.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

AS No.480 of 1999

JUDGMENT

A suit for partition was dismissed by the trial court against which the plaintiffs, the wife and son of one deceased Kunhalikutti, came up in appeal. They claim right,

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title and interest over the property based on Ext.A1 marupattam (lease) over the property. Admittedly, this

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property was earlier subjected to a court sale in

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O.S.No.933/1935, wherein based on the order in I.A.No.725/1935, Katheessumma, the wife of Kuttiatha, bid

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the property. Kuttiatha is the father of deceased Kunhalikutti. Admittedly, Kunhalikutty predeceased his mother, i.e. Katheessumma. It is the case of plaintiffs that subsequently Kuttiatha, the father, obtained leasehold right over the property under Ext.A1, dated 23.03.1939,

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from Katheessumma. It is contended by the defendants that

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the said document is only a sham document, hence the trial court dismissed the suit.

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Heard both sides. It is a case wherein admittedly

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the property was obtained by Katheessumma under a court

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AS No.480 of 1999 5

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sale in an earlier suit - O.S.No.933/1935 by virtue of

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order in I.A.No.725/1935. It is the case of plaintiffs that

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the husband of the first plaintiff, who is the father of deceased Kunhalikutty, had obtained leasehold right over the property under Ext.A1, dated 23.03.1939, and after his death one share over the property would devolve upon her deceased husband, hence they claim for partition. There is some misconception of legal issue involved in the case. It is a property originally owned by a judgment debtor in O.S.No.933/1935 which was put in execution and the wife of Kuttiatha viz. Katheessumma obtained the property under

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court sale. Even going by the case advanced by the plaintiffs, it is clear that they are claiming right over the property based on Ext.A1, dated 23.03.1939, in the name of father Kuttiatha, executed by his wife Katheessumma. But

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it is only a lease deed. Only a leasehold right was given under Ext.A1 document. After the death of Katheessumma, her children, the defendants in the suit, became the legal

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heirs and successors-in-interest of the property. It was

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not included in the earlier partition deed of the year

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1944, but was left out at the time of death of

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AS No.480 of 1999 6

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Katheessumma. In fact, Katheessumma is the owner of the property and the leasehold right held by her husband over the property on his death was devolved upon his children including Kunhalikutty. By that time, the other legal

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heirs, the defendants herein, had obtained title over the property and thereby the leasehold right was merged in their title. Nothing was left out at the time of her death to the legal heirs of deceased Kunhalikutty. Hence, the appeal fails. The suit has been rightly dismissed by the trial court and hence deserves no interference. The appeal is dismissed. No costs.

Sd/-

P.SOMARAJAN

JUDGE

DMR/-

Chalikandi Peedikayil Kunhamina v. K.R.Kunhimmayan

Case brief

What is this about?

What did the court decide?

Chalikandi Peedikayil Kunhamina v. K.R.Kunhimmayan

Case brief

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