In this Regular Second Appeal challenging a partition decree, the High Court of Kerala held that the trial and first appellate courts correctly found the land to be self-acquired property. No substantial question of law arose.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE K. BABU
THURSDAY, THE 5TH DAY OF OCTOBER 2023 / 13TH ASWINA, 1945
RSA NO. 808 OF 2005
AGAINST THE ORDER/JUDGMENT OS 299/2002 OF MUNSIFF COURT,
ALATHUR
AS 256/2003 OF I ADDITIONAL DISTRICT COURT & I ADDITIONAL MOTOR ACCIDENT CLAIMS TRIBUNAL,PALAKKAD
APPELLANT/APPELLANT/1ST DEFENDANT:
CHANKURU @ NAPPAN, AGED 50 YEARS, S/O.LATE CHETHELAN, BUSINESS, RESIDING AT MOOPPUPARAMBU, KOTTANGOTTIL, KAVASSERY AMSOM DESOM, ALATHUR TALUK.
BY ADVS. SMT.JEENA JOSEPH SRI.G.D.PANICKER
RESPONDENTS/RESPONDENTS/2ND DEFENDANT:
1 KUNCHUMON, S/O.LATE CHETHELAN, AGED 57 YEARS, SWASTHAM, RESIDING AT MOOPPUPARAMBU, KOTTANGOTTIL, KAVASSERY AMSOM, DESOM, ALATHUR TALUK.
2 PARU ALIAS PARVATHI, AGED 45 YEARS D/O.LATE CHATHELAN, SWASTHAM, RESIDING AT EDATHARA VEEDU, KANNARA, P.O. ORAPPANPARA, THRISSUR TALUK AND DISTRICT.
BY ADVS. SRI.BABY MATHEW SRI.JOHNSON P.JOHN SRI.RAJU SEBASTIAN VADAKKEKKARA
THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 05.10.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
RSA NO. 808 OF 2005
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K. BABU, J.
R.S.A.No.808 of 2005
Dated this the 5th day of October, 2023
J U D G M E N T
The challenge in this Regular Second Appeal is to the judgment and decree dated 16.03.2005 in A.S.No.256 of 2003 passed by the District Judge, Palakkad which arose from the judgment and decree dated 25.06.2003 of the Munsiff’s Court, Alathur.
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RSA NO. 808 OF 2005
Palakkad. The First Appellate Court confirmed the
decree and judgment.
extent of 10 cents originally belonged to the Bagavathy Devaswom as Jenmom. The father of the plaintiff and 1st defendant, late Chethalan, obtained Verumpattam right from the Jenmy. Late Chethalan made improvements in the property. He died 30 years ago. His wife also died 5 years prior to the filing of the suit. The plaintiff purchased half cent of property by oral assignment and
joined the same to the larger extent. The property is lying as a single compact plot. After the death of their parents, the plaintiff as well as the defendants have been enjoying the property jointly. Physical possession has now become difficult. The plaintiff is entitled to the partition of the plaint schedule property by metes and bounds. Defendant No.1 challenged the pleadings contending that the plaint property is
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not the self acquired property of the deceased
Chethalan. It was only an ancestral property of the
family. So he is entitled to get 16/36 share.
held that the plaint schedule property is the self
acquired property of the deceased Chethalan and the plaintiff is entitled to the share as prayed for. The
1st defendant challenged the decree and judgment in
A.S.No.256 of 2003. The First Appellate Court confirmed the findings of the Trial Court that the the
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plaint schedule property is the self acquired property of the deceased Chethalan and that the plaintiff is entitled to the partition as prayed for.
appellant/plaintiff contended that the Trial Court as well as the First Appellate Court had failed to draw necessary inferences and presumptions based on the pleadings and evidence. The learned counsel further
contended that the concurrent findings entered by the courts below require interference.
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therefore 1st defendant is entitled to 16/36 share of the plaint schedule property. The 1st defendant raised a further contention that he had paid a sum of Rs.200/to the plaintiff towards his share and Rs.100/- to the 2nd defendant towards her share about 26 years ago. He also contended that he is in the exclusive possession of the plaint schedule property and even if the plaintiff has any right as the legal heir of the deceased Chethalan, the said right is lost by way of adverse possession and limitation.
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ancestral property of the parties. The oral evidence of plaintiff as PW1 corroborated by Exts.A1 to A4 make it clear that the plaint schedule property was the self acquired property of the deceased Chethalan. Therefore on the touch stone of the principle of preponderance of probabilities, the trial court as well as the First Appellate Court came to the conclusion that the plaint schedule property is the self acquired property of the father of the plaintiff, the deceased Chethalan and that he is entitled to partition as prayed for. The 1st defendant also raised a contention that 26 years back
he had given his due share to the plaintiff. While giving evidence he retracted from that version and admitted that he had not made any payment to the plaintiff. Therefore the credibility of DW1 to that effect is also under challenge. The First Appellate Court held that the pleadings set up by the 1st defendant to the effect that he had obtained right over the property by giving consideration to the tune of
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Rs.200/- is not credible, as such a right could have
been made only through a registered deed as provided in
the T.P.Act.
evidence and submissions on the both sides, this Court is of the view that no substantial questions of law arise in this Regular Second Appeal. The findings arrived at by the trial court as well as the First Appellate Court require no interference.
The appeal is dismissed as above.
K. BABU, JUDGE
AS
2 issues framed by the court
Whether the plaint schedule property is self-acquired or ancestral property of the deceased father.
Whether the appellant is entitled to partition of the property by metes and bounds.
CHANKURU @ NAPPAN
KUNCHUMON
PARU ALIAS PARVATHI
K. BABU
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
