Dismissed

Kundile Veettil Nanu v. C.Soumini & Others

Kerala HC25 Mar 2024RFA/805/2008

Case brief

AI extract

What is this about?

First defendant's appeal against a preliminary decree for partition of plaint item No.2 was dismissed. The court upheld the trial court's finding that the property is 'thavazhi' property, supported by the tenor of Ext.B1 assignment deed which repeatedly refers to the thavazhi's interest. The plea of non-joinder on the claim Kumaran had a son was unsubstantiated: applications to add voters-list evidence in appeal were rejected as no ground under Order XLI Rule 27 CPC was made out. Appeal dismissed without costs.

What the court decided

AI extract

Kundile Veettil Nanu Vs C.Soumini & Others — Partition | Kerala HC (2024)

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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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MONDAY, THE 25^TH DAY OF MARCH 2024 / 5TH CHAITHRA, 1946

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RFA NO. 805 OF 2008

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AGAINST THE DECREE AND JUDGMENT DATED 29.02.2008 IN OS NO.401 OF

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1993 OF ADDITIONAL SUB COURT, THALASSERY

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APPELLANT/DEFENDANT NO.1:

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KUNDILE VEETTIL NANU, AGED 63 YEARS, S/O.PAIDAL @ RAMUNNI, ERIVERI AMSOM, DESOM, P.O.MOWENCHERRY, KANNUR DISTRICT.

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BY ADV SRI.P.U.SHAILAJAN

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RESPONDENTS/PLAINTIFF & DEFENDANTS 2 TO 18:

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1 C.SOUMINI, W/O LATE KUMARAN, AGED 61 YEARS, KOTTACHUNDIL HOUSE, P.O.MOWANCHERRY, MUTHUKUTTY, KANNUR DISTRICT.

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2 KUNDILE VEETIL NANI, W/O.KUNHIRAMAN, MACHERI.P.O, MOWANCHERRY, KANNUR DISTRICT.

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3 KUNDILE VEETTIL JANU, W/O.RAGHAVAN, AGED 67 YEARS, RESIDING NEAR THILANNUR U.P.SCHOOL, PO CHOVVA, KANNUR DISTRICT.

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4 KUNDILE VEETTIL MATHU, W/O.KUMARAN, AGED 65 YEARS, RESIDING NEAR THILANNUR.U.P.SCHOOL, P.O.CHOVVA, KANNUR DISTRICT.

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5 KUNDILE VEETTIL LEELA, W/O.LAKSHMANAN, AGED 62 YEARS, PULLANHI VEEDU, CHALA.

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RFA NO. 805 OF 2008 -2-

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6	SOUMINI, D/O.NANI, PAROTH HOUSE, P.O.MOWANCHERRY, MACHERY, KANNUR DISTRICT.
7	BROTHER RAMACHANDRAN, S/O.NANI, PAROTH HOUSE, P.O.MOWANCHERRY, MACHERY, KANNUR DISTRICT.
8	BROTHER LAKSHMANAN, S/O.NANI, PAROTH HOUSE, P.O.MOWANCHERRY, MACHERY, KANNUR DISTRICT.
9	BROTHER PRABHAKARAN.K, S/O.NANI, PAROTH HOUSE,P.O.MOWANCHERRY, MACHERY, KANNUR DISTRICT.
10	BROTHER SAHADEVAN.K., S/O.NANI, PAROTH HOUSE, P.O.MOWANCHERRY, MACHERY, KANNUR DISTRICT.
11	SISTER PRASEEDA.K, D/O.NANI, PAROTH HOUSE, P.O.MOWANCHERRY, MACHERY, KANNUR DISTRICT.
12	AJITH KUMAR.C.P., S/O.JANU, CHATHOTH HOUSE, P.O.KUPPAD, THILANNU, KANNUR DISTRICT.
13	BROTHER SANTHOSH KUMAR.C.P., S/O.JANU, CHATHOTH HOUSE, P.O.KUPPAD, THILANNU, KANNUR DISTRICT.
14	SISTER SWARNA.C.P., D/O.JANU, CHATHOTH HOUSE, P.O.KUPPAD, THILANNU, KANNUR DISTRICT.
15	LATHIKA.P.K., D/O.KUNNOTH KUMARAN, P.O.CHOVVA, THILANUR.
16	SISTER SUNILA .P.K., DO.KUNNOTH KUMARAN, P.O.CHOVVA, THILANUR.

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RFA NO. 805 OF 2008 -3-

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17 BROTHER SUJESH.P.K., DO.KUNNOTH KUMARAN, P.O.CHOVVA, THILANUR. 18 BROTHER PRAJEESH.P.K., D/O.KUNNOTH KUMARAN, P.O.CHOVVA, THILANUR. BY ADVS. SRI.N.GOPINATHA PANICKER SRI.R.O.MUHAMED SHEMEEM SMT.NAMITHA JYOTHISH SRI.T.P.SAJID

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THIS REGULAR FIRST APPEAL HAVING COME UP FOR HEARING ON 25.03.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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SATHISH NINAN, J.

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= = = = = = = = = = = = = = = = = = R.F.A. No.805 of 2008

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= = = = = = = = = = = = = = = = = = Dated this the 25^th day of March, 2024

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J U D G M E N T

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Challenging the preliminary decree in a suit for

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partition, the first defendant is in appeal.

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The plaint schedule consists of 13 items of

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properties. The appellant confines the challenge in this

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appeal to plaint schedule item No.2

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One Kumaran who is the husband of the plaintiff,

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and defendants 1 to 5 are siblings. Ext.B1 is the title

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deed relating to the property. It is an assignment deed

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of the year 1938. Ext.B1 is in favour of Kumaran, his brother-the second defendant and their mother Kalyani.

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The trial court held that plaint schedule item No.2 is a 'thavazhi' property. Preliminary decree for partition was passed accordingly. The first defendant-

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R.F.A. No.805 of 2008

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-: 2 :-

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appellant challenges the finding of the trial court that

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the property is a 'thavazhi' property. It is an individual acquisition, it is contended. It is also urged that, the son of Kumaran having not been impleaded, the suit is bad for non-joinder of necessary parties.

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I have heard learned counsel on either side.

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The points that arise for deterimination

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are :-

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(i) Is the finding of the trial court that plaint

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schedule item No.2 property is a 'thavazhi' property, sustainable on the materials?

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(ii) Is the suit bad for non-joinder of

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necessary parties ?

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R.F.A. No.805 of 2008

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-: 3 :-

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A reading of the plaint reveals that, it was the

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contention of the plaintiff that the property in question is the self acquisition of the three persons named in Ext.B1. However, during the course of evidence PW1 admitted that the property is a 'thavazhi' property and that it can be partitioned accordingly. It is pursuant thereto that the trial court passed a decree accordingly. A reading of Ext.B1 document justifies acquisition for the 'thavazhi'. The interest of the 'thavazhi' is repeatedly stated therein. Therefore, the finding of the trial court that the property is a 'thavazhi' property, is based on materials. Incidentally it is to be noticed that, before the trial court the first defendant did not have a case that the property is not a 'thavazhi' property. The contention was that, the document Ext.B1 was not acted upon. Suffice to notice that the finding of the trial court that plaint schedule

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item No.2 is a 'thavazhi' property warrants no

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R.F.A. No.805 of 2008

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-: 4 :-

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interference.

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Coming to the plea of non-joinder, it is the

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case of the plaintiff that no issues were born to Kumaran. The appellant would contend that Kumaran had a son. Before the trial court, but for the bald plea the appellant adduced no evidence in the said regard. Before this Court, the appellant seeks to produce copy of the voters list as additional evidence to contend that Kumaran had a son. A counter affidavit has been filed by

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the plaintiff producing birth certificate of the person named in the voters list to contend that the said person

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is not the son of Kumaran. I do not think that the documents are to be accepted in this appeal. The appellant could have produced relevant documents before

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the trial court which he did not choose to do. None of the grounds mentioned under Order XLI Rule 27 of the Code of Civil Procedure, to accept additional evidence, has been made out by the appellant. Therefore, the

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R.F.A. No.805 of 2008

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-: 5 :-

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applications to accept additional evidence are only to be rejected. I find that the plea of non-joinder is not substantiated.

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The contentions urged by the appellant are thus held against.

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Resultantly, appeal fails and is dismissed. No

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costs.

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Sd/-

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SATHISH NINAN JUDGE

kns/-

//True Copy//

P.S. to Judge

APPENDIX OF RFA 805/2008

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RESPONDENT ANNEXURES

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ANNEXURE 1 TRUE COPY OF THE LEGAL HEIRSHIP CERTIFICATE, DATED 4/7/1991 ISSUED BY THE TAHSILDAR, KANNUR TO 1ST RESPONDENT ANNEXURE 2 TRUE COPY OF THE BIRTH CERTIFICATE OF SUSHANTH, DATED 15/03/2016 ISSUED BY THE ANJARAKANDY GRAMA PANCHAYATH

Kundile Veettil Nanu v. C.Soumini & Others

Case brief

What is this about?

What the court decided

Kundile Veettil Nanu v. C.Soumini & Others

Case brief

What is this about?

What the court decided

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Statutes considered

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