Allowed

Gowriyamma Pillai Naliniyamma Pillai v. Parameswaran Pillai Krishnadas

Kerala HC12 Jul 2024RSA/1065/2006

Case brief

AI extract

What is this about?

Second appeal in a partition suit where the appellant sought to add a 1996 sale deed as additional evidence showing she bought the mother's one-third right. The High Court admitted the document, framed a question of law, and modified the Preliminary Decree allotting two-thirds to the appellant and one-third to the plaintiff.

What did the court decide?

Appeal allowed; Preliminary Decree modified allotting 1/3 share to plaintiff and 2/3 share to 2nd defendant; no costs.

Gowriyamma Pillai Naliniyamma Pillai Vs Parameswaran Pillai… — 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 M.A.ABDUL HAKHIM

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FRIDAY, THE 12^TH DAY OF JULY 2024 / 21ST ASHADHA, 1946

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RSA NO. 1065 OF 2006

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MEMORANDUM OF REGULAR SECOND APPEAL FILED UNDER SECTION 100 OF THE CP CODE AGAINST THE DECREE AND JUDGMENT DATED 06.08.2004 IN AS NO.99 OF 1999 OF

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ADDITIONAL DISTRICT COURT-I,MAVELIKKARA ARISING FROM THE DECREE AND JUDGMENT DT 21.12.1998 IN OS NO.57 OF 1996 OF MUNSIFF COURT, MAVELIKKARA APPELLANT/2ND RESPONDENT/ 2ND DEFENDANT:

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GOWRIYAMMA PILLAI NALINIYAMMA PILLAI KONNEKKATTU VEEDU, KADAVOOR MURI,, KANNAMANGALAM VILLAGE.

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BY ADVS.

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SRI.GEORGE VARGHESE(PERUMPALLIKUTTIYIL) SRI.A.R.DILEEP SMT.SREELEKHA PUTHALATH

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RESPONDENT/APPELLANT/PLAINTIFF:

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PARAMESWARAN PILLAI KRISHNADAS, KONNAKKATTU VEEDU, KANNAMANGALAM VILLAGE.

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THIS REGULAR SECOND APPEAL HAVING BEEN FINALLY HEARD ON 12.07.2024,

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THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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RSA.No.1065 of 2006

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M.A.ABDUL HAKHIM J.

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RSA.No.1065 of 2006

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Dated this the 12^th day of July 2024

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JUDGMENT

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The Second Defendant in a suit for partition filed by the 1^st respondent,

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has filed this Regular Second Appeal challenging the Preliminary Decree passed by the First Appellate Court in A.S.No.99 of 1999.

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The plaintiff filed O.S.No.57/1996 of the Munsiff’s Court, Mavelikkara for partition contending that the plaintiff and the defendants 1 and 2 who are his mother and sister jointly obtained ownership and possession of the plaint schedule property as per Ext.A1/B3 Partition Deed and the same is liable to be partitioned by among the plaintiff and the defendants 1 & 2 equally by metes and bounds.

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The Trial Court dismissed the suit by judgment dated 21/12/1998 finding that till the plaintiff is declared as Krishnadas, the son of the first

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RSA.No.1065 of 2006

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defendant and the brother of the 2^nd defendant by the competent court of law, he is not entitled to any share in the plaint schedule property.

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In A.S.No.99/1999 filed by the plaintiff, the First Appellate Court held that the plaintiff has established his status as the son of the first defendant and he is the person mentioned in Ext.B3 Partition Deed as Krishnadas and he is entitled to get share in the plaint schedule property.

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Taking note of the death of the first defendant during the pendency of the appeal, the First Appellate Court passed a Preliminary Decree for partition, dividing the plaint schedule property in two equal shares allotting one such share to the plaintiff and one such share to the second defendant.

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This Court admitted the Appeal on 21/4/2006 without formulating substantial questions of law. Though the case was posted to 28/2/2007

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RSA.No.1065 of 2006

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to formulate substantial questions of law, it is seen that no substantial question of law is framed.

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The appellant filed I.A.No.431/2007 seeking permission to produce original Document No.1402/96 dated 08/05/1996 of SRO, Mavelikkara as additional evidence in the appeal. The said document is executed by the first defendant mother selling her 1/3 right in the plaint schedule property to the appellant.

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The Learned Counsel for the appellant submitted that the First Appellate Court disposed the appeal without taking note of the said document. If the First Appellate Court had noticed the said document, the First Appellate Court would have passed the Preliminary Decree allotting 2/3 share to the appellant, 1/3 share to the first respondent.

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In view of the said document the appellant is entitled to get 2/3 of the plaint schedule property and hence I allow I.A.No.431/2007 accepting the original Document No.1402/96 dated 08/05/1996 of SRO,

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RSA.No.1065 of 2006

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Mavelikkara as the additional evidence in this appeal. It is marked as Ext.B4. In the light of Ext.B4 additional evidence, the following question of law is framed.

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Whether the Preliminary Decree passed by the First Appellate Court is correct in view of Ext.B4 document produced by the appellant?

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I find that the Preliminary Decree passed by the First Appellate Court is not correct in view of Ext.B4 document. The same is liable to be modified allotting 2/3 share to the appellant/2^nd defendant and 1/3 share to the first respondent/Plaintiff.

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Hence the Regular Second Appeal is allowed without costs modifying the Preliminary Decree for partition passed by the First Appellate Court Judgment allotting 1/3 share to the Plaintiff and 2/3 share to the 2^nd defendant.

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Sd/-

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M.A.ABDUL HAKHIM JUDGE

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dpk

Gowriyamma Pillai Naliniyamma Pillai v. Parameswaran Pillai Krishnadas

Case brief

What is this about?

What did the court decide?

Gowriyamma Pillai Naliniyamma Pillai v. Parameswaran Pillai Krishnadas

Case brief

What is this about?

What did the court decide?

What the court decided

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