## **IN THE HIGH COURT OF KERALA AT ERNAKULAM**
## **PRESENT**
**THE HONOURABLE MR.JUSTICE N.ANIL KUMAR**
**WEDNESDAY, THE 10TH DAY OF MARCH 2021 / 19TH PHALGUNA, 1942**
**RSA.No.268 OF 2019**
**AS 14/2017 OF SUB COURT, PERUMBAVOOR**
**OS 61/2014 OF MUNSIFF COURT, KOLENCHERRRY**
## **APPELLANT/APPELLANT/DEFENDANT:**
**ABRAHAM, AGED 58 YEARS, S/O. DANIEL, ARIYAMPURATHUKUDIYIL HOUSE, KADAMATTOM KARA, AIKKARANADU NORTH VILLAGE, KUNNATHUNADU THALUK.**
**BY ADVS. SRI.JOY C. PAUL SRI.S.V.BALAKRISHNA IYER (SR.)**
## **RESPONDENTS/RESPONDENTS/PLAINTIFFS:**
- **1 PAULOSE @ MATHAI, AGED ABOUT 71 YEARS, S/O. MATHAI, MANGUDIYIL HOUSE, MULAMUKUZHI KARA, MALAYATTOOR VILLAGE, ALUVA THALUK, PIN-683587.**
- **2 BABU, S/O. MATHAI, AGED ABOUT 57 YEARS, MANGUDIYIL HOUSE, MULAMKUZHI KARA, MALAYATTOOR VILLAGE, ALUVA TALUK, PIN-683587.**
- **3 EALIKUTTY, W/O. JACOB, AGED 62 YEARS, KUTHUPARACKAL HOUSE, MULAMKUZHI KARA, MALAYATTOOR VILLAGE, ALUVA TALUK, PIN-683587.**
- **4 ANNAKUTTY, W/O. JOSEPH, AGED ABOUT 59 YEARS, KUDIYIRUTHYIL HOUSE, RAMAPURAM BAZAAR P.O,VELLILAPILLY VILLAGE, MEENACHIL THALUK, PIN-686576,**
- **5 BIMY BABU, W/O. BABU, AGED ABOUT 42 YEARS, KANDRACHIYIL HOUSE, ALPPARA POST, KANJIKKUZHI VILLAGE, IDUKKI DISTRICT, PIN-685602.**
- **6 JOY, S/O. MATHAI, AGED ABOUT 67 YEARS, MOLEKKUDIYIL HOUSE, KARUKUTTY VILLAGE, KARUKUTTY KARA, ALUVA TALUK, PIN-683576.**
- **7 LISSY, AGED 50 YEARS, W/O. CHACKO, THUDINAKKUDIYIL HOUSE, VADAVUCODE KARA, VADAVUCODE VILLAGE, KUNNATHUNADU THALUK, PIN-682310.**
**R2-5 BY ADV. SRI.JOBY JACOB PULICKEKUDY R2-7 BY ADV. SRI.ANIL GEORGE R6 BY ADV. JOBY JACOB PULICKEKUDY ( CAVEATOR) R7 BY ADV. JOBY JACOB PULICKEKUDY (CAVEATOR)**
**THIS REGULAR SECOND APPEAL HAVING BEEN FINALLY HEARD ON 03-03-2021, THE COURT ON 10-03-2021 DELIVERED THE FOLLOWING:**
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## **JUDGMENT**
This Regular Second Appeal is filed by the defendant in O.S.No.61/2014 on the file of the Munsiff's Court, Kolenchery (hereinafter referred to as 'the trial court'). The suit was for partition of the plaint A schedule property having an extent of 53 cents in Re.Sy.No.272/1 of Aikkaranadu North Village, Kunnathunadu Taluk. The trial court had decreed the suit. Challenging the decree and judgment, the defendant preferred A.S.No.14/2017 before the Sub Court, Perumbavoor (hereinafter referred to as 'the first appellate court'). The first appellate court modified the decree and judgment as hereinbelow:-
_“In the result, appeal is allowed in part and a modified preliminary decree is passed as follows:-_
_1. Plaint schedule property shall be divided into three equal parts by metes and bounds._
_2. Plaintiffs 1 to 5 are entitled to get_
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_1/3 share in the plaint schedule property._
_3. Plaintiff No.6 is entitled to get 1/3 share in the plaint schedule property._
_4. Defendant is entitled to get 1/3 share in the plaint schedule_
_property._
_5. Plaintiffs and defendant are_
_entitled to be put in separate possession of their share in plaint schedule property._
_6. Costs of the suit shall bear out of the estate._
_7. Parties are at liberty to file application for passing final decree within one month from today._
_8. Suit is adjourned sine a die.”_
2. The plaint averments in brief are hereinbelow:-
Abraham, who was the predecessor of the plaintiffs and defendant, was possessing plaint schedule property as per Ext.A1. Abraham died intestate. The plaint
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schedule property devolved upon the children of Abraham, i.e., Daniel, Mariyamma and Saramma. Daniel, Mariyamma and Saramma are no more. Plaintiffs 1 to 4 are the children of Mariyamma. Mariyamma's husband Mathai, her daughter Sosamma and Sosamma's husband Abraham passed away. The 5[th] plaintiff is the daughter of Sosamma and the 6[th] plaintiff is the sole legal heir of Saramma. The 7[th] plaintiff and defendant are children of Daniel. The parties are governed by Indian Succession Act. The plaintiffs and defendant are the co-owners of plaint schedule property.
3. The defendant filed written statement contending that the plaint schedule property was given to Abraham under a 'patta chit' by Kadamattom church. Abraham was cultivating the property. Subsequently, the property was in the possession of Daniel, who is the father of defendant, for a long time. In the year 1977,
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Government issued patta as per the Land Assignment Act, 1964 to Daniel. The plaint schedule property was in the possession and enjoyment of Daniel. Daniel transferred the plaint schedule property to the defendant as per a registered deed with the knowledge of the plaintiffs. The plaint schedule property is not partible.
4. Heard Sri.S.V.Balakrishna Iyer, the learned Senior Counsel for the appellant and Sri.Joby Jacob Pulickekudy and Sri.Anil George, the learned counsel for the respondents.
5. In **Mrs.Mary Roy, etc. v. State of Kerala & others [AIR 1986 (SC) 1011]** , the Apex Court held that on the coming into force of Part B States (Laws) Act, 1951 the Travancore Christian Succession Act, 1092 stood repealed and Chapter II of Part V of Indian Succession Act, 1925 became applicable and intestate succession to the property of members of Indian Christian community in
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the territories of the erstwhile State of Travancore was thereafter governed by Chapter II of Part V of the Indian Succession Act, 1925. In the case on hand, the original owner of the scheduled property late Abraham had three children, namely, Daniel, Mariyamma and Saramma. Daniel, Mariyamma and Saramma are no more. The plaintiffs 1 to 4 are the children of Mariyamma. The 5[th] plaintiff is the daughter of Sosamma. The 6[th] plaintiff is the legal heir of Saramma. The defendant is the son of Daniel. The trial court decreed that the plaintiffs 1 to 5 are jointly entitled to get 1/3[rd] right of Mariyamma and the 6[th] plaintiff is entitled to get 1/3[rd] right of Saramma. The only contention raised by the defendant is that the father of the defendant executed Ext.A5 gift deed in his favour and he became the absolute owner in possession of the property. Ext.A5 would indicate that the predecessor of the defendant is none other than Abraham, the common
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predecessor of Mariyamma and Saramma. The plaintiffs are claiming right under Mariyamma and Saramma. In view of the recital in Ext.A5 that the plaint schedule property originally belonged to Abraham, it is natural that Daniel had no right to execute Ext.A5 in respect of the entire property without the junction of other co-owners. This finding is absolutely right and no interference is warranted in second appeal.
6. A second appeal is not a matter of right. The right of appeal is conferred by statute. A second appeal only lies on a substantial question of law. If statute confers a limited right of appeal, the Court cannot expand the scope of the appeal. It was not open to the defendant to re-agitate facts or to call upon the High Court to reanalyse or re-appreciate evidence in a second appeal. In the case on hand, both the trial court and the first appellate court relied on the oral evidence of PWs.1 and 2,
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Exts.A1 to A5, DW1 and Ext.B1 to grant a preliminary decree for partition.
7. On behalf of the appellant, it has strenuously been contended with considerable force that the plaintiffs have no right over the plaint schedule property. However, there is no contra evidence adduced by the defendant to prove a probable case that the plaintiffs are not the legal heirs of Abraham the common predecessor of the plaintiffs and defendant. To be “substantial”, a question of law must be debatable, not previously settled by the law of the land or any binding precedent, and must have a material bearing on the decision of the case and/or the rights of the parties before it, if answered either way. There is no debatable issue before this Court which is not covered by settled principles of law or precedents.
8. The trial court and the first appellate court examined the evidence on record at length and arrived at
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a reasoned conclusion that the plaintiffs are entitled to get a preliminary decree for partition. The concurrent findings of facts of the trial court and the first appellate court do not warrant interference in a second appeal.
9. The learned Senior Counsel for the appellant submitted that there is a building in the plaint schedule property which has been constructed by the defendant expending money exclusively belonged to him. According to the learned Senior Counsel, if the preliminary decree is allowed to stand without any change whatsoever, the plaintiff will be put to irreparable hardship and injury. Responding to the submission, the learned counsel for the respondents on instructions submits that the respondents have no objection in providing the house in the plaint schedule property to the appellant as far as possible and the same is workable in final decree proceedings. The submission is recorded. The trial court may consider this
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aspect in the final decree proceedings in accordance with law.
For the reasons discussed above, the R.S.A. is dismissed. There will be no order as to costs. Pending applications, if any, stand disposed of.
**Sd/N.ANIL KUMAR, JUDGE**
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