## **IN THE HIGH COURT OF KERALA AT ERNAKULAM**
## **PRESENT**
**THE HONOURABLE MR. JUSTICE A.M.BABU**
**THURSDAY, THE 29TH DAY OF AUGUST 2019 / 7TH BHADRA, 1941**
## **RSA.No.849 OF 2019**
## **AGAINST THE ORDER/JUDGMENT IN AS 195/2014 DATED 05-03-2019 OF ADDITIONAL DISTRICT COURT-I,MAVELIKKARA**
**AGAINST THE ORDER/JUDGMENT IN OS 249/2011 DATED 30-09-2014 OF MUNSIFF COURT,KAYAMKULAM**
## **APPELLANT/S:**
- **1 KAMALAMMA PILLAI, AGED 82 YEARS, D/O.KARTHYAYANI PILLAI, SREEPALAZHI VEEDU, CHERAVALLY MURI, KAYAMKULAM VILLAGE, ALAPPUZHA-690 502.**
- **2 SARASAMMA PILLAI,AGED 80 YEARS, D/O.KARTHYAYANI PILLAI, SREEPALAZHI VEEDU, CHERAVALLY MURI, KAYAMKULAM VILLAGE, ALAPPUZHA-690 502.**
- **3 VIJAYAMOHANAN,AGED 68 YEARS S/O.RAGHAVAN PILLAI, PUTHUPURACKAL MEKKATHIL VEEDU, CHERAVALLY MURI, KAYAMKULAM VILLAGE, ALAPPUZHA-690 502.**
**BY ADVS. SRI.P.B.KRISHNAN SRI.P.M.NEELAKANDAN SRI.P.B.SUBRAMANYAN SRI.SABU GEORGE SRI.MANU VYASAN PETER**
## **RESPONDENT/S:**
- **1 MUKUNDAN NAIR @ MUKUNDAN PILLAI,AGED 76 YEARS, S/O.KRISHNA PILLAI, KUZHIYAM VEEDU, CHERAVALLY MURI, KAYAMKULAM VILLAGE, ALAPPUZHA-690 502.**
- **2 LEKSHMIKUTTIAMMA,AGED 75 YEARS, W/O.VASUDEVAN PILLAI, KADUTHOOTTIL LEKSHMI BHAVAN, PAYIKUZHI MURI, OCHIRA VILLAGE, KOLLAM-690526.**
- **3 SREEJA,AGED 52 YEARS, D/O.VASUDEVAN PILLAI, KADUTHOOTTIL LEKSHMI BHAVAN, PAYIKUZHI MURI, OCHIRA VILLAGE, KOLLAM690526.**
- **4 JYOTHI,AGED 48 YEARS, D/O.VASUDEVAN PILLAI, KADUTHOOTTIL LEKSHMI BHAVAN, PAYIKUZHI MURI, OCHIRA VILLAGE, KOLLAM690526.**
- **5 PRASANTH,AGED 44 YEARS, S/O.VASUDEVAN PILLAI, KADUTHOOTTIL LEKSHMI BHAVAN, PAYIKUZHI MURI, OCHIRA VILLAGE, KOLLAM690526.**
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|**6**|**REMAKUMARI,AGED 50 YEARS, D/O.BHARGAVI PILLAI,**|
|---|---|
||**KRISHNAPURATHU HOUSE, ARYAD SOUTH, KOMALAPURAM,**|
||**AVALUKKUNNU P.O., ALAPPUZHA-688006.**|
|**7**|**RAJALAKSHMI,AGED 48 YEARS, D/O.BHARGAVI PILLAI,**|
||**OOTTUPURA VADAKKATHIL HOUSE, SREEKRISHNA SWAMY TEMPLE,**|
||**KRISHNAPURAM P.O., ALAPPUZHA-690533.**|
|**8**|**RAJESH BABU,AGED 47 YEARS, S/O.BHARGAVI PILLAI, CHANDRA**|
||**BHAVANAM, VALLIKUNNAM P.O., ALAPPUZHA-690501.**|
## **R1, R3 BY ADV. SREELAL WARRIER**
**THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 29.08.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:**
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## **JUDGMENT**
The suit was for partition and injunction. The defendants made a counter-claim for partition. The suit was decreed to pass a preliminary decree for partition. The relief of injunction was not granted. The counter-claim was dismissed. The defendants filed appeal. Their appeal was dismissed. They are therefore in second appeal.
2. The case of the plaintiffs is summarized below: The plaint A schedule properties belonged to Karthiyayani Pillai. She was the mother of Devaki Pillai, Vasudevan Pillai and the first plaintiff. Plaintiff 2 is the widow and plaintiffs 3 to 5 are the children of Vasudevan Pillai. The plaint B schedule properties belonged to Devaki Pillai. Karthiyayani Pillai, Devaki Pillai and Vasudevan Pillai died. Devaki Pillai died as an issueless spinster. The first plaintiff is entitled to 1/5 share in the plaint schedule properties and plaintiffs 2 to 5 together have 1/5 share.
3. Defendants 1 to 3 had the following contentions: The A schedule item nos 1 and 2 properties belonged to Karthiyayani Pillai. The A schedule item no.3 property exclusively belonged to the second defendant. Defendants 1 to 3 have transferred their right in the plaint schedule properties in favour of the 4[th] defendant. The suit is bad for partial partition since 4½ cents of property
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owned by Devaki Pillai is not sought to be partitioned. She executed a gift deed in respect of the said 4½ cents of property in favour of the first plaintiff and Vasudevan Pillai. They accepted the said property as their share in the property of Devaki Pillai. Therefore the plaintiffs are not entitled to claim partition of the B schedule property.
4. The counter-claim was made seeking partition of the aforesaid 4 ½ cents of property which was owned by Devaki Pillai. The plaintiffs filed written-statement to the counter-claim contending that the said property was not available for partition since Devaki Pillai had gifted it to the first plaintiff and Vasudevan Pillai.
5. The rival parties have adduced evidence before the trial court. PWs 1 and 2 and DWs 1 to 3 were examined. Exts A1 to A15 and B1 to B3 were marked.
6. The trial court directed partition of A and B schedule properties to allot 2/5 shares to the plaintiffs jointly. The counterclaim was dismissed.
7. Heard Sri.P.B.Krishnan, the learned counsel for the appellants/defendants.
8. Four questions are raised in the memorandum of appeal as substantial questions of law. The first two questions are extracted below:
A. Is the lower appellate court right in concurring with
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the trial court regarding the finding that the scribe who was examined as PW2 was having necessary animus to sign Ext A3 as a witness? B. Is the lower appellate court right in concurring with the finding of the trial court with regard to the validity of Ext A3 on the basis of the deposition of PW2 alone?
The above questions are raised since the counter-claim was dismissed. The counter-claim was dismissed in view of Ext A3. Ext A3 was accepted by the courts below as the gift deed executed by Devaki Pillai in favour of the first plaintiff and Vasudevan Pillai. If Ext A3 is accepted as a valid document, the counter-claim should fail.
9. Ext A3 is a gift deed purported to have been executed by Devaki Pillai in favour of the first plaintiff and Vasudevan Pillai. The property shown in Ext A3 is 4.5 cents of land comprised in survey no.1360 of Kayamkulam village. The defendants contended that Devaki Pillai had executed a gift deed in favour of the first plaintiff and Vasudevan Pillai in respect of 4½ cents of land comprised in survey no.1360. It was also contended that the donees had accepted the said property as their share in the properties of Devaki Pillai and therefore the plaintiffs could not seek partition of the B schedule properties which were owned by Devaki Pillai. These contentions of the defendants admit the gift given by Devaki Pillai to the first plaintiff and the predecessor-ininterest of plaintiffs 2 and 5. The said gift was granted under Ext
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A3 document. Its registration number and date of execution are shown in the written-statement. Therefore Ext A3 is not a disputed document, but an admitted document. The defendants contended that in view of Ext A3, the plaintiffs could claim no share in the properties owned by Devaki Pillai. As Ext A3 is not a disputed document, it does not even require a formal proof. In view of Ext A3, the counter-claim was liable to be dismissed.
10. Nevertheless, the plaintiffs examined PW2 to prove execution of Ext A3 gift deed. He is the scribe who scribed the document. His name figures in it as one of the attesting witnesses too. He spoke that he signed Ext A3 as the scribe as well as the attesting witness. A scribe is not disqualified to be an attesting witness. The witness testified that he prepared Ext A3 as instructed by the donor. Nothing is available in PW2's evidence to disbelieve him. The defendants did not raise a contention that the donees did not accept the gift during the life time of the donor. The evidence of PW2 is more than sufficient to prove the admitted fact that Devaki Pillai gifted 4.5 cents of property to the first plaintiff and Vasudevan Pillai under Ext A3. No evidence was adduced by the defendants to prove that the donor was mentally or physically incapable of giving a gift of her property. The property sought to be partitioned in the counter-claim of the defendants was not available for partition at their request. The counter-claim was rightly
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dismissed by the courts below.
11. The remaining two questions shown in the memorandum of appeal as substantial questions of law read as under:
C. Is not the suit bad for partial partition? D. Whether the judgment and decree of the lower appellate court are sustainable in law?
The second one above is no question of law at all.
12. The plaintiffs did not seek partition of any joint family property. The properties held in co-ownership as tenants in common have been sought to be partitioned. Therefore there is no question of the suit being bad for partial partition even if any property available for partition was not sought to be partitioned. The theory of partial partition is not applicable in the case of a partition of properties held in co-ownership. In this connection I may refer to three judicial pronouncements which are (i) **Puthumana Meenakshi Amma vs Puthumana Kalyani Amma (2010 (4) KHC 282** , (ii) **Gopalan vs Vasu (1986 KLT 1100)** and (iii) **Azeez vs Chithamma (1954 KLT 240).**
13. The contention on partial partition has no legs to stand for two more reasons. In view of Ext A3 and the dismissal of the counter-claim, no property is left by the plaintiffs without seeking partition. That apart, the contention on partial partition cannot be agitated when the defendants made a counter-claim to partition the property shown in Ext A3.
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14. The plaint A schedule properties and the B schedule property were set apart to the share of Karthiyayani Pillai and Devaki Pillai respectively in Ext A1 partition deed. The defendants do not dispute that the A schedule item nos 1 and 2 properties belonged to Karthiyayani Pillai. There is a contention for the defendants that the A schedule item no.3 property exclusively belonged to the second defendant. The basis of such a contention is unknown as it stands undisclosed in the written-statement. The said property is also taken in Ext A1 as an allotment to Karthiyayani Pillai. The entire A schedule properties are partiable.
15. The B schedule properties are also liable to be partitioned. Execution of Ext A3 gift deed by Devaki Pillai in respect of 4 ½ cents of land does not debar the plaintiffs from getting their legitimate share in the B schedule properties.
16. The courts below have considered all relevant matters in the right perspective to come to the correct conclusion. No substantial question of law is involved in the appeal to admit it and entertain it. The second appeal is devoid of any merit. It deserves only a dismissal.
## 17. Dismissed.
**A.M.Babu Judge**
sks/29.8.2019
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**Sd/-**
**A.M.BABU**
**JUDGE**
