M.C. Sivadasan v. M.C. Sunanda and others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** **THE HONOURABLE MR. JUSTICE B.KEMAL PASHA** **MONDAY, THE 20TH DAY OF MARCH 2017/29TH PHALGUNA, 1938** **RSA.No. 970 of 2011 ( ) ------------------------** **AGAINST THE JUDGMENT IN AS 46/2008 of ADDITIONAL DISTRICT COURT-III, KOZHIKODE** **AGAINST THE JUDGMENT IN OS 95/2007 of SUBORDINATE JUDGE’S COURT, KOZHIKODE** **APPELLANT(1ST APPELLANT/1ST DEFENDANT).:** **----------------------------------------** **M.C.SIVADASAN, S/O. LATE MEETHALA CHEMANCHERY CHANDAN, VENGERI AMSOM, DESOM, KOZHIKODE TALUK AND DISTRICT.** ## **BY ADV. SRI.K.M.SATHYANATHA MENON** **RESPONDENTS/RESPONDENTS 2 TO 10 AND 2ND APPELLANT/PLAINTIFFS 2 TO 5 AND LEGAL HEIRS OF 1ST PLAINTIFF & 2ND DEFENDANT):** **--------------------------------------------------------------** - **1. M.C.SUNANDA, W/O.PERACHAKUTTY,** - **MAVAKKAD NILAM HOUSE, UDAYA NIVAS, MAKKADA AMSOM, MOOTOLI DESOM, KOZHIKODE TLAUK, KOZHIKODE DISTRICT, PIN-673 617. (DIED)** **2. M.C.PRABHA, W/O.JAYAPRAKASH, PALIKKEDATH HOUSE, PUTHIYANGADI AMSOM, EDAKKAD DESOM, KOZHIKODE TALUK,** **KOZHIKODE DISTRICT, PIN-673 621.** **3. M.C.SREEJA, W/O.RAMAKRISHNAN, THACHANADATH HOUSE, ELATHUR AMSOM, PUTHUR DESOM, KOZHIKODE TALUK, KOZHIKODE DISTRICT, PIN-673 303.** **4. M.C.SUNILA, W/O.GOVINDAN, SHIJI NIVAS, MANAYATH THAZHATH HOUSE, MAKKADA AMSOM, KOZHIKODE TALUK, KOZHIKODE DISTRICT, PIN-673 617.** **5. M.C.REENA, A.R.NIVAS, EDAKKADATHIL, CHELANNUR AMSOM, DESOM, KOZHIKODE TALUK, KOZHIKODE DISTRICT, PIN-673 616.** **RSA.No. 970 of 2011 ( ) ------------------------** **6. SULEKHA, D/O.SUSEELA, NHARANGAL HOUSE, MAKKADA AMSOM AND DESOM, KOZHIKODE TLAUK, KOZHIKODE DISTRICT, PIN-673 617.** **7. SUNIL KUMAR,** **S/O.SUSEELA, NHARANGAL HOUSE, MAKKADA AMSOM & DESOM, KOZHIKODE TALUK, KOZHIKODE DISTRICT, PIN-673 617.** - **@ 8. SUDHINA, D/O.SUSEELA, MAKKADA AMSOM & DESOM, KOZHIKODE TALUK, KOZHIKODE DISTRICT, PIN673 617. (DIED)** **9. SUSHI, S/O.SUSEELA, MAKKADA AMSOM & DESOM, KOZHIKODE TALUK, KOZHIKODE DISTRICT, PIN-673 617.** **10. M.C.PREMA, D/O.CHANDAN, MEETHALA CHEMANCHERY HOUSE, VENGERI AMSOM, DESOM, KOZHIKODE TALUK & DISTRICT, PIN-673 010.** ## **@ ADDL.R11 IMPLEADED:** **ADDL.R11: AMARLAL (MINOR), AGED 13 YEARS, REPRESENTED BY HIS NATURAL GUARDIAN HIS FATHER ARAVIND, S/O.BALAN, IYAPPAD HOUSE, P.O.MALAMPRA, KOZHIKODE-9.** **@ THE LEGAL HEIR OF THE DECEASED RESPONDENT NO.8 IS IMPLEADED AS ADDL. RESPONDENT NO.11 AS PER ORDER DATED 12.11.2015 IN I.A.NO.2302/2015.** - **ADDL.R12 TO R14 IMPLEADED:** **ADDL.R12: UDAYAN, AGED 52 YEARS, S/O.M.C.SUNANDA, MAVAKKAD NILAM HOUSE, UDAYA NIVAS, MAKKADA AMSOM, MOOTOLI DESOM, KOZHIKODE TALUK, KOZHIKODE DISTRICT, PIN-673 617.** **ADDL.R13: SUGATHAN, AGED 50 YEARS, S/O.M.C.SUNANDA, MAVAKKAD NILAM HOUSE, UDAYA NIVAS, MAKKADA AMSOM, MOOTOLI DESOM, KOZHIKODE TALUK, KOZHIKODE DISTRICT, PIN-673 17.** **RSA.No. 970 of 2011 ( ) ------------------------** **ADDL.R14: KAMALAM, AGED 40 YEARS,** **S/O.M.C.SUNANDA, MAVAKKAD NILAM HOUSE, UDAYA NIVAS, MAKKADA AMSOM, MOOTOLI DESOM, KOZHIKODE TALUK, KOZHIKODE DISTRICT, PIN-673 17.** - **THE LEGAL HEIRS OF THE DECEASED RESPONDENT NO.1 ARE IMPLEADED AS ADDITIONAL RESPONDENTS 12 TO 14 AS PER ORDER DATED 12.11.2015 in I.A.No.1551 of 2015.** - **ADDL.R15 & R16 IMPLEADED:** **ADDL.R15: A.SIVANAND, S/O.ARANGATTU SIVASANKARA, ARANGATTU HOUSE, P.O.WEST HILL, KOZHIKODE DISTRICT, PIN-673 005.** **ADDL.R16: A.ANI, S/O.ARANGATTU SIVASANKARA, ARANGATTU HOUSE, P.O.WEST HILL, KOZHIKODE DISTRICT, PIN-673 005.** - **THE LEGAL HEIRS OF SMT.VANAJA, DAUGHTER OF THE DECEASED RESPONDENT NO.1, ARE IMPLEADED AS ADDITIONAL RESPONDENTS 15 AND 16 AS PER ORDER DATED 12.11.2015 IN I.A.NO.2925/2015.** **R1 TO R4,R6,R7,R9,R15 BY ADVS. SMT.P.V.PARVATHI** **SMT.REENA THOMAS R15 BY ADV. SRI.T.K.NAVAS** **R1 TO R4,R6,R7,R9,R15 & ADDL.R16 BY ADV. SRI.MOHAN JACOB GEORGE** **THIS REGULAR SECOND APPEAL HAVING BEEN FINALLY HEARD ON 20-03-2017, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **DSV/28/3/17** B. KEMAL PASHA, J =============== R.S.A.No.970 of 2011 =============== Dated this the 20[th] day of March, 2017 ## J U D G M E N T Challenging the concurrent findings entered by the Subordinate Judge’s Court, Kozhikode, in O.S.No.95 of 2007, followed by those of the III Additional District Court, Kozhikode, in A.S.No.46 of 2008, the 1[st] defendant has come up with this second appeal. 2. The suit is one for partition and separate possession of 1/8 shares to each one of the plaintiffs over the plaint schedule properties. There are 5 plaintiffs and 3 defendants in the suit. All the parties totaling 8 in number are the children of late Chandan. Chandan is the son of Imbichekku, who R.S.A.No.970 of 2011 : 2 : died in the year 1961. 3. The first wife of Chandan, namely Lakshmi, predeceased him. Plaintiffs 1 and 2 were the children born in the said wedlock. After the death of Lakshmi, Chandan married Devaki, in whom plaintiffs 3 to 5 and the defendants were born. The 1[st] defendant is the only son and all the other defendants and plaintiffs are daughters. According to the plaintiffs, when Chandan died intestate in respect of the scheduled properties, each of the plaintiffs is entitled to 1/8 shares in the property. Further, they are entitled to the share of mesne profits also. 4. The 1[st] defendant contested the suit mainly contending that the plaint schedule item No.1 property is not partible. He claimed that the said property and the family building is situated in it were given to him by his father. It was further contended that the properties covered by Exhibits-B2 to B9 are R.S.A.No.970 of 2011 : 3 : not available for partition, since the said properties were alienated. 5. The trial court after considering the evidence in the matter found that the plaint schedule properties, except the properties covered by Exhibits-B2 to B9, are partible and each one of the plaintiffs is entitled to 1/8 share out of it, with mesne profits. Regarding the building in the property, it has come out that Chandan had purchased the shares from his 2 brothers over the building and thereafter, the 1[st] defendant purchased the remaining one share from another brother of Chandan. By considering the same, the trail court ordered a division of the dwelling house in plaint schedule item No.1, by metes and bounds into 32 equal shares and for granting 11/32 shares to the 1[st] defendant and 3/32 shares to each one of other parties. 6. Aggrieved by the preliminary judgment and R.S.A.No.970 of 2011 : 4 : decree passed by the trial court, the 1[st] defendant preferred A.S.No.46 of 2008 before the District Court, Kozhikode. At the fag end of the appeal, the appellant/1[st] defendant filed an I.A. seeking the amendment of his written statement to incorporate a pleading to the effect that he is a member of the Thiyya community of Kozhikode, which community was following the Mitakshara System of coparcenery properties and that the 1[st] defendant had born in the year 1948, much prior to the coming into force of the Hindu Succession Act, 1956 and therefore, he had acquired a right by birth over the property devolved on Chandan, along with Chandan. 7. The 1[st] defendant wanted to forward a claim that on account of the right by birth, he is entitled to half right in the property, and Chandan was entitled to the remaining half right only. Over and above the half right, the 1[st] defendant wanted to claim 1/8 R.S.A.No.970 of 2011 : 5 : share over the half right of Chandan over the property. The amendment application was dismissed and the lower appellate court also concurred with the findings entered by the trial court and hence the second appeal. 8. This Court admitted the second appeal on the following substantial questions of law: “i) When the appellant was born prior to Hindu Succession Act, 1956 and the back documents clearly reveals that Ext.A1 property was acquired by great grand father of the plaintiffs and the defendants, whether appellant/1[st] defendant is to be treated as a sharer along with his father and the father was only representing the said group? ii) Whether the rejection of I.A.No.653 of 2011 and I.A.No.170(a) of 2011 for amendment of written statement and original appeal memorandum is unsustainable? R.S.A.No.970 of 2011 : 6 : iii) When prior documents were produced to show that Ext.A1 properties were acquired by the great grand father of the parties with sufficient reasons, is non-acceptance of the same sustainable? iv) Whether appellant born prior to 1956 is entitled to get a share by birth in view of Hindu Succession Act, 1956?” 9. Heard the learned counsel for the appellant and the learned counsel for the contesting respondents. 10. It is the admitted case of the 1[st] defendant that he had purchased one of the shares in respect of the dwelling house situated in plaint schedule item No.1 from one of the brothers of late Chandan. Even though the 1[st] defendant wanted to forward a claim that the plaint schedule properties are ancestral properties devolved on Chandan, it has clearly come R.S.A.No.970 of 2011 : 7 : out that the said properties were acquired by Imbichekku, who is the father of Chandan, as his self acquisitions. When the said properties were self acquisitions of Imbichekku, the 1[st] defendant, who is the son of Chandan, could not claim the said property as a coparcenery property and therefore, the 1[st] defendant cannot claim any right by birth over the self acquisitions of Imbichekku. 11. Imbichekku died in the year 1961. Thereafter, in the year 1964, Chandan along with his brothers entered in a partition and they divided the properties and obtained their respective shares from the properties. Even at that time, the parties were treating the property as self acquisitions of Imbichekku and not as ancestral properties. When Chandan himself had treated the property as self acquisitions of Imbichekku and especially when the 1[st] defendant has purchased one of the shares over R.S.A.No.970 of 2011 : 8 : the dwelling house in the plaint schedule item No.1 property from one of the brothers of Chandan, it is evident that there is an intentional relinquishment of any further rights in respect of the property by the 1[st] defendant. 12. The properties were not being treated as ancestral properties or coparcenery properties and that was the reason why the 1[st] defendant purchased one of such shares from one of the brothers of Chandan, which was already a subject matter of a partition deed as aforesaid. When there is an intentional relinquishment of such rights, it is evident that the 1[st] defendant has waived any such right over the property. Matters being so, the lower appellate court has rightly dismissed the I.A. seeking amendment of the written statement. 13. The learned counsel for the contesting respondents has pointed out that the attempt of the R.S.A.No.970 of 2011 : 9 : 1[st] defendant, through the amendment application, was to withdraw a specific admission made by him in the written statement and therefore, the same could not be permitted. When any such plea was not taken up in the original written statement, it has to be treated that it is an admission from the part of the 1[st] defendant in the original written statement regarding the absence of any further claims over the property. Therefore, such an admission cannot be permitted to be withdrawn through an amendment as held in Ram Niranjan Kajaria v. Sheo Prakash Kajaria and others [(2015) 10 SCC 203]. 14. The learned counsel for the appellant has pointed out that the appellant has presently produced a document relating to the properties in question, which may throw light regarding the derivation of the property. The learned counsel for the respondents, by relying on the decision in R.S.A.No.970 of 2011 : 10 : Geetha Viswanathan and Others v. Sasidharan [2010 (4) KHC 553], has argued that a party in a second appeal cannot claim as of right the reception of additional evidence. When facts were finally decided by the lower appellate court and the findings on such facts were concurrent, the same cannot be further mooted in the second appeal. 15. From the discussions made above, it has clearly come out that there is absolutely nothing to interfere with the concurrent findings entered by both the courts below. The preliminary judgment and decree passed by the trial court as confirmed by the lower appellate court are not liable to be interfered with. This second appeal is devoid of merits, and is only to be dismissed, and I do so. In the result, this second appeal is dismissed. The parties are at liberty to file necessary application for passing the final decree. The reservations and R.S.A.No.970 of 2011 : 11 : equities and also the quantum of mesne profits shall be decided by the trial court at the stage of the passing of the final decree. In the nature of this appeal, parties shall bear their respective costs. Sd/B. KEMAL PASHA, JUDGE. DSV/21/3/17 // True Copy // P.A. To Judge