Othikandy Sasidharan and Others v. Othiyil Kannan and Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MRS. JUSTICE SHOBA ANNAMMA EAPEN** **WEDNESDAY, THE 10[TH] DAY OF JULY 2024 / 19TH ASHADHA, 1946 RFA NO. 4 OF 2017** **AGAINST THE JUDGMENT & DECREE DATED 08.03.2016 IN OS** **NO.464 OF 2012 OF SUB COURT, KANNUR** ## **APPELLANT/S:** - ***1 OTHIKANDY SASIDHARAN** - **AGED 69 YEARS, S/O. KANNAN, MANDOOK HOUSE, P.O. KAKKAD, PUZHATHI AMSOM, KANNUR DISTRICT.** - _***(DIED) LRs ARE RECORDED**_ - **2 K. SOBHANA, AGED 59 YEARS, D/O. AMBU, CHIMMINIYAN HOUSE, MAILADATHADAM, AZHEEKODE AMSOM, KANNUR DISTRICT.** - **ADDL.3 GIRIJA M., AGED 70 YEARS , W/O.LATE OTHIKANDY SASIDHARAN , MANDOOK HOUSE, P.O.KAKKAD, PUZHATHI AMSOM ,KANNUR DISTRICT.** - **ADDL.4 SAPNA, AGED 42 YEARS , D/O.LATE OTHIKANDY SASIDHARAN , MANDOOK HOUSE, P.O.KAKKAD, PUZHATHI AMSOM ,KANNUR DISTRICT.** - **ADDL.5 SANDHYA, AGED 39 YEARS , D/O.LATE OTHIKANDY SASIDHARAN , MANDOOK HOUSE, P.O.KAKKAD, PUZHATHI AMSOM ,KANNUR DISTRICT.** - **ADDL.6 SANDEEP, AGED 36 YEARS , S/O.LATE OTHIKANDY SASIDHARAN , MANDOOK HOUSE, P.O.KAKKAD, PUZHATHI AMSOM, KANNUR DISTRICT.** _*** ADDITIONAL APPELLANTS 3 TO 6 ARE IMPLEADED AS LRs OF DECEASED FIRST APPELLANT VIDE ORDER DATED 20/10/2021 IN IA 1/2021.**_ RFA No.4/2017 ..2.. **BY ADVS. SRI.P.U.SHAILAJAN SMT.D.N.NISHANI SRI.M.SURESH KUMAR SRI.V.SREEJITH K13982000** ## **RESPONDENT/S:** - **1 OTHIYIL KANNAN, (DIED) S/O. KORAN, OTHIKANDY HOUSE, NEAR KOLACHERY PARAMBA AUP SCHOOL, P.O, KOLACHERY, KOLACHERY AMSOM, KANNUR DISTRICT - 670601** - **2 OTHIYIL NARAYANI** - **AGED 84 YEARS, D/O. KANNAN,OTHIYIL HOUSE,NEAR KOLACHERY PARAMBA AUP SCHOOL,P.O, KOLACHERY, KOLACHERY AMSOM,KANNUR DISTRICT - 670601** - ****3 OTHIYIL PAITHAL** - **AGED 91 YEARS, D/O. KANNAN,OTHIYIL HOUSE,NEAR KOLACHERY PARAMBA AUP SCHOOL,P.O, KOLACHERY, KOLACHERY AMSOM,KANNUR DISTRICT – 670601** ## _****(DIED) LRs ARE RECORDED**_ _**** IT IS RECORDED THAT TEH LEGAL HEIR OF THE DECEASED 3RD RESPONDENT IS ALREADY ON THE PARTY ARRAY AS THE 2ND RESPONDENT VIDE ORDER DATED 05.10.2017 VIDE MEMO DATED 03.08.2017 BEARING CF NO.3489/17**_ **4 THONDIKKARA CHANDRI AGED 52 YEARS, D/O. LATE KANNAN, OTHIKANDY HOUSE,NEAR KOLACHERY PARAMBA AUP SCHOOL,P.O, KOLACHERY, KOLACHERY AMSOM,KANNUR DISTRICT - 670601** **5 THONDIKKARA RAMESHAN AGED 50 YEARS, S/O. LATE KANNAN,OTHIKANDY HOUSE,NEAR KOLACHERY PARAMBA AUP SCHOOL,P.O, KOLACHERY, KOLACHERY AMSOM,KANNUR DISTRICT - 670601** RFA No.4/2017 ..3.. **6 THONDIKKARA SHYLAJA AGED 43 YEARS, D/O. LATE KANNAN,OTHIKANDY HOUSE,NEAR KOLACHERY PARAMBA AUP SCHOOL,P.O, KOLACHERY, KOLACHERY AMSOM,KANNUR DISTRICT - 670601** - **7 THONDIKKARA DEEPA AGED 40 YEARS,D/O. LATE KANNAN,OTHIKANDY HOUSE,NEAR KOLACHERY PARAMBA AUP SCHOOL,P.O, KOLACHERY, KOLACHERY AMSOM,KANNUR DISTRICT - 670601** - **8 THONDIKKARA SHEEBA AGED 36 YEARS, S/O. LATE KANNAN,OTHIKANDY HOUSE,NEAR KOLACHERY PARAMBA AUP SCHOOL,P.O, KOLACHERY, KOLACHERY AMSOM,KANNUR DISTRICT - 670601** - **9 THONDIKKARA RATHEESH AGED 40 YEARS, S/O. LATE KANNAN,OTHIKANDY HOUSE,NEAR KOLACHERY PARAMBA AUP SCHOOL,P.O, KOLACHERY, KOLACHERY AMSOM,KANNUR DISTRICT - 670601** - **10 OTHIYIL REGHUTHAMAN AGED ABOUT 49 YEARS, S/O. NARAYANI,OTHIYIL HOUSE,NEAR KOLACHERY PARAMBA AUP SCHOOL,P.O, KOLACHERY, KOLACHERY AMSOM,KANNUR DISTRICT - 670601** **BY ADVS. SRI.V.T.MADHAVANUNNI SRI.V.A.SATHEESH** **THIS REGULAR FIRST APPEAL HAVING COME UP FOR HEARING ON 12.04.2024, THE COURT ON 10.07.2024 DELIVERED THE FOLLOWING:** RFA No.4/2017 ..4.. ## JUDGMENT The plaintiffs in OS No.464 of 2012 on the file of the Sub Court, Kannur, have come up before this Court with this regular first appeal, aggrieved by the dismissal of the suit for partition of the plaint schedule properties. The respondents herein were the defendants. 2. During the pendency of the appeal, the first appellant and the third respondent died. Additional appellants 3 to 6 are impleaded as legal heirs of the first appellant and the second respondent is recorded as the legal heir of the third respondent. 3. For brevity, the parties are referred to, as they are arrayed in the suit. 4. The case of the plaintiffs was that the plaint schedule properties, which belonged to Poyyaprath Appa on Kuzhikkanam rights, devolved upon his children, Kannan and Koran, on the death of Poyyaprath Appa. On the death of Kannan, his share of properties devolved upon Sasidharan RFA No.4/2017 **==> picture [31 x 8] intentionally omitted <==** (first plaintiff) and Narayani. On the death of Narayani, her rights devolved upon K.Shobhana, who is the second plaintiff. Koran also died and his legal heirs are the defendants. According to the plaintiffs, they are jointly entitled to half of the share in the plaint schedule properties. Defendants 1 to 3 filed a written statement before the trial court, disputing the right of the plaintiffs in the plaint schedule properties, contending that the plaint schedule properties did not belong to Poyyaprath Appa; that the plaintiffs are not the co-owners of the property; and that the defendants have right over item Nos.1 to 5 of the plaint schedule. Defendants 5-9 also filed a written statement, claiming right over item Nos.1 and 2 of the plaint schedule. Evidence before the trial court consists of oral evidence of PW1 and documentary evidence of Exts.A1 to A9 on the side of the plaintiffs; and Exts.B1 to B37 on the side of the defendants. No oral evidence was adduced by the defendants. The trial court, after an elaborate consideration of the issue, dismissed the suit. Hence, the plaintiffs have come up before this Court in appeal. 5. Heard the learned counsel for the RFA No.4/2017 **==> picture [31 x 8] intentionally omitted <==** appellants/plaintiffs and the learned counsel for the respondents/defendants. 6. The learned counsel for the plaintiffs submitted that the property belonged to Poyyaprath Appa; and on the death of Poyyaprath Appa, half of his properties devolved upon the first and second plaintiffs, being the son and granddaughter respectively of Kannan, who is one of the sons of Poyyaprath Appa. According to the plaintiffs, the defendants are the children of Koran, who is the other son of Poyyaprath Appa. The husband of the second plaintiff, who was examined as PW1, deposed before the trial court that he saw the properties at last in 1964 and that item No.5 property was Ambayathodi paddy field, which is more than 5 acres in extent, and that his grandfather in law, Kannan, died in 1964. The learned counsel for the plaintiffs further submitted that in order to prove the right over the plaint schedule properties, the plaintiffs have produced Ext.A4 document, which is a certified copy of the registered Marupattam deed No.766/1939 dated 08.05.1939 of SRO, Valapattanam (Marupattam deed number is mistakenly shown as, RFA No.4/2017 **==> picture [31 x 8] intentionally omitted <==** “766/1989” in the impugned judgment) by Poyyaprath Appa in respect of 8 acres and 22.500 cents of paddy field in resurvey No.86/1. According to the plaintiffs, Ext.A4 contained item No.5 properties. 7. Per contra, the learned counsel for the defendants submitted that item No.1 belonged to their father, Koran, as per Kuzhikkanam right and they obtained purchase certificate No.9907/76 in respect of item No.1; that item Nos.2 and 5 belonged to Mathi and Paru as per Marupattam deed No.610/1955 and the defendants obtained right over item No.2 and 5 as per assignment deed No.1211/1955 and thereafter, purchase certificate No.6036/76 was obtained by them in respect of the said item Nos. 2 and 5; and that item Nos. 3 and 4 belonged to Kunhappa as per Marupattam No.1046/38, which were purchased by the defendants as per document No.1638/1947 and obtained purchase certificate No.912/1976. Hence, according to the defendants, the plaintiffs have no right, whatsoever, over the plaint schedule properties and no title is traceable to the plaint schedule properties through Ext.A4. RFA No.4/2017 **==> picture [31 x 8] intentionally omitted <==** 8. The learned counsel for the plaintiffs submitted that they have filed IA No.913 of 2015, an interrogatory petition, before the trial court raising two questions; (1) name of father and mother of defendants 1 to 3 and (2) full name of grandfather of defendants 1 to 3. It was submitted that since the interrogatories were not answered by defendants 1 to 3, adverse inference has to be drawn. To substantiate the said argument, the learned counsel relied on Sreejith Varma v. Poonjar Koyikkal Royal Family Trust [2020 (4) KHC 364, wherein it has been held that the defendants can refuse to answer questions on the ground of irrelevancy and suffer an adverse inference as an inevitable consequence. 9. I have given a thoughtful consideration of the arguments raised on both sides. The plaint schedule properties are as follows; Item No.1 - 96½ cents Item No.2 - 32 cents Item No.3 - 24 cents Item No.4 - 2 acre 5¾ cents Item No.5 - 54 cents described as “Ambayathodi” RFA No.4/2017 **==> picture [31 x 8] intentionally omitted <==** The plaintiffs rely only on Ext.A4 document, which is a certified copy of the registered Marupattam deed No.766/1939 dated 08.05.1939 of SRO, Valapattanam. When PW1, who is the husband of the second plaintiff, was examined, he deposed that he saw the properties in 1964 and that item No.5 in the plaint schedule property is the Ambayathodi paddy field having more than five acres in extent, which is included in Ext.A4 marupattam deed. However, apart from producing Ext.A4 document, the plaintiffs could not establish or produce any supporting evidence to prove that the plaint schedule properties belonged to Poyyaprath Appa. Further, no documents were produced by the plaintiffs to show that Othikandi Kannan and Koran were the children of Poyyaprath Appa. A title deed is the vital legal document to prove ownership of a property. The plaintiffs failed to produce the title document to project their case that the plaint schedule properties are partible, other than producing Ext.A4, which is a Maruppattom deed of the year 1939. 10. The learned counsel for the defendants relied RFA No.4/2017 **==> picture [37 x 8] intentionally omitted <==** mainly on Exts.B1 to B7 gift deeds in order to claim right over the plaint schedule properties, stating that item No.1 property belonged to Karumarath Illam and was in possession of Koran on Kuzhikanam right; plaint schedule item Nos.2 and 5 belonged to Kandathil Mothikkandi Mathi and Paru on Kuzhikkanam right as per marupattam; and item Nos.3 and 4 belonged to Karumarathillam and was in the possession of Kunhappa on kuzhikkanam right. Thus, the documents produced by the defendants reveal that at no point of time, the plaint schedule properties belonged to Poyyaprath Appa. Though the plaintiffs claim right over the property on the basis of Ext.A4 document, there is nothing on record to show that the property included in Ext.A4 document is the plaint schedule property, which, according to the defendants, is in their right and possession. Even mere production of Ext.A4 will not confer any right on the plaintiffs unless it is proved by supporting documents that the said properties were in their possession. 11. The main case of the plaintiffs is that though an interrogatory petition as IA No.913 of 2015 was filed, the RFA No.4/2017 ..11.. defendants have not stated the full name of their grandfather. The learned counsel for the plaintiffs relied on Sreejith Varma (supra) to argue that the defendants can refuse to answer questions on the ground of irrelevancy and suffer an adverse inference as an inevitable consequence. In this case, the defendants have not answered the second interrogatory put forth by the plaintiffs. It was answered that they are not aware of the name of their grand father. But, even if the name of the grandfather of defendants is stated as “Poyyaprath Appa”, there is nothing on record to show that Poyyaprath Appa was in possession of the plaint schedule properties. The plaintiffs failed to prove that the defendants derived any title to the plaint schedule properties through Poyyaprath Appa. Unless there is any specific document to show that the plaint schedule properties belonged to Poyyaprath Appa, the plaintiffs are not entitled to claim half of the share in the plaint schedule properties. In Sreejith Varma (supra), this Court has further held that when an application for leave to deliver interrogatories is sought for by a party, the court will have to consider the same and decide whether the questions therein are necessary, either for disposing fairly of the suit or RFA No.4/2017 **==> picture [37 x 8] intentionally omitted <==** for saving costs. In this case, though the second interrogatory was not answered, since the plaintiffs failed to prove that the defendants derived title to the plaint schedule properties by way of Ext.A4, the prayer of the plaintiffs for partition cannot be allowed. According to the deposition of PW1, item No.5 of plaint schedule is Ambayathodi, which is more than eight acres in extent. However, in the plaint schedule, the extent of item No.5 is shown as only 54 cents. Though PW1 had stated that Poyyaprath Appa had remitted tax, no document was produced to prove the same. In the written statement, the defendants have stated that item Nos.1 to 5 belonged to Karumarath Padikkal on jenmom right and outstanding in the joint possession of cultivating tenants, Othikandi Mathi and her sister Paru as per registered Marupattam; and as per Sale Deed No.1211 of 1955 of the SRO, Valapattanam, Mathi and Paru assigned the properties to the defendants. However, no reply was filed by the plaintiffs to the written statement filed by the defendants to controvert the same. 12. Admittedly, no documents are produced by the plaintiffs to prove that the plaint schedule properties RFA No.4/2017 **==> picture [37 x 8] intentionally omitted <==** belonged to Poyyaprath Appa. Unless the plaintiffs are able to prove that the plaint schedule properties belonged to Poyyaprath Appa, no right over the plaint schedule properties can be claimed by the plaintiffs in the suit and the plaintiffs cannot be granted a right of partition. The defendants, on the other hand, have produced all documents to prove their title over the property along with purchase certificates obtained by them from competent authorities. Since the plaintiffs failed to prove that they are co-owners and the plaint schedule properties, especially item No.5, are part of the properties belonging to Poyyaprath Apppa, they are not entitled for partition or for half of the share in the properties. In view of the foregoing discussion, I do not find any reason to interfere with the impugned judgment of the trial court. Accordingly, the appeal is dismissed. Sd/- ## SHOBA ANNAMMA EAPEN ## JUDGE bka/-