Padmavathy Amma v. K.G. RadhaKrishnan Nair and others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT :** **THE HONOURABLE MR. JUSTICE M.N.KRISHNAN** **FRIDAY, THE 1ST OCTOBER 2010 / 9TH ASWINA 1932** **AS.No. 361 of 1994()** **---------------------------OS.33/1977 of ADDL. SUB COURT,PARAVUR** **....................** ## **APPELLANT(S): 5TH DEFENDANT** **------------------------------------------------** ## **PADMAVATHY AMMA, DAUGHTER OF NARAYANI AMMA, INDRAMPILLIL HOUSE, WARD NO.17, ALUVA, MUNICIPALITY.** **BY ADVS. SRI.S.VIDYASAGAR SRI.DINESH R.SHENOY SRI.B.JAYASANKAR** ## **RESPONDENT(S): (PLAINTIFFS & DEFENDANTS 1 TO 4 AND 6 & 7)** **----------------------------------------------------------------------------------------------** **1. K.G.RADHAKRISHNAN NAIR, SON OF I.S. GOPALA PILLAI, PADINJARE CHERIYIL, ALUVA KARA, ALUVA VILLAGE.** **2. K.G.SUKUMARA PILLAI, SON OF DO. DO.** **3. K.G.AMBUJAKSHY AMMA, D/O. JANAKY AMMA, OF O.D O.** **4. CHANDRAMATHY AMMA, DO. DO.** **5. K.G.SHANTHAMATHY AMMA, DO. DO.** - ***6. K.JANAKY AMMA, WIFE OF K.S.GOPALA PILLAI DO. DO.(DIED).** ***RESPONDENTS 1 TO 5 IN THE APPEAL ARE RECORDED AS THE LEGAL REPRESENTATIVES OF THE DECEASED R6 AS PER ORDER DTD. 19.10.95 VIDE MEMO (C.F. NOS. 11702/95.)** **7. G.KRISHNA NAIR, S/O.GOPALA PILLAI, HOUSE NO.52 WARD NO.17 (INDRAMPILLIL) ALUVA MUNICIPALITY.** **8. G.RAVEENDRANATHAN NAIR, OF DO. DO.** ## **A.S. NO.361/1994** **9. G.PANKAJAKSHAN NAIR, DO. DO.** **10. THANKAMMA, D/O. NARAYANI AMMA, OF DO. DO.** **11. PRABHAKARAN NAIR, S/O. GOPALA PILLAI, DO. DO.** **12. V.RADHAKRISHNA MENON, THIRUNELLIL VEEDU, KARUVATTA, HARIPAD TALUK, NOW RESIDING AT HOUSE NO.53, WARD NO.17, ALUVA MUNICIPALITY.** **R1 TO R5 BY ADVS. SRI.A.S.P.KURUP, SRI.K.R.THAMPAN. SRI.V.PREMCHAND** ## **R8, R9 & R11 BY ADV. SRI.B.KRISHNAMANI** **THIS APPEAL SUITS HAVING BEEN FINALLY HEARD ON 01/10/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ## **JUDGMENT** ## **The appellant is dead. No steps taken so far. Hence the appeal is** ## **dismissed as abated.** ## **01/10/2010 SD/- M.N.KRISHNAN, JUDGE** ## **ORDER ON CMP. NO.2285/1994 IN AS. NO.361/1994** ## **DIMISSED** **01/10/2010 SD/- M.N.KRISHNAN, JUDGE** **TRUE COPY** **P.S. TO JUDGE** **tss** ## **M.L.JOSEPH FRANCIS, J. ----------------------------------------------A.S. No.361 of 1994 ----------------------------------------------Dated 11[th] July, 2013.** ## **J U D G M E N T** This appeal is filed by the 5[th] defendant in O.S.No.33 of 1977 on the file of the Additional Sub Court, North Paravur. Respondents 1 to 6 herein were the plaintiffs in that suit, which was filed by them for partition and separate possession of their 1/3 share over the plaint schedule property. 2. The case of the plaintiffs is briefly as follows :The plaint schedule property was originally owned by Govinda Pillai of Charkkattu House and he gifted the same in favour of his wife Lakshmi Amma as per gift deed No.3008/1090 M.E. of Alengad Sub Registry and subsequent to the gift deed, he constructed two buildings in this property. Lakshmi Amma had two daughters by name Narayani Amma and Parukutty Amma and a son, Gopala Pillai. The 6[th] plaintiff is the wife of Gopala Pillai and plaintiffs 1 to 5 are their children and they are entitled to get 1/3 share over the plaint schedule property. The 1/3 share belonging to Parukutty Amma was assigned to Narayani Amma by the children of Parukutty Amma and thus Narayani Amma was having 2/3 share and defendants 1 to 6 2 A.S. No.361 of 1994 are the children of Narayani Amma entitled to succeed to her estate. Defendants 1 to 6 are residing in the building No.XVII/52 situated in this property and building No.XVII/53 is under the occupation of a tenant who is arrayed as 7[th] defendant. An extent of 4.93 ares was acquired for widening the National Highway under LAC No.52/1973 and on the request of defendants 5 and 6, the matter was referred to this court and enhanced compensation to the tune of `15,786.06 was granted in LAR No.81/1973. The attempt of the plaintiffs to implead them as parties in the above LAR was disallowed and hence, the plaintiffs are entitled to get 1/3 share over the above amount also. The defendants 1 to 6 are now appropriating the income of the property by themselves and not sharing it with the plaintiffs. A rent of `1,800/- is being received from building No.CVII/53 and the plaintiffs are entitled to get `700/- per year as mesne profits in respect of their share. The repeated requests of the plaintiffs to partition the plaint schedule property have not been responded favourably by the defendants and hence the suit has been filed for partition of their 1/3 share and for recovery of an amount of `5,262.02 with 3 A.S. No.361 of 1994 4% interest from 5.3.1973 being the 1/3 share of compensation amount and also for mesne profits of `700/- per year till delivery of the plaintiff's share from the defendants. 3. Defendants 3, 4 and 6 filed a joint written statement and the 5[th] defendant has filed a separate written statement. The other defendants do not contest the suit. The contentions raised by defendants 3, 4 and 6 and also 5[th] defendant are similar and identical and their contentions are briefly stated as follows : The suit as framed is not maintainable. Since the plaintiffs have not prayed for declaration of their 1/3 right over the plaint schedule property, the suit is not maintainable. The court fee paid is insufficient. The plaint schedule property originally belonged to Govinda Pillai and he gifted it to his wife Lekshmi Amma under gift deed No.3008/1090 M.E. and her children have obtained a right over the property as tenants in common under the provisions of the Nair Act. The children of Lekshmi Amma, viz., Narayani Amma, Parukutty Amma and Gopala Pillai acquired 1/3 share each over the plaint schedule property and subsequent to the death of Parukutty Amma, her children assigned the 1/3 share belonging 4 A.S. No.361 of 1994 to Parukutty Amma in favour of Narayani Amma as per document No.3519/1119 M.E. and the 1/3 share belonging to Gopala Pillai was released in favour of Narayani Amma during his life time and thus Narayani Amma acquired absolute right and exclusive possession over the plaint schedule property. An extent of 11 cents situated on the western side of the entire property was gifted in favour of the third defendant and another extent of 20 cents was given to the 5[th] defendant under another gift deed dated 31.1.1971 and the remaining 16 cents was enjoyed by the children of Narayani Amma jointly. The third defendant constructed a building in the 11 cents and leased out in favour of the 7[th] defendant. The 5[th] defendant and her children are residing in the 20 cents obtained by her. The other defendants are not residing in the schedule building. The 3[rd] defendant made substantial improvements in his 11 cents. The plaintiffs have not enjoyed the plaint schedule property at any time and the entire property is being enjoyed by the defendants for the last more than 30 years and they have acquired right over this property by adverse possession and ouster. The plaintiffs are not parties to LAR No.91/1973 or LAR A.S. No.361 of 1994 5 No.35/1973 of the Sub Court. The application to implead them as additional parties was rejected and so they are not entitled to claim any amount granted in the above cases. Defendants 3 and 5 are enjoying their separate plots obtained under the gift deeds as full owners. The husband of the 6[th] plaintiff who is the father of other plaintiffs died on 4.11.1956 and the suit has been brought after 21 years of his death and so it is prima facie barred by limitation. An extent of 20 cents with the building thereon was given to the 5[th] defendant under the gift deed and the said building was constructed by Narayani Amma and the plaintiffs have no right over the same. The 5[th] defendant is not liable to pay any mesne profits. The plaintiffs are not entitled to get any reliefs in the suit and it is liable to be dismissed with costs. 4. Before the Sub Court, no oral evidence was adduced by the plaintiffs. Exts.A1 to A6 were marked on the side of the plaintiffs. On the side of the defendants, third defendant was examined as DW1 and Exts.B1 to B60 were marked. The learned Sub Judge, on considering the pleadings and evidence on record, found that the plaintiffs are having 1/3 6 A.S. No.361 of 1994 share over the plaint schedule property and the suit was decreed and a preliminary decree for partition was passed as follows : “The plaintiffs are allowed to get partition and separate possession of their 1/3 share over the plaint schedule property on division by metes and bounds, that the plaintiffs are allowed to recover an amount of `5262.02 with future interest at 4% per annum from 5.3.1973 till receipt of the amount from the court, if the amount has not been disbursed to the defendants 1 to 6 and in the event of disbursement of the amount to any of the defendants or defendants 1 to 6, from such of the defendants who have received the same that the plaintiffs are also allowed to get mesne profits from 3 years prior to the filing of the suit till delivery of their share at the rate determined at the final decree stage from defendants 1 to 6, that the plaintiffs may apply for passing a final decree in terms of this decree and that the plaintiffs are allowed to get costs of the suit from contesting defendants 3 to 6.” Against that judgment and decree, the 5[th] defendant alone filed this appeal. 5. During the pendency of this appeal, the original appellant (5[th] defendant) died and her legal heirs are impleaded as additional appellants 2 and 3. The 6[th] respondent also died while this appeal was pending. Respondents 1 to 5 in this appeal were recorded as the legal heirs of deceased 6[th] A.S. No.361 of 1994 7 respondent. 6. Heard the learned counsel for the appellants and the learned counsel for the contesting respondents. 7. At the time of hearing, the learned counsel for the appellants raised the following arguments : The court below ought to have held that the claim advanced by the plaintiffs to 1/3 share of the plaint schedule property as the heirs of Gopala Pillai is barred by adverse possession and limitation. The court below erred in finding that the building in the property was constructed by Govinda Pilla in his life time. The court below went wrong in holding that DW1 has admitted that the buildings mentioned in Ext.B1 were constructed by Govinda Pillai. The court below ought to have held that Exts.B4 to B7 and B9 to B53 tax receipts would show that the appellant was in exclusive possession and enjoyment of the 20 cents of land. At any event, the trial court ought to have allowed an equitable partition and allotted the plots wherein the respective buildings are situated, to the defendants 3 and 5. The court below ought to have held that the pleadings and evidence clearly establish ouster of the plaintiffs and their predecessor from the property 8 A.S. No.361 of 1994 for more than twelve years and the consequent extinguishing of the rights claimed by them. The contesting respondents supported the judgment and decree of the court below. 8. The above suit was filed by the plaintiffs for partition and separate possession of their 1/3 share over the plaint schedule property having an extent of 36 cents comprised in Survey No.279/8. There is no dispute that the plaint schedule property originally belonged to Govinda Pillai and he gifted that property to his wife Lekshmi Amma as per the original of Ext.A1 gift deed No.3008/1090 M.E. There is also no dispute that Lekshmi Amma had two daughters namely, Narayani Amma and Parukutty Amma and a son by name I.S.Gopala Pillai. The 6[th] defendant Janaki Amma was the wife of Gopala Pillai and plaintiffs 1 to 5 are their children. The plaintiffs claimed 1/3 share over the plaint schedule property as the legal heirs of deceased Gopala Pillai, who died on 4.11.1956. In the plaint, it is alleged that 1/3 share belonging to Parukutty Amma was assigned by the children of Parukutty Amma after her death in favour of Narayani Amma as per Ext.B1 release deed No.3519/1119 M.E. In Ext.B1, it is stated 9 A.S. No.361 of 1994 by the legal heirs of Parukutty amma that Parukutty Amma had 1/3 share over the plaint schedule property and Gopala Pillai and Narayani Amma are in possession of the property. In Ext.B1, it is stated that buildings are situated in the property. After the execution of Ext.B1 release deed, Narayani Amma obtained 2/3 share over the plaint schedule property. According to the contesting defendants, the 1/3 right of Gopala Pillai was originally released by him in favour of Narayani Amma. In Ext.A1 gift deed executed by Govinda Pillai in 1090 M.E., nothing is mentioned about the existence of any building in the plaint schedule property. But, in Ext.B1 gift deed of the year 1119 M.E., mention is made about the existence of buildings. Ext.B2 is the gift deed dated 31.3.1971 executed by Narayani Amma in favour of her daughter, the 5[th] defendant Padmavathy Amma gifting 20 cents from the plaint schedule property with the building. In Ext.B2, it is recited that Narayani Amma's mother Lekshmi Amma obtained the plaint schedule property from her husband Govinda Pillai as per gift deed No.3008/1090 M.E. and as per the stipulation contained in the document, after the death of Lekshmi Amma, the properties 10 A.S. No.361 of 1994 devolved upon her children, Gopala Pillai, Parukutty Amma and Narayani Amma. It is further recited in Ext.B2 that after the death of Parukutty Amma, her legal heirs released their right in favour of Narayani Amma as per release deed No.3519/1119 M.E. and the share of Gopala Pillai was released in favour of Narayani Amma. But, nothing is mentioned in Ext.B2, how Gopala Pillai released his 1/3 share to Narayani Amma. In the schedule in Ext.B2, it is stated that 11 cents of property was gifted to the third defendant Pankajakshan. The third defendant was examined as DW1. He deposed that the entire plaint schedule property was having a total extent of 47 cents out of which 12 cents was acquired for National Highway. DW1 deposed that his mother Narayani Amma gifted 20 cents to the 5[th] defendant and also gifted 11 cents to him. He deposed that the 5[th] defendant is residing in the house situated in the 20 cents and DW1 is residing in the house situated in the 11 cents. DW1 deposed that the buildings situated in the plaint schedule property were constructed by his father Gopala Pillai. But, in Ext.B1 gift deed, it is not stated that the buildings in the property were constructed by DW1's father Gopala Pillai. There 11 A.S. No.361 of 1994 is no evidence to show that the buildings in the plaint schedule property were constructed by the father of DW1. Since the plaintiffs are not parties to the gift deeds executed in favour of the third defendant and 5[th] defendant, those documents will not affect the right of the plaintiffs over the plaint schedule property. ## 9. In the decision reported in **Annakutty v. Xavier** (1991(1) KLT 342), it was held thus : “Since parties are co-owners to acquire prescriptive title there should be ouster, and limitation would start to run only from the date of ouster. Positive over tact constituting ouster has to be proved by the co-owner, who claims prescriptive title. Mere nonparticipation in the income by itself, in the absence of other circumstance; may not be sufficient to infer ouster. In a given case a demand for income and refusal of the same can constitute ouster, and time would run against the non-possessing co-owners from the said date. Exclusive possession without the knowledge of ouster of the other co-owners cannot operate to bar the rights of the other co-owners and that adverse possession must be in open denial of the rights of the other co-owners.” 10. Ext.B3 is the copy of Ext.A1. Exts.B4 to B53 are the bills for payment of building tax and demand notices, which will not be having any bearing on the question of adverse 12 A.S. No.361 of 1994 possession as the defendants 3 and 5 are residing in the buildings situated in the plaint schedule property. Ext.B54 to B60 permit and plan approved by the Municipality will not prove that the buildings mentioned in Ext.B1 were constructed by DW1's father Gopala Pillai. 11. The testimony of DW1 does not disclose how the right of plaintiffs over the plaint schedule property is lost by ouster. The evidence adduced from the side of the defendants will not prove that the right of the plaintiffs over the plaint schedule property is lost by adverse possession and limitation. Since the plaintiffs have 1/3 share over the plaint schedule property, they are also entitled to get 1/3 share of the profits from the plaint schedule property and also share of compensation awarded in L.A.R. As the defendants 3 and 5 are residing in the houses situated in the plaint schedule property, while effecting partition, those buildings will have to be allotted to their share as far as possible, if it is practicable. Since the learned Sub Judge has decreed the suit on appreciating the evidence on record properly, I find no reason to interfere with the judgment and decree of the court below. 13 A.S. No.361 of 1994 Accordingly, this appeal is dismissed as it is without any merits. There is no order as to costs. It is made clear that while effecting partition of the plaint schedule property, the houses in which the third defendant and the 5[th] defendant are residing will be allotted to their share in the plaint schedule property, as far as possible. Sd/- ## **M.L.JOSEPH FRANCIS, JUDGE.** tgs (true copy)