S.A. No. 584 of 1997

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT :** **THE HONOURABLE MR. JUSTICE HARUN-UL-RASHID** **MONDAY, THE 6TH DECEMBER 2010 / 15TH AGRAHAYANA 1932** **SA.No. 584 of 1997()** - **-----------------------------** **AS.40/1987 of ADDL.DISTRICT COURT,KOTTAYAM OS.742/1984 of ADDL.MUNSIFF COURT,KOTTAYAM** **....................** ## **APPELLANT(S): RESPONDENTS 2 AND 3/ DEFENDANTS 2 AND 3** **--------------------------------------------------------------------------------------------** **1. V.M.KRISHNANKUTTY, VALIYA KAROTTU VEETTIL, MALAM KARA, KOTTAYAM.** **2. V.N.RAJU OF DO. DO.** **BY ADVS. SRI.K.GOPALAKRISHNA KURUP SMT.K.DEEPA (PAYYANUR)** - **RESPONDENT(S): APPELLANTS 1 TO 11 AND 4TH RESPONDENT/PLAINTIFF -------------------------- 1 TO 11 AND THE 4TH DEFENDANT.** **1. THANKAMMA, VALIYA KAROTTY VEETTIL PULLIKKANAM ESTATE P.O., VAGAMON, IDUKKI DISTRICT.** **2. V.K.RAMAKRISHNAN OF DO. DO.** **3. V.K.GOPALAKRISHNAN OF DO. DO.** **4. V.K.RAVEENDRAN OF DO. DO.** **5. V.K.SURENDRAN OF DO. DO.** **6. V.K.SASINDRAN OF DO. DO.** **7. K.R.KARTHIYANI, THAZHATHURUTHIYIL VEETTIL, ETTUMANOOR VADAKKENADA P.O., ETTUMANOOR VILLAGE, KOTTAYAM TALUK.** **8. V.K.AMMINIKUTTY, KAITHAMATTATHIL VEETTIL, VADAVATHOOR VAJAYAPURAM VILLAGE, KOTTAYAM TALUK.** **tss** ## **S.A. NO.584/1997** **9. V.K.LEELAKUTTY MUNDUNADACKAL VEETTIL, NARIYANGANAM P.O., BHARANANGANAM.** **10. V.K.THANKAMMA, VADAKKEL VEETTIL, THAZHATHUNGADY P.O., KOTTAYAM.** **11. K.REMANI, KALLALKEEZHIYIL VEETTIL, KONDOOR KARA, ERATTUPETTA P.O., MEENACHIL TALUK.** **12. CO-OPERATIVE BANK LTD., NO.421 KOTTAYAM REP.BY ITS SECRETARY THIRUNAKKARA, KOTTAYAM** ## **ADV. SRI.M.NARENDRA KUMAR** **THIS SECOND APPEAL HAVING BEEN FINALLY HEARD ON 06/12/2010 , THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ## **tss** ## **HARUN-UL-RASHID, J. -----------------------S.A.No.584 Of 1997** ## **---------------------Dated this the 10[th] day of December, 2010.** ## **J U D G M E N T** The following substantial questions of law are formulated in the appeal. _1) Whether the 1[st] appellate court is justified in drawing the presumption of a valid marriage between late Sanku Kochu Kunju and the 1[st] plaintiff?_ _2) Whether the 1[st] appellate court is justified in finding that the property covered by Ext.A4 is partible._ _3) Whether the 1[st] appellate court is justified in finding that redemption of the mortgage y the 1[st] defendant will enure to the benefit of late Sanku Kochu Kunju and his legal heirs?_ _4) Whether the 1[st] appellate court is justified in its finding that the 1[st] defendant is entitled only to the share of the mortgage money which he has spent over and above his share?_ 2. Defendants 2 & 3 in O.S.No.742 of 1984 on the file of the Additional Munsiff Court, Kottayam are the appellants. The appeal is directed against the decree and judgment in A.S.No.40 of 1987 on the file of the Additional District Court, Kottayam. Suit was filed for partition, separate possession and for ## **S.A.No.584 Of 1997** ::2:: ## declaration. The trial court passed a preliminary decree to the following effect. _1. Out of 1.4 acres of the plaint schedule property, 73 cents are found not partible._ _2. out of the remaining 31 cents, the right of the 7[th] plaintiff over the one half of the property is hereby declared._ _3. The 7[th] plaintiff is allowed partition and separate possession of the 15.5 cents of property._ _4. The 7[th] plaintiff is also entitled to one half right over the building in the plaint schedule property._ _5. Plaintiffs 1 to 6 and 8 to 11 are not entitled to any share in the plaint schedule property._ _6. The 7[th] plaintiff will apply for the issue of a commission by depositing Rs.225/- as batta to the commissioner and Rs.80/- as surveyor charges within three months from today to effect partition by metes and bounds._ _7. The 7[th] plaintiff is entitled to mesne profits from out of the share allotted to her from the date of suit till the partition is affected. The quantum will be fixed at the time of passing of the final decree._ _8. It is declared that the melotty No.441 dated_ - _1.2.1980 has been discharged by the 1[st] defendant with his own funds._ _9. Other necessary provisions will be made in the final decree proceedings._ ## **S.A.No.584 Of 1997** ::3:: In the appeal preferred by the plaintiffs the lower appellate court modified the preliminary decree passed by the trial court in the following lines: _1. The plaintiffs together are entitled to half of the plaint schedule property excluding the 1/3 portion of the property covered by Ext.A10 sale deed in favour of 1[st] defendant and the plaintiffs are allowed partition and separate possession of their shares._ _2. The plaintiffs are entitled to half right over the building situated in the plaint schedule property._ _3. The 1[st] defendant is entitled to reimbursement of the amount which he paid over and above his share for redeeming the mortgage by virtue of Ext.A4 release deed, from the plaintiffs. The quantum will be fixed in the final decree by the lower court._ _4. The plaintiffs are entitled to mesne profits from out of their share from the date of suit till partition is effected, the quantum of which will be fixed by the lower court in the final decree._ Parties hereinafter are referred to as the plaintiffs and defendants as arrayed in the suit. 3. The extent of the plaint schedule property is 1.4 acres of land and building therein in survey Nos.510/6/A & 510/6/B of ## **S.A.No.584 Of 1997** ::4:: Manarcadu Village. The property originally belong to two brothers namely, Raman and Sanku. Raman and Sanku had two sons namely, Sanku Kochu Kunju and Sanku Neelakandan. It is the plaintiffs' case that the first plaintiff is the legally wedded wife of Sanku Kochu Kunju, plaintiffs 2-6 and 8-11 are the children born to first plaintiff through Sanku Kochu Kunju and 7[th] plaintiff is the daughter of Sanku Kochu Kunju by his first wife Pappy. The first defendant is the brother of Sanku Kochu Kunju. Defendants 2 & 3 are the children of the first defendant. 4. Sanku Kochu Kunju died on 14.3.1965. He is the elder brother of the first defendant. It is the plaintiffs' case that Sanku Kochu Kunju and the first defendant enjoyed the plaint schedule property jointly and that both of them together mortgaged southern 32 cents of plaint schedule property to one Chacko and Mani by virtue of mortgage deeds 3464/1121 & 3522/1122. It is averred in the plaint that the very same property was mortgaged to one Joseph by Kochu Kunju and first defendant by mortgage deed No.2379/1124. It is also averred that both of them executed a superior mortgage on 1.2.1950 with regard to 33 ## **S.A.No.584 Of 1997** ::5:: cents of land in favour of Itty Krishnan. The said mortgage was assigned by Itty Krishnan in faovur of Devasseril Sivaraman by virtue of assignment deed No.2722 dated 2.11.1974. By virtue of release deed No.3178 dated 9.10.1979 the first defendant redeemed the mortgage from Devasseril Sivaraman. According to the plaintiffs the consideration for the redemption of the mortgage flowed from the income from the remaining plaint schedule property. It is averred in the plaint that the documents executed by the first defendant in favour of his two sons namely, defendants 2 & 3, do not bind the plaintiffs or affect their right over the plaint schedule property. The plaintiffs prayed for a decree for partition claiming separate possession of one half right over the plaint schedule property and also prayed for a declaration that the superior mortgage with regard to the 33 cents of the plaint schedule property has been redeemed. 5. In the joint written statement filed by defendants 1 to 3 it is inter alia contended that the suit is not maintainable, that the plaint schedule property is not partible, that the first plaintiff is not the legally wedded wife of Sanku Kochu Kunju and that ## **S.A.No.584 Of 1997** ::6:: plaintiffs 2 to 6 and 8 to 11 are not the children of Sanku Kochu Kunju. Defendants admit that the 7[th] plaintiff is the daughter of Sanku Kochu Kunju. They also contended that Sanku Kochu Kunju and Sanku Neelakandan had another brother by name Krishnan, that the said Krishnan died leaving behind his son Sivaraman, that the suit is bad for non-joinder of necessary parties, that Krishnan's 1/3[rd] Oodukoor right over the plaint schedule property was purchased by one Itty Avirah by virtue of two sale deeds and that subsequently, first defendant purchased the said property of 40 cents from Itty Avirah by sale deed No.2908 dated 10.7.1950. According to the defendants the 40 cents covered by the said sale is exclusively owned and enjoyed by the first defendant. The further contention is that Sanku Kochu Kunju abandoned his right over the plaint schedule property and left the place and that the 1[st] defendant executed settlement deed in favour of defendants 2 & 3. They also pleaded that Sanku Kochu Kunju's right if any over the property had been lost by continuous and uninterrupted possession of the first defendant. In other words, it is contended that 1/3[rd] share ## **S.A.No.584 Of 1997** ::7:: of deceased Krishnan was purchased by first defendant and on the remaining 2/3[rd] share the first defendant has absolute possession and ownership. The defendants also contended that the first defendant had constructed a building in the plaint schedule property by spending more than Rs.35,000/- and that he had made improvements in the plaint schedule property to the tune of Rs.20,000/-. Alternatively it is pleaded that if at all it is found that the plaint schedule property is partible the 7[th] plaintiff alone is entitled to partition. 4[th] defendant in the suit is the cooperative bank. The bank also filed a written statement. 6. The suit was partly decreed by the trial court finding that 73 cents out of 1.4 acres is not partible and that out of remaining 31 cents 7[th] plaintiff is entitled to one half share. The trial court further found that plaintiffs 1 to 6 and 8 to 11 are not entitled to any share. The issue as to whether the first plaintiff is the legally wedded wife of deceased Sanku Kochu Kunju and whether the plaintiffs 2 to 6 and 8 to 11 were born to that wedlock was examined by the trial court and the appellate court in detail. The trial court after evaluating the evidence of PW1, ## **S.A.No.584 Of 1997** ::8:: the plaintiff in the suit, PW2 the 7[th] plaintiff and DW1, who is the first defendant, concluded that there is no material except interested testimony of PW1 to show that PW1 is the legally wedded wife of Sanku Kochu Kunju. Therefore the court held that the plaintiff has failed to prove that she is the legally wedded wife of Sanku Kochu Kunju, plaintiffs 2 to 6 and 8 to 11 are the legal heirs of Sanku Kochu Kunju and that the 7[th] plaintiff who is the daughter of Sanku Kochu Kunju by his first wife is entitled to share plaint schedule property and building therein. The definite case of the plaintiff is that deceased Sanku Kochu Kunju married the first plaintiff on 19.1.1113 ME at Pullickanam and that plaintiffs 2 to 6 and 8 to 11 are the children born to her in that wedlock. Sanku Kochu Kunju died on 14.3.1965. As PW1 the first plaintiff narrated the ceremonies performed in her marriage with the deceased Sanku Kochu Kunju held on 19.1.1113 ME. She also testified that after marriage they lived together as husband and wife in a separate house in the estate. She also testified that the 7[th] plaintiff who is admittedly the daughter of Sanku Kochu Kunju was only 8 years old at the time of their ## **S.A.No.584 Of 1997** ::9:: marriage. 7[th] plaintiff was examined as PW2. She has deposed that first plaintiff is the wife of deceased Sanku Kochu Kunju. She testified that she used to stay with her stepmother and Sanku Kochu Kunju at Pullickanam estate and that she was sent in marriage by PW1 and Sanku Kochu Kunju. The first defendant who was examined as DW1 though denied the marriage between the first plaintiff and his brother, he admitted that Sanku Kochu Kunju was residing at Pullickanam estate and he was an employee there. He has also stated that he does not know whether anybody was residing there with Sanku Kochu Kunju at Pullickanam estate. The lower appellate court observed that the marriage between PW1 and Sanku Kochu Kunju held on 19.1.1113 ME is a marriage solemnised more than 55 years ago. The lower appellate court accepted the oral evidence tendered by PWs 1 & 2. The lower appellate court also noticed that the defendants have no case that the plaintiffs 2 to 6 and 8 to 11 are not the children of the first plaintiff. The court also noticed that the 7[th] plaintiff is the most aggrieved party in the case both materially and financially if it is found that the other plaintiffs are ## **S.A.No.584 Of 1997** ::10:: also the legal heirs of deceased Sanku Kochu Kunju, that if it is found that the other plaintiffs are also legal heirs of deceased Sanku Kochu Kunju invariably all the plaintiffs together are only entitled to half share of the property. That will reduce the extent of the property that will be made available to the 7[th] plaintiff. Therefore the testimony of PW2 is very important. She categorically deposed that the first plaintiff is the wife of deceased Sanku Kochu Kunju. The court also accepted the oral evidence of PWs 1 & 2 and concluded that PW1 is the legally wedded wife deceased Sanku Kochu Kunju and that they were living together as husband and wife for very many years. In a decision reported by the Apex Court wherein it was held that if a man and woman live together for long years as husband and wife, then the presumption arises in law as to the legality of marriage existing between the two. There is no evidence on the side of the defendants to show that the first plaintiff is not the legally wedded wife of deceased Sanku Kochu Kunju. In that context the lower appellate court held that all the plaintiffs are entitled to one share in that portion of the plaint schedule ## **S.A.No.584 Of 1997** **==> picture [26 x 9] intentionally omitted <==** property which is partible. Thus the court modified the share allotment made by the trial court. 7. The trial court on facts held that there is no convincing evidence to prove the fact that Sanku Kochu Kunju left the place renouncing all his rights over the plaint schedule property in favour of the first defendant. The trial court also on facts held that the plaintiffs' right if any in the property is not lost by adverse possession and limitation. The trial court also considered the contentions of the first defendant that the properties acquired under Ext.A4 and A10 deeds are liable to be excluded from the partition. The trial court examined the contentions on the basis of Exts.A2, A4, A10 and oral evidence of DW1. Ext.A2 is the certified copy of the melotty executed by the first defendant and Sanku Kochu Kunju in favour of Krishnan. Ext.A2 was redeemed under Ext.A4 release deed. The court on facts held that there is nothing to show that the consideration under Exts.A4 and A10 were paid by DW1 from the income of the family property and concluded that the consideration under Exts.A4 and A10 were paid by DW1 out of his own funds and that the first defendant ## **S.A.No.584 Of 1997** ::12:: alone is entitled to those properties i.e., 73 cents of property and that the plaintiffs have no right to claim any portion over it. Trial court found that the liability under Ext.A2 has been discharged by the first defendant out of his own funds. The court also on facts held that Exts.A13, A14 and A16 do not bind the plaintiffs. The court found that 73 cents covered by Exts.A4 and A10 deeds are not available for partition the balance property available for partition is only 31 cents. The court found that 7[th] plaintiff and first defendant are entitled to one half share each of the 31 cents of property available for partition. The trial court also did not accept the contentions of the first defendant that building was constructed with his own funds. The trial court held that the said contention cannot be accepted. With regard to mesne profits the court found that the 7[th] plaintiff is entitled to mesne profits from out of the share due to her and the quantum of share is determined at the time of passing of the final decree. 8. The lower appellate court modified the decree passed by the trial court. On facts the lower appellate court held that the first plaintiff is the legally wedded wife of deceased Sanku ## **S.A.No.584 Of 1997** **==> picture [26 x 9] intentionally omitted <==** Kochu Kunju and plaintiffs 2 to 6 and 8 to 11 are their children. The lower appellate court on facts also held that the first defendant alone is not entitled to 33 cents of land redeemed by him by virtue of Ext.A4 release deed. After referring to the very same materials namely, Exts.A1 and A5 to A10 the court observed that if part of the consideration for Ext.A10 sale deed had proceeded from Sanku Kochu Kunju nothing prevented him from being a party in Ext.A9 compromise petition and Ext.A10 sale deed. The court also on facts observed that there is no evidence in this case that part of consideration for Ext.A10 flowed from Sanku Kochu Kunju also. The court accepted the contentions of the defendants 1 to 3 that 40 cents of land covered by Ext.A10 is in the exclusive possession and ownership by the first defendant. After referring to Exts.A5, A6, A10, A11 and A12 deeds the court rightly held that the aforesaid document show that 40 cents (1/3[rd] oodukur right) was handled by the first defendant as if it was exclusively owned by him and that the consideration for the sale deed has proceeded from the first defendant alone and it was executed for the exclusive benefit of ## **S.A.No.584 Of 1997** **==> picture [26 x 9] intentionally omitted <==** the 1[st] defendant. The court held that Ext.A10 is an outright sale in favour of the first defendant and as such plaintiffs are not entitled to claim share over that portion of plaint schedule property covered by Ext.A10 sale deed. The appellate court thus held that Sanku Kochu Kunju did not derive any right over the 40 cents (1/3[rd] oodukur right) of land covered by Ext.A10 sale deed and as such 40 cents of land is not partible. 9. The appellate court also considered the question as to whether Ext.A4 sale deed dated 9.10.1979 would enure to the benefit of Sanku Kochu Kunju also or whether it is for the benefit of the first defendant alone. The court referred to and placed reliance on Exts.A2, A3 and A4 deeds. The court on facts concluded that it is to be rightly presumed that the entire amount has came from the first defendant alone. The trial court found that the property covered by Ext.A4 release deed is not partible because Ext.A4 stands in the name of first defendant alone and he has exclusive right over the said extent. It is contended by the defendants that by virtue of release deed, the first defendant got absolute right over the said portion of the property. The ## **S.A.No.584 Of 1997** ::15:: contention of the plaintiffs that the consideration for Ext.A4 flowed from the income from the plaint schedule property was not accepted by the court. It is contended by the plaintiff that by virtue of Ext.A10 sale deed the first defendant has been subrogated to the position of a mortgagee. 10. It is contended by the counsel for the appellants that by redeeming the mortgage the appellants have been subrogated to the position of a mortgagee, the co-mortgagor cannot claim any exclusive right over the property covered by release deed. The lower appellate court held that Sanku Kochu Kunju is a coowner of the plaint schedule property which is not in dispute in this case. So it is in evidence that Sanku Kochu Kunju is a comortgagor. Being a co-mortgagor the benefit of Ext.A4 release deed must invariably enure to the benefit of Sanku Kochu Kunju also and after his death to his legal heirs. The lower appellate court also relied on the decision of the Apex Court in _**Ganeshi Lal v. Joti Pershad**_ (AIR 1953 SCC 1) and decision of this Court in _**Lakshmi Pilla Subhadra Amma v. Easwara Pilla Velayudhan Pilla**_ (1977 KLT 464). The Apex Court in the ## **S.A.No.584 Of 1997** ::16:: ## decision reported in _**Krishna Pillai v. Padmanabha Pillai**_ (2004 (2) KLT 61 SC) held that in a suit filed by the nonredeeming co-mortgagor against the redeeming co-mortgagor claiming for his share in the property, on payment of his proportionate share of the mortgage money, redeeming comortgagor does not get subrogated himself in place of original mortgagee, that it is not necessary for non-redeeming comortgagor to seek relief of redemption and held that suit for declaration, partition and recovery of possession by nonredeeming co-mortgagor is maintainable. Limit for suit is governed by Article 120 of the Limitation Act, 1963. 11. The lower appellate court accepted the contention of the plaintiffs that the first defendant who has redeemed the superior mortgage by virtue of Ext.A4 release deed is entitled only to the share of the mortgage money and in the said circumstances the lower appellate court found that the property covered by the release deed is also partible and that the first defendant is entitled to claim mortgage money paid by virtue of Ext.A4 release deed over and above his share paid by him. The ::17:: ## **S.A.No.584 Of 1997** lower appellate court also found that the portion of the property covered by Ext.A10 in favour of the first defendant is not partible and thus held that the plaint schedule property excluding the property covered by Ext.A10 is partible. Ext.A10 deed is in respect of 1/3[rd] right over the plaint schedule property. The court also rightly held that equity demands that the entire property be measured and based on that measurement the extent of the property covered by Ext.A10 sale deed is to be fixed and the sharers will suffer or may gain proportionately as far as the extent of property is concerned based on that measurement. The lower appellate court also on the basis of the above findings dismissed the cross objection filed by the defendants. In the light of the findings entered on the basis of materials on record the lower appellate court modified the preliminary decree. The plaint schedule property excluding 1/3[rd] of the property are ordered to be partitioned for the purpose of separation of the share of plaintiffs and first defendant. The finding entered by the lower appellate court on the basis of materials on record is justified in all respects. I find that even on facts a different ## **S.A.No.584 Of 1997** **==> picture [26 x 9] intentionally omitted <==** conclusion is not possible. No question of law muchless any substantial question of law arises for consideration in the second appeal. The parties to the suit are entitled to move the final decree court for working out the equity, if it is available, in the facts, circumstances and findings entered by the courts below. In the result, the appeal fails and accordingly dismissed. No order as to costs. **HARUN-UL-RASHID, Judge.** bkn/-