Sri Chandy and Sri Paulose v. SMT. Mariyamma and others

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR. JUSTICE A.HARIPRASAD FRIDAY, THE 12TH DAY OF AUGUST 2016/21ST SRAVANA, 1938 SA.No. 531 of 2001 (E) ----------------------AGAINST THE JUDGMENT AND DECREE IN AS NO.97/1996 of V ADDITIONAL DISTRICT COURT, ERNAKULAM DATED 21.11.2000 AGAINST THE JUDGMENT AND DECREE IN OS NO. 256/1992 of SUB COURT, MUVATTUPUZHA DATED 29.08.1995 ADDRESS OF THE APPELLANTS/APPELLANTS/DEFENDANTS 1 & 2: ------------ 1. SRI.CHANDY, S/O.LATE ULAHANNAN, AGED 74 YEARS, RESIDING AT MANDOTHUMKUZHIYIL HOUSE, MANEED VILLAGE, MUVATTUPUZHA TALUK. 2. SRI.PAULOSE, S/O.LATE ULAHANNAN, AGED 71 YEARS, RESIDING AT MANDOTHUMKUZHIYIL HOUSE, MANEED VILLAGE, MUVATTUPUZHA TALUK. BY ADVS.SRI.MATHEWS K.UTHUPPACHAN SRI.BIJU .C. ABRAHAM - SRI.TERRY V.JAMES ADDRESS OF THE RESPONDENTS/RESPONDENTS/PLAINTIFFS/DEFENDANTS 3 TO 7: - -------------- 1. SMT.MARIYAMMA, D/O.LATE.ULAHANNAN & W/O.MATHAI, AGED 61 YEARS, RESIDING AT UNDOTHIL HOUSE, PAZHOOR KARA, PIRAVOM VILLAGE, MUVATTUPUZHA TALUK. 2. SRI.MATHAI, S/O.LATE.ULAHANNAN, AGED 59 YEARS, RESIDING AT MANDOTHUMKUZHIYIL HOUSE, MANEED VILLAGE, MUVATTUPUZHA TALUK. 3. SRI.JOHNY, S/O.MATHAI, AGED 33 YEARS, RESIDING AT MANDOTHUMKUZHIYIL HOUSE, MANEED VILLAGE, MUVATTUPUZHA TALUK. - 4. SRI.GEORGE DANIEL, S/O.LATE.DANIEL, AGED 53 YEARS, - (*)(*) RESIDING AT KOOMULLIL CHIRAKATHADATHIL HOUSE, PAMBRA KARA, MANEED VILLAGE, MUVATTUPUZHA TALUK. (NAME CORRECTED AS MATHAI @ GEORGE) (DIED) (LRS IMPLEADED) 5. SMT.VALSA, W/O.THANKACHAN, THACHETHU HOUSE, VENNIKKULAM KARA, THIRUVANIYOOR VILLAGE, KUNNATHUNADU TALUK. SA NO.531/2001 2 6. SMT.MARY, D/O.CHANDY, MANDOTHUMKUZHIYIL HOUSE, MANEED VILLAGE, MUVATTUPUZHA TALUK. ## (*)(*) ADDL.RESPONDENTS: 7. SANTHA MATHAI, W/O.LATE MATHAI @ GEORGE DANIEL, AGED ABOUT 50 YEARS, KOOMULLIL CHIRAKATHADATHIL HOUSE, PAMPRA KARA, VETTICKAL P.O., PIN-682314, MANEED VILLAGE, MUVATTUPUZHA TALUK. 8. DINU, S/O.LATE MATHAI @ GEORGE DANIEL, AGED ABOUT 26 YEARS, KOOMULLIL CHIRAKATHADATHIL HOUSE, PAMPRA KARA, VETTICKAL P.O., PIN-682314, MANEED VILLAGE, MUVATTUPUZHA TALUK. *THE NAME OF 4TH RESPONDENT IN THE CAUSE TITLE IS CORRECTED AS MATHAI @ GEORGE AS PER ORDER DTD.14.10.03 ON IA 979/03. (*)(*)LEGAL HEIRS OF DECEASED 4TH RESPONDENT ARE IMPLEADED AS ADDL. RESPONDENTS 7 AND 8 AS PER ORDER DATED 12.08.2016 IN IA NO.1109/2013. R1 & R2 BY ADVS. SRI.SIJI.K.PAUL SRI.P.M.JOSHI SRI.K.T.SAJU THIS SECOND APPEAL HAVING BEEN FINALLY HEARD ON 12-08-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## **A.HARIPRASAD, J.** ## **-------------------------------------S.A. No.531 of 2001 -------------------------------------Dated this the 12[th] day of August, 2016** ## **JUDGMENT** This second appeal is filed by the defendants 1 and 2 in O.S.No.256 of 1992 on the file of the Court of Subordinate Judge, Muvattupuzha. The suit is one for partition. Plaintiff and other defendants are the respondents. 2. Heard the learned counsel for the appellants and the contesting respondents. 3. Plaint averments, in brief, are as follows: Plaint A schedule property belonged to the plaintiff's father Ulahannan and he was in possession of the property till his death in 1944. He died intestate. Plaint B schedule property belonged to plaintiff's mother Sosa. She obtained the property in usufructury mortgage right from one Kunja as per document No.2067 of 1117 ME of Sub Registrar Office, Koothattukulam. The period of mortgage fixed was five years. The period of redemption expired in 1947. Since the property was not redeemed within a period of 30 years from 1947, it became vested with the plaintiff's mother in 1977 in absolute right. Plaintiff and defendants 1 to 3 are the children of Ulahannan and Sosa. Defendants 4 and 5 are the assignees of the property. Plaintiff's marriage was in 1960. At that time she was not given any ornaments as 2 SA No.531/2001 her share. Therefore, she is entitled to get a share in the property of her father and mother after their death. Plaintiff is in joint possession of the property along with her brothers. With these averments she claimed partition. 4. Defendants 1 and 2 opposed the claim. Ulahannan died in the year 1944 and Sosa died in 1983. Plaint B schedule property was admittedly outstanding with Sosa in usufructury mortgage right. It is contended by the defendants that at the time of plaintiff's marriage, gold ornaments and cash were given. That fact is revealed from the partition deed executed in the year 1974 (Ext.A4). The recitals in the partition deed bind the plaintiff and she has no right to claim partition of the assets. Plaint B schedule was also partitioned in the year 1974. The parties were governed by the Travancore Christian Succession Act. In the partition deed, plaint A and B schedule properties were included. In respect of plaint A schedule property, the succession opened in the year 1944 when their father died. Plaintiff has no right over plaint A schedule property and the property is vested with defendants 1 to 3. With regard to plaint B schedule property, their mother Sosa was the absolute owner and the title of plaint B schedule property was purchased by the 1[st] defendant in 1117 ME from the mortgagor. The plaintiff has no right to claim partition. 5. Courts below, after considering the testimony of two witnesses on the plaintiff's side and three witnesses on the defendants' side and also 3 SA No.531/2001 Exts.A1 to A4 and B1 to B10 series along with Exts.C1 and C2 commissioner's report and plan, passed a preliminary decree in respect of plaint B schedule property. The finding that plaint A schedule is not available for partition has become final and there is no challenge against that finding. 6. Learned counsel for the appellants raised a contention that plaint B schedule was not available for partition for multiple reasons. According to him, by virtue of Ext.B4, the mortgagor Kunjan had assigned his right over plaint B schedule property in favour of the 1[st] defendant on 15.06.1995. It is the admitted case that Sosa, mother of the parties to the litigation, had a possessory mortgage right in respect of plaint B schedule property. Learned counsel for the appellants relying on Section 62 of the Transfer of Property Act, 1882 contended that the plea raised by the plaintiff that redemption of mortgage was barred by limitation cannot be sustained. Section 62 of the Transfer of Property Act says that in the case of usufructury mortgage, the mortgagor has a right to recover possession of the property together with mortgage deed and all documents relating to the mortgaged property, which are in the possession or power of the mortgagee in the case where the mortgagee is authorised to pay himself the mortgage money from the rents and profits of the mortgaged property -when such money is paid or where the mortgagee is authorised to pay himself from such rents and profits - when the term (if any) prescribed for 4 SA No.531/2001 the payment of mortgage money has expired and the mortgagor pays or tenders to the mortgagee the mortgage money or the balance thereof or deposits it in court. This contention of the 1[st] appellant cannot be sustained for the following reasons. He purchased the mortgagor's right by virtue of Ext.B4. It has come out in evidence that he became a co-owner in respect of the mortgagee's right and there is a merger of rights. Second thing is that in the written statement there is a candid admission by the appellants that deceased Sosa was the absolute owner of plaint B schedule property and the contention now put forward by the plaintiff is not borne out from the pleadings. 7. Another contention raised by the learned counsel for the appellants is that the plaintiff's claim cannot be countenanced for the reason that Sosa released her entire rights in respect of 77 cents (plaint B schedule) by virtue of an unregistered document. It can be seen that on the reverse side of Ext.B3 document, a writing, purported to have been written by Sosa, stating that she had released her claims over plaint B schedule property for consideration of `60/-. This document is opposed by the plaintiff. This writing is marked as Ext.B3(a). On a reading of Ext.B3(a), it can be seen that Sosa purportedly assigned her rights in favour of the 1[st] appellant/1[st] defendant by the said writing. It is hit by Section 17 of the Registration Act and by Section 54 of the Transfer of Property Act. Merely for the reason that the value fixed is `60/-, it cannot be accepted for its face 5 SA No.531/2001 value. Learned counsel for the appellants contended that it can be used for a collateral purpose to explain the nature of possession of the 1[st] appellant. Going by the case pleaded in the plaint, it can be seen that the 1[st] appellant is possessing plaint B schedule as a co-owner. Ext.B3(a) does not establish an exclusive right on the 1[st] appellant. Therefore, this document has no legal effect. 8. Admittedly the succession in respect of plaint B schedule property was open on the death of Sosa, ie., after the pronouncement of law by the Supreme Court in **Mary Roy v. State of Kerala ((1986) 2 SCC 209)** case. Hence the courts below found that the plaintiff is entitled to get a share in plaint B schedule. I find no legal infirmity in the judgments passed by the courts below. Therefore no substantial question of law arises for consideration in this case. Hence the second appeal is dismissed. All pending interlocutory applications will stand dismissed. ## **A. HARIPRASAD, JUDGE.** **cks** 6 SA No.531/2001 **A.HARIPRASAD, J.** **S.A.No.531 of 2001** ## **JUDGMENT** **12[th] August, 2016**