JOSE Vs. ANTONY

JUDGEMENT

(1.) THE plaintiff in O.S.No. 1005/87 on the file of the Sub Court, Thrissur is the appellant.

(2.) THE suit was for partition of one item of property measuring 33 x 36 six feet koles and forming part of Survey No.62/2 Engandiyoor Village with the building thereon. The plaintiff claimed that, as per a partition deed of 1946, the property belonged to his father Iyyob, who died in 1961 leaving behind his wife Achayi, 4 sons and three daughters. Achayi also died in 1971. Neither had left behind any valid will or testament. The plaintiff further stated that a lower primary school under the ownership and management of Iyyob was transferred to the plaintiff before his death and the defendants had no claim over that property. He further stated that Celine, subsequently impleaded as the 6th defendant, who is one of the daughters Iyyob and Achayi, had executed a release of her share in favour of her mother and so, she had no right in the property. Another item of property owned by the father was sold in favour of one Visalakshi in 1977 by the plaintiff and the defendants together and only the plaint schedule property is available for partition. The plaintiff claimed 3/14th share in the property scheduled in the plaint with share in profits from the defendants.

(3.) ON the pleadings, the learned Sub Judge framed issues. Both sides adduced evidence. On a consideration of the evidence, the learned Sub Judge found that the property scheduled in the written statement of defendants 1 to 3 including the school was available for partition. The learned Sub Judge discarded the plea that the two sisters who had joined a convent as nuns were not entitled to shares and held that they too were entitled to shares in the property. The learned Sub Judge rejected the prayer for reservation put forward by the 3rd defendant. The learned Sub Judge did not accept the evidence of the third defendant that the plaintiff was actually taking the income from a portion of the property and held that the defendants were liable to share in profits. The third defendant's exclusive claim for a motor and pump set in the property was also rejected but the learned Judge directed that it be set apart to his share on valuation on equitable considerations. The learned Sub Judge granted a decree for partition of a 1/7th share for the plaintiff and each defendant. Defendants 1 to 4 and 6 were also permitted to get their individual shares separately on payment of court fee.