KARTHI PANKAJ AKSHY Vs. LALITHA SUJATHA

JUDGEMENT

(1.) This appeal is by the first respondent in AS. 153/1983 of the District Court, Trivandrum who was the first defendant in O.S. 88 of 1980 of the Munsiffs Court. The suit was one for partition and allotment of the plaintiffs 1/11th share in A schedule property and 1/11th share in the one-half of plaint B schedule property. The suit was dismissed by the Trial Court, against which the first respondent preferred A.S. 153 of 1983 before the District Court, Trivandrum. The District Court allowed the appeal and passed a preliminary decree for partition declaring that, the first respondent is entitled to 1/10 share in the plaint A schedule property and 1/10 in the one-half of the plaint B schedule property. Though the share claimed in the plaint is 1/11, the lower appellate court passed a preliminary decree for 1/10 share. Para 11 of the lower court's judgment states that, since the first respondent has applied for amending the plaint stating that the 8th respondent is not entitled to any share the appellant is entitled to 1/10. The judgment does not say that, the application for amendment was allowed; no order is seen to have been passed on LA 315/1984 filed for the said purpose.

(2.) The first respondent's case in brief was that, herself and respondents 9 and 10 are the children of deceased Bhaskaran through his second wife, the 8th respondent. The appellant is the first wife of deceased Bhaskaran and respondents 2 to 7 are her children. The appellant, contested the suit. She denied the marriage between Bhaskaran and the 8th respondent. She also denied the claim that, the 1st respondent and respondents 9 and 10 are the children of Bhaskaran.

(3.) It is admitted that, the appellant is the widow of deceased Bhaskaran, and respondents 2 to 7 are his children born to the appellant. Plaint A schedule was obtained by deceased Bhaskaran as per Ext.Al gift deed, and B schedule was obtained under Ext.A2 sale deed which stands in the name of Bhaskaran and his wife, the appellant.