NARAYANI Vs. SREEDHARAN

JUDGEMENT

(1.) Defendants in O.S.333/1996 on the file of Principal Munsiff Court, Irinjalakuda are the appellants. Plaintiff is the respondent. Suit was filed for partition of the plaint schedule properties and allotment of one half share due to the respondent. Plaint schedule properties are 14 cents in survey No. 119/1 and 26 cents in survey No. 119/2 of Annallur Village of Mukundapuram Taluk. Respondent would contend that the plaint schedule property originally belonged to first appellant and her husband Govindan, parents of the respondent and second appellant. Though under Ext.B-1 settlement deed, the properties were agreed to be enjoyed jointly by the first appellant and Govindan, Govindan assigned his one half right over the plaint schedule properties to the respondent under Ext.A-1 sale deed dated 25-2-1995 and hence respondent has one half right in the plaint schedule properties. Respondent sought separation of his one half share contending that he is not willing to continue joint possession. First appellant resisted the suit contending that the plaint schedule properties were purchased by the first appellant and her husband under registered sale deed 495/1120 ME and have been in possession and enjoyment of the same and while so, in 1986 she along with her husband executed Ext.B-1 settlement deed which provides that properties shall be in their joint possession and Govindan during his lifetime has no right of alienation and on the death of anyone of them, the other would get absolute right over the property. It was contended that Govindan is therefore not competent to assign his right and therefore, respondent is not entitled to claim any right under Ext.A-1 sale deed. It was contended that in 1996, first appellant assigned the plaint schedule properties in favour of the second appellant and he has been in possession of the property and the respondent is not entitled to claim any share. Second appellant filed a separate written statement reiterating the same contentions.

(2.) Learned Munsiff on the evidence of P.W. 1, Exts. A-1 to A-5 and B-1 and B-2 found that Govindan and first appellant jointly executed Ext B-1 and it provides that on the death of the other, the property would devolve on the surviving executant absolutely and without the consent of the first appellant, Govindan was not entitled to transfer his right and therefore, based on Ext.A-1 executed by Govindan, respondent is not entitled to claim any share. Suit was dismissed. Respondent challenged the decree before District Court, Thrissur in A.S. 345/2003. Learned Additional District Judge on re-appreciation of the evidence found that though Ext.A-1 provides that plaint A schedule property shown therein shall be in their joint possession during their life time, on the death of anyone of them, the surviving executant shall enjoy it absolutely with power of alienation. It was also found that Govindan has the right to alienate his right in the property, as it is not prohibited under Ext.B-1, and Govindan validly alienated his rights under Ext.A-1 and hence respondent is entitled to one half share. Finding that the plaint schedule properties are available for partition, appeal was allowed and a preliminary decree was passed directing division of the plaint schedule properties into two equal shares and allotment of one share, with future share of profits, to the respondent providing that second appellant is liable to pay the share of profits. The said decree is challenged in this appeal.

(3.) Appeal was admitted formulating the following substantial question of law: