TALAKKOTTUR R.DAVID Vs. CICILY JOSEPH

JUDGEMENT

(1.) THE appellant is the petitioner before the court below and the respondent, his former wife is the respondent before the court below. The O.P. was filed by the appellant for a declaration that the appellant is the absolute owner of the plaint schedule property (property extending to 1 acre and 75 cents of land at Peechi in Thrissur District together the buildings and other improvements thereon) belongs to him absolutely and also for a prohibitory injunction restraining the respondent from interfering with his possession and enjoyment of the property. The original petition was resisted by the respondent, who filed a detailed counter statement, contending that the property belongs to the parties jointly by virtue of Ext.A1 sale deed. It was contended that the entire consideration of Rs.10,000/- set out in Ext.A1 belonged to her, though paid through her father-in-law. She concedes that the property is the joint property of the parties. A counter claim was lodged by the respondent seeking partition of the plaint schedule property into two equal shares and allotment of one share, together with share of profits. The pleadings raised by the parties have been narrated by the court below in detail in the impugned order and hence we do not venture to narrate them over again in this judgment. The documentary evidence on the side of the appellant consisted of Exts.A1 to A16. The appellant got himself examined as PW1. The documentary evidence on the side of the respondent consisted of Exts.B1 to B4. The witness on the side of the respondent was her power of attorney holder and nephew, who was examined as RW1. The court below on the basis of the pleadings raised by the parties formulated the following points for trial in the O.P. as well as the counter claim.

(2.) THE court below on evaluating the evidence would answer point numbers 1 and 2 in favour of the respondent. Point numbers 3 and 4 were also answered against the petitioner in view of the finding already entered in point numbers 1 and 2. Coming to point number 5, the court below found that the appellant is liable to pay future share of profits to the respondent and since there was no satisfactory evidence available regarding the actual income, relegated the issue of quantum of profits to be decided in final decree proceedings. On point number 6, it was found that the property belongs to the appellant and the respondent jointly having equal rights and accordingly, a preliminary decree for partition was passed in the following terms:

(3.) THE appellant, Sri. Talakkottur R. David appeared before us in person. He addressed extensive submissions before us. We heard the learned counsel for the respondent also.