A. MURALEEDHARAN Vs. A. VENKITESH

JUDGEMENT

(1.) THE second appeal is filed by the plaintiffs 1 and 2 in O.S.No.175 of 1996 on the file of principal Sub Court, Alappuzha, who were appellants 1 and 2 in A.S. No.154 of 2001 on the file of the Additional District Court, Alappuzha. Respondents 1 and 2 herein were the defendants 1 and 2 in the Original Suit and respondents 1 and 2 in the appeal.

(2.) O .S.175 of 1996 is a suit for partition. The plaint averments are briefly as follows: The first plaintiff is the elder brother of the first defendant. They are the children of late Anantha Shenoy. The second plaintiff is the son of the first plaintiff and the second defendant is the wife of the first defendant. The parties are governed by Hindu Mithakshara Law. The plaint schedule properties are joint Hindu family properties and plaint schedule properties are plaint schedule items 1 to 9 were allotted to the share of late Krishna Shenoy, who is the grandfather of the first plaintiff and the first defendant as per partition deed No.2820 dated 24.10.1105 M.E. of SRO, Alappuzha. Krishna Shenoy as the Manager of the joint family consisting of his sons and grandsons, was managing the property. Plaint item No.10 was acquired by him out of the joint family funds. The plaint B schedule properties are the movable properties belonging to their joint family. Krishna Shenoy died in the year 1960 and his rights devolved upon the first plaintiff, first defendant and their father Anantha Shenoy, who are the surviving co-parceners. The second plaintiff has got right over the joint family properties by birth. After coming into force of the Kerala Joint Hindu Family System (Abolition) Act, 1975, the joint tenancy was ceased and they became tenants- in- common. The wife of Anantha Shenoy, who is the mother of the first plaintiff and first defendant also died. So, the right of Anantha Shenoy devolved upon the first plaintiff and first defendant alone. Therefore, the plaintiff and the first defendant are entitled to 3/8 shares each and the second plaintiff is entitled to 2/8 shares over the plaint schedule property. Plaint item No.1 in A schedule is the family house. Plaint item No.2 in A schedule is a  building separately constructed by the 1st plaintiff. The 2nd defendant was running a kids school without the knowledge and concurrence of the plaintiffs in the building in A schedule item No.1 which is injurious to that item. It is accordingly, the plaintiffs demanded partition of the property and allotment of their due share. Though the defendants initially agreed to, later they turned down. The 2nd defendants has also filed a suit for injunction against the first plaintiff, alleging that she is the tenant of the building. So, the plaintiffs   brought the suit for partition and separate possession of their due share together with the future mesne profits @ Rs. 7,631/- per year to first plaintiff and at Rs. 5,087/- per year to the second plaintiff.

(3.) PLAINTIFF filed a replication transversing the contentions raised by the defendant. In the replication, it is contended that 22 cents of property scheduled in the written statement absolutely belonged to the first plaintiff as per purchase certificate No.3619 dated 15.1.1977 issued by the Land Tribunal, Alappuzha in O.A.No.987/1976.