KRISHNAN NAIR Vs. VASUDEVA PANICKER

JUDGEMENT

(1.) The defendants 2 and 5 and one of the legal representative of the deceased first defendant in a suit for partition are the appellants. The first respondent filed the suit alleging that the plaint B schedule properties originally belonged to one Paru Amma, the mother of defendants 1 to 4 and one Sinnammu Amma, the mother of defendants 5 to 10; Paru Amma and Sinnammu Amma obtained these properties along with certain other properties by virtue of a Will executed by one Velayudhan Nair, their uncle; the Will dated 30.11.1930 is a registered Will; upon the demise of the testator the Will came into effect and the properties were being possessed and enjoyed by Paru Amma, Sinnammu Amma and their children. Thereafter Sinnammu Amma's share in the properties were assigned to one Kunhilekshmi Amma as per assignment deed No. 2918 of 1944 of the S.R.O., Feroke; who assigned the properties to Paru Amma , i.e. Sinnammu Amma's sister under assignment deed No. 4581 of 1944 of the S.R.O., Feroke. It was further averred in the plaint that Paru Amma, the mother of defendants 1 to 4 died in the year 1968. As per the assignment deed No.2918 of 1944 Sinnammu Amma had assigned her right only in Kunhilekshmi Amma's favour. But the right of the defendants 5 to 10, the children of Sinnammu Amma was not sold to anybody. The right of the second defendant, a son of Paru Amma in the property was assigned to the plaintiff as per the assignment deed registered on 16.3.1967 and the right of the 7th defendant, a son of Sinnammu Amma was assigned to the plaintiff as per another document dated 23.4.1986. Consequently the B Schedule properties are now possessed and owned jointly by the plaintiff, defendants 1,3 to 6 and 8 to 10 as coowners. Now the plaintiff is a coowner. Since the plaintiff is residing far away from the properties, he is not getting any share of profits. Hence the suit for partition of B schedule property and for allotment of 9 out of 42 shares to the plaintiff with mesne profits.

(2.) A joint written statement was filed by the defendants 1 to 4 refuting most of the averments in the plaint. The suit is not maintainable. It was contended inter alia that the property originally belonged to Velayudhan Nair, their uncle. 11 items of properties were bequeathed by Velayudhan Nair as per registered will dated 30.11.1930. It was further contended that item Nos. 1 to 9 mentioned in the Will were bequeathed by Velayudhan Nair in the names of his nieces and nephews, i.e. Paru Amma (the mother of the defendants), Krishnan Nair, Velayudhan Nair and the children of Paru Amma and Sinnammu Amma , both existing and to be born. It was contended that item Nos. 10 and 11 in the Will were bequeathed for the enjoyment with the right of alienation to Paru Amma and Sinnammu Amma only. The other 9 items bequeathed under the Will jointly to the nieces and nephews of the testator were partitioned as per a registered partition deed. It was further contended that as the properties, i.e. item Nos. 10 and 11 in the Will were being enjoyed and possessed by Paru Amma and Sinnammu Amma alone; Sinnammu Amma's half right over the properties were assigned to Kunhilekshmi Amma as per assignment deed No.2918 of 1944; thereafter Kunhilekshmi Amma assigned the property in favour of Paru Amma in the year 1944 and from that year till Paru Amma died in the year 1967 Paru Amma enjoyed the property openly and without any hindrance from any quarter. Upon the death of Paru Amma the properties devolved upon these defendants and thereafter Paru Amma's husband Imbichunni Kurup. Imbichunni Kurup died on 4.9.1986 and his interest in the property devolved upon defendants 1 to 4. Thus the defendants alone are the coowners and they are enjoying the properties. The defendants 5 to 10 were having no right over the properties and the contention that the properties were being possessed by all the defendants is incorrect. It is not correct to say that Sinnammu Amma has assigned only her share right in the property to Kunhilekshmi Amma. Neither the children of Paru Amma nor the children of Sinnammu Amma have obtained any right over the properties mentioned as item Nos. 10 and 11 in the Will. Even if any document is executed in favour of the plaintiff regarding any property said to be the properties of the 2nd and 7th defendants vide document Nos. 1967 and 1986, the plaintiff will not acquire any rights since the defendants 2 and 7 have no right to execute any document in favour of the plaintiff. The documents in favour of the plaintiff are sham documents; the plaintiff has not obtained any right over the properties; if at all the properties mentioned as item Nos. 10 and 11 in the Will; even if anybody else was having right over that properties, such rights have been lost by ouster and adverse possession as the properties were possessed by Paru Amma over the property.

(3.) The defendants 5, 6, 8, 9 and 10 filed separate written statements admitting the plaint claims and confessing for a decree partition. They remitted requisite court fee for separate allotment of shares.