(1.) THESE Regular Second Appeals are directed against the judgment and decree passed in A.S.No.121/98 on the files of the Additional Sub Court, Kottayam, arising from the judgment and decree in O.S.No.786/93 on the files of the Additional Munsiff's Court, Kottayam. The appellant in R.S.A.No.196/04 is the plaintiff in O.S.No.786/93 on the files of the Additional Munsiff's Court, Kottayam, and the 1st respondent in A.S.No.121/98 of the Additional Sub Court, Kottayam. The defendants 2 to 6 are the respondents in R.S.A.No.196/04. R.S.A. No.197/04 is filed by the defendants 2, 4, 5 and 6 in the same Original Suit.
(2.) THE suit was one for partition. All, except the 3rd defendant, remained ex parte. The 3rd defendant resisted the claim of the plaintiff for partition. The 1st defendant is the mother of the plaintiff. Sri. Padmanabhan, the husband of the 1st defendant and the father of the defendants 2 to 6, expired on 7/2/1988. The plaintiff and the defendants 2 to 6 are the only legal heirs of the deceased Padmanabhan. According to the plaintiff, they belong to Hindu Viswakarma Community governed by the Hindu Succession Act. The plaint schedule property, having an extent of 24 cents of land in Nattakom Village, belonged to the deceased Padmanabhan. The total extent of the property was 33 cents and out of it, 9 cents of property was given to the plaintiff, as per the settlement deed No.2533 dated 2/8/1979 of Kottayam SRO at the time of the marriage of the plaintiff. The father has constructed two buildings in the plaint schedule property. Building No.288/111 is a residential building which was constructed about 36 years back of his death. The other building is a workshop of his business. The father died intestate. So, the plaintiff is entitled to get 1/7th share of the plaint schedule property. Though the plaintiff had demanded partition and separate possession, the defendants 2 to were not amenable for the same. Hence the suit.
(3.) THE 3rd defendant filed a written statement denying the contention that the plaintiff and the defendants are the Hindu Viswakarma Community and they are governed by the Hindu Succession Act. Before the death of the father, 9 cents of property was given to the share of the plaintiff and her husband and that had been received by the plaintiff towards her share. At the time of execution of that settlement deed in favour of the plaintiff, the deceased father had only 33 cents of property, including the 9 cents of property settled in favour of the plaintiff. 9 cents of property was given out of total 33 cents, as the share of the plaintiff. After the settlement deed, the plaintiff has demarcated the 9 cents of property and she is residing in the house put up therein. Since the plaintiff has received 9 cents of property towards her share, out of the property of the deceased father, she has no right to further claim for partition. Hence the suit is barred by estoppal. In short, the plaintiff has given more extent of property than actually she is entitled as her share. The building and the workshop in the plaint schedule has been constructed by the 3rd defendant. He is doing the workshop business also. The 3rd defendant has modified the old building using his own fund and he is residing in the house with his family. Towards the share of the defendants 2 to 6, out of the property of the father, they were given gold ornaments and money at the time of marriage. So, they are not entitled for any further share from the property of the father. It is denied that the plaint schedule property is in the joint possession and ownership of the plaintiff and the defendants. The plaintiff was examined as P.W.1 and an Advocate Commissioner was examined as P.W.2 and Ext.A1