KUMARAN AND OTHERS Vs. P MADHAVI AND OTHERS

JUDGEMENT

(1.) The appellant is the second defendant in O.S.No.720 of 1992 on the file of the Court of the Subordinate Judge of Kozhikode. Respondents 1 to 3 are the plaintiffs and the fourth respondent is the first defendant therein. After the appeal was filed, the sole appellant (the second defendant)passed away and thereupon, his legal heirs got themselves impleaded as additional appellants 2 to 9 by order passed on 19.09.2003 on C.M.P.No.4951 of 2001. Shortly thereafter, the fourth respondent (the first defendant) expired and thereupon his legal heirs were impleaded as additional respondents 5 to 8 by order passed on 14.09.2015 on I.A. No.509 of 2012.

(2.) The suit instituted by respondents 1 to 3 is for partition of the plaint schedule property into five equal shares and for allotment of three such shares to them. Respondents 1 to 3 had in the plaint averred that the plaint schedule property along with other properties belonged to late Manikkam who had kanam right over the properties, that later, her son Choyikutty purchased the jenm right over the plaint schedule property and that on the death of Manikkam, the properties devolved on her sons, Choyikutty and Kuttan. The plaintiffs contended that on the death of Kuttan on 21.12.1950 his share devolved on the plaintiffs, his daughters and the defendants, his sons in equal shares. The plaintiffs contended that though Ext.A3 notice dated 13.7.1992 was issued demanding partition, the second defendant caused a reply notice to be issued contending that Kuttan died on 21.12.1950 before the commencement of the Hindu Succession Act, 1956, that prior to his death, the plaint schedule property and other properties were partitioned and that the plaint schedule property was set apart to the share of Kuttan and his sons, the defendants. The plaintiffs contended that on the death of Manikkam, her rights devolved only on Choyikutty and Kuttan, that Kuttan died only on 21.02.1959 after the commencement of Hindu Succession Act, 1956, and therefore, the plaint schedule property which was set apart to the share of Kuttan and his sons is liable to be partitioned into 5 equal shares and three such shares allotted to them. The plaintiffs had in paragraphs 5 and 7 of the plaint averred that the legal heirs of Manikkam are her sons Choyikutty and Kuttan and that the defendants, who are the sons of Kuttan are not her legal heirs.

(3.) Upon receipt of summons, the first defendant entered appearance and filed a written statement dated 19.01.1993 admitting the plaint claim. The second defendant filed a written statement dated 28.01.1993 contending that the plaint schedule properties are not partible, that even during the lifetime of Kuttan, the plaint schedule properties were allotted to to the share of Kuttan and his sons, who are the defendants in the suit. They contended that the plaintiffs have no right over the plaint schedule properties and that the plaint schedule properties were further partitioned as per partition deed dated 26.7.1985 registered as document No.2181 of 1985 of Sub Registrar's Office, Kakkodi.