HARIDASAN Vs. PADMAVATHI AMMA

JUDGEMENT

(1.) The plaintiff in a suit for partition concurrently non-suited by the Trial Court as well as the First appellate Court, is before this Court contending that both the courts appreciated the evidence and law involved in the case perversely, thereby giving rise to a substantial question of law for consideration of this Court.

(2.) OS No.74 of 2005 was instituted by the appellant/plaintiff seeking partition of the plaint schedule properties. According to the plaintiff, item No.1 of the plaint B schedule property originally belongs to one Cheriyathu Amma. She was the great grandmother of the plaintiff, defendant Nos.6 to 8 and the mother of late Laskhmi Amma, who is the grandmother of 5th defendant. Smt. Laskhmi Amma had two children, Achuthan Nair and Ammini Amma. The 5th defendant Bhavani Amma is the daughter of Ammini Amma. Ammini Amma predeceased Lakshmi Amma. Item No.1 of the plaint schedule property was obtained by Laskshmi Amma as per the purchase certificate pursuant to the suo moto proceedings No.8770/1967 of the Land Tribunal, Ottappalam. Since item No.1 of the plaint B schedule is ancestral property as well as Thavazhi property, the plaintiff is entitled to the right over the same by birth. Item No.2 of the plaint schedule property was obtained by the father of the plaintiff, the 7th and 8th defendants and also by the husband of the 5th defendant, one Madhavan Nair. After the death of Madhavan Nair, item No.2 of the plaint schedule property jointly belongs to the plaintiff and defendant Nos. 5,7 and 8.

(3.) The defendants entered appearance and contested the suit by raising a contention that the plaintiff is not entitled to a decree for partition on item No.1 since the plaint schedule property had devolved upon Smt. Lakshmi Amma in her individual capacity and she did not possess the property for and on behalf of the Tharavadu. Since it is an independent acquisition of Smt. Laskhmi Amma and later devolved upon the 5th defendant by inheritance through Ammini Amma and also Ext.B1 Will on 20/9/1987, she is the absolute owner of the property. On behalf of the plaintiff, Exts.A1 to A7 documents were marked and PW1 was examined. On behalf of the defendants, Exts.B1 to B4 documents were marked and DW1 and DW2 were examined. The trial court on the basis of the pleadings and documents on record, framed the following issues: