SARAMMA ITTOOP Vs. KUNJAMMA KURUVILLA

JUDGEMENT

(1.) Defendants 2,3 and 5 in O. S. No. 223 of 1990 on the file of the Court of Subordinate Judge of Moovattupuzha, challenge the preliminary judgment and decree of the trial court by which the plaintiffs were held entitled to 2/10 shares in the plaint schedule property and 2/10 shares in the rent received in respect of the buildings and defendants 2 to 5 were restrained from causing any obstruction to the plaintiffs in taking water from the plaint schedule property. It was also provided in the preliminary decree that as far as possible, partition should be effected without affecting the residence of defendants 2 to 5.

(2.) The plaint schedule property and the building therein belonged to Ittoop Kurian. He was a bachelor. Ittoop Kurian has three brothers and five sisters, namely, Varghese, Kurivilla, Ittoop, Annamma Chacko, Sosamma Uthup, Mariamma, Aleyamma and Saramma Kuriakose. The plaintiffs are the daughter and widow of Kuruvilla. Sosamma Uthup died and her legal representatives are since deceased P.U.Ittoop and the 11th defendant P.U.Mathew. The legal representatives of P.U.Ittoop are defendants 2 to 5. Defendants 6 to 9 are the legal representatives of Mariamma. Defendants 12 to 15 are the tenants in the building.

(3.) The case of the plaintiff is as follows: After the death of Ittoop Kurian, his three brothers executed Exhibit A1 settlement deed dated 17-1-1957 entrusting P.U.Ittoop with the management of the plaint schedule property and making him liable to account for the income derived from the property. Even after the execution of exhibit A1, improvements were effected in the property by Kuruvilla, the father of the first plaintiff. As per the settlement deed, P.U.Ittoop was liable to meet the expenses of the parents of Ittoop Kurian. Certain other conditions are stipulated in Exhibit A1. P.U.Ittop was only an agent of the excitants of the settlement deed. On the death of P.U.Ittoop, the agency has been terminated. Defendants 2 to 5 did not derive any title to the property under Exhibit A1 settlement deed. The settlement deed does not in any way affect the rights of the plaintiffs and the other legal heirs of Ittoop Kurian in the plaint schedule property. Even after the death of P.U.Ittoop, defendants 2 to 5 use to take usufructs from the property and they accounted the same. Recently, they have shown disinclination to do so. Defendants 2 to 5 filed rent control petitions against the tenants claiming themselves as owners. The buildings were constructed by Kuruvilla, the father of the first plaintiff. He also installed a motor pump house and water tank. The improvements are to be reserved to their share. The plaintiffs have easement right to have access to their other property. Injunction is sought restraining defendants 2 to 5 from causing obstruction to the plaintiffs in enjoining the easement of necessity. A prayer for injunction restraining defendants 2 to 5 from effecting permanent improvements in the property was also made.