V GEETHA Vs. SARADA

JUDGEMENT

(1.) Plaintiff in O.S.No.73/1992 on the file of the Sub Court, Manjeri is the appellant. The suit was filed for partition of the plaint "B" schedule property. As per the plaint averments, Parangodan, grandfather of appellant and respondents, had acquired the plaint schedule properties as per registered assignment deed No.4052/1948. The said Parangodan had two male children namely, Kundu and Raman. After the death of Parangodan, the property devolved upon his sons, Kundu and Raman. They partitioned the property as per partition deed No.2692/1953 and ever since Raman was in possession and enjoyment of the plaint "B" schedule property. Raman died in the year 1963. His legal representatives are his wife, appellant and respondents. Later his wife died in 1967. Thus, the plaint schedule property devolved upon the appellant and the respondents. The 3rd respondent, the only male son of Raman, has been managing the plaint schedule property on behalf of appellant and other respondents. The appellant requested the respondents for partition of the plaint schedule property and separate allotment of her share. Since the respondents were not amenable, she sent registered notice for partition. The respondents sent reply stating that the plaint schedule property was ancestral property and that the appellant and respondents are governed by Hindu Mithakshara Law and therefore, the plaint schedule property was not partible and the appellant had no right over the property. Hence, she had filed the suit. Resisting the averments raised in the suit, Respondents 1, 2 and 4 had filed a joint written statement in tune with the plaint averments. The 3rd respondent had filed a separate written statement contending that plaint "B" schedule property originally belonged to Parangodan and on the death of Parangodan the property was partitioned among his children namely, between Raman and Kundu. It is stated in the written statement that after death of Raman, the right over the property would devolve upon the 3rd respondent only and hence the "B" schedule property was not partible and either the appellant or Respondents 1,2 & 4 were not entitled to any share on the property. It is further stated in the written statement that during the life time of Raman, the 3rd respondent had acquired right over the property equal to that of his father. It is also stated that deceased Raman had only 1/2 share over the plaint schedule property and his right, after his death, devolved upon his wife, appellant and respondents and the remaining half right devolved upon the 3rd respondent. Therefore, plaint schedule property was liable to be divided into 10 equal shares and the appellant is entitled to get only 1/10 share over the plaint schedule property. According to him, the appellant was not entitled to get any profits from the respondents. After considering the evidence, the court below passed a preliminary decree holding that plaint "B" schedule property was liable to be partitioned into 10 equal shares and the appellant was entitled to get one such share and Respondents 1,2 and 4 were entitled to get one such share each and that the 3rd respondent was entitled to get six such shares. It is also held that the 3rd respondent was liable to pay past and future profits to the appellant and Respondents 1,2 and 4.

(2.) Heard both sides.

(3.) Learned counsel for the appellant relies on a decision reported in Chittur Service Cooperative Bank Ltd. v. Kumaran ( 1992 (1) KLT 216 ) and S.218 to 222 of the Mulla's Principles of Hindu Law, 13th Edition and contend that the findings of the court below are against the principles of Mithakshara Law. Learned counsel for the respondent relies on a decision of this Court reported in Narayanan Nair v. Taluk Land Board ( 1987 (1) KLT 760 ), a decision of the Himachal Pradesh High Court in Ruli Ram (deceased) through L.R and others v. Amar Singh (AIR 1994 H.P. 102) and decisions of the Supreme Court reported in Thamma Venkata Subbamma (dead) by L. R. v. Thamma Rattamma and others ( 1987 (3) SCC 294 ), State Bank of India v. Ghamandi Ram (dead) by his legal representative Gurbux Rai ( AIR 1969 SC 1330 ) and Eramma v. Veerupana and others ( AIR 1966 SC 1879 ) and contend that Parangodan died before the commencement of Hindu Succession Act, 1956 and the 3rd respondent got right by birth over the property acquired by his father.