JAYACHANDRAN AND ORS. Vs. VALSALA AND ORS.

JUDGEMENT

(1.) This appeal is boarded before us by way of a reference. In the reference order, the learned Single Judge has observed that the ratio in Shyamalavalli Amma v/s. Kavalam Jisha : 2007 (2) KHC 976 : 2007 (3) KLT 270 : ILR 2007 (3) Ker. 67 : 2007 (2) KLJ 609 : AIR 2007 Ker. 246 is irreconcilable with that in Narayani v/s. Aravindakshan : 2005 KHC 1243 : 2005 (4) KLT 1 : ILR 2005 (4) Ker. 44 : AIR 2006 Ker. 26 because the learned Single Judge, while disposing of Shyamalavalli Amma's case, did not advert to the judgment in Narayani's case. Learned Single Judge doubted the pronouncement in Shyamalavalli Amma's case, by placing reliance on the decision by the Supreme Court in KallianiAmma v/s. K. Devi : 1996 KHC 263 : 1996 (2) KLT 42 : (1996) 4 SCC 76 : AIR 1996 SC 1963 too. The defendants in OS No. 916 of 1995 on the file of the Principal Sub Court, Thrissur are the appellants and the plaintiffs are the respondents.

(2.) We shall narrate the facts, in nut shell, for a clear understanding of the disputes. The suit is one for partition. There are 32 items of immovable properties scheduled to the plaint. It is averred in the plaint that the properties belonged to Vaikkattil Krishnankutty. Until his death, he was in possession of the properties and was taking income therefrom. Krishnankutty's first wife was Valliyamma. Vaikkattil Madhavan was the son born to Krishnankutty and Valliamma. Shortly after Madhavan's birth, Krishnankutty and Valliamma separated. Later, he married Rugmini. In the said marriage, two children, Jayachandran and Tarabai, were born. They are the original defendants in the suit. Krishnankutty's son Madhavan died. His children are plaintiffs 1 to 4 and his wife is the 5th plaintiff. Pending the appeal, Tarabai died. Her legal heirs are impleaded as additional appellants 3 to 8. Plaintiffs' predecessor -in -interest Madhavan died on 17/01/1973. Before his death, his putative father Krishnankutty died. Parties are Hindus, governed by the Hindu Succession Act, 1956. After the death of Krishnankutty and his son Madhavan, the plaint schedule properties devolved on the plaintiffs and defendants in joint right and they are co -owners. Plaintiffs contended that they have one third right over the plaint schedule properties. As the defendants did not give any share of profits to the plaintiffs for a couple of years before the suit, they demanded partition by sending a registered lawyer notice. The defendants caused to issue a reply notice raising false contentions. The stand taken by the defendants in the reply notice that there was no relationship between Krishnankutty and Valliamma, that Valliamma was not the wife of Krishnankutty, that Madhavan was not the son of Krishnankutty and that Krishnankutty had only one wife by name Rugmini (mother of the defendants) are all false.

(3.) The defendants filed a written statement. The averment in the plaint that deceased Krishnankutty had married Valliamma is untrue. Krishnankutty had only one wife and that was Rugmini, mother of the defendants. Krishnankutty had no relationship with Valliamma and Madhavan was not born to Krishnankutty through Valliamma. There was no occasion for Krishnankutty to desert Valliamma, as he had no relationship with her. During the life time of Krishnankutty, deceased Madhavan never raised a claim attributing paternity to Krishnankutty. Plaintiffs have no right over the plaint schedule properties. They are not entitled to get partition of the properties. The defendants, at no point of time, shared profits with the plaintiffs. The averments in the plaint are intended to obfuscate the real matters. Out of 32 items mentioned in the plaint, which items belonged to Krishnankutty and which belonged to Rugmini has not been clearly stated. That is done with an intention to defeat the rights of the defendants. The defendants and their successors -in -interest have partitioned the properties as per registered partition deeds. The suit is bad for non -joinder of necessary parties. The suit is filed without any bona fides and it is liable to be dismissed.