PARAPPURATH MAVILI PARAMBATH SIVAKUMAR; PARAPPURATH MAVILI PARAMBATH GEETHA Vs. PARAPPURATH MAVILI PARAMBATH PRABHAKARAN; PARAPPURATH MAVILI PARAMBATH SUDHAKARAN; PARAPPURATH MAVILI PARAMBATH RAJAGOPALAN; PARAPPURATH MAVILI PARAMBATH MANOHARAN; PARAPPURATH MAVILI PARAMBATH REMESH; PARAPPURATH MAVILI PARAMBATH DAMAYANTHI; UNNIKOTH KAM

JUDGEMENT

(1.) Defendants 6 and 10 in O.S.No.687 of 1992 of Sub Court, Kozhikode are the appellants. Respondents are the other defendants and the plaintiffs or their legal representatives. The suit was for partition of plaint schedule item No.1 land and plaint schedule item No.2 building situated on item No.1 land.

(2.) The plaintiffs and the defendants belong to Thiyya community of Hindu religion. They are governed by Mithakshara law of inheritance. Chanthu, the common ancestor of the parties to the suit was tenant of the plaint schedule land. On his death his rights devolved on his 7 sons, one of them being Kumaran. Plaint schedule item No.1 land was allotted to Kumaran in a partition that took place in 1929; plaint schedule item No.2 building was kept in common. These are admitted facts.

(3.) Kumaran had 4 sons viz. Sreedharan, Bharathan, Gopi and Krishnankutty. Bharathan and Sreedharan died bachelors in 1945 and 1946 respectively. Kumaran's wife and son Gopi died in 1953. Kumaran died in 1954. On his death his surviving son Krishnankutty became entitled to plaint schedule properties. Krishnankutty died bachelor in 1955. On his death his rights devolved on the members of the branches of Sekharan, Narayanan, Gopalan and Velayudhan, brothers of deceased Kumaran. Sekharan died in 1962 and Narayanan in 1967. The plaintiffs and defendants 3 to 6 and 11 to 18 are co-owners of both items of properties. The 6th defendant married the 10th defendant in 1981. She has no right in the properties. But the 6th defendant created a false document in favour of his wife, the 10th defendant. These are the allegations on the basis of which the plaintiffs sought for partition of the properties and separate possession of their shares in them. Only defendants 3, 6 and 10 contested the suit. They would say that in execution of the decree in SC 1879 of 1932 the right of Kumaran in plaint schedule item No.1 was sold in auction and it was purchased by one M.S.Ananthanarayana Iyer. Subsequently, the property came into the possession of Choyi, who mortgaged it to one Velukutty. To realise the mortgage suit Velukutty filed O.S.No.87 of 1951 in Munsiff Court-I, Kozhikode. In execution of the decree obtained by him the property was sold in E.P.No.431 of 1967 and it was purchased by one K.P.Govindan, who took delivery of the property. With the sale of the property in 1934 in E.P.No.1854 of 1934 in S.C 1879 of 1932 Kumaran lost all his right in his property. On 11.1.1975 the 6th defendant entered into an agreement with K.P.Govindan for sale of the plaint schedule item No.1. He got possession of the property pursuant to the agreement. But K.P.Govindan did not execute a sale deed in his favour. On 4.2.1989 the 6th defendant executed a settlement deed in favour of his wife, the 10th defendant. Since then the said item of property has been in her possession and enjoyment. The 6th and 10th defendants have effected improvements in it. The plaintiffs are not entitled to a decree for partition in respect of plaint schedule item No.1. They have no right in it. If it is found that they have any right, the court may allow the 10th defendant to recover from them Rs.50,000/- as value of the improvements effected by her. Defendants 3, 6 and 10 prayed for dismissal of the suit so far as the plaint schedule item No.1 is concerned. In their 'rejoinder' the plaintiffs contended that the agreement for sale relied on by defendants 3, 6 and 10 is a sham and fictitious document and that the settlement deed executed by the 6th defendant in favour of his wife, the 10th defendant does not affect the property.