REMADEVI Vs. A S R GOPALAKRISHNAN

JUDGEMENT

(1.) Legal heirs of 8th defendant in O.S. 728 of 1994 on the file of Sub Court, Thrissur are the appellants. First respondent is the plaintiff and respondents 2 to 6 are defendants 1 to 5. First respondent instituted the suit seeking a decree for partition. The plaint schedule property was sought to be partitioned contending that the property was alloted under Ext.A1 partition deed in favour of Kunjikkavu Amma, her daughter second respondent and her sister Thankam @ Janaki Amma and Thankam @ Janaki Amma died as spinster in 1120 ME and mother Kunjikkavu Amma died in 1953 and on their death, their right devolved on second respondent and her children appellant and respondents 3 to 6 are her children and therefore each of them is entitled to 1/6 shares. It was contended that the house in the property was rented out and it was learnt that some document was executed in favour of sixth defendant, though first respondent was not aware of the document and on enquiry it was known that respondents 2 to 6 sold their right to sixth respondent. Seventh respondent is the tenant of the building. On the death of the 6th defendant, eight defendant was impleaded as his legal heir. On his death, appellants were impleaded as his legal heirs in the first appeal. The said legal heirs are the appellants. First respondent sought division of the plaint schedule property into six shares and allotment of one such share. Respondents 2, 3, 4 and 6 remained ex parte and 5threspondent, though appeared, did not file a written statement.

(2.) 7th defendant filed a written statement contending that 1st respondent is not entitled to claim any share in the property and the property was purchased by seventh defendant, but the document was taken in the name of sixth defendant, but it was purchased for the seventh defendant and sixth defendant Manjuala Bai H. Sonia had filed a petition before Rent Control Court for eviction and though eviction was ordered on the ground of arrears of rent, eviction was not ordered for bona fide need and first respondent is not entitled to the share. 8thdefendant in his written statement contended that as per Ext. A1 partition deed, Kunjikkavu Amma and her daughters second respondent and Thankam @ Janaki Amma obtained only 8 1/2 cents of land and on the death of Thankam as a spinster, her right devolved on the mother as provided under S.36 of the Cochin Nair Act and second respondent purchased 3/8 cents in Survey No.1566/1 1 and 3/8 cents in 1566/12 and these properties and the 8 1/2 cents are lying contiguously and second respondent alone has right over the entire plaint schedule property and 7th defendant was residing in the building as a tenant and RCP 247 of 1976 was filed by second respondent against 7th defendant for eviction and 6th defendant also filed a Rent Control Petition and on the death of 6th defendant, her right devolved on 8th defendant and second respondent alone has right over the property and she sold the property to 6th respondent and though respondents 3 to 6 were also joined in the sale deed, they have no right over the property and second respondent requested 6th defendant for some more amount towards consideration and 6th defendant was not ready for it and when respondents 2 to 6 came to know that they could not get anymore amount from 6th defendant, they colluded with first respondent and filed the suit and he is not entitled to claim any share and therefore the suit is to be dismissed.

(3.) On the evidence of PW 1, DW1 and Exts.A1 and A2 andB1 and B2, learned Munsiff dismissed the suit holding that first respondent is not entitled to a share in the property. First respondent challenged the decree and judgment before District Court, Thrissur in A.S.388 of 1999. Learned Additional District Judge, on reappreciation of evidence, found that the property was divided under Ext.A1 partition deed and alloted to the Thavazhi consisting of Ammukutty Amma @ Kunjikkavu Amma and her daughter Thankam @ Janaki Amma and first respondent and on the death of Thankam @ Janaki Amma (as a spinster) her right devolved on the other Thavazhi members and on the death of Ammukutty, her right also devolved on the other Thavazhi members consisting of second respondent and her children respondents 1 and 3 to 5 and therefore first respondent is entitled to 1/6 share. A preliminary decree for partition was passed directing division of the plaint schedule property into six shares and allotment of one such share to first respondent. As the rights of respondents 2 to 6 were purchased by 6thdefendant, it was held that 8th defendant to whom that right devolved on the death of sixth defendant is entitled to the remaining shares. The legal heirs of 8th defendant filed this second appeal challenging the preliminary decree.