KOLANGARATH PADMANABHAN Vs. KAMBARATH OMANA

JUDGEMENT

(1.) First defendant in O.S. 329 of 1989 on the file of Munsiff Court, Kannur is the appellant. Plaintiffs are respondents 1 to 7 and other defendants, the other respondents. Respondents/plaintiffs instituted the suit seeking a declaration that they and eighth respondent/second defendant are the legal heirs of deceased Parvathi Amma and Exts. A4 and A5 orders passed by Tahsildar and Sub Collector dated 8-9-1987 and 18-7-1988 are erroneous and illegal. Their case was that they are the children of Kambarath Lakshmi Amma and Lakshmi Amma is the sister of Parvathi Amma who died on 4-4-1974 and Parvathi Amma had only one daughter Ammalu who died as spinster and Uchira Amma was the mother of Lakshmi Amma and Parvathi Amma and when Parvathi Amma died, Uchira Amma was not alive and Parvathi Amma's only legal representatives are plaintiffs and second defendant and Parvathi Amma had an item of property at Chirakkal which was allotted to her and Ammalu under Ext. A1 partition deed in 1957. That property exclusively belonged to Parvathi Amma as she got released the rights of her daughter Ammalu and subsequently under Ext. A2 assignment deed Parvathi Amma transferred her one half right in favour of Lakshmi Amma and after the death of Parvathi Amma her properties belonged to plaintiffs and second defendant and Chandukutty Nair was the uncle of Parvathi Amma and he was occupying the northern property and after the death of Parvathi Amma, plaintiffs tried to pay the property tax and then they were informed that first appellant, son of Chandukutty Nair, is paying the tax and 4th plaintifff filed an objection before the Tahsildar, Kannur who directed payment of one half of the tax by plaintiffs and the remaining one half by first appellant and also directed to resolve the dispute in a civil court. Though the order was challenged in appeal before Sub Collector, the order was confirmed under Ext. A5 order. It was contended that the finding in the orders of the Tahsildar and Sub Collector are not correct and are illegal and plaintiffs are therefore entitled to a declaration of their status.

(2.) First appellant, in his written statement contended that Lakshmi Amma was not the sister of Parvathi Amma and there were only four members in the Thavazhi who were all signatories to Ext. A1 partition deed and item No. 2 of the said properties was allotted to Parvathi Amma and Ammalu and subsequently Ammalu released her right in favour of Parvathi Amma and earlier that property was enjoyed by Chandukutty Nair, father of first appellant and even after the partition, Chandukutty Nair was maintaining Parvathi Amma and her daughter and after the death of Chandukutty Nair, Parvathi Amma was living with first appellant and she did not execute any deed in favour of Lakshmi Amma and the claim of plaintiffs that they are the legal heirs of Parvathi Amma is not correct and Lakshmi Amma was only a dependant of Kambarath Tarwad and had no relationship whatsoever with deceased Parvathi Amma and therefore plaintiffs are not entitled to the decree sought for. It was also contended that as per Ext. A1 partition deed expenses of the Tarwad Temple is to be met from the income of the properties. Hence plaintiffs got impleaded third defendant, as the President of the Temple.

(3.) Learned Munsiff, on the evidence of PW 1, DWs 1 & 2, and Exts. A1 to A5, and Exts. B1 to B12, granted a decree holding that Lakshmi Amma was the direct sister of Parvathi Amma and plaintiffs and second defendant, being children of Lakshmi Amma are the only legal heirs of deceased Parvathi Amma, as her daughter Ammalu predeceased Parvathi Amma and their mother Uchira Amma was also not alive at the time of death of Parvathi Amma. That decree and judgment were challenged before Sub Court, Thalassery in A.S. 7 of 1993. Learned Sub Judge, on reappreciation of evidence, confirmed the findings of learned Munsiff and dismissed the appeal. It is challenged in the second appeal.