A V SIVAPRASAD Vs. MIDHILY

JUDGEMENT

(1.) The appellants are the plaintiffs in O.S.No.1162/2006 on the files of the II Additional Munsiff's Court, Ernakulam, as well as the appellants in A.S.No.391/2008 on the files of the VI Additional District Court, Ernakulam. They have suffered the decree, rejecting their claim for partition over the plaint schedule property, from the courts below. The suit was one for partition and permanent prohibitory injunction. The parties are referred to as in the Original Suit.

(2.) The plaintiffs 1 to 4 are the children of Velukutty in his first wife and the defendants are the 2 nd wife and the children of the said Velukutty. The plaint schedule property originally belonged to the father of Velukutty. Subsequently, after the death of his father, the property devolved upon Velukutty and in 1979, Velukutty obtained the Purchase Certificate in respect of the plaint schedule property. The said Velukutty had one more son in the 1 st defendant by name Sujith. Velukutty had executed Ext.A1 Will in favour of the said Sujith. As per the Will, the right of residence, after the death of Velukutty, was reserved in favour of the 1 st defendant. According to the plaintiffs, even though Velukutty bequeathed the property in favour of his son Sujith, after the death of Velukutty, Sujith has not taken possession of the property at any point of time, till his death. Velukutty died in the year 1994 and Sujith died on 12/2/2004. Since the Will has not come into force, after the death of Sujith, the plaint schedule property devolved upon the legal heirs of Velukutty, namely, plaintiffs 1 to 4 and defendants 2 to 5. The 1 st defendant is having no absolute title and ownership over the property since she enjoyed only a right of residence in the property by virtue of Will executed by Velukutty. So, the plaintiffs are entitled to get 1/8th share each. Hence the suit for partition.

(3.) In the written statement, the defendants challenged the maintainability of the suit. They also admitted that Velukutty was the absolute owner in possession of the property. The execution of Ext.A1 Will was also admitted. According to the defendants, after the death of Velukutty, Sujith has become the absolute owner in possession of the plaint schedule property and when Sujith died on 12/2/2004, the 1 st defendant, being the sole legal heir left by the deceased Sujith, became the absolute owner of the plaint schedule property. She is residing in the house situated in the plaint schedule property. Hence, the plaintiffs cannot raise any right over the property and the property is not a partiable one. The 1 st defendant alone is the successor in interest of Sujith. Hence they prayed for dismissal of the suit.