REJI P MATHEW Vs. REMI JOSEPH KUMPALATHU

JUDGEMENT

(1.) THESE Second Appeals arise out of the suit for partition filed by the first respondent as O. S. No. 47 of 1995 on the file of the court of the Munsiff, Chengannur. The trial court decreed the suit and passed a preliminary decree for partition. The first defendant filed an Appeal challenging the judgment and decree of the trial court. The second defendant filed a Memorandum of Cross Objection as I. A. No. 670 of 2003 while defendant Nos. 4 and 5 filed another Memorandum of Cross Objection as I. A. No. 671 of 2003. The appellate court dismissed the Appeal as well as the Cross Objections. Against the judgment and decree of the lower appellate court, the first defendant filed R. S. A. No. 225 of 2004 and the second defendant filed R. S. A. Nos. 219 of 2004 and 227 of 2004, the latter being against the Memorandum of Cross Objections.

(2.) THE suit was filed for a declaration that document No. 390 of 1995 of SRO, Chengannur is not binding on the plaintiff and for partition of the plaint schedule properties. The parties are Indian Christians. The plaintiff claimed 1/5th share in the properties after satisfying 1/3rd share due to the first defendant. The plaintiff and defendant Nos. 2 to 5 are the children of the first defendant and deceased Mathew. Mathew died on 23. 01. 1995. It is not disputed that the first defendant would be entitled to 1/3rd share in the properties.

(3.) THE plaintiff contended that she is entitled to 1/5th share of the 2/3rd share after satisfying 1/3rd share of the mother as per Sections 32 and 33 of the Indian Succession Act. Document No. 390 of 1995 (Ext. A1) was executed on 07. 02. 1995 on the 15th day of the death of Mathew. The plaintiff and the defendants are shown as parties to Ext. A1, but the plaintiff has not put her signature in that document. As per Ext. A1, the properties belonging to Mathew were divided into three shares among defendant Nos. 1, 2 and 5. Defendant Nos. 3 and 4 are married daughters while the 5th defendant was unmarried at the time of execution of Ext. A1.