MANDOTHINKAL KALYANI Vs. MANDOTHINKAL CHAMI AND OTHERS

JUDGEMENT

(1.) This appeal is at the instance of the 2nd plaintiff in O.S.No.56 of 2006 before the Court of Munsiff-Magistrate, Perinthalmanna. The suit is one for partition of the property scheduled to the plaint. 1st defendant is the brother of the plaintiffs. Defendants 2 and 3 are purchasers of the property from the 1st plaintiff and 1st defendant.

(2.) Shorn off unnecessary details, the relevant pleadings are as follows: Properties originally belonged to the father of plaintiffs and 1st defendant, viz., Kunhiraman. Kunhiraman had two wives. After the death of Kunhiraman, plaintiffs and 1st defendant partitioned the properties as per Ext.B1 partition deed of the year 1982. In fact, deceased Kunhiraman had another daughter through his first wife by name Kuttiy Ammu @ Notti. Since she was not made a party to Ext.B1 partition deed, she filed O.S.No.2 of 1983 seeking partition of the assets left behind by deceased Kunhiraman. That suit was decreed in her favour finding that she was entitled to get ¼th right over the properties. Since the plaintiffs and 1st defendant, who were defendants in that suit, did not pay court fee for separate allotment, their shares were kept in common finding that all the three were together entitled to ¾ shares. Each of the parties were found to have been entitled to ¼th share in the assets of deceased Kunhiraman. Subsequently Kuttiy Ammu @ Notti pursuant to the final decree in the suit, filed an execution petition and got delivery of the property. It is therefore contended by the plaintiffs that they are entitled to get a partition of the property outstanding in the possession of the co-owners after giving a due share to Kutty Ammu @ Notti.

(3.) 1st defendant resisted the suit by contending that the parties have taken possession of the property in accordance with Ext.B1 partition deed and both the 1st plaintiff and 1st defendant had assigned portions in tune with Ext.B1. It is also his contention that the allotment to Notti was effected by taking a portion of the property set apart to the 1st defendant as per Ext.B1 partition deed.