THANKA Vs. ARAVINDAKSHAN, TENNILAPURAM DESOM

JUDGEMENT

(1.) This appeal is filed by the 5th defendant in OS No. 358/90 of the Sub Court, Palakkad. She challenged judgment dated 31/10/1983 by filing AS No.105/1984 before the learned Single Judge of this Court. The decree was confirmed against which present appeal had been filed. The first respondent herein is the plaintiff who filed the suit for partition and separate possession of the plaint schedule property. In fact, the first defendant had preferred the appeal as AS No.105/1994 during the pendency of which he died. The present appellant who was the 5th defendant in the suit and the 5th respondent in the appeal got herself transposed as additional 2nd appellant and prosecuted the appeal.

(2.) The suit was filed by the plaintiff being the son of the first defendant claiming that plaint schedule items 1 to 17 were ancestral property of Karuppan, grand father of plaintiff. Karuppan effected a partition of the joint family properties in the year 1965. After the death of Karuppan, the remaining items were also partitioned. The plaint schedule properties were obtained by the first defendant in that partition. The plaintiff being governed by Hindu Mithakshara system of law, claimed one half right over the whole of the plaint schedule properties, the properties being ancestral and belonging to an undivided joint Hindu family. It was contended that defendants 2 to 4 have no right at all and the 5th defendant is an assignee of the plaint schedule properties from the first defendant. It is contended that there was no legal necessity in the family to alienate the properties and assignment deeds were sham and without consideration. The possession still remains with the 1st defendant. Claiming that documents are not valid and not binding on the plaintiff, the suit is filed. It was further contended that first defendant was having an illicit intimacy with the 5th defendant and assignment in her favour is without consideration. Plaintiff also contended that he being born on 15/12/1959, the partition deed executed between first defendant and the two divorced wives with regard to the ancestral properties giving a share to the 4th defendant is prejudicial to the interest of the plaintiff which is liable to be set aside. The first defendant filed a written statement contending that it was not a joint family property as the family had become divided as per Ext.A1. Items 1 to 11 in the plaint schedule property were assigned by the first defendant to defendants 5 to 7 and they are in possession of those properties. The properties were assigned to meet the debt of the family which was incurred for litigation. The remaining properties were partitioned in 1974 under Ext.A1 and the plaintiff and 4th defendant were also given their due share. The plaintiff and 4th defendant were represented by their mother as guardian. It is contended that as per the partition deed, B schedule item was allotted and given to the plaintiff which is described as item 14 and 15 of plaint schedule. Item 16 and 17 were given to the 4th defendant. It was therefore contended that the plaintiff was not entitled to seek for partition and there was no joint possession as stated. The 2nd defendant supported the plaintiff's case. Defendants 3 and 4 contended that the properties belonged to the first defendant exclusively and the partition mentioned in the plaint is binding on the plaintiff and the properties allotted to 4th defendant are in the possession of the 3rd defendant since the date of Ext.A1. 5th defendant filed a written statement inter alia contending that there is no joint family as the family became divided in 1974. First defendant had borrowed money and has discharged the debts. Item Nos. 1 to 10 were sold to her under Ext.B13. The transaction was for valid consideration and the other allegations are absolutely baseless. Defendants 8 and 9 also filed written statement denying the joint family status and contending that the family became divided in 1974 and they took assignment of items 12 and 13 from the first defendant in 1977 for valid consideration.

(3.) Before the Trial Court, plaintiff was examined as PW1 and the 3rd defendant as DW1. Plaintiff relied upon Ext.A1 and the defendants relied upon Exts.B1 to B1 The Trial Court passed a preliminary decree for partition of the plaint schedule properties in two equal shares and one such share was allotted to the plaintiff. It was also held that the first defendant was liable to account for the income of the properties for five years preceding the date of suit and has to pay the future mesne profits. Other directions were also issued in the matter relating to effecting partition.