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2004 DIGILAW 144 (KER)

Dinesh Menon v. Gomathy Amma

2004-03-31

A.LEKSHMIKUTTY

body2004
Judgment :- The appellant is the plaintiff in O.S.No.1163 of 1987 on the file of the First Additional Sub Court, Ernakulam. The plaintiff filed the suit for partition and separate possession of his 1/6th share in the plaint schedule properties. The plaintiff and defendants 1 to 5 are members of the undivided Nair Tharawad, Iyyattil. The plaintiff was born on 5.11.1969. Defendants 1 to 5 entered into a partition of the properties on 3.5.1969 ignoring the existence of the plaintiff in the womb of his mother, the second defendant and no share was given to him in the partition. In the suit the plaintiff has sought for a declaration that the partition deed No.932 of 1969 of the Sub Registry Office Ernakulam has no legal effect as far as the plaintiff and his share is concerned and partition and separate possession of his 1/6th share over the property by metes and bounds. 2. Defendants 1, 3, 4 and 5 in their written statement raised a contention that the plaintiff was given his share along with the share of the 2nd defendant by allotting a double share and he is not entitled to get a declaration. The second defendant remained exparte. The first defendant contended that out of 43.750 cents of ancestral property an extent of 17.58 cents of land was allotted as the share of the plaintiff’s mother taking into account the existence of the plaintiff in his mother’s womb though the properties were shown as divided into 5 shares in the partition deed. The valuable property allotted to the second defendant in the M.G. Road was double share compared to that of other sharers. The first defendants’ personal property was also included and in case of re-partition, that item has to be excluded and reservation of her ancestral house in which she is living has to be made. 3. Defendants 3 and 4 in their written statement raised almost identical contentions. It is further contended that the husband of the second defendant insisted that the inclusion of the plaintiff in the womb need not be stated in the partition deed and hence the same was not included. Most valuable property in M.G. Road worth several lakhs was allotted to the second defendant. She had sold 5 ½ cents of property to the father-in-law of the 5th defendant who has constructed a big building thereon. 4. Most valuable property in M.G. Road worth several lakhs was allotted to the second defendant. She had sold 5 ½ cents of property to the father-in-law of the 5th defendant who has constructed a big building thereon. 4. The 4th defendant contended that she too was in an advanced stage of pregnancy at the time of partition, but no extra share was allotted to her as was done in the case of the 2nd defendant. The 5th defendant also contended that no extra share was given to her even though she too had conceived her daughter Vrinda. 5. The trial court raised necessary issues on the basis of the pleadings. The evidence consists of the oral testimony of PW-1 and DWs. 1 to 5, Exts. A-1 to A-10 and B-1 to B-15. Originally, the suit was dismissed against which the plaintiff filed A.S.No.565 of 1990 before this court and this court set aside the judgment and decree passed by the court below and remanded the case before the trial court for fresh disposal in accordance with the observation contained in the judgment. After remand, PW-1 and DWs. were recalled and examined and Exts. B-15 to B-17 produced. 6. The question to be considered is whether there is any reason to set aside the judgment and decree passed by the court below. The case of the plaintiff is that he is a member of Iyyattil Family and the plaint schedule properties belong to the said family. The members of the family executed Ext. A2 partition deed dated 3.5.1969. But he has not given any share in the family property. The second defendant is the mother of the plaintiff. At the time of execution of Ext. A2, the plaintiff was in the womb of his mother is practically admitted by the contesting defendants. But their contention is that at the time of partition, double share has given to the second defendant taking into consideration of the existence of the plaintiff. In the partition deed it is not stated that two shares are given to the second defendant inclusive of the share of the plaintiff. So, the entitlement of the plaintiff to get a share in the family property is not disputed by the contesting defendants. Thus it is to be found that the plaintiff is entitled to get a share in the plaint schedule property. So, the entitlement of the plaintiff to get a share in the family property is not disputed by the contesting defendants. Thus it is to be found that the plaintiff is entitled to get a share in the plaint schedule property. The contention that the second defendant was given double share taking into account that the plaintiff was in his mother’s womb is not proved by the contesting defendants. Admittedly the existence of the plaintiff was not mentioned in the partition deed. According to the defendants, the property allotted to the second defendant would fetch double the value of the share of others. The said property is situated in M.G. Road. This court in A.S.No.568 of 1990 found that apart from the oral testimony of DW-4, there is no other evidence to prove the value of the property covered by Ext.A2. This court has found that there was no exact data pointing out the comparative value of the properties allotted to the second defendant and others. Better evidence ought to have been adduced to substantiate the defendants’ case that B schedule in Ext.A2 really represented two shares. So, the only question to be considered is whether the defendants have succeeded in providing the value of the shares allotted to the sharers. 7. As stated earlier, a reading of Ext.A2 would not show that a share was given to the plaintiff who was in the womb of his mother. So, the defendants cannot deny the share of the plaintiff in the family property. 8. Another contention raised by the first defendant is that in case of re-partition, the separate property of the first defendant is to be excluded. She obtained the property as per a gift deed. The recital in Ext.A2 shows that B schedule in the partition deed was gifted by her karanavan on behalf of the family and the building in the property was constructed with the funds obtained from disposing some of the family property. So the contention that the said property is her absolute property cannot be accepted. The contention of the first defendant that in case of repartition, the said property is to be excluded cannot be accepted. As per the partition deed, the second defendant was allotted only 5 ½ cents of property. So the contention that the said property is her absolute property cannot be accepted. The contention of the first defendant that in case of repartition, the said property is to be excluded cannot be accepted. As per the partition deed, the second defendant was allotted only 5 ½ cents of property. In A.S.No.560 of 1990 the case was remanded by this court allowing the parties to adduce better evidence to substantiate the contention that B schedule allotted to the second defendant is really represented the share of the plaintiff also. The explanation offered by the contesting defendants is that it was at the request of the husband of the second defendant that was not mentioned in Ext. A2. The said explanation is not satisfactory. The property allotted to the second defendant was alienated by her under Ext.B-11 sale deed when the plaintiff was a minor. Exts.B-11 and B-12 are in the name of the second defendants and the plaintiff. 9. It is argued by the learned counsel for the 6th respondent that Exts. B-11 and B-12 acquisitions were made in the name of the 2nd defendant and the plaintiff with the consideration in Ext. B-10. One half of the sale amount deposited in the bank in the name of the plaintiff was withdrawn by him after he attained majority. So, he has acquiescened the alienation and the said property cannot be disturbed in case of re-partition. Even if it is accepted, it could be adjusted against his proportionate share. 10. It is submitted by the learned counsel for the contesting defendants that all the shares were not impleaded in the suit and the suit is bad for non joinder of parties. As per the contesting defendants, the 4th defendant was pregnant at the time of partition deed. It has come out in evidence that she was married on 10.4.1969 and her child was born on 1.1.1970. Ext. B9 is the Photostat copy of the school leaving certificate of Menon Anil R. This court in A.S.No.565 of 1990 has stated that Ext. B9 is only a entry in school register and as per the defendants, birth certificate of the 4th defendant’s child is available at Bombay. This court observed that only on proving the correct date of birth, it can be ascertained whether the said child was in his mother’s womb on 3.5.1969, the date of Ext.A2. B9 is only a entry in school register and as per the defendants, birth certificate of the 4th defendant’s child is available at Bombay. This court observed that only on proving the correct date of birth, it can be ascertained whether the said child was in his mother’s womb on 3.5.1969, the date of Ext.A2. Even after remand, the defendants have not produced the certificate of birth in respect of the 4th defendant’s child. Even though better evidence was available, it was not produced. As per the learned counsel for the defendants, the entry in the school register is to be accepted as proof of birth of the child. To substantiate the said contention learned counsel relies on the decision reported in Harpal Singh v. State of Himachal Prades (AIR 1981 SC 361). There, in the said case the prosecution has proved the age of the girl by over whelming evidence such as that of the evidence of the doctor, the entry in the admission register maintained at the government Girls High School proved by the Head Master and the relevant entry in the birth register. It is admitted by the 4th defendant that the birth certificate of the child is available at Bombay. Even if this court has observed that the entry in the school register is not conclusive proof, no other evidence was adduced by the defendants to prove the exact date of birth of the child. In the absence of any such evidence, it cannot be found that the child of the 4th defendant was in her womb on the date of Ext.A2 and the suit is bad for non joinder of necessary party. Another argument advanced by the learned counsel for the first defendant is that the entire family properties are not included in the plaint schedule. The property allotted to the second defendant was alienated by her to strangers and there is no prayer in the plaint to set aside the alienation. After remand, the alienee was impleaded. Admittedly, the plaintiff as well as the second defendant had share in the property. An undivided share also can be alienated. So, there need not be any prayer for setting aside the document. The share of the assignor can be adjusted at the time of partition towards the alienor’s share. So, even if there is no prayer for setting aside the document, it is of no consequence. An undivided share also can be alienated. So, there need not be any prayer for setting aside the document. The share of the assignor can be adjusted at the time of partition towards the alienor’s share. So, even if there is no prayer for setting aside the document, it is of no consequence. 11. This court remanded the case solely to consider whether as per Ext.A2, a double share was allotted to the second defendant. Even after remand, the defendants have not adduced any evidence as directed by this Court. Even though Exts.A-15 to A-17 were produced, those documents were not proved. Even if those documents are accepted, they would not show the comparative value of the property at M.G. Road, and chittoor Road, Ernakulam, in 1969. Only PW-1 and DW-1 were recalled and examined. This court observed that the value of the property in M.S. Road and in Chittoor Road during the relevant time can be established by producing assignments that took place around that period and the building in the property can be valued by sending out a commission. The comparative value of other shares can also be ascertained. The contesting defendants have not adduced any evidence to that effect. So, practically, there is no material before court to find out whether the second defendant was given double share, which includes the plaintiff’s share. The fact that the plaintiff is having a share in the property cannot be denied. So far as, there is no evidence to show that the second defendant was given double share, the plaintiff is entitled to get his 1/6th share in the property. The court below without appreciating the evidence in its right perspective found that Ext.A2 partition was not unfair or prejudicial. The court below failed to note that the case was remanded simply to find out whether the share allotted to the second defendant mother would fetch double value than the other sharers. The defendants have not adduced any evidence to that effect. In the absence of any such evidence, the court below ought to have set side Ext. A2 partition deed. In the circumstances of the case, Ext.A2 is set aside and a preliminary decree is passed allowing partition and separate possession of 1/6th share over the plaint schedule properties by metes and bounds. The plaintiff shall apply for passing of a final decree before the trial court. A2 partition deed. In the circumstances of the case, Ext.A2 is set aside and a preliminary decree is passed allowing partition and separate possession of 1/6th share over the plaint schedule properties by metes and bounds. The plaintiff shall apply for passing of a final decree before the trial court. Whether the alienees require any equity, can be considered at the time of passing of the final decree. Hence the decree and judgment of the court below are set aside and a preliminary decree as passed as stated above. The appeal is allowed.