Mathew Joseph vs Jessy

Thomas P. Joseph, J.—This 2nd appeal arises from a preliminary decree for partition passed by the learned Munsiff, Mavelikkara in O.S. No. 346 of 2003 and confirmed by the learned Additional District Judge, Mavelikkara in A.S. No. 177 of 2006. Respondent/second plaintiff and the appellant/defendant are the children of the deceased first plaintiff and the late Pappy Joseph. The suit property belonged to the said Pappy Joseph as per Ext.A1 and A2. Pappy Joseph died in the year, 1961. Respondent and the deceased first plaintiff claimed that on Pappy Joseph dying intestate, the suit property devolved on them and the appellant. Respondent and the deceased first plaintiff prayed for partition and separate possession of their 1/3 share each. They also prayed for a decree for prohibitory injunction against the appellant cutting down trees from the suit property.

Appellant while admitting that the suit property belonged to Pappy Joseph and that he died intestate, contended that after the death of the father, he spent much amount for improvement of the property. He also claimed that the respondent was given her share in the family property by cash at the time of her marriage and that at that time she relinguished her share in the suit property.

The trial court refused to accept the version of the appellant and granted a preliminary decree as prayed for.

The appellant challenged that judgment and decree in the first appellate court. During the pendency of the appeal, the first plaintiff died. It is admitted that her legal heirs are the appellant and the respondent. The first appellate court confirmed the finding of the trial court but, taking into account the death of the first plaintiff, the preliminary decree for partition was modified allotting = share each to the appellant and the respondent. That judgment and decree of the first appellate court are under challenge.

The learned counsel for the appellant contended that the courts below have not adverted to Exts.B1 to B7 which show that the contention of the appellant that the respondent was given her share in the family property at the time of her marriage.

I have also heard the learned counsel who took notice for the respondent. The learned counsel contended that there is no reason to interfere with the preliminary decree as modified by the first appellate court.

So far as claim of the appellant that the respondent was paid sthreedhanam at the time of her marriage is concerned, even if that plea is accepted, that would not disentitle the respondent to claim share in the family property. In Ouseph v. Saramma (1979-85 K.U.C 256) it is held that if subsequent to the death of the father, intestate, the marriage of the daughter is performed and there is payment of sthreedhanam, that would not disentitle the daughter for a share in the family property.

In this case Exts.B1 to B7 are pressed into service. Those documents and the evidence of DW2, the Manager of the Bank concerned would only show that the respondent and the first plaintiff had some monitory transactions with that Bank. The respondent and deceased first plaintiff produced Ext.A4 to show that the latter sold an item of property belonging to her. According to them, the funds transacted in the Bank as evidenced by Exts. B1 to B7 are traceable to the sale consideration mentioned in Ext.A4. The courts below in the circumstances did not act upon Exts.B1 to B7.

True that the appellant has a contention that the respondent had relinguished her share, but that is not supported by any evidence except the interested version of the appellant as DW1 which the courts below were not inclined to accept.

There is no reason why the respondent and deceased first plaintiff should not be allotted their share. Consequent to the death of the first plaintiff, her share also goes to appellant and respondent in equal proportion as rightly found by the first appellate court. I do not, on hearing the learned counsel on both sides and going through the judgments under challenge find any substantial question of law involved in this appeal for a decision.

The learned counsel for the appellant submitted that the property on the west of the suit property belongs to the appellant where, a building is in existence, the appellant has constructed a car porch and in case any portion of that building or car porch comes within the suit property, that portion of the suit property may be allotted to the share of the appellant.

The learned counsel for the respondent submitted that the respondent has no objection in doing so, as far as it is possible, provided that portion of the structure falling in the suit property is not valued.

The said submission of the learned counsel for the respondent is recorded. In the light of the above submission of the learned counsel, I make it clear that it is open to the appellant to request the trial court while passing the final decree to allot, in case any portion of the building or car porch falls in the suit property, that portion of the suit property to the share of the appellant, as far as possible, without valuation of the structure. In case any such request is made, the learned Munsiff shall consider that request and pass final decree having regard to the submission made on behalf of the respondent and recorded above.

With the above direction the second appeal is dismissed.