DR.C.KALLIANIKUTTY Vs. MEERA UNNIKRISHNAN

JUDGEMENT

(1.) The suit is one for partition of plaint schedule item Nos. 1 and 2 properties. The said properties are item No. 1 and item No. 4 in Ext.A1 partition deed dated 17.09.1998. Properties included in Ext.A1 originally belonged to late Madhavan Nair. Madhavan Nair acquired the said properties through assignment deed No. 1079/1962. Madhavan Nair died in the year 1992. The plaintiff in the suit, who is the 1st respondent herein, and the 1st defendant, who is the 2nd respondent herein, were born to Madhavan Nair through his first wife. First wife is no more. On the death of his first wife, Madhavan Nair married Kamaladevi. After the death of Madhavan Nair, the 1st respondent, the 2nd respondent and Kamaladevi jointly executed Ext.A1 partition deed on 17.09.1998. Item No. 1 and ⅓rd right over item No. 4 property in Ext. A1 was allotted to the share of Kamaladevi. Item No. 2 and ⅓rd right over item No. 4 was allotted to the share of the 2nd respondent, who is the 1st defendant. Item No. 3 property and ⅓rd right over item No. 4 was allotted to the share of the 1st respondent herein, who is the plaintiff. Subsequently, Kamaladevi died on 08.08.2002. According to the 1st respondent, she along with the 2nd respondent are the only persons entitled to inherit the said property devolved on Kamaladevi by virtue of Section 15(1) (b) of the Hindu Succession Act, 1956. By arraying the appellants herein as defendants 2 and 3, the suit was filed.

(2.) It is the case of the plaintiff that by colluding with the revenue officials, the appellants could manage to obtain tax receipts in respect of the properties allotted to Kamaladevi in their favour. It is on that ground, the plaintiff has arrayed them as defendants 2 and 3 in the suit.

(3.) The appellants contended that they are in exclusive possession of the properties allotted to Kamaladevi through Ext. A1, after the death of Kamaladevi. According to them, either the 1st respondent or the 2nd respondent has no manner of right or possession over the plaint schedule properties and, therefore, the same is not partible. It is their case that on the execution of Ext. A1 partition deed, there occurred severance of tenements and the parties did never remain as tenants in common. It is also contended that the appellants are 'Marumakkathayees' and, therefore, they are entitled to the property allotted to Kamaladevi through Ext. A1 by virtue of Section 17 of the Hindu Succession Act, 1956. It has been further contended that the plaintiff has not sought for better relief and, therefore, they are not entitled to any decree. The learned counsel for the appellants has relied on the decision of the Bombay High Court in Balkrishna Bhagwanji Lohi and Others v. Prakash Sheshrao Lohi and Others [2015 KHC 1166], wherein it was held that once partition is effected, there occurs severance of joint-ness of the properties and the properties allotted to the parties in partition become their separate properties.