Decided on November 13,2003



- (1.) The defendant in OS No. 172 of 1993 on the file of the Sub Court, Ernakulam is the appellant herein. The plaintiff filed the suit for partition. The case of the plaintiff is that the plaint schedule property having an extent of 88 cents originally belonged to Madhava Menon and his wife Nanikutty Amma. The plaintiff and the defendants are the children of above said Madhava Menon and Nanikutty Amma. Madhava Menon and Nanikutty Amma executed a joint Will as document No. 6/67 in respect of the property whereby the northern half of 44 cents was demised to the plaintiff and the southern 44 cents to the defendant. Nanikutty Amma died on 31st March 1969. Subsequent to her death, Madhava Menon applied for purchase certificate before the Land Tribunal and obtained the same. As per the defendant, Jenmom right absolutely belonged to Madhava Menon alone. The defendant constructed a residential building in the southern half of the plaint schedule property with the permission of Madhava Menon spending her own funds. Part of the fund required for the above construction and improvement of the property had been raised by executing a mortgage by Madhava Menon and defendant. Madhava Menon received a huge sum from the defendant for the purpose of his treatment. He also directed to discharge his debts which the defendant did. While so Madhava Menon released all his rights over the plaint schedule property to the defendant as per document No. 1597/83. The plaintiff earlier filed a suit as OS No. 294/1983 before the Sub Court, Ernakulam for recovery of possession of his share of 44 cents in the plaint schedule property pursuant to the Will executed by Madhava Menon and Nanikutty Amma. Madhava Menon was the 2nd defendant in the suit, but he died pending the suit. The Sub Court decreed the suit, against which the defendant filed A. S. No. 156/88 before the District Court, Ernakulam. The Appellate Court found that the deceased Nanikutty Amma was equally entitled to the property with deceased Madhava Menon and Madhava Menon revoked the Will so far as his share was concerned and the plaintiff was not competent to recover possession of the northern half of the property as prayed in OS No. 294/1983. The appellate court also held that since the share of the plaintiff, in the above suit was unpartitioned, lie could not be given a Decree for recovery of possession and the suit was dismissed. Thereafter the present suit is filed by the plaintiff for partition and separate possession of his half share over the plaint schedule property.
(2.) The defendant contended that out of 88 cents of property covered under the lease deed, 7 1/2 cents of property had been allotted to a kudikidappukaran and one cent had been acquired by the Government for widening the road and only 80 1/2 cents is available. It is further contended that the Will executed by Madhava Menon and Nanikutty Amma had not taken effect and the same was revoked by Madhava Menon when he executed a release deed in favour of the defendant and the plaintiff did not have any right to the plaint schedule property which belonged absolutely to her. She had put up the building expending her own funds and the plaintiff was not entitled to claim any share in the building. She had discharged the debts incurred by deceased Madhava Menon and that she had advanced money to him to meet the expenses for his treatment.
(3.) The Trial Court raised 12 issues for trial. On the side of the plaintiff, PW 1 was examined and Exts. A1 and A2 were marked. On the side of the defendant, DW 1 was examined and Exts. B1 to B8 were marked. The court below after trial passed a preliminary decree for partition and separate possession of half of 80.5 cents of property in Survey No. 166/86 of Edappally South Village with the building numbered as CC 35/805 described in the plaint. Against the said Judgment and Decree, this appeal is filed.;

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