The exclusion of property from a partition deed does not confer exclusive rights to the defendants; a joint statement regarding property status is binding.

JUDGMENT :

Easwaran S., J.

The plaintiffs in a suit for partition have come up with these appeals, aggrieved by the judgment and decree passed by the Sub Court, Kannur in A.S.Nos.448 of 2012 and 1 of 2013.

2. The brief facts necessary for the disposal of these appeals are as follows:-

The property described as item No.2 in the plaint was held by one Matha as per Marupattam document No.2554/1943. The property described as item No.1 was in the possession of Kunhi Thundiyil Ambutty as per document No.139/1931. The plaintiffs and the defendants are the legal heirs of Matha and Ambutty and after the death of Matha and Ambutty, the right in the plaint schedule property was devolved upon the plaintiffs and defendants. As per a registered Nishchaya Rekha No.1323/1941 dated 01.08.1941 and Marupattam document No.2554/1943 of the S.R.O, Kadachira, the properties were in joint possession of the plaintiffs and the defendants. Since the plaintiffs did not want to continue in the joint possession of the property, they sought for partition on 15.04.2008 and the same was denied. Hence, the suit. The defendants appeared and contested the suit and contended that the property is not a joint family property and is in a exclusive possession of the 1^st defendant. It is further pointed out that, in the year 1984, the properties were partitioned among the members of the thavazhi and plaintiffs 1, 2, 4 to 9 and 11 to 14 or their predecessors were parties to the partition deed. The entire thavazhy properties were partitioned as per the partition deed and that the plaint schedule property was left out meaning thereby that the same is no longer available for partition. On behalf of the plaintiffs, PW1 was examined and Exts.A1 to A8 were marked. On behalf of the defendants, DW1 was examined and Exts.B1 to B15 were marked. One of the contentions raised by the plaintiffs was as regards a joint statement executed by the members of the thavazhi before the Sub Court, Thalassery in LAR No.187/1983. Hence, the proceedings of the LAR were called for and were marked as Ext.X1 series. The Trial Court, on an appreciation of the oral and documentary evidence of the plaintiffs, came to the conclusion that the plaint schedule property is partible and decreed the suit and allowing the plaintiffs to recover 13 shares out of 14 equal shares. The supplemental 6^th defendant, who is the subsequent assignee, aggrieved by the judgment and decree, preferred A.S.No.1/2013. In the meantime, the property was alienated by the defendants. The original defendants 1 to 5 preferred A.S.No.448/2012. The first appellate court, on an appreciation of evidence, found that the purchase certificate issued in the name of the defendants by the Land Tribunal would enure to the exclusive benefit of the defendants. It was further found that the subsequent assignments of the property were not questioned by the plaintiffs and therefore, it reversed the findings of the Trial Court and dismissed the suit. Aggrieved by the judgment, these present appeals are preferred.

3. When these appeals were admitted to file, this Court framed the following questions of law:-

1. Once the predecessor in interest of defendants 1 to 5 admitted that the property is a Thavazhi property, are not the defendants 1 to 5 estopped from denying the right of partition?

2. Whether the findings in L.A.R.No.187/1983 is binding on the defendants in view of the admission in the written statement by their predecessor, admitting that the property is a Thavazhy property?

3. Whether the lower appellate court justified in not drawing adverse infer