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2025 Supreme(Online)(Ker) 31802
IN THE HIGH COURT OF KERALA AT ERNAKULAM
Sathish Ninan, P. Krishna Kumar, JJ
E R PAULSON – Appellant
Versus
E.R. JOHN BOSCO – Respondent
RFA NO. 36 OF 2025 | OS NO.105 OF 2019
For the Appellants/Petitioners: SHRI.ROJO JOSEPH, SRI.A.SAIN PAUL, SHRI.P.C.THOMAS, SHRI.P.R.SHIBU, SHRI.P.T.JUDY, SHRI.ASWIN P.S.
For the Respondents: SMT.NAVIA SEBASTIAN
Presumption of death enables rightful heirs to claim partition of property.
Headnote:(A) Indian Evidence Act, 1872 - Section 108 - Indian Succession Act, 1925 - Section 47 - Plaintiff appeals from dismissal of partition claim regarding property of deceased sibling presumed dead since 1985. Court admits relevant Sale Deed as evidence and finds missing sibling's presumed death supports partition claims. Each party entitled to equal shares of property. (Paras 8, 9, 10)
(B) Proof of Title - Presumption of death under law allows partition claim when no lineal descendants exist. Admissibility of Sale Deed determines rightful heirs. (Paras 9, 10)
Facts of the case:
Dispute arises over the partition of property belonging to a sibling presumed dead. Court affirms prior decree in favor of plaintiff based on evidentiary support for partitioning property.
Findings of Court:
The appeal is allowed, granting partition among siblings based on evidence of presumed death of the missing sibling.
Issues: Main issue was whether the evidence provided sufficed to presume the death of the sibling and entitle the parties to a partition.
Ratio Decidendi: The court determined that the presumption of death under Section 108 along with the evidence supported the partition claims, emphasizing the rights of the remaining siblings as the lawful heirs under Section 47.
Result: Appeal allowed, partition granted.
| Table of Content |
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| 1. facts regarding the missing brother and basis for partition. (Para 3 , 4 , 5) |
| 2. legal findings and the court's reasoning about partition rights. (Para 7 , 8 , 9) |
Sathish Ninan, J.
This appeal is by the plaintiff in a suit for partition. The claim in respect of one item of the plaint schedule was dismissed by the trial court against which he is in appeal.
2. The plaintiff, defendants and Augustine E.R. @
Edison are the children of late A.C. Raphel and late Philomina T.J. @ Plamena. The plaint A schedule property belonged to Edison and the plaint B schedule property belonged to Philomina. With regard to the plaint B schedule property, the trial court granted a decree. In this appeal, we are concerned only about the plaint A schedule property.
3. The plaintiff alleges that their brother Edison left the house in the year 1985 and is unheard of since then. It is the case that Edison must be presumed to have been dead and the plaint A schedule property, which belonged to him, is to be partitioned between the plaintiff and the defendants.
4. The defendants supported the claim of the plaintiff.
5. The trial court held that it has not been proved that Edison is unheard of since the year 1985. It was also held that no documents evidencing the title of Edison over the plaint A schedule property were produced. Accordingly, the suit was dismissed.
6. We have heard the learned counsel on either side.
7. To prove the title of Edison, who was also known as E.R. Augustine, the appellant-plaintiff has produced before this Court the original Sale Deed No.3379/1984 dated 26.10.1984. We find that the document produced is just and necessary for a proper disposal of the case. Hence, it is admitted in evidence. The document will stand marked as Exhibit-A6.
8. That Augustine E.R. @ Edison is unheard of since the year 1985, is not in dispute between the parties. Exts.A2 and A3 produced before the trial court are the advertisements given in Mathrubhumi and Deshabhimani dailies in July and August, 1985 respectively that Augustine E.R. @ Edison is missing since 09.07.1985. In the circumstances as above, we are of the opinion that presumption could be drawn under Section 108 of the Indian Evidence Act that Augustine E.R. @ Edison is not alive.
9. There being no lineal descendants, and the parents being not alive, in terms of Section 47 of Indian Succession Act, the siblings - plaintiff and the defendants, are the sole legal heirs of Augustine E.R. @ Edison. The plaint A schedule property, which belonged to Edison, is liable to be partitioned among them, each being entitled 1/7 shares. 10. In the result, the appeal is allowed. The decree and judgment of the trial court, insofar as it declined the relief for partition of the plaint A schedule property is set aside. It is declared that the plaint A schedule property is partible into seven equal shares in the manner as decreed with respect to the plaint B schedule, the plaintiff and the defendants being each entitled to 1/7 shares.
11. The trial court to proceed with the final decree in the light of the judgment of the Apex Court in Kattukandi Edathil Krishnan and Ors v. Kattukandi Edathil Valsan and Ors [2022 (3) KLT
924(SC)]
