Court establishes the validity of deeds involved in partition disputes and clarifies share entitlements based on legal limitations of property transfers following inheritance laws.

JUDGMENT

This appeal and the cross objection arise from the judgment and decree in A.S. No. 355/2010 of the Additional District Court-I, Thiruvananthapuram, which originally stood as A.S.No.102/2005 on the files of the Sub Court, Neyyattinkara, and was later transferred and renumbered as A.S.No.355/2010.

2. The brief facts necessary for the disposal of this appeal and the cross objection are as follows:

2.1. The suit was one for partition. The plaint schedule property consists of 72.5 cents in the name of Chellayyan Nadar, who died in the year 1980. After his death, the property devolved upon his wife and 8 children, who are the plaintiff and defendants 1 to 7 in the suit. The parties are governed by the Indian Succession Act , 1925 and therefore, the wife of Chellayyan Nadar, Appi Amma got 1/3^rd right, whereas the plainti to 7 together got 2/3^rd right. Therefore, plainti to 7 would take 1/8^th share each of the remaining 2/3^rd share.

2.2. What appeared as a simple suit for partition turned into a complex case of allotment of shares because of the various inter se transactions entered between the parties. To put it short, after the death of Chellayyan Nadar, Appi Amma transferred 30 cents covered by a gift deed on 31.12.1986 in favour of the 5^th defendant and her husband, who in turn transferred the property to the 3^rd defendant and his wife, 12^th defendant. Thereafter, Appi Amma executed the Ext.A2 sale deed dated 26.12.2001, conveying 11½ cents in favour of the plaintiff, whereas she had already exhausted her 1/3^rd share over 72.5 cents. It has come out in evidence that 2 cents was under mortgage which was redeemed by the wife of the plaintiff. Hence total extent available for partition is only 70.5 cents. Hence the share of Appi Amma comes to 23.5 cents. Notwithstanding these transactions, Appi Amma along with defendants 2, 3 and 6 executed yet another document on 02.05.1996, transferring 10½ cents in favour of the 7^th defendant. Most interestingly, an extent of 2 cents was mortgaged and the mortgage continued and the wife of the plaintiff redeemed the said mortgage and thereafter, transferred the right in favour of the 8^th defendant in the suit on 27.06.2002. Despite all these, the plaintiff instituted the suit in the year 2002, seeking for a partition of the remaining property, without realizing that he was already in possession of a larger extent of property other than what he was entitled to.

2.3. After the trial of the suit, the Additional Munsiff Court-I, Neyyattinkara, decreed the suit by passing a preliminary decree by ordering that, Item No.2 of A schedule and Item No.1 of C schedule be divided into 8 equal shares and Item No.1 of A schedule be divided into 3 equal shares and 1/3^rd share be allotted to the share of Appi Amma. Out of the 1/3^rd share, the property sold as per Exts.A1 and A2 be demarcated separately and remaining property be divided into 8 shares. Further, it was ordered that, the remaining 2/3^rd share in item No.1 of A schedule be divided into 8 equal shares and out of the share of the plaintiff in Item No.1 of A schedule, property covered by Ext.A5 deed be assigned to the share of the 8^th defendant.

2.4. Aggrieved, the defendants 3, 11 and 12 preferred A.S.No.102/2005 before the Sub Court, Neyyattinkara, which was later transferred to Additional District Court - I, Thiruvananthapuram, as A.S.No.355/2010. The first appellate court interfered with the findings of the trial court and allowed the suit as well as the counter claim and passed a completely opposite preliminary decree by upsetting the entire shares. Thus, the 11^th defendant, who is the 1^st