IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR THURSDAY, THE 30TH JUNE 2011 / 9TH ASHADHA 1933 RSA.No. 793 of 2009() --------------------- AS.315/2003 of DISTRICT COURT, PALAKKAD OS.204/1998 of ADDL.SUB COURT, PALAKKAD .................... APPELLANT/APPELLANT/3RD DEFENDANT ----------------------------------------------------- JANARDHANAN S/O. BALAKRISHNAN, THEKKAKKADE VEEDU, VARODE AMSOM, ALATHUR TALUK. BY ADV. SRI.SAJAN VARGHEESE K. SRI.LIJU. M.P RESPONDENT(S): REPSONDENTS/PLAINTIFF & DEFENDANTS ------------------------------------------------- 1. KRISHNANKUTTY,S/O. BALAKRISHNAN, THEKKAKKADE VEEDU, KOTTAYI, VARODE AMSOM ALATHUR TALUK. 2. MADHAVI,W/O.BALAKRISHNAN, THEKKAKKADE VEEDU, VARODE AMSOM, ALATHUR TALUK. 3. CHATHUNNI,W/O. BALAKRISHNAN, THEKKAKKADE VEEDU, VARODE AMSOM, ALATHUR TALUK. 4. INDIRA, D/O. BALAKIRSHNAN THEKKAKKADE VEEDU,VARODE AMSOM, ALATHUR TALUK. ADV. SRI.P.R.VENKETESH FOR R3 SRI.P.R.RAJA FOR R3 THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 30/06/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: M.SASIDHARAN NAMBIAR,J. --------------------------------------------- R.S.A.NO.793 OF 2009 --------------------------------------------- Dated 30th June, 2011 JUDGMENT Third defendant in O.S.204/1998 on the file of Sub Court, Palakkad is challenging the preliminary decree passed by the learned Sub Judge and confirmed by the District Judge in A.S.315/2003. Plaint schedule property admittedly originally belonged to deceased Madhavan. First defendant is his widow and plaintiff and defendants 2 to 4 are their children. On the death of Balakrishnan, his rights property devolved on the first defendant and her children and all of them are entitled to 1/5 share. Though Ext.B1 registered partition deed was entered into on 24/3/1995, plaintiff was not a signatory RSA 793/09 2 to Ext.B1. He instituted the suit seeking partition and allotment of his share. Appellant, the third defendant along with other defendants, excluding second defendant, filed a joint written statement contending that plaint schedule property is available for partition and there was no division of the properties earlier and Ext.B1 partition deed is not valid and it was not executed realising the contents of the document, they did not execute the document and alleging that it may be that the document is forged. On the evidence learned Sub Judge held that Ext.B1 is not binding on the plaintiff and therefore, he is entitled to get his share separated. Second defendant had contended that at the time of division under Ext.B1, value of each sharer was fixed and Rs.5000/- was found to be the value of each RSA 793/09 3 share and third defendant had informed them that he does not want the property and instead he need be paid only the value of the share and as stated in Ext.B1 Rs.5,000/- was paid to the appellant as the value of his share and his share was therefore, allotted to the second respondent. Learned Sub Judge in view of Ext.B1 whereunder third defendant received the value of his share and transferred his share in favour of the second defendant held that appellant is not entitled to a share and directed allotment of his share to the second defendant. A preliminary decree was passed. Appellant challenged the preliminary decree before District court, Palakkad in A.S.315/2003. Learned District Judge on re- appreciation of the evidence confirmed the findings of the learned Sub Judge and dismissed RSA 793/09 4 the appeal. 2. Learned counsel appearing for the appellant was heard. 3. Argument of the learned counsel is that as courts below did not accept Ext.B1, and directed partition of the properties and hence Ext.B1 should not have been relied on to deny a share legally available to the appellant. Learned counsel would argue that in the joint written statement filed by the appellant, along with other defendants, it was specifically contended that understanding the contents of the document they did not execute the document and hence courts below should not have acted upon on Ext.B1 to deny his share. 4. On hearing the learned counsel, I do not find any substantial question of law involved in the appeal. Ext.B1 is a registered RSA 793/09 5 document. Though under Ext.B1 the properties were divided and it was executed as a partition deed, plaintiff one of the sharer did not execute the document, though her name is shown and share was also allotted. Hence the division under Ext.B1 will not be binding on the non executant and courts below rightly held that plaintiff is entitled to his share ignoring Ext.B1 division. 5. Ext.B1 also shows that at the time of division effected thereunder, appellant expressed his willingness to receive the value of the share disclosing that he does not want the property and therefore, second defendant paid him the value of his share and he received the same and his share was hence allotted to the second defendant. In law, a sharer is entitled to transfer his share to a third party RSA 793/09 6 or to release his share either in favour of all the remaining sharers or to one or two of the sharers. Under Ext.B1, appellant released his rights in favour of the second defendant on receipt of the consideration. I cannot agree with the submission of the learned counsel that in view of the contention in the joint written statement, appellant is entitled to ignore Ext.B1. When Ext.B1 is registered document and thereunder appellant had released his right in favour of the second defendant, appellant cannot ignore the same. If the case of the appellant is that it was fraudulently got executed or he executed it without understanding the contents and is vitiated on any legal ground, document is to be set aside. So long as it is not set aside it is binding on the appellant. If that be so, when under RSA 793/09 7 Ext.B1 registered document, appellant had released his share in favour of the second defendant he is not entitled to claim a share and courts below rightly held that he is not entitled to a share. As no substantial question of law is involved in the appeal appeal is dismissed. M.SASIDHARAN NAMBIAR, JUDGE. uj.