IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN MONDAY, THE 18TH OCTOBER 2010 / 26TH ASWINA 1932 AS.No. 727 of 1997() ------------------ OS.402/1991 OF SUB COURT, PALAKKAD .................. APPELLANTS / DEFENDANTS 2 AND 3: ------------------------------------------------------ 1. MOHANAN, S/O. THANKAPPAN 2. SUBRAMANIAN, S/O. THANKAPPAN. BOTH ARE RESIDING AT MANNAYANKATTU HOUSE, NELLIAMKUNNU, KATTUSSERI AMSOM, ALATHUR TALUK, PALAKKAD DISTRICT. BY ADVS. SRI.V.CHITAMBARESH, SENIOR ADVOCATE SRI.T.C.SURESH MENON SRI. K.B. PRADEEP RESPONDENTS / PLAINTIFF / DEFENDANTS 1, 4 TO 6 : ---------------------------------------------------------------------------- 1. SUNDARAN, S/O. THANKAPPAN. 2. UNNIKRISHNAN, S/O. THANKAPPAN. 3. CHINNAKUTTY, W/O. THANKAPPAN (DIED) RESPONDENTS 1 TO 3 ARE RESIDING AT MANNAYANKATTU HOUSE, NELLIAMKUNNU, KATTUSSERI AMSOM, ALATHUR TALUK, PALAKKAD DISTRICT. *IT IS RECORDED THAT THE 3RD RESPONDENT DIED AND THAT APPELLANTS 1 AND 2 AND RESPONDENT 1, 2 & 4 (ALREADY ON THE PARTY ARRAY ) ARE HER LEGAL HEIRS VIDE ORDER DT. 16.09.2010 IN MEMO DT. 2.9.2010, CF 4913/10. 4. SANTHA, D/O. THANKAPPAN, RESIDING AT ITTINGAPARAMBU, AKATHETHARA AMSOM, PALAKKAD TALUK. ...2/- AS.No. 727 of 1997() -2- 5. GEETHA, D/O. THANKAPPAN, RESIDING AT VETTATHKALAM, KALLADIKKODE, PALAKKAD TALUK. (DELETED). **R5 DELETED FROM THE PARTY ARRAY AT THE RISK OF THE PETITIONER/APPELLANT VIDE ORDER DT. 10.2.2010 ON I.A.NO. 437/2010. R1 BY ADV. SMT.P.SHYNI THIS APPEAL SUITS HAVING BEEN FINALLY HEARD ON 18/10/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Mn M.N. KRISHNAN, J. ........................................... A.S.NO.727 OF 1997 ............................................. Dated this the 18th day of October, 2010. J U D G M E N T This is an appeal preferred against the judgment and decree of the Subordinate Judge's Court, Palakkad in O.S.No.402/1991. The suit is one for partition. The brief facts necessary for the disposal of the appeal are stated as follows: The plaintiff and defendants 1 to 3 are brothers. Defendants 5 and 6 are the sisters of the plaintiff and 4th defendant is the mother of the plaintiff. The property belonged to one Thankappan, who died in 1977 and on his death, it had devolved upon the plaintiff and the defendants. The joint family properties were partitioned in the year 1975, but the plaint schedule property was left out. The parties thereafter entered into an agreement, but the defendants have not responded to the request of the plaintiff, hence the suit for partition and separation of 8 out of 35 shares. 2. The defendants, on the other hand, would contend that the property was left out of the partition deed. When a : 2 : A.S.NO.727 OF 1997 dispute arose in 1991, there was an agreement on 11.2.1991 and as per the said agreement, the plaint schedule properties were orally partitioned and the entire value was fixed as Rs.30,000/= and the share of the plaintiff i.e., Rs.6,000/= was paid by defendants 1 to 3. On 20.4.1991 a partition deed was prepared and the plaintiff has put his signature. But it was only in pursuance of an oral partition. As the plaintiff refused to come to the Sub Registrar's office, the document could not be registered. 3. On an analysis of the entire materials, the trial court found in favour of the plaintiff and ordered partition of the property. There is no dispute with respect to the fact that the plaint schedule property was not divided as per 1975 partition deed. It is also not in dispute that there was an agreement for division of the properties. Ext.B3 was an agreement entered into between the plaintiff and the defendants and as per that document, the plaintiff has agreed to relinquish his right over the property in favour of the defendants within one month by executing a release deed. The defendants had promised to stand as sureties for : 3 : A.S.NO.727 OF 1997 the purchase of a tractor. They also agreed to vacate from the house of the plaintiff after receiving Rs.15,000/= from the plaintiff. The second defendant as DW1 had admitted that none of the parties to the agreement performed their part of the contract in Ext.B3 agreement. What is contemplated in Ext.B3 is a release in favour of the defendants. Subsequently it is seen that a partition deed is entered into but, unfortunately, the said document also was not registered by the parties. So neither Ext.B2 partition deed nor Ext.B3 agreement became legally admissible in evidence. It is true that there could be an oral partition. But when the terms of the partition is reduced in writings, it becomes a compulsorily registerable document. When it becomes a compulsorily registerable document, it cannot be used for any purpose other than for collateral purpose such as to prove incidence of possession. Here, admittedly, the property involved in the case is worth more than Rs.100/=. The right of the party has to be transferred only by a registered instrument. Admittedly it has not been done in this case. Therefore the plaintiff's right is not lost by a : 4 : A.S.NO.727 OF 1997 legally valid document. Since omission to include this item in previous partition is admitted and as right of the plaintiff is also admitted, then the plaintiff is necessarily entitled to claim partition over the property. The trial court found that the plaintiff is entitled to one out of 5 shares by birth and 1/7 out of 1/5 as the legal heir of father which makes his share 8/35. Therefore the judgment and decree of the trial court is in accordance with law and, therefore, it does not call for any interference. The appeal is dismissed but without costs. M.N. KRISHNAN, JUDGE. cl : 5 : A.S.NO.727 OF 1997 M.N. KRISHNAN, J. ........................................... A.S.NO.727 OF 1997 ............................................. 18th day of October, 2010. J U D G M E N T