IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOTTATHIL B.RADHAKRISHNAN & THE HONOURABLE MR. JUSTICE S.S.SATHEESACHANDRAN TUESDAY, THE 12TH APRIL 2011 / 22ND CHAITHRA 1933 RFA.No. 272 of 2011 ----------------------------- [OS.NO.737/2008 OF THE PRINCIPAL SUB COURT, IRINJALAKUDA] .................... APPELLANT/2ND DEFENDANT: --------------------------------------------- DAVIS,S/O.KALLAPARAMBAN VARGHESE, IRINJALAKUDA TANA DESOM, MANAVALASSERI VILLAGE, MUKUNDAPURAM TALUK,THRISSUR DISTRICT. BY ADV. SRI.P.V.CHANDRA MOHAN. RESPONDENTS 1 TO 3/PLAINTIFFS 1 TO 3/RESPONDENTS 4 AND 5/ DEFENDANTS 1 AND 3: ------------------------------------------------------------------------------------------------------------------------ 1. MERCY (DIED), W/O.KALLAPARAMBAN VARGHESE, MADATHIKKARA DESOM,PUTHUR VILLAGE, MUKUNDAPURAM TALUK,THRISSUR DISTRICT. 2. JEO,S/O.KALLAPARAMBAN VARGHESE, MADATHIKKARA DESOM,PULLUR VILLAGE, MUKUNDAPURAM TALUK, THRISSUR DISTRICT. 3. JIFFIN,S/O.KALLAPARAMBAN VARGHESE, MADATHIKKARA DESOM,PULLUR VILLAGE, MUKUNDAPURAM TALUK, THRISSUR DISTRICT. 4. ANTHONY,S/O.KALLAPARAMBIL VARU, GANDHIGRAM DESOM,IRINJALAKUDA VILLAGE, MUKUNDAPURAM TALUK,THRISSUR DISTRICT. 5. GIJI,W/O.CHUNGATH DAVIS, KUNDANNUR DESOM,CHITTADA VILLAGE, THALAPPILLY TALUK. PRESENT ADDRESS.GIJI,C/O.JOY U.T,VADAKKAN HOUSE, KUNDANNUR DESOM AND POST, CHITTANDA VILLAGE, THALAPPILLY TALUK,THRISSUR DISTRICT. BY THIS REGULAR FIRST APPEAL HAVING COME UP FOR ADMISSION ON 12/04/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: prv. Thottathil B.Radhakrishnan & S.S.Satheesachandran, JJ. = = = = = = = = = = = = = = = = = = = = = = = = R.F.A.No.272 of 2011 = = = = = = = = = = = = = = = = = = = = = = = = Dated this the 12th day of April, 2011. Judgment Thottathil B.Radhakrishnan, J. 1.The second defendant in a suit for partition is the appellant. The plaintiffs are the legal representatives of his deceased brother. The first defendant is another brother of the appellant. 2.The plaint schedule property was purchased jointly by the three brothers. According to the defendants, who filed separate but similar written statements, the plaintiffs are not eligible for partition because after the purchase of the property in the name of the three brothers, with the passage of time, there was an understanding between the parties that though all RFA272/11 -: 2 :- of them had 1/3 share each, late Varghese would release his rights in favour of defendants 1 and 2. It appears that Varghese suffered cirrhosis of the liver and ultimately succumbed some time in November, 1998. 3.The defendants set up Ext.B4 which contains certain terms which, according to the defendants, were agreed to by late Varghese during his lifetime and that could result in a relinquishment or a release during his lifetime, however, because he remained sick, that was not registered. The court below went into the question as to whether Varghese had the physical and mental capacity to execute Ext.B4 and concluded ultimately that Ext.B4 is not binding. 4.We, however, look at it in a different angle, purely in terms of law and find that Ext.B4, a copy of which we have perused, is nothing but one in which there is no tangible contract or any resultant transfer of property that could be RFA272/11 -: 3 :- recognized as a conveyance or as an executable contract. At any rate, there is no relief sought for by the defendants for enforcement of any term of any particular contract. We, therefore, do not find any illegality in the impugned preliminary decree passed by the court below. 5.The appellant says that he is in occupation of some portion of the building in question. Those are all matters which may continue as such till the final decree is passed. Even that way, we do not find any ground to interfere. The appeal fails. The same is accordingly dismissed in limine. Thottathil B.Radhakrishnan, Judge. S.S.Satheesachandran, Judge. Sha/1904