IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.R.RAMAN & THE HONOURABLE MR. JUSTICE T.R.RAMACHANDRAN NAIR FRIDAY, THE 20TH JUNE 2008 / 30TH JYAISHTA 1930 FAO.No. 115 of 2008() --------------------- AGAINST THE ORDER DATED 25/01/2008 IN IA 3058/2007. IN OS.594/2006 of I ADDL.SUB COURT, THRISSUR ................... APPELLANTS/RESPONDENTS 1,2,4 & 5 ------------------------------------------------- 1. P.P.SEBASTIAN @ DEVASSYKUTTY, S/O PARAKKA KUNJI PYLOTH, BENNET ROAD, CHEMBUKKAVU DESOM & VILLAGE, THRISSUR TALUK. 2. DR.JOSEPH PAUL @ OUSEPHACHAN, S/O PARAKKA KUNJI PYLOTH, BENNET ROAD, CHEMBUKKAVU DESOM & VILLAGE, THRISSUR TALUK. 3. THARIAN PAUL @ THARUTH, S/O PARAKKA KUNJI PYLOTH, RESIDING AT PARAKKA VEEDU, NEAR COMMUNITY HALL, GIRI NAGAR, KANAYANNUR VILLAGE, TALUK COCHIN 4. GEORGE PAUL(WRONGLY SHOWN AS JOJO PAUL IN THE ORDER), S/O PARAKKA KUNJI PYLOTH, PARAKKA VEEDU, BATHEL LANE, MISSION QUARTERS, THRISSUR. BY ADV. SRI.T.KRISHNAN UNNI (SR.) SRI.T.R.RAVI RESPONDENTS: PETITIONER & 3RD RESPONDENT ---------------------------------------- 1. SAKHARIAH, SON OF PARAKKA KUNJI PYLOTH, RESIDING AT SANANA MISSION ROAD, CHEBUKKAVU DESOM AND VILLAGE, THRISSUR TALUK. 2. ANTONY PAUL @ ANTHONIACHAN, S/O PARAKKA KUNJI PYLOTH, RESIDING AT PARAKKA ESTATE, EZHARUKUGHAM, KARUKUTTY VILLAGE, ALUVA TALUK. BY ADV. SRI.B.KRISHNA MANI FOR R1 SRI.JOHN JOSEPH VETTIKAD FOR R2 SRI.C.JOSEPH JOHNY FOR R2 THIS FIRST APPEAL FROM ORDERS HAVING BEEN FINALLY HEARD ON 20/06/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ORDER ON I.A.NO.1973/2008 IN F.A.O.NO.115/2008 --------------- Dismissed Sd/- P.R.RAMAN, JUDGE. 20/6/2008 Sd/- T.R.RAMACHANDRAN NAIR, JUDGE P.R.RAMAN & T.R.RAMACHANDRAN NAIR,JJ. ------------------------------- F.A.O.NO.115 OF 2008 -------------------------------- Dated this the 20th day of June, 2008 JUDGMENT Raman,J. This is an appeal by defendants 1, 2, 4 and 5 in a partition suit as O.S.No.594/2006 instituted by the Ist respondent herein as plaintiff, before the Sub Court, Thrissur. The plaint A schedule property consists of two items and plaint B schedule property is the movables situated in plaint A schedule property. Of the two items in plaint A schedule; one is an extent of 30 cents of land with a building and the other is an estate measuring about 100 and odd acres. According to the plaint averment, the property originally belonged to one P.D. Paul, father of the appellants and respondents. He had executed a Will on 29/8/1969, which was registered in the year 1971. Various items as per the Will were set apart to different parties. As far as A schedule item in the -2- F.A.O.No.115/2008 Will is concerned, that corresponds to plaint A schedule property in the present suit. As per the Will, this item was kept in common and the remaining items B to G were bequeathed in favour of his children. But the property will ultimately devolve only after the death of the wife of the testator, who is the mother of the parties to the suit. The mother of the parties died on 26/7/2002. Though the mother had right over the properties as aforesaid, it was managed by her children. It is stated that the present plaint schedule items were entrusted for management as caretakers to the defendants. But the income derived from the estate is not paid to the plaintiff. In the circumstances, the plaintiff demanded partition of the property and eventually the suit was filed. Subsequent to the filing of the suit the plaintiff filed an application for appointment of a Receiver. The court below, after considering the contentions of the parties, allowed the application, against which the present appeal is preferred. 2. Ext.A1 is the copy of the Will produced in the case and Ext.A2 is stated to be a family arrangement. Even as per the -3- F.A.O.No.115/2008 plaint averment, the existence of a written arrangement is admitted. Ext.A2 dated 9/9/1984 is the arrangement produced by the Appellant as Annexure-II. According to the plaintiff, an oral partition or arrangement is not legally possible. According to him, only among Hindu co-parceners an oral partition is recognised in law. Defendants on the other hand, would submit that so long as a partition among Christians cannot be considered as involving any transfer and in the absence of any prohibition under any law of an oral division, there is nothing illegal about the oral partition. Both sides placed reliance on some text book as well as some case law decided. For the limited purpose of disposing of this appeal, being one against an interim order of appointment of a Receiver and since the very suit is pending trial, we do not think it necessary to consider such contentions, at this stage, as it will affect the right of the parties and then contention raised in the suit now pending trial.. Hence, we refrain from considering such contentions in this appeal. 3. The only point that arises for consideration is whether -4- F.A.O.No.115/2008 the appointment of a Receiver in the facts and circumstances of the case, is justified. In this regard, it is contended by the appellants that they were continuing in possession, ever since the death of Paul in 1971 and at any rate, after the death of the mother. Even before that, according to the plaintiff, he was managing the estate as a caretaker. According to the Senior Counsel Sri Krishnanunni, if the oral partition is recognised as valid, there is no scope for decreeing the suit. According to him, in such circumstances, appellants cannot be dispossessed by appointing a third party as a Receiver. On the other hand, the learned counsel Sri B. Krishnamani would submit that the very fact that the appellants were continuing to enjoy the property without paying the due share of income to the plaintiff itself is a sufficient reason as to why they should not be allowd to continue in possession and enjoyment of the property rather entrust the property with the Receiver. 4. We have heard both sides and perused the order of the court below. -5- F.A.O.No.115/2008 5. The court below placed reliance on the Will as per which the plaint schedule properties to be retained as a common property for meeting the obligations stipulated in clauses 4, 5 and 6 of the Will and also for enjoyment of the property by the mother of the parties during her life time. It is only after the mother's death that the property will devolve upon all the male members of the family. Further there was a stipulation in the Will that if any other person other than the mother of the parties is managing the property, they will be liable for rendering the accounts to the mother as well as to the mail members of the family. Therefore, the court below proceeded to hold that as per the Will plaint A and B schedule properties would become the common property of all male members of the family and the respondents are managing the property only as a joint holder for and on behalf of all the male members of the family. We may state at this stage that it is premature to enter any finding in the manner as did by the court below. The definite case of the defendants is that there is an oral partition and therefore the -6- F.A.O.No.115/2008 further partition is not called for. This contention has to be considered in the light of the settled position and entered a finding. It is true that this property originally belonged to the deceased Paul, that the mother only had life estate and the plaint A and B schedule properties were kept as a common property. Therefore, the main question that would arise for consideration is as to whether this common property at any time was partitioned between the parties and whether an oral partition is valid in law. The court below has yet to consider the various contentions raised in the suit. Admittedly, the appellants were keeping the property and managing the same. Whether the appellants could be dispossessed at this stage and induct a third party and whether it will be in the larger interest of the parties necessarily arises for consideration. 6. We have given our anxious consideration on this aspect. Even the plaintiff placed reliance on Ext.A2, it called an arrangement, settlement or an acknowledgement of a previous oral partition. There is however a reference of an oral partition -7- F.A.O.No.115/2008 in Ext.A2 and the property was entrusted to the appellants. Therefore, according to us, a third party receiver need not be inducted at this stage; but the appellants can be made liable to account for the income derived therefrom. 7. Accordingly, instead of appointment of an Advocate Receiver, we direct that the appellants shall be appointed as Party Receivers, who shall give proper accounts for the income and expenditure relating to the plaint schedule property. 8. Both the parties are allowed to move the court below for appropriate direction with regard to the management of the property, if any required. Appeal is allowed with the above modification. P.R.RAMAN, Judge. T.R.RAMACHANDRAN NAIR, Judge. kcv.