IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH MONDAY, THE 5TH OCTOBER 2009 / 13TH ASWINA 1931 RSA.No. 1304 of 2004() ---------------------- AS.110/2001 of SUB COURT, TIRUR OS.98/1997 of M.C.,PARAPPANANGADI .................... APPELLANTS 2 TO 4 AND R2/LEGAL HEIRS OF DEFENDANT: --------------------------------------------------------------------- 1. K.NARAYANI, W/O.A.SANKU, RESIDING AT PERUVALLUR AMSOM DESOM, P.O.PERUVALLUR, TIRURANGADI TALUK, MALAPPURAM DISTRICT. 2. K.DEVU, D/O.A. SANKU, DO.DO. 3. K.UNNIKRISHNAN, S/O.A.SANKU, DO.DO. 4. K.GOPINATHAN, S/O.A. SANKU, DO.DO.DO. BY ADV. SRI.T.P.KELU NAMBIAR, SENIOR ADVOCATE SRI.P.G.RAJAGOPALAN SRI.M.GOPIKRISHNAN NAMBIAR SMT.T.RESMI DAMODARAN RESPONDENT(S): 1ST RESPONDENT/PLAINTIFF: --------------------------------------- VELAYUDHAN, S/O.KARUVARAKKAL APPU, RESIDING AT FEROKE AMSOM, CHUNGAM, FEROKE CHUNGAM P.O., KOZHIKODE TALUK, KOZHIKODE DISTRICT. ADV. SRI.K.RAMACHANDRAN SMT.R.MEERA THIS REGULAR SECOND APPEAL HAVING BEEN FINALLY HEARD ON 05/10/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: THOMAS P JOSEPH, J ---------------------------------------- R.S.A.No.1304 of 2004 --------------------------------------- Dated this 05th day of October 2009 JUDGMENT Second appeal arises at the instance of legal representatives of defendant who successively lost in the courts below in a suit for partition and separate possession of the half share claimed by the respondent, his younger brother. Respondent instituted the suit in the court of learned Munsiff, Parappanangadi claiming that the suit property was purchased, at a time when he was employed abroad using his funds also. He had instructed and deceased defendant agreed that the property will be purchased in their joint names but later when he returned to his native place he learned that the document was taken only in the name of deceased defendant. Thereon he demanded partition and separate possession of his half share of the property which deceased defendant denied. There was a mediation on 01-03-1997 in the presence of mediators in which deceased defendant admitted that the property could be partitioned within fifteen days and executed an agreement to that effect. Deceased defendant refused to honour his undertaking and hence the suit. Deceased defendant denied the allegation of purchase of the property using joint funds and claimed that he purchased the property with his own funds. That property is not partible nor has respondent any right or interest over it. He denied that Ext.A1, agreement was R.S.A.No.1304 of 2004 2 executed by him and claimed that it is the result of forgery. Respondent gave evidence as PW1 and proved Exts.A1 to A4. Son of deceased defendant gave contra evidence as DW1. He proved Exts.B1 to B3. Ext.A1, disputed agreement was sent to the handwriting expert for opinion along with the admitted signatures of deceased defendant. Expert opined that the disputed signature in Ext.A1 and the admitted signatures are of the same person. Learned Munsiff also compared the disputed signature in Ext.A1 with the admitted signatures of deceased defendant. On evidence it was found that Ext.A1 is genuine and accordingly, partition as claimed by respondent was ordered. A preliminary decree was passed. Deceased defendant took up the matter in appeal. Learned Sub Judge concurred with the finding of learned Munsiff and dismissed the appeal. On the death of defendant his legal representatives have preferred this second appeal. 2. Following substantial questions of law are formulated by this court for a decision: (i) Whether the suit, as framed, is maintainable in law. (ii) Is not the suit barred by section 4 of the Benami Transactions (Prohibition) Act, 1988. (iii) Is not Ext.A1 agreement void under section 23 of the Contract Act, as it is opposed to the provisions of section 3 of the Benami Transactions (Prohibition) Act, 1988. R.S.A.No.1304 of 2004 3 After hearing both sides and in the light of the contention raised by deceased defendant in the written statement, the following substantial question of law is also framed: (iv). Whether, the suit as framed without a prayer for declaration of title and payment of court fee accordingly is maintainable? Respondent has sued for partition and separate possession of the half share he claimed, he has in the suit property as if he is a co owner in joint possession of that property along with deceased defendant and paying fixed court fee of Rs.50/- under section 37(2) of the Court Fees Act. Deceased defendant contended that the suit as framed is not maintainable. Learned Munsiff considered the question in para 16 of the judgment and stated that Ext.A1 shows that respondent is a co owner of the suit property and hence contention that the suit is not maintainable without a prayer for declaration of title and payment of court fee accordingly cannot be sustained. The first appellate court has not adverted to that question while disposing of the appeal. According to the learned counsel for appellants, suit as framed is not maintainable. It is contended that Ext.A1 is not a document of title and hence, respondent cannot trace his title to Ext.A1. Ext.B1 is the assignment deed dated 16-01-1981 in favour of deceased defendant. Therefore, according to learned counsel for appellants without a declaration of the right, title and interest claimed by respondent over R.S.A.No.1304 of 2004 4 the suit property, he cannot straight away sue for partition and separate possession of the property as if he is a co-owner with deceased defendant. According to the learned counsel for respondent, in the light of Ext.A1 and the finding entered by the courts below declaration of title is not required. 3. As per Ext.B1, title over the property apparently vests with the deceased defendant and consideration also has flowed from him. So far as Ext.A1 is concerned, it is not a document of title. It is only an agreement allegedly executed by deceased defendant in favour of respondents stating that the purchase was utilising the funds of respondent also and hence, deceased defendant is agreeable to partition the property within the time stated therein. Ext.A1 can only be taken, even if it is assumed that is executed by deceased defendant as an admission of respondent also contributing to the sale consideration. Ext.A1 can only be used as an item of evidence in favour of the case pleaded the respondent. Admission if proved may be the best form of evidence but cannot confer title. Partition is among persons who have an antecedent title. Title to immovable property has to be acquired in the manner provided in the Transfer of Property Act or by a declaration by a competent court. Here, respondent cannot trace the title he claimed to a document as provided in the Transfer of Property Act. In such a situation, respondent had to get the right, title R.S.A.No.1304 of 2004 5 and interest claimed by him declared by a competent court before seeking partition. In the absence of a declaration of title as above stated, respondent cannot claiming to be a co-owner and seek partition paying fixed court fee under section 37(2) of the Court Fees Act which provision can apply only when a co-owner is in joint possession of the property with the co-owner in actual possession. In the circumstances, I am inclined to accept contention raised by learned counsel for appellants that in the absence of a declaration of title and payment of court fee accordingly, respondent cannot straight away sue for partition. Learned Munsiff was not correct in holding that in view of Ext.A1, a declaration of title is not required. If that be so, the suit as framed is not maintainable. Substantial question of law No.IV is answered accordingly. In the light of my above finding it is unnecessary to consider the other substantial questions of law framed for decision. 4. At this stage learned counsel for respondent requested that in view of the finding regarding maintainability of the suit respondent may be given an opportunity to amend the plaint suitably incorporating prayer for declaration of title and to prosecute the suit further. Considering the facts and circumstances and the nature of the contentions raised, I am inclined to allow that request. 5. In the light of my above finding, findings entered by the R.S.A.No.1304 of 2004 6 courts below regarding other issues are set aside and left open for fresh consideration and decision. Resultantly the second appeal is allowed by way of remand. Judgment and decree under challenge are set aside and the case remitted to the court of learned Munsiff, Parappanangadi for fresh disposal after giving the respondent opportunity to amend the plaint incorporating prayer for declaration of title as claimed by him or such other reliefs as found necessary and payment of court fee accordingly. In case of such amendment appellants will get opportunity to file additional written statement. Both sides shall be given opportunity to adduce further evidence on all issues if they wish to do so. Since the suit is of the year 1997, learned Munisff is directed to dispose of the same within six months from the date of receipt of the records. Registry is directed to sent the records to the court of learned Munsiff, Parappanangadi immediately. Parties shall appear in that court on 05-11-2009. THOMAS P JOSEPH, JUDGE Sbna/