IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR FRIDAY, THE 18TH NOVEMBER 2011 / 27TH KARTHIKA 1933 RSA.No. 89 of 2004(B) --------------------- AS.136/1999 of II ADDL. DISTRICT COURT, PALAKKAD OS.702/1996 of ADDL.SUB COURT, PALAKKAD .................... APPELLANT/RESPONDENT/PLAINTIFF: --------------------------------------------------- K.KRISHNA MOOTHAN, S/O.LATE KUNCHU MOOTHAN,RESIDING AT MOOCHIKAL HOUSE, KARNAKI NAGAR, KOPPAM AMSOM, PALAKKAD (DIED). * 2. MADHAVI.M, WIDOW OF K.KRISHNA MOOTHAN. *3. GURUVAYOORAPPAN.KM S/O. LATE K.KRISHNA MOOTHAN. *4. MANI.K, S/O LATE K.KRISHNA MOOTHAN. *5. SASIKALA K, D/O LATE K.KRISHNA MOOTHAN. *6. PADMINI.K, D/O. LATE K.KRISHNA MOOTHAN. *7. BABY K, D/O. LATE K.KRISHNA MOOTHAN. *8. RAJAN K, S/O LATE K.KRISHNA MOOTHAN. *9. PARVATHY K, D/O. LATE K.KRISHNA MOOTHAN. *10. SARAVANAN K, S/O. LATE K.KRISHNA MOOTHAN. * ABOVE SUPPLEMENTAL APPELLANTS 2 TO 10, WHO ALL ARE RESIDING AT 29/224, KARNAKI NAGAR, TEMPLE STREET, VADAKKANTHARA P.O. PALAKKAD 678 012, ARE IMPLEADED AS LEGAL REPRESENTATIVES OF DECEASED APPELLANT AS PER ORDER DATED 28.5.2010 IN I.A.1103 OF 2010. BY ADV SRI.T.C.SURESH MENON SMT.M.R.VALSA SRI.SREEKANTH.K.R SMT.G.GEETHISHA RESPONDENT(S): APPELLANTS/DEFENDANTS: ------------------------------------- 1. SELVARAJ, S/O. LATE SUBRAMANIA MOOTHAN ALIAS SUBRAMANIAN. 2. GOPALAKRISHNAN, S/O. LATE SUBRAMANIA MOOTHAN ALIAS SUBRAMANIAN. 3. MURALEEDHARAN, S/O. LATE SUBRAMANIA MOOTHAN ALIAS SUBRAMANIAN. RSA 89/2004 4. OMANA, D/O. LATE SUBRAMANIA MOOTHAN ALIAS SUBRAMANIAN. 5. KALAVATHY, D/O. LATE SUBRAMANIA MOOTHAN ALIAS SUBRAMANIAN. 6. KANAKAM, D/O. LATE SUBRAMANIA MOOTHAN ALIAS SUBRAMANIAN. 7. RUGMINI, WIDOW OF LATE SUBRAMANIA MOOTHAN ALIAS SUBRAMANIAN ALL ARE RESIDING AT 29/222, TEMPLE STEET, KARNAKI NAGAR, KOPPAM AMSOM, PALAKKAD. ADV. SRI.JACOB SEBASTIAN FOR RESPONDENTS THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 18/11/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: M.SASIDHARAN NAMBIAR, J ........................................... RSA No.89 of 2004 ............................................ DATED THIS THE 18th DAY OF NOVEMBER, 2011 JUDGMENT Plaintiff in O.S.702 of 1996 on the file of Sub Court, Palakkad is the appellant. Defendants are the respondents. Appellant and Subramanya Muthan are direct brothers. Subramanya Muthan died on 2.1.1995. Seventh respondent is his widow and respondents 1 to 6 are their children. Appellant and Subramanya Muthan were admittedly conducting a Gunny business under a partnership agreement in the name and style “Ramakrishna Gunny Stores”. Ext.B2 registered partnership deed was executed on 1.4.1992. Subsequently, appellant agreed to relinquish his right under the partnership business and the joint properties. Ext.A1 agreement was admittedly executed on 10.7.1994. In respect of one of the item provided in Ext.A1, viz the partnership business, Ext.B3 agreement was subsequently entered on 26.9.1994, whereunder the appellant had agreed to release his rights in favour of Subramanya Muthan for the agreed consideration and part of the consideration was paid. It is also RSA 89/2004 2 admitted that after the death of Subramanya Muthan, appellant instituted O.S.367 of 1996 for realisation of the balance consideration provided in Ext.B3 agreement. That suit was admittedly decreed. Appellant thereafter instituted O.S.702 of 1996 before Sub Court, Palakkad for partition and separation of his share in the plaint schedule properties. Plaint schedule properties are two items of shop buildings. First item consists of two taks where there exists a three roomed tiled shop building. Item No.2 is another shop building. Appellant would contend that though the property was acquired in the name of Subramanya Muthan, it was acquired with the funds of the partnership business and therefore it is a joint asset of the partnership firm and therefore appellant is entitled to get his half share. Appellant would contend that Ext.A1 is a family agreement whereunder Subramanya Muthan agreed the joint right of the appellant over the properties shown therein and he is entitled to get his one half share separated. 2. Respondents resisted the suit contending that the plaint schedule properties are not joint properties and they were not acquired with the funds of the partnership business but they were the independent self acquisition of Subramanya Muthan. It was RSA 89/2004 3 contended that Ext.A1 was got executed by the appellant at a time when Subramanya Muthan was suffering from kidney ailments and it was not voluntarily executed and later, there was a mediation, as a result of which Ext.B3 agreement was entered into and at that time it was agreed that Ext.A1 agreement will be destroyed and appellant is not entitled to claim any right under Ext.A1. 3. Learned Sub Judge, on the evidence granted a preliminary decree holding that Ext.A1 is a family arrangement and Ext.A1 establishes that appellant has joint right over the plaint schedule properties and though Subramanya Muthan had agreed to pay consideration for releasing his rights, consideration was not paid and therefore appellant retained his right in the properties and hence plaint schedule properties are available for partition. Respondents challenged the decree before District Court, Palakkad in A.S.136 of 1999. Learned District Judge on re- appreciation of the evidence, found that Ext.A1 agreement does not contain any admission that appellant has half right in the properties and Ext.B2 deed of partnership shows that the partnership business was commenced only on 1.4.1976 and Ext.B1, the title deed of the plaint schedule properties establish RSA 89/2004 4 that properties were acquired in 1969 and therefore it cannot be an acquisition with the assets of the partnership firm. Learned District Judge also found that Ext.A1 is only an agreement providing for payment of Rs.7,50,000/- to the appellant agreed by Subramanya Muthan and if at all remedy of the appellant is to enforce the agreement and not to file a suit for partition. Appeal was allowed. The preliminary decree was set aside and suit was dismissed. It is challenged in the second appeal. 4. When the appeal came up for admission, notice was issued to respondents before admission. In view of the submission of the appellant that the dispute could be settled amicably, appeal was referred to Lok Adalath at the High Court. But, it was not settled. Appeal was returned back to this court. 5. Learned counsel appearing for appellant and respondents were heard thereafter. The argument of the learned counsel appearing for appellant is that Ext.A1 was admittedly executed by Subramanya Muthan and appellant and under the agreement, Subramanya Muthan admitted the rights of the appellant over the properties shown therein, which admittedly include the plaint schedule properties and therefore first appellate court was not justified in holding that appellant has no right to claim partition. RSA 89/2004 5 Learned counsel argued that Ext.A1 is really a family arrangement and though it was executed only by the two brothers, appellant and Subramanya Muthan, his sisters and their husbands were all parties to the agreement as they have signed in Ext.A1 though in their capacity as witnesses and when a family settlement was arrived at and it was reduced into writing, first appellate court was not justified in not giving effect to the terms of Ext.A1. Learned counsel argued that Ext.A1 specifically recites that the properties were acquired in the name of Subramanya Muthan and appellant has also right and thereafter Subramanya Muthan agreed to get the rights of the appellant for a consideration and therefore his legal heirs are not entitled to dispute the rights of the appellant. Learned counsel argued that as Ext.B3 agreement was subsequently executed and the rights of appellant over the partnership business alone was released to Subramanya Muthan and the entire records of the partnership business are with the respondents and therefore for non- production of the records, it cannot be found that properties were not acquired with the funds of the partnership business. It is therefore argued that first appellate court should not have interfered with the decree. RSA 89/2004 6 6. Learned counsel appearing for respondents pointed out that Ext.B2 establishes that the partnership business came into existence only in 1976 and when the plaint schedule properties were acquired under Ext.B1 in 1969, there canot be an acquisition with the assets of the partnership firm as claimed by the appellant and therefore, appellant is not entitled to claim partition of the plaint schedule properties on the ground that it jointly belonged to the appellant and Subramanya Muthan. It was also argued that Ext.A1 does not contain any admission that appellant has right over the plaint schedule properties and in such circumstances, first appellate court rightly set aside the preliminary decree and dismissed the suit. 7. The crucial question is whether plaint schedule properties are joint properties of appellant and Subramanya Muthan. As the case of appellant is that it was acquired in the name of Subramanya Muthan, with the funds of the partnership business, the question is whether plaint schedule properties were acquired with the funds of the partnership business. The burden is definitely on the appellant, who alleges that the acquisition though in the name of Subramanya Muthan was with the funds of the partnership business. The plaint does not disclose when the RSA 89/2004 7 partnership business came into existence. As PW1, he claimed that it came into existence 30 years prior to the date of his examination. He did not state in which year it was started. It is also to be borne in mind that as against the recitals in Ext.B2 registered partnership deed, PW1 has no case that there existed a partnership business prior to the execution of a registered partnership deed in 1976. Ext.B2, the registered partnership deed shows that based on the decision to modify the terms of the original partnership deed of 1976, Ext.B2 was executed in 1992. Therefore, in the light of the unambiguous statement in Ext.B2 that the partnership firm came into existence in 1976, appellant cannot be heard to contend that the partnership business was in existence earlier to 1976, especially when there is no such pleading or evidence. When the properties were acquired under Ext.B1 in 1969, it could never be an acquisition by Subramanya Muthan with the funds of the partnership business, which came into existence only in 1976. On that sole ground, appellant is to be non-suited. 8. An admission will not create title. If appellant has no title to the plaint schedule properties, even if there is an admission in Ext.A1 with regard to title, that will not enable the RSA 89/2004 8 appellant to claim title. Ext.A1 does not contain any admission that appellant has title to the plaint schedule properties. Ext.A1 shows that the two brothers agreed to discontinue the partnership business and also the joint rights and executed Ext.A1. Ext.A1 provides that the right of the appellant over the partnership business and other properties were agreed to be released for a total consideration of Rs.7,50,000/-. It is later in respect of the partnership business, which is item No.1 of Ext.A1 agreement, Ext.B3 agreement was executed in 1994, whereunder appellant admittedly released his rights in favour of Subramanya Muthan for a total consideration of Rs.2,00,000/-. It is also admitted that for receipt of the balance consideration, appellant instituted a suit and obtained a decree against Subramanya Muthan. Item Nos.2 and 3 are the shop buildings. 9. There is a specific recital in Ext.A1 on item No.2 that it was acquired by Subramanya Muthan. There is no recital with regard to acquisition of item No.3 building. Item No.4 is the tenancy right of the partnership firm, in another building. Item No.5 is in respect of the joint family property and item No.6 are the movables therein. When the entire disputes were settled under an agreement, if in the agreement two properties over RSA 89/2004 9 which appellant had no right were included, based on that inclusion, appellant cannot claim that it is a joint property or he is entitled to share. That exactly is the case herein. Creation of a right under Ext.A1 agreement does not arise. Unless there exists a pre-existing right, based on Ext.A1 right over the properties cannot be claimed. Appellant could claim share in the plaint schedule properties only if it was a joint acquisition or it was an acquisition with the funds of the partnership business. As stated earlier, it could never be an acquisition with the funds of the partnership firm, as partnership firm came into existence much later to its acquisition. Admittedly, it is not a joint acquisition. In such circumstances, first appellate court was fully justified in holding that appellant is not entitled to a share in the plaint schedule properties. If appellant has any right under Ext.A1 agreement, remedy is to enforce the agreement. As no substantial question of law is involved, appeal is dismissed. M.SASIDHARAN NAMBIAR, JUDGE lgk