IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE HARUN-UL-RASHID FRIDAY, THE 18TH DECEMBER 2009 / 27TH AGRAHAYANA 1931 RSA.No. 699 of 2004(G) ---------------------- AS.185/2000 of DISTRICT COURT,KOZHIKODE OS.41/1989 of I ADDL.SUB COURT, KOZHIKODE .................... APPELLANT/6TH DEFENDANT/3RDAPPELLANT. --------------------------------------------------- SOMAN, S/O.KOYAMPURATH RARU, AGED 46, R/A. MAKKADA AMSOM & DESOM, KOZHIKODE TALUK. ADDL.A2 MOHAMMED ABDURAHIMAN, S/O.BEERAN MOIDEEN AGED 51, ERAMAMPRAYILLATH HOUSE, CHUNDALE AMSOM DESOM, THALAPPILY TALUK, THRISSUR DISTRICT. ( 7TH RESPONDENT IS TRANSPOSED AS ADDITIONAL 2ND APPELLANT AS PER ORDER DATED 31.3.2009 IN I.A. NO. 564 OF 2008 ) BY ADV. SRI.K.C.CHARLES SRI.BASIL MATHEW SRI.AVM.SALAHUDIN FOR ADDL.A2 SRI.V.R.VENKATAKRISHNAN, SENIOR ADVOCATE FOR ADDL.A2 RESPONDENTS/PLAIINTIFFS & DEFENDANT 1 TO 5 AND ADDITIONAL 7TH DEFENDANT IN O.S. NO. 41/1989 ------------------------------------------------------------------------------- 1. K.T.RADHA, D/O,.UNICHOYI AGED 61, RAJESH NIVAS, CHEVAYUR AMSOM DESOM, KOZHIKODE TALUK. * 2. THATTOLI CHANTHUKUTTY, S/O.UNICHOYI, (DIED) AGED NOT KNOWN R/A. KOTTULI AMSOM DESOM, KOZHIKODE TALUK. 3. K.T.KARUNAKARAN, S/O.UNICHOYI, AGED 73, R/A. AT KOTTULI AMSOM DESOM, KOZHIKODE TALUK. 4. K.T.KUNJIPERACHAN, S/O.UNICHOYI, AGED 68, R/A. AT KOTTULI AMSOM DESOM, KOZHIKODE TALUK. 5. K.T.LEELA, D/O. UNICHOYI, AGED 56, R/A. KOTTULI AMSOM DESOM, KOZHIKODE TALUK. 6. K.T.SANTHA, W/O.KARUNAKARAN, AGED 61, R/A. KOTTULI AMSOM DESOM, KOZHIKODE TALUK. * 7. MOHAMMED ABDURAHIMAN, S/O.BEERAN MOIDEEN AGED 51, ERAMAMPRAYILLATH HOUSE, CHUNDALE AMSOM DESOM, THALAPPILY TALUK, THRISSUR DISTRICT. ( 7TH RESPONDENT IS TRANSPOSED AS ADDITIONAL 2ND APPELLANT AS PER ORDER DATED 31.3.2009 IN I.A. NO. 564 OF 2008 ) (IT IS RECORDED THAT RESPONDENTS 1, 3, 4 AND 5 ARE THE LEGAL HEIRS OF DECEASED SECOND RESPONDENT AND NO OTHER LEGAL HEIRS ARE TO BE IMPLEADED AS PER ORDER DATED 29.2.2008 IN I.A. 30/2008) ADV. SHAHANA KARTHIKEYAN FOR R1 & R4 MR.ARUN VISWANATH FOR R1 & R4 MS.SANIKA.V.S. FOR R5 MR.V.R.VENKATAKRISHNAN, SENIOR ADVOCATE FOR R7 THIS REGULAR SECOND APPEAL HAVING BEEN FINALLY HEARD ON 18/12/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: HARUN-UL-RASHID, J. ---------------------------------------- R.S.A.No. 699 of 2004 ---------------------------------------- Dated this the 18th day of December, 2009 JUDGMENT The 6th and 7th defendants in O.S. No. 41/1989 on the file of the Sub Court, kozhikode are the appellants . The second appeal is directed against the judgment and decree dated 9.12.2003 of the District Court, Kozhikode in A.S 185/2000. The parties hereinafter are referred to a s plaintiffs and defendant as arrayed in the suit. 2. Plaint allegations in brief are as follows: Plaint schedule property consisting of 4 items belongs to Kuttiatha, mother of plaintiff and defendant 1 to 4. Kuttiatha died on 26.5.1988. From 1984 onwards, Kuttiatha was not having sound disposing mind and she continued to be so till her death. During the said period, the 2nd defendant influenced Kuttiatha and obtained Ext.B1 settlement deed dated 15.3.1984 in respect of plaint schedule item No.4, Ext.A8 sale deed dated 4.5.1988 in respect of plaint schedule item No.1. and Ext.B2 power of attorney dated 4.5.1988. Ext.B4 sale deed dated 16.5.1988 (Ext.A9) is executed by the 2nd defendant in respect of plaint schedule item No.2 property in favour of the 5th defendant. All the above documents are not valid due to want of consideration and also as late Kuttiatha had no sound disposing mind for executing the same during the last years of her life. Hence, the said R.S.A.No. 699 of 2004 -2- documents are liable to be set aside or declared to be not binding on the plaintiff or on the plaint schedule property and the therefore plaintiff/1st respondent is entitled to a decree for partition of the plaint schedule properties in 5 equal shares and for allotment of her separate 1/ 5 share. 3. The 1st defendant remained exparte. The 3rd defendant adopted the plaint allegations. 4. Defendants 2 and 5 filed a joint written statement contending interalia that deceased Kuttiatha was possessed of necessary mental capacity and intelligence at the time when the documents were executed and that the 2nd defendant was appointed as the power of attorney and by virtue of that he assigned title and interest in favour of the 5th defendant for valuable consideration and she was put in possession of the said property and as such the allegation against the assignment in not tenable. 5. The 4th defendant filed a written statement supporting the plaint claim. 6. The 6th defendant contended that he is an unnecessary party to the suit, that he does not have any possession over any portion of the plaint schedule property at present and that he had purchased item No.1 for valid consideration . He also contended that he had assigned property as per document No.4479/1996(produced in the second appeal as Annexure-A1 along with I.A No. 564/2009)) and that without impleading the person who has got right over the property, the present suit is bad for non- joinder of necessary parties. R.S.A.No. 699 of 2004 -3- 7. The 7th defendant contended that the plaintiff has no joint ownership or possession in respect of item No.1 and is not entitled for any relief in respect of that item.. According to him , the purchase by him is bonfide and for valid consideration and that if item No.1 is available for partition, it may be reserved to the share of the 2nd defendant and he may be permitted to work out equity and further reservation. 8. After remand by the District Court, Kozhikode, vide judgment in appeal as A.S. 72/`1996 , the court after elaborate consideration of the matter, passed a preliminary decree for partition in the following terms. a) The item Nos. 1 to 3 of the plaint schedule alone are found available for partition and plaintiff and defendant Nos. 1 to 4 are entitled for 1/ 5 share each in item Nos. 1 to 3. Item No. 4 is found not available for partition b)That Ext.B2 power of attorney and Ext.A8 assignment deed in favour of the 2nd defendant by deceased Kuttiatha and Ext.B4 corresponding to Ext.A9 the assignment deed by the 2nd defendant to the 5th defendant are found invalid document which do not confer any title in favour of the 5th defendant. The said documents are hereby set aside. c)The plaintiff and defendant Nos. 3 and 4 are found entitled for mesne profits from item Nos. 1 to 3 in proportion to their share in the property from defendant Nos. 2 and 5. d)The quantum of mesne profits will be decided in the final decree proceedings as per the Commissioner report e)Cost of the suit shall come out of the estate. R.S.A.No. 699 of 2004 -4- f)Share of defendant Nos. 1, 3 and 4 may be separately allotted to them if they pay separate Court Fee for their share, within 3 months from the date of this judgment. g)The plaintiff and defendant Nos. 1, 3 and 4 if they pay their separate court fee for separate share are entitled to apply for the passing of final decree. h)Defendant Nos. 6 and 7 are found not having any valid title over the property mentioned as item No.1 in the plaint schedule. 9. The lower appellate court confirmed the decree passed by the trial court. The lower appellate court held that neither the 6th defendant nor the 7th defendant had produced any materials, that when those documents are not valid, the subsequent persons also cannot get any better right and concluded that there are no grounds to interfere with the finding of the trial court regarding the partibility of item No.1.The lower appellate court approved the execution of document by Kuttiatha regarding item No.4. in favour of the 2nd defendant 10. In the second appeal this Court heard the counsel on both sides on the following substantial questions of law framed by the additional second appellant/7th defendant. i). The prior possession of the 6th defendant having been admitted and that continued till the assignment in favour of the 7th defendant,do not these circumstances and recitals in R.S.A.No. 699 of 2004 -5- the document go to show that the petitioner-7th defendant is a bonafide purchaser for value after paying consideration in view of the fact that the 7th defendant continued in possession. ii).Should not have the courts below upheld the transaction in favour of the 7th defendant as true and honest and coming within the scope and ambit of Section 41 of the Transfer of Property Act. iii). On the facts obtaining here, should not have the courts below extended the benefits of section 41 of the Transfer of Property Act to the 7th defendant, an innocent purchaser for value without notice and after paying due consideration. iv).Should not have the courts below considered the case and grievances of the petitioner-7th defendant in the proper perspective and adjudicate the matter, in the interest of justice and uphold the equity in favour of the 7th defendant who was given the solemn assurance of prior title and possession 11. The second appeal was originally filed by the 6th defendant. Subsequently, the 7th respondent herein was transposed as additional 2nd appellant finding that original appellant was not prosecuting the second appeal seriously. The learned counsel for the additional 2nd appellant/7th defendant contended that he had purchased item No.1after paying valuable consideration without the knowledge of prior transactions relating to item No.1 . Ext.A8 assignment deed dated 4.5.1988 and Ext.B1 Settlement deed dated 15.3.1984 are the documents executed by the deceased Kuttiatha in favour of the 2nd defendant regarding item Nos. 1 R.S.A.No. 699 of 2004 -6- & 2 respectively, which were also challenged in the suit. The 2nd defendant assigned item No.1 of plaint schedule property to the 5th defendant vide Ext.B4 ( Ext.A9.) . The 6th defendant, the son-in-law of defendants 2 and 5 who got the property vide Ext.B3 assignment deed, sold the property in favour of the 7th defendant who is the additional 2nd appellant in this second appeal vide Document No. 4479/1996 dated 15.11.1996. The 7th defendant did not produce the said document before the trial court. The same was produced before this Court along with I.A. No. 564/2009 as Annexure-A1. The said document is marked as Ext. B9. 12. The learned counsel for the additional 2nd appellant submitted that as per document No.4479/1996 dated 15.11.1996, the additional 2nd appellant had purchased 33.38 cents of property which is item No.1 in the plaint schedule from the 6th defendant to whom the said property was assigned by the 2nd defendant as per document No.2525/1988 dated 14.6.1988(Ext.B3). It is also submitted that the assignors had not revealed or disclosed as to the pendency of the suit to the additional 2nd appellant(7th defendant) at the time of execution of Ext.B3 document . The counsel also submitted that after the remand the trial court as per the judgment dated 16.12.1999 held that the defendants 6 and 7 have no valid title over the property mentioned in item No.1 in the plaint schedule and passed the preliminary decree accordingly. 13. It has come out in evidence that Ext.B3 property was possessed and enjoyed by 6th defendant till 1988 and after 8 years it was assigned to the additional 2nd appellant who is the 7th defendant in the suit R.S.A.No. 699 of 2004 -7- The learned senior counsel also submitted that in continuation of the possession of the 6th defendant the 7th defendant continues is in possession and therefore the courts below ought have taken note of the long continuous possession and enjoyment of the 7th defendant and his predecessor for the considerable length of time which indicates that the purchase was honest and bonafide. Besides the said fact,the additional 2nd appellant produced the title deed evidencing purchase of the property from the 6th defendant. The learned counsel also brought to this Court's attention the fact that the 2nd defendant and his family members including the 6th defendant are the residents of Kozhikode district whereas the 7th defendant, purchaser of Ext.B3 property is a resident of Thrissur district and submitted that the same will indicate that there is no chance of any collusive transaction and that the transfer has taken place bonafidely. It is also submitted that since the 7th defendant is the bonafide assignee of item No. 1, the courts below ought have considered the equity in partitioning the property and ought not have denied the interest of the additional 2nd appellant in his property. 14. This Court is of the view that the preliminary decree passed by the trial court which was confirmed in 1st appeal holding that Item Nos. 1 to 3 are found available for partition and that the plaintiff and defendant Nos.1 to 4 are entitled to 1/5 th share each in items 1 to 3 and item No.4 is found not available for partition , requires slight modification. In the second appeal the dispute relates to only item No.1. The learned counsel for the 1st respondent/plaintiff brought to this court's notice that R.S.A.No. 699 of 2004 -8- during the pendency of second appeal against the preliminary decree, the final decree court appointed a Commission directing allotment of shares to each of the sharers, accordingly the Commissioner earmarked 17.40 Cents to the 1st respondent /plaintiff in item No. 1 and the balance extent viz. 15.98 Cents to the 2nd defendant 15. In the facts and circumstances discussed above, I am of the view that the additional second appellant is entitled to the share and plot allotted to the 2nd defendant in item No.1. Hence the appeal is disposed of with the modification that the extent of 15.98 cents of land allotted to the 2nd defendant in the final decree shall enure to the benefit of the 7th defendant who is the additional 2nd appellant herein. Annexure A1 document produced along with I.A. No. 564 of 2009 in respect of 15.98 Cents is declared valid. The appeal is partly allowed. No order as to costs. (HARUN-UL-RASHID, JUDGE) es. HARUN-UL-RASHID, J. --------------------------- R.S.A.No. 699 of 2004 ---------------------------- JUDGMENT 18th December, 2009