IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.RAMKUMAR MONDAY, THE 12TH JANUARY 2009 / 22ND POUSHA 1930 RSA.No. 1139 of 2004() ---------------------- AS.31/1997 of SUB COURT, TIRUR OS.24/1990 of MUNSIFF COURT, TIRUR .................... APPELLANT/1ST APPELLANT/1ST DEFENDANT: THEKKEVEETTIL VENUGOPALAN, S/O. VELAYUDHAN, PORUR DESOM, TIRUR AMSOM, TIRUR. BY ADV. SRI.T.KRISHNAN UNNI (SR.) RESPONDENTS/APPELLANTS 2 TO 4/PLAINTIFF & DEFENDANTS 2 TO 4: 1. THEKKEVEETTIL VELAYUDHAN'S WIFE KUNHI, POROR DESOM, TIRUR AMSOM, TIRUR. (DIED) 2. THEKKEVEETTIL GANGADHARAN, S/O. VELAYUDHAN, -DO- -DO-. 3. THEKKEVEETTIL CHANDRAN, -DO- -DO-. 4. THEKKEVEETTIL KARTHIAYANI, D/O. VELAYUDHAN, W/O. ILAYATHATTA KARAPPAN, -DO- -DO-. (IT IS RECORDED THAT R2 TO R4 ARE THE LEGAL REPRESENTATIVES OF THE DECEASED R1 AS PER ORDER DATED 15.07.2008 IN MEMO (6859/2006) DATED 24.11.2006.) ADV. SRI.S.V.BALAKRISHNA IYER (SR.) THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 12/01/2009, ALONG WITH RSA NO. 1142 OF 2004,THE COURT ON THE SAME DAY PASSED THE FOLLOWING: V. RAMKUMAR , J. ========================== R.S.A. No. 1139 & 1142 of 2008 ========================== Dated this the 12th day of January, 2009. JUDGMENT The appellant in R.S.A. No. 1139 of 2004 is the plaintiff in O.S. No. 18 of 1994 on the file of the Munsiff's Court, Tirur. Her name is Savithri. She is the wife of Venugopal who is one of the brothers of Karthiyayani, the defendant therein. The said suit was one for specific performance of Ext.A1 agreement dated 25.04.1988 alleged to have been executed by Karthiayani agreeing to assign her share over the plaint schedule property for a total consideration of Rs.10,500/-. R.S.A. No. 1142 of 2004 is filed by the aforesaid Karthiayani seeking partition and separate possession of her 1/3 share over the plaint schedule property. The suit filed by her is O.S. No. 24 of 1995 before the very same court. The parties are Hindu Ezhavas of South Malabar. 2. The trial court passed a preliminary decree as prayed for. But, with regard to the residential house situated in the property, the same was excluded from valuation upholding the reservation claimed by the 1st defendant Venugopal. On appeal preferred by the plaintiff in O.S. No. 18 of 1994 and the 1st defendant in O.S. No. 24 of 1995 as A.S. No. 101 of 1995 and A.S. No. 31 of 1997 respectively before the Sub Court, Tirur, the learned Subordinate Judge as per common R.S.A. Nos. 1139 & 1142 of 2004 : 2 : judgment dated 30.06.2004 dismissed both the appeals. Hence this Second Appeal. 3. The following are the questions of law formulated in the memorandum of Second Appeal in R.S.A. No. 1139 of 2004 arising out of O.S. No. 18 of 1994:- a. Are the courts below justified in holding that the 1st defendant is bound by the admissions made by his wife in the pleadings in another suit? b. Is the court below justified in hearing this appeal simultaneously with another appeal A.S. No. 101 of 1995 and using the evidence adduced in one case for deciding the issues involved in other case. c. Are not the judgments and decrees of both the courts below vitiated for not properly appreciating the evidence available in this case? 4. The following are the questions of law formulated in the memorandum of appeal in R.S.A No. 1142 of 2004 arising out of O.S. No. 24 of 1995:- a. Is the court below justified in not taking an adverse inference against the defendant since she has not mounted box and given evidence? b. Is the court below justified in not taking into consideration on fact that the defendant admits here signature in Ext.A1 agreement and she has not produced any evidence to prove the case set up by her with respect to the circumstances under which the signature happened to be there in the agreement? c. Is the court below justified in hearing with this appeal R.S.A. Nos. 1139 & 1142 of 2004 : 3 : simultaneously with A.S. 31 of 1997 and using the evidence available in A.S. 31/97 for deciding the issues involved in this appeal? d. Is the court below justified in binding that the suit is barred by limitation? e. Are not the judgments and decrees of the courts below vitiated for not properly appreciating the evidence available in this case? 5. I heard the learned counsel appearing for the appellants in both the appeals. 6. The following are the facts either concurrently found or admitted:- The plaint schedule property in both the suits is one item of immovable property with a residential building thereon. It belonged to one Velayudhan who died in the year 1974. He had one daughter and three sons. Karthiani, the plaintiff in O.S. No. 24 of 1995 is the daughter. Venugopal, Gangadharan and Janardhanan who are respectively defendants 1, 3 and 4 in O.S. No. 24 of 1995 are the three sons of Velayudhan. Kunhi, the wife of Velayudhan survived him. She was the 2nd defendant in O.S. No. 24 of 1995. Karthiani, the plaintiff in that suit pleaded an oral partition of the year 1976 in which two of her brothers namely defendants 3 and 4 were given their share in another item of property and they had sold the said property to one R.S.A. Nos. 1139 & 1142 of 2004 : 4 : Bharathan as per Ext.B4 sale deed dated 25.10.1979. Karthiani further pleaded that the plaint schedule property was allotted in the oral partition to herself, her brother, the 1st defendant and her mother, the 2nd defendant. She, therefore, claimed 1/3 share over the plaint schedule property. 7. Savithri, the wife of Venugopal filed O.S. No. 18 of 1994 on 18.01.1994 contending that as per Ext.A1 agreement dated 25.04.1988 Karthiani had agreed to assign her share over the plaint schedule property to Savithri fixing a total consideration of Rs.10,500/- out of which a sum of Rs.8,300/- was paid as an advance on the date of agreement leaving a balance of Rs.2,200/-, that the balance consideration could not be paid within the time stipulated, that in the year 1990 there was an oral agreement extending the time for specific performance of the stipulations under Ext.A1 to 10.04.1992. 8. Karthiani, the only defendant in O.S. No. 18 of 1994 disputed Ext.A1 agreement by contending that she did not execute Ext.A1 agreement which was a product of conversion of blank signed paper into an agreement by making use of the blank signed paper which she had given to her brother while availing of a loan and that even if the agreement is true, the suit is barred by limitation. The oral agreement R.S.A. Nos. 1139 & 1142 of 2004 : 5 : extending the period for specific performance was also disputed. With regard to the partition suit namely O.S. No. 24 of 1995, Venugopal, the husband of Savithri contended that the plaintiff has only 1/5 share over the plaint schedule property, that defendants 2 to 4 had assigned their share to the 1st defendant who was thus entitled to 4/5 share and with regard to the plaintiff's 1/5 share, she had agreed to sell the same to his wife Savithri and hence the suit was only to be dismissed. Second defendant Kunhi, the mother of both Karthiani and Venugopal supported the 1st defendant by joining his written statement. Defendants 3 and 4 also supported the 1st defendant. 9. The trial court in the partition suit held that the oral partition set up by the plaintiff therein is true and accordingly passed a preliminary decree for partition and separate allotment of Karthiani's 1/3 share over the plaint schedule property. As already mentioned, the 1st defendant Venugopal was given a reservation in respect of the house thereon excluding the same from valuation. With regard to O.S. No. 18 of 1994, the trial court came to the conclusion that the execution of Ext.A1 agreement was not proved by the plaintiff in spite of the fact that the Karthiani had denied having executed the same. The trial court also held that the subsequent oral agreement set up by R.S.A. Nos. 1139 & 1142 of 2004 : 6 : the plaintiff extending the period for performance of the contract was also not proved. The suit was accordingly dismissed as barred by limitation. Both the preliminary decree passed in the partition suit as well as the dismissal of O.S. No. 18 of 1994 have been confirmed in appeal by the lower appellate court. 10. The learned counsel appearing for the appellants made the following submissions in support of the appeals:- The admission by Savithri, the wife of Venugopal in the plaint filed as O.S. No. 18 of 1994 should not have been used against Venugopal to hold that the oral partition of the year 1976 set up by Karthiani was true, that the oral partition set up by her cannot be true is probilised by the fact that the other sharers namely Kunhi, Karthiani and Venugopal joined Ext.B4 under which defendants 3 and 4 assigned their property to one Bharathan. If the oral partition set up by the plaintiff was true, it was not necessary for the other sharers to join the assignment deed. 11. I am afraid that I cannot agree with the above submissions. It has come out in evidence that both Savithri and Venugopal were instructing the same counsel. Venugopal cannot pretend ignorance of the averments in O.S. No. 18 of 1994 wherein his wife Savithri has R.S.A. Nos. 1139 & 1142 of 2004 : 7 : categorically admitted the oral partition and the allotment of some other property to defendants 3 and 4. Likewise, merely because the other sharers joined Ext.B4 assignment deed executed by defendants 3 and 4, it does not follow that the oral partition set up by the plaintiff is false or improbable. Moreover, Ext.A1 karar relied on by Savithri also contains recitals admitting the oral partition set up by Karthiani. The trial court which had the unique advantage of seeing the witnesses and assessing their credibility was not inclined to accept the versions of both Savithri and the independent witness examined as Sukumaran, both of whom were giving contradictory versions regarding the circumstances under which and the terms subject to which Ext.A1 agreement was allegedly executed and the alleged oral agreement by which the time for performance was allegedly extended. In spite of specific denial of Ext.A1 by Karthiani, the attesters to the said agreement were not examined and no tangible reason has been given for their non-examination. Under these circumstances, it cannot be said that the courts below were wrong in dismissing O.S. No. 18 of 1994 and passing a preliminary decree in O.S. No. 24 of 1995 for partition as prayed for. No question of law, much less, any substantial question of law arises for consideration in these appeals. R.S.A. Nos. 1139 & 1142 of 2004 : 8 : The questions of law formulated in the memoranda of appeals also do not arise for consideration in these second appeals which are accordingly dismissed in limine. Dated this the 12th day of January, 2009. V. RAMKUMAR, JUDGE. rv