IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.BHAVADASAN TUESDAY, THE 22ND FEBRUARY 2011 / 3RD PHALGUNA 1932 SA.No. 94 of 1997(C) ------------------------------- AS.217/1989 of IIND ADDITIONAL DISTRICT COURT ENQUIRY COMMR.& SPL.JUDGE),THRISSUR. OS.236/1984 of MUNSIFF COURT,CHAVAKKAD .................... APPELLANT IN S.A. RESPONDENT NO.1 IN THE LOWER APPELLATE COURT- ------------------------ PLAINTIFF NO.1 IN SUIT. SANKARAN, S/O. KOTTILIL KOCHAN KUNHIRAMAN, BLANGAD, ERATTAPUZHA DESOM, KADAPRAM AMSOM, CHAVAKKAD TALUK. BY SRI.S.V.BALAKRISHNA IYER, SENIOR ADVOCATE BY ADVS. SMT.M.M.TEENA SRI.K.JAYAKUMAR SMT.GEETHA P.MENON RESPONDENT(S): 1 TO 3 IN S.A. APPELLANTS 2 TO 4 IN THE LOWER APPELLATE -------------------------- COURT L./RS OF DECEASED DEFENDANT NO.1 IN THE SUIT. 1. MADHAVI, W/O. KOTTILIL KOCHAN BHASKARAN, RESIDING AT BLANGAD, ERATTAPUZHA DESOM, KADAPRAM AMSOM, CHAVAKKAD TALUK. 2. SATHIAVATHY, D/O. DO. IN DO. 3. HYMAVATHY, D/.O. DO. IN DO. DO. 4. RAJAGOPALAN, S/O.KOTTILIL KOCHAN GOVINDAN, RESIDING AT BLANGAD, ERATTAPUZHA DESOM, KADAPRAM AMSOM, CHAVAKKAD TALUK. *5. NARENDRAN, S/O. KOCHAN GOVINDAN, ERATTAPUZHA DESOM, KADAPRAM AMSOM, CHAVAKKAD TALUK. (DIED). 6. PRABHAKARAN, S/O. DO. IN DO. 7. JAYASREE, D/O. DO. DO. tss S.A. NO.94/1997. 8. RADHAKRISHNAN, S/O. DO. DO. 9. SATHIABHAMA, W/O. DO. IN DO. 10. KARTHIKEYAN, S/O. KOTTILIL KOCHAN KUNHIRAMAN, BLANGAD, ERATTAPUZHA DESOM, KADAPRAM, CHAVAKKAD TALUK. 11. VENUGOPALAN, S/O. KOTTILIL KOCHAN BHASKARAN, BLANGAD, ERATTAPUZHA DESOM, KADAPRAM VILLAGE, CHAVAKKAD TALUK. 12. JAYARAMAN, S/O. DO. IN DO. DO. 13. K.S.REMA, D/O. SUKUMARAN, RESIDING AT KOCHAN HOUSE, PUDOORKKARA DESOM, AYYANTHOLE VILLAGE, THRISSUR TALUK. 14. K.S.THARA, D/O. DO. IN DO. (RESPONDENTS 9 AND 14 IN THE LOWER APPELLATE COURT DIED PENDING THE APPEAL BUT NOT SHOWN TO BE SO IN THE CAUSE TITLE OF THE LOWER APPELLATE COURT JUDGEMENT SINCE NO MEMO REPORTING DEATH HAD BEEN FILED BY THE APPELLANTS BEFORE THE LOWER APPELLATE COURT. (RESPONDENT NO.3 BEFORE THE LOWER APPELLATE COURT, NARAYANAN, DIED AFTER THE DECREE OF THE LOWER APPELLATE COURT. HIS LEGAL REPRESENTATIVES ARE.) 15. KOCHAN VIJAYALAKSHMI, W/O. NARAYANAN, KOTTILIL HOUSE, MANATHALA POST, CHAVAKKAD. 16. DEYA MURALIDHARAN, D/O. DO. DO. 17. SREEVALSAN, S/O. DO IN DO. 18. SUDHEERAN, S/O. DO. IN DO. 19. MANILAL, S/O. DO IN DO. 20. BALRAJ, S/O. DO. DIN DO. 21. LATHISH, S/O. DO.. IN DO. 22. JUGU, S/O. DO IN DO. DO. 23. SREEJA, D/O. IN DO. DO. 24. USHA RAJEEV, D/O. DO. IN DO. (RESPONDENT NO.10 BEFORE THE LOWER APPELLATE COURT, DAMODARAN, DIED, AFTER THE LOWER APPELLATE COURT DECREE. HIL LEGAL REPRESENTATIVES ARE:) S.A. NO.94/1997. 25. K.D.BHOOPESH , S/O. DAMODARAN, KOCHAN HOUSE, BLANGAD P.O., CHAVAKKAD, TRICHUR DISTRICT. 26. JAYASREE HARIDAS, D/O. DO. KOZHIPARAMBIL HOUSE, PERINNJANAM, (WEST) P.O., TRICHUR DISTRICT. 27. RENUKADEVI, W/O. HARIHARAN K.K., KADAKATH HOUSE, SOUTH COLONY, KADAPURAM, TRICHUR DISTRICT. 28. RETNAMALIKA, D/O. DAMODARAN, AND W/O. PRAKASHAN A.R., ALLAPARAMBIL HOUSE, CHERAI P.O., ERNAKULAM DISTRICT. 29. LALITHAMBIKA, D/O. DO. AND W/O.BABU T.D., THEKKEPANAKKAL HOUSE, NATTIKA BEACH NATTIKA P.O., TRICHUR DISTRICT. 30. VASUMATHY K.DAMODARAN,, KOCHAN HOUSE, BLANGAD P.O., CHAVAKKAD. 31. AJITHABAI K.D. D/O. DO. IN DO. 32. JYOTHILAKSHMY K.D., D/O. DO. IN DO. 33. KAUSALYA DAMODARAN, W/O. DAMODARAN, KOTTILIL HOUSE, BLANGAD P.O., CHAVAKKAD. (APPELLANT NO.1 IN THE LOWER APPELLATE COURT, BHASKARAN, DIED. SOME OF HIS L.RS WERE IMPLEADED AS ADDITIONAL APPELLANTS 2 TO 4 . THE OTHER L.RS NOT MADE PARTIES BY THE APPELLANTS IN THE LOWER APPELLATE COURT ARE:) 34. K.B.CHANDINI, D/O. BHASKARAN, KOVIL THEKKEVALAPPIL HOUSE P.O., CHAMAKKAL, CHANDRAPPINI, KODUNGALLUR TALUK, TRICHUR DISTRICT. 35. K.B.VIJAYANTHIMALA, W/O. K.V.VISWAMBHARAN, VLAT NO.24, THULASIRAM HOUSING SOCIETY, DEVI DAYAL MULLARO, WEST BOMBAY- 40. 36. K.B.SUDHEESHNA, BLOCK NO.55, PANAMPILLY NAGAR, COCHIN 16. tss S.A. NO.94/1997 *ADDL. R37 TO R40 IMPLEADED 37. BEENA W/O. NARENDRAN RESIDING AT ERATTUPUZHA DESOM, KADAPRAM AMSOM CHAVAKKAD TALUK. 38. NISHA, D/O. NARENDRAN RESIDING AT DO. DO. 39. GOPAN, S/O. NARENDRAN, RESIDING AT DO. DO. 40. ANISH, S/O. NARENDRAN RESIDING AT DO. DO. R1 TO R3 BY SRI.P.V.RAMESH SHANKAR, SRI.G.UNNIKRISHNAN, SRI.G.P.SHINOD. R 10, 25 TO 33 BY SRI.P.B.KRISHNAN R 12 BY SRI.K.P.DANDAPANI, SENIOR ADVOCATE R4,5,7,8 &9 & ADDL.R37 TO R40 BY SRI.P.R.VENKETESH R 34 BY SRI.B.K.PURUSHOTHAMAN, SRI.B.K.GOPALAKRISHNAN. THIS SECOND APPEAL HAVING BEEN FINALLY HEARD ON 22/02/2011 , THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: tss P.BHAVADASAN, J. ---------------------------- S.A.No. 94 of 1997 and cross objections --------------------------------------------- Dated this the 22nd day of February, 2011 JUDGMENT Disappointed by the lower appellate court decree whereby the suit was dismissed, the first plaintiff in O.S.No.236/1984 has come up in appeal. The supporting defendants in the suit have filed cross objections supporting the appellants. 2. The suit was one for partition. The extent of property involved is 2.74 acres comprised in Survey No.328/14A in Manathala Village. The allegation was that it belonged to the Tharavadu of the plaintiff and the defendants and it was liable for partition. On the basis of the said claim plaintiffs laid the suit claiming 1/8 share to the first plaintiff and that second plaintiff is entitled to 1/48 shares. 3. The resistance was mainly offered by the defendants 1 and 3. We may not be much concerned with the contention raised by the other defendants except defendant No.9 who laid independent claim which he later gave up. Defendant No.1 had filed a written statement, he denied the character of the suit property and pointed out that it was not available for partition. The details of the written statement are unnecessary for the reason that the case can be decided on other facts. The defendants 12 and 13 more or less adopted the written statement S.A.No. 94 of 1997 and cross objections 2 of first defendant apart from setting up certain other claims. 4. Based on the pleadings, necessary issues were raised by the trial court. The evidence consists of the testimony of PW1 and documents marked as Exts.A1 to A16 from the side of the plaintiff. The contesting defendants examined DWs 1 and 2 and had Exts. B1 to B7 marked. Ext.X1 is a third party exhibit. On an appreciation of materials before it the trial court chose to accept the case of the plaintiff and passed a preliminary decree which reads as follows: “The plaint schedule property will be divided into 8 equal shares and one such share will be allotted to the first plaintiff and defendants 2 and 3 are entitled to 2/8th share and defendants 10 and 11 are entitled to 2/8 share. The plaintiff No.2 and defendants 4 to 8 together are entitled to 1/8th share. Second plaintiff is entitled to one out of 48 shares. The plaintiffs are entitled to mesne profits from the date of the suit, the quantum of which will be divided at the time of final decree. The costs of the parties shall come out of the estate.” 5. The first defendant carried the matter in appeal as A.S. 217/1989. It appears that during the pendency of the appeal he passed away and his legal heirs were brought from the party array. Before the appellate court the defendants chose to produce two S.A.No. 94 of 1997 and cross objections 3 documents, which were marked as Ext.B8 and B9. After an elaborate consideration of the evidence the lower appellate court had reached a conclusion that the suit property was not available for partition. According to the lower appellate court going by Ext.B1 the plaintiff could have no claim over the suit property and accordingly reversed the judgment and decree of the trial court and dismissed the suit. 6. Notice is seen issued on the following substantial questions of law: A. In a suit for partition where the contesting defendants admit that the predecessors-in-interest of the parties to the suit property, but that such title was held jointly with certain strangers under whom the defendants claim derivative title, is not the burden squarely on the defendants to prove the title of such strangers and the derivative title they claim to exclude the portion claimed by them out of a decree for partition ? B. Have the contesting defendants who are joint tenants discharged their burden of proving their independent claim of title to the portion of the suit property claimed by them and is the decree of the lower appellate court sustainable in law ? S.A.No. 94 of 1997 and cross objections 4 C. Will not Ext.A9 written statement by the contesting defendant in the earlier suit for partition, which in effect admits availability of the present suit property as an item for partition, estop him from pleading and proving otherwise ? D. Has not the appellant proved the title to the suit property as pleaded on the facts and in the circumstances of the case ? E. Have defendants 12 and 13 proved the derivative title put forward by them ? F. Has the Ist defendant proved the oral lease and oral sale put forward by him so as to non-suit the plaintiffs ? G. Is the dismissal of the whole suit sustainable in law, even assuming that the claim of the contesting defendants is tenable ? H. Had not the decree of the trial court become final as against certain legal representatives of the Ist defendant by reason of their non-impleadment in the appeal and is the lower appellate court justified in interfering with the decree of the trial court ? 7. The learned counsel appearing for the appellant contended that the lower appellate court has grievously erred both on facts and in law in reversing the judgment and decree of the trial court. The conclusions arrived at the lower appellate court are not justified by S.A.No. 94 of 1997 and cross objections 5 the evidence on record and it is contrary to the facts disclosed from the evidence. The interpretation put on Ext.B1 is incorrect and Ext.B1 by itself cannot be sufficient to deny the right of the plaintiff. It is also contended that the lower appellate court was not justified in admitting Exts.B8 and B9 on which considerable reliance was placed to non suit the plaintiff when there were no grounds made out under order 41 Rule 27 of the C.P.C. to receive those documents. That according to the learned counsel for the appellant has caused considerable prejudice to the appellant. 8. The learned counsel appearing for the respondents pointed out that the lower appellate court has considered the matter in the proper perspective and has come to the conclusion that the plaintiffs are not entitled to any relief. The question that actually aroses for consideration is not whether the suit property was an ancestral property but whether it was available for partition. According to the lower appellate court after the execution of Ext.B1 documents to which the plaintiffs are the party, it was not open to them to recile from the same and seek remedy in respect of a property covered by Ext.B1. It is therefore contended that the lower appellate court was correct in its approach in non suiting the plaintiff. The learned counsel also emphasised that the plaintiffs are estopped from taking a S.A.No. 94 of 1997 and cross objections 6 different stand against Ext.B1. It is also contended that the finding of the lower appellate court is based on appreciation of the evidence and is purely a question of fact and no substantial questions of law arises for consideration. 9. Though several documents have been produced by both sides, the issue that arises for decisions in the case falls within a very narrow compass. For the purpose of this case we may assume that the plaint schedule property was the ancestral property to which the plaintiff had the right. The question is whether, it is by itself sufficient. Here one has to refer to Ext.A8, which is a suit filed by one Chupran Kunhiraman, in which plaintiffs were the defendants. 10. Before going further it may be useful to refer to the relationship of the parties. According to the plaintiffs originally the property was on Kochan Prappan. He had two sons namely, Kochan Kunhiraman and Kochan Thuppran. Kochan Kunhiraman had son by name Sankaran, who predeceased him. Sankaran had two sons Kunhimon and Kandan. Kochan Thuppran had two sons, Thuppran Kunhiraman and Kunhiraman, Kunhiraman also had 4 children. It is not much in dispute that the shares that would have fallen to the branch consisting of Kunhiraman the son of Kochan Prappen were surrendered in favour of the other branch by Ext.X1 document. S.A.No. 94 of 1997 and cross objections 7 11. Now one may come to Ext.A8, what is the suit filed for partition. Before going further one may notice that the property involved in the suit is the property comprised in Survey No. 328/14 A. In Ext.A8, the property in the schedule to the plaint has an extent of 4 acres and 8 cents. The case of the plaintiff was that out of this 4 acres and 8 cents, 41 cents was acquired for the school and another 93 cents was given on lease. Excluding those two items of property, the balance extent is 2.54 acres, which is available for partition. Ext.A10 is the commissioner's report in the said suit and Ext.A11 is the schedule of property noticed by the commissioner which according to the parties in the suit belonged to the Tharavadu. 12. It is significant to notice that during the pendency of the suit, they decided to enter into compromise and execute a partition deed settling all the disputes that is evidenced by Ext.B1. 13. Ext.B1 shows that apart from the property owned by the Tharavadu, there were self acquired properties of some parties and all those were brought under common hotchpotch. The parties effected a partition branching of into two groups. The plaintiff fall under B group. They were allotted B schedule properties. 14. What is significant is that in paragraph 9, it is specifically stated that the parties have settled all their differences with regard to S.A.No. 94 of 1997 and cross objections 8 the issues involved in the suit and they have decided to divide the properties. It is also mentioned therein that after the execution of Ext.B1 neither the group will lay claim to any of the properties allotted to other group or any other property, which was the subject matter of the suit. 15. Considerable reliance is placed by the learned counsel for the appellant is on clause 18 of the Ext.B1 which reads as follows: “CXnÂ s]Sm¯Xmbn \½psS Iq«pIpSpw_s¯ AhImis¸«Xmb hÃ apXepIfpw ImWs¸Sp¶]£w Cu hIapXepIÄ 1Dw 2Dw \{¼pImcpsS imJ¡mÀ kaambn `mKn¨v FSpt¡ണXpw BIp¶p.” 16. It has pointed out by the learned counsel for the respondents that even the plaintiffs branch under Ext.B1 was given a portion of the property comprised in survey No.328/14 A and they were aware of the fact that the total extent of property was 4.8 cents which was the subject matter of the partition suit. In order to get over this difficulty the learned counsel for the appellant pointed out that there is nothing to show in Ext. B1 that the rest of the property after having given a portion to the plaintiff is allotted specifically to any group and that shows it is available for partible even now. S.A.No. 94 of 1997 and cross objections 9 17. A reading of Ext.B1 leaves one in no doubt that it was entered into in order to settle all disputes between the parties, which was the subject matter of the partition suit namely O.S.53/1945. A reading of Ext.B1 would show that the parties were not fully aware about the nature of the properties acquired nor about the actual extent and identity of the properties. However, Ext.A8, the plaint made mention of certain items of properties which the commissioner had also noticed in the report and schedule. A reading of Ext.B1 leaves one in no doubt that with the execution of Ext.B1 the parties therein had decided to bury all their differences and take respective shares giving up the claim regarding the rest of the properties. Having taken the share given as per Ext.B1, it is none of the concern of the plaintiff as to what happened to the other properties which were the subject matter of the suit. 18. It is contended that since the balance extent comprised in survey No.328/14A is not seen shown included in any of the schedule it should deemed to have been kept in common and that it is available for partition. 19. It is significant to notice that the parties are aware that the total extent of property available in survey No.328/14 A subject matter of partition as per Ext.A8 partition suit that 4.8 acres, out of which a S.A.No. 94 of 1997 and cross objections 10 small portion was given to the second group consisting of the plaintiff herein. It is well settled that partition means a person who gets share in the property takes it in lieu of giving up of the rights over the rest of the property. If that be so, by taking their share given to them under Ext.B1 respective parties have given up their right over properties allotted to the other persons and little there is grace in saying that since portion of the property is not included in any schedule it should be deemed to have been kept in common. It is also significant to notice that the recitals in Ext.B1, leave one in no doubt that the parties had settled all issues involved in the suit and it was for that purpose the partition deed was entered into. One may remember here that in the suit there were contentions regarding the nature of property, nature of acquisition etc. It is to settle all those disputes and to give a quietness to the entire disputes that Ext.B1 was entered into. 20. The lower appellate court was impressed by Ext.B1 and reached the conclusion that should settle the issue. It appears that the lower appellate court is justified and is correct in lacking such course. 21. In view of the Ext.B1 it is unnecessary for this court further trace the nature of the property involved in the suit. Here one has to S.A.No. 94 of 1997 and cross objections 11 notice that Ext.B1 has entered into 1947 and the present suit is instituted in 1984 and after a lapse of 37 years. No substantial questions of law arises for consideration in the second appeal. The second appeal is without merits and it is accordingly dismissed. There will be no order as to costs. The cross objections are also dismissed. P.BHAVADASAN, JUDGE. ln