IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN TUESDAY, THE 8TH JUNE 2010 / 18TH JYAISTHA 1932 AS.No. 605 of 1998(A) -------------------------------- OS.866/1991 of IST ADDL. SUB COURT,THRISSUR. M, .................... APPELLANT(S): DEFENDANTS 1 TO 4 AND 7 ------------------------ 1. BHARATHI AMMA, D/O. THURUTHIYATH PADINJARE VEETTIL KALI AMMA, KARAMUCKU VILLAGE AND DESOM, THRISSUR TALUK. 2. ACHUTHANANDAN, S/O. IST DEFENDANT (IST APPELLANT), DO. DO. 3. AJITHAKUMARI, D/O. IST DEFENDANT, DO. DO. 4. LATHIKA, D/O. IST DEFENDANT, DO. DO. 5. GIRIJA DEVI, D/O. IST DEFENDANT. DO. DO. BY SRI.P.N.KRISHNANKUTTY ACHAN, SENIOR ADVOCATE BY ADV. SRI.K.MOHANA KANNAN RESPONDENT(S): PLAINTIFF / DEFENDANTS 5,6,8 & 9 ------------------------- 1. BALAKRISHNA MENON, S/O. THURUTHIYATH PADINJARE VEETTIL KALI AMMA, KARAMUCKU VILLAGE AND DESOM, THRISSUR TALUK. 2. DEVAKI AMMA, D/O. KALI AMMA, DO. DO. 3. VIJAYALAKSHMI, D/O. IST DEFENDANT, PRESENT ADDRESS: VIJAYALAKSHMI RAGHAVAN, D/4, SANTHI KUTTIS, II FLOOR, TULINJ ROAD, NALLESAPARA EAST, THANA DISTRICT, MAHARASHTRA. AS. NO.605/1998 4. SASINDRAN, S/O. IST DEFENDANT, DO. DO. 5. REGHUNANDANAN, THURUTHIYATH HOUSE, P.O.KANDASSAMKADAVU, EMPLOYEE IN GULF COUNTRIES. BY ADV. SRI.P.B.KRISHNAN SRI.T.M.CHANDRAN SMT.K.R.DEEPA SRI.S.V.BALAKRISHNA IYER, SENIOR ADVOCATE THIS APPEAL SUITS HAVING BEEN FINALLY HEARD ON 08/06/2010, ALONG WITH SA NO. 168 OF 1999 THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ORDER ON CMP. NO.5028/1998 IN AS. 605/1998 DISMISSED 08/06/2010 SD/- M.N.KRISHNAN, JUDGE TRUE COPY P.A TO JUDGE tss M.N. KRISHNAN, J. = = = = = = = = = = = = = = = A.S. No. 605 OF 1998 & S.A.168 OF 1999 = = = = = = = = = = = = = = = Dated this the 8th day of June, 2010. J U D G M E N T A.S.605/98 is preferred against the judgment and decree of the Subordinate Judge, Thrissur in O.S.866/91. The other appeal is preferred against the judgment and decree of the Subordinate Judge in A.S.45/98. The brief facts necessary for the disposal is stated as follows. The result of both the suits would depend upon the question whether there was an oral partition as contended by the plaintiff in O.S.866/91. If there is an oral partition and the plaintiff has succeeded in proving the Will the plaintiff will be entitled to the decree in O.S.866/91. It is the case of the plaintiff in O.S.866/91 that the plaint schedule properties and other properties belonged to Kali Amma, the mother, the plaintiff and defendants 1 to 5 and that they had effected an oral division of the property on A.S. No. 605 OF 1998 & S.A.168 OF 1999 -2- 30.4.70 and from that date onwards they are in separate possession and enjoyment of the property. Kali Amma died on 10.1.87 and before her death she had executed a Will by virtue of which the plaint schedule property has devolved on the plaintiff and therefore the plaintiff is the absolute owner of the property and as the defendants have trespassed into the property the suit is filed for recovery of possession on the strength of title. 2. On the other hand the defendants other than the 5th defendant disputes the oral partition as well as the Will and would contend that there has been no oral partition as contended and that Kali Amma was not in a state of mind to execute the Will and therefore it will not also confer any title on the plaintiff. So they pray for dismissal of the suit. 3. Exts.A1 to A27 were marked. PWs.1 to 3 and DW1 were examined. On an analysis of the evidence the A.S. No. 605 OF 1998 & S.A.168 OF 1999 -3- trial court found that the oral partition set up is true and that Kali Amma had executed a Will in favour of the plaintiff and therefore the plaintiff is entitled to get a decree for recovery of possession of the plaint schedule property from the defendants with mesne profits. It is the correctness of these decisions that is challenged by the defendants 1 to 4 in this case. 4. The learned senior counsel for the appellant would strongly contend before me that here is a case where the oral partition is not proved. It is to be stated that oral partition is not unknown to law. There is no necessity for registration of a partition deed to effect a division among the sharers. If oral partition is proved then there is a severance of interest among the sharers and each can enjoy the property accordingly. In order to prove the oral partition since there cannot be valid document the Court has to consider it on the basis of the A.S. No. 605 OF 1998 & S.A.168 OF 1999 -4- subsequent conduct of the parties. If the subsequent conduct of the parties throw a light on the independent enjoyment of the property for a considerable length of period then the plea of oral partition can be said to be substantiated by materials. Holding the property as an arrangement without fixing the rights will not amount to a partition. But it has to be remembered here is a case where the alleged oral partition is of the year 30.4.70 and the dispute regarding the oral partition comes to the lime light 21 years thereafter. So the conduct of the parties after 21 years will be a guiding factor in resolving the dispute to find out the truthfulness of the case. 5. Now according to the plaintiff as per the oral partition Kali Amma has been given 31½ cents of property in Sy.No.1022/2 of Karamukku village, 67 cents in Sy.No.1050/3 of the same village and 60 cents in R.Sy.No.262/2 of Eravu village was allotted to the A.S. No. 605 OF 1998 & S.A.168 OF 1999 -5- plaintiff. 97½ cents in R.S.1022/2 of Karamukku village and one acre 6 cents in R.S.642 of Manalur village was set apart to the thavazhy of the first defendant. One acre 3 cents in R.S.1051/1, 2, 3, 4 of Eravu village and 69 cents in R.S.262/2 and 3 of Eravu village and one acre and 29 cents in R.S.29/2, 30 were set apart to the thavazhy of 5th defendant. It is contended that the properties so set apart were given possession to the respective members and they were holding the property independently as of their own from that date onwards. 6. Now in order to substantiate the case of the oral partition the documents relied upon are to start with Exts.A6 and A7. So far as the present case is concerned the dispute is only with respect to 31½ cents said to be allotted to the Kali Amma. Exts.A6 and A7 are documents relating to the release of the right of plaintiff and D5. It is recited in both these documents that there had been an A.S. No. 605 OF 1998 & S.A.168 OF 1999 -6- oral partition with respect to the properties and the property released had been allotted to them under the said partition. So basing upon the partition the plaintiff as well as the 5th defendant had executed documents in favour of the persons in possession and these two documents are relied upon by the plaintiff to prove oral partition. Exts.A6 and A7 are of the year 1970, one is dated 10.6.70 and the other is dated 31.12.70. So these documents throw some light on the case of oral partition. 7. Then the Court below had referred to the tax receipts. Ext.A16 series are the tax receipts which will show the payment of tax by Kali Amma in respect of the plaint schedule properties since 1970. Ext.A17 series are the Tax receipts to show the payment of tax by the plaintiff since 1970 for the properties allotted to him. Exts.A19 and A20 series are tax receipts obtained by the the 5th defendant. Exts.A18 series and A.21 series are A.S. No. 605 OF 1998 & S.A.168 OF 1999 -7- the receipts for payment of water cess by the plaintiff and the 5th defendant . Ext.A13 is the declaration signed by the first defendant for the purpose of getting a ration card. In that declaration the first defendant had declared that she is having only one acre of property in Sy.No.642 which is a statement given on 24.5.85. Had there been no partition between the parties and it was in joined possession of the plaintiff and the first defendant along with others the entire property should have been shown with the qualification fractional share. The showing of Sy.No.642 alone gives an indication of oral partition. 8. The first defendant is not an illiterate person but she is a school teacher having a service of about 30 years and therefore the Court below found that Ext.A13 is one of the clinching circumstances to accept the case of the parties. Ext.A14 is a ration card of the plaintiff for the period from 1975-80. As mentioned earlier the plaintiff A.S. No. 605 OF 1998 & S.A.168 OF 1999 -8- has been allotted with 60 cents in R.S.202/2 in Eravu village. This ration card also would reveal that it is the property that belongs to him. It is stated in that document that property having 60 cents in R.Sy.No.262/2 is the property that belong to the plaintiff. So this is also of the year 1980's. So it is also further noted by the learned trial judge that Ext.A26 which is a copy of Manalur Panchayat Land assessment register and Ext.A25, voters' list are also relevant documents regarding this case. When a thavazhy remains undivided and members have become elders under the human conduct these persons would not have kept it for a long period. It has to be stated even now the defendants 1 to 4 had not chosen to file a suit for partition regarding the properties. It is when a suit is filed on the basis of an oral partition and a Will, they are disputing the correctness of oral partition as well as Will. Therefore from the A.S. No. 605 OF 1998 & S.A.168 OF 1999 -9- materials available it is clinching to note that the members of the thavazy were in possession of the property allotted to them and without any murmur they had been enjoying the property. 9. Learned counsel for the appellant had cited before me a decision of the Madras High Court reported in Ramayya v. Achamma (AIR 1944 Madras 550) wherein the well settled principle that when a document is reduced to writing unless it is registered it would be treated as a document of partition. The learned trial judge had relied on the decision of the Apex Court reported in 1995 SC 1728 wherein it is stated, “Under the Hindu law it is not necessary that the partition should be effected by a registered partition deed. Even a family arrangement is enough to effectuate the partition between co-parceners and to confer right to a separate share and enjoyment thereof.” A.S. No. 605 OF 1998 & S.A.168 OF 1999 -10- Or in other words the fundamental principle is that when by conduct of parties they decided to have the severance with respect to the family property and properties are separately identified and purchasers are put into separate possession and they enjoy their separate plots for a long time it is a conclusive proof of division. Therefore I hold that from the concrete materials available before Court the oral partition set up is true and it does not require any interference. 10. Now the next question is regarding the entitlement of the plaintiff to have a decree for recovery of possession. The plaint schedule property is a property which belonged to Kali Amma. This Kali Amma has executed a Will which is marked as Ext.A2. PW2 is one of the attesting witnesses to the document and he is a lawyer by profession and he is also a neighbour. He had deposed about the essentials required u/s 63 of the A.S. No. 605 OF 1998 & S.A.168 OF 1999 -11- Indian Succession Act. Therefore in the absence of any materials to show that Kali Amma was not in a position to understand the consequences of her action had executed the Will, I hold the validity of Ext.A2 Will as well as true and genuine. It is proved by PW2 that she was alert and capable of understanding her action. 11. Now regarding the second appeal. I have held in my discussions earlier that the oral partition is true when it is so the Second Appeal is liable to fail. Hence both the appeals are devoid of merits and the same are dismissed but under the circumstances without any order as to costs. M.N. KRISHNAN, JUDGE. ul/- A.S. No. 605 OF 1998 & S.A.168 OF 1999 -12- M.N. KRISHNAN, J. = = = = = = = = = = A.S. No. 605 OF 1998 & S.A.168 OF 1999 = = = = = = = = = = = J U D G M E N T 4th June, 2010.