IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR THURSDAY, THE 17TH JANUARY 2008 / 27TH POUSHA 1929 SA.No. 725 of 1994() -------------------- AS.154/1990 of IST ADDL. DISTRICT COURT, PALAKKAD OS.152/1985 of PRL.MUNSIFF COURT, PALAKKAD .................... APPELLANT: APPELLANT/ IST DEFENDANT ------------------- RAJAN @ RAJAPPAN, S/O.ARUMUGHAN, KURICHALKULAM, VARIYAMPARAMBIL, VADAKKUMTHARA AMSOM, PALGHAT.(died) 2ND APPELLANT IMPLEADED 2. SANTHA, WIDOW OF LATE RAJAPPAN, VARIYAMPARAMBU, KURICHANKULAM, VADAKKUMTHARA AMSOM, PALAKKAD. IS IMPLEADED AS ADDL. 2ND APPELLANT (LR OF THE DECEASED APPELLANT) BY ORDER DT. 20.7.95 ON CMP. 1094/95 IN SA. 725/94. BY ADV. SRI.P.SUKUMARAN NAYAR(SR.) SRI.A.K.CHINNAN RESPONDENTS: RESPONDENTS/ DEFENDANTS 2 TO 5 AND LRS OF PLAINTIFF ----------------------- 1. LEKSHMI , D/O. ARUMUGHAN, RESIDING NEAR ALAKKOTTIL SMR TILE FACTORY, OLAVAKKOD.(DIED) 2. MADHAVI D/O.ARUMUGHAN, RESIDING AT KAIRLPAD, PALAKKAD. 3. A.AMMU, W/O. ARUMUGHAN, RESIDING AT KURICHALKULAM KULANGARA, VADAKKANTHARA AMSOM PALAKKAD. (DIED) *(MEMO RECORDED) IT IS RECORDED THAT 3RD RESPONDENT /4TH DEFENDANT DIED ON 31.5.95. HER ESTATE DEVOLVED ON HER SOLE LEGAL HEIR/DAUGHTER, SAROJINI , 4TH RESPONDENT /5TH DEFENDANT AND THAT NO OTHER PERSONS HAD BE IMPLEADED TO REPRESENT HER ESTATE, VIDE ORDER DT. 21.6.95 ON MEMO VIDE C.F. 2400/95.) SA. 725/1994 4. SAROJINI D/O. ARUMUGHAN, RESIDING AT KURUKKANPADATH, YAKKARA AMSOM PALAKKAD. 5. THANKA W/O. LATE ANDIKUTTY, RESIDING AT KURICHAKULANGARA, VADAKKANTHARA, PALGHAT. 6. GIRIJA, D/O. LAGE ANDIKUTTY OF DO. DO. 7. VIJAYA D/O. LATE ANDIKUTTY OF DO. ADDL. 8 TO 19 ARE IMPLEADED 8. C.KANDAMUTHU, S.O. CHAMIYAR, LEKSHMI NIVAS, ALAMCODE, OLAVAKKODE 678 002., PALAKKAD. 9. C.RAJAKUMARAN, S/O. LATE CHAMIYAR, SREE LAKSHMI , ALAMCODE, OLAVAKKOD 678 002, PALAKKAD. 10. C .BALAN, S/O. LATE CHAMIYAR, LEKSHMI NIVAS, KUNNATH PARAMBIL, PALAKKAD 678 013. 11. C.SHANMUGHAN, S/O. LATE CHAMIYAR, LEKSHMI NIVSS, KUNNATH PARAMBU, PALAKKAD 678 013. 12. C.THANKAMMA, AGED 73, D/O. LATE LEKSHMI , KAPLIPPARA POST, MUNDOO 678 592, PALAKKAD. 13. C.AMMINI, AGED 70, D/O. LATE LEKSHMI AND W/O. P.MADHAVAN, SAYOOJYAM, KUNNATHPARAMBU, PALAKKAD 678 013. 14. C.KARTHIYANI, AGED 65, D/O. LATE LEKSHMI AND W/O.ARUN, KAYYARA, NOCHUPULLY 678 592, PALAKKAD. 15. C.RUGUMINI, AGED 60 YEARS, D/O. LATE LEKSHMI AND W/O. A.K. KRISHNAN, ALAMKODE, OLAVAKKOD, PALAKKAD 678 002. 16. C.SANTHA, AGED 50, D/O. LATE LEKSHMI AND W/O. M.P.MANI, MANGALASSERY POST, KADUKKAMKUNNU 678 005, PALAKKAD. 17. A.KAMALA @ AMMINI, AGED 6Y0 W/O. SUKUMARAN, C/O.NARAYANAN,ANNAI PILLAYAR KOVIL STREET, KALAPATTY, COIMBATORE 35. SA. NO.725/1994 18. A.NARAYANAN, AGED 53, DOOR 24, ANNAIPILLAYAR KOVIL STREET, KALAPATTY, COMIBATORE 35. 19. A.RAMACHANDRAN, AGED 49, C/O. A.NARAYANAN, ANNAIPILLAYAR KOVIL STREET, KALPATTY , COMIBATORE 35. ALL RESPONDENTS 8 TO 19 ARE IMPLEADED AS THE LRS OF DECEASED IST RESPONDENT AS PER ORDER DT. 28.11.07 IN IA. 1447/07. BY ADV. SRI.V.CHITAMBARESH} R5 TO R7 SRI.T.C.SURESH MENON } THIS SECOND APPEAL HAVING BEEN FINALLY HEARD ON 17/01/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: M.SASIDHARAN NAMBIAR,J. =========================== S.A. NO. 725 OF 1994 =========================== Dated this the 17th day of January, 2008 JUDGMENT First defendant in O.S.152/1985 on the file of Munsiff Court, Palghat is the appellant. First respondent is the plaintiff and other respondents the other defendants. On the death of appellant, her legal heir was impleaded as additional second appellant and on the death of third respondent fourth respondent was recorded as her legal heir. On the death of first respondent respondents 8 to 9 were impleaded as legal heirs. First respondent instituted the suit seeking a decree for partition and separation of her share. Partition was sought in respect of eight items of plaint schedule properties contending that the properties originally belonged to deceased Arumughan, who obtained it from the Devaswom on oral lease and on the death of Arumughan his rights devolved on plaintiff and defendants 1 to 3 who are the S.A.725/1994 2 children of Arumughan in his first wife Ammini and also fourth defendant his second wife and fifth defendant the daughter born to fourth defendant. It was contended that originally Arumughan had only obtained item No.1 of the plaint schedule property and subsequently item Nos. 2 to 6 were also obtained under an oral lease, on a pattom of 550 paras of paddy and the properties were in the possession of Arumughan and subsequent to his death in the joint possession of plaintiff and and first defendant and other legal heirs and subsequently out of the income from the said properties, item Nos. 7 and 8 properties were also acquired and therefore all the properties are available for partition and are to be divided and one such share is to be allotted to the plaintiff. Only first defendant resisted the suit contending that item No. 1 of the plaint schedule property belonged to Arumughan on tenancy right and admitting that it is available for partition. It was contended that item Nos.2 to 5 of the plaint schedule properties, S.A.725/1994 3 though taken on lease by Arumughan, subsequently landlord filed a suit for arrears of pattom and on the request of plaintiff and defendants, being legal heirs of Arumughan, the lease hold properties were surrendered and later first defendant alone obtained the property as per an independent lease on a pattom of 310 paras of paddy and since then first defendant alone has been in possession and enjoyment of the properties paying pattom and he had also purchased jenm right from the Land Tribunal and those properties are not available for partition. It was contended that when execution petition for realisation of the decree debt obtained against father for arrears of pattom was pending before the court, plaintiff and first defendant and others met Ramalingam Pillai the manager of the Devaswom and offered to surrender the lease hold properties obtained by Arumughan and landlord accepted their plea to relinguish the claim for arrears of pattom and the manager issued Ext.B1 which was kept by first defendant and as S.A.725/1994 4 item Nos.2 to 5 properties were surrendered and are in the possession of first defendant under a separate independent lease, the properties are not available for partition. It was also contended that item Nos.7 and 8 were acquired by first defendant out of his own funds and they are not available for partition. First defendant also contended that he has no knowledge about item No.6 of the plaint schedule property and only item No.1 of the plaint schedule property is available for partition. 2. Learned Munsiff on the evidence of Pws.1 and 2 and Dws.1 and 2 and Exts.B1 to B16, disbelieved the case of appellant that there was a surrender evidenced by Ext.B1 and an independent lease in favour of appellant as claimed by him and found that item Nos.2 to 5 properties were continued to be in the possession of the legal heirs of Arumughan subsequent to his death and the said properties are also available for partition. Learned Munsiff also found that item Nos.7 and 8 of S.A.725/1994 5 the plaint schedule properties were acquired by first defendant, with the funds of the remaining items of plaint schedule properties and therefore they are also available for partition. Learned Munsiff further found that there is no evidence to prove that item No.6 of the properties is available for partition and therefore held only item Nos. 1 to 5 and 7 and 8 of the plaint schedule properties are available for partition. A preliminary decree was passed directing division of the plaint schedule properties into six equal shares and allotment of one such share to the plaintiff and plaintiff is entitled to future share of profits also. Appellant challenged the judgment before District Court,Palakkad in A.S.154/1990. Learned Additional District Judge on reappreciation of evidence found that case of the appellant that there was a surrender evidenced by Ext.B1 was rightly rejected by the trial court. Learned District Judge also found that Ext.B1 cannot be relied on and there is no acceptable S.A.725/1994 6 evidence to prove that there was a surrender of the lease obtained by Arumughan or an independent lease in favour of the first defendant and finding of the trial court that item Nos.1 to 5 are available for partition is perfectly correct. Learned District Judge further found that evidence of the appellant himself establish that item Nos. 7 and 8 were acquired from the income derived from the remaining properties and therefore held that the said properties are also available for partition . Confirming the preliminary decree, appeal was dismissed. It is challenged in the second appeal. 3. Though appellant challenged the findings of the courts below with regard to the non acceptance case of surrender and independent lease by praying to formulate substantial questions of law on those facts, when the second appeal was admitted, after hearing the learned counsel this court did not accept the submission and only the following substantial questions of law were formulated. S.A.725/1994 7 1. From the facts and circumstances of the case whether courts below were justified in not drawing adverse inference for not denying the specific pleading regarding surrender and for non examination of plaintiff and other defendants. 2. From the facts and circumstances of the case, whether plaintiff and defendants 2 to 5 are entitled to claim benefit under section 90 of the Trusts Act. 4. Learned counsel appearing for appellant and first respondent were heard. 5. The argument of learned counsel Sri.Chinnan is that the courts below did not properly appreciate the evidence and on the failure of S.A.725/1994 8 plaintiff to get himself examined or the other defendants to examine themselves,case of appellant should have accepted by courts below. It was argued that eventhough it was specifically contended by appellant that pursuant to the decree for arrears of pattom obtained by the landlord against father Arumughan execution petition was filed and while it was pending, legal heirs of Arumughan approached the landlord and surrendered the lease hold properties after the landlord agreed to forego the arrears of pattom till date and case of appellant that Ext.B1 letter was issued at that time accepting surrender should have been accepted and plaintiff who claimed that there was no surrender and the original lease continued was not examined and PW1 his wife who was examined has no knowledge as to what transpired when the legal heirs met the manager of the landlord who was examined as DW2 and courts below did not properly appreciate this aspect and therefore the entire evidence is to be S.A.725/1994 9 reappreciated and the finding of facts are to be reversed. Learned counsel also argued that Ext.B1 establishes that there was surrender of the lease hold properties as claimed by the appellant and evidence of DW1 and 2 with Exts.B1 to B14 establish that there was a subsequent lease obtained by appellant in respect of item Nos. 2 to 5 of the plaint schedule properties and the fact that Ext.B16 purchase certificate was obtained by appellant asserting his independent right obtained under the subsequent lease, should have been accepted and it should have been that item Nos. 2 to 5 of the plaint schedule properties are not available for partition. It was further argued that though Ext.B15 is a receipt for payment of arrears of pattom which is covered under the decree, courts below wrongly took it as a receipt for payment of subsequent pattom and held that Ext.B15 negative the claim of surrender and that interpretation is unsustainable in the light of the evidence and recitals in Ext.B15 and on the S.A.725/1994 10 appreciation of evidence, courts below should have found that item Nos. 2 to 8 of the plaint schedule properties are not available for partition. It was also argued that even according to plaintiff item Nos. 7 and 8 were acquired by appellant and there is no evidence to prove that that the said acquisition was for and on behalf of the legal heirs of Arumughan and therefore finding that those properties are available for partition is not sustainable. Relying on the decision of a Division Bench of this court in Kunhunni v. Kesavan Namboothiri(1990(2) KLT 854) it was argued that Ext.B16 purchase certificate was obtained asserting the independent right and title of the appellant and not in his capacity as legal heir of deceased Arumughan and appellant was never the manager of the family and he was only one of the younger children of Arumugan and therefore principles of Section 90 of the Trusts Act cannot be invoked and courts below erred in holding that the purchase S.A.725/1994 11 certificate was obtained for and on behalf of all the legal heirs . Relying on the decision of a Division Bench of this Court in Sulaikha Beevi v. Mathew (2001(1) KLT 360)learned counsel argued that surrender of lease need not be by a registered document and an implied surrender is possible and implied surrender can be inferred from the conduct of the parties and on the evidence, it was established that there was surrender of item Nos. 2 to 5 of the properties, which were originally obtained by Arumughan on lease and appellant obtained the property subsequently independently on his own and therefore those properties are not available for partition and the judgment of the courts below are to be reversed. 6. Learned counsel appearing for legal representatives of the original plaintiff argued that first appellate court after examining Ext.B1 found that it is a fabricated document which was written in an old paper using the ball point pen S.A.725/1994 12 and it cannot be relied on and that factual finding cannot be interfered by this court in exercise of the powers of this court under section 100 of the Code of Civil Procedure. It was also argued that question whether there was a surrender of the lease hold properties obtained by Arumugan and a fresh lease in favour of first defendant was granted are all questions of fact. The trial court and first appellate court on appreciation of evidence found that there was no surrender of lease or creation of a fresh lease. Those findings of facts cannot be interfered, even if the findings are erroneous. It was argued that evidence establish that Arumugan obtained item Nos. 1 to 5 of the plaint schedule properties on lease hold right and there is no evidence to prove that there was any surrender of the lease hold properties and therefore as rightly found by courts below, those properties are available for partition. It was also argued that evidence of appellant himself as DW1 establish that item Nos. 7 and 8 were acquired from the S.A.725/1994 13 income derived from the remaining properties and therefore as rightly found by courts below, those properties are also available for partition and there is no reason to interfere with the preliminary decree concurrently passed by the courts below. 7. The availability of item No.1 of the plaint schedule properties for partition and the quantum of shares found by courts below are not disputed. The dispute is only with regard to item Nos. 2 to 5 and item Nos. 7 and 8 of the plaint schedule properties. Item Nos. 7 and 8 are the properties acquired by the appellant. The case of plaintiff was that those properties were acquired from the income obtained from the remaining properties and therefore they are available for partition. Courts below on the evidence found that those properties, though acquired by first defendant were acquired with the funds from the remaining lease hold properties and therefore item Nos.7 and 8 are also available for partition. When examined as S.A.725/1994 14 DW1, appellant unambiguously admitted that item Nos. 7 and 8 were acquired from the income derived from item Nos. 2 to 5. Therefore if item Nos. 2 to 5 are found to be the properties available for partition, necessarily finding of the courts below that item Nos. 7 and 8 are also available for partition has to be sustained. 8. The crucial question is whether item Nos. 2 to 5 are available for partition. It is not in dispute that these propeties belonged to the Devaswom and were obtained by Arumughan round about 1947. If there was no surrender of those properties, as claimed by appellants, necessarily it is to be found they are available for partition in between the legal heirs of Arumughan. What was contended by appellants was that during the life time of Arumughan, a suit for arrears of pattom was instituted by the landlord against him and in execution of the said decree movable properties were attached and at that time legal heirs including the plaintiff approached the landlord and S.A.725/1994 15 offered to surrender the lease hold property. Landlord give up the claim for arrears of pattom and consequently properties were surrendered and landlord give up the claim for arrears of pattom, including the one which was covered under the decree. It is the case of the appellant that thereafter appellant independently obtained the very same properties on a annual pattom 310 paras of paddy and since then he has been in exclusive possession of the properties under the independent lease and therefore the properties are not available for partition. The case of an independent lease by the appellant can be sustained only if there was a valid surrender. Even if it is taken that there was an independent lease, if there was no surrender earlier by all the legal heirs of Arumughan, then appellant is not entitled to claim any surrender, under the independent lease in his favour. The crucial question is whether there was a surrender. 9. Learned Munsiff on the evidence found that S.A.725/1994 16 there was no surrender. Learned Additional District Judge on reappreciation of evidence confirmed that finding. The argument of the learned counsel was that those findings were arrived at on a misappreciation of evidence and on an appreciation of evidence it is implied that there was a surrender. The argument of the learned counsel is that Ext.B1 establish that there was a surrender and evidence of appellant as DW1 and the manager of the devaswom as DW2 corroboate Ext.B1 surrender and therefore finding of the courts below is not sustainable. Reliance was also placed on Ext.B2 certified copy of the execution petition to strengthen the plea. Courts below appreciated all these evidence and did not accept the case of surrender. The question is whether that evidence is to be reappreciated as canvassed by the learned counsel. 10. The main argument of the learned counsel is that it is for the plaintiff or the other defendants to prove that there was no surrender. S.A.725/1994 17 Appellant examined himself as DW1 and deposed that there was a surrender. He also examined DW2 and produced Ext.B1. As pointed out by learned counsel appearing for contesting respondent, first appellate court on examining Ext.B1 doubted its genuineness and expressed doubt as to whether it was not created using an old paper and writing in it with a ball point pen to make it appear that it was an old document. Admittedly lease obtained by Arumughan was under an oral lease. It is not known why evidencing the surrender, Ext.B1 was created. One could understand a surrender deed executed by the tenant in favour of the landlord. Ext.B1 is not a document executed by all the legal heirs of the original tenant Arumughan in favour of the landlord. On the other hand, it is a statement by DW2 that he had given up the claim for arrears of pattom till the date, accepting the surrender made by the legal heirs of Arumughan. From the conduct of appellant and DW2 it is clear that DW2 is in good terms with the appellant. The evidence S.A.725/1994 18 is to be appreciated in that light. Ext.B2 execution petition establish that though the decree was obtained against Arumughan, execution petition was proceeded only against the appellant describing him as the manager of the family. The decree debt was sought to be realised by proceeding against movable properties, having a value of Rs.300/- namely four bulls and two bullock carts. Ext.B2 shows that notice in the execution petition was ordered after curing the defect on 5.4.1963 and case was posted for appearance on 30.5.1963 for return of notice and on that day appellant remained absent and was set ex parte and therefore attachment of the movable properties were ordered. It shows that propeties were attached and the decree holder was directed to produce draft sale papers and as draft sale papers were not produced, the attachement was raised and execution petition was dismissed on 25.7.1963. Ext.B1 is seen executed on 3.7.1963 namely subsequent to the date on which attachment was ordered, after appellant S.A.725/1994 19 was set ex parte. What is stated in Ext.B1 is that the execution petition filed against the appellant for realisation of the decree as per the judgment in S.C.80/1954 is pending and DW2 agreed that he will not claim the amount covered under the execution petition and payment of the subsequent pattom as requested by the legal heirs of Arumughan and that lease hold properties were surrendered by them were accepted by him on 3.7.1963. If Ext.B1 is a genuine document and there was a surrender and a promise not to proceed with the execution or not to claim the decree amount, one would naturally expect a memo or a petition to be filed in Ext.B2 petition to that effect and getting the execution petition closed recording that fact. Ext.B2 shows that inspite of Ext.B1 on 3.7.1963 and the fact that execution petition was pending, the factum of the settlement or giving up the claim under the decree was not intimated to the court. Added to this, Ext.B15 receipt was produced by the appellant himself as a receipt issued by DW2 on 14.7.1964. S.A.725/1994 20 Ext.B15 shows that the said receipt was issued by DW2 for receipt of Rs.600/- towards the payment of the amount covered under the decree. The argument of the learned counsel is that though Ext.B15 payment was made earlier to Ext.B1 the said receipt was issued only subsequently and therefore Ext.B15 will not falsify Ext.B1. On appreciating the evidence, I cannot agree with the submission. If a payment of Rs.600/- towards the decree debt covered under Ext.B2 was made earlier to Ext.B7, one would necessarily expect such a statement in Ext.B1. Ext.B1 does not show that any payment was made by appellant or Arumughan towards the decree debt. In the normal course, when the appellant remained ex parte in Ext.B2 execution petition, it cannot be expected that he would pay Rs.600/- and that too outside the court directly to PW2. Even if it is believed that there was such payment it is not known for what purpose after the settlement of the dispute evidenced by Ext.B1, as well as the dismissal of Ext.B2 execution petition, a receipt S.A.725/1994 21 was obtained on 14.7.1964. It is clear that Ext.B15 was also issued by DW2 subsequently as requested by the appellant, to strengthen his case. These aspects cast serious doubt with regard to the genuineness of Ext.B1 as well as the evidence of DW2. The argument of the learned counsel is that when PW1 was cross examined, she admitted that out of Rs.1500/- covered under the decree in S.C.80/54, Rs.500/- was paid by the legal heirs and a receipt was issued by DW2 and that receipt was kept with DW1. It was argued that as PW1 admitted the payment towards the decree as well as the issuance of a receipt by DW2 and its custody by DW1, there is no reason to disbelieve Ext.B15. If Ext.B15 is for Rs.500/-, atleast to that extent, the argument could have been accepted. If the evidence of PW1 is to be accepted, it is to be taken is that a receipt for Rs.500/- was obtained and not Ext.B15 receipt for Rs.600/-. Therefore relying on the evidence of PW1, argument of the learned counsel that Ext.B15 is a genuine receipt cannot be S.A.725/1994 22 accepted. When the entire evidence is appreciated in the proper perspective, it cannot be said that appreciation of evidence by courts below was perverse or not proper. On the evidence, I do not find that any other