IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN FRIDAY, THE 2ND JULY 2010 / 11TH ASHADHA 1932 AS.No. 229 of 2000(A) ------------------------------- OS.315/1993 of PRINCIPAL SUB COURT,KOLLAM .................... APPELLANT(S): DEFENDANTS 4,6 & 7 ----------------------- 1. SHERIFFA BEEVI, DAUGHTER OF AISHA BEEVI, KUNGUMAMOODU, THATTAMALA, KOLLAM. 2. BATHISHA WRONGLY SHOWN IN THE IMPUGNED DECREE & JUDGMENT AS FATHIMA BEEVI, DAUGHTER OF AISHA BEEVI, NEW KAPPIL HOUSE, OYOOR P.O., KOTTARAKKARA. 3. KHADIJA BEEVI, DAUGHTER OF AISHA BEEVI, PUTHEN VEEDU, KOTTIYAM. BY ADV. SRI.GEORGE VARGHESE(PERUMPALLIKUTTIYIL) RESPONDENT(S): PLSINYIGG & DEFENDANTS 1 TO 3, 5,8 & 9. ---------------------------- 1. K.SHAHUL HAMEED, SON OF KASSIM KUNJU, MOTTIYAM MINI NIVAS, NADUVILAKKARA CHERRY, MAYYANAD VILLAGE, KOLLAM. 2. AISHA BEEVI, WIFE OF LATE KASSIM KUNJU, KOTTIYAM PUTHEN VEEDU, NADUVILAKKARA CHERRY, MAYYANAD. 3. ABDUL AZEEZ, OF DO. DO. 4. PATHUMMA BEEVI, DAUGHTER OF AISHA BEEVI, PATTANTAZHIKOM UMAYANALLOOR P.O., KOLLAM. 5. ALIYARUKUNJU , SON OF KASSIM KUNJU, CHATHANPARA WEST, PANDALAM MUKKU, MAMOODU, KOLLAM. A.S. NO.229/2000 6. ABDUL SAMAD, SON OF LATE KASSIM KUNJU , OF DO. DO. 7. ABDUL RASHEED, SON OF LATE KASSIM KUNJU OF DO. DO. R1 BY ADV. SRI.K.SUBASH CHANDRA BOSE, SRI.V.PREMCHAND. R10 & R11BY ADV. SRI.VPK.PANICKER. THIS APPEAL SUITS HAVING BEEN FINALLY HEARD ON 02/07/2010, ALONG WITH A.S NO. 230 OF 2000 THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ORDER ON CMP. NOS.6028/2000, 1944/2000 IN AS. NO.229/2000 DISMISSED 02/07/2010 SD/- M.N.KRISHNAN, JUDGE TRUE COPY P.A. TO JUDGE tss M.N. KRISHNAN, J. ........................................... A.S.NOs.229 & 230 OF 2000 ............................................. Dated this the 2nd day of July, 2010. J U D G M E N T A.S.No.229/2000 is filed against the judgment and decree in O.S.No.315/1993 and A.S.No.230/2000 is filed against the judgment and decree in O.S.No.391/1994. The prayer in S.S.No.315/1993 is to set aside the partition deed No.3962/1992 entered into between the parties. The prayer in O.S.No.391/1994 is to set aside Ext.B1 document executed by the first defendant in favour of the 2nd defendant in the year 1992 that is on 31.12.1992. The brief facts for the disposal of the partition suit is stated a s follows: 2. The property according to the parties and as evidenced from Ext.A1 belonged to the husband of the 1st defendant and father of the plaintiff and other defendants and on his death, properties described in that document was put together and a document was effected wherein the plaintiff is the 6th defendant and 6th schedule in Ext.A1 is alloted to the share of the plaintiff. The case of the plaintiff is that the said partition deed is not legal, valid and binding : 2 : A.S.NOs.229 & 230 OF 2000 on him and that his signature had been obtained by exerting undue influence, coercion and misrepresentation. It is also contended that as per the Mohammadan's law the widow is entitled to one out of eight shares and the son double the share of the daughter. Therefore, he seeks to set aside that document. 3. The contesting defendants on the other hand would contend that the plaintiff had fully understood the contents of the document and knowing the consequences, of his own mind had entered into Ext.A1 and there has been no undue influence, coercion or misrepresentation to vitiate the documents and therefore the suit is liable to be dismissed. 4. The learned Subordinate Judge held that Ext.A1 document is liable to be set aside on the ground that the partition is not effected in accordance with the Mohammadan's law. The learned counsel for the plaintiff would contend before me that the entire property did not belong to the father and therefore partition of that property will not confer any right on the parties. But a perusal of the averment in the plaint would itself would indicate that the : 3 : A.S.NOs.229 & 230 OF 2000 plaintiff has also treated all the properties as belonging to the father and therfore a belated attempt to get away cannot be accepted. It is true that the law envisaged certain rights to the parties. Suppose without any document a suit for partition is filed, then courts are bound to declare the share of the parties in accordance with law. But when parties of their own volition of mind enter into a partition deed for division of the properties and are satisfied with the allotment made to them, one cannot fall back on the law and say that it is not proper. Of course, there may be instances where such documents are executed which is voidable under the provisions of the Contract Act. Similarly there may be instances where the property belonging to the minors are divided. In such case as held by the Supreme Court in Ratnam Chettier v. S.M. Kuppuswamy (AIR 1976 SC 1) with respect to minor's share there can be a reopening of the partition and in all other case, a partition cannot be reopened unless it is proved to be vitiated on the grounds mentioned in the Contract Act. Now there is a half hearted pleading in the plaint that there is undue influence, : 4 : A.S.NOs.229 & 230 OF 2000 misrepresentation and coercion exerted on the plaintiff by the 5th respondent and the majors who are witnesses in the partition deed. What is the sort of coercion or what are the misrepresentation is not pleaded. Order VI Rule 4 of the Civil Procedure Code makes it imperative that the grounds have to be specifically pleaded so that the defendants are in a position to answer the same. Further it has also to be stated that a mere pleadings cannot be a substitution for proof. Misrepresentation and coercion cannot be inferred by conjectures and surmises . They are positive acts. Unlike fraud, there can be direct evidence of misrepresentation and coercion. Absolutely no evidence is forthcoming to prove those factors in the case. The finding of the trial court that partition had been done not in accordance with the Mohammadan's law cannot be a ground for setting aside the document which is entered into between the parties with free consent and understanding the consequences of the action. 5. Therefore the decree passed by the trial court setting aside Ext.A1 partition deed cannot be sustained and : 5 : A.S.NOs.229 & 230 OF 2000 therefore the said judgment and decree are to be set aside and the suit is liable to be dismissed and I do so. 6. Now we go into the next suit O.S.No.391/1994. It is a case filed by the mother and some of the children against the defendants for setting aside the document executed by the first defendant in favour of the second defendant which is marked as Ext.B1. According to the plaintiff, the contention is some property has been transfered by the mother in favour of the first defendant as per Ext.B2 on 9..2.1988. According to them, subsequent to the execution of Ext.B2 assignment deed, by virtue of a registered agreement which is marked as Ext.B4 dated 29.10.1992 the parties agreed that the property covered by Ext.B2 can be used as a pathway and further that the parties decided to demolish the structures and trees, if any standing, in order to clear the way. It is further contended by the plaintiff that subsequent to Ext.B4 on 17.11.1992 Ext.A1 partition deed is entered into between the parties where a mention is made that the property mentioned in Ext.B4 can be used as a pathway. On the other hand, the : 6 : A.S.NOs.229 & 230 OF 2000 defendant would contend that Ext.B2 property is not the subject matter of Ext.B4 or Ext.A1 and therefore assignment of the property in favour of the second defendant by Ext.B1 is not vitiated. It is also contended by the learned counsel for the defendant that there was an agreement to sell the property between D1 and D2 and D2 moved a suit for specific performance of the contract and during the pend ency of that suit D1 had assigned the property in favour of D2 and thereby has conferred absolute right on him. The point to be determined in this case is whether the property assigned by the mother in favour of the first defendant under Ext.B2 was the subject matter of Ext.B4 which was further referred to in Ext.A1. If the answer is in the positive, then the first defendant would not get any right subsisting to assign it in favour of the second defendant under Ext.B1. But, if Ext.B2 property is not the subject matter of Ext.B4 or Ext.A1, then the right of the first defendant under Ext.B2 will remain in tact and he has the right to transfer the property in favour of the second defendant. There is a specific contention raised by this defendant in the written statement in para-3. : 7 : A.S.NOs.229 & 230 OF 2000 The first defendant has contended that “the alleged way has no connection with the plaint schedule property. The said property is not included either in the partition deed or the alleged agreement of the plaintiff”. So it is a matter which has to be looked into and the answer would depend upon the question whether Exts.B1 and B2 is the subject matter under Exts.B4 and A1. It will decide the issue. But unfortunately no issue has been framed in that direction and no proper evidence has been tendered to adjudicate the matter. Therefore the said matter requires reconsideration. Therefore the judgment and decree in OS.391/1994 is liable to be set aside and the matter has to be remitted back. I do so. 7. In the result the appeals are disposed of as follows: 1. A.S.No.229/2000 is allowed and the judgment and decree passed by the Subordinate Judge in OS.315/1993 are set aside and the suit OS.315/1993 is dismissed but without costs. 2. A.S.No.230/2000 is also allowed and the judgment and decree in O.S.No.391/1994 are set aside and the matter : 8 : A.S.NOs.229 & 230 OF 2000 is remitted back to the trial court for consideration as follows: 3. The parties be permitted to produce documents and adduce evidence and if necessary take out a commission to identify whether Exts.B1 and B2 properties are the properties covered by Ext.B4 and Ext.A1. If it is covered by Ext.A1 and B4, there is a possibility of the plaintiff therein to succeed and otherwise not. Parties are directed to appear before the lower court on 3.8.2010. Disposed of accordingly. M.N. KRISHNAN, JUDGE. cl : 9 : A.S.NOs.229 & 230 OF 2000 M.N. KRISHNAN, J. ........................................... A.S.NOs.229 & 230 OF 2000 ............................................. 2nd day of July, 2010. J U D G M E N T