IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE HARUN-UL-RASHID MONDAY, THE 22ND FEBRUARY 2010 / 3RD PHALGUNA 1931 AS.No. 152 of 1994() -------------------- OS.480/1989 of ADDL. SUB COURT, PALAKKAD .................... APPELLANTS/3RD DEFENDANT: ------------------- KANDU, S/O.NARAYANAN, RESIDING AT ALAPURATHOTTINGAL, KUTHANUR AMSOM AND DESOM, ALATHUR TALUK. BY ADVS. SRI.P.N.K.ACHAN, SENIOR ADVOCATE SMT. VANAJA MADHAVAN SRI T. SETHU MADHAVAN RESPONDENTS/PLAINTIFF AND DEFENDANTS 1 AND 4 TO 9 AND LRS OF D2.: --------------------- 1. JANAKI, W/O.NARAYANAN, RESIDING AT KADANTHODI PALLANCHATHANUR AMSOM AND DESOM, ALATUR TALUK. 2. MEENAKSHI, D/O. NARAYANAN. 3. AMMUKUTTY, W/O.LATE KITTU ALIAS KRISHNAN. 4. KANJANA, D/O.KITTU ALIAS KRISHNAN. 5. SOBHANA (MINOR), S/O.KITTU ALIAS KRISHNAN. 6. PRASANNA (MINOR), S/O.KITTU ALIAS KRISHNAN. 7. KRISHNANKUTTY (MINOR), S/O.KITTU ALIAS KRISHNAN. 8. JAYPRAKASAN (MINOR), S/O.KITTU ALIAS KRISHNAN. (RESPONDENTS 5 TO 8 BY GUARDIAN MOTHER AMMUKUTTY) (RESPONDENTS 2 TO 8 ARE RESIDING AT KALAPURATHOTTINGAL, KUTHANUR AMSSOM AND DESOM, ALATHUR TALUK). 9. AMMUKUTTY, W/O.A.SADHANANDHAN, RESIDING AT 490 SOWRIPALAYAM ROAD, PERIYAR NAGAR, PULIKULAM, TAMIL NADU. 10. MOHANAN, S/O.RAMASWAMY, RESIDING AT KLAPURATHOTTINGAL, ' KUTHANUR AMSOM, KUTHANUR P.O., ALATUR TALUK. -2- A.S.NO.152/94 11. VALSALA, C/O.A.SADHANANDHANAN, RESIDING AT 90 SOWRIPALAYAM ROAD, PERIYAR NAGAR, PULIKULAM, TAMIL NADU. R1 BY ADV. SRI.V.CHITAMBARESH SRI P.C SURESH MENON R2 BY ADV.SRI.T.C.MOHANDAS - SRI T.M. SUNIL SMT. S.CHITRA R3 & 4 BY ADV. SRI.A.MANOJ THIS APPEAL SUITS HAVING BEEN FINALLY HEARD ON 22/02/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: HARUN-UL-RASHID,J. -------------------------- A.S.NO.152 OF 1994 -------------------------- DATED THIS THE 22ND DAY OF FEBRUARY, 2010 JUDGMENT The 3rd defendant in O.S.No.480/1989 on the file of the Sub Court, Palakkad is the appellant. The suit was filed for partition. The court below passed preliminary decree directing division of the plaint schedule properties by metes and bounds in five equal shares and declared that one share out of that shall be allotted to the plaintiff. The share of the lst defendant is also declared as 1/5. Aggrieved by the decree and judgment dated 7/8/1993 the 3rd defendant preferred this appeal. The parties hereinafter referred to are the plaintiff and defendants as arrayed in the suit. 2. There are 21 items of properties scheduled to the plaint. According to the plaintiff, the properties were taken on lease by Narayanan, the father of the plaintiff, defendants 1 to 3 and deceased Kitta, whose legal heirs are defendants 4 to 9. It is -2- A.S.No.152/94 contended by the plaintiff that till the death of her father, he was paying the pattom and revenue taxes, that he expired in the year 1972, his wife in the year 1987 and the predecessor-in- interest of defendants 4 to 9 in the year 1982. The plaintiff claimed 1/5 share from the plaint schedule property. The lst defendant, sister of the plaintiff, supported the plaint allegations. Defendants 3, 4 and 5 contested the suit. According to them, the plaint schedule properties are the joint acquisition of Narayanan and his male children, that the plaint schedule properties are not self-acquired properties of deceased Narayanan and that even though Narayanan was managing the property, his male children were cultivating the property. The dispute between the father and the male children was settled at the instance of some mediators, that as per the decision taken in the mediation, it was decided to give 70 paras of paddy to Narayanan and 60 paras of paddy to his wife annually, for their expenses. Father Narayanan filed O.S.No.264/60 before the Munsiff's Court, Alathur for a decree -3- A.S.No.152/94 of perpetual injunction restraining his male children from trespassing into the plaint schedule items. It is stated that during the pendency of the suit, as per the mediation talk, a family settlement was arrived at between the parties, that on the basis of the family settlement, a compromise has been filed in O.S.No.264/60 and that the suit has been dismissed based on the compromise. It is also alleged that as per the compromise, four items of properties were given to Narayanan without any right of alienation and that after the death of Narayanan, defendants 2, 3 and deceased Krishnan jointly executed a partition deed on 18/6/1976 and ever since they are in separate possession and enjoyment of the properties with the right of alienation. The defendants prayed for dismissal of the suit. 3. The trial court recorded the oral and documentary evidence of PW1 and DW1 and Exts.A1 series and B1 to B7. The court below examined the important issues, namely, whether the plaint schedule properties are the self acquisition of Narayanan or -4- A.S.No.152/94 are the family property, whether the right, if any, of the plaintiff is lost by adverse possession and limitation and whether the plaintiff is entitled to any share in the plaint schedule property. 4. The contention raised by the contesting defendant is on the basis of the plea that the plaint schedule property is the joint family property, that there was an earlier suit instituted by the father-Narayanan for perpetual injunction, which ended in a compromise, and that in the compromise recorded by the court below Narayanan was awarded only a life interest in four items of properties, namely, items 9, 11, 12 and 15. The contesting defendant also contended that the father-Narayanan had no right of alienation of the properties allotted to him and that on his death, the entire properties allotted to him were devolved on the contesting defendants. It is also contended that the compromise was recorded in O.S.No.264/60 and based on the dismissal of the suit the properties were divided among the three brothers and thus the brothers of the plaintiff have acquired proprietary right -5- A.S.No.152/94 over the properties and they are enjoying the properties absolutely on their own right. 5. The learned senior counsel for the appellant submitted that the finding of the court below that the plaint schedule properties are separate properties of deceased Narayanan and that the compromise wherein Narayanan agreed to the allotment of properties to him for his lifetime expenses only being the profit does not conclude the rights of the parties is not correctly decided. According to the learned counsel, the decision of the court below is contrary to law. The learned counsel contended that the deceased-Narayanan had obtained the properties for his joint family and the properties are being enjoyed by him with his sons, who constituted the joint family, that the suit was instituted by him and the compromise recorded controlled the rights of Narayanan and that in such circumstances, the plaintiff is not entitled to put forward any independent right. -6- A.S.No.152/94 6. The court blow examined the contentions of the respective parties. The 3rd defendant, who was examined as DW1, testified before the court below that some properties were acquired by the father alone. But according to him, some properties were acquired by the father and the male children together. The trial court noticed the fact that DW1 could not say which are the properties acquired by the father separately and which are the properties acquired by the father and the male children together. The court below also noticed the fact that father was paying the pattom. The court below rightly held that there are no materials which would got to show that the properties were acquired by the joint effort of Narayanan and his male children. Therefore, the court below entered the finding that the entire plaint schedule properties are self-acquired properties of deceased-Narayanan. The court below also examined the scope of the suit O.S.No.264/60 filed by the deceased Narayanan. The said suit was dismissed on the basis of -7- A.S.No.152/94 Ext.B4 compromise. I have examined the recitals in Ext.B4 as per which four items of properties were given to the father for his maintenance on condition that he shall pay the pattom and michavaram. It is also stated that the father will not have any alienable right over the properties given to him. Items 1 and 3 to 21 properties were taken on lease by the father and item No.2 property was purchased by him. The contention of the defendants that there is a family arrangement was also examined in detail. In Ext.B4 it is reported that the parties have settled the dispute at the instance of a mediator. This fact was informed to the court below and prayed for disposal of the suit in terms of the compromise. Ext.B4 is only a petition filed before the court below. It is not a registered document. Ext.B4 contains only the terms of compromise. From Ext.B4 it could not be seen that the properties are partitioned between the sharers. So, the contention of the contesting defendants that it is a family arrangement and therefore it can be treated as a memorandum of family settlement -8- A.S.No.152/94 cannot be accepted. Firstly, as I stated earlier, though Ext.B4 does not contain any terms, which would go to show that the properties were partitioned among the sharers. Secondly, if it is treated as a memorandum of family settlement, it requires registration. Admittedly, the terms of compromise recored in writing are not registered. The trial court rightly held that merely by filing Ext.B4 the defendants could not have any right to take away the proprietary right of deceased father. Moreover, the female children of Narayanan were not parties to the said suit. The property belonged to Narayanan. Even assuming that Ext.B4 is a family settlement, it cannot be given any credence because that is a document entered into between some of the members of the family, admittedly excluding the plaintiff and her sister, who is the lst defendant in the suit. Since the deceased Narayanan was the title holder of the property even at the time of his death, his legal heirs have equal right over the property. Being the legal heirs of deceased Narayanan, the plaintiff, lst -9- A.S.No.152/94 defendant and others are having equal right over the property. In the circumstances, the preliminary decree passed by the court below cannot be effectively challenged by the contesting defendants. After declaring the share of the plaintiff, the court below held that since the alienations were not disputed as far as possible the share of the plaintiff shall be allotted without disturbing the house of the other sharers and the purchasers under them. 6. The learned counsel for the respondent relied on the decision reported in Reji P. Mathew v. Remi Joseph (2008 (4) KLT 773) in which it was held that to constitute a valid family settlement, it must be a bona fide one intended to resolve the family disputes, rival claims or even bona fide disputes, present or possible, the settlement must be voluntary and should not be vitiated by fraud, coercion, undue influence or any other vitiating circumstances and that the terms of settlement must be fair. An apparently outright partition effected by some of the sharers -10- A.S.No.152/94 without the junction of any one or more of the sharers cannot be treated as a family settlement so as to bind the person, who is not a signatory to the document. It was further held in the said decision that a party cannot be allowed to plead that there was a family settlement where some of the parties did not agree for the partition sought to be effected in the manner suggested by the former and further contend that such family settlement would bind even the persons who are not signatories to the document. The learned also brought to this Court's notice the decision of the Apex Court in Sk.Sattar Sk.Mohd. Choudhari v. Gundappa Amabadas Bukate (1996) 6 SCC 373). Referring to Sections 5 and 2(d) of the Transfer of Property Act, the Apex Court held that Section 5 contemplates transfer of property by a person, who has a title in the said property to another person, who has no title. A family arrangement, on the contrary, is a transaction between members of the same family for the benefit of the family so as to preserve the family property, the peace and security of the family, -11- A.S.No.152/94 avoidance of family dispute and litigation and also for saving the honour of the family. It was also held that such an arrangement is based on the assumption that there was an antecedent title in the parties and the agreement acknowledges and defines what that title is. It is for this reason that a family arrangement by which each party takes a share in the property has been held as not amounting to a “conveyance of property” from a person who has title to it to a person who has no title. The property absolutely belonged to the father-Narayanan. Since the property is the absolute property of deceased Narayanan, the plaintiff and all his children are having equal right to inherit the said property. In such circumstances, the decree for partition passed by the court below has to be sustained. In my view, the appellant has failed to substantiate the grounds raised for reversing the decree and judgment passed by the court below. I find that the view taken by the court below is the only possible view in the given circumstances. -12- A.S.No.152/94 In the result, the appeal fails and accordingly dismissed. No order as to costs. HARUN-UL-RASHID, JUDGE. kcv.