IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH THURSDAY, THE 19TH MARCH 2009 / 28TH PHALGUNA 1930 SA.No. 349 of 2003() -------------------- AS.30/1994 of ADDL.DISTRICT AND SESSIONS COURT, FAST TRACK-II, MANJERI OS.415/1990 of MUNSIFF COURT, MANJERI .................... APPELLANT(S): APPELLANTS/DEFENDANTS ----------------------------------- 1. P.NARAYANI AMMA, AGED 73 YEARS, D/O. P.NARAYANI AMMA. 2. KRISHNAN NAIR, AGED 54 YEARS, S/O. NARAYANI AMMA. 3. RADHA AMMA, AGED 50 YEARS, D/O. NARAYANI AMMA. 4. SREEDHARAN NAIR, AGED 47 YEARS, S/O. NARAYANI AMMA. 5. VENUGOPALAN NAIR, AGED 46 YEARS, S/O. NARAYANI AMMA. 6. MOHANAN NAIR, AGED 40 YEARS, S/O. NARAYANI AMMA. 7. GOPINATHAN NAIR, AGED 38 YEARS, S/O. NARAYANI AMMA. 8. SANTHA KUMARI, AGED 34 YEARS, D/O. NARAYANI AMMA. 9. MURALEEDHARAN, AGED 32 YEARS, S/O. NARAYANI AMMA. 10. SANTHOSH KUMAR, AGED 32 YEARS, S/O. RADHA AMMA. 11. SREENARAYANAN, AGED 27 YEARS,S/O.RADHAMMA. APPELLANTS 1, 5, 6 AND 7 RESIDE AT CHATHANGOTTUPURAM AMSOM DESOM IN ERNAD TALUK. 3RD APPELLANT RESIDES AT WANDOOR AMSOM AND DESOM IN ERNAD TALUK. 4TH APPELLANT RESIDES AT PUNNAPPALA AMSOM AND DESOM IN ERNAD TALUK. APPELLANTS 8 AND 9 RESIDE AT SA NO.349/2003 2 CHATHANGATTUPURAM AMSOM AND DESOM IN ERNAD TALUK AND APPELLANTS 10 AND 11 RESIDE AT WANDOOR AMSOM, VADAKUMPADAM DESOM IN ERNAD TALUK. BY ADV. SRI.S.VENKATASUBRAMONIA IYER, SENIOR ADVOCATE SRI.P.M.POULOSE RESPONDENT(S): RESPONDENTS/PLAINTIFFS ------------------------------------- 1. P.KAMALAKSHI AMMA, D/O. NARAYANI AMMA, RESIDING AT PUNNAPPALA AMSOM AND DESOM IN ERNAD TALUK, PRESENT ADDRESS: POOLAKUNDU, PUTHENPOYIL, PUNNAPPALA AMSOM,DESOM, PUNNAPPALA P.O., (VIA) WANDOOR, MALAPPURAM DISTRICT, PIN-679 328. 2. SANKARA NARAYANAN, S/O.KAMALAKSHI AMMA, AGED 36 YEARS. 3. VASUDEVAN, AGED 34 YEARS, S/O. KAMALAKSHI AMMA. 4. VINOD KUMAR, AGED 39 YEARS, S/O. KAMALAKSHI AMMA, PUNNAPPALA AMSOM AND DESOM. ADV. SRI.K.M.SATHYANATHA MENON FOR R1TOR4 THIS SECOND APPEAL HAVING BEEN FINALLY HEARD ON 19/03/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: THOMAS P.JOSEPH, J. = = = = = = = = = = = = = = = = = = = = = = = = S.A. No.349 of 2003 = = = = = = = = = = = = = = = = = = = = = = = = = Dated this the 19th day of March, 2009 J U D G M E N T ---------------------- The substantial question of law raised for a decision in this second appeal is whether Ext.B3 can be accepted as evidencing an oral partition between the plaintiffs and defendants extinguishing the right of the plaintiffs over the suit property? 2. Facts which are not disputed are that the suit property described as 'Mappilamukku nilam' in R.S. No.9/3 having a total extent of 2 acres was acquired by Narayanai Amma, mother of defendant No.1 and grand mother of plaintiff No.1 and defendant Nos.2 to 7 as per Ext.B1, pattachit No.752/48 followed by a partition after the death of Narayani Amma as evidenced by Ext.B2, deed No.1651/69. The suit property was accordingly set apart for the share of tavazhy of plaintiff Nos.1 to 3 and the defendants. Plaintiffs claimed 4/15 shares in the suit property and demanded partition. Defendant Nos.2 to 7 admitted that suit property was in the joint possession of Narayani Amma, her children including defendant No.1 and that the property was partitioned as per Ext.B2. According to defendant Nos.2 to 7 on 22.5.1979 there was an arrangement between plaintiffs Nos.1 to 3 and defendants as per which the value of the share of the plaintiffs in the S.A. No.349 of 2003 -: 2 :- suit property was given to plaintiff No.1 for which plaintiff No.1 executed Ext.B3, letter dated 22.5.1970. Later defendant Nos.1 and 2 got purchase certificate of the suit property from the Land Tribunal. Thus the plaintiffs have no partible right or interest over the suit property. Defendants 8 to 11 who were subsequently impleaded also raised similar contentions. Learned Munsiff found that “Ext.B3 has not been proved as a document extinguishing the rights of the plaintiffs” and passed a preliminary decree for partition. First appellate court has concurred with that finding. Hence this second appeal. 3. It is contended by the learned counsel for defendants that the courts below were not correct in law or on fact in not accepting Ext.B3. Learned counsel contended that Ext.B3 evidenced a family arrangement and an oral partition and hence under the proviso to Section 49 of the Registration Act even in the absence of Ext.B3 being registered as required under law court can use Ext.B3 for collateral purposes for proof of such family arrangement and partition. Learned counsel for the plaintiffs contended that due execution of Ext.B3 is not proved and at any rate, Ext.B3 cannot extinguish the right of the plaintiffs. It is also contended by the counsel that Ext.B3 did not pertain to the suit property and interpolations are made in Ext.B3 to make it appear that it related to the suit property as well. S.A. No.349 of 2003 -: 3 :- 4. There cannot be any dispute that even if the document which is required by law to be registered, is not so registered it can be used for collateral purposes. Exhibit B3 can be looked into for the purpose of deciding whether there was any family arrangement and oral partition as contended by the defendants. 5. So far as execution of Ext.B3 is concerned, D.Ws.1 and 2 have given evidence. It is true that in response to the contention in the written statement as to execution of Ext.B3, no replication has bee filed by the plaintiffs and none of the plaintiffs have gone into the box also. But mounting the witness box and giving evidence is not the only mode of denying or disputing Ext.B3. Going through the evidence of D.Ws.1 and 2 it seen from their cross-examination that suggestions were made on behalf of the plaintiffs that Ext.B3 was not executed by plaintiff No.1. Therefore the defendants cannot proceed on the premise that execution of Ext.B3 is not disputed. 6. So far as execution of Ext.B3 is concerned, D.Ws.1 and 2 stated that at a time when plaintiff No.1 approached the defendants with a demand for some money, they all talked about the matter, value of the entire property was fixed as Rs.1,750/- and, in lieu of the share of plaintiff Nos.1 to 3, plaintiff No.1 was given Rs.525/- and she executed Ext.B3. D.W.2 stated that after discussion on the day S.A. No.349 of 2003 -: 4 :- plaintiff No.1 approached the defendants with a demand for money, she returned and two days later she came with Ext.B3 and the document was signed in their presence. Learned Munsiff observed that D.W.1 had no such case. Moreover, none of D.Ws.1 and 2 have a case that they had seen plaintiff No.1 or anybody on behalf of her preparing Ext.B3. They would say that plaintiff No.1 brought Ext.B3 prepared and signed in their presence. Though D.W.1 denied, it is admitted by D.W.2 that the handwriting and the ink used in Ext.B3 are different. Even in the absence of an expert opinion, this could be discerned by a mere look at Ext.B3. Moreover, though D.W.2 claimed that there were mediators including himself who discussed the whole issue, none of the mediators have signed Ext.B3. Instead, husband of plaintiff No.1 is stated to have signed Ext.B3. But there is no case that at the time of discussion husband of plaintiff No.1 was present so that he could have signed Ext.B3 at the house of the defendants in the presence of mediators including D.W.2. 7. The suit is for partition of 'Mappilamukku nilam' in R.S. No.9/3 having a total extent of 2 acres while Ext.B3 as originally written appeared to be in respect of “Kapplichola Kudiyiruppu Parambu, house and other improvements”. The words “മറ” ( .) etc and “വ ല ന ശയ ചത ല മപ ളമക ന ലത ന ( ” value fixed in respect of S.A. No.349 of 2003 -: 5 :- ) Mappilamukku nilam are seen interpolated in Ext.B3 and obviously written in different ink. That the interpolation is in a different ink is admitted by D.W.2. Exhibit B3 would apparently show that reference to “Mappilamukku nilam”, the suit property was later inserted in Ext.B3. It is also interesting to note that the defendants have no case in the written statement that the entire property belonging to the Tharawad including the suit property was the subject matter of discussion on the relevant day. This is admitted by D.W.2, the witness for the defendants who stated in cross-examination that for no property other than 'Mappilamukku nilam' value was fixed. Later he stated that he does not remember whether in respect of any other property reference was made in Ext.B3. 8. Assuming that Ext.B3 is proved, then the question is whether it extinguished the right of the plaintiffs over the suit property. The argument advanced by the defendants is that Ext.B3 evidenced a family arrangement and oral partition. Though there is reference to an oral partition in Ext.B3, I do not find any plea in that line in the written statements filed by the defendants. Instead what is stated is that plaintiff No.1 approached the defendants with a demand for some money, all of them discussed about the matter and valuing the share of plaintiffs, plaintiff No.1 was paid Rs.525/- and she S.A. No.349 of 2003 -: 6 :- relinquished their share. Going through the written statements I can only understand the contention as indicating that plaintiff No.1 relinquished the share of herself and plaintiff Nos.2 and 3 in the property. This is more clear from the fact that even in the appeal memorandum filed in the first appellate court no contention is raised by the defendants that there was any family arrangement and oral partition. Hence the attempt made by the defendants to make it appear that there was a family arrangement and oral partition cannot succeed. 9. Assuming that Ext.B3 is proved, then also a question would arise as to whether it binds plaintiff Nos.2 to 4. Concededly, father of plaintiff Nos.2 and 3 (plaintiff No.4 was born later) was alive at the time of Ext.B3. In that case, he being natural guardian should have represented plaintiff Nos.2 and 3. Instead, plaintiff Nos.2 and 3 are represented in Ext.B3 by their mother, plaintiff No.1. Even as a de facto guardian she could not have in any way dealt with the immovable property belonging to plaintiff Nos.2 and 3. Assuming that plaintiff Nos.2 and 3 were majors at the time of Ext.B3, the position is still worse in that they could not have been represented by plaintiff No.1. I do not find any illegality or irregularity in the courts below not acting upon Ext.B3. No substantial question of law is also involved. S.A. No.349 of 2003 -: 7 :- 10. No other point arose for consideration. Second Appeal fails. It is dismissed. No costs. Civil Miscellaneous Petition No.1234 of 2003 shall stand dismissed. THOMAS P.JOSEPH, JUDGE. vsv THOMAS P.JOSEPH, J. =================== S.A. NO.349 OF 2003 =================== J U D G M E N T 19TH MARCH, 2009