IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN MONDAY, THE 29TH NOVEMBER 2010 / 8TH AGRAHAYANA 1932 RFA.No. 385 of 2004(C) --------------------------------- OS.99/1989 of SUB COURT, VADAKARA .................... APPELLANT/PLAINTIFF: ---------------------------------------- NADUKANDY SURENDRAN, S/O. KANARAN, IRRINGANNOOR AMSOM DESOM, BADAGARA TALUK, KOZHIKODE DISTRICT. BY SRI.T.P.KELU NAMBIAR, SENIOR ADVOCATE SRI.P.G.RAJAGOPALAN SRI.M.GOPIKRISHNAN NAMBIAR SMT.T.RESMI DAMODARAN RESPONDENT(S): ------------------------- 1. MYLADI POKKI, D/O. KANARAN, IRRINGANNOOR AMSOM DESOM, P.O. IRRINGANNOOR (VIA) NADAPURAM, BADAGARA TALUK, KOZHIKODE DISTRICT. 2. KOVUKKAVEETTIL CHEERU, W/O. KANARAN, DO. DO. (DIED) 3. DO. KUNHIRANAM, S/O. KANARAN, OF DO. DO. 4. KOLOTH NARAYANI ALIAS NURUMB, * DIED D/O. KANARAN, IRRINGANNOOR AMSOM DESOM, (VIA) NADAPURAM, BADAGARA TALUK, KOZHIKODE DISTRICT. 5. ARYAKKOOL THAZHAKUNIYIL JANU ALIAS MATHU, D/O. KANARAN, EDACHERI AMSOM DESOM, P.O. EDACHERI, BADAGARA TALUK, KOZHIKODE DISTRICT. 6. KATTIL MATHA, D/O. KANARAN, DO. DO. sts RFA.385/2004 7. KUNNUMMAL PARU, D/O. KANARAN, IRRINGANNOOR AMSOM DESOM, P.O. IRRINGANNOOR, (VIA) NADAPURAM, BADAGARA TALUK, KOZHIKODE DISTRICT. 8. NADUKANDY ANANDAN, S/O. KANARAN, OF DO. DO. 9. DO. KRISHNAN, S/O. KANARAN, OF DO. DO. 10. DO. GOVINDAN, S/O. KANARAN, OF DO. DO. 11. DO. NARAYANAN, S/O. KANARAN, OF DO. DO. 12. DO. GOPALAN, S/O. KANARAN, OF DO. DO. 13. MYLADY KRISHNAN, S/O. POKKI, OF DO. DO. 14. CHAPPARIPOYIL KUMARAN, S/O. POKKAN, OF DO. DO. 15. NADUKANDIYIL CHANDRAN, SO. KUMARAN, OF DO. DO. 16. DO. KANNAN, S/O. KUMARAN, OF DO. DO. 17. DO. RAMAKRISHNAN, OF DO. DO. 18. PONNAKANDI KUNHIRAMAN, OF DO. DO. 19. VANNARATH VASANTHA, OF DO. DO. 20. DO. BABU, OF DO. DO. 21. DO. AJAYAN, OF DO. DO. 22. DO. BABY, OF DO. DO. 23. DO. MANI, OF DO. DO. * ADDL.R24 TO R30 IMPLEADED * ADDL.R24: JANU, KOTTEMBRATH, P.O. IRRIGANNOOR, VIA. NADAPURAM, KOZHIKODE DISTRICT. ADDL.R25: DECHOOTTY, ERIKKOOL HOUSE, P.O. IRRINGANNOOR, VIA. NADAPURAM, KOZHIKODE, DISTRICT. ADDL. R26: RADHA, KUNNUMMAL HOUSE,P.O.IRRINGANNOOR, VIA.NADAPURAM, KOZHIKODE DISTRICT sts RFA.385/2004 ADDL. R27: VASANTHA, EERAYEENTAVIDA HOUSE, P.O. KACHERY, VIA. NADAPURAM, KOZHIKODE DISTRICT. ADDL. R28: NALINI, KUNDYENTAVIDA HOUSE, P.O. THUNERI, VIA. NADAPURAM, KOZHIKODE DISTRICT. ADDL. R29: INDIRA, KOLLANANDI HOUSE, P.O.PERODE, VIA. NADAPURAM, KOZHIKODE DISTRICT. ADDL .R30: VASU, KELOTH HOUSE, P.O. KAYAPPANICHI, VIA. NADAPURAM, KOZHIKODE DISTRICT. * THE LEGAL LEIRS OF DECEASED R4 THE IMPLEADED AS ADDL. RESPONDENTS 24 TO 30 VIDE ORDER DT. 15/10/2008 IN I.A.NO. 1139/2006. RES.2 & 14 DIED: THEIR LEGAL REP.ARE ALREADY ON THE PARTY ARRAY, RES.3 TO 7 ARE THE LEGAL REP. OF DECEASED 2ND RESPONDENTS AND RES.15 TO 17 ARE THE LEGAL REPRESENTATIVES OF DECEASED 14TH RESPONDENT. R1, R3 TO R7 & R13 BY SRI.K.RAMAKUMAR, SENIOR ADVOCATE SRI.SARATH CHANDRAN. K R18 TO R23 BY ADV. SRI.N.L.KRISHNAMOORTHY SRI.K.LAKSHMINARAYANAN SRI.SATHYASHREE PRIYA SMTJ.N.NISHA R9 TO R12 BY ADV. SRI.K.R.RADHAKRISHNAN NAIR THIS REGULAR FIRST APPEAL HAVING BEEN FINALLY HEARD ON 29/11/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: sts M.N. KRISHNAN, J. ........................................... R.F.A.NO.385 OF 2004 ............................................. Dated this the 29th day of November, 2010. J U D G M E N T This is an appeal preferred against the judgment and decree of the Subordinate Judge's Court, Vadakara in O.S.No.99/1989. The suit is one for partition. The brief facts necessary for the disposal of the appeal are stated as follows: There are nine items of property included in the plaint. The common predecessor is Kanaran. 1st defendant is the daughter of Kanaran in his first wife. 2nd defendant is the second wife of Kanaran. Defendants 3 to 7 are the children born in Kanaran in 2nd defendant. Plaintiff and defendants 8 to 12 are the children of Kanaran in his third wife Cheeru. Therefore, the plaintiff is claiming partition over the properties i.e., one out of 13 shares. 2. The contesting defendants would contend that Cheeru is not the wife of Kanaran and they do not admit that the plaintiff and defendants 8 to 12 are the children of Kanaran in Cheeru. According to them, a suit was filed by : 2 : R.F.A.NO.385 OF 2004 the 1st defendant in this case and during the pendency of the said suit, a settlement was arrived at and even though the plaintiff and defendants 8 to 12 were not entitled to get any legal right over the property, as a matter of gesture, 55 cents of the property were gifted in their favour and it is clearly recited in the document that they did not have any right over the remaining property of Kanaran. Thereafter Kanaran's other legal representatives effected partition among themselves in 1968 and they continued to be in possession of the property. 3. The trial court on an evaluation of the entire materials and by virtue of Section 16 of the Hindu Marriage Act held that the plaintiff and defendants 8 to 12 can be considered as entitled to share the property even if the marriage is void. Then the court proceeded to hold that the recitals in the document Ext.B11 would show regarding the other property left by Kanaran that the plaintiff and defendants 8 to 12 will have no right. The court further held that the gift deed should have been challenged by the plaintiff. As he has not done within the : 3 : R.F.A.NO.385 OF 2004 stipulated period, it is barred by limitation. The court also found that, if at all any items are available for partition, they are items 1 to 7 and excluded items 8 and 9 from the purview of partition. It is aggrieved by that decision, the plaintiff has come up in appeal 4. Heard the learned counsel for the appellant and the contesting respondents. The plaintiff's counsel would contend before me that Section 16 of the Hindu Marriage Act settles the status and possession regarding inheritance of the property but he would contend that at the time of execution of the gift deed in the year 1968, the present plaintiff was only a minor aged 5 years and he was represented by his brother as the guardian and those recitals would not bind him even if it is to be accepted. The learned counsel further would contend that in the document Ext.B17 the gift deed is accepted by all and therefore though the gift deed is accepted by all since the present plaintiff was a minor at that time, the said recitals will not be binding on him and lastly it is contended that as the recitals in the document are not binding on the : 4 : R.F.A.NO.385 OF 2004 minor, the question of setting aside also does not arise. 5. On the other hand the learned young counsel for the respondents would submit that there is no admission by the contesting defendants that Kanaran has married Cheeru and children are born to him through her. It is further contended that without setting aside the document of the year 1968 and the partition deed executed somewhere nearby, the plaintiff will not be entitled to get any right over the property. It is also contended that right of the plaintiff, if any, is barred by ouster as well. 6. Now let me first consider about the entitlement of the plaintiff and defendants 8 to 12 to get the property under the Hindu Marriage Act. Section 16 of the Hindu Marriage Act wants to avoid destitution and confers legitimacy with respect to the children born on void and voidable marriages. So the sine qua non under Section 16 is that there should be a marriage proved whether it is void or voidable. 7. Now the learned counsel for the respondents would submit before me that no evidence has been adduced in this : 5 : R.F.A.NO.385 OF 2004 case to prove the marriage or the custom or the children's birth and therefore Section 16 cannot come to the rescue of the plaintiff and defendants 8 to 12. It has to be remembered that a suit was filed by the present first plaintiff before the Subordinate Judge's Court, Vadakara as O.S.No.1/1968. It was a case filed for partition impleading the present plaintiff and others also as the children of Kanaran. That matter was settled pursuant to execution of Ext.B11. In Ext.B11 there are recitals to the effect that at the time of marriage with the mother of the plaintiff, Kanaran had an existing wife and therefore the marriage between Kananan and Cheeru is invalid in law etc etc. So the borne of contention which the parties raised in the suit which is followed in the recitals in the document would reveal that the marriage between Cheeru and Kanaran has been recognized, but the legitimacy of the marriage is challenged on the ground that since the second wife was alive during that marriage, the third marriage is invalidated and therefore they are not entitled to right. So after clearly admitting those things in the document : 6 : R.F.A.NO.385 OF 2004 and also not raising serious contentions in the suit O.S.No.1/1968, it is too late for the contesting defendants to disown the marriage and paternity of the children. The learned young counsel had brought to my notice a document - Ext.B47 which is birth register extract relating to the present plaintiff wherein name of the father is shown as Kannan. Therefore, it is contended that name of the father itself differs. But while executing the document Ext.B11, it is accepted and in the suit O.S.No.1/1968 also it is accepted that plaintiff is the son of Kanaran. Therefore I am persuaded to accept the argument in that line and I hold that irrespective of the question whether it is a void or voidable marriage, even if it is accepted, then the plaintiff and defendants 8 to 12 has got the right which they are entitled to inherit in the property of late Kanaran. 8. Now comes the other crucial question. 55 cents of land had been gifted in favour of the plaintiff and defendants 8 to 12 and it is a document of gift executed by the second wife and children in favour of the third wife's children. The last sentence in the document is to the effect : 7 : R.F.A.NO.385 OF 2004 that “മരച കണരന എനവര ട മറ സത കളക നങളക യടര അവകശവ ഇലത ആക ന .” At the time of execution of this document the recipients namely Krishnan, Govindan, Narayanan, Gopalan and the present plaintiff were minors and they were represented by their eldest brother Anandhan. Subsequent to that, there is a surrender deed executed which is marked as Ext.B17 in the year 1979. On that date all except the present plaintiff Surendran had attained the majority. The said deed of surrender is in favour of Krishnan. So even at the time of execution of Ext.B17, the present plaintiff was a minor. So far as defendants 8 to 12 are concerned, they had all attained majority and based on Ext.B11 they had executed the surrender deed in favour of Krishnan. So whatever be the contents of the document in Ext.B11 was, they are accepted by them and it is only acting upon the terms of Ext.B11 by which they derived right, they released their right in favour of Krishnan. So all the other brothers after attaining the majority had executed Ext.B17 and therefore in the light of the recitals in Ext.B11 it has to be stated that they cannot : 8 : R.F.A.NO.385 OF 2004 claim the right over the property of Kanaran thereafter. It is true that they were minors of Ext.B11. By their conduct and by execution of Ext.B17 that terms of Ext.B11 is binding on them. Therefore I have absolutely no hesitation to hold that defendants 8 to 12 in the suit do not have any right over the properties. 9. Now we are concerned about the plaintiff. The plaintiff was aged 5 represented not by his natural guardian at the time of the gift and further not represented by the natural guardian while surrendering the right in favour of Krishnan and therefore those documents may not be valid and binding on that person. We are not concerned about that 55 cents for the reason that it is not the subject matter of our suit. We are very concerned about the recitals in the document whereby it is declared by the donors that donees will not have any right over any other property of Kanaran. Since the plaintiff was a minor, he had the legal disability and therefore such a recital in Ext.B11 cannot be binding on him for the reason that a plea of estoppal cannot be raised against a minor at that stage. So : 9 : R.F.A.NO.385 OF 2004 also in Ext.B17, he was only a minor and that also cannot affect him. So the sum and substance of the materials would reveal that plaintiff's right cannot be lost in other properties otherwise than by ouster and therefore I hold that the plaintiff is entitled to one out of 13 shares in the property. 10. Now comes to the question of ouster. As settled down in so many decisions in order to constitute an ouster it is nec vi, nec claim and nec precario i.e., there must be continuous absolute possession with hostile animus. Now it is contended that the recitals in Ext.B11 which debar the plaintiff from getting any right over the property will strike at him and therefore the possession has to be treated as adverse from that date. I am afraid that the said proposition cannot be extended to this case for the reason that the very recital in that document as I held earlier is not binding on the plaintiff and therefore the time will not start from then away. So the hostile animus with the intention to exclude the plaintiff is not available before this Court legally and therefore the plea of ouster also cannot : 10 : R.F.A.NO.385 OF 2004 be entertained. 11. The learned counsel for the respondents would contend that without setting aside the partition deed and the gift deed, the plaintiff is not entitled to succeed. So far as the gift deed is concerned, it does not relate this property and it is only a recital that is attempted to be used against the plaintiff which I have stated as earlier cannot bind the plaintiff because of his minority at that point of time. So far as partition deed is concerned, the plaintiff is not even an eo nominee party to the document and when it is so, the question of setting aside does not arise at all. Therefore the suit cannot be thrown out on that principle also. 12. The plaintiff as a beneficiary has gained advantage by getting a share under Ext.B11 property. His share worked out may be calculated and he may be asked to reimburse that amount or let that be adjusted while effecting division of the property. 13. Ultimately I also find that the plaintiff is entitled to one out of 13 shares and his right is not lost. What is the : 11 : R.F.A.NO.385 OF 2004 property available for division is the next question to be considered. There are claims regarding 9 items of the property and the trial court has held that as it is a matter of 1968, partition deed has been only with respect to items 1 to 7 and there is no material before the court to show that items 8 and 9 of the property did belong to Kanaran at any point of time. Therefore the trial court held that even if the property is found to be partible, it is only items 1 to 7 that are available for division. I also agree with the said observation and so far as the question of equities and other resources are concerned, it has to be remembered that contesting defendants are in possession of the property for a quite long time. So the courts at the stage of passing of the final decree should show maximum leniency to them by virtue of equity, so that those parties are not materially affected by the division. I also make it clear that if there are buildings etc in these properties, it has to be excluded from valuation and that has to be set apart to the person, who had constructed the same. So far as mesne profits are concerned, defendants namely 2 to 7 will be liable for the : 12 : R.F.A.NO.385 OF 2004 same. 14. In the result, the judgment and decree of the trial court are set aside and the appeal is allowed and a preliminary decree for partition is passed as follows: i. It is found that items 1 to 7 of the plaint schedule property are available for division. ii. It is further found that the plaintiff is entitled to one out of 13 shares over the property. iii. It is also found that defendants 8 to 12 are not entitled to any right or share over the property. iv. As far as possible least inconvenience to be caused to the possession of defendants in the case and if there are any buildings or other improvements, it shall be excluded from the valuation calculated for the purpose of valuing the property and house or other buildings shall be allotted to their respective shares, if any. v. So far as mesne profits are concerned, defendants 2 to 7 shall be liable to pay mesne profits from the date of suit and the quantum can be decided in the final decree proceedings. It is made clear that items 8 and 9 of the : 13 : R.F.A.NO.385 OF 2004 plaint schedule are excluded from the division. vi. The plaintiff is at liberty to apply for final decree. vii. The plaintiff is bound to return the benefit he had obtained under Ext.B11 as stated in para 12. M.N. KRISHNAN, JUDGE. cl