IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR TUESDAY, THE 28TH JUNE 2011 / 7TH ASHADHA 1933 RSA.No. 535 of 2011() --------------------- AS.98/2008 of ADDL.SUB COURT, IRINJALAKUDA OS.493/2006 of MUNSIFF COURT, KODUNGALLUR .................... PETITIONER/APPELLANT ---------------------------------------- SASIDHARAN,AGED 53, S/O.PUNNAKKATHARAYIL CHANDRAN, KAZHUVILANGU DESOM,KOOLIMUTTAM VILLAGE, KODUNGALLUR TALUK, MATHILAKAM PO, PIN 680 685. BY ADV. SRI.P.N.RAMAKRISHNAN NAIR SRI.P.VISWANATHAN RESPONDENT(S): --------------- 1. KOMALAM,AGED 71,D/O.PUNNAKKATHARAYIL DAMODARAN,KAZHUVILANGU DESOM,KOOLIMUTTAM VILLAGE, KODUNGALLUR TALUK, W/O.THAYULLI SANKARANARAYANAN, KAZHUVILANGU DESOM,KOOLIMUTTAM VILLAGE, KODUNGALLUR TALUK,MATHILAKAM PO, PIN 680 685. 2. SASIKALA,AGED 49,D/O.PUNNAKKATHARAYIL CHANDRAN,W/O.NEDUMPARAMBIL ASHOKAN, NEDUMPARAMBU DESOM,KOOLIMUTTAM VILLAGE, KODUNGALLUR TALUK,PIN 680 685. 3. SUNANDA,AGED 43,D/O.PUNNAKKATHARAYIL CHANDRAN,W/O.PUTHANKATTIL DHARMAN,PADINJARE VEMBALLUR DESOM, SREENARAYANAPURAM VILLAGE, KODUNGALLUR TALUK,PIN 680 685. 4. SATHI,AGED 41,D/O.PUNNAKKATHARAYIL CHANDRAN,W/O.NADUMURI PREMAN,PATHAZHAKKADU DESOM,SREENARAYANAPURAM VILLAGE, KODUNGALLUR TALUK PIN 680 685. 5. SHEEJA,AGED 38,D/O.PUNNAKKATHARAYIL CHANDRAN,W/O.CHEROOLIL JOSHI,KAZHUVILANGU DESOM, KOOLIMUTTAM VILLAGE,KODUNGALLUR TALUK, PIN 680 685. 6. SINY,AGED 35,D/O.PUNNAKKATHARYIL CHANDRAN,W/O.AZHIPARAMBIL SUDHEER,MATHILINMOOLA DESOM,PAPPINIVATTOM VILLAGE,KODUNGALLUR TALUK, PIN 680 685. THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 28/06/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: M.SASIDHARAN NAMBIAR, J ........................................... RSA No.535 OF 2011 ............................................ DATED THIS THE 28th DAY OF JUNE, 2011 JUDGMENT First defendant in O.S.493 of 2006 on the file of Munsiff Court, Kodungallur is the appellant. First respondent is the plaintiff and other respondents, the other defendants in the suit. First respondent instituted the suit seeking a decree for partition of the plaint schedule property into three shares and for allotment of her share. Plaint schedule property admittedly originally belonged to Damodaran. Damodaran had two wives, Karthyayani and Ponnikutty. First respondent is admittedly the daughter of Damodaran born to Karthyayani and Damodaran had two other children, Gouri and deceased Chandran, in Ponnikutty. Defendants 1 to 6 are the legal heirs of Chandran. Without impleading the first respondent, O.S.47 of 1996 was instituted by the appellant seeking partition of the plaint schedule property. Ext.A3 is the copy of the plaint. Evidenced by Ext.A4, a preliminary decree was passed on 22.10.1997. First respondent contended that as she was not impleaded in the suit, the decree RSA 535/2011 2 is not binding on her and as she is the legal heir of Damodaran along with Gouri and Chandran, she is entitled to get her 1/3 share separated. Appellant filed a written statement contending that a preliminary decree was already passed in O.S.47 of 1996 and therefore the suit for partition is not maintainable and appellant is taking steps to divide the properties covered by the registered sale deed 1143 and 1773 of 1995 and when O.S.47 of 1996 was instituted, all the coownership properties were not included and as per document No.3715/1995, appellant has purchased the shares of Gouri and therefore the suit is to be dismissed. Respondents 2 to 6 also filed a written statement contending that appellant had agreed to relinquish his share and suppressing that fact, O.S.47 of 1996 was instituted and they have no objection for re-opening the partition effected in O.S.47 of 1996. 2. Learned Munsiff, on the evidence of PW1 and Exts.A1 to A6 passed a preliminary decree holding that first respondent is entitled to 1/3 share and plaint schedule property is available for partition, Ext.A4 preliminary decree in O.S.47 of 1996 is not binding on the first respondent. Appellant challenged the RSA 535/2011 3 judgment before Sub Court, Irinjalakkuda in A.S.98 of 2008. Before the first appellate court, appellant filed I.A.1953 of 2010, an application under Order VI Rule 17 of Code of Civil Procedure to amend the written statement to incorporate a contention that in M.C.96 of 1955, compromise effected by the mother of the first respondent and the father, whereunder the mother on behalf of the first respondent had given up the entire right in the properties of the father and therefore first respondent is not entitled to claim a share. Learned Sub Judge for reasons recorded, dismissed I.A.1953 of 2010. Appellant also filed I.A.2076 of 2008 to receive the copy of compromise petition filed in M.C.96 of 1955 as additional evidence under Rule 27 of Order XLI of Code of Civil Procedure. Learned Sub Judge dismissed that application. On reappreciation of evidence, confirming the preliminary decree. The appeal was dismissed. On reappreciation of evidence, the preliminary decree was confirmed. It is challenged in the second appeal. 3. Learned counsel appearing for the appellant was heard. Learned counsel made available copy of the compromise petition filed in M.C.96 of 1955 and pointed out that though first RSA 535/2011 4 respondent was a minor at that time, on her behalf her mother Karthyayani settled the dispute with the father and relinquished all the rights of first respondent over the properties of the father, on receiving Rs.550/-. Making available a copy of the extract of the admission register it was pointed out that first respondent was born on 4.11.1945 and the said compromise would disentitle the first respondent from claiming any share. Relying on the decision of this court in Hameed V. Jameela (2009(4) KLT 531) and Hameed V. Jameela (2004(1) KLT 586), argued that in any case, the compromise would operate as estoppel and even though first respondent was a minor at that time, as she has not taken any steps to set aside the document, first respondent is not entitled to a share. 4. The fact that the plaint schedule property originally belonged to Damodaran, the father is admitted. First respondent, Gouri and Chandran are the three children of Damodaran. It is admitted. Respondents 1 to 6 are the legal heirs of the deceased Chandran. Gouri had admittedly assigned her 1/3 share in favour of the appellant in 1995. Though appellant instituted O.S.47 of 1996 for separation of his share and under Ext.A4 preliminary RSA 535/2011 5 decree, the property was directed to be divided, first respondent was not impleaded in the suit. Therefore she is definitely entitled to ignore the said decree. Hence in law first respondent is entitled to get her 1/3 share, unless it was lost as claimed by the appellant. 5. Though the learned counsel vehemently argued that first respondent is estopped from claiming any share in view of the compromise entered into by her mother and father in the criminal M.C proceedings no such contention was raised in his written statement. True, appellant sought to amend the written statement at the first appellate stage contending that he was unaware of the said compromise earlier and the suit was being contested through the power of attorney holder. As rightly found by the first appellate court, these are insufficient grounds to grant permission to amend the written statement at the first appellate stage as sought for. Even if it is taken that there was a compromise by the mother and father, in a petition filed for maintenance of the mother under Section 488 of Code of Criminal Procedure, as then stood, the compromise could only be in respect of the claim for maintenance and not in respect of the RSA 535/2011 6 inheritance of the daughter of Karthyayani. Therefore, even if there was any agreement between the mother and father of first respondent as claimed by appellant in that maintenance case, it will not operate as estoppel against the first respondent to claim her share in the property. Even if the compromise petition shows that some amount was received by the mother, that could at best be towards the future maintenance of the daughter and will not operate as a bar to claim a share due for the daughter on the death of the father, as in this case. In such circumstances, I do not find any substantial question of law involved in the appeal. It is dismissed. M.SASIDHARAN NAMBIAR, JUDGE lgk