IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.RAMKUMAR THURSDAY, THE 25TH JUNE 2009 / 4TH ASHADHA 1931 FAO.No. 3 of 2004() ------------------- AS.182/2000 of DISTRICT COURT, THRISSUR OS.57/1978 of M.C.,VADAKKANCHERRY (IA 141/1993) .................... APPELLANTS/RESPONDENTS 1 TO 4/DEFENDANTS 1 TO 4:- 1. NANI, W/O.NARAYANAN, PUTHANKALATHIL HOUSE, THONNURKARA VILLAGE, TALAPPILLY TALUK. 2. RAGHAVAN S/O.NARAYANAN, PUTHANKALATHIL HOUSE, THONNURKARA VILLAGE, TALAPPILLY TALUK. 3. CHANDRAN, S/O.NARAYANAN, QUALITY PATTERN WORKS, IST MAIN 3RD WEST ORESA, P.O.YESWATHPOR, BANGALORE. 4. VASUDEVAN, S/O.NARAYANAN, QUALITY ENGINEERS, 647, MAHIKKARA LAY OUT 14 B MAIN GOKULA, BANGALORE. BY ADV. MR. L.GOPALAKRISHNAN POTTI RESPONDENTS/PPELANTS & RESPONDENTS 5 TO 11/PLAINTIFF & DFEFENDANTS 5 TO 11:- 1. RAMAKRISHNAN, S/O.LATE ACHUTHAN AND KUNJUNNY, PADINJAREPURACKAL, THONNURKKARA VILLAGE, THALAPPILLY TALUK. 2. KESAVAN, S/O.LATE ACHUTHAN AND KUNJUNNY, PADINJAREPURACKAL, THONNURKARA VILLAGE, THALAPPILLY TALUK. 3. AYYAR, S/O.LATE ACHUTHAN AND KUNJUNNY, PADINJAREPURACKAL, THONNURKARA VILLAGE, THALAPPILLY TALUK. 4. SEKHARAN, S/O.LATE ACHUTHAN AND KUNJUNNY, PADINJAREPURACKAL, THONNURKKARA VILLAGE, THALAPPILLY TALUK. F.A.O. No. 3/2004 : 2: 5. PADMANABHAN, S/O.ACHUTHAN AND KUNJUNNY, PADINJARE PURACKAL, THONNURKKARA VILLAGE, TALAPPILLY TALUK. 6. BALAN, S/O.LATE ACHUTHAN AND KUNJUNNY, PADINJAREPURACKAL, THONNURKARA VILLAGE, THALAPPILLY TALUK. 7. NARAYAN, S/O.LATE ACHUTHAN AND KUNUNNY, PADINJAREPURCKAL, THONNURKKARA VILLAGE, THALAPPILLY TALUK. 8. LAKSHMI, D/O.NARAYANAN, PUTHENKALATHIL HOUSE, THONNURKARA VILLAGE, THALAPPILLY TALUK. 9. PARU, W/O. VELAYUDHAN, PUTHANKALATHIL HOUSE, THONNURKKARA VILLAGE, THALAPPILLY TALUK. (DELETED) 10. BHASKARAN, S/O.VELAYUDHAN PUTHANKALATHIL HOUSE, THONNURKKARA VILLAGE, THALAPPILLY TALUK. 11. GOPALAKRISHNAN, S/O.VELAYUDHAN, PUTHANKALATHIL HOUSE, THONNURKKARA VILLAGE, THALAPPILLY TALUK. 12. MOHANAN, S/O.VELAYUDHAN, PUTHENKALATHIL HOUSE, THONNURKKARA VILLAGE, THALAPPILLY TALUK. 13. RADHAKRISHNAN, S/O.VELAYUDHAN, PUTHENKALATHIL HOUSE, THONNURKKARA VILLAGE, THALAPPILLY TALUK. 14. DEVAKI, S/O.VELAYUDHAN, PUTHEMKALATHIL HOUSE, THONNURKKARA VILLAGE, THALAPPILLY TALUK. (RESPONDENT NO. 9 IS DELETED FROM THE PARTY ARRAY AS PER ORDER DATED 27.09.2005 IN I.A. NO. 2723/2005) ADV. MR. RENJITH THAMPAN FOR R1 TO R7 MS. P.A.ANITHA FOR R1 TO R7 THIS FIRST APPEAL FROM ORDERS HAVING BEEN FINALLY HEARD ON 22/06/2009, THE COURT ON 25/06/2009 PASSED THE FOLLOWING: V. RAMKUMAR , J. ========================== F.A.O. No. 3 of 2004 ========================== Dated this the 25th day of June, 2009. JUDGMENT Defendants 1 to 4 in O.S. No. 57 of 1978 on the file of the Munsiff's Court, Wadakanchery are the appellants in this appeal filed under Order 43 Rule 1(u) C.P.C. As per the impugned judgment dated 26.08.2003, the lower appellate court (District Judge, Thrissur) set aside the order dated 25.01.2000 passed by the trial court and remanded the case back to the trial court for fresh disposal of I.A. No. 141 of 1993 filed by the plaintiffs for the passing of a final decree and directed the trial court to pass a final decree in terms of the preliminary decree. 2. Even though the impugned order is only a remand order passed by the lower appellate court, since an appeal therefrom would partake the character of a second appeal attracting the rigor under Section 100 C.P.C, as laid down in Narayanan v. Kumaran (2004(4) SCC 26) by the Apex F.A.O. No. 3/2004 : 2 : Court on 16.03.2004, the memorandum of appeal ought to have formulated the substantial question of law. But since this appeal was filed as early as on 05.01.2004, the appellant could not have anticipated the necessity of formulating a substantial question of law nor did this Court while admitting this appeal on 20.01.2004 call upon the appellant to formulate any substantial question of law. This appeal was thus admitted without formulating any substantial question of law. Hence this Court during the course of hearing, heard both sides on the following substantial question of law:- Is not the judgment of the lower appellate court contrary to the terms of the remand order passed by this Court in C.R.P. No. 1016/1997 and has not the lower appellate court gone wrong in reversing the order passed by the trial court? 3. The facts leading to the impugned remand order can be summarised as follows:- A. One Ayyaru was the common ancestor of the plaintiffs and defendants. F.A.O. No. 3/2004 : 3 : He had three sons by name Sanku, Achuthan and Kunhunni. The 1st plaintiff in the suit was the said Achuthan and plaintiffs 2 to 7 are the children of the said Achuthan. Sanku, the eldest son of Ayyaru had three children Narayanan, Velayudhan and Lakshmi. The 1st defendant Nani is the widow of Narayanan and defendants 2 to 4 are their children. Achuthan and Kunhunni who were the younger sons of Ayyaru were sharing a common wife. That was at a time when polyandry was in vogue in that part of the State. B. The plaint schedule property having an extent of 1.55 acres with two residential building thereon, was acquired in the name of Ayyaru and his eldest son F.A.O. No. 3/2004 : 4 : Sanku. On the death of Ayyaru, his three sons Sanku, Achuthan and Kunhunni executed a partition deed dated 7th Edavam 1117 ME corresponding to the year 1942 in respect of the other properties left behind by Ayyaru. The plaint schedule property was not the subject matter of the said partition deed. The half right of Ayyaru over the plaint schedule property, upon his death devolved equally on his children Sanku, Achuthan and Kunhunni. But since Sanku had the other half right over the property, with the death of Ayyaru, Sanku got 2/6 shares through inheritance in addition to his half right over the property and Achuthan and Kunhunni each got 2/6 shares. F.A.O. No. 3/2004 : 5 : C. The suit was filed by Achuthan and his 7 children seeking partition and recovery of possession of their 2/6 shares over the plaint schedule property. D. The suit was resisted by defendants 1 to 4 who are the children of Narayanan, the eldest son of Sanku contending inter alia that the plaintiffs were not entitled to any share over the property, that the disputes in the family of Ayyaru were settled through the intervention of mediators resulting in the execution of Ext.B1 compromise deed dated 27.03.1981 and the suit was compromised and in accordance with the compromise, Ext.A1 preliminary decree was passed on 28.03.1981 allotting 2/6 shares to the plaintiffs. On the same day, F.A.O. No. 3/2004 : 6 : Ext.B2 family settlement deed dated 27.03.1981 was executed by plaintiffs 1 to 3, 5, 6 and 8 to sell the plaintiffs' 2/6 shares over the suit property to the defendants. E. 12 years after Ext.A1 preliminary decree dated 28.03.1981 the plaintiffs filed I.A. No. 141 of 1993 before the trial court for the passing of a final decree. F. I.A. No. 141 of 1993 was opposed by the appellants/defendants 1 to 4 contending inter alia that the disputes in the family were settled through mediation resulting in Ext.B1 compromise petition dated 27.03.1981 filed in court, that the plaintiffs by another agreement (Ext.B2) executed on 27.03.1981, had agreed to sell their 2/6 shares to the defendants F.A.O. No. 3/2004 : 7 : within two years, that, since plaintiffs 4 and 7 namely Ayyar and Balan were not available in station, Ext.B2 agreement was signed by the available plaintiffs and their counsel and in view of the aforesaid compromise followed by Ext.B2 agreement the plaintiffs had no right to get a final decree passed and that I.A. No. 141/1993 was barred by limitation as well as non-joinder of necessary parties. G. The plea of non-joinder was subsequently rectified by joining the necessary parties. H. As per order dated 11.12.1996 the trial court held that Ext. B2 agreement was unenforceable due to two reasons – firstly that it was not signed by plaintiffs 4 and 7 (Ayyar and Balan) and F.A.O. No. 3/2004 : 8 : secondly that the said agreement executed on 27.03.1981 was superseded by Ext.A1 preliminary decree passed on 28.03.1981 and also held that Ext.B2 agreement could not be treated as a family settlement. The trial court accordingly held that the final decree application filed by the plaintiffs was maintainable. I. Aggrieved by the said order, the appellants herein, viz. defendants 1 to 4 filed C.R.P. No. 1016 of 1997 before this Court. The said C.R.P was finally heard and disposed of on 20.07.1998. In the course of the order, this Court placing reliance upon the decisions of the Apex Court in Tek Bahadur Bhujil v/s Debi Singh Bhujil and others – AIR 1966 SC F.A.O. No. 3/2004 : 9 : 292 and Taraknath and another v/s Sushil Chandra Dey by L.Rs and others – (1996) 4 SCC 697, held that Ext.B2 agreement was in the nature of a family settlement or a family arrangement entered into for the purpose of the well being and harmony in the family. Adverting to the reason given by the trial court that Ext.B2 agreement was superseded by Ext.A1 preliminary decree, this Court observed as follows:- “The next point raised by the court below is that Ext.B2 agreement was on 27.03.1981 whereas the compromise decree was passed on 28.03.1981. Hence, according to the court below, the subsequent passing of the preliminary decree shows that Ext.B2 has been given a go bye. It is open to the parties to effect amicable partition and no instrument even, that is, no writing is necessary for the purpose. The mere existence of a decree specifying the shares and even the allotments of the parties, does not take away their above right, though its exercise may have to be regulated by or made in accordance with it. Until F.A.O. No. 3/2004 : 10 : and unless there has been a valid and effective partition, this right of the parties subsists. In Re: Kalipada Sadhukhan – AIR 1982 Calcutta 376 – the Calcutta High Court held as follows:- “Unless there is a final decree and an allotment in favour of the petitioner, the petitioner cannot become the sole and exclusive owner of the portion transferred to him – so unless there is an allotment in favour of the petitioner, he continues to be the joint owner and in joint possession of the entire dwelling house”. The court further quoted from Gour Chandra Ghosh v. Prasanna Das – (1961) 65 Cal. WN 743 – which is as follows:- “The parties therefore, when they make an actual division by taking possession by metes and bounds according to the allotments, mentioned in the sale decree (Ext.13), effect in law, a partition on those terms, amicably and without writing, and this will be an effective partition in law as between them conferring title to the respective allotments”. Thus, it is clear that at the preliminary stage, it cannot be said that a family arrangement cannot be made.” F.A.O. No. 3/2004 : 11 : This Court, however, found that the family arrangement has to be fair and should not be one entered into on the basis of coercion and observed that it was to be proved whether plaintiffs 4 and 7 who were not parties to Ext.B2 agreement, had consented to the execution of the said agreement. Accordingly, the case was remanded to the trial court. J. After the above remit, PW1 and RW1 were recalled and further examined. Thereafter, as per order dated 25.01.2000, the trial court held that in the light of the testimony of the 4th plaintiff examined as PW1 to the effect that at the relevant time he was at Gulf, that it was after contacting him over the telephone that the father filed the compromise F.A.O. No. 3/2004 : 12 : petition and that the father never acted against the interests of any of the children and taking into account the fact that the plaintiffs had never disputed the genuineness of Ext.B2 agreement for nearly 12 years, I.A. No. 141 of 1993 filed by the plaintiffs for the passing of a final decree was misconceived and accordingly dismissed the said application. K. On appeal preferred by the plaintiffs as A.S. No. 182 of 2000 before the District Court, Thrissur, that court has now reversed the order passed by the trial court and has remanded the case to the trial court directing that court to pass a final decree in terms of the preliminary decree. It is the said judgment which is F.A.O. No. 3/2004 : 13 : assailed in this appeal by defendants 1 to 4. 4. I heard the learned counsel appearing for the appellants as well as the contesting respondents. 5. The learned counsel appearing for the contesting respondents/plaintiffs made the following submissions before me in support of the impugned judgment:- Ext.B2 is not a valid agreement since plaintiffs 4 and 7 were admittedly not signatories to the said agreement. Signature of their counsel alone is not enough to bind them. There is no whisper about Ext.B2 agreement in Ext.B1 compromise petition on the basis of which the suit was compromised and a preliminary decree was passed. Ext.B2 was not enforced for 12 years by the appellants. The defendants have not so far filed any suit for specific performance of Ext.B2 agreement dated 27.03.1981. Even though a family arrangement may be for the benefit of the family, before enforcing it, it must be proved that it was F.A.O. No. 3/2004 : 14 : validly entered into and the prescriptions thereunder are just and fair. (vide Potti Lakshmi Perumally v. Potti Krishnavenamma - AIR 1965 SC 825) Ext.B2 agreement cannot be called a family settlement. It is only an executory contract which has not been acted upon and Ext.A1 preliminary decree passed on the next day had superseded Ext.B2 agreement. The lower appellate court has come to the right conclusion which does not call for any interference at the hands of this Court. 6. I am afraid that I cannot agree with the above submissions. In the light of the decision of this Court in C.R.P. No. 1016 of 1997, it is no more open to the plaintiffs to contend that Ext.B2 is not a family settlement or a family arrangement or that it was superseded by Ext.A1 preliminary decree passed on 28.03.1981. The observations and findings in paragraph 8 of the order in C.R.P as extracted above will clearly indicate that Ext.B2 is in the nature of a family settlement and that the terms and F.A.O. No. 3/2004 : 15 : conditions therein will be binding on the parties and the agreement is unaffected by the passing of a preliminary decree merely declaring the shares of the parties unless there has been a final decree and effective partition by metes and bounds. If Ext.B2 agreement was bad for the reason that it did not contain the signatures of the 4th and 7th plaintiffs, then Ext.B1 compromise petition also suffer from the same vice and the preliminary decree passed on that basis was also not valid in law. The only purpose for which the matter was remanded by this Court to the trial court was to consider whether Ext.B2 agreement was entered into with the consent of plaintiffs 4 and 7 namely Ayyar and Balan. Ayyar himself was examined as PW1 and he deposed before court that before filing the compromise petition, his father had contacted him over the telephone in Gulf where he was employed. PW1 further deposed that the 7th plaintiff (Balan) was at Sharja. The testimony of PW1 will show that it was after obtaining his consent that the F.A.O. No. 3/2004 : 16 : father executed Ext.B2 agreement. Likewise, it is a matter of inference that Achuthan who was on cordial terms with all his children would have taken the consent of the 7th plaintiff (Balan) as well. Balan, however, avoided the witness box. The trial Judge who had the unique advantage of seeing the witnesses and assessing their credibility, had no difficulty to hold that Ext.B2 agreement was executed either with the express or tacit consent of plaintiffs 4 and 7 as well. The 4th plaintiff examined as PW1 had clearly deposed that all the children of his father Achuthan were on very cordial terms with the father and that his father would not and did not do anything against the interests of PW1 or his brother, Balan. When the non-signatories to Ext.B2 were thus consenting parties to the decision recorded in Ext.B2 agreement which was signed by their counsel, absence of their signatures will not invalidate Ext.B2 agreement. (See Munna Lal v/s. Suraj Bhan - AIR 1975 S.C 1119). If so, Ext.B2 agreement which was held to be a F.A.O. No. 3/2004 : 17 : family settlement by this Court in the earlier C.R.P, was lawfully executed with the express or tacit consent of plaintiffs 4 and 7 as well. The other plaintiffs are admittedly signatories to Ext.B2. The 1st signatory is none other than Achuthan, the father. That apart, the counsel who was appearing for all the plaintiffs is also a signatory to both Exts. B1 and B2. Ext.B2 agreement specifically recites that a compromise petition is being filed in court in O.S. No. 57 of 1978. It is pertinent to remember that both Ext.B2 agreement as well as Ext.B1 compromise petition are executed on the same day ie., on 27.03.1981. Even though Ext.A1 preliminary decree was passed only on the next day, the father Achuthan is admittedly an executent in both Ext.B2 agreement as well as in Ext.B1 compromise petition. This Court while disposing of the C.R.P had dealt with and rejected the contention of the plaintiffs that Ext.B2 agreement was superseded by Ext.A1 preliminary decree. Hence it is no more open to the plaintiffs to contend that F.A.O. No. 3/2004 : 18 : Ext. B2 agreement cannot survive after Ext.A1 preliminary decree. On the contrary, Ext.B2 agreement got strengthened by Ext.A1 preliminary decree after which alone the shares of parties became crystalised. Ext.A1 preliminary decree will have the effect of feeding the grant by estoppel so far as Ext.B2 agreement is concerned. 7. It may be true that the defendants who are entitled to the 2/6 shares of the plaintiffs under Ext.B2 agreement, did not enforce the same. But then, the conduct of the plaintiffs in not filing a final decree application for 12 years goes a long way to strengthen the stand taken by the appellants/defendants. Even in equity, the plaintiffs who had voluntarily agreed to sell their 2/6 shares to the defendants, should not be allowed to resile from that stand. It is pertinent to note that the plaintiffs have chosen to file the present application for the passing of a final decree only after the death of their father Achuthan. If Achuthan were alive, the plaintiffs would not have dared to file the final F.A.O. No. 3/2004 : 19 : decree application. The failure on the part of the defendants to enforce Ext.B2 agreement is of no consequence. It is well settled that no registered document is necessary for one co-owner to release his fractional share in favour of another co-owner (vide paragraph 9 of Mary George v. Lilly – 2009 (1) KLT 265). Such being the position, the trial court was fully justified in dismissing I.A. No. 141 of 1993. The lower appellate court has egregiously erred in entertaining I.A. No. 141 of 1993 and directing the trial court to pass a final decree in conformity with the preliminary decree. The judgment and decree passed by the lower appellate court is set aside and the order passed by the trial court is restored. The substantial question of law as formulated above is answered in favour of the appellants. This appeal will stand allowed as above. However, there shall be no order as to costs. Dated this the 25th day of June, 2009. V. RAMKUMAR, JUDGE. F.A.O. No. 3/2004 : 20 : rv