IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN MONDAY, THE 5TH JULY 2010 / 14TH ASHADHA 1932 AS.No. 589 of 2000(E) ------------------------------- OS.873/1995 of II ADDL.M.C.,THRISSUR .................... APPELLANT(S): IST AND 3RD DEFENDANTS: ----------------------- 1. THULASI AMMAL, W/O. VANIYAN VELAYUDHAN CHETTIAR PATTURAKKAL, THRISSUR VILLAGE, THRISSUR TALUK RESIDING AT KOTTIL VALAPPIL LANE, KOTTAPPURAM. 2. SATHYAMURTHI, S/O. LATE VELAYUDHAN CHETTIAR & IST DEFENDANT, DO. DO. BY ADV. SRI.D.ANIL KUMAR RESPONDENT(S): PLAINTIFF & DEFENDANTS 2,4,5,6,7 & 8 -------------------------- 1. RAJESWARAN, S/O. VENIYAN VELAYUDHAN CHETTIAR, KANATTUKARA DESOM, THRISSUR VILLAGE, THRISSUR TALUK. 2. RADHAKRISHNAN, S/O. IST DEFENDANT AND LATE VELAYUDHAN CHETTIAR, PATTURAKKAL THRISSUR VILLAGE, THRISSUR TALUK, RESIDING AT KOTTIL VALAPPIL LANE, KOTTAPPURAM. 3. SREENIVASAN, S/O. IST DEFENDANT AND LATE VELAYUDHAN CHETTIAR, DO. DO. 4. BALASUBRAMANIAN, S/O. IST DEFENDANT AND LATE VELAYUDHAN CHETTIAR DO. DO. A.S. NO.589/2000 5. BHAGYALAKSHMI, D/O. IST DEFENDANT AND LATE VELAYUDHAN CHETTIAR, DO. DO. 6. SREEDEVI, D/O. IST DEFENDANT AND LATE VELAYUDHAN CHETTIAR , DO. DO. 7. SANTHAKUMARI, D/O. IST DEFENDANT AND LATE VELAYUDHAN CHETTIAR, DO. DO. BY SRI.K.P.DANDAPANI, SENIOR ADVOCATE THIS APPEAL SUITS HAVING BEEN FINALLY HEARD ON 05/07/2010 , THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ORDER ON CMP. NO.5584/2000 IN AS. NO.589/2000 DISMISSED 05/07/2010 SD/- M.N.KRISHNAN, JUDGE TRUE COPY P.A. TO JUDGE tss M.N. KRISHNAN, J. = = = = = = = = = = = = = = = A.S. NO. 589 OF 2000 = = = = = = = = = = = = = = = Dated this the 5th day of July, 2010. J U D G M E N T This appeal is preferred against the judgment and decree passed by the Subordinate Judge, Thrissur in O.S.873/95. The suit for partition is filed by one of the children of Velayudhan Chettiar. The first defendant is the mother of defendants 2 to 8. Or in other words plaintiff and D2 to D8 are the children of Velayudhan Chettiar and D1 is his widow. A suit for partition is filed with respect to six schedules of property, i.e. A to F. The contesting defendants namely defendants 1 to 3 and 8 had raised the contention with respect to the properties mentioned in paragraph 2 of the written statement contending that there had been an agreement between the sharers on 2.1.91 as A.S. 589 OF 2000 -2- per which the other sharers have relinquished their right in favour of the 2nd defendant Radhakrishnan. The signatories to the written statement are D1, Thulasi Ammal, D4 Sreenivasan and D8 Santhakumari. As per paragraph 2 it is submitted the shop room in Patturakkal junction and Krishnaji Stores are not partible. It is contended that those properties are released in favour of 2nd defendant. 2. The next contention is with respect to E schedule which is a land acquisition compensation amount. It is contended that the first defendant got only Rs.4,50,000/- after deducting the advocate's fees etc. and of which one half belonged to D1 exclusively and when the other half is equally divided into 9 the plaintiff will be entitled to only Rs.26,763/- and that has been paid. The F schedule is also A.S. 589 OF 2000 -3- said to be not partible as per the extraction in the judgment. 3. Now let me first deal with the contention with respect to the property described in D schedule. Admittedly it belonged to Velayudhan Chettiar, on his death it had devolved upon his legal representatives. It is not disputed. The contention is that the legal representatives of Velayudhan Chettiar had executed an agreement whereby the property mentioned in Ext.B3 is set apart to Sri. Radhakrishnan and therefore that property is not partible. The plaintiff and the other defendants do not admit the execution of Ext.B3. Ext.B3 is an unregistered agreement purporting to be a surrender deed executed by the legal representatives of Velayudhan Chettiar other than D2 in favour of D2. It is also recited A.S. 589 OF 2000 -4- that the consideration for the said release is Rs.62,300/-. The plaintiff has totally denied execution of Ext.B3. He had denied his signature in Ext.B3. There are two attesting witnesses to the document and those witnesses had not been examined by the contesting defendants. No step is also seen taken in order to compare the signatures of the plaintiff with that in Ext.B3. Further it has also to be stated when there is a release of property for more than Rs.100/- value it is a compulsory registrable document and without registration it will not confer title on the person by that document. It may be a case at the most it can be used for collateral purposes. But as far as this case is concerned the execution of Ext.B3 is not properly proved and so that also does not arise. So the learned trial judge held that A.S. 589 OF 2000 -5- Ext.B3 cannot be said to be proved in this case. When it is so then the plaintiff and other defendants certainly shall have right over the property and therefore the finding with respect to D schedule does not call for any interference. 4. Now we consider about E schedule. E schedule is with respect to apportionment of amount received as compensation from the Land Acquisition Authority. It is for Rs.6,20,931/-. The property stood in the name of Velayudhan Chettiar and D1. So the trial court found that out of this Rs.6,20,931/- even if Rs.20,931/- is set apart for the purpose of advocate's fees etc. six lakhs would be available out of which Rs.3 lakhs belonged to the half share of the mother and the remaining three lakhs is then have to be divided into nine and each sharer A.S. 589 OF 2000 -6- will be entitled to Rs.33,331/- out of which only Rs.26,763/- is seen paid to the plaintiff. So the Court held that an amount of Rs.6,570/- is liable to be paid to the plaintiff towards share under the Land Acquisition amount. Learned counsel would contend that there is a receipt Ext.B1 which is issued by an advocate wherein 15% is taken as his fees for the Land Acquisition compensation. It is not proved in the manner which is to be proved. Therefore reliance cannot be placed on Ext.B1 for the said purpose. So after deducting her half share when three lakhs is divided the Court below was right in holding that the plaintiff is entitled to an amount of Rs.6,570/-. 5. So far as the F schedule property is concerned though the Court below has considered it and held that it is partible I do not find A.S. 589 OF 2000 -7- any contention in the written statement regarding the non-partibility of the movables described in F schedule. Therefore it does not call for any interference as there is no dispute among the sharers regarding the partibility of the movables shown in the F schedule. When it is so it has to be held that there is nothing to interfere with the decision rendered by the Subordinate Judge and therefore the judgment and decree do not call for any interference and the appeal is therefore dismissed but under the circumstances without any order as to costs. M.N. KRISHNAN, JUDGE. ul/- A.S. 589 OF 2000 -8- M.N. KRISHNAN, J. = = = = = = = = = = A.S. No. 589 OF 2000 = = = = = = = = = = = J U D G M E N T 5th July, 2010.