A. Baiju v. Sasidharan, Ramachandran, Mahaprasad C. L, Manikandanatha Prasad C. L and IkIyapradayini Trust

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE A.M.BABU** **TUESDAY, THE 30TH DAY OF JULY 2019 / 8TH SRAVANA, 1941** ## **RSA.No.969 of 2018** **AS 21/2013 of SUB COURT, ATTINGAL** **OS 211/2007 of MUNSIFF COURT,ATTINGAL** ## **APPELLANT/2ND RESPONDENT/2ND DEFENDANT** **A.BAIJU AGED 46 YEARS S/O GOPALAN, GOKULAM VILLA, PUTHUPPARAM. P.O., VADAKARA, KOZHIKKODU DISTRICT, GURUKRIPA, THAZHMANKONAM.** **BY ADVS. SRI.LIJU.V.STEPHEN KUM.PRIYANKA JOSE SMT.INDU SUSAN JACOB SRI.ABDUL KARIM** ## **RESPONDENTS/APPELLANTS, 1ST RESPONDENT/PLAINTIFFS/1ST** ## **DEFENDANT** |**ANT**|| |---|---| |**1**|**SASIDHARAN, AGED 53 YEARS**| ||**S/O VASUDEVAN, V.S. NIVAS, KOONTHALLOOR,**| ||**CHIRAYINKEEZHU - 695304**| |**2**|**RAMACHANDRAN,**| ||**S/O.VASUDEVAN, AGED 58 YEARS, POTHAKUZHY VEEDU,**| ||**SARKARA, CHIRAYINKEEZHU, NOW AT NO.1, BALUSHEEL**| ||**OLD LASHERMENT, CHEENAI-600021.**| |**3**|**MAHAPRASAD.C.L,**| ||**S/O.CHELLAPPAN, AGED 52 YEARS, VATTAMUDUMPIL**| ||**HOUSE, PARAVOOR, CHIRAYINKEEZHU POST,**| ||**THIRUVANANTHAPURAM DISTRICT-695304.**| **RSA.969/2018** 2 |**4**|**MANIKANDANATHA PRASAD.C.L.,**| |---|---| ||**S/O.CHELLAPPAN, AGED 41 YEARS,**| ||**PUTHUKUDEIYERAPPU, ANJUGRAMAM POST, KANYAKUMARI**| ||**DISTRICT, TAMILNADU-629401.**| |**5**|**IKIYAPRADAYINI TRUST NO.579/84,**| ||**AYIROOR, REPRESENTED BY ITS**| ||**SECRETARY.P.K.SUKUMARAN, S/O.KESAVAN, AGED 69**| ||**YEARS, RESIDING AT POORNA, MURRAPPALAM DESOM,**| ||**MUTTAPPALAM-695145.**| ||**BY ADV. SRI.J.JAYAKUMAR**| **THIS REGULAR SECOND APPEAL HAVING BEEN FINALLY HEARD ON 26.7.2019, THE COURT 30.07.2019 DELIVERED THE FOLLOWING:** **RSA.969/2018** 3 ## JUDGMENT 1. The suit was for partition. The trial court dismissed it. The lower appellate court allowed the appeal filed by the plaintiff and passed a preliminary decree. The second defendant is in second appeal. 2. Heard Sri.T.Krishnanunni, the learned senior counsel for the appellant/second defendant. 3. Admittedly the suit property was held by one Vallinachi. She had taken assignment of the mortgage in the suit property in 1958 under Ext A1 mortgage assignment deed. Admittedly she became the absolute owner of the property as the right of redemption of the mortgagee was barred by the law of limitation. Vallinachi died intestate leaving behind eight children including Vasudevan, Chellappan and Bhanu. Plaintiffs 1 and 2 are the children of Vasudevan and plaintiffs 3 and 4 are the **RSA.969/2018** 4 children of Chellappan. As such, they claimed partition of the suit property. 4. The case of the plaintiffs that two of them are the children of Vasudevan and the other two are the children of Chellappan was not specifically denied in the written-statement. The contention was only that the plaintiffs should establish their relationship with Vasudevan and Chellappan. This was not a specific denial within the meaning of order VIII rule 5 of CPC. The learned appellate judge rightly stated so. The appellate court found that plaintiffs 1 and 2 are the children of Vasudevan and that the other plaintiffs are the children of Chellappan. This finding is not disputed in the memorandum of appeal put in the second appeal. 5. As Vallinachi died intestate, her estate devolved upon her eight children including Vasudevan, Chellappan and Bhanu. Plaintiffs 1 and 2 inherited the 1/8 share of **RSA.969/2018** 5 Vasudevan and plaintiffs 3 and 4 inherited the 1/8 share of Chellappan which Vasudevan and Chellappan had in the suit property at the time of their demise. Therefore the plaintiffs are entitled to seek partition of the suit property for separation of their legitimate share. If they are not entitled to get the suit property partitioned, the defendants should say why are they not entitled to it. 6. Bhanu died unmarried and issueless. It appears that Bhanu executed a sale deed in favour of the first defendant. The second defendant is the assignee under the first defendant. The defendants did not produce the sale deed executed by Bhanu. However, the plaintiffs are not claiming any right Bhanu had in the property. Whatever be the recitals in the sale deed relied on by the defendants, Bhanu could not sell more than the undivided interest he had. The sale deed executed by him binds the plaint schedule property only to the extent of the undivided interest in the property Bhanu **RSA.969/2018** 6 had. The defendants cannot contend for exclusive title to the plaint schedule property on the strength of Exts A2 and A3 sale deeds executed by the other co-owners of the suit property. Neither the sale deed executed by Bhanu nor Exts A2 and A3 could affect the undivided interest of the plaintiffs in the property. The defendants did not have a contention touching adverse possession, limitation and ouster to defeat the title of the plaintiffs to the suit property. The defendants did not adduce any evidence. 7. The following are the questions formulated in the memorandum of appeal as substantial questions of law. (i) Whether the finding of the lower appellate court that the plaint schedule property is partible is correct ? (ii) Whether the lower appellate court erred in granting partition of the property which is admittedly in exclusive possession of the **RSA.969/2018** 7 appellant, without seeking recovery of possession of the property and paying the required court-fee as prescribed in the Kerala Court Fee and Stamp Valuation Act ? (iii) Whether a partition suit is allowable, without setting aside a registered sale deed executed by a co-owner transferring the entire title and possession over the alleged partible property ? (iv) Whether the lower appellate court failed to consider the fact that the court fee paid under Sn.37(2) is sufficient since the plaintiffs are admittedly not in joint possession of the plaint schedule property ? The above questions will be referred to hereafter as questions (i) to (iv). Question No.(i) is not a substantial question of law at all. 8. The defendants did not raise a contention that they were in possession of the suit property in exclusion of the plaintiffs or that the plaintiffs should seek recovery of possession also. The contention in the written- **RSA.969/2018** 8 statement was that the suit property was not liable to be partitioned since Bhanu executed a sale deed in favour of the first defendant. The defendants cannot be allowed to raise any contention in the second appeal which was not even thought of while filing the writtenstatement and contesting the suit. 9. The learned counsel for the appellant has relied on reported judicial pronouncements. In Manjushri Raha B.L.Gupta v. B.L.Gupta, Manjushri Raha (Laws 1977 (SC) 25), it is stated as follows : “Pleadings have to be interpreted not with formalistic rigour but with latitude or awareness of low legal literacy of poor people”. It is stated as follows in Madan Gopal Kanodia v. Mamraj Maniram (Laws 1976 (SC) 118) : - “It is well-settled that pleadings are loosely **RSA.969/2018** 9 drafted in the courts and the courts should not scrutinise the pleadings with such meticulous care so as to result in genuine claims being defeated on trivial grounds”. ## The apex court stated in Kedar Lal Seal v. Ban Lal Seal (Laws 1951 (SC) 127) thus : “I would be slow to throw out a claim on a mere technicality of pleading when the substance of the thing is there and no prejudice is caused to the other side, however clumsily or inartistically the plaint may be worded. In any event, it is always open to a court to give a plaintiff such general or other relief as it deems just to the same extent as if it had been asked for, provided that occasions no prejudice to the other side beyond what can be compensated for in costs”. The learned counsel relied on the following passage in State of Rajasthan v. Rao Raja Kalyan Singh (Laws 1971 ## (SC) 15) : “Though this issue is not very specific but **RSA.969/2018** 10 undoubtedly it covers the plea taken by the respondent in paragraph 1 of his writtenstatement. That apart the plea of maintainability of the suit is essentially a legal plea. If the suit on the face of it is not maintainable, the fact that no specific pleas were taken or no precise issues were framed is of little consequence”. The reported decisions cited by the learned counsel do not come to the aid of the appellant inasmuch as the present one is not a case of insufficiency of pleadings, but total absence of pleadings. That apart, the attempt has been to raise a technical plea for the first time at the stage of second appeal. Question No.(ii) in the memorandum of appeal is without any merit. 10. The defendants claim under a sale deed executed by Bhanu. As already seen, Bhanu could sell only his undivided interest. Even if he executed a sale deed selling the property as such, it would not bind the other co-owners. Those co-owners can just ignore the sale **RSA.969/2018** 11 deed and seek partition. It is not at all necessary to get the sale deed set aside. Therefore question No.(iii) in the memorandum of appeal is also without any merit. 11. Court-fees should be paid under sub-section (1) or (2) of the Court Fees and Suits Valuation Act depends upon the pleadings in the plaint. When joint possession is alleged and court-fees is paid under Sec.37 (2) of the said Act, the defendants who did not dispute the correctness of the court-fees paid would not be entitled to state for the first time in the second appeal that the court-fees paid was not correct. Therefore the question No.(iv) in the memorandum of appeal also goes. 12. The second appeal cannot be entertained on the strength of a bunch of technical contentions which were not raised at the appropriate time. Had any such contention been raised in the written-statement, it would have been possible for the plaintiffs to cure the **RSA.969/2018** 12 alleged defects. No substantial question of law is involved in the second appeal. It is devoid of merit. It deserves only a dismissal. ## 13. Dismissed. SD/- A.M.BABU Judge Mrcs/27.7.