A.C. Devaraj and A.C. Ramesh v. Thamburan Padikkal Meenakumari and A.C. Krishnadas

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR. JUSTICE A.HARIPRASAD** **MONDAY, THE 29TH DAY OF JANUARY 2018 / 9TH MAGHA, 1939** ## **RSA.No. 745 of 2016** **AGAINST THE JUDGMENT & DECREE DATED 31-03-2016 IN AS 20/2015 of ADDITIONAL DISTRICT COURT, KOZHIKODE** **AGAINST THE JUDGMENT & DECREE DATED 27-11-2014 IN OS 486/2014 of ADDITIONAL MUNSIFF COURT, KOZHIKODE-I** ## **APPELLANTS/APPELLANTS/PLAINTIFFS** ## **1 A.C.DEVARAJ, AGED 65,** **S/O.C.KUMARAN, MELE MADAM, GOVINDAPURAM, VALAYANAD AMSOM DESOM, KOZHIKODE TALUK-673016.** ## **2 A.C.RAMESH,AGED 62 YEARS,** **S/O.C.KUMARAN, OLOPPARA, CHELANNUR VILLAGE, CHELANNUR AMSOM DESOM, KOZHIKODE TALUK-673616.** **BY ADV.SRI.SRINATH GIRISH** ## **RESPONDENTS/RESPONDENTS/DEFENDANTS:** **1. THAMBURAN PADIKKAL MEENAKUMARI, AGED ABOUT 53, THAMBURAN PADIKKAL,VALAYANAD AMSOM DESOM, KOZHIKODE TALUK-673011.** **2. A.C.KRISHNADAS,AGED 67 YEARS,** - **S/O.C.KUMARAN, PUTHIYEDATH THAZHAM, KAKKODI VILLAGE, PADINHATTUMMURI AMSOM DESOM, KOZHIKODE TALUK-673611.** **R1 BY ADVS. SRI.V.V.SURENDRAN SRI.P.A.HARISH** **THIS REGULAR SECOND APPEAL HAVING BEEN FINALLY HEARD ON 29-01-2018, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ## **A. HARIPRASAD, J.** ## **------------------------------R.S.A.No745 of 2016** ## **---------------------------------------------Dated this the 29[th ] day of January, 2018** ## **JUDGMENT** This second appeal is filed by the plaintiffs in a partition suit defeated successively in the courts below. 2. Heard the learned counsel for the appellants and 1[st] respondent. 3. This appeal is admitted on the following substantial questions of law: - 1.Whether the courts below are justified in applying the prohibition in Section 92 of the Evidence Act only partly to the consideration portion in Ext.B2 and not extending it to the recitals as to title therein? - 2.Whether the 1[st] appellate court did act against the procedure laid down in Order 41, Rule 27, 28 and 29 C.P.C., by accepting the additional documents produced beforehand without taking evidence thereon directly or remanding it for the said purpose at the time of the hearing of the appeal on merit? **RSA No.745/2016** **2** ## 4. Brief facts are as follows: There are two items in the plaint schedule sought to be partitioned. First item originally belonged to one Achuthan. Second item in the plaint schedule belonged to Achunthan's mother Devi. After her death, the property devolved on Achuthan and his brother Karunakaran. Later, Karunakaran, by way of a registered release deed, released his rights in respect of Item No.2 to Achuthan. Subsequently Achuthan died. His sole legal heir was son Jayaprakash. He died as a bachelor. Admittedly, Jayaprakash's mother's sister Ratna was the only legal heir entitled to succeed to the properties as per the provisions of Section 8 of the Hindu Succession Act, 1956. Plaintiffs and 2[nd] defendant are the children of Ratna, who died subsequently. During the life time of Ratna, she, along with four children of deceased Karunakaran, executed Ext.B2 sale deed in favour of one Purushothaman. Ext.B2 is dated 21.7.1993. Subsequently, Purushothaman's legal heirs assigned the properties in favour of the 1[st] defendant, as per Ext.B11 document, in the year 1999. 5. Case of the plaintiffs is that their mother Ratna was **RSA No.745/2016** **3** under a bonafide belief that she had only 1/5[th] right over the property at the time when she made Ext.B2 assignment in favour of Purushothaman. She was mislead by the children of Karunakaran, who also joined the deed without any legal right. It is therefore the case of the plaintiffs that their mother had not assigned all her rights in the property to Purushothaman and therefore, they are entitled to get a partition. 6. The 1[st] defendant opposed the suit. According to the averments in the written statement, Karunakaran's children were made parties to Ext.B2 document to avoid any possible future dispute. At the time of Ext.B2 assignment, they were residing in a house situated in Item No.2 in Ext.B2. Ratna had assigned all her rights and the suit for partition is not maintainable. 7. Learned counsel for the plaintiffs contended that the courts below erred in dismissing the suit finding that Ratna had transferred all her rights in the property as per Ext.B2 in favour of Purushothaman. It is also submitted that reliance was wrongly placed on Section 8 of the Transfer of Property Act, 1882 (in short, the T.P.Act). The Section reads as follows: **RSA No.745/2016** **4** Operation of transfer.- Unless a different intention is expressed or necessarily implied, a transfer of property passes forthwith to the transferee all the interest which the transferor is then capable of passing in the property and in the legal incidents thereof. Such incidents include, where the property is land, the easements annexed thereto, the rents and profits thereof accruing after the transfer, and all things attached to the earth; and, where the property is machinery attached to the earth, the movable parts thereof; and, where the property is a house, the easements annexed thereto, the rent thereof accruing after the transfer, and the locks, keys, bars, doors, windows, and all other things provided for permanent use therewith; and, where the property is a debt or other actionable claim, the securities therefor (except where they are also for other debts or claims not transferred to the transferee), but not arrears of interest accrued before the transfer; and, where the property is money or other property yielding income, the interest or income thereof accruing after the transfer takes effect. 8. It is evident from the Section that a transfer of property passes forthwith to the transferee all the interest which the transferor was then capable of passing in the property and **RSA No.745/2016** **5** the legal incidents thereof, unless a different intention is expressed or necessarily implied from the transfer. 9. On a perusal of Ext.B2 assignment deed, it can be seen that title to the property has been traced in detail. It is also mentioned in Ext.B2 that Karunakaran (predecessor in title of executants 1 to 4 in Ext.B2) had released his rights in favour of his brother Achuthan. After having stated so, the children of Karunakaran were made to join the assignment deed perhaps with a view to avoid future complications. It is the contention of the 1[st] defendant that Purushothaman insisted on their joining the document to avoid a future dispute because they were residing in a house in Item No.2 in Ext.B2. Further, they had obtained a legal heirship certificate after the death of Jayaprakash showing that they were entitled to inherit his properties. Regarding residence of Karanakaran's children in Item No.2 in Ext.B2 property, the plaintiffs opposed the contention by contending that Karunakaran himself was residing far away from the properties. However, the fact remains that they joined the document and assigned their right, if any, in favour of Purushothaman. **RSA No.745/2016** **6** 10. On a perusal of Ext.B2, it is not possible to discern that plaintiffs' mother Ratna had, either expressly or impliedly, reserved any right as envisaged under Section 8 of the T.P.Act. On a reading of Ext.B2, it will be clear that all the five persons, asserting right over the property, had assigned whatever right that was capable of being assigned at that point in time. If executants 1 to 4 had no right over the property at the time of executing Ext.B2 document, their inclusion in the document will have no legal effect. At any rate, for that reason, it cannot be contended that the 5[th] executant Ratna had reserved any right as per Ext.B2 for claiming a partition. 11. The aspect has been properly considered by the courts below. The decisions relied on by the learned counsel for the plaintiffs reported in **Rajagopal Pillai v. Pakkiam Ammal [AIR 1975 SC 895] and Janaki Dulari v. Kapildeo Rai [AIR** **2011 SC 2521]** can be easily distinguished on facts. In both cases, the trasferors were having different rights than what was transferred by the impugned documents. In this case, Ratna was the absolute owner of the property by virtue of the aforementioned provisions in the Hindu Succession Act. Merely **RSA No.745/2016** **7** because persons having no right were included in the document, that ipso facto will not take away the application of Section 8 of the T.P.Act. Therefore, the decision of the courts below on this point cannot be found fault with. 12. Another infirmity is regarding the frame of suit. The suit is one for partition simplicitor. Whether such a suit is maintainable, is a question to be decided at the appropriate time. Further, non-impleadment of the legal heirs of Purushothaman and Karunakaran is fatal to the suit for the reason that an adjudication with them on party array is highly essential. 13. Learned counsel for the plaintiffs raised a complaint that the lower appellate court did not properly exercise the jurisdiction vested in it under Order 47 Rule 27 CPC. According to him, the documents produced before the lower appellate court would probabilise the case of the plaintiffs that Karunakaran's children raised claims in respect of insurance money due to deceased Jayaprakash. It is further contended by the learned counsel that these documents would show that they misrepresented the facts and made Ratna to believe that she **RSA No.745/2016** **8** had only a fractional right. However, even if I find that the lower appellate court did not correctly apply the principle in Order 47 Rule 27 CPC, I am afraid the suit cannot be saved for the aforementioned reasons. 14. Learned counsel for the 1[st] respondent contended that the assignment in favour of Purushothaman was in the year 1993 and after his death, his legal heirs assigned the property to the 1[st] respondent in the year 1999. The suit was filed in the year 2014. It is therefore contended that the suit is barred by limitation. In answer to this contention, learned counsel for the plaintiffs argued that in the plaint and at the time of evidence, there is a case for the plaintiffs that profits were shared within a period of twelve years from the date of Ext.B2 assignment. Merely on that evidence, I do not find any reason to sustain a suit for partition simplicitor with the averments now raised in the plaint. After hearing the learned counsel on both sides and on perusal of the records, I find that even without relying on the principle in Section 92 of the Evidence Act, it can be held that dismissal of the suit concurrently was legally justifiable. Hence, **RSA No.745/2016** **9** the substantial questions of law framed are decided against the appellants/plaintiffs. In the result, the appeal is dismissed. All pending interlocutory applications will stand dismissed. SD/- **A. HARIPRASAD JUDGE** JV