A.S.No.88/2003, C.O.No.85/2003, R.F.A.Nos.565/2004 & 76/2005

# `IN THE HIGH COURT OF KERALA AT ERNAKULAM` ``` PRESENT ``` ``` THE HONOURABLE MR.JUSTICE T.V.ANILKUMAR ``` ``` MONDAY, THE 16TH DAY OF NOVEMBER 2020 / 25TH KARTHIKA, 1942 ``` ``` AS.No.88 OF 2003(D) ``` ``` AGAINST THE JUDGMENT AND DECREE DATED 29-06-2002 IN O.S.NO.25/1992 OF SUB COURT, CHERTHALA ``` ## `APPELLANT/PLAINTIFF:` ``` 1A.C.JOSEPH(DIED), S/O. LATE CHACKO, AGED 69, ARACKAPARAMBIL HOUSE, CHERTHALA P.O. ``` |`SUPPLEMENTAL`|<br>`LISSY,`| |---|---| |`A2`|`D/O.A.C.JOSEPH,`| ||`ARAKKAPARAMBIL HOUSE,`| ||`CHERTHALA.P.O.,`| ||`CHERTHALA NORTH MURI /VILLAGE,`| ||`REPRESENTED BY HER NEXT FRIEND HER AUNT`| ||`SR.ANN TREESA,`| ||`AGED 75 YEARS,`| ||`D/O.CHACKO,`| ||`ARAKKAPARAMBIL,`| ||`CHERTHALA.P.O.,`| ||`CHERTHALA NORTH MURI/VILLAGE`| ||`NOW MOTHER SUPERIOR,`| ||`F.C.CONVENT,`| ||`WARD NO.11,`| ||`THANNEMUKKUM.`| ``` SUPPLEMENTAL SECOND APPELLANT IS IMPLEADED AS THE LEGAL REPRESENTATIVE OF THE DECEASED SOLE APPELLANT VIDE ORDER DATED 23.10.2020 IN I.A.NO.1/2020. ``` ``` A.S.No.88/2003, C.O.NO.85/2003, R.F.A.Nos.565/2004 & 76/2005 ``` ``` -:2:- ``` ``` BY ADVS.SRI.S.SREEKUMAR (SR.) SRI.P.MARTIN JOSE SRI.P.PRIJITH SRI.THOMAS P.KURUVILLA SRI.S.HARIKRISHNAN ``` ## `RESPONDENTS/DEFENDANTS:` - `1 ALIKUTTY, W/O. LATE JOHN, PARATHIPARAMBIL CHERTHALA NORTH MURI, CHERTHALA NORTH VILLAGE, CHERTHALA P.O` - `2 REENA JOHN, D/O.LATE JOHN, PARATHIPARAMBIL CHERTHALA NORTH MURI, CHERTHALA NORTH VILLAGE, CHERTHALA P.O.` - `3 RANI JOHN, D/O.LATE JOHN, PARATHIPARAMBIL CHERTHALA NORTH MURI, CHERTHALA NORTH VILLAGE, CHERTHALA P.O.` - `4 EATHAMMA CHERIAN, VELANKALATHILAYA VIRIPPIL, NEDUMUDY THEKKE MURI, NEDUMUDY VILLAGE, CHAMPAKULAM P.O.` - `5 MARIYAMMA (DIED), W/O.IYYO KUNNUMPURATH, VADAKKUM MURI, CHERTHALA NORTH VILLAGE.` - `6 THRESIYAMMA FRANCIS PALOOTHARA VEETTIL CMC WARD 16, THEKKUM MURI, CHERTHALA,` ``` A.S.No.88/2003, C.O.NO.85/2003, R.F.A.Nos.565/2004 & 76/2005 ``` ``` -:3:- ``` ``` SOUTH VILLAGE. ``` ``` 7THOMAS IYYO, PULICKAL KANNUMPURAM HOUSE, MUNICIPAL WARD NUMBER.26, CHERTHALA NORTH VILLAGE, VADAKKUM MURI P.O., ALAPPUZHA DISTRICT ``` ``` 8K.E.THOMAS, RETD. PROFESSOR, PULIKKAL KUNNUMPURATH HOUSE, MUNICIPAL WARD NO.24, CHERTHALA NORTH VILLAGE, CHERTHALA P.O., ALAPPUZHA ``` ``` 9K.E.FRANCIS, ADVOCATE, KUNNUMPUAM, INDIRA NAGAR, KADAVANTHRA P.O., ERNAKULAM. ``` ``` 10K.J KOCHURANI, CHETTUPUZHA HOUSE, NEDUKUNNAM P.O., KOTTAYAM DISTRICT. ``` ``` 11ITTO JOHN, PULIKKAL KUNNUMPURAM, MUNICIPAL WARD NO.26, CHERTHALA NORTH VILLAGE, VADAKKAMUM MURI, CHERTHALA P.O., ALAPPUZHA DISTRICT ``` ``` LRS OF DECEASED R5 ARE IMPLEADED AS ADDL. R7 TO R11 VIDE ORDER DATED 17.03.2016 IN I.A.NO.481/2006 ``` ``` A.S.No.88/2003, C.O.NO.85/2003, R.F.A.Nos.565/2004 & 76/2005 ``` ``` -:4:- ``` ``` R1 TO R3 BY ADVS. SRI.P.K.RAVISANKAR ``` ``` THIS APPEAL SUITS HAVING BEEN FINALLY HEARD ON 09.11.2020, ALONG WITH C.O.NO.85/2003, RFA.565/2004(C), RFA.76/2005(B), THE COURT ON 16.11.2020 DELIVERED THE FOLLOWING: ``` ``` A.S.No.88/2003, C.O.NO.85/2003, R.F.A.Nos.565/2004 & 76/2005 ``` ``` -:5:- ``` ## `IN THE HIGH COURT OF KERALA AT ERNAKULAM` ## `PRESENT` ``` THE HONOURABLE MR.JUSTICE T.V.ANILKUMAR ``` ``` MONDAY, THE 16TH DAY OF NOVEMBER 2020 / 25TH KARTHIKA, 1942 ``` ``` CO. No.85/2003 IN AS.No.88 OF 2003(D) ``` ``` OS No.25/1992 of the SUB COURT, CHERTHALA ``` ## `CROSS OBJECTOR/5TH RESPONDENT` ``` 1MARIYAMMA, W/O.IYYO, KUNNUMPURATH, VADAKKUM MURI, CHERTHALA NORTH VILLAGE. ``` ## `BY ADV.` **`SRI.V.GIRI`** ## `RESPONDENT /APPELLANT` ``` 1A.C.JOSEPH(DIED), SON OF LATE CHACKO, ARACKAPARAMBIL HOUSE , CHERTHALA 2LISSY,AGED 57 YEARS D/O A.C.JOSEPH ARAKKAPARAMBIL HOUSE ,CHERTHALA.P.O., CHERTHALA NORTH MURI/VILLAGE REPRESENTED BY HER NEXT FRIEND HER AUNT SR.ANN TREESA ,AGED 75 YEARS ,D/O CHACKO ARAKKAPARAMBIL CHERTHALA.P.O.,CHERTHALA NORTH MURI/VILLAGE NOW MOTHER SUPERIOR,F.C.CONVENT,WARD NO.11 THANNEMUKKUM ``` ``` SUPPLEMENTAL RESPONDENT IS IMPLEADED AS THE LEGAL REPRESENTATIVES OF THE DECEASED SOLE RESPONDENT VIDE ORDER DATED 23-10-2020 IN IA NO.1/20. ``` ``` BY ADVS.SRI.S.SREEKUMAR(SR.) SRI.P.MARTIN JOSE ``` ``` A.S.No.88/2003, C.O.NO.85/2003, R.F.A.Nos.565/2004 & 76/2005 ``` ``` -:6:- ``` ``` SRI.P.PRIJITH SRI.S.HARIKRISHNAN SRI.THOMAS P.KURUVILLA ``` ``` THIS CROSS OBJECTION HAVING BEEN FINALLY HEARD ON 09.11.2020, ALONG WITH A.S.NO.88/2003, RFA.565/2004(C), RFA.76/2005(B), THE COURT ON 16.11.2020 DELIVERED THE FOLLOWING: ``` ``` A.S.No.88/2003, C.O.NO.85/2003, R.F.A.Nos.565/2004 & 76/2005 ``` ``` -:7:- ``` ## `IN THE HIGH COURT OF KERALA AT ERNAKULAM` ``` PRESENT ``` ``` THE HONOURABLE MR.JUSTICE T.V.ANILKUMAR ``` ``` MONDAY, THE 16TH DAY OF NOVEMBER 2020 / 25TH KARTHIKA, 1942 ``` ## `RFA.No.565 OF 2004(C)` ``` AGAINST THE JUDGMENT AND DECREE IN OS 8/1993 OF SUB COURT, CHERTHALA ``` ## `APPELLANTS/DEFENDANTS 4 TO 6:` ``` 1ELIKUTTY JOHN, PARATHIPARAMBIL HOUSE, VADAKKUM MURI, CHERTHALA NORTH VILLAGE, CHERTHALA TALUK, ALAPPUZHA DISTRICT. ``` - `2 REENA JOHN -DO- -DO-.` ``` 3RANI JOHN -DO- -DO-. ``` ``` BY ADVS.SRI.P.K.RAVISANKAR SRI.P.K.RAVISANKAR ``` ``` RESPONDENTS/PLAINTIFF & DEFENDANTS 2, 3, 7 TO 10 ``` ``` A.S.No.88/2003, C.O.NO.85/2003, R.F.A.Nos.565/2004 & 76/2005 ``` ``` -:8:- ``` ``` 1MARIYAMMA IYYE, PULICKAL KUNNUMPURATHU HOUSE, VADAKKUM MURI, CHERTHALA NORTH VILLAGE, CHERTHALA TALUK, ALAPPUZHA DISTRICT. (DIED LRS IMPLEADED) ``` ``` A.S.No.88/2003, C.O.NO.85/2003, R.F.A.Nos.565/2004 & 76/2005 ``` ``` -:9:- ``` ``` 2THRESIYAMMA FRANCIS, PALOOTHARA HOUSE, C.M.C.16, THEKKUM MURI, CHERTHALA SOUTH VILLAGE, CHRTHALA TALUK, ALAPPUZHA DISTRICT. (DIED LRS IMPLEADED) 3BRIJITH CHERIYAN EATHAMMA CHERIYAN, VELAMKULATHILAYA VIRIPPIL HOUSE, CHAMPAKULAM VILLAGE, KUTTANADU TALUK, ALAPPUZHA DISTRICT. (DIED LRS IMPLEADED) 4CHACKO JOSEPH, ARAKKAMPARAMPIL HOUSE, VADAKKUM MURI, CHERTHALA NORTH VILLAGE, CHERTHALA TALUK, ALAPPUZHA DISTRICT. (DIED LRS IMPLEADED) 5SOURIAR JAMES NEDUNILATHU HOUSE, KANAKKARY P.O., ETTUMANOOR, KOTTAYAM DISTRICT. (DIED LRS IMPLEADED) 6SOURIAR JOSEPH(DIED), NEDUNILAM VEEDU, KOTTAMPAKKIL P.O., CHUNKOM MUKKU, NEEZHOOR, KURAVILANGADU, KOTTAYAM. 7SOURIAR THOMAS, NEDUNILATHU HOUSE, ERUMAPATTY P.O., THRISSUR-6. 8MARY JOSEPH, ``` ``` A.S.No.88/2003, C.O.NO.85/2003, R.F.A.Nos.565/2004 & 76/2005 ``` ``` -:10:- ``` ``` NEDUNILATHU HOUSE, KOTTAMPAKKIL P.O., CHUMKOM MUKKU, NEEZHOOR, KURAVILANGADU, KOTTAYAM DISTRICT. 9JOSHY JOSEPH -DO- -DO-. 10REENA JOSEPH -DO- -DO-. 11JESTIN JOSEPH -DO- -DO-. 12AASA JOSEPH -DO- -DO-. ADDL.ELSA JAMES, R13W/O.JAMES, HOUSE WIFE, AGED ABOUT 65 YEARS, NEDUNILATHU HOUSE, KANAKKARI P.O., KOTTAYAM PIN 686603. ``` |`ADDL.`|`SANTHOSH JAMES,`| |---|---| |`R14`|`AGED ABOUT 39,`| ||`NEDUNILATHU HOUSE,`| ||`VATHAKKULAM P.O.,`| ||`KADAPPOOR,`| ||`KOTTAYAM DISTRICT.`| |`ADDL.`|`SMT.JUNO JAMES,`| |`R15`|`AGED ABOUT 34,`| ||`NEDUNILATHU HOUSE,`| ||`KANAKKARY P.O.,`| ``` A.S.No.88/2003, C.O.NO.85/2003, R.F.A.Nos.565/2004 & 76/2005 ``` ``` -:11:- ``` ``` KOTTAYAM, PIN 686603. ``` ``` THE LEGAL HEIRS OF DECEASED R5 ARE IMPLEADED AS ADDITIONAL RESPONDENTS 13 TO 15, VIDE ORDER DATED 20.6.16 IN I.A.NO.2425/05 ``` ``` ADDL.THOMAS IYYO, R16PULICKAL KUNNUMPURAM HOUSE, MUNICIPAL WARD NO.26, CHERTHALA NORTH VILLAGE, VADAKKUM MURI P.O., ALAPPUZHA DISTRICT. ``` ``` ADDL.K.E.THOMAS , R17RETD.PROFESSOR, KUNNUMPURAM HOUSE, MUNICIPAL WARD NO.24, CHERTHALA NORTH VILLAGE, CHERTHALA P.O., ALAPPUZHA DISTRICT. ``` ``` ADDL.K.E.FRANCIS, R18B.A.,L.L.B. ADVOCATE KUNNUMPURAM , INDIRA NAGAR, KADAVANTHARA P.O. ERNAKULAM ``` ``` ADDL.K.J.KOCHURANI, R19HOMEO DOCTOR, D.H.M.S CHETTUPUZHA HOUSE, NEDUKUNNAM P.O., KOTTAYAM DISTRICT. ``` ``` ADDL.IYYO JOHN, R20PULICKAL KUNNUMPURAM HOUSE, ``` ``` A.S.No.88/2003, C.O.NO.85/2003, R.F.A.Nos.565/2004 & 76/2005 ``` ``` -:12:- ``` ``` MUNICIPAL WARD NO.26, CHERTHALA NORTH VILLAGE, VADAKKUM MURI, CHERTHALA P.O., ALAPPUZHA DISTRICT. ``` ``` THE LEGAL HEIRS OF DECEASED R1 ARE IMPLEADED AS ADDITIONAL R16 TO R20 VIDE ORDER DATED 17.3.16 IN IA 526/06 ``` ``` ADDL.ANNAMMA THOMAS(DIED LRS IMPLEADED) R21W/O.THOMAS PALOOTHARA HOUSE, C.M.C.NO.16, THEKKUM MURI, CHERTHALA SOUTH VILLAGE, CHERTHALLA TALUK, ALAPPUZHA DISTRICT. ``` ``` ADDL.MARYKUNJU, R22D/O.THREASIAMMA FRANCIS, C/O.THRESSIAMMA P.T. DO. HOUSE DO. ADDL.THRESSIAMMA P.T., R23W/O.JOSEPH, RETIRED TEACHER -DO- ``` ``` ADDL.REETHAMMA, R24WIDOW OF BABYCHAN, ANJILIMOOTTIL , KOCHUVAYALATTU HOUSE, PULINKUNNU P.O., KUTTANAD TALUK, ALAPPUZHA DISTRICT. ADDL.ROSY M.F., ``` ``` A.S.No.88/2003, C.O.NO.85/2003, R.F.A.Nos.565/2004 & 76/2005 ``` ``` -:13:- ``` ``` R25W/O.CHACKO, TEACHER, PALAMOOTTIL HOUSE, POTHI, THALAYOLAPARAMBU P.O., VAIKOM, TALUK, KOTTAYAM DISTRICT. ``` ``` THE LEGAL HEIRS OF DECEASED 2ND RESPONDENT ARE IMPLEAED AS ADDITIONAL RESPONDENTS 21 TO 25, VIDE ORDER DATED 23.6.16 IN I.A.3613/07 ``` ``` ADDL.LISSY CHERIAN, R26VELANKALATHILAYA VIRIPPIL HOUSE, NEDUMUDI THEKKUM MURI, NEDUMUDI VILLAGE, KUTTANAD TALUK, ALAPPUZHA DISTRICT, PIN 688 503 ADDL.MOLY SANTHOSH, R27VELANKALATHILAYA VIRIPPIL HOUSE, NEDUMUDI THEKKUM MURI, NEDUMUDI VILLAGE, KUTTANAD TALUK, ALAPPUZHA DISTRICT, PIN 688 503 ADDL.THOMAS KUTTY, R28VELANKALATHILAYA VIRIPPIL HOUSE, NEDUMUDI THEKKUM MURI, NEDUMUDI VILLAGE, KUTTANAD TALUK, ALAPPUZHA DISTRICT PIN 688 503 ADDL.JESSAMMA CHERIAN, R29VELANKALATHILAYA VIRIPPIL HOUSE, NEDUMUDI THEKKUM MURI, NEDUMUDI VILLAGE, KUTTANAD TALUK, ALAPPUZHA DISTRICT PIN 688 503 ``` ``` A.S.No.88/2003, C.O.NO.85/2003, R.F.A.Nos.565/2004 & 76/2005 ``` ``` -:14:- ``` |`ADDL.`|`DOLLY CHERIAN,`| |---|---| |`R30`|`VELANKALATHILAYA VIRIPPIL HOUSE,`| ||`NEDUMUDI THEKKUM MURI,`| ||`NEDUMUDI VILLAGE,`| ||`KUTTANAD TALUK,`| ||`ALAPPUZHA DISTRICT`| ||`PIN 688 503`| ||`THE LEGAL HEIRS OF DECEASED 3RD RESPONDENT ARE`| ||`IMPLEADED AS ADDITIONAL RESPONDENTS 26 TO 30`| ||`VIDE ORDER DATED 11/1/17 IN IA 889/16`| |`ADDL.`|`JAMES MATHEW,`| |`R31`|`PALACHUVATTIL HOUSE,`| ||`MIDAYIKUNNU POST,`| ||`THALAYOLAPARAMBU,`| ||`KOTTAYAM DISTRICT- 686605.`| |`ADDL.`|`JINCY JAMES,`| |---|---| |`R32`|`D/O.JAMES MATHEW,`| ||`MANGALAMKUNNEL HOUSE,`| ||`ADICHIRA,`| ||`THALAYOLAPARAMBU POST,`| ||`KOTTAYAM DISTRICT 686630.`| |`ADDL.`|`JEENA JAMES,`| |---|---| |`R33`|`D/O.JAMES MATHEW,`| ||`609-15 WOODRIDGECRESENT,`| ||`NEPEAN,`| ||`OTTAWA,`| ||`CANADA- K2B7T3`| ``` THE LEGAL HEIRS OF THE DECEASED ADDITIONAL 25TH RESPONDENT ARE IMPLEADED AS ADDITIONAL RESPONDENTS 31 TO 33 VIDE ORDER DATED 11/1/19 IN IA 1273/18 ``` ``` A.S.No.88/2003, C.O.NO.85/2003, R.F.A.Nos.565/2004 & 76/2005 ``` ``` -:15:- ``` ``` ADDL.K.C. THOMAS, R34KODAVELIL HOUSE, MANAPPURAM POST, CHERTHALA, ALAPPUZHA DISTRICT PIN:688524. ``` |`ADDL.`|`RANJAN THOMAS,`| |---|---| |`R35`|`S/O. K.C.THOMAS,`| ||`KODAVELIL HOUSE,`| ||`MANAPPURAM POST,CHERTHALA,`| ||`ALAPPUZHA DISTRICT`| ||`PIN:688524.`| |`ADDL.`|`MANJU BAIJU,`| |`R36`|`BLAYIL HOUSE,`| ||`K.S.MANGALAM POST,`| ||`CHEMPU,`| ||`VAIKOM,`| ||`KOTTAYAM DISTRICT,`| ||`PIN:686608`| |`ADDL.`|`RENJU JOHNSON,`| |`R37`|`MALIAKAL HOUSE,`| ||`THEKKENADA,`| ||`VAIKOM,`| ||`KOTTAYAM DISTRICT,`| ||`PIN:686141.`| ||`THE LEGAL HEIRS OF DECEASED R21 ARE IMPLEADED`| ||`AS ADDL.R34 TO R37 VIDE ORDER DATED`| ||`20.10.2020, IN I.A.NO.1276/2018.`| |`ADDL.`|`LISSY JOSEPH,`| |`R38`|`ARACKAPARAMBIL HOUSE,`| ||`CHERTHALA NORTH MURI/VILLAGE,`| ||`CHERTHALA POST,`| ||`ALAPPUZHA DISTRICT-688524.`| ||`REPRESENTED BY GUARDIAN`| ``` A.S.No.88/2003, C.O.NO.85/2003, R.F.A.Nos.565/2004 & 76/2005 ``` ``` -:16:- ``` ``` SISTER ANN TRESA, D/O LATE CHACKO, OUR LADY OF PERP., F.C. CONVENT, THAIKATTUSSERY, ALAPPUZHA DISTRICT 688528 ``` ``` LEGAL HEIR OF DECEASED R4 IS IMPLEADED AS ADDL.R38 VIDE ORDER DATED 12/1/2020 IN I.A.NO.1278/2018. ``` ``` R4 BY ADV.SRI. S. SREEKUMAR R16, R19-20 BY ADV. SRI.P.R.VENKATESH R38 BY ADV.SRI. JOBY JACOB PULICKEKUDY ``` ``` THIS REGULAR FIRST APPEAL HAVING BEEN FINALLY HEARD ON 09.11.2020, ALONG WITH AS.88/2003(D),C.O.NO.85/2003, RFA.76/2005(B), THE COURT ON 16.11.2020 DELIVERED THE FOLLOWING: ``` ``` A.S.No.88/2003, C.O.NO.85/2003, R.F.A.Nos.565/2004 & 76/2005 ``` ``` -:17:- ``` ## `IN THE HIGH COURT OF KERALA AT ERNAKULAM` ## `PRESENT` ``` THE HONOURABLE MR.JUSTICE T.V.ANILKUMAR ``` ``` MONDAY, THE 16TH DAY OF NOVEMBER 2020 / 25TH KARTHIKA, 1942 ``` ## `RFA.No.76 OF 2005(B)` ``` AGAINST THE JUDGMENT AND DECREE DATED 29-06-2002 IN O.S.NO. 25/1992 OF SUB COURT, CHERTHALA ``` ## `APPELLANTS/ DEFENDANTS 1 TO 3:` ``` 1ELIKUTTY JOHN, PARATHIPARAMBIL HOUSE, CHERTHALA NORTH MURI, CHERTHALA NORTH VILLAGE, CHERTHALA TALUK, ALAPPUZHA DISTRICT. ``` ``` 2REENA JOHN, D/O.ELIKUTTY JOHN OF DO DO. ``` ``` 3RANI JOHN DO. ELIKUTTY JOHN OF DO. DO. ``` ``` BY ADVS.SRI.P.K.RAVISANKAR SRI.H.VINOD SRI.VISHNU.R ``` ``` RESPONDENTS/ PLAINTIFFS AND DEFENDANTS 4 TO 6: ``` ``` A.S.No.88/2003, C.O.NO.85/2003, R.F.A.Nos.565/2004 & 76/2005 ``` ``` -:18:- ``` ``` 1A.C.JOSEPH(DIED), ARACKAPARAMBIL HOUSE, CHERTHALA NORTH MURI, CHERTHALA NORTH VILLAGE, CHERTHALA TALUK, ALAPPUZHA DISTRICT. ``` ``` A.S.No.88/2003, C.O.NO.85/2003, R.F.A.Nos.565/2004 & 76/2005 ``` ``` -:19:- ``` ``` 2ETHAMMA CHERIYAN(DIED), VELANKALATHILAYA VIRIPPIL HOUSE, NEDUMUDY THEKKUM MURI, NEDUMUDI VILLAGE, KUTTANAD TALUK, ALAPPUZHA DISTRICT. 3MARIYAMMA (DIED), KUNNUMPURATH HOUSE, CHERTHALA, VADAKKUM MURI, CHERTHALA NORTH VILLAGE, CHERTHALA TALUK, ALAPPUZHA DISTRICT. 4THRESIYAMMA FRANCIS(DIED), PALOOTHARA VEETTIL, C.M.C.16, THEKKUM MURI, CHERTHALA THEKKU VILLAGE, CHERTHALA TALUK, ALAPPUZHA DISTRICT. ADDL.THOMAS IYYO, R5PULICKAL KUNNUMPURAM HOUSE, MUNICIPAL WARD NO.26, CHERTHALA NORTH VILLAGE, VADAKKUM MURI P.O., ALAPPUZHA DISTRICT. ``` ``` ADDL.K.E.THOMAS, R6RETD.PROFESSOR, KUNNUMPURAM HOUSE, MUNICIPAL WARD NO.24, CHERTHALA NORTH VILLAGE, CHERTHALA P.O., ALAPPUZHA DISTRICT. ADDL.K.E.FRANCIS, R7B.A., LL.B. ADVOCATE, ``` ``` A.S.No.88/2003, C.O.NO.85/2003, R.F.A.Nos.565/2004 & 76/2005 ``` ``` -:20:- ``` ``` KUNNUMPURAM, INDIRA NAGAR, KADAVANTHARA P.O., ERNAKULAM. ADDL.K.J.KOCHURANI, R8HOMEO DOCTOR D.H.M.S., CHETTUPUZHA HOUSE, NEDUKUNNAM P.O., KOTTAYAM DISTRICT. ADDL.IYYO JOHN, R9PULICKAL KUNNUMPURAM, MUNICIPAL WARD NO.26, CHERTHALA NORTH VILLAGE, VADAKKUM MURI, CHERTHALA P.O., ALAPPUZHA DISTRICT. (THE ABOVE ADDL.R5 TO R9 ARE IMPLEADED AS THE LRS OF THE DECEASED R3 VIDE ORDER DATED 19.11.2007 IN IA 650/06.) ADDL.ANNAMMA THOMAS(DIED), R10W/O.THOMAS, PALOOTHARA HOUSE, C.M.C.NO.16, THEKKUM MURI, CHERTHALA SOUTH VILLAGE, CHERTHALA TALUK, ALAPPUZHA DISTRICT. ADDL.MARY KUNJU, R11D/O.THRESSIAMMA FRANCIS, C/O.THRESSIAMMA P.T. DO. DO. ADDL.THRESSIAMMA P.T., R12W/O.JOSEPH, RETIRED TEACHER, DO. DO. ADDL.REETHAMMA, R13WIDOW OF BABYCHAN, ANJILIMOOTTIL, KOCHUVAYALATTU HOUSE, PULINKUNNU P.O., KUTTANAD TALUK, ALAPPUZHA DISTRICT. ``` ``` A.S.No.88/2003, C.O.NO.85/2003, R.F.A.Nos.565/2004 & 76/2005 ``` ``` -:21:- ``` |`ADDL.`|`ROSY M.F.,`| |---|---| |`R14`|`W/O.CHACKO,`| ||`TEACHER,`| ||`PALAMOOTTIL HOUSE,`| ||`POTHI,`| ||`THALAYOLAPARAMBU PO.,`| ||`VAIKKOM TALUK,`| ||`KOTTAYAM DISTRICT.`| ||`(THE ABOVE ADDL.R10 TO R14 ARE IMPLEADED AS`| ||`THE LRS. OF THE DECEASED R4 VIDE ORDER DATED`| ||`19.11.2007 IN IA 3622/07.)`| |`ADDL.`|`LISSY CHERIAN,`| |`R15`|`AGED ABOUT 53 YEARS,`| ||`VELANKALATHILAYA VIRIPPIL HOUSE,`| ||`NEDUMUDY THEKKUM MURI,`| ||`NEDUMUDI VILLAGE,`| ||`KUTTANAD TALUK,`| ||`ALAPPUZHA DISTRICT.`| |`ADDL.`|`MOLY SANTHOSH,`| |`R16`|`AGED ABOUR 51 YEARS,`| ||`VELANKALATHILAYA VIRIPPIL HOUSE,`| ||`NEDUMUDY THEKKUM MURI,`| ||`NEDUMUDI VILLAGE ,`| ||`KUTTANAD TALUK,`| ||`ALAPPUZHA DISTRICT.`| |`ADDL.`|`THOMAS KUTTY,`| |`R17`|`AGED ABOUT 51 YEARS,`| ||`VELANKALATHILAYA VIRIPPIL HOUSE,`| ||`NEDUMUDY THEKKUM MURI,`| ||`NEDUMUDI VILLAGE ,`| ||`KUTTANAD TALUK,`| ||`ALAPPUZHA DISTRICT.`| |`ADDL.`|`JESSAMMA CHERIYAN,`| |`R18`|`AGED ABOUT 49 YEARS,`| ||`VELANKALATHILAYA VIRIPPIL HOUSE,`| ||`NEDUMUDY THEKKUM MURI,`| ||`NEDUMUDI VILLAGE, NEDUMUDI P.O.,`| ||`KUTTANAD TALUK,`| ||`ALAPPUZHA DISTRICT.`| |`ADDL.`|`DOLLY CHERIYAN,`| |`R19`|`AGED ABOUT 47 YEARS,`| ``` A.S.No.88/2003, C.O.NO.85/2003, R.F.A.Nos.565/2004 & 76/2005 ``` ``` -:22:- ``` ``` VELANKALATHILAYA VIRIPPIL HOUSE, NEDUMUDY THEKKUM MURI, NEDUMUDI VILLAGE, NEDUMUDI P.O., KUTTANAD TALUK, ALAPPUZHA DISTRICT. ``` ``` (ADDL RESPONDENTS 15 TO R19 ARE IMPLEADED AS LEGAL REPRESENTATIVES OF R2 VIDE ORDER DATED 14.08.2020 IN I.A.NO.14/15 (I.A.NO.240715) ``` ``` ADDL.LISSY JOSEPH, R20AGED ABOUT 52 YEARS, ARACKAPARAMBIL HOUSE, CHERTHALA NORTH MURI, CHERTHALA NORTH VILLAGE, CHERTHALA TALUK, ALAPPUZHA DISTRICT. ADDITIONAL RESPONDENT 20, REPRESENTED HER GUARDIAN SISTER ANN TRESA, D/O. LATE CHACKO, OUR LADY OF PERP., F.C. CONVENT, THAIKKATTUSSERY, ALAPPUZHA DISTRICT, PINCODE 688528, BY ORDER DATED 12.7.2019 IN I.A.NO.2/2019 IS IMPLEADED AS LR'S OF DECEASED R1 VIDE ORDER DATED 17.01.2020 IN I.A.NO.15/15(2408/2015) ``` ``` ADDL.JAMES MATHEW, R21PALACHUVATTIL HOUSE, MIDAYIKUNNU POST, THALAYOLAPARAMBU, KOTTAYAM DISTRICT 686605. ``` ``` ADDL.JINCY JAMES, R22D/O JAMES MATHEW, MANGALAMKUNNEL HOUSE, ADICHIRA, THALAYOLAPARAMBU POST, KOTTAYAM DISTRICT 686630. ``` ## `A.S.No.88/2003, C.O.NO.85/2003, R.F.A.Nos.565/2004 & 76/2005` ``` -:23:- ``` |`ADDL.`|`JEENA JAMES,`| |---|---| |`R23`|`D/O JAMES MATHEW,`| ||`609-15 WOODRIDGECRESENT,`| ||`NEPEAN,`| ||`OTTAWA,`| ||`CANADA K2B7T3`| ||`LEGAL REPRESENTATIVES OF DECEASED 14TH`| ||`RESPONDENT ARE IMPLEADED AS ADDITIONAL`| ||`RESPONDENTS 21 TO 23 VIDE ORDER DATED`| ||`20.10.2020 IN I.A.NO.1230/2018(IA 12/2018)`| |`ADDL.`|`K,C THOMAS,`| |`R24`|`KODAVELIL HOUSE,`| ||`MANAPPURAM POST,`| ||`CHERTHALA ,`| ||`ALAPPUZHA DISTRICT,`| ||`PIN:688524`| |`ADDL.`|`RANJAN THOMAS,`| |`R25`|`S/O K.C THOMAS,`| ||`KODAVELIL HOUSE,`| ||`MANAPPURAM POST,`| ||`CHERTHALA ,`| ||`ALAPPUZHA DISTRICT,`| ||`PIN 688524`| |`ADDL.`|`MANJU BAIJU,`| |`R26`|`BLAYIL HOUSE,`| ||`K.S MANGALAM POST,`| ||`CHEMPU,`| ||`VAIKOM,`| ||`KOTTAYAM DISTRICT,`| ||`PIN 686141`| |`ADDL.`|`RENJU JOHNSON,`| |`R27`|`MALIACKAL HOUSE,`| ||`THEKKENADA,`| ||`VAIKOM,`| ||`KOTTAYAM DISTRICT`| ||`PIN 686141`| ``` A.S.No.88/2003, C.O.NO.85/2003, R.F.A.Nos.565/2004 & 76/2005 ``` ``` -:24:- ``` ``` (LEGAL REPRESENTATIVES OF DECEASED 10TH RESPONDENT ARE IMPLEADED AS ADDITIONAL RESPONDENTS 24 TO 27 VIDE ORDER DATED 14.08.2020 IN I.A.NO.1229/2018(IA 11/2018) ``` ``` R1 BY ADV. SRI.S.SREEKUMAR R2, R3 & R4 BY ADVS. SMT.LATHA GIRI SRI.K.S.BHARATHAN ADDL.R10, 12,13, 14 BY ADV. SRI.P.R.VENKATESH ADDL.R20 BY ADVS. SRI.JOBY JACOB PULICKEKUDY SRI. ANIL GEORGE ``` ``` THIS REGULAR FIRST APPEAL HAVING BEEN FINALLY HEARD ON 09.11.2020, ALONG WITH AS.88/2003(D), C.O.NO.85/2003, RFA.565/2004(C), THE COURT ON 16.11.2020 DELIVERED THE FOLLOWING: ``` ``` A.S.No.88/2003, C.O.NO.85/2003, R.F.A.Nos.565/2004 & 76/2005 ``` ``` -:25:- ``` Dated this the 16[th] day of November,2020 ## **`C O M M O N J U D G M E N T`** ``` These three appeals arise from a common judgment and decree in O.S.Nos.25/1992 and 8/1993 jointly tried before the Sub Court, Cherthala. Appellants in R.F.A.Nos.76/2005 and 565/2004 are the same persons and they are defendant Nos.1 to 3 in O.S.No.25/1992 and 4 to 6 in O.S.No.8/1993 respectively. The plaintiff in O.S.No.25/1992 is the appellant in A.S.No.88/2003. The fifth respondent in A.S.No.88/2003 is the plaintiff in O.S.No.8/1993 and she filed Cross-Objection in A.S.No.88/2003.Alltheappealsand Cross-Objection were heard together. ``` ``` 2.Both suits for partition and separate possession relate to the same property. The property extends to 37 cents with a residential ``` ``` A.S.No.88/2003, C.O.NO.85/2003, R.F.A.Nos.565/2004 & 76/2005 ``` ``` -:26:- ``` ``` building. The plaintiff in each suit claimed division of properties setting up rights under different title which the trial court accepted only in part. Each of them, therefore, is aggrieved by refusal of part of the claims made. The defendants in both suits, who opposed partibility of property are wholly aggrieved by the judgment and decree granting partition. ``` ``` 3.The plaint schedule and other items of properties originally belonged to late Thoma under Ext.B5 sale deed dated 25.05.1923 taken in his name. He died on 20.06.1963. He had six children of whom two were sons and remaining were daughters. One of the sons, Sri.Pylo was unmarried and issueless. Another son, Sri.John was married and had got two children. The daughters of Sri.Thoma were given in marriage with their shares in the properties. Two brothers, Sri. John and Sri.Pylo claiming half share each in the properties left behind by their father entered ``` ``` A.S.No.88/2003, C.O.NO.85/2003, R.F.A.Nos.565/2004 & 76/2005 ``` ``` -:27:- ``` ``` into a registered partition deed dated 02.05.1978 and partitioned all the properties except the plaint schedule 37 cents which were set apart by them to their common share for division in future. The daughters were not made parties to the deed evidently because they had already been given in marriage. ``` ``` 4.Sri. Pylo executed a Will on 25.09.1984 as to half share in respect of suit property in favour of plaintiff in O.S.No.25/1992. The Will came into force on 12.10.1984 with the death of Sri. Pylo. Later, on 01.09.1985, Sri.John also died leaving behind his wife and two children who are defendant Nos.1 to 3 in O.S.No.25/1992 and defendant Nos.4 to 6 in O.S.No.8/1993. ``` ``` 5.The dispute as to rights in the plaint schedule property arose between parties when the legatee, plaintiff in O.S.No.25/1992 applied in O.P.(LA) No.189/1984 before the Additional District Court, Alappuzha for obtaining Letters of ``` ``` A.S.No.88/2003, C.O.NO.85/2003, R.F.A.Nos.565/2004 & 76/2005 ``` ``` -:28:- ``` ``` Administration as to the property in the Will. The widow and children of Sri.John denied validity of the Will in the proceeding contending that late Thoma during his life time had already transferred 39 cents of which plaint schedule property forms part, along with other items of property and executed Ext.B6 sale deed dated 28.11.1944 in favour of Sri.John for lawful consideration and after his death, they alone succeeded to his estate. ``` ``` 6.The proceedings became contentious and were numbered as O.S.No.1/1986. Being disturbed by denial of title, the legatee sued defendants 1 to 6 in O.S.No.25/1992 for a decree seeking declaration of title to half right bequeathed by Sri.Pylo under Will No.18/1984 and also for partition and separate possession withmesne profitsboth past and future. The plaintiff contended in the suit that Sri.John did not acquire any rights under Ext.B6 sale deed and it ``` ``` A.S.No.88/2003, C.O.NO.85/2003, R.F.A.Nos.565/2004 & 76/2005 ``` ``` -:29:- ``` ``` was executed by his father solely for screening his properties from the creditors to whom he was already indebted for huge amounts. The sale deed was contended to have not taken effect at all and the suit property was stated to have devolved on two sons in equal shares. ``` ``` 7.During the pendency of O.S.No.25/1992, the District Court, Alappuzha disposed of O.S.No.1/1986 issuing Letters of Administration accepting the Will executed by Sri.Pylo as valid. Ext.A2 has become final and conclusive and this is not a disputed fact as well. ``` ``` 8.Defendant Nos. 1 to 3 in O.S.No.25/1992, who are the appellants in R.F.A.No.76/2005 contested the suit. Defendant Nos.4 to 6 in the suit are the daughters of deceased Thoma. They too contested the suit. ``` ``` 9.Defendant Nos.1 to 3 contended that Ext.B6 sale deed in favour of their predecessor, Sri.John was not a bogus document executed with a ``` ``` A.S.No.88/2003, C.O.NO.85/2003, R.F.A.Nos.565/2004 & 76/2005 ``` ``` -:30:- ``` ``` view to defrauding the creditors of Sri.Thoma and it had taken effect right from 28.11.1944, Sri.John took physical possession of the suit property, effected mutation and paid tax for the properties. On the same day itself, Sri.John redeemed an outstanding mortgage in respect of property as per Ext.B6 deed dated 28.11.1944. He contended that his brother, Pylo who had been left without any assets, was permitted to live in the house in the plaint schedule property till his death. It is contended that Sri.Pylo by his own acts and deeds accepted Sri.John as the exclusive owner of the property. Ext.A1 partition deed dated 02.05.1978 executed between Sri.Pylo and Sri.John did not either relate to any part of the suit property or create any rights in favour of Sri.Pylo. The contention is that since Sri.Pylo did not have any antecedent or subsisting title to the property, any recital made in Ext.A1 deed consenting for partition did not create any rights ``` ``` A.S.No.88/2003, C.O.NO.85/2003, R.F.A.Nos.565/2004 & 76/2005 ``` ``` -:31:- ``` ``` in favour of Sri.Pylo. According to defendant Nos.1 to 3, after the death of John, they succeeded him and the Will executed by Sri.Pylo claiming half right was void and not capable of transferring any legal interest in favour of the plaintiff. Suit for declaration and partition was stoutly opposed. ``` ``` 10.Defendant Nos.4 to 6 had identical contentions as between them and they did not either support the plaintiff or defendant Nos.1 to 3. They denied Ext.A1 partition deed as binding on them and contended that Thoma died intestate and suit property devolved on all of his six children in equal shares under the provisions of the Indian Succession Act,1956, following the pronouncement of law in well celebrated case, Mary Roy v. State of Kerala [1986 KLT 508]. It was stated that they were not paid due shares in the property at the time of marriage. It was contended that Pylo got 1/6thshare which after his death devolved in equal ``` ``` A.S.No.88/2003, C.O.NO.85/2003, R.F.A.Nos.565/2004 & 76/2005 ``` ``` -:32:- ``` ``` five shares on remaining siblings and the plaintiff did not nevertheless get any interest in the suit property. This contention came because defendant Nos.1 to 3 denied the Will executed by Pylo valid as being and capable of creating any interest in favour of the plaintiff. ``` ``` 11.The fifth defendant in O.S.No.25/1992 is one of the daughters of deceased Thoma and she is the plaintiff in O.S.No.8/1993. She raised similar contentions taken in the written statement filed in O.S.No.25/1992 claiming [1]/5 share in the suit propertyimpleadingtheplaintiffin O.S.No.25/1992 as the seventh defendant. Defendant Nos.1 to 3 in O.S.No.25/1992 were impleaded as defendant Nos.4 to 6 in that suit. ``` ``` 12.All the defendants, except defendant Nos.4 to 6 and the seventh defendant, supported the plaintiff in O.S.No.8/1993. Defendant Nos.4 to 6 raised the same contentions taken by them in O.S.No.25/1992. The seventh defendant repeated the ``` ``` A.S.No.88/2003, C.O.NO.85/2003, R.F.A.Nos.565/2004 & 76/2005 ``` ``` -:33:- ``` ``` contentions in the plaint in O.S.No.25/1992 filed by him. ``` ``` 13.During the pendency of O.S.No.8/1993, first defendant in that suit passed away and her legal representatives were impleaded as additional defendant Nos.8 to 10 in O.S.No.8/1993. ``` ``` 14.The court below tried both suits jointly taking up O.S.No.25/1992 as the leading case. On the side of the plaintiff in O.S.No.25/1992, PWs.1 to 4 were examined and Exts.A1 to A9 were admitted in evidence. On the side of the defendants, DWs.1 and 2 were examined and Exts.B1 to B26 were received in evidence. ``` ``` 15.One of the issues decided by the court below related to the validity of Will executed in favour of the plaintiff by Sri.Pylo and it was answered in his favour following Ext.A2 decree of the Additional District Court, Alappuzha in O.S.No.1/1986, which had already upheld the validity of the Will. ``` ``` A.S.No.88/2003, C.O.NO.85/2003, R.F.A.Nos.565/2004 & 76/2005 ``` ``` -:34:- ``` ``` 16.The main issue considered by the court below as per the impugned common judgment related to the contention raised by the plaintiff in the suit that Ext.B6 sale deed was a sham document. ``` ``` 17.On a consideration of the entire evidence on record, the court below took the view that the sale deed was sham and it was executed by Thoma without any intention of bringing it into force. The court below went on to hold that Sri.Thoma never had any intention to disinherit his son, Pylo and his sole intention was to screen his property from the clutches of his creditors. In short, the court below proceeded to decide the issues before it, as if father, Thoma died intestate. Since there was no evidence on record to prove that Thoma's daughters were paid their due shares in the property, they were found to be entitled to equal shares along with his sons. Ext.A1 partition deed was, thus, held to be not binding on the daughters and affecting their ``` ``` A.S.No.88/2003, C.O.NO.85/2003, R.F.A.Nos.565/2004 & 76/2005 ``` ``` -:35:- ``` ## `rights in the property.` ``` 18.Each of the children of Sri.Thoma was held to be entitled to[1]/6[share in the suit] property and the contention of plaintiff in O.S.No.8/1993 that Pylo's [1]/6share also devolved on them was rejected. Ultimately O.S.Nos.25/1992 and 8/1993 were decreed declaring [1]/6 share in the suit property each to the respective plaintiffs in both suits. In addition to plaintiff in the suit, defendant Nos.2 and 3 in O.S.No.8/1993, who are the other daughters of Thoma were also granted [1]/6 share each in the property. Plaintiff's claim in O.S.No.25/1992 for declaration of title was limited to[1]/6share acquired by his testator, Pylo. ``` ``` 19.Being aggrieved by the judgment and decree, defendant Nos.1 to 3 in O.S.No.25/1992 filed R.F.A.No.76/2005 and defendant Nos.4 to 6 in O.S.No.8/1993filedR.F.A.No.565/2004.The plaintiff in O.S.No.25/1992 being aggrieved by ``` ``` A.S.No.88/2003, C.O.NO.85/2003, R.F.A.Nos.565/2004 & 76/2005 ``` ``` -:36:- ``` ``` refusal of claim for half share in the suit property filed A.S.No.88/2003. Plaintiff in O.S.No.8/1993 being aggrieved by decree allotting 1/6share instead of claim for1/5, filed Cross Objection in A.S.No.88/2003. ``` ``` 20.In all these three appeals and Cross Objection, the material questions that arise for consideration and argued before me are the following: ``` ``` i.Whether Sri.John, the predecessor in interest of the appellants in R.F.A.Nos. 76/2005 and 565/2004, acquired rights under Ext.B6 sale deed or in other words, did the deed executed by Thoma take effect? ``` - _`ii. Whether Ext.A1 partition deed executed between John and Pylo created in favour of Pylo any right, title and interest over the suit property and if so, to what extent?`_ - _`iii Is the cross-objector, the plaintiff in . O.S.No.8/1993 entitled to any share in the suit property and, if so, what is her share?`_ ``` A.S.No.88/2003, C.O.NO.85/2003, R.F.A.Nos.565/2004 & 76/2005 ``` ``` -:37:- ``` ``` 21.The challenge as to validity of Will dated 25.09.1984 executed by Pylo in favour of appellant in A.S.No.88/2003 has no relevance after Ext.A2 decree in O.S.No.1/1986 having been passed by the Additional District Judge, Alappuzha, granting Letters of Administration in respect of the suit property. What is significant with Ext.A1 partition deed is whether it created legal rights in respect of suit property in favour of Pylo. Once it is answered in favour of Pylo, all rights whatsoever the testator acquired would devolve on appellant in terms of the Will. ``` ``` 22.The suit property is item No.1 in Ext.B6 sale deed among the total five items. Sri.Thoma transferred all his properties to son, John on 28.11.1944. The sale deed discloses that it was executed for lawful consideration received from the vendee. The direction given in the deed to the buyer to discharge outstanding liabilities of the vendor indicates that Sri.Thoma had owed debts to ``` ``` A.S.No.88/2003, C.O.NO.85/2003, R.F.A.Nos.565/2004 & 76/2005 ``` ``` -:38:- ``` ``` his creditors. This is not a disputed fact also. 23.The contention of the appellant in A.S.No.88/2003 is that Thoma with a view to screening the properties owned by him executed Ext.B6 in the name of his son without intending it ``` ``` to bring into effect. The nature of the case pleaded by the appellant in the plaint in O.S.No.25/1992 is that Ext.B6 is sham. I have to state at this moment that a sham document is fundamentally different from a deed of transfer which is rendered voidable under Section 53 of the Transfer of Property Act, 1882(for short, 'the T.P.Act'), at the option of the creditors. A transfer deed voidable under Section 53 is one which takes effect under law and operates in favour of the transferee. Where there is no legal transfer at all to the transferee, despite mention being made of transfer in the deed, it is a sham transaction. The ownership of interest in the property in such transaction would still continue ``` ``` A.S.No.88/2003, C.O.NO.85/2003, R.F.A.Nos.565/2004 & 76/2005 ``` ``` -:39:- ``` ``` with the executant. The intention of the executant of the deed is what finally determines whether the transfer was sham or otherwise. Therefore, what Sri.Thoma intended by Ext.B6 is highly relevant and significant in answering the issue. ``` ``` 24.On the same date of Ext.B6, Sri. John redeemed through Ext.B7 release deed an outstanding mortgage in respect of suit property executed in the name of Sri. Chacko. Within hardly a year, Sri. John executed Ext.B8 deed of management of all the properties obtained under Ext.B6 in favour of brother, Pylo on 27.10.1945. The effect of Pylo taking this document in his name is that he accepted Sri.John as the full owner of the property. After five years and on 15.02.1951, the father and two brothers jointly executed Ext.B9 sale deed in favour of Govinda Pai transferring two cents for consideration. ``` ``` 25.Thoma died on 20.06.1963 after 19 years, since the date of Ext.B6. The last document ``` ``` A.S.No.88/2003, C.O.NO.85/2003, R.F.A.Nos.565/2004 & 76/2005 ``` ``` -:40:- ``` ``` executed in respect of the properties during his life time was Ext.B26. It was a registered gift deed dated 05.06.1961 executed by Sri.John and Sri.Pylo in favour of their own sister, who later filed O.S.No.8/1993. There is unimpeachable evidence on record to show that Sri.Thoma was aware of all these transactions which took place during his life time. Some of these documents which created rights in favour of third parties amply prove that Sri.Thoma during his life time accepted the dispositions made by John, as if Ext.B6 had already taken effect. The whole conduct of Sri.Thoma indicates that he intended Ext.B6 to take effect, the moment it was executed. ``` ``` 26.Neither Pylo nor any person claiming under him can therefore contend that Sri.John did not acquire any rights under Ext.B6, having due regard to the fact that Sri.Pylo was also a party to Exts.B8, B9 and B26 and joined execution of these deeds in which he had acknowledged his ``` ``` A.S.No.88/2003, C.O.NO.85/2003, R.F.A.Nos.565/2004 & 76/2005 ``` ``` -:41:- ``` ``` brother John as the full owner of the properties. 27.If at all what Sri.Thoma intended was to defraud the creditors and Ext.B6 was consequently a fraudulent transfer also, it is nevertheless valid under law, except as against the creditors, that too, until they seek to avoid the deed under law. This question which may be relevant under Section 53 of the T.P. Act does not, however, arise for consideration in any of these appeals. Therefore, the finding of the court below that Ext.B6 was a sham document and Sri.John did not acquire legal rights over the properties dealt with thereunder is clearly wrong, erroneous and illegal. ``` ``` 28.I hold that as on the date of death of Thoma, he did not have any subsisting right in respect of any part of Ext.B6 property. On the other hand, evidence clearly indicates that Sri.John was the full owner of the properties having acquired rights under Ext.B6. ``` ``` A.S.No.88/2003, C.O.NO.85/2003, R.F.A.Nos.565/2004 & 76/2005 ``` ``` -:42:- ``` ``` 29.Appellants in R.F.A.Nos.565 of 2004 and 76 of 2005 contend that when John died intestate, his rights devolved on them as exclusive legal heirs. I have already found that Sri.Thoma had left nothing behind for Pylo to inherit. Therefore, unless appellant in R.F.A.No.88/2003 could establish that his testator acquired rights in the suit property in some legal manner, he will not be entitled to a decree for declaration and partition as sought for in the suit. ``` ``` 30.The fact remains that till Ext.A1 partition deed was executed in the name of Pylo, he did not have any properties of his own. It is now a proved fact that Sri.Pylo did not have pre existing title to any of the items of properties which they partitioned under Ext.A1. The appellant in A.S.No.88/2003 relies on certain recitals in Ext.A1 partition deed to contend for the position that Sri.Pylo acquired half of the title to the suit property. The statement made by parties in ``` ``` A.S.No.88/2003, C.O.NO.85/2003, R.F.A.Nos.565/2004 & 76/2005 ``` ``` -:43:- ``` ``` Ext.A1 that they inherited Thoma has been proved to be utterly wrong and contrary to facts. ``` ``` 31.In view of the nature of contentions raised by the appellant in A.S.No.88/2003, the relevant question that arises is whether Pylo could have claimed any rights over suit property on the strength of the mere recitals made in Ext.A1. This is the main question that was argued in these appeals. ``` ``` 32.Execution of Ext.A1 is not disputed by appellants inR.F.A.Nos.565/2004 and 76/2005 Their contention is that the partition deed dated 2.5.1978 did neither relate to the suit property nor the recitals in the deed conferred or created any title in Pylo. ``` ``` 33.The suit property has a residential family house in which the two brothers were admittedly staying together. Ext.A1 makes it explicitly clear that the partition arrangement between parties did not relate to the suit ``` ``` A.S.No.88/2003, C.O.NO.85/2003, R.F.A.Nos.565/2004 & 76/2005 ``` ``` -:44:- ``` ``` property. The suit property was specifically kept apart to the common share of the parties and the division thereof was postponed to a future day. The properties divided under Ext.A1 consist of 'A' schedule 90 cents allotted to John and 'B' schedule 78 cents allotted to Pylo. These are properties which were originally owned by Thoma and later sold to John under Ext.B6. The learned counsel for the appellant in A.S.No.88/2003 drew my attention to the recitals made in Ext.A1 which disclose that the two brothers wished to divide the properties for their separate enjoyment and possession in their common interest and welfare. With the same intention, the suit property was also mutually set apart for future division. ``` ``` 34.It is contended by the learned counsel for appellants in R.F.A.Nos.565/2004 & 76/2005 that in so far as Pylo did not hold any pre existing title to suit property, mere recitals in Ext.A1 acknowledging the property as being held in ``` ``` A.S.No.88/2003, C.O.NO.85/2003, R.F.A.Nos.565/2004 & 76/2005 ``` ``` -:45:- ``` ``` common and postponing partition of property between parties to a future period are not capable of conferring or creating any title in Pylo and the suit property is therefore not partible. On the other hand, the learned counsel for the appellant in A.S.No.88/2003 submitted that Ext.A1 takes the character of a family arrangement between two brothers and therefore admitting a brother not having pre existing title to a share in the property would legally create title and such an arrangement is valid under law and binding on the parties. Three decisions reported in Sarojini v. Santha Trading Co. and Others[1969 KLT 412], Madhavan v. Kanjikuzhi Panchayat [2003 KHC 1296]and Sita Ram Bhama vs. Ramvatar Bhama [(2018) 15 SCC 130]were cited at the bar by the learned counsel appearing on either side in this respect. ``` ``` 35.A mere recital in confirmation of pre existing right in a person who did not have such ``` ``` A.S.No.88/2003, C.O.NO.85/2003, R.F.A.Nos.565/2004 & 76/2005 ``` ``` -:46:- ``` ``` right may not be sufficient to convey rights in the property. This is a general proposition of law. This position arises from the common theory that in order to create title or ownership in a person there must be transfer of rights to him. Mere admission will not create title in a person. But there could be exceptions in this regard when the family settlement is entered into between members of a family settling their disputes inter se. When a member not having pre existing title, is admitted to a share in the property being settled, it is nevertheless legally valid and binding on the parties. Such a family settlement cannot be impugned on the ground that one of the parties in the deed did not have antecedent title to the property. All what is required to be shown in such cases is that the person not seized of antecedent title was intended to be constituted as a beneficiary of the transaction or the arrangement. Once expression of such intention by ``` ``` A.S.No.88/2003, C.O.NO.85/2003, R.F.A.Nos.565/2004 & 76/2005 ``` ``` -:47:- ``` ``` recitals in the deed is proved, it is sufficient to confer legal right and interests over the property on the beneficiary and the distribution of property made in the document would be legally valid and binding on the parties thereto. ``` ``` 36.Appellants in R.F.A.Nos.565/2004 and 76/2005 have no case that Ext.A1 was created by Pylo by means of any fraud or exercising undue influence on John. The proved facts on hand show that Sri.John maintained dominating position and the deed came into being with his full consent and knowledge as to the consequence of the disposition. The subsequent conduct of Sri.John also establishes beyond every doubt that he accepted rights of Pylo given under Ext.A1. On 27.01.1979 Sri.John executed Exts.B24 and B24(a) sale deeds in respect of some of the items of properties from his share in 'A' schedule to Ext.A1. Similarly, sale deed was executed on 05.02.1982 also under Ext.B2 in favour of another ``` ``` A.S.No.88/2003, C.O.NO.85/2003, R.F.A.Nos.565/2004 & 76/2005 ``` ``` -:48:- ``` ``` person transferring some portion of land again from 'A' schedule. Ext.A5 is also a sale deed executed by Sri.John in favour of Sri.Pylo on 12.07.1979. ``` ``` 37.It could be seen from all these documents that Sri.John acknowledged and accepted Ext.A1 partition deed as binding on him. This conduct of Sri.John indicates that properties held by him were mutually divided between the brothers, as if they were co-owners of the property. ``` ``` 38.Sri.Pylo who obtained 'B' schedule in Ext.A1 also conveyed his rights in favour of some of the third parties by executing Exts.B3, B4 and B24(e) on 11.02.1982. There is nothing at all on record to disclose that until the death of Sri.John on 01.09.1985, he conducted himself in any such manner as to prevent or exclude Sri.Pylo from enjoying rights given under Ext.A1. ``` ``` 39.Even though appellant in A.S.No.88/2003 has not raised a specific plea in the plaint that ``` ``` A.S.No.88/2003, C.O.NO.85/2003, R.F.A.Nos.565/2004 & 76/2005 ``` ``` -:49:- ``` ``` Ext.A1 is a family settlement deed, reasonable interpretation of the recitals in the deed legitimately suggest that it has all the characteristic features of a family settlement deed. The document as a whole discloses that the properties were shared and distributed between the parties each other in their common interest and welfare with the intent to keep peace within the family and maintain good relationship. ``` ``` 40.That means notwithstanding Pylo not having held pre existing title suit property, Sri. John out of his free will and wisdom chose to constitute brother, Pylo as a co-owner of the property. The words constituting Pylo to be a co-owner of the property are evident from the recitals in Ext.A1. The recitals in Ext.A1 cannot be rejected as mere words acknowledging title of a person who did not have pre existing legal rights; but are of conscious expressions by which Sri.John constituted his brother Pylo to be a co-owner of ``` ``` A.S.No.88/2003, C.O.NO.85/2003, R.F.A.Nos.565/2004 & 76/2005 ``` ``` -:50:- ``` ``` the property. The contention of the appellants in R.F.A.Nos.565/2004 and 76/2005 that recitals in the partition deed did not affect the rights of Sri.John over suit property is, therefore, devoid of any merits. ``` ``` 41.Though recitals in the partition deed do not contain the ratio of share which parties agreed to accept for division of the suit property between them, the subsequent conduct of Sri.John indicates that both of them wished the suit property to be shared in equal moieties. The conduct of Sri.John in this respect, in O.P.(LA) No.189/1984 evidences the above intention. ``` ``` 42.I am satisfied from the foregoing discussion that Sri.Pylo acquired half right in the suit property as co-owner and his rights devolved on appellant in A.S.No.88/2003 by virtue of Ext.A2. The finding of the court below that each of the children of Thoma inherited him by [1]/6 share in the suit property after his death, is ``` ``` A.S.No.88/2003, C.O.NO.85/2003, R.F.A.Nos.565/2004 & 76/2005 ``` ``` -:51:- ``` ``` illegal and liable to be set aside. ``` ``` 43.On the other hand, the fact remains that after death of John, the appellants in R.F.A.Nos.565/2004 and 76/2005 inherited his half share in the property and became co-owners of suit property along with appellant in A.S.No.88/2003. ``` ``` 44.The sole appellant in A.S.No.88/2003 passed away during the pendency of appeal and his legal representative was brought on record and arrayed as additional appellant No.2. ``` ``` 45.In view of the discussion above, additional appellant No.2 is entitled to a declaration that he has half right in the suit property and to a decree for partition and separate possession of the same. The impugned judgment and decree are, therefore, liable to be set aside and modified accordingly. ``` ``` 46.In the result, R.F.A.Nos.565/2004, 76/2005 and Cross-Objection No.85/2003 are dismissed. A.S.No.88/2003 is allowed and the ``` ``` A.S.No.88/2003, C.O.NO.85/2003, R.F.A.Nos.565/2004 & 76/2005 ``` ``` -:52:- ``` ``` impugned judgment and decree of the court below is modified as under: ``` ``` O.S.No.25/1992 is decreed declaring second appellant's title to half share in the suit property and she is also granted a decree for partition and separate possession of the same. The share of profits due to her shall be determined by the court below in the final decree proceedings in ``` ``` the suit. O.S.No.8/1993 is dismissed. The appellant in A.S.No.88/2003 will get cost of the appeal also. ``` ``` All pending interlocutory applications will stand closed. ``` ``` Sd/- ``` ## **`T.V.ANILKUMAR,JUDGE`** ``` DST/ami ``` ``` //True copy/ P.A.To Judge ```