Balan v. Mohanan and Others (Regular Second Appeal)

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MRS. JUSTICE M.R.ANITHA THURSDAY, THE 15[TH] DAY OF DECEMBER 2022 / 24TH AGRAHAYANA,** ## **1944** ## **RSA NO. 1152 OF 2014** **AGAINST THE DECREE AND JUDGMENT DATED 13.08.2014 IN OS 1416/2008 OF ADDITIONAL MUNSIFF COURT, IRINJALAKUDA AGAINST THE DECREE AND JUDGMENT DATED 30.11.2011 IN AS 25/2012 OF PRINCIPAL SUB COURT,IRINJALAKUDA** ## **APPELLANT/APPELLANT/PLAINTIFF:** BALAN AGED 70 YEARS S/O. PERAMANGALATH RAMAN, KARUVAKKUNNUDESOM, KALLUR VILLAGE, MUKUNDAPURAM TALUK, THRISSUR DISTRICT. BY ADV SRI.T.N.MANOJ ## **- RESPONDENTS/RESPONDENTS DEFENDANTS 1 TO 7:** - 1 MOHANAN, AGED 56 YEARS S/O. ERAMANGALATH RAMAN, KARUVAKKUNNU DESOM, KALLUR VILLAGE, MUKUNDAPURAM TALUK, 691585 - 2 JALAJA, AGED 55 YEARS W/O. PERAMANGALATH MADHAVAN, KARUVAKKUNNU DESOM, KALLUR VILLAGE, MUKUNDAPURAM TALUK.691585 - 3 DHANYA, AGED 29 YEARS, D/O. PERAMANGALATH MADHAVAN, KARUVAKKUNNU DESOM, KALLUR VILLAGE, MUKUNDAPURAM TALUK.691585 - 4 RAJESH, AGED 27 YEARS, S/O. PERAMANGALATH MADHAVAN, KARUVAKKUNNU DESOM, KALLUR VILLAGE, MUKUNDAPURAM TALUK.691585 - 5 GIRIJA P.R., AGED 51 YEARS, W/O.SUBRAMANIAN, KUNNATHUPARAMBIL HOUSE, DAMODAR NAGAR, PANAMUKKU VILLAGE, NEDUPUZHA P.O. 685584 2 R.S.A.No.1152 of 2014 6 SARASWATHY MOHAN, AGED 52 YEARS, W/O. POTTAYIL MOHANAN, IRAVIMANGALAM VILLAGE, THRISSUR.P.O, 680001 7 LALITHAKUMARI P.R., AGED 47 YEARS, W/O. KOTTEKKATTU, SHANMUKHAN, PUTHOORKARA, AYYANTHOLE VILLAGE, THRISSUR 680001 BY ADVS. SRI.G.SREEKUMAR (CHELUR) FOR R1 SRI.DEEPU LAL MOHAN FR R2 TI R7 THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 01.12.2022, THE COURT ON 15.12.2022 DELIVERED THE FOLLOWING: R.S.A.No.1152 of 2014 3 ## **M.R.ANITHA, J** ****************** R.S.A.No.1152 of 2014 --------------------------------------------------Dated this the 15[th] day of December, 2022 ## **JUDGMENT** R.S.A.No.1152 of 2014 has been directed against the judgment and decree in A.S.No.25/2012 on the file of Principal Subordinate Judge's Court, Irinjalakkuda which in turn arise out of the judgment and decree in O.S.No.1416 of 2008 on the file of the Munsiff's Court, Irinjalakkuda. 2. Plaintiff is the appellant. (Parties would hereafter be referred as per their status before the trial court.) Suit is one for partition and for execution of relinquishment deeds. Plaintiff, first defendant and defendants 5 to 7 are the children of late Peramangalam Raman. Parties are Hindus governed by Hindu Succession Act, 1956. Defendants 2 to 4 are the widow and children of the late son of Raman by name Madhavan. Parents of the plaintiff, 1[st] defendant and defendants 2 to 4 are no more. R.S.A.No.1152 of 2014 4 Father obtained 13 cents of property in Kalloor Village by virtue of partition deed No.1122 M.E and sale deed of 1969 of Nellai Sub Registry Office. Father died intestate and after his death, the property devolved upon the plaintiff and the defendants. The plaintiff is residing with family in the plaint schedule property and his siblings are residing away in independent homes and matrimonial homes. Plaint schedule property was orally partitioned among the brothers and sisters of the plaintiff on 28.12.2005 as per which the siblings of the plaintiff agreed to relinquish their right over the property in favour of the plaintiff for a consideration of Rs.9,000/- per cent and as per which the plaintiff has to pay the amount on or before 28.06.2006. They also agreed to execute relinquishment deeds in favour of the plaintiff. Subsequently, a document was also executed incorporating the terms and conditions in between the parties. However, defendants 5 to 7 alone executed the release deeds after receiving consideration from the plaintiff. Defendants 1 to 4 did not execute the deed till date. Hence the suit. 3. First defendant alone contested the suit and filed written statement denying the oral partition. The agreement to R.S.A.No.1152 of 2014 5 execute the relinquishment deed is also denied. It is stated in the written statement that the plaint schedule property is worth several lakhs and the attempt of the plaintiff is to grab the plaint schedule property. After the death of father, plaintiff and defendants have equal rights over the scheduled property. Plaintiff is residing in the tharavadu house and the defendants were not allowed to enter into the tharavadu property. He has been taking yield and usufructus from the plaint schedule property for the past 30 years. On 28.12.2005, when the defendant visited the property, plaintiff and his family members manhandled him. Though police complaint was preferred, no action was taken. Hence counter claim has been filed claiming 1/6 share over the scheduled property with future profits. 4. Replication has been filed denying the contentions raised in the written statement. 5. PW1 and PW2 examined and Exts.A1 to A4 series marked from the side of the plaintiff and DW1 was examined from the side of the defendants. 6. The trial court, on evaluating the facts and circumstances and evidence adduced, found that the plaintiff R.S.A.No.1152 of 2014 6 could not prove the oral partition alleged to have taken place on 28.12.2005. Hence the suit for partition filed by the plaintiff is refused and the counter claim filed by the defendants is allowed ordering partition of the plaint schedule property by metes and bounds and declaring the first defendant's 1/6[th] share over the scheduled property. 7. Aggrieved by the same, plaintiff filed appeal before the first appellate court. The decree allowing the counter claim is also challenged by the plaintiff. 8. The first appellate court, on reappreciating the facts and circumstances and evidence, confirmed the dismissal of the suit by the trial court as well as the decree in the counter claim. Aggrieved by the same, appellant/plaintiff approaches this Court in the second appeal challenging the judgment and decree passed by the first appellate court including the decree in the counter claim. 9. Notice was issued to the respondents. Adv.G.Sreekumar Chelur appeared on behalf of the 1[st] defendant. Lower court records were called for and both sides were heard. 7 R.S.A.No.1152 of 2014 10. According to the learned counsel for the appellant/plaintiff, there are specific pleadings in the plaint with respect to Ext.A2 agreement executed between the parties in pursuance of the oral partition entered into between the parties. But, there is no specific denial in the written statement with respect to Ext.A2 and hence no evidence denying the execution of Ext.A2 at the instance of the first defendant can be looked into. 11. He would also contend that in pursuance of the family arrangement and the oral partition, defendants 5 to 7 executed Ext.A3 release deed and relinquished their right over the plaint schedule property. That is a strong circumstance probabilising the oral partition occurred in the family. But, without appreciating the above facts, the courts below discarded the plea of oral partition and the consequent relief sought by the plaintiff. 12. Learned counsel for the contesting defendant (first defendant), on the other hand, would contend that there is no specific plea with respect to Ext.A2 in the plaint and Ext.A2 also has not been produced along with the plaint and the defendant was not aware of the existence of Ext.A2 and hence no specific R.S.A.No.1152 of 2014 8 denial of Ext.A2 was made in the written statement. But, at the same time, there is specific denial with respect to oral partition alleged by the plaintiff in the written statement. He would also contend that though along with the written statement, the defendant filed a counter claim for partition of the plaint schedule property and that has been allowed by the trial court and partition was ordered and that was not challenged by the plaintiff in the first appeal and hence the judgment and decree in the counter claim act as res judicata as against the plaintiff. That would preclude the plaintiff from challenging the decree passed in the counter claim in the second appeal also. Hence, according to the defendant, there is no substantial question of law emerging for consideration in the second appeal. 13. Learned counsel for the plaintiff relies on **Elizabeth v. Saramma : 1984 KLT 606** wherein the object and purpose of pleadings have been dealt with in detail. In paragraph 11 of the said judgment, **Lakshmi Narain v. State (AIR. 1977 Patna 73)** , a Division Bench ruling has been quoted and it has been found that Order VI Rule 2 and Order VIII Rules 2, 3 and 4 of the Code of Civil Procedure, 1908 deal with object of pleadings. The R.S.A.No.1152 of 2014 9 Division Bench observed that " _the sole object of the pleading is, as was pointed out by the Privy Council in (1895)22 Ind App 4 (PC), that each side may be fully alive to the questions that are about to be argued in order that they may have an opportunity to bringing forward such evidence as may be appropriate"_ and hence it has been held that “ _the importance of the pleadings cannot, of course, be ignored, because it is the pleadings that lead to the framing of issues and a trial in every civil case has inevitably to be confined to the issues framed in the suit. The whole object of framing the issues would be defeated if parties are allowed to travel beyond the issues and claim or oppose reliefs on grounds not made in the pleadings and not covered by the issues._ In **Gian Chand and Brothers v. Rattan Lal : 2013 (1) KLT SN 67 (Case No.55) SC,** while dealing with Order VIII Rules 3, 4 and 5 it has been held that Rules 3, 4 and 5 of Order VIII form an integral part dealing with the manner in which allegations of fact in the plaint should be traversed and the legal consequences flowing from its non-compliance. It is obligatory on the part of the defendant to specifically deal with each allegation in the plaint and when the defendant denies any such fact, he R.S.A.No.1152 of 2014 10 must not do so evasively but answer the point of substance. It is clearly postulated therein that it shall not be sufficient for a defendant to deny generally the grounds alleged by the plaintiffs but he must be specific with each allegation of fact. 14. **State of Kerala v. Indira : 2022 (2) KLT 809** is also relied on wherein while dealing with Order VIII Rules 3 and 5, it has been held that a defendant in a written statement is required to deny or dispute the statements made in the plaint categorically, as evasive denial would amount to an admission of the allegation made in the plaint in terms of Order VIII Rule 5 C.P.C. 15. But, in the present case, specific contention of the learned counsel for the defendant is that in the plaint the plaintiff has not made specific reference about Ext.A2. What has been alleged in the plaint is that there was an oral partition on 28.12.2005 and then the terms of oral partition is alleged and further alleged that later including the terms of oral partition, a document was executed in between the plaintiff and the defendants. There is no specific pleading in the plaint that, on 28.12.2005 itself such a document has been executed. R.S.A.No.1152 of 2014 11 Obviously, as rightly contended by the learned counsel for the defendant, Ext.A2 has not been produced along with the plaint also. The specific contention of the defendant is a total denial of oral partition of the plaint schedule properties among the legal heirs. On going through the written statement, it could be seen that he has specifically denied the oral partition either on 28.12.2005 or on any other dates. Again, it is reiterated that no oral partition was effected with respect to plaint schedule property. Since there is no specific averment in the plaint that Ext.A2 was executed on 28.12.2005 in pursuance of the oral partition alleged to have taken place on that date and since Ext.A2 was not produced along with the plaint and the specific plea of the defendant is a total denial of oral partition, the defendant cannot be found fault with for not making specific denial of Ext.A2 in the written statement. There is no specific plea regarding execution of Ext.A2 on 28.12.2005 in the plaint. Hence, none of the decisions cited above are applicable to the fact situation of the present case. 16. Next contention of the learned counsel for the plaintiff is with regard to the oral partition. According to him, defendants R.S.A.No.1152 of 2014 12 5 to 7 executed Ext.A3 release deed which would speak in volumes about the oral partition occurred among the sharers, as alleged by him. So, according to him, Ext.A3 estoppes the defendant from denying the oral partition. But Ext.A3 is a release deed executed by defendants 5 to 7 relinquishing their right in favour of the plaintiff. It is also very pertinent to note that in Ext.A3 which is executed on 24.08.2006, much after the alleged oral partition, it has been specifically stated that after the death of father and mother, the property which was obtained to the father as per the purchase certificates from the Kodakara Land Tribunal, was devolved upon themselves, defendants 5 to 7 as well as their brother Mohanan, 1[st] defendant and defendants 2 to 4, the wife and children of deceased son Madhavan as well as Balan, the plaintiff. It is also stated that the property is jointly possessed and enjoyed by them and out of the same, the three sharers have released their right to the first defendant. Actually Ext.A3 goes against the plaintiffs' case regarding the oral partition occurred on 28.05.2005 since even in Ext.A3 executed on 24.08.2006 there is no mention about the oral partition and the parties to Ext.A3 categorically agreed about joint ownership R.S.A.No.1152 of 2014 13 and possession of the property by the plaintiff and defendants and their share alone has been released in favour of the plaintiff. Ext.A3 actually supports the case of the first defendant that no oral partition, as alleged, has taken place on 28.05.2005. Though the plaintiff examined PW2, the scribe in Ext.A2, both the courts below were not prepared to accept the evidence of PW2. It has been found by the first appellate court that PW2 is a tutored and partisan witness and his evidence will not in any way help the plaintiff to prove Ext.A2. Trial court also disbelieved PW2 and it has been found that he could not remember as to when Ext.A2 was prepared and he also have no direct knowledge about the contents of Ext.A2 and the oral partition alleged. So, in effect, both courts below were not prepared to accept the evidence of PW2 and Ext.A2. So, I do not find any justifiable reason to take a different view with regard to execution of Ext.A2. 17. It is true that learned counsel for the plaintiff relied on ## **Thulasidhara and Another v. Narayanappa and Others :** **(2019) 6 SCC 409** wherein it has been held that whether unregistered document of family arrangement can be used as R.S.A.No.1152 of 2014 14 corroborative evidence as explaining the arrangement made thereunder and conduct of the parties and it is also held that if partition of joint family took place and document containing signatures of all members containing list of properties partitioned can be used as corroborative evidence. In **Ravinder Kaur Grewal vs Manjit Kaur : (2020) 9 SCC 706** it has been held that parties having acted upon family settlement to the prejudice of the other party, it was not open to them to resile from the said arrangement. Thus, they are estopped from disowning the arrangement already reached, acted upon and so recorded in the memorandum of family settlement. It is also held that, the courts have, therefore, leaned in favour of upholding a family arrangement instead of disturbing the same on technical or trivial grounds. But, in the present case, it is already found that the plaintiff could not plead and prove convincingly the family arrangement or Ext.A2, the agreement executed between the parties. 18. On the other hand, Ext.A3, the release deed alleged to have been executed in pursuance of Ext.A2 family settlement does not make any reference with respect to Ext.A2. So, this is a R.S.A.No.1152 of 2014 15 case in which the plaintiff though made a miserable attempt to set up an oral partition or family arrangement, could not establish the same and both courts below found against the plea of oral partition. 19. A contention was also raised by the learned counsel for the defendant that the counter claim ordering partition of the plaint schedule property by the trial court is not challenged by the plaintiff in the first appellate court and hence the judgment in counter claim will operate as res judicata in entertaining the appeal and consequently the second appeal filed is also not maintainable. But the learned counsel for the appellant brought to my attention the fact that the plaintiff had challenged the decree in the counter claim, by which the partition was ordered, before the first appellate court and court fee also has been paid in that regard. On verifying the appeal memorandum filed by the appellant before the first appellate court also, as rightly contended by the learned counsel, court fee seem to have been paid with respect to counter claim also. True that appellate court only stated a passing sentence about the confirmation of the decree in terms of the counter claim. But detailed discussion may R.S.A.No.1152 of 2014 16 not be necessary in view of the fact that the oral partition on the basis of Ext.A2 has been found against and the suit has been dismissed. So, the contention of the learned counsel for the defendant that the decree in the counter claim has not been challenged by the appellant before the first appellate court is not correct. In this appeal also, since it has already been found that the plaintiff is not entitled for a decree on the strength of oral partition alleged to have taken place, the decree in the counter claim ordering the partition of the plaint schedule property to the extent of ordering 1/6 share of the first defendant/respondent is only to be confirmed. Since defendants 5 to 7 have already released their right as per Ext.A3 in favour of the plaintiff, the trial court ought not have allotted 1/6 share each to defendants 5 to 7 who have not contested the case also. But, at the same time, defendants 2 to 4, the legal heirs of Madhavan, are also entitled to 1/6 share over the scheduled property. So, the decree passed in the counter claim is modified to the above extent. 20. In the result, the second appeal filed by the appellant against the dismissal of the suit is only to be dismissed confirming the judgment and decree passed by the courts below. R.S.A.No.1152 of 2014 17 But, the decree passed in the counter claim allotting 1/6 share each to defendants 5 to 7 is set aside. Hence, decree passed in counter claim is modified to that extent. In the facts and circumstances and relationship between the parties, there is no order as to cost. (sd/-) **M.R.ANITHA, JUDGE** jsr True Copy P.S to Judge