Devaki v. Ponnu (RSA 781 of 2013)

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE SATHISH NINAN** **FRIDAY, THE 21[ST] DAY OF OCTOBER 2022 / 29TH ASWINA, 1944** **RSA NO. 781 OF 2013** **AGAINST THE JUDGMENT AND DECREE IN AS 97/2009 OF DISTRICT** ## **COURT, ALAPPUZHA** **OS 193/2008 OF PRINCIPAL MUNSIFF COURT,ALAPPUZHA** ## **APPELLANT/APPELLANT/DEFENDANT** DEVAKI,AGED 70 YEARS,D/O LATE KOCHUPARU, NIKARTHIL, KATTOOR MURI, KALAVOOR VILLAGE, ALAPPUZHA. BY ADVS. SRI.S.SANAL KUMAR SMT.BHAVANA VELAYUDHAN SMT.T.J.SEEMA ## **RESPONDENT/RESPONDENT/PLAINTIFF:** PONNU,AGED 60 YEARS,D/O LATE KOCHU PARU, HANUMARU VELI, KATTOOR MURI, KALAVOOR FROM NIKARTHIL, KATTOOR MURI, KALAVOOR VILLAGE, ALAPPUZHA-688 522. BY ADVS. SRI.GEORGE MATHEW SRI.K.S.HARIHARAPUTHRAN THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 21.10.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## **Sathish Ninan, J. ============================== R.S.A No.781 of 2013 ========================== Dated this the 21[st] day of October, 2022** ## **JUDGMENT** The concurrent decree in a suit for partition is under challenge by the defendant. The plaint schedule property belonged to one Bava, his wife Kochuparu and the defendant, their daughter, as per Ext A1 sale deed of the year 1955. Both Bava and Kochuparu are no more. Claiming to be another daughter of Bava and Kochuparu, the plaintiff has filed the suit for partition against the defendant with regard to one-half share over the rights of the parents. 2. The status of the plaintiff as daughter of Bava and Kochuparu was denied by the defendant. It was also pleaded that present suit is barred under Order II Rule 2 of the Code of Civil Procedure and Section 11 of the Code of Civil Procedure in the light of Ext B4, the decree in an earlier suit for partition between the R.S.A No.781 of 2013 -: 2 :- parties. 3. During evidence stage, the defendant produced Ext B1 settlement Deed claimed to have been executed by Kochuparu with regard to her share over the property. However, the same was not taken to consideration by the courts. The courts held that, in the light of the earlier litigation between the parties – Ext B4, the defendant is estopped from challenging the status of the plaintiff. It was held that Ext B4 decree specifically left open the right to sue on Ext A1 sale deed for partition and that the present suit is not barred. Accordingly the suit was decreed. 4. Heard the learned counsel Sri.S.Sanal Kumar on behalf of the appellant - defendant and Sri.K.S.Hariharaputhran, learned counsel for respondent – plaintiff on the following Substantial Question of Law. - _“Were the courts right in ignoring Ext B1 Settlement_ _Deed No.3471/1983 executed by Kochuparu in favour of the 1[st]_ R.S.A No.781 of 2013 -: 3 :- _defendant, while determining the shares of the parties?”_ 5. As noticed by the courts, there was an earlier suit for partition which was filed by the defendant in the present suit as plaintiff in respect of another property. The property involved in that suit was the subject matter of a mortgage in favour of a Bank. The suit was filed admitting the status of the present plaintiff who was the 1[st] defendant in the said suit. The said suit was decreed. In the light thereof the courts were right in holding that the challenge against the status of the plaintiff is unsustainable. 6. As regards the plea that the present suit is barred by virtue of order II Rule 2 of the Code of Civil Procedure and Section 11 of the Code of Civil Procedure, suit being one for partition, is a recurring cause of action. The property involved in the present suit was not subject matter in the earlier suit. The cause of action for the earlier suit, as noticed supra, was different from the present suit. All that apart, in Ext R.S.A No.781 of 2013 -: 4 :- B4 decree, the right of parties to seek for partition with respect to the property covered under Ext A1 sale deed herein was specifically left open. In the light thereof, the plea of bar against the suit was rightly negatived by the courts. Before this Court, the appellant does not pursue the above grounds of challenge. 7. The argument of the appellant – defendant is founded on Ext B1 Settlement Deed No.3471 of 1983. Under the said deed, the mother of the parties – Kochuparu conveyed her rights over plaint schedule – Ext A1 property in favour of the defendant. As per Ext A1 Sale Deed, the property was acquired in the names of Bava, Kochuparu and the defendant. Thus each of them held 1/3 shares of the property. The suit was filed claiming one half rights over the shares that belonged to Bava and Kocuparu. If the share of Kochuparu was already conveyed to the defendant under Ext B1 Settlement Deed, then, all that would be available for R.S.A No.781 of 2013 -: 5 :- partition is the 1/3 rd share of Bava. Therefore, Ext B1 is a crucial document while determining the shares of the parties. 8. It appears that, before the trial court, the main dispute was essentially with regard to status of the plaintiff and the partibility of the property; of course the share that plaintiff is entitled to was also an issue. In the written statement, the defendant denied the claim for partition claimed absolute right over the property. Though Ext B1 was produced before the trial court, same was not relied upon by the court for the reason that, there was no plea based on Ext B1 settlement and that, the document was produced after the evidence of plaintiff was over. Though the trial court noticed that the existence of Ext B1 document was not revealed in the earlier suit, that may not be of any significance since the earlier suit did not relate to this property. In the examination of DW1, she has stated that existence of Ext B1 document was R.S.A No.781 of 2013 -: 6 :- communicated to the lawyer but, for some reason, the existence of Ext B1 is not reflected in the written statement. The defendant would not stand to gain in any manner by not disclosing about Ext B1 in the written statement. The reason suggested by DW1 could not be brushed aside. Be that as it may, when there is a registered conveyance regarding a share out of the suit property, the suit being one for partition, said document is very much essential to determine the shares of the parties to the suit. DW1 has deposed that pursuant to Ext B1 mutation has been effected. DW1 was cross examined exhaustively based on Ext.B1. The learned counsel for the respondent, relying on the judgment of the Apex Court in _**Arulmigu Chokkanatha Swamy Koil Trust,Virudhunagar v. Chandran and Others (2017) 3 SCC 702)**_ would contend that in the absence of a specific plea based on Ext.B1, the same could not be relied on. In that case, the suit was one for declaration of title and for mandatory injunction. The claim of the plaintiff R.S.A No.781 of 2013 -: 7 :- was that his predecessor in interest got title over the property by inheritance. At the evidence stage, a totally different case was sought to be set up by him that, the predecessor got title under a sale deed. It was in such background that the Apex Court held that the document could not be relied without a plea. On the facts obtaining in this case as noticed supra, the said decision does not apply. The document Ext.B1, is of significance in determining the shares in the suit for partition. Substantial question of law is answered accordingly. 9. It is only proper that the matter be remanded back to the trial court to enter a finding on Ext B1 and its consequence, if any, on the respective shares of parties. The finding on the status of the plaintiff and the partibility of the plaint schedule property is concluded. The property is held to be partible. What remains for adjudication in the proceedings after remand at the preliminary stage is the shares of the respective R.S.A No.781 of 2013 -: 8 :- parties, which would be dependent on a finding on Ext B1 document. It is deemed proper that the parties be permitted to amend the pleadings and to adduce further evidence, if they so choose. 10. Resultantly, the decree and judgment of the court below insofar as it relates to the declaration of shares of the parties is set aside. Matter is remanded back to the trial court for fresh disposal. The suit being of the year 2008, the trial court will expedite the proceedings. Parties to appear before the trial court on 23.11.2022. Sd/- **Sathish Ninan, Judge** vdv