Eladath Unnicheriya alias Nani Amma v. Malukutty Amma and others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** **THE HONOURABLE MR. JUSTICE A.HARIPRASAD** **TUESDAY, THE 4TH DAY OF APRIL 2017/14TH CHAITHRA, 1939** **SA.No. 45 of 2001 (E) ----------------------** **AGAINST THE JUDGMENT & DECREE DATED 30.10.2000 IN AS 99/1995 AND CROSS OBJECTION OF DISTRICT COURT, KOZHIKODE** **AGAINST THE JUDGMENT & DECREE DATED 31.01.1995 IN OS 288/1988 of II ADDITIONAL SUB COURT, KOZHIKODE** **APPELLANTS/RESPONDENTS 1 & 2/DEFENDANTS 1 & 2:** **----------------------------------------------** **1. ELADATH UNNICHERIYA ALIAS NANI AMMA, W/O.LATE MUNDAKKAL PILATHOTTATHIL RAMAN NAIR, RESIDING AT THAYYIL HOUSE, MADAVOOR AMSOM DESOM, KOZHIKODE TALUK (DIED)** ***. LR RECORDED. 2. PRABHAKARAN NAMBIAR, S/O.ELADATH UNNICHERIYA ALIAS NANI AMMA -DO- -DO-** **[IT IS RECORDED THAT 1ST APPELLANT DIED AND 2ND APPLLANT IS THE ONLY LEGAL REPRESENTATIVE OF DECEASED 1ST APPELLANT AS PER ORDER DATED 20.01.2003 ON MEMO BEARING CF NO.8145/2002.]** **BY ADVS.SRI.P.G.PARAMESWARA PANICKER (SR.) SRI.R.SUDHIR** **RESPONDENTS/APPELLANTS & RESPONDENTS 3 TO 8/PLAINTIFFS & DEFENDANTS 3 TO 5:** **------------------------------------------------------------------** **1. MALUKUTTY AMMA, D/O.MUKKALI MEETHAL NARAYANI AMMA, PARAKKANDIYIL HOUSE, RESIDING AT MADAVOOR AMSOM DESOM, KOZHIKODE TALUK.** **2. PARAKANDIYIL CHANDRAN NAIR, S/O.MALUKUTTY AMMA, -DO-DO-** **3. -DO- BHARGAVI AMMA, D/O.MALUKUTY AMMA, -DO-DO-** **SA.No. 45 of 2001 (E) ----------------------** **2** **4. -DOVENUGOPALAN NAIR, S/O.MALUKUTY AMMA, -DO-DO-** **5. -DOPREMAN NAIR, -DO-DO-** **6. VARIYEKKANGAL KOYILOTH KANARAN NAIR (DIED) S/O.MUNDAKKAL PILATHOTTATHAL LATE GOVINDAN NAIR, -DO-DO-** **7. PARIKKENGAL KOYILOTH MADHAVI AMMA, D/O.GOVINDAN NAIR, RESIDING AT EDAKKILOT HOUSE, MUTTANCHERY AMSOM DESOM, KOZHIKODE TALUK (DIED)** - ***. LRS IMPLEADED.** **8. VERIKKENGAL KOYILOTH AMBUJAKSHI AMMA D/O.KARTHIYANI AMMA, MADAVOOR AMSOM DESOM, KOZHIKODE TALUK (DIED)** - ***. NAME CORRECTED** **[THE NAME AND ADDRESS OF 8TH RESPONDENT IS DCORRECTED AS KARTHYANI AMMA, REPRESENTED BY AMBUJAKSHI AMMA (GUARDIAN APPOINTED AS PER ORDER IN IA 3648/88 IN OS NO.288/88 DATED 1.11.1998) D/O. KARTHIYANI AMMA, MADAVOOR AMSOM DESOM, KOZHIKDOE TALUK. AS PER ORDER DATED 22.06.2016 IN IA 745/2016.]** - ***. LRS IMPLEADED** **9. PARAKANDIYIL MADHAVAN KUTTY NAIR, S/O.MALUKUTTY AMMA, -DO-DO-** **10. KOYILOTH BALACHANDRAN S/O.KARTHAYANI AMMA MADAVOOR AMSOM DESOM, KOZHIKODE TALUK** **11. KOYILOTH PRAKASAN, S/O.KARTHAYANI AMMA, -DO-DO-** - **ADDL.R12. GANGADHARAN NAIR, S/O.LATE MADHAVI AMMA PILATHOTTATHIL HOUSE, MADAVOOR POST MADAVOOR, KOZHIKODE DISTRICT - 673 583** - **ADDL.R13. PADMANABHAN NAIR, S/O.LATE MADHAVI AMMA EDAKKILOTT HOUSE, 'VIPANCHIKA', MUTTANCHERY POST, MUTTANCHERY, KOZHIKODE DISTRICT - 673 585.** **SA.No. 45 of 2001 (E) ----------------------** **3** |**ADDL.R14.**|**DAMODARAN NAIR, S/O.LATE MADHAVI AMMA**| |---|---| ||**PILATHOTTATHIL HOUSE, MADAVOOR POST**| ||**MADAVOOR, KOZHIKODE DISTRICT - 673 583**| |**ADDL.R15.**|**RAVEENDRAN NAIR, S/O.LATE MADHAVI AMMA**| ||**EDAKKILOTT HOUSE**| ||**MUTTANCHERY POST, MUTTANCHERY,**| ||**KOZHIKODE DISTRICT - 673 585.**| |**ADDL.R16.**|**JANAKI AMMA, D/O.LATE MADHAVI AMMA &**| ||**W/O.GOVINDAN NAIR, KOYILATH HOUSE,**| ||**MADAVOOR POST, MADAVOOR, KOZHIKODE DISTRICT-673 583**| |**ADDL.R17.**|**RATHEESH, S/O.LATE MADHAVI AMMA**| ||**KOYILATH HOUSE,**| ||**MADAVOOR POST, MADAVOOR, KOZHIKODE DISTRICT-673 583**| |**ADDL.R18.**|**REMITHA, D/O.LATE MADHAVI AMMA,**| ||**PERIYANKOTT HOUSE, PARANNUR POST,**| ||**KOZHIKDOE DISTRICT - 673 585**| ||**[LEGAL REPRESENTATIVES OF DECEASED 7TH RESPONDENT ARE**| ||**IMPLEADED AS ADDL.R12 TO R18 AS PER ORDER DATED**| ||**24.07.2013 IN IA 2127/12.]**| |**ADDL.R19.**|**VERIKKENGAL KOYILATH AMBUJAKSHI AMMA**| ||**D/O.KARTHIYANI AMMA, MADAVOOR AMSOM DESOM**| ||**KOZHIKODE TALUK**| |**ADDL.R20.**|**LEELA, KOYILATH HOUSE,**| ||**MADAVOOR PO, KOZHIKODE - 673 583**| |**ADDL.R21.**|**JANAKI, KOYILAH HOUSE,**| ||**MADAVOOR PO, KOZHIKODE - 673 583**| ||**[THE LEGAL REPRESENTATIVES OF DECEASED 8TH RESPONDENT ARE**| ||**IMPLEADED AS ADDL. RESPONDENTS 19 TO 21 AS PER THE ORDER**| ||**DATED 25.10.2013 IN IA 2731/2013 IN S.A.45/2001]**| ||**[RESPONDENTS 10 AND 11 ARE RECORDED AS THE LEGAL**| ||**REPRESENTATIVES OF DECEASED 8TH RESPONDENT AS PER THE**| ||**ORDER DATED 07.03.2014 IN IA 2732/2013 IN S.A.45/2001]**| ||**R10 & R11 BY ADVS. SMT.SHAHANA KARTHIKEYAN**| ||**SRI.M.C.SEN**| ||**SRI.M.P.SREEKRISHNAN**| ||**R7,R12-R18 BY ADVS. SRI.V.V.SURENDRAN**| ||**SRI.P.A.HARISH**| ||**R23,R3 BY ADV. SRI.P.R.VENKETESH**| ||**R19 - R21 BY ADVS. SRI.M.P.SREEKRISHNAN**| ||**SMT.M.H.BINDU**| **THIS SECOND APPEAL HAVING BEEN FINALLY HEARD ON 13.03.2017, THE COURT ON 04.04.2017 DELIVERED THE FOLLOWING:** ## **A. HARIPRASAD, J. ------------------------------S.A.No.45 of 2001 ---------------------------------------------Dated this the 4[th] day of April, 2017** ## **JUDGMENT** Defendants 1 and 2 in O.S.No.288 of 1988 on the file of the Sub Court, Kozhikode have filed this second appeal against the decree passed by the District Court, Kozhikode in A.S.No.99 of 1995, whereby the trial court's finding was reversed. Pending the appeal, the 1[st] appellant died. It is recorded that the 2[nd] appellant is the only legal representative of deceased 1[st] appellant. Thereafter, 7[th] respondent died and her legal representatives have been impleaded as additional respondents 12 to 18. 2. Facts, relevant for disposal of the appeal, are as follows: This is a suit for partition. Plaint A schedule shows the genealogy of parties. Property described in plaint B schedule was in the possession and enjoyment of Mundakkal Pilathottathil Govindan Nair. He obtained the property as per Ext.A1 in the year 1904. From A schedule genealogy, it can be seen that deceased Govindan Nair had two sisters, by name Cherathamma **S.A.No.45 /2001** **2** and Lakshmi Amma. It is an undisputed case that Lakshmi Amma died issueless. Cherathamma had a son by name Raman Nair, who is the predecessor in title of the sole surviving appellant. Both Govindan Nair and his wife Itti Mani Amma died. His legal heirs are deceased Lakshmi Amma, who died issueless and 3[rd] defendant Kanaran Nair, 4[th] defendant Madhavi Amma and 5[th] defendant Karthianiamma, alongwith deceased Kunhikrishnan Nair. Plaintiffs are the wife and children of deceased Kunhikrishnan Nair. 3. After death of Govindan Nair, the property devolved on his legal heirs and members in the Tavazhy. It is admitted in the plaint that the predecessor in title of the appellant, namely Raman Nair, also got joint possession over plaint B schedule property. According to the plaint averments, plaintiffs are entitled to get 3/30 shares in plaint B schedule property. Defendants 1 and 2 are entitled to get 15/30 shares and the 3[rd] defendant is entitled to get 4/30[th] share. Defendants 4 and 5 are also entitled to get share in the property. It is the averment in the plaint that till the death of Raman Nair, plaint B schedule property was managed by him and the 3[rd] defendant, for and on **S.A.No.45 /2001** **3** behalf of themselves and for the plaintiffs and defendants 4 and 5. During the life time of Raman Nair, plaintiffs used to get share of profits. But on the death of Raman Nair, his legal heirs, namely defendants 1 and 2, started managing the property and they did not share profits. Therefore, the suit was filed for partition. 4. The appellant and the 1[st] defendant (who died subsequently) entered appearance and filed a written statement disputing the maintainability of the suit. According to them, the plaintiffs have no right or joint possession over plaint B schedule property. They contended that plaint B schedule property was never in the joint possession and enjoyment of the plaintiffs and defendants. Allegations in the plaint that plaint B schedule property was obtained by Govindan Nair as a member of Tavazhy and was in possession and enjoyment of the same are denied by the appellant. Govindan Nair had no right or possession over plaint B schedule property. He never paid basic tax for the property. Plaint B schedule property was in the possession and enjoyment of Narayanan Namboodiri under a Kanam deed of the year 1903. That document is marked as **S.A.No.45 /2001** **4** Ext.B4. He effected improvements thereon and was enjoying the same. After that, his wife Cherathamma (sister of Govindan Nair) was in possession and enjoyment of the same on an oral lease. While so, she got a document executed in the year 1906 (Ext.B7) and thereby she derived possession of the property. After that, in 1912, Janmam right was purchased by Cherathamma as per a registered document. Subsequently, in 1939, Cherathamma's husband Narayanan Namboodiri gifted his kanam right in respect of plaint B schedule property as per Ext.B3 in favour of Cherathamma and his son Raman Nair and Kalyani Amma, who was his grand daughter. Thereupon Cherathamma and children were in absolute possession and enjoyment of plaint B schedule property. It is the allegation that, in 1904, for and on behalf of Cherathamma, her brother Mundakkal Govindan Nair got Ext.A1 document executed from Narayanan Namboodiri. But it was never acted upon. As per Ext.A1, Govindan Nair never derived possession of the property. According to the defendants, it is also recited in Ext.B3 that Ext.A1 was executed for and on behalf of Cherathamma. Mutation was also effected in the name of Cherathamma and till **S.A.No.45 /2001** **5** her death, she was in possession and enjoyment of plaint B schedule property. Kalyani Amma expired issueless and on the death of Cherathamma, her legal heir Raman Nair got absolute right over the property. On the death of Raman Nair, his interest devolved on the appellant and his mother, who died subsequently. As such, the appellant is the absolute owner of the property. According to the defendants, the genealogy shown in plaint A schedule is incorrect. It is further contended by the defendants that Govindan Nair's another son by name Narayanan Nair was not included in the genealogy shown in plaint A schedule. The court fee paid under Section 37 (2) of the Kerala Court Fees and Suits Valuation Act, 1959 is incorrect. The plaintiffs are not in joint possession of the property. The claim for partition is without any basis and the suit is liable to be dismissed. 5. It is pertinent to note that none of the parties adduced any oral evidence in this case. Exts.A1 to A6 were marked on the side of the plaintiffs and Exts.B1 to B13 were marked on the side of the defendants. The trial court, after considering the documentary evidence, found that, Ext.A1 document, through **S.A.No.45 /2001** **6** which the plaintiffs claimed right, was not acted upon and by virtue of that document, deceased Govindan Nair did not derive any right. It was also found by the court below that the suit is bad for non-joinder of necessary parties, going by the plaint averments itself. 6. The plaintiffs took up the matter in appeal before the learned District Judge. After considering the documentary evidence, the learned District Judge found that dismissal of the suit by the trial court was unsustainable. The judgment and decree of the trial court was set aside and the suit was decreed by the lower appellate court. Hence the contesting defendants preferred this appeal. 7. I heard Adv.P.G.P.Panicker, learned Senior Counsel appearing for the appellant and Sri.Venketesh and Sri.Harish appearing for respondents 7 and 12 to 18.. 8. The questions of law framed for decision in the appeal are as follows: 1. Whether the lower appellate court was right in holding that the plaint property belonged to the tavazhy of Govindan Nair and Cherathamma in spite of the fact that none of the title deeds create any **S.A.No.45 /2001** **7** right either expressly or impliedly in favour of the tavazhy ? 2. Has not the lower appellate court gone wrong in holding that the property belonged to the tavazhy, in clear contradiction of the terms of the relevant title deeds and whether the finding in this regard is not perverse as there is total lack of evidence to support the same ? 3. Is not the finding of the lower appellate court that the property is a tavazhy property opposed to all the fundamental principles of interpretation of documents as none of the title deeds gives even an indication of creation of any right or interest in favour of the tavazhy and whether the court below is correct in taking a view which is expressly in conflict with the terms of the deeds ? ## 4. When the words of the title deeds are clear and unambiguous was it proper and lawful for the court below to have read something which was not there (creation of right in favour of tavazhy) and whether or not the court below has violated the basic tenets of interpretation of documents as settled by the apex court of the country in doing so and in holding against the express terms of such deed ? 9. It is seen from the records that the appeal was earlier disposed of by a learned Single Judge by judgment dated **S.A.No.45 /2001** **8** 07.03.2014. The appellant took up the matter in SLP No.19512 of 2014 in Civil Appeal No.14638 of 2015 before the Supreme Court of India. By order dated 16.12.2015, the Supreme Court allowed SLP. In the appeal, the judgment and decree passed by a learned Single Judge was set aside. The matter was remitted to this Court for adjudication in accordance with law. 10. Learned Senior Counsel appearing for the appellant contended that the lower appellate court, without any legal justification, interfered with the well reasoned judgment of the trial court. It is the contention of the appellant that the plaintiffs should not have been allowed to raise a plea that they have a partible right over the property without adducing any oral evidence. Merely by looking at the documents, most of the issues involved in the case should not have been resolved. Viewing from this angle, dismissal of the suit by the trial court is perfectly justifiable, is the contention raised by the appellant. Per contra, learned counsel appearing for the contesting respondents argued that even without any oral evidence, the plaintiffs have established their claim that deceased Govindan Nair had taken a lease of plaint B schedule property for and on **S.A.No.45 /2001** **9** behalf of the Tavazhy. 11. Learned Senior Counsel took me through the various paragraphs in the plaint. In paragraph III (1), it is alleged that deceased Govindan Nair obtained a lease of plaint B schedule property as per Ext.A1 for and on behalf of his Tavazhi, but, in the next breath, in the same paragraph, it is mentioned that the property exclusively belonged to Govindan Nair. Learned Senior Counsel argued that this dichotomy cuts at the root of the contention of the plaintiffs. In answer to this argument, learned counsel for the respondents would contend that at best, it can be treated as a clerical mistake. However, I shall deal with the documents to understand the case of the parties properly because of the lack of oral evidence on both sides. 12. Ext.A1 is the most crucial document. Interpretation of this document is the pivotal question involved in this case. According to the appellant, though such a document was executed, it never came into operation and it was never acted upon. The recitals in Ext.A1 would show that the document was executed on 21.03.1904 though it was registered on 04.05.1904. The nomenclature of the document is verumpattam kychit (a **S.A.No.45 /2001** **10** tenancy arrangement). In 1904, unchallengeably there was no legal concept called fixity of tenure for verumpattam. If the document had come into effect, certainly it would have established a landlord-tenant relationship between deceased Govindan Nair and Narayanan Namboodiri, who was none other than his brother-in-law. And it is relevant to note that there was no legal embargo at that time to evict a verumpattam right holder. Recitals in the document would show that deceased Narayanan Namboodiri was having kanam right over the property and the land was outstanding in the possession of Govindan Nair on an oral lease. Govindan Nair, as per Ext.A1, had agreed to give Rs.21/- as verumpattam (rent) per annuam. Alongwith cash payment, he had agreed to provide usufructs like coconuts, jack fruit, etc. to the kanam right holder. Admittedly, the property was described as Thayilparambu having a measurement of 57X67(6 feet koles). In the document, a column indicating possession of the property is also appended. It shows that prior to and after Ext.A1, the property was in the possession of Govindan Nair. On the basis of these features in the document, it was contended by Sri.Venketesh and Sri.Harish, **S.A.No.45 /2001** **11** learned counsel for the respondents that the appellant is estopped from contending that Govindan Nair never derived possession of the property. Per contra, learned Senior Counsel for the appellant raised the following contentions: 13. It is vehementally argued that Ext.A1 is a document unilaterally executed by Govindan Nair in favour of Cherathamma's husband Narayanan Namboodiri. There is no material produced to show that anything transpired in accordance with the terms and conditions in Ext.A1. It is the argument advanced on behalf of the appellant that anybody could execute a document in the name of another person unilaterally without knowledge of the second person. During 1904, there was no statutory requirement to affix any photograph of the person in whose name the document was executed. It is therefore contended that the plaintiffs should be non-suited for not producing any document to show that Ext.A1 had come into effect. Mere production of Ext.A1 without any evidence to show that it was acted upon will not help the plaintiffs, is the contention. 14. Learned Senior Counsel relied on the definition of **S.A.No.45 /2001** **12** 'lease' in Section 105 of the Transfer of Property Act, 1882 (for short, T.P.Act). Section 105 is as follows: **“Lease defined.** - A lease of immovable property is a transfer of a right to enjoy such property, made for a certain time, express or implied, or in perpetuity, in consideration of a price paid or promised, or of money, a share of crops, service or any other thing of value, to be rendered periodically or on specified occasions to the transeror by the transferee, who accepts the transfer on such terms. **Lessor, lessee, premium and rent defined.** - The transferor is called the lessor, the transferee is called the lessee, the price is called the premium, and the money, share, service or other thing to be so rendered is called the rent.” 15. Relying on **Asa Ram v. Mst.Ram Kali [AIR 1958 SC 183]** , it is contended by the learned Senior Counsel that in the absence of any document or reliable evidence to hold that Ext.A1 was acted upon, the plaintiffs' contention that Govindan Nair derived right and possession over the property cannot be accepted as it is only a unilaterally executed document. In **Asa Ram's case** , the Supreme Court expressed a view that execution of a lease deed in that case was probabilised for the reason that **S.A.No.45 /2001** **13** the mortgagees, under whom the leases were said to have been made, have given evidence that they accepted Kabuliat (lease deed) and received rent as provided therein. It is therefore contended that it is incumbent on the plaintiffs to establish that Ext.A1 had come into effect. 16. Another decision relied on by the learned Senior Counsel to advance his argument is **Rajendra Pratap Singh v. Rameshwar Prasad [1998 (7) SCC 602]** . Reliance was placed on Section 107 of the T.P.Act which reads as follows: “ **Leases how made** .- A lease of immovable property from year to year, or for any term exceeding one year, or reserving a yearly rent, can be made only by a registered instrument. All other leases of immovable property may be made either by a registered instrument or by oral agreement accompanied by delivery of possession. Where a lease of immovable property is made by a registered instrument, such instrument or, where there are more instruments than one, each such instrument shall be executed by both the lessor and the lessee: Provided that the State Government may, from time to time, by notification in the Official Gazette, direct that lease of immovable property, other than leases from year to year or for any term exceeding one **S.A.No.45 /2001** **14** year, or reserving a yearly rent, or any class of such leases, may be made by unregistered instrument or by oral agreement without delivery of possession.” 17. It is evident from the Section that where a lease of immovable property is made by a registered document, such instrument or, where there are more instruments than one, each such instrument shall be executed by both the lessor and the lessee. Considering this provision, the Supreme Court held in **Rajendra Pratap Singh's case (supra)** thus: “9. But as for the third paragraph of Section 107 of the Transfer of Property Act, the only requirement is that execution of the lease through a registered instrument shall be a joint endeavour of both the lessor and lessee. The said paragraph in the section was introduced by the Transfer of Property (Amendment) Act, 1929 (Act 20 of 1929). The reason for introducing the aforesaid paragraph in the said section was to settle the conflict of opinion expressed by different High Courts regarding the validity of a lease made through a rent note signed by the lessee alone. The Allahabad High Court has held the view that a lease can be created only by an instrument signed by both the lessor and lessee while the Madras High Court took a contrary view. Both views received approval by different High Courts. In the light of the said conflict, **S.A.No.45 /2001** **15** the legislature thought it fit to resolve it by introducing the third paragraph in this section. 10. A close reading of the third paragraph indicates that there is no stipulation that the instrument must be signed by both parties. The requirement is that when the lease is made by a registered instrument, “such instrument shall be executed by both the lessor and lessee”. What is underlined in it is that the creation of a lease is not a unilateral exercise of one of the parties but a bilateral endeavour of both the lessor and the lessee. 11. The word “execute” is given the meaning in Black's Law Dictionary as: “To complete; to make; to sign; to perform; to do; to follow out; to carry out according to its terms; to fulfill the command or purpose of.” In Words and Phrases (Permanent Edition), the word “execute” is given the meaning as “To complete as a legal instrument; to perform what is required to give validity to.” An instrument is usually executed through multifarious steps of different sequences. At the first instance, the parties might deliberate upon the terms and reach an agreement. Next, the terms so agreed upon would be reduced to writing. Sometimes one party alone would affix the signature on it and deliver it to the other party. Sometimes both parties would affix their signature on the instrument. If the document is required by law to be registered, both parties can be involved in the **S.A.No.45 /2001** **16** process without perhaps obtaining ht signatures of one of them. In all such instances, the instrument can be said to have been executed by both parties thereto. If the instrument is signed by both parties, it is presumptive of the fact that both of them have executed it, of course it is only rebuttable presumption. Similarly if an instrument is signed by only one party, it does not mean that both parties have not executed it together. Whether both parties have executed the instrument will be a question of fact to be determined on evidence if such a determination is warranted from the pleadings of the particular suit. Merely because the document shows only the signature of one of the parties, it is not enough to conclude that the nonsigning party has not joined in the execution of the instrument. 18. From the excerption, it is evident that whether both parties have executed an instrument will be a question of fact to be determined on evidence in each case. 19. Learned Senior Counsel contended that the plaintiffs had actual knowledge from the beginning itself that the property belonged exclusively to Cherathamma. Ext.B3 gift deed unequivocally show that the property was outstanding in the possession of Cherathamma. Recitals in Ext.B3 would show that **S.A.No.45 /2001** **17** the document was executed on 02.08.1939 and it was registered on 04.08.1939. Executant Narayanan Namboodiri was the husband of the 1[st] executee Cherathamma and the father of 2[nd] executee, Raman Nair and grandfather of 3[rd] executee, Kalyani, who later died issueless. The document is described as a gift deed. It is clearly recited in Ext.B3 that the property was taken on kanam right by executant Narayanan Namboodiri and the property was handed over to Mundakkal Govindan Nair, who resided at Pilathottathil for and on behalf of 1[st] executant Cherathamma (sister of Govindan Nair). It is mentioned in Ext.B3 that Ext.A1 document was executed for and on behalf of Cherathamma and she was in actual possession of the property. It is pertinent to note that in 1904, there was no law prohibiting creation of real ownership and ostensible ownership which was later prohibited by Benami Transactions (Prohibition) Act, 1988. Terms and conditions in Ext.B3 clearly show that Narayanan Namboodiri, out of love and affection to his wife, son and grandchild, had gifted the property to Cherathamma and it is clearly mentioned that she was in possession of the property. Schedule attached to the document also show that even prior to **S.A.No.45 /2001** **18** and subsequent to the document, Cherathamma was in possession of the property. 20. It can be seen from Ext.B3 that clear assertions are made in this document to show that Cherathamma was in possession of the property. Relevant fact to be noted here is that no specific challenge has been made by the plaintiffs/respondents against Ext.B3. 21. Learned Senior Counsel for the appellant relied on Ext.B7 as well. This document had been executed by said Cherathamma in favour of her husband Narayanan Namboodiri much prior to Ext.B3; ie, on 10.02.1906. It is mentioned in this document that the property was outstanding in the possession of Cherathamma as per an oral lease and yearly rent fixed was Rs.25/- and anna 8 alongwith other agricultural producer. She was permitted to occupy in the house situated in the property. The schedule to this document also shows that Cherathamma was put in possession in 1906. It can be seen from the document that it was registered on 01.03.1906. from the residence of Cherathamma known as Thayyil Veedu. It is therefore contended by the learned Senior Counsel that atleast from 1906, **S.A.No.45 /2001** **19** Cherathamma was in exclusive possession of the property and she was residing in the house in the property. Name of the paramba is Tayyil Paramba and Cherathamma is described as a person residing in Tayyil Paramba. Therefore, it is contended that Ext.A1 could not have come into effect by virtue of Exts.B7 and B3. 22. Another point raised by the learned Senior Counsel to attack the validity of Ext.A1 is the recitals in Exts.B5, B6 and B8. These three documents consecutively executed are partition deeds. In Exts.B5, B6 and B7, the first executant is Cherathamma's son Raman Nair. As per Ext.B5, executants 19 to 24 are the legal representatives of deceased Govindan Nair. It is contended on the basis of the recitals in Ext.B5 that executants 19 to 24 renounced their right in respect of certain properties and the present plaint schedule item was not included in Ext.B5. Similarly, as per Ext.B6 partition deed, deceased Raman Nair (predecessor in title of the appellant) and legal representatives of Govindan Nair alongwith others partitioned some other property, wherein also the plaint item was not included. Likewise, in Ext.B8, where the above said parties are **S.A.No.45 /2001** **20** involved, consciously omitted to include the plaint item indicating that none of the parties ever treated the plaint item as a Tavazhy tharavadu property liable to be partitioned. In Ext.B8, it is specifically mentioned that all the separate properties of Govindan Nair were to be retained by the legal representatives of him, including the predecessors in title of the plaintiffs. Learned Senior Counsel strongly contended that non-inclusion of these properties in three partition deeds consecutively executed in 1966 is an indication that none of the parties ever considered the plaint schedule property as Tavazhy property as they were fully aware that it was separate property of Cherathamma. From this angle also, the suit claim is not sustainable, contended the learned Senior Counsel. 23. Another document relevant in this context is Ext.A6. That is a janmam assignment deed executed by the janmam right holders in favour of Cherathamma. The deed was executed on 04.01.1912 and it was registered on 10.01.1912. In the document it has been mentioned that the property was outstanding in the possession of a tenant. It is contended by the learned Senior Counsel that by virtue of Ext.B7, it can be seen **S.A.No.45 /2001** **21** that the property was outstanding in the possession of Cherathamma under verumpattam right and the janmi's right assigned through Ext.A6 caused a merger of the derivative right with the superior right. By virtue of these documents, Cherathamma became the absolute owner of the property and that is why the properties were not included in Exts.B5, B6 and B8 partition deeds. 24. Per contra, learned counsel for the contesting respondents argued that non-mentioning of Ext.B7 (Verumpattam kychit executed by Cherathamma in favour of her husband Narayanan Namboodiri) in Ext.B3 gift deed executed by Narayanan Namboodiri in the name of his wife Cherathamma, son Raman Nair and grand daughter Kalyani is a circumstance against the appellant. If Cherathamma was in possession of the property as tenant by virtue of Ext.B7 at the time when Ext.B3 was executed, certainly it would have found a place in Ext.B3, contended the learned counsel appearing for the contesting respondents. According to them, this improbability has not been explained in any of the documents relied on by the appellant. In answer to this argument, learned Senior Counsel contended that **S.A.No.45 /2001** **22** the primary question to be decided is whether Ext.A1 was ever acted upon. It has been forcefully argued by the learned Senior Counsel that there is no scrap of a paper to show that Ext.A1 came into effect and Govindan Nair ever possessed the property either for himself or for the benefit of Tavazhy Taravadu. If that be so, the non-mentioning of Ext.B7 in Ext.B3 is inconsequential, according to the learned Senior Counsel for the appellant. There is some force in the argument. First infirmity in the case of the plaintiffs is that they did not venture to adduce any oral evidence. True, it may be difficult to prove events transpired in the first decade of 20[th] century in a suit filed in the year 1988. However, the plaint assertions could have been proved either through oral evidence or acceptable documentary evidence. By applying the principles in Sections 101 and 102 of the Indian Evidence Act, 1872, it can only be held that the burden of proof in a suit lies on that person who would fail if no evidence at all were given on either side. In this case, it is the burden of the plaintiffs to establish the partibility of the estate. It cannot be said that merely by producing Ext.A1 they had discharged their burden of proving that Govindan Nair acquired the property for **S.A.No.45 /2001** **23** and on behalf of Tavazhy Taravadu. Even the recitals in Ext.A1 do not reveal that fact asserted in the plaint. Therefore, the contention of the respondents in this regard is not sustainable. 25. Learned counsel appearing for the contesting respondents contended that the plea of ouster and adverse possession raised by the appellant has not been established. True, as an alternative contention, the appellant had opposed the suit by raising a contention that the plaintiffs' rights, if any, had been lost by ouster adverse possession and limitation. It is true that no material is brought out by the appellant to establish that plea. However, the questions of ouster and adverse possession assume no importance in this case as I hold that the plaintiffs failed to establish that the property belonged to the family of Govindan Nair and they are entitled to get a share in it. The decisions submitted in support of the contention of ouster and adverse possession are not relevant in the factual matrix of the case on hand. 26. Learned Senior Counsel contended that the legal position is well settled that the plaintiffs be non-suited for not adducing any evidence. Reliance is placed on **Tulsi v.** **S.A.No.45 /2001** **24** **Chandrika Prasad [2006 (8) SCC 322]** to urge a contention that non-examination of witnesses is fatal to the plaintiffs' case. 27. In the light of the above discussion, it can only be found that the trial court was right in finding that the plaintiffs failed to establish that the property, by virtue of Ext.A1, devolved on Govindan Nair as the senior most member of the Tavazhi Taravadu and on his death, the plaintiffs accrued share interest in the property. On the contrary, the case of the appellant that Cherathamma got the property in tenancy right and Ext.A1 was not acted upon is probabilised by the overwhelming evidence. Janmam assignment deed and gift deed in her favour mentioned above caused a merger of rights in her individual name. Therefore, the contention of the appellant that the property is not partible has been established by the unchallenged documents produced on the side of the appellant. Besides, conscious exclusion of this property from Exts.B5, B6 and B8 partition deeds also probabilise the case of the appellant. 28. Learned trial Judge was correct in her approach. The reasons stated by the lower appellate court for reversal of the decree are not sustainable in the light of the above discussion. **S.A.No.45 /2001** **25** Therefore, the substantial questions of law framed can only be decided in favour of the appellant. It necessarily takes me to confirm the view taken by the learned trial Judge. In the result, the appeal is allowed. The judgment and decree passed by the lower appellate court is reversed and that of the trial court is restored. The suit is dismissed. There is no order as to costs. All pending interlocutory applications will stand dismissed. SD/- **A. HARIPRASAD JUDGE** JV