K. Gopalan Nair v. Kookal Kunhikrishnan Nair and others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE A.M.BABU** **TUESDAY, THE 22ND DAY OF OCTOBER 2019 / 30TH ASWINA, 1941** ## **RSA.No.1015 OF 2014** **AGAINST THE ORDER/JUDGMENT IN AS 59/2009 DATED 28-01-2014 OF SUB COURT, KASARAGOD** **AGAINST THE ORDER/JUDGMENT IN OS 224/2008 DATED 30-03-2009 OF ADDITIONAL MUNSIFF COURT ,KAZARAGOD** ## **APPELLANT/S:** **K. GOPALAN NAIR AGED 60 YEARS S/O.M.K.KUNHAMBU NAIR, RESIDING AT GOKULA, NEKKILAGADDE, ASHOK NAGER, MANGALORE, KARNATAKA STATE** ## **BY ADV. SRI.KODOTH SREEDHARAN** ## **RESPONDENT/S:** - **1 KOOKAL KUNHIKRISHNAN NAIR AGED 63 YEARS S/O.KARICHERY KUNHAMBU NAIR, RESIDING AT A.C.HOUSE, ATHIYAMBOOR, KOTTACHERY, BALLA VILLAGE, KANHANGAD P.O, KASARAGOD DISTRICT 671 315** - **2 KOOKAL JANAKI AMMA AGED 51 YEARS D/O.KARICHERY KUNHAMBU NAIR, RESIDING AT KUMAR NIVAS, KUMADJE VILLAGE, P.O.YETHADUKA, KASARAGOD DISTRICT 671 316** - **3 KOOKAL RAGHAVAN NAIR AGED 51 YEARS S/O.KARICHERY KUNHAMBU NAIR, RESIDING AT MADHAVAM THRICHAMBARAM, TALIPARAMBA, KANNUR DISTRICT 670 301** - **4 KOOKAL LAKSHMI AMMA AGED 51 YEARS D/O.KARICHERY KUNHAMBU NAIR, RESIDING AT KRISHNA MELONGOT, BALLA VILLAGE, KANHANGAD P.O, KASARAGOD DISTRICT 671 315** - **5 KOOKAL SARADA AMMA AGED 49 YEARS D/O.KARICHERY KUNHAMBU NAIR, RESIDING AT ISHWARAYA,** 2 RSA.No.1015 OF 2014 **KAVOOR VILLAGE & POST, D.K.DISTRICT, MANGALORE675 005.** **6 KOOKAL KUNHIRAMAN NAIR AGED 47 YEARS** **S/O.KARICHERY KUNHAMBU NAIR, RESIDING AT AYYARKKAD HOUSE KARADKKA VILLAGE, MULLERIA P.O, KASARAGOD DISTRICT 670 125** - **7 KOOKAL A. PADMINI AGED 45 YEARS D/O.KARICHERY KUNHAMBU NAIR, RESIDING AT ANJALI, VILAYANKOD, PAYANGADI VILLAGE POST, KANNUR DISTRICT 670 101** - **8 KOOKAL KARTHIYAYINI AGED 43 YEARS D/O. KARICHERY KUNHAMBU NAIR, RESIDING AT PADINJAREVEEDU, PANAYAL VILLAGE AND POST, KASARAGOD DISTRICT-671 128** **9 K. KUNHIKANNAN NAIR AGED 57 YEARS S/O. M.K.KUNHAMBU NAIR, RESIDING AT AYYARKKAD HOUSE, KARADKA VILLAGE, MULLERIA P.O, KASARAGOD DISTRICT 671 125** > R2, R4, **BY ADV. SRI.KALEESWARAM RAJ** R6, R7,R8 ## **SMT.MAITREYI SACHIDANANDA HEGDE** ## **THIS REGULAR SECOND APPEAL HAVING BEEN FINALLY HEARD ON 5.9.2019, THE COURT ON 22.10.2019 DELIVERED THE FOLLOWING:** 3 RSA.No.1015 OF 2014 ## **JUDGMENT** The suit was for partition of the suit properties into ten equal shares for allotment of two such shares to the plaintiffs. The trial court dismissed the suit. The plaintiffs filed appeal, but lost. The second appeal is filed by the first plaintiff. 2. The case pleaded in the plaint may be stated below: The parties to the suit are the children of Kunhambu Nair and Narayani Amma. Narayani Amma predeceased Kunhambu Nair. They had separate properties into two villages. The parties to the suit and their father desired that the properties inherited by the parties from their parents shall be enjoyed by them equally. The plaintiffs and defendants inherited the suit properties. There was an oral family arrangement as a result of the intervention of one Madhavan Nair who mediated the issue. It was agreed by the plaintiffs and defendants that they would divide the suit properties among them equally. As a preliminary step to bring about the family arrangement, two agreements were executed; one on 26.2.1998 and the other on 6.3.1998. In order to convey the due shares of the plaintiffs it was agreed to execute a sale deed in their favour. It was also agreed to cut and sell the trees standing in the suit properties and share the proceeds equally. The suit properties shall be partitioned to separate the plaintiffs' 2/10 shares. 4 RSA.No.1015 OF 2014 3. Defendants 2 and 6 to 8 contested the suit. They denied the family arrangement pleaded by the plaintiffs and the execution of the agreements dated 26.2.1998 and 6.3.1998. They denied having consented to convey 2/10 shares in the suit properties to the plaintiffs. It was also contended that the terms and conditions in the said agreements were not enforceable since the agreements were barred by the law of limitation. Defendants 6 and 8 contended that the suit properties were gifted to the defendants by their mother under a registered gift deed executed in 1980. 4. PWs 1 and 2 were examined and Exts A1 to A6 were marked on the side of the plaintiffs. The contesting defendants did not adduce any oral evidence. Exts B1 to B4 were marked on their side. 5. Heard Sri.Kodoth Sreedharan, the learned counsel for the appellant/first plaintiff and Smt. Maitreyi Sachidanda Hegde, the learned counsel for the contesting defendants. 6. The substantial question of law formulated at the time of admitting the appeal is extracted below: Whether the finding of the lower appellate court that the family agreements executed between the sharers relied on by the appellant are time barred is legally sustainable? The learned counsel for the appellant/first plaintiff relied on the decision of the apex court in **Hari Shankar Singhania vs Gaur Hari Singhania (AIR 2006 SC 2488)** . It is held therein that the 5 RSA.No.1015 OF 2014 concept of family arrangement or settlement should be treated differently and that technicalities of limitation et cetera should not be put at risk of the implementation of a settlement drawn by a family. But the finding of the first appellate court was not that the implementation of the family arrangement was barred by the law of limitation. The finding was that the agreements relied on by the plaintiffs would not suggest any family arrangement. It should therefore be decided whether those agreements would reflect or suggest any family arrangement for partition of the suit properties. 7. Exts A2 and A3 are the agreements relied on by the plaintiffs to prove the family arrangement. The contesting defendants disputed the execution of those agreements by them. Ext A2 was not signed by the second plaintiff and Ext A3 was not signed by the first defendant. Execution of those agreements by rest of the parties was proved by the evidence of PW1 (first plaintiff) and the evidence of PW2 who attested both those documents. Nothing was brought out in their cross-examination to reject their evidence on execution of Exts A2 and A3. The contesting defendants who disputed those documents did not adduce any rebuttal evidence. None of them chose to depose to their case. They thereby denied the plaintiffs' opportunity to crossexamine them. An adverse inference shall be drawn against them under Sec.114 of the Indian Evidence Act. (vide **Vidhyadhar vs** 6 RSA.No.1015 OF 2014 **Manikikrao - AIR 1999 SC 1441).** The plaintiffs proved Exts A2 and A3 agreements. 8. Ext A2 was executed on 26.2.21998. It was executed by the first plaintiff and all the defendants. Ext A2 recites that the properties shown therein absolutely belong to the defendants, having been obtained under the gift deed executed in their favour by their mother. The registration number of the gift deed is mentioned in Ext A2. It recites the handing over of possession of the gifted properties by the donor to the donees and also the ownership and possession of the donees in those properties. Ext A2 was executed by the appellant admitting the gift and also the title of the defendants to the suit properties. It is recited in the document that since the defendants are in need of money, they have decided to sell their one-tenth right in the suit properties to the first plaintiff for a consideration of Rs 20,000/-. It is shown in the document that Rs 15,000/- out of the sale consideration was received by the defendants. Going by the terms of Ext A2, the balance sale consideration of Rs 5,000/- should be paid by the first plaintiff within three years, that is, before 26.2.2001. Ext A2 states further that the defendants should execute sale deed in favour of the first plaintiff on receipt of the balance sale consideration of Rs 5,000/-. Another recital in the document is that the first plaintiff shall have the right to sue for specific performance of the 7 RSA.No.1015 OF 2014 agreement if the defendants fail to execute the sale deed. Thus, Ext A2 is a pure and simple agreement for sale. It does not reflect or suggest any family settlement for partition of the plaint schedule properties. The plaintiffs did not have the right to sue for partition on the strength of Ext A2 agreement. The right of the first plaintiff was only to sue for specific performance of Ext A2 agreement. The 2[nd] plaintiff had no right under Ext A2. 9. A right is given to PW2 under Ext A3 to cut trees from certain properties. Ext A3 dated 6.3.1998 confers the right on PW2 to cut trees from the properties which were the subject-matter of the documents registered on that day. Nobody has a case that any document was registered on 6.3.1998 in respect of the plaint schedule properties. It is recited in Ext A3 that the properties from which the trees are permitted to be cut are situated in Karadka village of Kasargod taluk. Ext A3 has nothing to do with the plaint schedule properties situated in Chemnad village of the same taluk. The plaintiffs have no case that as per the family arrangement any property other than the plaint schedule properties has to be partitioned. Ext A3 is also not useful to the plaintiffs to prove the family arrangement pleaded by them. 10. The plaintiffs contended that Exts A2 and A3 were preceded by an oral family arrangement for partition of the plaint schedule properties among the parties to the suit equally. It was 8 RSA.No.1015 OF 2014 also contended that Exts A2 and A3 were executed as a preliminary step to give effect to the family arrangement. If the parties wanted to reduce the terms of the oral family arrangement to writing, in the normal course, the document would reflect the same terms agreed to mutually. If different terms are reduced to writing, it should be explained by stating reasons. The pleadings and evidence of the plaintiffs do not explain why an agreement for sale was executed to give effect to a decision to partition the suit properties. The oral family arrangement contrary to the terms of Ext A2 is not a believable version in the absence of any explanation. ## 11. The apex court has said in **Kale vs Deputy Director of** ## **Consolidation (AIR 1976 SC 807)** as follows: The members who may be parties to the family arrangement must have some antecedent title, claim or interest even a possible claim in the property which is acknowledged by the parties to the settlement. Even if one of the parties to the settlement has no title, but under the arrangement the other party relinquishes all its claims or titles in favour of such a person and acknowledges him to be the sole owner, then the antecedent title must be assumed and family arrangement will be upheld and the courts will find no difficulty in giving assent to the same. Any antecedent right in the plaint schedule properties for the plaintiffs was lost when the gift deed admitted in Ext A2 was executed by the mother of the plaintiffs in favour of the 9 RSA.No.1015 OF 2014 defendants. The plaintiffs have no plea or evidence that the defendants or any of them had relinquished any right in favour of the plaintiffs. The plaintiffs did not even state in the plaint that their mother executed a gift deed in favour of the defendants. Instead, what was pleaded at paragraph 8 of the plaint was that the suit properties were inherited by them and the defendants. The plaintiffs cannot be heard to contend for an oral family arrangement. 12. As argued by the learned counsel for the appellant, there can be a family arrangement by conveyance or gift as held by the apex court in **Sahu Madho Das vs Mukand Ram (AIR 1955 SC 481).** But the oral family arrangement and the terms in Ext A2 are contradictory and cannot be considered one and the same transaction. 13. The first appellate court rightly interpreted Exts A2 and A3 and correctly rejected the oral family arrangement set up by the plaintiffs. The appeal is without any merit. It only deserves a dismissal. As the parties are siblings, I do not make any order as to costs. ## 14. Dismissed. No costs. **Sd/-** **A.M.BABU** SKS/11.10.2019 **JUDGE**