KALYANI v. GOPALAN & OTHERS

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** **THE HONOURABLE MR. JUSTICE B.KEMAL PASHA** **MONDAY, THE 6TH DAY OF FEBRUARY 2017/17TH MAGHA, 1938** **RSA.No. 871 of 2015 ()** **----------------------AS 78/2010 of DISTRICT COURT, PATHANAMTHITTA DATED 21-11-2014** **OS 452/2005 of MUNSIFF’S COURT, PATHANAMTHITTA DATED 07-04-2010** ## **APPELLANT/APPELLANT/PLAINTIFF:** **------------------------------** **KALYANI, AGED 61 YEARS, W/O.(LATE) RAGHAVAN, PUTHIYATHU MELETHIL, MAROOR MURI, PATHANAMTHITTA VILLAGE.** **BY ADV. SRI.V.K.SUNIL** ## **RESPONDENTS/RESPONDENTS/DEFENDENTS:** **-----------------------------------** **1. GOPALAN, AGED ABOUT 64 YEARS, S/O.SANKARAN, PUTHIYATHU MELETHIL, MAROOR MURI, PATHANAMTHITTA VILLAGE.** **2. KALYANI @ CHELLAMMA, AGED ABOUT 60 YEARS, W/O.GOPALAN, PUTHIYATHU MELETHIL, MAROOR MURI, PATHANAMTHITTA VILLAGE.** **3. P.R.RAJENDRAN, AGED 43 YEARS, S/O.RAGHAVAN, PUTHIYATHU MELETHIL, MAROOR MURI, PATHANAMTHITTA VILLAGE.** **BY SR.ADV.K.G.BALASUBRAMANIAN R1 & R2 BY ADV. SRI.G.UNNIKRISHNAN R3 BY ADV. SMT.PRIYANKA VARGHESE** **THIS REGULAR SECOND APPEAL HAVING BEEN FINALLY HEARD ON 06-02-2017, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **DSV/8/2/17** ## B. KEMAL PASHA, J ================= R.S.A.No.871 of 2015 ================= Dated this the 6[th] day of February, 2017 ## J U D G M E N T Challenging the concurrent findings entered by the Munsiff’s Court, Pathanamthitta, in O.S.No.452 of 2005, followed by those of the District Court, Pathanamthitta in Appeal Suit No.78 of 2010, the plaintiff has come up with these second appeal. 2. The second appeal is admitted on the following questions of law: (i) Whether a family settlement can be entered into without a written document? (ii) In the absence of any document to prove a partition, whether the courts below are justified in entering a finding R.S.A.No.871/2015 : 2 : ## regarding a family arrangement? 3. The suit is one for partition and separate possession of the plaint schedule property having an extent of 6 cents in Sy.No.206/8-2-4 of the Pathanamthitta Village. The plaintiff is the sister of the 1[st] defendant. They are the children of late Sankaran. Admittedly, the plaint schedule property was acquired by Sankaran through Exhibit-A1 gift deed. Sankaran died intestate as per the said property is concerned, on 14.08.1995. 4. According to the plaintiff, she is entitled to half share in the property, for which the suit was filed. The 2[nd] defendant is none other than the wife of the 1[st] defendant. The additional 3[rd] defendant is the son of the plaintiff. Defendants 1 and 2 filed a joint written statement setting up counter claims. It has been specifically contended by defendants 1 and 2 that there was an oral partition effected by Sankaran in respect of his properties. According to R.S.A.No.871/2015 : 3 : defendants 1 and 2, over and above the plaint schedule property, which is the counter claim schedule No.1 property, late Sankaran had acquired 17 cents of unregistered land, which was also lying contiguous with the plaint schedule property. The said 17 cents of property was in the possession of late Sankaran. According to defendants 1 and 2, in the year 1976, Sankaran made a family arrangement by allotting the said 17 cents of property to the plaintiff and by allotting the remaining 6 cents of property to the 1[st] defendant. 5. Thereafter, the 1[st] defendant executed Exhibit-A2 settlement deed in respect of the said 6 cents of property in favour of the 2[nd] defendant, who is his wife. Later, the plaintiff got the said 17 cents of property assigned in her favour. From the said 17 cents of property, the plaintiff settled 3 cents of property in favour of her son, who is the additional 3[rd] defendant. According to defendants 1 and 2, they R.S.A.No.871/2015 : 4 : are entitled to the 6 cents of property, which is the counter claim schedule No.1 property exclusively. According to them, on account of the family settlement, the plaintiff cannot forward any claim in respect of the counter claim schedule No.1 property, which is the plaint schedule property. They have sought for a relief of declaration of the title and possession of defendants 1 and 2 over counter claim schedule No.1 property or in the alternative, a partition of counter claim schedule No.2 property, which is the said 17 cents of property, into two equal shares and for allotment of one such share to the 1[st] defendant. A relief for setting aside gift deed No.1945/1999 of the Pathanamthitta Sub Registry, executed by the plaintiff in favour of the Additional 3[rd] defendant, is also sought for. A decree of perpetual injunction has also been sought for. 6. On the side of the plaintiff, PW1 was examined and Exhibits-A1 to A5 were marked and on R.S.A.No.871/2015 : 5 : the side of the defendants, DW1 and DW2 were examined, and Exhibits-B1 and B2 were marked. Exhibits-C1 series were also marked. The trial court accepted the contention of defendants 1 and 2 regarding the family arrangement and dismissed the suit. The courter claim was allowed in part in the sense that the declaration sought for over counter claim schedule No.1 property was granted and the perpetual injunction sought for in respect of that property was also allowed. 7. Aggrieved by the judgment and decree, the plaintiff went up in appeal before the District Court, Pathanamthitta through Appeal Suit No.78 of 2010. The lower appellate court, concurred with the findings entered by the trial court and dismissed the appeal through the impugned judgment and decree. 8. The learned counsel for the appellant has strenuously argued that the plaintiff, in fact, wanted to get an access to her 17 cents of property and the R.S.A.No.871/2015 : 6 : only pathway, which was available to have such an access, was the pathway that was there, through the plaint schedule property. 9. On hearing either side, this Court is satisfied that the plaintiff direly wanted an access to the 17 cents of property. It has come out that the parties are in loggerheads. They are fighting tooth and nail. Even though the 1[st] defendant has contended that there was a family arrangement made by his father by allotting 17 cents of property to the daughter exclusively and by allotting 6 cents of property to him exclusively, it has come out that both these properties are almost similar in nature. Both these properties have almost the same commercial importance. The 1[st] defendant is not ready and willing to permit the plaintiff to get a pathway through the 6 cents of property. At the same time, it is the case of the appellant that there is no other access to the 17 cents of property. R.S.A.No.871/2015 : 7 : 10. Regarding evidence relating to the family arrangement, apart from the interested testimony of DW1, there is no evidence. PW1 does not accept any such oral arrangement made by her father. The case of the plaintiff is that she was in exclusive possession of 17 cents of property right from 1971 onwards and thereafter, she applied for assignment and got the property assigned in her favour. From evidence, it has come out that the plaintiff was below the age of 15 in the year 1971. Therefore, her case that she came in possession of the property in the year 1971 in an independent status, cannot be believed. It is evident that the said 17 cents of property, which was unregistered land till 1978, was lying contiguously with the 6 cents of property. Therefore, it is evident that the possession, if any, of the plaintiff, over such an unregistered land, was in her capacity as a member of the family of the 1[st] defendant and their father. R.S.A.No.871/2015 : 8 : 11. In such case, even if patta was obtained for such a property, definitely, it should be treated as a patta obtained in her favour, for and on behalf of all the co-owners, in respect of the property, even when the other co-owners, i.e., her father and the 1[st] defendant, were not even eonominee parties to the proceedings. See Saidali v. Amina Umma [1984 KLT Short Note 58 Case No.99]. In order to claim exclusive possession over such a land lying adjacent to the land of her father, she ought to have pleaded and proved total ouster of her father as well as the 1[st] defendant from possession of the said property. 12. Exhibit-A2 is the settlement deed executed by the 1[st] defendant in favour of his wife, the 2[nd] defendant. Strangely enough, in Exhibit-A2, there are no recitals to the effect that the said property was devolved on the 1[st] defendant through such an oral family settlement. Had there been such an oral arrangement made by the father, definitely, the 1[st] R.S.A.No.871/2015 : 9 : defendant would have stated as to how he could derive the property in Exhibit-A2. That militates against the contention of the 1[st] defendant regarding an oral family settlement. 13. There is absolutely nothing to show that the plaint schedule 6 cents of property, which is the counter claim schedule No.1 property, has been exclusively allotted to the 1[st] defendant. Matters being so, it has to be declared that Exhibit-A2 settlement deed is not binding on the plaintiff and it has to be declared that the plaintiff has half oodukur right over the plaint schedule property, which is the counter claim schedule No.1 property. Similarly, in the case of the 17 cents of property scheduled as counter claim schedule No.2 property also, it has to be declared that the 1[st] defendant has half oodukur right over the said property, and it has to be further declared that Exhibit-A4 settlement deed is not binding on the 1[st] defendant as far as his half R.S.A.No.871/2015 : 10 : oodukur right over the said 17 cents of property is concerned. 14. The courts below ought to have passed a preliminary decree of partition, finding the entitlement of the plaintiff 1[st] defendant to half share each in the plaint schedule property, which is the counter claim schedule No.1 property, and also the entitlement of the plaintiff and the 1[st] defendant to half share each over the 17 cents of property, which is scheduled as counter claim schedule No.2 property. Exhibit-A2 document, as far as the half share of the plaintiff over the plaint scheduled property is concerned, is not binding on the plaintiff. Similarly, Exhibit-A4 settlement deed, as far as the half share of the 1[st] defendant over the counter claim schedule No.2 property is concerned, is also not binding on the 1[st] defendant. By exercising the powers conferred under Order XLI Rule 33 of the Code of Civil Procedure, 1908, this Court without R.S.A.No.871/2015 : 11 : remitting the matter further for another round of litigation, which may result in a quarter of a century, is hereby passing a preliminary decree in the aforesaid lines. In the result, this appeal is disposed of in the above lines. A preliminary decree as aforesaid is passed. The matter is remitted to the trial court for enabling the parties to apply for the passing of final decree. Parties shall apply for final decree before the trial court. Till then, the proceedings in the suit before the court below shall remain sine a die. In the nature of this appeal, the parties shall bear their respective costs. Sd/- B. KEMAL PASHA, JUDGE. DSV/7/2/17 **==> picture [120 x 12] intentionally omitted <==** **==> picture [87 x 11] intentionally omitted <==**