K.B. Joseph v. Gregori @ John & Philomina

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE P.N.RAVINDRAN & THE HONOURABLE MR. JUSTICE P.SOMARAJAN THURSDAY, THE 9TH DAY OF MARCH 2017/18TH PHALGUNA, 1938 RFA.No. 758 of 2011 (I) ------------------------------AGAINST THE JUDGMENT IN OS 173/2008 of SUB COURT,KOCHI DATED 30-03-2011 APPELLANT/PLAINTIFF: - ------------------------------------- K.B. JOSEPH, AGED 50 YEARS, S/O.BABU, KALLARACKAL, KARUVEILPADY WEST, KOCHI, PRESENTLY RESIDING AT KADAPALLYTHARA, VALAMANGALAM, THURVAOOR, CHERTHALA DISTRICT. BY ADVS.SRI.G.KRISHNAKUMAR SRI.SURAJ KRISHNA B.S SRI.TITTO THOMAS RESPONDENTS/DEFENDANTS: - ----------------------------------------------- 1. GREGORI @ JOHN, AGED 59 YEARS, S/O. BABU, KALLARACKAL, KARUVELIPADY, WEST KOCHI, KOCHI - 682 005 2. PHILOMINA, AGED 48 YEARS, W/O. PETER, D/O. BABU, KALLARACKAL, KARUVELIPADY, WEST KOCHI, PRESENTLY RESIDING AT PALLIPARAMBU HOUSE, AROOR.P.O, PIN - 688 534. R1 BY ADV. SRI.A.ANTONY R1 BY ADV. SMT.LEELAMMA ANTONY THIS REGULAR FIRST APPEAL HAVING COME UP FOR ADMISSION ON 09-03-2017, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: DMR/- ## **P.N.RAVINDRAN & P. SOMARAJAN, JJ.** ------------------------------------------------ R.F.A. No.758 of 2011 -----------------------------------------------Dated this the 09[th] day of March, 2017 **==> picture [110 x 14] intentionally omitted <==** ## **P.N. Ravindran, J.** The appellant is the plaintiff in O.S.No.173 of 2008 on the file of the Court of the Subordinate Judge of Kochi, a suit instituted by him for partition of the plaint schedule property into three equal shares and allotment of one such share to him. By judgment delivered on 30.03.2011, the court below dismissed the suit. The appellant has, aggrieved thereby filed this appeal. The brief facts of the case are as follows. 2. The appellant had in the plaint averred that the plaint schedule property having a total area of 4 cents, situate in Survey No.484/1 of Mattancherry Village, Kochi Taluk, together with the buildings therein bearing Door Nos.6/66 and 6/21 of Kochi Corporation, belonged to his mother, late Annakutty, who passed away on 11.04.2005. He contend that upon her death the plaint schedule property devolved on him R.F.A. No.758 of 2011 2 and defendants 1 and 2, his siblings and that they are in joint ownership and possession thereof. 3. Upon receipt of summons, the first defendant entered appearance and filed a written statement contending that ever since he attained the age of 20 years the plaintiff was residing separately and had no connection with his mother due to differences of opinion with his mother, that his mother had lodged a complaint against him and on account of the intervention of the police he was compelled to shift to a rented house. The first defendant further contended that the plaintiff had on the allegation that he had spent some amounts for the construction of the buildings standing in the plaint schedule property instituted O.S.No.149 of 1991 in the Court of the Subordinate Judge of Kochi for realization of the money spent for such construction, that in that suit late Annakutty entered appearance and filed a written statement contending that she has transferred the plaint schedule property to the second defendant. The first defendant further contended that late Annakutty had initially executed a settlement deed registered as Document No.2261 of 1986 of S.R.O., Kochi in favour of the R.F.A. No.758 of 2011 3 second defendant, that later she executed a cancellation deed registered as Document No.310 of 2002 of S.R.O., Kochi, cancelling the said settlement deed and later executed a Will bequeathing the plaint schedule property to the children of defendants 1 and 2. He also stated that Annakutty passed away on 11.04.2005 and on her death, the plaint schedule property devolved on the children of defendants 1 and 2, the legatees under the Will. The second defendant did not enter appearance or file a written statement, with the result she was set _ex parte._ 4. Before the trial court, the appellant examined himself as PW1 and produced and marked Exts A1 and A2. On the side of the defendants, the first defendant was examined as DW1 and the attesting witnesses to Ext B2 Will as DWs 2 and 3. After considering the rival contentions and the evidence oral and documentary on record, the court below held that as the legatees under Ext B2 Will have not been joined as defendants, the suit is bad for non-joinder of necessary parties. The court below also held that on the date of her death, the plaint schedule property did not belong to late R.F.A. No.758 of 2011 4 Annakutty. In coming to the said conclusion, the court below relied on the finding in Ext B3 judgment in O.S.No.149 of 1991 that Annakutty had in the written statement filed in that suit stated that she has transferred the plaint schedule property to the second defendant and that the court below had in Ext B3 judgment in O.S.No.149 of 1991 entered a finding to the effect that Annakutty had every right to transfer the plaint schedule property. In that view of the matter, the suit instituted by the appellant was dismissed. 5. We heard Sri.G.Krishna Kumar, learned counsel appearing for the appellant. We have also gone through the pleadings and the materials on record as also the impugned judgment. The plaint schedule property originally belonged to Annakutty, mother of the plaintiff and defendants 1 and 2. She passed away on 11.04.2005. She had in the year 1986 settled the very same property on the second defendant by executing a settlement deed registered as Document No.2261 of 1986 of S.R.O., Kochi. 16 years later a cancellation deed was executed and registered as Document No.310 of 2002 of S.R.O., Kochi. More or less simultaneously she executed R.F.A. No.758 of 2011 5 Exhibit B2 Will dated 25.03.2002 bequeathing the plaint schedule property to Jolly John, son of the first defendant and Princy and Preethy, daughters of the second defendant. It was that Will which was put forward by the first defendant in the written statement filed by him to contend that the plaint schedule property is not partible. The impugned judgment discloses that the appellant/plaintiff was non suited also for the reason that the legatees have not been brought on record. 6. It was contended before us that though the appellant had filed I.A.No.406 of 2011 to implead the legatees, it was dismissed as a belated application. The explanation offered by the appellant for the delay in filing the application to implead the legatees is that the details regarding the Will were not mentioned in the written statement and the Will was also not produced until the stage of trial and therefore he was not aware of the persons who should be impleaded as legatees under the Will. Though we are persuaded to accept the said explanation, we are of the opinion that on the merits the appellant is not entitled to succeed. The plaint schedule property admittedly belonged to his mother Annakutty. She R.F.A. No.758 of 2011 6 had admittedly executed a settlement deed settling the property on her daughter, the second defendant, in the year 1986. That was cancelled only in the year 2002. A learned single Judge of this court has in **Noble John v. State of Kerala** [2010 (3) KLT 941] held that cancellation of a sale deed can only be bilateral and that it cannot be unilaterally cancelled. The same view was taken by the Apex Court in **Thota Ganga Laxmi v. Government of Andhra Pradesh** [2011 (3) KLT 345 SC]. In the light of the binding decisions of this court and the Apex Court Annakutty could not have unilaterally cancelled the settlement deed executed by her in the year 1986, the execution of which was acknowledged by her in the written statement filed in O.S.No.149 of 1991. It was relying on the said settlement deed that O.S.No.149 of 1991 was dismissed holding that she had every right to transfer the property. Such being the situation, even if this court were to hold that Ext B3 Will has not been properly proved, the appellant cannot, in view of the fact that even during her life time Annakutty settled the properties on the second defendant, successfully sue for partition of the plaint R.F.A. No.758 of 2011 7 schedule property. We therefore find no good grounds to interfere with the decree and judgment passed by the court below. The appeal fails and is accordingly dismissed in limine. ## **P.N.RAVINDRAN (JUDGE)** **P. SOMARAJAN (JUDGE)** DMR/-