Kesavan v. Prabhakaran and others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT :** ## **THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR** ## **THURSDAY, THE 26TH MAY 2011 / 5TH JYAISHTA 1933** **RSA.No. 954 of 2004(E)** **--------------------------------** **[AS.NO.44/1999 OF PRINCIPAL SUB COURT,NORTH PARAVUR, OS.NO.267/1993 OF MUNSIFF'S COURT, PERUMBAVOOR** **....................** ## **APPELLANT/APPELLANT/PLAINTIFF:** **-----------------------------------------------------** *** KESAVAN, S/O.RAMAN, KADALIPARAMBIL PARIYARAM KARA, AIKKARANADU SOUTH VILLAGE. *(DIED)** ## ***ADDITIONAL APPELLANTS 2 TO 5 IMPLEADED:** - ***ADDL.A.2. KARTHIKA, W/O. LATE KESAVAN, AGED 70 YEARS, KADALIPARAMBIL HOUSE, MEEMPARA.P.O., PUTHENCRUZ.** - **“ 3. INDIRA, D/O. LATE KESAVAN, AGED 39 YEARS, KADALIPARAMBIL HOUSE, MEEMPARA.P.O., PUTHENCRUZ.** - **“ 4. GOPALAKRISHNAN, S/O. LATE KESAVAN, AGED 35 YEARS, KADALIPARAMBIL HOUSE, MEEMPARA.P.O., PUTHENCRUZ.** - **“ 5. SAJEEV, S/O. LATE KESAVAN, AGED 32 YEARS, KADALIPARAMBIL HOUSE, MEEMPARA.P.O., PUTHENCRUZ.** - ***ADDL. APPELLANTS 2 TO 5 ARE IMPLEADED AS LR'S OF DECEASED SOLE APPELLANT AS PER ORDER DT. 02/02/11 IN I.A. 311/11.** **BY ADVS. SRI.PHILIP T.VARGHESE, SRI.THOMAS T.VARGHESE.** **RESPONDENT/IST RESPONDENT/1ST DEFENDANT - RESPONDENT/ 2ND RESPONDENT/2ND DEFENDANTRESPONDENTS/LEGAL HEIRS OF 2ND RESPONDENT:** **------------------------------------------------------------------------------** **1. PRABHAKARAN, S/O.RAMAN, KADALIPARAMBIL PARIYARAM KARA, AIKKARANAD SOUTH VILLAGE.** **R.S.A. NO.954/2004-E:** **2. VELAPPAN, S/O.RAMAN, -DO- (DIED).** **3. VILASINI VELAPPAN, KADALIPARAMBIL, POOTHRIKKA P.O, ERNAKULAM DISTRICT, NOW RESIDING AT FACT QUARTERS, ELOOR.** **4. VIMAL K.V, S/O.LATE VELAPPAN,** - **DO. DO.** **5. VEENA K.V, D/O.VELAPPAN, DO. DO.** **R1, R3 & R5 BY BY SRI.S.V.BALAKRISHNA IYER, SENIOR ADVOCATE, SRI.K.JAYAKUMAR, SENIOR ADVOCATE, ADVS. SRI.P.B.KRISHNAN, SRI.M.K.SREEGESH, SRI.HARISH R. MENON.** **THIS REGULAR SECOND APPEAL HAVING BEEN FINALLY HEARD ON 26/05/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **prv.** ## **M.SASIDHARAN NAMBIAR,J.** =========================== R.S.A NO. 954 OF 2004 =========================== Dated this the 29[th] day of February, 2008 JUDGMENT Plaintiff in O.S.267/1993 on the file of Munsiff Court, perumbavoor was the sole appellant. Later on the death of the appellant, additional appellants, the legal heirs were impleaded. Respondents 1 and 2 are the defendants. Respondents 3 to 5 are the legal heirs of deceased second respondent. Deceased first appellant deceased second respondent and first respondent are admittedly the children of Raman. Lakshmi is their mother. Raman admittedly died in 1984 and Lakshmi subsequently in 1993. The deceased first appellant instituted the suit, for partition of the plaint schedule property having an extent of 96 cents out of 1 acre 22 cents, contending that the property originally belonged to Raman and during his life time in 1982 Raman had trasnferred 26 cents of the said property in favour of the R.S.A.954/2004 2 appellant under Ext.A1 settlement deed. He has been in possession of that property and the remaining 96 cents continued to be in the possession of Raman and on his death it devolved on Lakshmi, the widow and all their sons and on the death of Lakshmi, her right also devolved on the appellant and respondents 1 and 2. It was contended that though Raman had two daughters, they were given their shares at the time of marriage and therefore they are not entitled to any share. The suit was filed for separation of the 1/3[rd] share to the deceased appellant. 2. Respondents 1 and 2 resisted the suit contending that during the life time of Raman the share due to the deceased first appellant was given under Ext.A1 and the balance was retained as the share due to respondents 1 and 2 and during the life time of Raman itself, the remaining property was divided into portions and were put in the respective possession of respondents 1 and 2 and subsequently under Ext.A2 partition deed dated R.S.A.954/2004 3 12.10.1992, wherein the mother was also a party, properties were divided and the shares were separated between respondents 1 and 2. It was contended that subsequent to Ext.A1 the deceased appellant is not entitled to claim any share and therefore he is not entitled to get the share in the plaint schedule property. 3. Learned Munsiff on the evidence of DW1 and Exts.A1 and A2 dismissed the suit holding that under Ext.A1 the share due to the appellant was separated and thereafter deceased appellant is not entitled to claim any share and the mother along with respondents 1 and 2 divided the remaining property under Ext.A2 and therefore appellant is not entitled to claim any share. The suit was dismissed. Appellant challenged the judgment before Sub Court, North Paravur. Learned Sub Judge on reappreciation of evidence following the decisions of this court in **Damodaran Kavirajan v. T.D.Rajappan (AIR 1992 KERALA 397)** and **Pathuma Kunju** R.S.A.954/2004 4 **v. Assya ILR (1978)2 Kerala 529)** confirmed the findings of the learned Munsiff and dismissed the appeal. It is challenged in the Second Appeal. 4. The Second Appeal was admitted formulating the following substantial question of law. When Ext.A1 settlement deed was executed in 1982 by father Raman at a time when appellant had no subsisting right in the plaint schedule property and Ext.A1 does not contain any provision to deny a share in the remaining properties of Raman in case of death of Raman, whether acceptance of Ext.A1 will disentitle appellant from claiming a share in the remaining property, left behind by Raman. 5. Learned counsel appearing for the R.S.A.954/2004 5 appellant and the learned senior counsel appearing for the respondents were heard. 6. Learned counsel appearing for the appellant vehemently argued that though under Ext.A1 settlement deed the deceased appellant was given 26 cents of land, there is no recital in Ext.A1 that appellant is not entitled to a share in the remaining property and as there is no relinquishment of his right in the remaining property, courts below were not justified in denying a share based on Ext.A1. Learned counsel pointed out that though Ext.A2 partition deed was executed subsequently, appellant is not a party to the said partition and therefore it is not binding on him and as appellant is entitled to a share in the plaint schedule property, a preliminary decree is to be passed. Learned counsel pointed out that as distinct from the facts of the decisions relied on by the first appellate court in **Damodaran Kavirajan's case (supra)** and **Pathuma Kunju (supra),** R.S.A.954/2004 6 there is no recital in Ext.A1 that 26 cents was given towards the entire share due to the appellant in the property and he is not entitled to any further share in the remaining property and therefore finding of the courts below is not sustainable. Learned counsel argued that as 26 cents was separately settled in the name of the appellant under Ext.A1 and though it was accepted by the appellant the balance retained by the father on his death devolved on all the sons and widow, as the daughter are not entitled to a share and therefore appellant should have been granted 1/3[rd] share in the property. 7. Learned senior counsel appearing for the respondents pointed out that the parties are Viswakarmas of the erstwhile Cochin State and the law of inheritance applicable is Makkathayam Law and as is clear from Ext.A1 settlement deed executed by father Raman, the plaint schedule property as well as the 26 cents covered under Ext.A1, is a joint family property. Under Ext.A1, 7 ## R.S.A.954/2004 in lieu of the share due to the deceased appellant, 26 cents was separated and settled in favour of the appellant, retaining the life interest of the father and it was admittedly accepted for the appellant and subsequent to Ext.A1 first appellant is not entitled to claim any right in the remaining property. Learned counsel pointed out that though there is no specific recital that appellant is not entitled to any right in the remaining property, it is specifically stated in Ext.A1 that the share due to the appellant was separated and given under Ext.A1 and therefore when the gift was accepted by the appellant, he is estopped from claiming share in the remaining property. Learned counsel relied on the decision of the Supreme Court in **Gulam Abbas** **v. Haji Kayyam Ali (AIR 1973 SC 554)** and the decision of a learned single Judge of this court in **Hameed v. Jameela (2004)1KLT 586)** and **Hameed v. Jameela (2009)4 KLT 531)** and argued that the courts below rightly found that the appellant is not R.S.A.954/2004 8 entitled to the share. Learned senior counsel pointed out that in any case Exts.A1 and A2 are to be treated as family arrangement. As held by the Division Bench of this Court in **Thayyullathil Kunhikannan v. Thayyullathil Kalliani (AIR 1990** **Kerala 226),** even an agreement dividing family property though entered under a misapprehension of the legal rights of the parties is to be protected as a family arrangement and the courts below rightly found that appellant is not entitled to claim any share. 8. A reading of Ext.A1 settlement deed executed by the father Raman in favour of the deceased appellant establishes that the property settled in favour of the appellant namely 26 cents is part of the joint family property. Plaint schedule property is the remaining property. It also establishes that the said 26 cents was separated and given to the appellant as his share in the joint family property. It further shows R.S.A.954/2004 9 that the balance was kept as the shares due to the two remaining sons namely respondents 1 and 2, and under Ext.A1 only life interest was retained by the father and the mother, the other members of the joint family property. Appellant has no case that he did not accept Ext.A1. On the other hand, he is admitting Ext.A1 and also admits that he accepted it and is in possession of the said property. As Ext.A1 clearly shows that it is a joint family property and the share due to the appellant was fixed as 26 cents and was separated even earlier and Ext.A1 was executed thereafter. It is thus clear that appellant was separated from the joint family, by virtue of acceptance of Ext.A1. If that be so, he is not entitled to claim any share in the remaining properties left after execution of Ext.A1. 9. Though learned counsel appearing for the appellant distinguishes the case relied on by the first appellate court, on the ground that in those documents there are recitals that the donee is R.S.A.954/2004 10 not entitled to any share in the remaining properties and Ext.A1 does not contain any such recital. True, in so many words there is no recital in Ext.A1 that appellant is not entitled to any right or share in the remaining properties. But Ext.A1 makes it absolutely clear that 26 cents was given as the share due to the appellant in the joint family property. It also makes it clear that the remaining properties are separated as the share due to respondents 1 and 2. Subsequent to the death of Raman, under Ext.A2, the remaining properties were divided by respondents 1 and 2 along with Lakshmi, the mother. Under the said partition no share was set apart to the mother and the properties were divided into two and set apart to respondents 1 and 2. The mother is a signatory to Ext.A2. Therefore the mother by executing Ext.A2, relinquished her share. Therefore on the date of the death of Lakshmi she was not having any subsisting right or share in the property, left after execution of Ext.A1. Therefore as a legal R.S.A.954/2004 11 heir of the deceased Lakshmi also appellant is not entitled to claim any share. Added to this, as rightly pointed out by the learned senior counsel Ext.A1 and A2 are to be treated as the family arrangements. When Ext.A1 settlement deed was accepted by the appellant and Ext.A1 provides that 26 cents covered thereunder was given to the appellant as his share and the balance was retained as the share due to respondents 1 and 2 and subsequently under Ext.A2 the mother and the two sons divided that property, appellant is not entitled to contend that Ext.A2 is not binding on him as he is not a signatory to Exts.A2 and therefore he is entitled to a share as under Ext.A1 appellant was separated from the joint family. When the mother Lakshmi died she was not having any interest in the property . Hence appellant is not entitled to a share as her legal heir. The substantial question of law is settled by the Apex Court in **Gulam Abbas v. Haji Kayyam Ali (AIR 1973** R.S.A.954/2004 12 **SC 554) and Hameed v. Jameela (2004(1) KLT 586)** . In such circumstances, I find no merit in the appeal. It is dismissed. M.SASIDHARAN NAMBIAR JUDGE tpl/- ## M.SASIDHARAN NAMBIAR, J. --------------------W.P.(C).NO. /06 --------------------- JUDGMENT SEPTEMBER,2006