High Court of KeralaSingle Judge2021-08-24Regular Second Appeal dismissed

K.K. SOMAN v. K.K.GOPINATHAN

Case / Petition Number:RSA No.1013 of 2018

Case Details & Bench

Court: High Court of Kerala
Hon'ble Judges: N. Anil Kumar
Judgment Date: 2021-08-24
Court Decision / Holding: In the result, this Regular Second Appeal fails and is therefore dismissed. There will be no order as to costs. Pending applications, if any, stand closed.
Final Disposition: Regular Second Appeal dismissed

Parties to the Case

Appellants / Petitioners

K.K.SOMAN

Respondents

K.K.GOPINATHAN

Legal Representation & Advocates

Counsels for Petitioners

• SRI.S.MANU

Counsels for Respondents

• SRI.LIJI.J.VADAKEDOM

Case Synopsis & Summary

This Regular Second Appeal challenges a partition suit relating to plaint schedule item No.1, a 20-cent property, and a declaration/injunction sought with respect to plaint schedule item No.2, a road. The trial court partitioned item No.1 into two equal shares, granting the plaintiff one share, while denying the declaration and injunction. The first appellate court affirmed this decree, and the appellant challenges those judgments in RSA No.1013 of 2018. The defendant contends that the courts below erroneously ignored evidence of an oral partition allegedly carried out by Madhavi, the mother of both parties, and argues that contemporaneous public documents validate the partition. The plaintiff contends that Madhavi’s property belonged to her by Ext. A1, and that after Madhavi’s death the plaintiff and defendant were co-owners in joint possession; no ouster or valid partition has been proved, and the oral partition plea lacks documentary support. The appellant relies on authorities including Viswanatha Mehta v. Krishna Bai, Sita Ram Prasad v. Mahadeo Rai, and Roshan Singh v. Zile Singh, while the court also cites Vineeta Sharma v. Rakesh Sharma to emphasize requirements for a valid oral partition. Ultimately, the High Court agrees that the oral partition plea is not substantiated by contemporaneous public documents and dismisses the Regular Second Appeal, upholding the concurrent lower court decisions and denying relief to the appellant.

Legal Doctrines & Maxims

Constructive trust doctrine in co-ownership: a co-owner in possession is a trustee for the other co-owners unless ouster is established.
Ouster as a prerequisite to partition of property.
Oral partition must be supported by contemporaneous public documents; unregistered or improvised oral partitions are not readily accepted.
Acknowledgement that Vineeta Sharma supports the public-document requirement for oral partition.

Submissions & Arguments

Contentions of Appellants / Petitioners

The appellant argues that the courts below erred in applying unrealistic standards to the oral partition plea and that the evidence establishes an oral partition by Madhavi. He contends that contemporaneous public documents exist supporting the partition and that the trial and first appellate courts should have accepted the plea in view of the cited authorities (Viswanatha Mehta, Sita Ram Prasad, Roshan Singh).

Contentions of Respondents

The respondent contends that there is no established ouster and no reliable oral partition supported by public documents. The property belonged to Madhavi by Ext.A1, making both parties legal heirs and co-owners in joint possession. The alleged oral partition is not substantiated by contemporaneous public documentation, and the courts below correctly rejected it. The respondent also relies on Vineeta Sharma to emphasize the need for documentary support when alleging oral partition.

Cited Precedents (4)

Case Name	Citation	Treatment	Explanation
Viswanatha Mehta.T. (Deceased) v. Krishna Bai	[2017 KHC 3483]	Mentioned Only	Cited by appellant; court did not rely on it in its reasoning.
Sita Ram Prasad v. Mahadeo Rai and Others	[1980 KHC 1905]	Mentioned Only	Cited by appellant; court did not rely on it in its reasoning.
Roshan Singh and Ors. v. Zile Singh and Ors.	[AIR 1988 SC 881]	Mentioned Only	Cited by appellant; court did not rely on it in its reasoning.
Vineeta Sharma v. Rakesh Sharma	Civil Appeal No. Diary No.32601/2018 dated 11.8.2020	Positive	Cited by court as authority for requiring public-document support in oral partition claims; used to justify rejection of unsubstantiated oral partition.

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Extracted Judgment Text

Exact text extracted from official judgment records.

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR.JUSTICE N.ANIL KUMAR TUESDAY, THE 24[TH] DAY OF AUGUST 2021 / 2ND BHADRA, 1943 ## RSA NO. 1013 OF 2018 AGAINST THE THE JUDGMENT AND DECREE DATED 23.5.2018 IN A.S.NO.20/2015 ON THE FILE OF THE ADDITIONAL DISTRICT COURT-II (SPECIAL), KOTTAYAM ARISING FROM THE JUDGMENT AND DECREE DATED 31.10.2014 IN O.S.NO.49/2013 ON THE FILE OF THE PRINCIPAL SUB COURT, KOTTAYAM ## APPELLANT/APPELLANT/DEFENDANT: K.K.SOMAN, AGED 47 YEARS, S/O.MADHAVI, RESIDING AT VADEKKEKANJIRATHINKAL HOUSE, KOOROPPADA VILLAGE, KOOROPPADA KARA, PAMPADY BLOCK, KOOROPPADA GRAMA PANCHAYATH, KOTTAYAM TALUK, KOTTAYAM DISTRICT. BY ADV SRI.S.MANU ## RESPONDENT/RESPONDENT/PLAINTIFF: K.K.GOPINATHAN, S/O.MADHAVI, AGED 59 YEARS, RESIDING AT VADEKKEKANJIRATHINKAL HOUSE, KOOROPPADA VILLAGE, KOOROPPADA KARA, PAMPADY BLOCK, KOOROPPADA GRAMA PANCHAYATH, KOTTAYAM TALUK, KOTTAYAM DISTRICT. BY ADV SRI.LIJI.J.VADAKEDOM THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 09.08.2021, THE COURT ON 24.08.2021 DELIVERED THE FOLLOWING: R.S.A.No.1013 of 2018 ..2.. ## **JUDGMENT** This Regular Second Appeal is directed against the judgment and decree dated 23.5.2018 in A.S.No.20/2015 on the file of the Additional District Court-II (Special), Kottayam (hereinafter referred to as 'the first appellate court') confirming the judgment and decree dated 31.10.2014 in O.S.No.49/2013 on the file of the Principal Sub Court, Kottayam (hereinafter referred to as 'the trial court'). The appellant is the defendant in O.S.No.49/2013 and the appellant in A.S.No.20/2015 respectively. The parties are hereinafter referred to as 'the plaintiff' and 'the defendant' according to their status in the trial court unless otherwise stated. 2. The suit was for partition of the plaint schedule item No.1 property and for declaration and R.S.A.No.1013 of 2018 ..3.. consequential injunction with respect to the plaint schedule item No.2 road. The trial court decreed the suit allowing partition over plaint schedule item No.1 property into two equal shares and the plaintiff is entitled to get one such share. The declaration and consequential injunction were refused by the trial court. The defendant preferred an appeal before the first appellate court. The appeal was dismissed by the first appellate court confirming the judgment and decree of the trial court. Hence this Regular Second Appeal. 3. The plaint schedule item No.1 property having an extent of 20 cents of land and a house therein originally belonged to Madhavi who is the mother of the plaintiff and the defendant by virtue of partition deed No.506/1978 of SRO, Pambady. R.S.A.No.1013 of 2018 **==> picture [22 x 8] intentionally omitted <==** Madhavi died intestate on 8.7.2011 and the plaintiff and the defendant are the only legal heirs of deceased Madhavi. The building situated in the plaint schedule item No.1 property was in a dilapidated condition. During the period of 1987-88, the plaintiff renovated the same expending his money. After the death of Madhavi, the plaintiff and defendant are in joint possession of plaint schedule item No.1 property as co-owners. 4. The defendant filed written statement contending that the plaintiff is the son of Dhamodharan who is the first husband of deceased Madhavi. The defendant is the son of one Kochu who is the second husband of Madhavi. During the lifetime of Madhavi she had set apart the house to the defendant. The plaintiff and the defendant are not co- R.S.A.No.1013 of 2018 ..5.. owners of the said property. As the mother had orally partitioned the property, the plaintiff had constructed a separate residential house and he is residing separately. 5. During the trial of the case, PW1 was examined and marked Exts.A1 to A7 on the side of the plaintiff. DW1 was examined and marked Exts.B1 to B3 on the side of the defendant. Exts.C1 and C1(a) were also marked. 6. On appreciation of the evidence, the trial court negatived the contentions of the defendant and held that the plaint schedule item No.1 is partible. Although an appeal was taken the same was also dismissed. Both the trial court and the first appellate court concurrently held that the oral partition pleaded by the defendant was not substantiated. R.S.A.No.1013 of 2018 ..6.. 7. Heard Sri.S.Manu, the learned counsel for the appellant. 8. The learned counsel for the appellant contended that the courts below committed error of law in adopting unrealistic standards to analyse the plea of oral partition raised by the appellant. It was contended that the courts below committed illegality by rejecting the plea of oral partition raised by the appellant in spite of circumstances established in evidence pointing out the same. Relying on the decisions reported in **Viswanatha Mehta.T. (Deceased) v. Krishna Bai** [2017 KHC 3483], **Sita Ram Prasad v. Mahadeo Rai and Others** [1980 KHC 1905] and **Roshan Singh and Ors. v. Zile Singh and Ors.** [AIR 1988 SC 881], the learned counsel for the appellant contended that the oral R.S.A.No.1013 of 2018 ..7.. partition was established in evidence. 9. The mother of the plaintiff and the defendant Madhavi died on 8.7.2011. Both the plaintiff and the defendant are her legal heirs. The plaint schedule property admittedly belonged to Madhavi by virtue of Ext.A1 partition deed. A co-owner in possession over the property is a constructive trustee for the other coowner unless ouster is established. There is no plea of ouster in this case. Instead, the defendant pleaded oral partition and let in evidence in support of the plea. Both the trial court and the first appellate court concurrently held that the plea of oral partition was not substantiated in evidence. When plea of oral partition is taken, it is well settled principle of law that the court should be extremely careful in accepting the same and only if contemporaneous documentary R.S.A.No.1013 of 2018 ..8.. evidence in shape of public document in support is available such a plea may be entertained and when the plea of oral partition is taken, unregistered one can be manufactured at any point in time, without any contemporaneous public document needs rejection at all costs. The above principle is accepted by the Apex Court in **Vineeta Sharma v. Rakesh Sharma [Civil Appeal No. Diary No.32601/2018 dated 11.8.2020]** . This is not an exceptional case where plea of oral partition is supported by public document. On going through the entire evidence, this Court is of the view that both the trial court and the first appellate court rejected the plea of oral partition. No questions of law are involved in this case much less any substantial question of law. Hence, this Regular Second Appeal is liable to be dismissed. R.S.A.No.1013 of 2018 ..9.. In the result, this Regular Second Appeal fails and is therefore dismissed. There will be no order as to costs. Pending applications, if any, stand closed. Sd/- **N.ANIL KUMAR, JUDGE** skj