Mahadevan S/O Subrahmanian Pillai v. Ravi Chandran

## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ``` THE HONOURABLE MR. JUSTICE A. BADHARUDEEN ``` ``` FRIDAY, THE 17TH DAY OF NOVEMBER 2023 / 26TH KARTHIKA, 1945 RSA NO. 117 OF 2023 ``` ``` AGAINST THE JUDGMENT AND DECREE DATED 31.08.2022 IN A.S.NO.2/2019 ON THE FILE OF SUBORDINATE JUDGE, OTTAPALAM ARISING FROM THE JUDGMENT AND DECREE IN O.S.NO.328/2015 DATED 30.10.2018 ON THE FILE OF MUNSIFF COURT, OTTAPALAM ``` ## **`APPELLANT/RESPONDENT/DEFENDANT:`** ``` MAHADEVAN S/O. SUBRAHMANIAN PILLA, AGED 69 YEARS, RESIDING AT KANNA VILAS, (SMP HOUSE), CONVENT ROAD, SHORNUR. P.O. OTTAPPALAM THALUK, PALAKKAD DISTRICT, PIN - 679121 ``` ``` BY ADVS. ZUBAIR PULIKKOOL ASHEEM K. ``` ## **`RESPONDENT/APPELLANT/PLAINTIFF:`** ``` RAVI CHANDRAN S/O SUBRAHMANIAN PILLA, RESIDING AT KANNA VILAS, AGED 66 YEARS, SHORNUR. P.O., MUNDAMUGHA AMSOM, SHORNUR DESOM, OTTAPPALAM THALUK, PALAKKAD DISTRICT, PIN - 679121 BY ADVS. SREEHARI R HAMZA A.V.(K/1588/2022) VIGNESH S.(K/3697/2022) ``` ## **`THIS REGULAR SECOND APPEAL HAVING COME UP FOR ORDERS ON`** ``` 17.11.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` R.S.A. No. 117 of 2023 ``` ``` 2 ``` ## **“C.R”** ## **JUDGMENT** ## **Dated this the 17[th] day of November, 2023** This regular second appeal has been filed under order XLII Rule 1 read with Section 100 of the Code of Civil Procedure (“CPC” hereinafter) challenging the decree and judgment in A.S. No.2 of 2019 dated 31.08.2022 on the files of the Court of the Subordinate Judge, Ottapalam arose from decree and judgment in O.S. No.328 of 2015 dated 30.10.2018 on the files of the Munsiff Court, Ottapalam. The appellant herein is the defendant and the respondent is the plaintiff in O.S. No. 328 of 2015. 2. Heard both sides in detail, perused the lower court records and the decisions placed by the learned counsel for the appellant/defendant. 3. Parties in this appeal shall be referred as “plaintiff” and “defendant” with reference to their status before the trial court. 4. Facts in brief: ``` R.S.A. No. 117 of 2023 ``` ``` 3 ``` The plaintiff filed suit demanding partition of the plaint schedule property on the assertion that the plaintiff and defendant jointly purchased the same by virtue of Jenm assignment deed No.3194/1985 of SRO, Ottapalam. According to the plaintiff, the plaintiff prayed for partition of the plaint schedule property into two shares and to get half share separately allotted to him. 5. The defendant filed written statement and raised contention that the plaint schedule property was purchased by sharing purchase money in the ratio 9:6 and therefore, the plaintiff would get only 6/15 shares and the defendant would get 9/15 shares. In this regard, an agreement executed after the execution of assignment deed had been given emphasis. 6. The trial court recorded evidence after raising necessary issues. PW1 examined and Exts.A1 and A2 marked on the side of the plaintiff. DW1 examined and Exts.B1 to B3 marked on the side of the defendant. 7. The trial court upheld the contention raised by the defendant and granted preliminary decree of partition ``` R.S.A. No. 117 of 2023 ``` ``` 4 ``` and accordingly it was held that the plaintiff would get 6/15 shares and the defendant would get 9/15 shares out of the plaint schedule property. 8. The verdict of the trial court was challenged before the Appellate Court by filing A.S. No.2 of 2019. The Appellate Court reversed the finding of the trial court and held that the plaint schedule property is liable to be partitioned into two equal shares and 1/2 share would go to the plaintiff and 1/2 share would go to the defendant. 9. At the time of admission, as per the order dated 08.03.2023, my learned predecessor formulated one substantial question of law as under: 1. Whether the parties are bound by the terms in Ext.B2 agreement? 10. In answer, while espousing reasons to accept Ext.B2, the learned counsel for the defendant submitted that even though Ext.B2 is an agreement executed after the execution of Ext.A1 confining joint ownership in the name of plaintiff and defendant, the same is a document of 30 years old and when the plaintiff also admitted the ``` R.S.A. No. 117 of 2023 ``` ``` 5 ``` signature therein, the same should be given predominance over Ext.A1 and if so, the share contributed by the plaintiff for the purchase of the plaint schedule property is 6/15. As such the trial court rightly granted the decree accepting the contention of the defendant. However, the Appellate Court, on wrong appreciation of facts, evidence and law on the point, reversed the verdict without any justification and by giving emphasis to Ext.B2, the trial court verdict is to be restored reversing the decree and judgment of the Appellate Court. 11. The learned counsel for the defendant read out the narration in Ext.B2, the agreement allegedly executed between the plaintiff and defendant, pursuant to the execution of Ext.A1 jenm assignment deed and also pointed out the impact of Section 45 of the Transfer of Property Act, 1882 in view of Ext.B2. A decision of the Allahabad High Court reported in **[1982 KHC 1122 : AIR 1982 All. 273] Mohan Lal v. Board of Revenue, U.P. Allahabad and Others** has been placed to contend that in view of the mandate under Section 45 of the Transfer of Property Act, ``` R.S.A. No. 117 of 2023 ``` ``` 6 ``` 1882 (hereinafter referred as ‘TP Act’ for short), if title deed would recite contribution of purchase money not in equal proportion, when other evidence is adduced to show that purchase money was given in equal proportion, in view of operation of Section 45 of the TP Act, the right of the parties in the jointly owned property is in the proportion, they contributed purchase money. In paragraph No.15 of the said decision, the learned Judge of the Allahabad High Court held as under: In the present case since the dispute is between the vendees regarding their share in the disputed property purchased and the recital in the sale deed indicating plaintiff's share is patently erroneous even according to the story narrated by the defendants, it is proper that the second appellate court should be asked to reexamine the claims of the parties afresh in accordance with the decisions of this Court mentioned above as well as the observation of their Lordships of the Supreme Court in the ruling reported in AIR 1963 SC 1 at p.39 (para 74) R. Vishwanathan v. Rukn-ul-Mulkh Syed Abdul Wajid, wherein it has been observed as below: ``` R.S.A. No. 117 of 2023 ``` ``` 7 ``` “……...Evidently, the recitals in the release deed were made for maintaining a record that Devraj and Ramalinga had no interest in the property of Shanmugan. Admissibility of evidence to contradict the recital that there was in fact no property of the joint family is not precluded by S.92, Evidence Act, as the dispute in this suit does not arise between the parties to the documents, but between persons who claimed under Ramalingam who was the executant of the document." 12. The learned counsel for the defendant also placed judgments of this Court reported in **Ambujakshy v. Karunakaran [1990 KHC 193 : 1990 (1) KLT 912 : 1990(1) KLJ 792 : ILR 1990 (3) Ker. 792]** and **Vasanthakumary Omanakuttan Nair [2009 (2) KHC 1049 : 2009 (3) KLT 43 : ILR 2009 (3) Ker. 20 : 2009 (2) KLJ 637]** , to substantiate his contention. 13. In **Ambujakshy** ’s case (supra) this Court discussed the scope and impact of Section 45 of the TP Act in paragraph No.11. The same is as under: 11. the expression 'in the absence of evidence' occurring in the second part of S.45 ``` R.S.A. No. 117 of 2023 ``` ``` 8 ``` does not take in a situation where there is only some formal evidence which cannot be accepted or acted upon by a court of law. Unreliable or unsubstantial evidence or record would also result in a situation where there is an 'absence of evidence' as regards the interest in the fund to which the parties are respectively entitled, or the shares they respectively advanced. What matters is the substance, not the shadow. 14. According to the learned counsel for the defendant, even though in Ext.A1, there is no mention with regard to the contribution paid by the parties to the vendor, Ext.B2 would show the contribution in the proportion 9:6 and therefore accepting Ext.B2, the verdict of the trial court is to be restored. He also given emphasis to Ext.B3 sketch prepared by the Surveyor as admitted by the plaintiff, for the purpose of partition showing the allocation of shares in the sketch in the proportion 9:6. 15. Per contra, it is submitted by the learned counsel for the plaintiff that, Ext.A1 is the title document whereby both parties acquired title over the plaint schedule property ``` R.S.A. No. 117 of 2023 ``` ``` 9 ``` and in the said title deed, it has been specifically recited that the purchase money was given jointly to the vendor by both sides. He also submitted that, execution of Ext.B2, in fact, denied by the plaintiff though he admitted his signature therein during cross-examination. He also submitted that Ext.B2 dated 05.04.1986 produced in a suit of the year 2015 could not be held as a document of 30 years old, as provided under Section 90 of the Evidence Act. He also submitted that if Ext.B2 dated 05.04.1986 was there, reference with regard to Ext.B2 should have been mentioned, while executing Ext.A2 in the year 2000, whereby the plaintiff and defendant jointly transferred a portion of the property covered by Ext.A1 in favour of a 3[rd] party. Accordingly, it is submitted that reading Exts.A1 and A2 together, the inference is that, Ext.B2 is of no legal consequences as such the Appellate Court is right in allowing partition in equal proportion and the said verdict does not require any interference at the hands of this Court. 16. Summarizing the rival contentions, it is not in ``` R.S.A. No. 117 of 2023 ``` ``` 10 ``` dispute that Section 45 of the TP Act has application in cases where joint transfer of immovable property for consideration. In the instant case, the subject matter in dispute is of similar nature. Section 45 of the TP Act provides as under: ## **45. Joint transfer for** **consideration.-** Where immovable property is transferred for consideration to two or more persons and such consideration is paid out of a fund belonging to them in common, they are, in the absence of a contract to the contrary, respectively entitled to interests in such property identical, as nearly as may be, with the interests to which they were respectively entitled in the fund; and, where such consideration is paid out of separate funds belonging to them respectively, they are, in the absence of a contract to the contrary, respectively entitled to interests in such property in proportion to the shares of the consideration which they respectively advanced. In the absence of evidence as to the interests in the fund to which they were respectively entitled, or as to the shares ``` R.S.A. No. 117 of 2023 ``` ``` 11 ``` which they respectively advanced, such persons shall be presumed to be equally interested in the property. 17. In **Vasanthakumary v. Omanakuttan Nair** ’s case (supra), this Court in paragraph Nos. 14, 15 and 16 elaborated the principles with regard to Section 45 of the TP Act in broader canvas and the same are as under: 14. S.45 of the Transfer of Property Act imports into Indian law a rule of equity. fairness and justice which was recognized under the English law. When acquisition is in joint names and consideration has been paid out of a common fund, rights of the joint owners will be proportionate to their share in the common fund. This is what the first part of S.45 declares. 15. The 2nd part of S.45 deals with the situation where property is acquired in the joint names of persons and the consideration comes not out of a common fund; but from the separate funds of the acquirers. In such an event, S.45 declares that their share of rights in such property shall be proportionate to the contribution made by them respectively from their ``` R.S.A. No. 117 of 2023 ``` ``` 12 ``` separate funds. 16. The 3rd part of the Section is in the nature of a proviso which declares that where there is absence of evidence as to the interests in the common fund or the share in which consideration has been paid, there must be a presumption that all acquirers have equal rights in the property. 18. Now the question emerges for consideration is, how far Section 45 of the TP Act would aid the defendant in holding that the parties are bound by the terms of Ext.B2 in the matter of sale consideration paid for the purchase of property covered by Ext.A1? In Ext.A1 executed on 09.10.1985, it has been specifically recited that Rs.25,000/is the sale consideration paid by the vendees (plaintiff and defendant together) to the vendor and accepted by the vendor as sale consideration for Ext.A1. Ext.A1 does not show even remotely that sale consideration was in the proportion 9:6, as contended by the defendant as well as in terms of Ext.B2. It is relevant to note further that, Ext.A2 is a subsequent assignment deed executed on 11.02.2000, ``` R.S.A. No. 117 of 2023 ``` ``` 13 ``` jointly by the plaintiff and defendant and thereby they transferred 2.33 Ares (5 ¾ cents) in favour of a 3[rd] party and jointly received sale consideration thereof. While describing the derivation of title in Ext.A2, it has been narrated that the plaintiff and defendant jointly obtained the property and there is no mention in the said document also, with regard to payment of sale consideration in the ratio 9:6. 19. It is true that, the plaintiff while giving evidence as PW1, during cross-examination, admitted Ext.B3 survey sketch prepared for the purpose of partition and the same would go to show that the plan was not prepared in equal proportion. Though, it is argued by the learned counsel for the plaintiff that, Ext.B3 is not proved by examining its author, in order to appraise Ext.B3, examination of its author is not necessary and it can be appreciated since preparation of Ext.B3 is a fact admitted by the plaintiff. Even though, PW1 admitted preparation of Ext.B3 sketch for the purpose of partition and separate possession of the plaint schedule property, his case is that since, Ext.B3 was ``` R.S.A. No. 117 of 2023 ``` ``` 14 ``` not acceptable to him, he did not heed the demand for partition as per Ext.B3 plan. Therefore, Ext.B3 could not be given much emphasis to hold that the plaintiff and defendant paid sale consideration in the proportion 9:6 at the time of executing Ext.A1, as contended by the defendant. 20. It is true that when there is purchase of immovable property for consideration by two or more persons and such consideration is paid out of a fund belonging to them in common, they are, in the absence of a contract to the contrary, respectively entitled to interest in such property identical as nearly as may be with the interest to which they were separately entitled in the fund; and where such consideration is paid out of separate fund belonging to them respectively, they are, in the absence of a contract to the contrary, respectively entitled to interest in such property in the proportion to the shares of the consideration which they have respectively advanced. It has been provided further that, in the absence of evidence as to the interest in the fund to which they were ``` R.S.A. No. 117 of 2023 ``` ``` 15 ``` respectively entitled, or as to the shares which they respectively advanced, such persons shall be presumed to be equally interested in the property. 21. Here, the facts of the case would go to show that at the time of execution of Ext.A1 nothing stated in Ext.A1 regarding contribution of sale price in the proportion 9:6 as contended. No doubt, Ext.A1 is a 30 years old document without any iota of dispute. Though, Ext.B2 which was produced before the Court by the defendant along with the written statement on 16.01.2016, in stricto sensu, the same is not a document of 30 years old, since 30 years period was not completed at the time of production of Ext.B2. 22. In this context, Ext.A2 another jenm assignment deed executed in the year 2000 after a period of 24 years also assumes significance. It is surprising to see that even though the defendant has a contention that as per Ext.B2, both parties executed Ext.B2 showing their contribution with regard to payment of purchase money, the said fact did not even expressly or impliedly found a place in Ext.A2. 23. No doubt, Section 45 of the TP Act would govern ``` R.S.A. No. 117 of 2023 ``` ``` 16 ``` interest in property jointly purchased by two or more persons and the interest shall be in the proportion to the shares of the consideration which they respectively advanced. Therefore, if Ext.B2 is given emphasis and the same is accepted as a document executed between the plaintiff and defendant, the same can be acted upon to hold that the plaintiff and defendant herein paid sale consideration in the proportion 9:6. 24. However, as I have already pointed out, Ext.A1 assignment deed was executed on 09.10.1985 without mentioning payment of sale consideration as stated in Ext.B2, though Ext.B2 was executed on 05.04.1986 i.e. after six months from the date of execution of Ext.A1. During cross-examination of PW1, the plaintiff admitted his signature in Ext.B2 and denied execution of Ext.B2. Therefore, it could not be held that the plaintiff admitted Ext.B2, though he had admitted the signature therein. Since, there is no mention regarding payment of consideration in the proportion 9:6 in Exts.A1 or A2, as I have already pointed out, I am not inclined to give ``` 17 ``` ``` R.S.A. No. 117 of 2023 ``` emphasis to Ext.B2 in exclusion of Exts.A1 and A2 to hold that the plaintiff and defendant paid consideration to the vendor while executing Ext.A1 in the proportion 9:6 and the defendant miserably failed to examine the vendor otherwise to prove the same. 25. Therefore, I am of the view that the Appellate Court rightly set aside the decree and judgment passed by the trial court and held that the property is liable to be partitioned equally in between the plaintiff and defendant. In view of the matter, the regular second appeal fails and accordingly the same stands dismissed. **Sd/-** SK **A. BADHARUDEEN JUDGE**