Pallipath Fathima v Pallipath Kunhamina and Others

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE SATHISH NINAN** **THURSDAY, THE 25[TH] DAY OF JANUARY 2024 / 5TH MAGHA, 1945 RFA NO. 659 OF 2007 (F)** **AGAINST THE JUDGMENT AND DECREE IN OS 141/2003 OF PRINCIPAL SUB COURT, THALASSERY** **-----** ## **APPELLANT/PLAINTIFF:** PALLIPATH FATHIMA, AGED 44 YEARS, NO OCCUPATION, RESIDING AT SHABEEL, KANNOTHUMCHAL WARD, KANNUR-2. BY ADVS. SRI.P.B.KRISHNAN SRI.N.AJITH SRI.P.M.NEELAKANDAN SRI.P.B.SUBRAMANYAN ## **RESPONDENTS/DEFENDANTS:** 1 PALLIPATH KUNHAMINA, **[DIED; LEGAL REPRESENTATIVES RECORDED]*** W/O MAMMED HAJI, AGED 72 YEARS, NO OCCUPATION, RESIDING AT FATHIMA MANZIL, NEAR KAMALIYA U.P.SCHOOL, IRIKKUR, KANNUR DIST.-670 593. 2 PALLIPATH ABDULLA, S/O.MAMMOO HAJI, AGED 56 YEARS, OCCUPATION NOT KNOWN, BEEBI HOUSE, MILL ROAD, AZHIKODE AMSOM DESOM, P.O.AZHIKODE, PIN-670009. 3 PALLIPATH MOIDEEN HAJI, S/O. MAMMED HAJI, AGED 54 YEARS, OCCUPATION NOT KNOWN, RESIDING AT FATHIMA MANZIL, NEAR KAMALIYA U.P.SCHOOL, IRIKKUR, KANNUR-670 593. **RFA NO. 659 OF 2007 -2-** 4 PALLIPATH ASSIANAR, S/O. MAMMED HAJI, OCCUPATION NOT KNOWN, RESIDING AT FATHIMA MANZIL, NEAR KAMALIYA, U.P.SCHOOL, IRIKKUR, KANNUR-670 593. 5 PALLIPATH ASHRAF, S/O. MAMMED HAJI, OCCUPATION NOT KNOWN, RESIDING AT FATHIMA MANZIL, NEAR KAMALIYA, U.P.SCHOOL, IRIKKUR, KANNUR-670 593. 6 PALLIPATH HUSAIN, S/O. MAMMED HAJI, OCCUPATION NOT KNOWN, RESIDING AT FATHIMA MANZIL, NEAR KAMALIYA, U.P.SCHOOL, IRIKKUR, KANNUR-670 593. 7 PALLIPATH NAFEESATH, W/O. MAMMED HAJI, AGED 40 YEARS, NO OCCUPATION,SHABEENA HOUSE, NEAR T.C.NARAYANAN NAMBIAR MEMORIAL SCHOOL, TC ROAD, NARATH AMSOM, KAMBIL DESOM P.O. NARATH, KANNUR-670 663. ## ***[IT IS RECORDED THAT RESPONDENT NO.1 DIED AND APPELLANT AND RESPONDENTS 2 TO 7 WHO ARE ALREADY IN THE PARTY ARRAY ARE RECORDED AS THE LEGAL REPRESENTATIVES OF DECEASED RESPONDENT NO.1 AS PER ORDER DATED 13.01.2011 IN MEMO CF NO.8000/10 DT. 23.12.2010]** BY ADVS. SRI.K.JAYESH MOHANKUMAR – R2 TO R6 SRI.P.M.PAREETH - R9 TO R11 SRI.PUSHPARAJAN KODOTH - R2 TO R6 SRI.M.RAMESH CHANDER - R7 SRI.T.SETHUMADHAVAN - R2 TO R6 THIS REGULAR FIRST APPEAL HAVING COME UP FOR HEARING ON 25.01.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## **SATHISH NINAN, J.** **= = = = = = = = = = = = = = = = = = R.F.A. No.659 of 2007** **= = = = = = = = = = = = = = = = = = Dated this the 25[th] day of January, 2024** ## **J U D G M E N T** Challenging the dismissal of a suit for partition, the plaintiff is in appeal. 2. The plaint schedule properties belonged to one Mammad Haji. The first defendant is his wife. The plaintiff and defendants 2 to 7 are their children. On the death of Mammad Haji there was a suit for partition before the Sub Court, Thalassery, as OS 22/1964 between the plaintiff and the defendants on the one side, and one Aysha Kunhu and Kasmi who are the children of Mammad Haji in another wife on the other side. The suit was settled between the parties. Aysha Kunhu and Kasmi executed Exts.A1 and A2 Release Deeds. Thus the properties belonged exclusively to the plaintiff and the defendants. On the demand for partition, the second defendant contended that the properties were already R.F.A. No.659 of 2007 -: 2 :- partitioned under a Partition Deed No.875/1975 (Ext.B2) and thus declined the demand. Plaintiff alleges that she has not signed in Ext.B2, that she was a minor during that period and that Ext.B2 was never acted upon. It is accordingly that the suit is filed. 3. The first defendant filed written statement relying upon Ext.B2 Partition Deed. The contention of the plaintiff that she was a minor at the time of execution of Ext.B2 was denied. All the other defendants except defendant No.7 filed written statement on the same lines. The 7[th] defendant contended that she is entitled for a share on partition. 4. The trial court upheld Ext.B2 Partition Deed and accordingly dismissed the suit. 5. I have heard learned counsel Sri.P.B.Krishnan on behalf of the appellant and learned Senior Counsel Sri.T.Sethumadhavan on behalf of the contesting respondents. R.F.A. No.659 of 2007 -: 3 :- ## 6. The points that arise for determination are :- _(i) Is the finding of the trial court that the plaintiff has signed Ext.B2 Partition Deed, based on evidence ?_ _(ii) Is the finding of the trial court on the majority of the plaintiff on the date of execution of Ext.B2, sustainable on the materials ?_ _(iii) Is the finding of the trial court that Ext.B2 Partition Deed had come into effect, supported by evidence ?_ 7. The claim for partition is liable to be declined if there was a partition between the sharers under Ext.B2 Partition Deed. The plaintiff challenges Ext.B2 on three grounds : firstly, that she has not signed the document; secondly, that she was a minor in the year 1975; and thirdly, that the partition deed had never come into effect. 8. The original of Ext.B2 Partition Deed was summoned from the Union Bank of India, Mattannur, where it was deposited for creation of eaquitable mortgage. It was produced before the court and marked as Ext.X1. The R.F.A. No.659 of 2007 -: 4 :- document on the face of it shows that the plaintiff had affixed her signature and thumb impression thereon. But for the bald allegation of denial of execution, the plaintiff did not take any steps to prove that the signature and thumb impression found in Ext.B2 are not that of her’s. The document being a registered one it is for the plaintiff to prove that she had not executed the document. (See _**Sumathi Amma v. Kunjulekshmi Amma 1964 KHC 256**_ , _**Prem Singh v. Birbal 2006 (5) SCC 353, Vishwanath Bapurao Sabale v. Shalinibai Nagappa Sabale & Ors. 2009(12) SCC 101,**_ and _**Jamila Begum (D) thr. Lrs. v. Shami Mohd. (D) thr. Lrs. and Another 2019 (2) SCC 727, Hari G. Nair v. Santha & Ors. 2023 (6) KLT 855**_ ). Therefore, it can only be held that Ext.B2 Partition Deed was executed by the plaintiff. 9. Now coming to the contention regarding the minority of the plaintiff on the date of execution of Ext.B2, the document is dated 31.05.1975. To prove that the plaintiff was a minor on the said date, she relies R.F.A. No.659 of 2007 -: 5 :- on Ext.A7 the school admission register, the evidence of PW2 the Head Master of the School, and the recitals in Exts.A8 and A9 Gift Deeds executed by the father and the mother respectively. Going by the date of birth mentioned in Ext.A7, and the date mentioned in Exts.A8 and A9 the plaintiff must have been a minor on the date of execution of Ext.B2. Therefore, Ext.B2 cannot be held against the plaintiff to deny the claim for partition, is the argument. The contesting defendants would on the other hand rely on the recital in Ext.B2 Partition Deed wherein the mother is also a party, the Marriage Register Ext.B3, and also the evidence of PW1-the husband of the plaintiff, to contend that the plaintiff was a major at the relevant time. 10. Evidently there are two set of documents before the Court - one set suggesting that the plaintiff was a minor at the relevant time, and another set suggesting that she was a major. The Court needs to assess the R.F.A. No.659 of 2007 -: 6 :- evidence in its totality and find out the probability. 11. That the school admission register is a relevant piece of evidence, cannot be disputed. _[See_ _**Umesh Chandra v. State of Rajasthan 1982 (2) SCC 202**_ , _**Harpal Singh v. State of H.P. 1981 (1) SCC 560**_ , _**Birad Mal Singh v. Anand Purohit AIR 1988 SC 1796**_ , _**Ravinder Singh Gorkhi v. State of U.P. AIR 2006 SC 2157]**_ . Here the defendants challenge the identity of the person mentioned in Ext.A7. Of course, there is no evidence either way. In _**Birad Mal Singh v. Anand Purohit**_ supra, the Apex Court has observed about the relevancy of availability of the admission form or the basis on which the entries were made in the register. No evidence in the said regard is available. As noticed by the trial court, the evidence of PW2, who was not in office at the relevant time, does not help. In Exts.A8 and A9 which are of the year 1961 and 1976 the plaintiff has been shown as minor. In Ext.A9, the plaintiff is shown as of 15 years of age. Now coming to Ext.B2 Partition Deed, it R.F.A. No.659 of 2007 -: 7 :- is executed between the mother and all the children. Therein the plaintiff is stated to be of 21 years age. In Ext.B2, the 7[th] defendant herein was party No.8 and was described as a minor aged 17 years. In Ext.B2 she was represented by the mother as guardian. The age difference between the plaintiff and the 7[th] defendant as is shown therein is four years. In the present plaint also the difference in the age of the plaintiff and the 7[th] defendant is seen to be four years. If the plaintiff was a minor at that time, nothing prevented the document being executed on behalf of the plaintiff also by the mother as guardian, as in the case of the 7[th] defendant. It would suggest that the plaintiff was a major at that time. In Ext.B3 the marriage register of the year 1976, the plaintiff is shown as of 19 years of age. Though PW1 would depose that the plaintiff was a minor at the time of marriage, he would on further cross-examination vouch to the correctness of the age mentioned in the marriage R.F.A. No.659 of 2007 -: 8 :- ## register. His deposition reads thus:- “hnhm-l tc-J-bnð Im-Wn-¨ hb-Êv i-cn-bmWv.” At this juncture, it would be relevant to refer to the affidavit filed by the plaintiff-appellant before this Court along with three interlocutory applications. The appellant had filed IA No.895/2016, IA 1219/2016, IA 1221/2016, all under Order XLI Rule 27 of the Code of Civil Procedure for reception of additional evidence. In the affidavits filed in support of all these applications, the plaintiff has stated her age as, “61 years”. The affidavits are in the year 2016. If that be so, then, in the year 1975 she would have been a major aged 20 years. Incidentally it is also to be noticed that, the mother, who is the first defendant in the suit has in her written statement disputed the contention of the plaintiff that she was a minor at the time of execution of Ext.B2 partition. The 7[th] defendant remained silent regarding Ext.B2 partition. The plaintiff has not R.F.A. No.659 of 2007 -: 9 :- given evidence. The husband of the plaintiff was examined as PW1. The trial court has, on analysing the evidence in its entirety concluded that the plaintiff was a major at the time of Ext.B2 partition. On appreciating the rival materials on record as referred to above, it could be found that the conclusions arrived at by the trial court is proper. 12. Having found that Ext.B2 Partition Deed was executed by the plaintiff and that she was a major at the time of its execution, what remains is the contention that Ext.B2 partition had not taken into effect. Ext.B5 is the receipt issued by the Union Bank of India. It reveals that the Partition Deed was deposited with the Bank as equitable mortgage to secure a loan availed for rubber cultivation in the property. As noticed earlier, the original Partition Deed (Ext.X1) was summoned from the Bank. The loan was availed jointly by defendants 2 to 6. Ext.B6 is the notice issued by the R.F.A. No.659 of 2007 -: 10 :- Tahsildar to the third defendant in relation to plantation tax for the property obtained by the third defendant under partition. Ext.B7 is the judgment of this Court in OP 2784/1993 in relation to the dispute between the third defendant and the revenue authorities with regard to the assessment of plantation tax. Exts.B9 to B11 documents are regarding the revenue recovery proceedings against the second defendant in relation to plantation tax. Ext.B12 series are the basic tax receipts of the property allotted to the second defendant in Ext.B2 partition. Similarly Ext.B13 series are the basic tax receipts of the properties allotted to third defendant, Ext.B14 series are the basic tax receipts of the properties of the 4[th] defendant, and Ext.B15 series and Ext.B16 are the basic tax receipts of properties of the 5[th] defendant, allotted under Ext.B2 partition. As noticed by the trial court separate possession of the properties based on Ext.B2 partition R.F.A. No.659 of 2007 -: 11 :- is evidenced by the said documents. 13. Before this Court the appellant has sought to produce certain additional documents. The learned counsel for the appellant mainly relies on the judgment in OS 142/2003 of the Subordinate Judge's Court, Thalassery, filed by the present plaintiff herein against defendants 1, 4, 5 and 7 herein. The said suit was one for partition of four items of properties which was gifted to the plaintiff and the first defendant by Mammad Haji under Ext.A8 Gift Deed. The validity of Ext.B2 Partition Deed herein, was an issue in that suit. The Court held that the plaintiff was a minor at the time of the partition and that the document was not acted upon by the parties. The said judgment has become final and has a bearing on the present case, it is contended. 14. As could be noticed, all the parties to the present suit were not parties to the said suit. The R.F.A. No.659 of 2007 -: 12 :- properties of the contesting defendants herein were not the subject matter therein. In the judgment in the suit OS 142/2003 the Court noticed about the present suit and that there would not be any bar of res judicata. In the present case also the plea of bar of res judicata is not urged. Even the learned counsel for the appellant would not contend that in the light of the judgment in OS 142/2003 the issue regarding validity of Ext.B2 partition does not survive. The pleadings in the said case are not before this Court. Suffice to notice that the validity of Ext.B2 cannot be held to be concluded by virtue of the judgment in OS 142/2003. 15. Yet another document sought to be produced is the order of this Court in CRP 421/2004. It arose from the Taluk Land Board proceedings regarding excess land. The appellant has produced the same to impress upon the court that, proceedings regarding the excess land were pending and the same might have prompted the parties to R.F.A. No.659 of 2007 -: 13 :- execute Ext.B2 Partition Deed. It is seen that the partition was taken note of by this Court in the said order. I do not consider it necessary to accept any of the additional documents. So also, additional parties are sought to be impleaded in the appeal stating that they are assignees of portions of the properties from the defendants. Since I am of the opinion that no interference is called for in this appeal, the impleading as sought for, is not necessary. 16. Ext.B2 partition is of the year 1975. There was an earlier suit as OS 128/1999 filed by the plaintiff for partition of the very same properties. The suit was dismissed in the year 2003 for non-prosecution. It is thereafter that the present suit is filed. Ext.B2 partition stood unchallenged till the filing of OS 128/1999 that is, for a period of almost 24 years. Evidence on record indicates that the Partition Deed Ext.B2 was acted upon by the parties and were produced R.F.A. No.659 of 2007 -: 14 :- before various authorities. The contention that the partition did not take effect, cannot be accepted. The trial court was justified in having held so. Resultantly, the appeal fails and is dismissed. Sd/- **SATHISH NINAN JUDGE** kns/- //True Copy// P.S. to Judge