Pankajakshy Panickathy (dead) and others v. Surendra Panicker and others

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE SATHISH NINAN MONDAY, THE 12[TH] DAY OF DECEMBER 2022 /** **21ST AGRAHAYANA, 1944** ## **RSA NO. 894 OF 2008** **AGAINST THE JUDGMENT IN AS 69/2006 OF DISTRICT COURT,KOLLAM OS 653/2000 OF MUNSIFF COURT, KARUNAGAPPALLY** **-----** ## **APPELLANTS/APPELLANTS/PLAINTIFFS:** PANKAJAKSHY PANICKATHY (DIED) - 1 LEELAMMA PANICKATHY, D/O. MANDAKINI PANICKATHY, AGED 73 YEARS, R/O. MULAVELIL VEEDU, MEMANI MURI, OACHIR VILLAGE. - **[1]** 2 JANAMMA PANICKATHY, AGED 50 YEARS, **(AMENDED)*** VANDANAM VILLAGE, BANKERS' BUILDING, MULAVELIL VEEDU, MEMANA MURI, OACHIRA VILLAGE. - **[2 ]** 3 ANITHAMMA PANICKATHY, AGED 55 YEARS, **(AMENDED)*** RESIDING AT KARTHIKA, SMC XXI/140, ARTHUNGAL ROAD, CHERTHALA TALUK. - **[3 ]** 4 SASIDHARA PANICKER, **(AMENDED)*** S/O. SANKARA PANICKER, AGED 60 YEARS, R/O. ANIYARIS HOUSE, NJADKANAL MURI, KRISHNAPURAM VILLAGE. - **[4 ]** 5 GEETHA, ATHAL VEEDU, **(AMENDED)*** THELEKAMURI, EAST KALLADA VILLAGE. - **[5 ]** 6 GANGA, ATHAL VEEDU, **(AMENDED)*** THEKKE MURI, EAST KALLADA VILLAGE. - **[6 ]** 7 BINDU, ATHEL VEEDU, THEKKE MURI, **(AMENDED)*** EAST KALLADA VILLAGE. **RSA NO. 894 OF 2008 -2-** ***[7 ]** 8 DEEPA, ATHAL VEEDU, **(AMENDED)*** THEKKE MURI, EAST KALLADA VILLAGE. ## ***[12 ] SUPPLEMENTAL APPELLANTS 9 & 10** **SUPPL.A9** L. SEETHAMMA, D/O LATE LEELAMMA PANICKATHY, AGED 62 YEARS, RESIDING AT MULAVELIL VEEDU, MEMANA MURI, OACHIRA VILLAGE, OACHIRA P.O., KOLLAM DISTRICT. **SUPPL.A10** SETHU, S/O LATE LEELAMMA PANICKATHY, AGED 53 YEARS, RESIDING AT MULAVELIL VEEDU, MEMANA MURI, OACHIRA VILLAGE, OACHIRA PO, KOLLAM DISTRICT. BY ADV SRI.MILLU DANDAPANI ## **RESPONDENTS/RESPONDENTS/DEFENDANTS:** ***[8 ]** 1 SURENDRA PANICKER, AGED 62 YEARS, **(AMENDED)*** S/O. SANKARA PANICKER, ANAYADI KUNNIMEL VEEDU, MEMANA MURI, OACHIRA VILLAGE. 2 RAVEENDRA PANICKER, **(DIED, LHRS IMPLEADED)** AGED 67 YEARS, S/O. SANKARA PANICKER, KARTHIKA BHAVANAM, PAYIKUZHI MURI, OACHIRA. 3 LATHAMMA PANICKATHY, AGED 58 YEARS, D/O. MANDAKINI PANICKATHY, VALLATTU HOUSE, NJACKANAL MURI, KRISHNAPURAM VILLAGE. ***[9 ]** 4 MAYAMMA PANICKATHY, AGED 62 YEARS, **(AMENDED)*** D/O. MANDAKINI PANICKATHY, SREE ANANDA MAHIYA SREE NIVAS, CO-OPERATIVE HOUISNG SOCIETY, MUMBAI DEANS FARM ROAD, FROM KANNIMMEL VEEDU, MEMANA MURI, OACHIRA VILLAGE. **RSA NO. 894 OF 2008 -3-** ***[10 ]** 5 REEJA, AGED 48 YEARS, **(AMENDED)*** D/O. LALITHAMMA PANICKATHY, VARAMPALLY CHAKKITTOYIL VEEDU, MUTHUKULAM SOUTH, MUTHUKULAM VILLAGE, KARTHIKAPPALLY TALUK. ***[11 ]** 6 RIJU, AGED 34 YEARS, **(AMENDED)*** S/O. RAVEENDRAN, VARANPPALLY CHOLAKKITTIYIL VEEDU, MUTHUKULAM SOUTH, KARTHIKAPPALLY TALUK. ## ***[13] ADDITIONAL RESPONDENTS 7 TO 9** **ADDL.R7** SARASSAMMA RAVEENDRAN, W/O LATE RAVEENDRA PANICKER, KARTHIKA BHAVANAM, PAZHIKUZHY OCHIRA-690526. **ADDL.R8** MR.DINGU S.R., AGED 54 YEARS, KARTHIKA BHAVANAM, PAZHIKUZHY OCHIRA-690526. **ADDL.R9** MR.DILU S.R., AGED 51 YEARS, KARTHIKA, VAVVAKKAVU PO, KARUNAGAPALLY TALUK, KOLLAM DT.- 690528 BY ADVS. SRI.R.D.SHENOY (SR.) SMT.T.N.SREEKALA SRI.BASANT BALAJI SRI.R.GOPAN SRI.K.HARILAL SRI.M.N.SANDEEP ***** THE CAUSE TITLE OF THE APPEAL MEMORANDUM IS AMENDED AS PER ORDER DATED 18.02.2019 IN IA 4/2019 ***[1 ]** THE NAME AND ADDRESS OF THE 2ND APPELLANT ARE CORRECTED AS “JAYAMMA PANICKATHY, AGED 62 YEARS, NOW RESIDING AT VANDANAM TOWER, OPPOSITE PARABRAHMA TEMPLE, OACHIRA PO, KOLLAM DISTRICT”. **RSA NO. 894 OF 2008 -4-** ***[2]** THE ADDRESS OF THE 3RD APPELLANT IS CORRECTED AS “NOW RESIDING AT 'KARTHIKA', CMC 32-61, ARTHUNGAL ROAD, CHERTHALA TALUK, CHERTHALA, PIN-688524”. ***[3]** THE ADDRESS OF THE 4TH APPELLANT IS CORRECTED AS “NOW RESIDING AT ANIYANS HOUSE, ANIYANS HOSPITAL COMPOUND, NJAKANAL MURI, KRISHNA PURAM PO, KAYAMKULAM, ALAPPUZHA DISTRICT.” ***[4, 5 & 7 ]** THE ADDRESS OF THE APPELLANTS 5,6, AND 8 IS CORRECTED AS “ANTHEL VEEDU, THEKKEMURI, EAST KALLADA, KALLADA PO., KOLLLAM DISTRICT.”. ***[6 ]** THE NAME AND ADDRESS OF 7TH APPELLANT IS CORRECTED AS “BEENA, ANTHEL VEEDU, EAST KALLADA, KALLADA PO., KOLLAM DISTRICT.” ***[8 ]** THE HOUSE NAME OF THE 1ST RESPONDENT IS CORRECTED AS “ANAYADI KANNIMEL VEEDU”, INSTEAD OF “ANYADI KANNIMEL VEEDU”. ***[9 ]** THE NAME OF THE 4TH RESPONDENT IS CORRECTD AS “MANIYAMMA PANICKATHY” INSTEAD OF “MAYAMMA PANICKATHY” AND IN THE ADDRESS SREE ANANDA MAHIYA SREE NIVAS IS DELETED AND INCORPORATED 302 MEGHA DOOD, DEONAR-FARM ROAD, MUMBAI400088. **RSA NO. 894 OF 2008 -5-** ***[10][ &][ 11]** THE ADDRESS OF THE 5TH AND 6TH RESPONDENTS ARE CORRECTED AS “NOW RESIDING AT VARANAPPALLY, CHAKKITTAYIL VEEDU, MUTHUKULAM PO, ALAPPUZHA DISTRICT.” ***[12 ]** THE LEGAL HEIRS OF DECEASED 1ST APPELLAT ARE IMPLEADED AS SUPPLEMENTAL APPELLANTS 9 AND 10 AS PER ORDER DATED 26.02.2019 IN IA 1/2019. ***[13 ]** LEGAL HEIRS OF DECEASED RESPONDENT NO.2 IS IMPLEADED AS ADDL.R7 TO R9 AS PER ORDER DATED 06.12.2022 IN IA 3/2022. THIS REGULAR SECOND APPEAL HAVING BEEN FINALLY HEARD ON 12.12.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## **SATHISH NINAN, J.** **= = = = = = = = = = = = = = = = = = R.S.A. No.894 of 2008** **= = = = = = = = = = = = = = = = = = Dated this the 12[th] day of December, 2022** ## **J U D G M E N T** This Regular Second Appeal is by the plaintiffs in a suit for declaration that Ext.A2=B1 settlement deed is void, and for partition. The dispute involved in this appeal is confined to plaint item numbers 1 and 2 which are the subject matter in Ext.A2. The challenge by the plaintiffs as against Ext.A2 was negatived concurrently by the courts. 2. Ext.A1 is the Partition Deed executed between Sankara Panicker, his brother Karthikeya Panicker and their wife Manthakini Panikathy. They were party nos.1 to 3 therein. Plaint item Nos.1 and 2 are described as item Nos.1 and 2 respectively in schedule I to Ext.A1 Partition Deed. Thereunder, it was allotted jointly to the three of them. The parties to the present suit are the children born to Sankara Panicker and Karthikeya **R.S.A. No.894 of 2008** **==> picture [34 x 9] intentionally omitted <==** Panicker and Manthakini Panikathy. Sankara Panicker died on 15.10.1976, Karthikeya Panicker died on 06.11.1983. Manthakini Panikathy executed Ext.A2 Settlement Deed on 15.10.1998, conveying plaint item Nos.1 and 2 to the first defendant who is one of her sons. Manthakini Panikathy died on 03.08.1999. The plaintiffs challenge Ext.A2 Settlement Deed to be void contending that it was executed in violation of an express restriction contained in the document, and also that the document is vitiated by coercion and undue influence. Accordingly, they seek for partition. 3. The Courts held Ext.A2 to be valid, and declined the claim for partition with respect to the said properties. 4. Heard learned Senior Counsel Smt.Sumathi Dandapani on behalf of the appellants and Sri.P.B.Krishnan, learned counsel for the respondents on the following substantial questions of law:- **R.S.A. No.894 of 2008** -: 3 :- _(i) Were the courts right in holding that the clause in Ext.A1 restraining the right of alienation of the allottees under Ext.A1 Partition Deed is void ?_ _(ii) Could Ext.A2 Settlement Deed convey any interests in excess of the 1/3 rights of Manthakini Panikathy and also the shares which she obtained as one among the legal heirs of Sankara Panicker and Karthikeya Panicker ?_ 5. Under Ext.A1 Partition Deed though item numbers 1 and 2 were allotted exclusively to parties 1 to 3 therein, it provided that consent of the children is also necessary for alienating item number 2 property therein. Section 10 of the Transfer of Property Act reads thus:- ## _“_ _**10. Condition restraining alienation.** — Where property is_ _transferred subject to a condition or limitation absolutely restraining the transferee or any person claiming under him from parting with or disposing of his interest in the property, the condition or limitation is void, except in the case of a lease where the condition is for the benefit of the lessor or those claiming under him: provided that property may be transferred to or for the benefit of a woman (not being a_ **R.S.A. No.894 of 2008** -: 4 :- _Hindu, Muhammadan or Buddhist), so that she shall not have power during her marriage to transfer or charge the same or her beneficial interest therein.”_ 6. That Section 10 applies even to partitions, is now well settled. _[See_ _**Cheeru v. Kelu Nair (1987 (2) KLT SN 15), Ittiyachan v. Tomy (2001 (3) KLT 117), Subair v. Kunhamina Umma (2015 (4) KLT SN 51), Narayanan Radhakrishna Menon v. Narayanan Sukumara Menon (2018 (2) KLT 553)** ]_ . Therefore, the courts were right in holding that the clause in Ext.A1 Partition Deed that, Sankara Panicker, Karthikeya Panicker and Manthakini Panikathy who were the absolute owners thereunder would need the consent of parties 4 to 11 therein for alienating the property, is void, the same being a restraint on the power of alienation. Substantial question of law No. _(i)_ is answered accordingly. 7. Under Ext.A1 Sankara Panicker, Karthikeya Panicker, and Manthakini Panikathy got vested with 1/3[rd] rights over the property. On the death of Sankara **R.S.A. No.894 of 2008** **==> picture [34 x 9] intentionally omitted <==** Panicker and Karthikeya Panicker, their 1/3[rd] right each, over the property, devolved on their legal heirs including Manthakini Panikathy. Therefore, on the date of Ext.A1, Manthakini Panikathy had 1/3[rd] share over the property and also the shares that devolved on her as one of the legal heirs of Sankara Panicker and Karthikeya Panicker. However, under Ext.A1 she purported to convey the entire property including the 2/3[rd] shares held by Sankara Panicker and Karthikeya Panicker to the first defendant. Ext.A1 can operate only with regard to the rights held by her as on the date of Ext.A1, as noted above, is the argument of the learned Senior Counsel. 8. To analyse the sustainability of the above contention, it is necessary to understand the recitals in Ext.A1 document in its entirety. The relevant recitals in Ext.A1 are referred to hereunder:- _“_ CXn-\-Sn-bn ]-«n-I-bn tNÀ-¯n-cn-¡p-¶ ]«n-I {I-aw A-\p-k-cn-¨v Hmtcm \-¼À h-kv-Xp-¡fpw C-¶ ap-X \nÀ-±nã ]«n-I `m-Kw In-«n-b-h-cp-sS t]-cn Iq-«n ]«-bw ]n-Sn-¨p **R.S.A. No.894 of 2008** **==> picture [34 x 9] intentionally omitted <==** kÀ-Æm-h-Im-i-am-bn AS-¡n A-\p-`-hn-¨p I-cw XoÀ¯pw F- t¶¡pw k-I-ehn-[ kzm-X-{´- IÀ-¯-hy-§-tfmSpw Iq-Sn \-S¶p-sIm-Å-W-sa-¶v k-½-Xn-¨pw. _”_ 9. The above deals with the interest created on the parties under the document. It admits of no doubt that the recitals indicate that absolute interest has been created on the parties. The next recital reads thus:- _“_ 1þDw, 2þDw, 3þDw I-£n-I-fp-sS Po-hn-X-tijw 1þmw \-¼dnÂ-s¸-« h-kv-Xp-¡Ä Sn-bm³-am-cp-sS Ir-b-hn-{I-b-§-fn DÄ-s¸-Sm-sX ti-jn-¨v D-¾m-bn-cp-¶m 1þDw, 2þDw, 3þDw I- £n-I-fp-sS a-c-W-ti-jw 4 ap-X 13 h-sc I-£n-IÄ-¡v Xpey-am-bn ho-Xn-s¨-Sp-¡m-hp-¶-XmWv. _”_ 10. As per the above, on the death of Sankara Panicker, Karthikeya Panicker and Manthakini Panikathy, if the property included under item No.1 therein remains unalienated, then it shall belong to parties 4 to 13 therein who are their children. The above indicates that- _(i)_ right accrues to the children only on the death of parties 1 to 3; the death of any one among parties 1 to 3 does not vest any right on the children; and _(ii)_ the right that is to vest with the children is only ## **R.S.A. No.894 of 2008** -: 7 :- regarding the property that may remain un-alienated at the time of death of all among parties 1 to 3. The above indicates that, what is intended is, survivorship between the three owners; on the death of one among them his or her interest would vest on the others. The survivor(s) could deal with the entire property. If on the death of the last among them and the property remains, it will vest on the children. The vesting on the children happens only then. The property cannot remain in vacuum. Therefore, it could only be understood that, between the three joint owners, vesting of the interest on the survivors was intended under Ext.A1. 11. Therefore, on the death of Sankara Panicker and Karthikeya Panicker their interests over the property became vested with Manthakini Panikathy. Thus, as on the date of Ext.A2 Settlement Deed, she was the absolute owner of the property. She had during her life time conveyed the property under Ext.A2. The first defendant got absolute title over the property under Ext.A2. ## **R.S.A. No.894 of 2008** -: 8 :- 12. In this context, it would also be relevant to note that, though in the plaint the contention raised by the learned senior counsel was pleaded as a ground, a reading of the judgment of the trial court and the first appellate court indicates that such contention was not urged during trial or hearing. In fact, in the appellate court judgment it has been specifically noticed that the issue as above was not argued. The relevant sentence in paragraph 11 of the appellate court judgments reads thus:- _“In other words, the issue whether the three persons took the property as per Ext.A1 as joint tenants or tenants in common is not agitated in the suit”_ 13. Be that as it may, I have already held on the merits regarding the nature of interest created under Ext.A1, and the question has been answered against the appellants. Substantial question of law No. _(ii)_ is answered accordingly. ## **R.S.A. No.894 of 2008** -: 9 :- 14. There is a further contention that Ext.A2 document is vitiated by undue influence and coercion. Both the courts have considered the above contention, evaluated the entire evidence on record, and arrived at a finding of fact. The plea was negatived by the courts. The courts have analysed the evidence in extenso. No material could be brought to my notice to find that there has been a perverse appreciation of evidence or that any material evidence has been overlooked. Therefore, the challenge against the finding of the Courts on the said contention does not call for interference by this Court in exercise of its jurisdiction under Section 100 of the Code of Civil Procedure. Resultantly, this Regular Second Appeal fails and is accordingly dismissed. Sd/- **SATHISH NINAN** **JUDGE** kns/- //True Copy// P.S. to Judge