Paul Varghese and others v. C.C. Annie

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR.JUSTICE T.V.ANILKUMAR** **FRIDAY, THE 27TH DAY OF NOVEMBER 2020 / 6TH AGRAHAYANA, 1942** **RFA.No.641 OF 2008** **AGAINST THE JUDGMENT & DECREE DATED 28-06-2008 IN OS 873/1999 OF PRINCIPAL SUB COURT, THRISSUR** ## **- APPELLANTS IN R.F.A. DEFENDANTS IN SUIT:** **1 PAUL VARGHESE, S/O.CHERUVATHOOR VARGHESE, WEST PENGAMUKKU.P.O, KATTAKAMPAL VILLAGE, PENGAMUKKU DESOM, THALAPPILLY TALUK. 2 PAUL @ PAVUNNY, S/O. CHERUVATHOOR CHERU, IN -DO3 JOB, S/O -DO- IN DO.DO 4 ITTIMATHEW, S/O. -DO- IN DO.DO 5 CHERIAN, S/O. -DO- IN DO.DO BY ADVS. SRI.K.JAYAKUMAR (SR.) SMT.GEETHA P.MENON SRI.P.B.KRISHNAN** **- RESPONDENT IN R.F.A PLAINTIFF IN SUIT:** **C.C.ANNIE, D/O. CHERUVATHOOR CHERU AND W/O. C.E. JOSE MASTER, CHERUVATHOOR HOUSE, KATTAKAMPAL VILLAGE AND DESOM, THALAPPILLY TALUK.** **BY ADV. SRI.G.SREEKUMAR CHELUR** **THIS REGULAR FIRST APPEAL HAVING BEEN FINALLY HEARD ON 2511-2020, THE COURT ON 27-11-2020 DELIVERED THE FOLLOWING:** ## **RFA.No.641 OF 2008 2** ## **Dated this the 27[th] day of November,2020** **J U D G M E N T** Plaintiff's suit for partition and share profits was decreed declaring her[1] /10 share in some of the plaint schedule properties, rejecting appellants' plea disputing partibility of the suit items. The contention that plaintiff and others had already released their rights in respect of suit items by Ext.A3, registered release deed dated 05.12.1987 was refused to be accepted by the court below. 2. Being aggrieved by the preliminary decree dated 28.06.2008 in O.S.No.873/1999 passed by the Principal Sub Court, Thrissur, defendant Nos.1 to 5, have preferred this appeal. ## **RFA.No.641 OF 2008 3** 3. The suit properties are item Nos.1 to 27 situated in different survey numbers and villages. Plaintiff and defendant Nos.2 to 5 are the children of 'Cheru'. First defendant is the sole offspring of Cheru's brother, Vareed Alias Varghese. Plaint schedule properties originally belonged to father of these two brothers and following his death, the suit items devolved by succession on the brothers as well as their two sisters. The sisters relinquished their undivided interests in favour of the brothers and they became joint owners of the property in equal shares. This is not a disputed fact. After the death of Cheru and his wife, plaintiff and defendant Nos.2 to 5 held half share of property owned by their father as co-owners and likewise, the first defendant also after death of his ## **RFA.No.641 OF 2008 4** father, Varghese became the owner of remainder half share. 4. On 05.12.1987, plaintiff and defendant Nos.2 to 5 executed Ext.A3, registered release deed relinquishing their rights in favour of first defendant's father. The execution and registration of this document is not disputed by parties. 5. Plaintiff's contention in the plaint that this document was got executed by fraud, undue influence and misrepresentation was later given up during trial. Besides this plea, it was also contended that the document did not contain any property description and it being hit by S.21 of the Registration Act, 1908 is wholly void. Plaintiff on these facts, sued for setting aside Ext.A3 and also for partition of suit ## **RFA.No.641 OF 2008 5** items claiming _mesne profits,_ both past and future. 6. The first defendant, in his separate written statement contended that Ext.A3 is a valid document and was executed for lawful consideration. Allegations of fraud, undue influence and misrepresentation were denied. Ext.A3 was contended to be a validly executed and registered document and the suit items were denied to be partiable. The suit was also contended to be barred by limitation since it was filed after 12 years from the date of execution of Ext.A3. 7. Defendant Nos.2 to 5 adopted the same contentions of the first defendant and submitted that Ext.A3 is a valid document by which their rights in the suit properties were transferred **RFA.No.641 OF 2008 6** in favour of Sri.Varghese. 8. The court below admitted Exts.A1 to A6 documents on the side of the plaintiff and Exts.B1 to B5 on the side of the appellants. The oral evidence of PW1 and DWs.1 and 2 were also recorded. 9. On a consideration of the entire evidence on record, the court below held that the suit properties except few are partiable. It was also held that Ext.A3 document which did not contain description of suit items was hit by Section 21 of the Registration Act, 1908 and consequently void, relying on a decision reported in _**T. Sankaranarayanan Nair v. Achuthan Nair and Others[1982 KLJ 61]**_ . 10. The court below found that suit was filed within time. While passing preliminary ## **RFA.No.641 OF 2008 7** decree declaring[1] /10 share in favour of the plaintiff, the court below made it clear that suit items 7,9 to 12, 19, 22 and 23 were not available for partition inasmuch as they were already alienated by the original owner 'Pavu', the father of 'Cheru' and 'Varghese' during his life time itself as early as in 1962 by Ext.B1 document and accordingly, the decree for partition was confined to the remaining items in the suit. 11. The plaintiff is not aggrieved by the preliminary decree in any manner. The appellants contend that the finding of the court below that Ext.A3 is void, is unsustainable and the preliminary decree for partition was wrongly passed. 12. I heard the learned counsel for the ## **RFA.No.641 OF 2008 8** appellants and the respondent/plaintiff. 13. The learned counsel for the appellants contended that despite Ext.A3 not having contained property description, the suit items are reasonably identifiable having due regard to the recitals in the deed and therefore, the decision in _**T.Sankarannarayan Nair's**_ case relied on by the court below is distinguishable from the facts of the case. It is also contended that in any view of the matter, the plaintiff cannot claim partition in as much as several items of suit properties are in the possession of third parties as per documents executed by first defendant and his father during the intervening period between the dates of Ext.A3 and the suit. 14. Ext.A3 release deed does not contain any ## **RFA.No.641 OF 2008 9** property description. What is mentioned as released under Ext.A3 are rights whatever the executants held in their properties. It is reasonably difficult to cull out from this document the precise items of properties which the executants intended to relinquish. This is also the same view taken by the court below also. What S.21 of the Registration Act provides is that a document shall not be accepted for registration unless it contained description of property sufficient to identify the same. The Section as held in _**T.Sankaranarayanan Nair's**_ case, does not provide for enquiry at a later stage to ascertain the property dealt with thereunder. Following the principles laid down in _**T.Sankaranarayanan Nair's**_ case, I am satisfied that Ext.A3 is void and is not capable **RFA.No.641 OF 2008 10** of affecting the rights of the plaintiff. I fully agree with the view taken by the court below that Ext.A3 is void and incapable of creating rights in the name of first defendant's father in respect of properties dealt with thereunder. 15. Except the verbal assertion made by the learned counsel for the appellants that several items of suit properties are in possession of third parties as per documents executed by the first defendant and his father, there is nothing on record to show that there had been such alienations. In the written statement, no such plea is seen taken. The learned counsel for the respondent, plaintiff submits that if there are such alienations, the rights of the alienees could be worked out in the final proceedings. **RFA.No.641 OF 2008 11** 16. I do not find any reason to interfere with any of the findings of the court below and therefore, I hold that the impugned judgment and decree are only liable to be confirmed. In the result, the appeal fails and it is dismissed with costs. **Sd/T.V.ANILKUMAR, JUDGE** pm