Ponnamma Subhashini & Sahadeva Panicker Suresh v. Bhaskara Panicker Krishnan and others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE P.SOMARAJAN** **THURSDAY, THE 19TH DAY OF MARCH 2020 / 29TH PHALGUNA, 1941** ## **RSA.No.927 OF 2003** **AGAINST THE JUDGMENT AND DECREE DATED 07-11-2002 IN AS 54/2000 OF SUB COURT, NEDUMANGAD** **AGAINST THE JUDGMENT AND DECREE DATED 14-09-1999 IN OS 88/1985 OF ADDITIONAL MUNSIFF COURT, NEDUMANGAD** ## **APPELLANTS/APPELLANTS/DEFENDANTS 3 & 6:** **1 PONNAMMA SUBHASHINI, ROADARIKATHU VEEDU, PANAKODE, CHITTUVEETTU MURI, THOLICODE VILLAGE.** **2 SAHADEVA PANICKER SURESH, RESIDING AT.DO. .DO.** **BY ADVS. SRI.L.MOHANAN SMT.LIGEY ANTONY** ## **RESPONDENTS/RESPONDENTS/PLAINTIFF & DEFENDANTS 1,2,5 & 7 TO 13:** ***1 BHASKARA PANICKER KRISHNAN, RESIDING AT ROADARIKATHU VEEDU, PANACKODE, CHITTUVEETTU MURI, THOLICODE VILLAGE.(DIED, LRS IMPLEADED) **2 KOCHU PONNAMMA, RESIDING AT .DO. .DO.** **(DIED,LRS RCORDED)** **(IT IS RECORDED THAT THE FIRST APPELLANT AND RESPONDENTS 1,3,4 AND 5 TO 11 ARE THE LEGAL HEIRS OF THE DECEASED 2ND RESPONDENT AS PER ORDER DATED 21.1.2020 IN IA NO.2/2020)** **3 BHASKARA PANICKER SOMAN, RESIDING AT .DO. .DO. 4 PONNAMMA SULOCHANA, RESIDING AT .DO. .DO.** **RSA.No.927 OF 2003 2** - **5 SUBHADRA, RESIDING AT KADAYIL VEEDU, MANNARKADU, PALAKKAD (DIST).** **6 PADMAKUMAR, RESIDING AT .DO. .DO. 7 LETHA, RESIDING AT .DO. .DO. 8 SUMATHI, RESIDING AT .DO. .DO. 9 PRADEEP, RESIDING AT .DO. .DO. 10 SUJATHA, RESIDING AT .DO. .DO. 11 SYAMALA, RESIDING AT .DO. .DO. *ADDL.R12 TO R14: ADDL. USHA, W/O.KRISHNAN, USHA BHAVAN, R12 KAVIYOOR JUNCTION,CHITTUVEETTU MURI, THOLICODE VILLAGE-695 541.** **ADDL. RAKHI, D/O.USHA, USHA BHAVAN,KAVIYOOR R13 JUNCTION,CHITTUVEETTU MURI, THOLICODE VILLAGE-695 541.** **ADDL. RESHMA, D/O.USHA, USHA BHAVAN, KAVIYOOR R14 JUNCTION,CHITTUVEETTU MURI, THOLICODE VILLAGE-695 541.** **(THE LEGAL HEIRS OF DECEASED R1 ARE IMPLEADED AS ADDITIONAL R12 TO R14 AS PER ORDER DATED 09.01.2020 IN IA.1/2019)** **R1, R3-14 BY ADV. SRI.R.S.KALKURA R5 TO 9 AND R11 BY ADV. SRI.REJI MATHEW KAVALAYIL** **THIS REGULAR SECOND APPEAL HAVING BEEN FINALLY HEARD ON 19.03.2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **RSA.No.927 OF 2003 3** ## **JUDGMENT** The following questions came up for consideration: 1) When there is an intervening document of alienation as against the interest of minor, whether a suit for simple partition without exercising the option to challenge the document can be maintained ? 2) What would be the application of frustration of right of partition as against a co-owner who had alienated more than his due share ? 2. The legal position was very much settled by ## this Court in _**Gopakumar and others v. Kamalakshy**_ ## _**Purushothaman and others (2019 (3) KHC 478).**_ 3. One deceased Bhaskara Panicker left out three items of properties. Item No.1 comes to 85 cents. It was obtained by him under Ext.A4 partition. Item No.2 which forms part of a large extent of 85 cents was obtained by him under Ext.A2 sale deed along with his wife, the first defendant herein. Item No.3 which comes to 29 cents was also obtained by him under Ext.A1 sale deed. The plaintiff is the youngest son of the above said Bhaskara Panicker. He filed a suit for getting ## **RSA.No.927 OF 2003 4** 1/6[th] share over the properties left out by his father, the item Nos. 1 to 3. 4. Both the courts below decreed the suit finding that the plaintiff is entitled to 1/6[th] share over the property. As such, a preliminary decree for partition was granted, against which defendant Nos. 3 and 6 came up with this appeal. 5. There are some intervening documents of alienation over the said properties. The first one is the sale deed of the year 1964 executed by the wife (1[st] defendant) and the eldest son (2[nd] defendant) of deceased Bhaskara Panicker after his death in the year 1950. It was executed in respect of the entire item No.1 property in the year 1964 in favour of 5[th] defendant. The defendant Nos. 2 to 5 are the siblings of plaintiff who are entitled to one share each over the property left out by their father Bhaskara Panicker. The sale deed of the year 1964 was executed in derogation of the right of other co-owners by the first and second defendants in favour of the 5[th] defendant. In so far as item No.2 property is concerned, what is scheduled in **==> picture [468 x 706] intentionally omitted <==** **----- Start of picture text -----**<br> ||||||||| |---|---|---|---|---|---|---|---| |RSA.No.927 OF 2003|5| |the plaint is 42|[1]|/2 cents being the one half of 85| |cents|obtained|in|the|joint|name|of|Bhaskara| |Panicker and his wife, the 1|[st]|defendant. But she| |had executed Ext.B1 settlement of the year 1957 in| |favour of 3|[rd]|defendant and her husband with respect| |to the entire property of 85 cents inclusive of| |item|No.2|property.|The|beneficiary|under|the| |document had accepted the gift and mutated the| |property evident from Ext.B2 series. The plaintiff| |admittedly attained majority in the year 1966. He| |was aware of the said sale deed in the year 1965| |and settlement deed in the year 1957 (Ext.B1) which| |is evident from Exts.B4 and B4(a) letters issued by| |the plaintiff to the 4|[th]|defendant. Within three| |years after attaining majority, no suit was filed| |for declaration of his right over the property and| |for partition. The legal position was settled by| |this Court in|Gopakumar and others v. Kamalakshy| |Purushothaman and others (2019 (3) KHC 478)|and| |Thankamoni Amma v. Ganapathi Suresh (2019 (3) KLT| |400).|No suit was filed to set aside the said| |documents or to declare his right over the property| **----- End of picture text -----**<br> ## **RSA.No.927 OF 2003 6** within three years after attaining majority and as such, the legal position settled in the above said two decisions would squarely come into play as against item Nos. 1 and 2 properties and the alienation thereunder. The present suit even otherwise would not stand as it is a suit for simple partition without seeking any declaration of right, title and interest of the plaintiff over the property in view of execution of the above said two documents of alienation. The option under Section 8 of the Hindu Minority and Guardianship Act not exercised within the period of limitation. The relief to set aside the said two documents or to declare the right of plaintiff over the property stood hopelessly barred by limitation. 6. In so far as item No.3 property is concerned, ten cents of property was sold under Ext.B3 document by the 1[st] defendant on 22.9.1984 to the 6[th] defendant. That document was also not brought under challenge within a period of three years after attaining majority and as such, the property covered by the above said document is not ## **RSA.No.927 OF 2003 7** available for partition. The balance extent after excluding the ten cents sold out of item No.3 property, which comes to 19 cents, alone is available for partition. 7. The first defendant along with his elder son, the 2[nd] defendant had alienated more than the share they are entitled by virtue of 1964 sale deed. The 1[st] defendant also sold the item No.2 property under Ext.B1 sale deed to the 3[rd] defendant. As such defendant Nos. 1 to 3 had forfeited their right to get partition over the remaining extent of property. The legal position is settled by this court in **Gopakumar** 's case (supra). The sale of the year 1964 is in favour of the 5[th] defendant and as such he had also forfeited his right to get partition over the remaining extent of property. Hence a decree of partition can be passed only between the plaintiff and the 4[th] defendant over the remaining extent of item No.3 property, which comes to 19 cents. A preliminary decree is passed allowing one half share over the balance extent of item No.3 property, which comes **RSA.No.927 OF 2003 8** to 19 cents to the plaintiff and the other half to the legal heirs of the 4[th] defendant who are defendant Nos. 7 to 13. 8. The decree and judgment of both the courts below are modified allowing this appeal in part. A preliminary decree for partition over item No.3 property excluding 10 cents of property sold under Ext.B3 is hereby granted for separation of one half right of plaintiff by metes and bounds. The other one half right will go to the defendant Nos. 7 to 13 equally. The parties shall apply for final decree within ninety days. The cost of the proceedings shall be borne out of the estate. The suit will stand adjourned sine die. The appeal is allowed in part accordingly. ## **Sd/-** ## **P.SOMARAJAN** ## **JUDGE** msp //TRUE COPY// P.A. TO JUDGE