Rappai (deceased) and others v. Lonappan and Augusty

**IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** **THE HONOURABLE MR. JUSTICE P.B.SURESH KUMAR** **THURSDAY, THE 12TH DAY OF JULY 2018 / 21ST ASHADHA, 1940** **RSA.No. 1255 of 2005** **AGAINST THE DECREE AND JUDGMENT DATED 21.5.2005 IN AS 90/2003 of THE ADDL. SUB COURT, IRINJALAKUDA AGAINST THE DECREE AND JUDGMENT IN OS 1288/2001 of ADDL.MUNSIFF'S COURT,IRINJALAKUDA** ## **APPELLANT/IST DEFENDANT/APPELLANT** **1. RAPPAI, S/O LATE KUNJI PAILOTH, (DIED) VADAKKAN HOUSE, ALOOR DESOM,, ALOOR VILLAGE, MUKUNDAPURAM TALUK.** ***LEGAL HEIRS IMPLEADED AS ADDL.APPELLANTS 2 TO 5** **2. ELSY RAPPAI W/O LATE RAPPAI, AGED 67, VADAKKAN HOUSE, ALOOR VILLAGE AND DESOM, TRISSUR DISTRICT** **3. PHILOMINA JOHN, D/O LATE RAPPAI, AGED 48, RESIDING AT CHEMINCHERRY HOUSE, KODALY DESOM, PADY POST, TRISSUR DISTRICT** **4. JOSE V.R. AGED 45, S/O LATE VADAKKAN RAPPAI, ALOOR VILLAGE AND DESOM, TRISSUR DISTRICT** **5. JOY V.R. AGED 41, S/O LATE VADAKKAN RAPPAI, ALOOR VILLAGE AND DESOM, TRISSUR DISTRICT.** ***LEGAL HEIRS OF DECEASED SOLE APPELLANT ARE IMPLEADED AS ADDITIONAL APPELLANTS 2 TO 5 AS PER THE ORDER DATED 07.10.2016 IN I.A. 2369 OF 2016.** **BY ADV.SRI.T.N.MANOJ** ## **RESPONDENTS/RESPONDENT(S)/PLAINTIFF & 2ND DEFENDANT:** **1. LONAPPAN, S/O LATE KUNJI PAILOTH, VADAKKAN HOUSE, ALOOR VILLAGE,, DESOM, MUKUNDAPURAM TALUK.** **2. AUGUSTY, S/O.LATE KUNJI PAILOTH, VADAKKAN HOUSE, NEAR CHURCH,, MOONUMURI DESOM, MATTATHUR VILLAGE,, MUKUNDAPURAM TALUK.** **BY ADV. SRI.C.A.CHACKO** **THIS REGULAR SECOND APPEAL HAVING BEEN FINALLY HEARD ON 12-07-2018,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ## **RSA.No. 1255 of 2005** ## **APPENDIX** **PETITIONER'S EXHIBITS : ANNEXURE A TRUE COPY OF O.P. CARD ISSUED FROM SANTHI HOSPITAL, KODAKARA ANNEXURE B TRUE COPY OF TEST REPORT OF APPELLANT'S RIGHT EYE ON 9.8.2005. RESPONDENT'S EXHIBITS : NIL** **//TRUE COPY//** **SD/-** **P.A. TO JUDGE** ## **SKS** ## **P.B.SURESH KUMAR, J.** =============== ## **R.S.A. No.1255 of 2005** -------------------------------------------------- ## **Dated this the 12[th] day of July, 2018** ## **JUDGMENT** The legal representatives of the deceased first defendant in a suit for partition are the appellants in the second appeal. 2. The suit property measuring 2 and 16/64 cents belonged to Kunjhelia, the mother of the plaintiff and defendants 1 and 2. The plaintiff and defendants 1 and 2 are the sons of Kunjhelia. She had three daughters as well. Kunjhelia had executed a registered will on 14.12.1982 bequeathing the suit property to the plaintiff and defendants 1 and 2. She died on 10.10.1990. Ext.A1 is the will executed by Kunjhelia. It was provided in Ext.A1 will that the plaintiff and defendants 1 and 2 shall pay certain amounts to their sisters named therein. The R.S.A.No.1255 of 2005 : 2 : case of the plaintiff is that on the death of Kunjhelia, the suit property devolved on the plaintiff and defendants 1 and 2 and they are entitled to 1/3[rd] share each in the suit property. The suit was for partition of the 1/3[rd] share of the plaintiff in the suit property. 3. The first defendant contested the suit contending that there was an arrangement in the family by which the plaintiff and the second defendant had released their rights over the suit property in favour of the first defendant and therefore, the suit property is not partible. Ext.B1 document was produced by the first defendant to establish the case of family arrangement set up by him. 4. The trial court rejected the contention raised by the first defendant and decreed the suit and the decision of the trial court has been confirmed in appeal. While arriving at the said decision, the courts below have R.S.A.No.1255 of 2005 : 3 : taken the view that right over an immovable property can be released by a party only by a registered instrument and that Ext.B1 being not a registered instrument, the same would not take away the undivided 1/3 rd right of the plaintiff over the suit property. The legal representatives of the first defendant are aggrieved by the said decisions of the courts below. 5. Heard the learned counsel for the appellants and the learned counsel for the first respondent, the plaintiff. 6. It is seen that notice was issued in the second appeal on the following substantial questions of law : _(I) Is not Ext.B1 only a memorandum regarding the prior decision arrived at between the plaintiff and other defendants as to the manner in which the eventual partition has to be effected, hence does not require registration under Section 17(1)(b) of the Registration Act?_ _(II) Have not the courts below gone wrong in construing Ext.B1 to be a document which conveys and assigns rights_ R.S.A.No.1255 of 2005 : 4 : _over immovable properties which requires registration under Section 17(1)(b) of the Registration Act?_ _(III) Whether the admission by the plaintiff of his signature in Ext.B1 is an evidence to oral partition evidenced by Ext.B1 and, is not the plaintiff prevented by the principle of 'estoppel by deed' to seek partition of the properties ignoring Ext.B1 after having signed Ext.B1 approving oral partition?_ 7. As the courts are expected to advance substantial justice to the parties, it is settled that it shall endeavor always to uphold family arrangements and not to discard it. The dominant ideology behind the said principle is that if a matter has been settled by consent of parties, it should not be allowed to be reopened by the parties to the agreement on frivolous or technical or untenable grounds. If family arrangements are unsettled on technical or trivial grounds, it will lead to undesirable results and unending feuds among the members of the family. [See **Madhavan Ezhuthassan v. Sreedharan Ezhuthassan** (1990 (1) K.L.J 380)]. It is equally settled that family arrangements need not be in writing. Such R.S.A.No.1255 of 2005 : 5 : arrangements can be made orally as well. Its terms can be recorded in writing as a memorandum of what had been agreed upon. Such memorandums need not be prepared for the purpose of being used as a document on which future title of the parties is to be founded. It is generally prepared as a record of what had been agreed upon, in order that there are no hazy notion about it in future. It is only when family arrangement is reduced in writing with the purpose of using that writing as proof of what they had arranged and, where arrangement is brought about by the document as such, that the document requires registration, because it is then that it would amount to a document of title declaring for future what rights and in what properties the parties possesses. But a document which is not more than a memorandum of what had been agreed to between the parties does not require compulsory registration under Section 17 of the R.S.A.No.1255 of 2005 : 6 : Registration Act. [See **Tek Bahadur v. Debi Singh** (AIR 1966 SC 292)]. The question to be considered, therefore, is as to whether Ext.B1 would amount to a family arrangement. 8. In **Kale and Others v. Deputy Director of Consolidation and others** [AIR 1976 (SC) 807], the Apex Court has clarified that a family settlement must be a bonafide one so as to resolve family disputes and rival claims by a fair and equitable division or allotment of properties between the various members of a family. It shall also be voluntary and shall not be induced by fraud, coercion or undue influence. It was also clarified by the Apex Court in the said case that the members who may be parties to the family arrangement must have some antecedent title, claim or interest even a possible claim in the property which is acknowledged by the parties to the settlement. It was further clarified in the said case that even if one of the parties to the settlement has no title but under the arrangement the other R.S.A.No.1255 of 2005 : 7 : party relinquishes all its claims or titles in favour of such a person and acknowledges him to be the sole owner, then the antecedent title must be assumed and the family arrangement will be upheld and the Courts will find no difficulty in giving assent to the same. Reverting to the facts of the case, Ext.B1 is a document signed by all the children of deceased Kunjhelia except the first defendant. It reads thus: "പ�രയ�ട സലവ�� റപ�യ�ക� ത�ർചപപട�ത� പ��ട�തത�ൽ ബ�ക� ഓരര�ര�തർക�� ��ര�ണത�യ സ�ഖ �ൾ രല�നപൻ 1000.00 500.00 ആഗസത�ക� റപ�യ� പ��ട�രകണത രമര�ക� ട� ട� 2000.00 1000.00 രതതസ �മക� ട� ട� 2000.00 അനക���ക� ട� ട� ## . രമൽപറഞ തപ��ര� ഈ വ�ക� ഞങൾ സമത�ച�ര�ക�ന� **==> picture [168 x 73] intentionally omitted <==** As explicit from Ext. B1, it does not say anything except that the house and property has been decided to be given to the first defendant by all concerned. It also mentions R.S.A.No.1255 of 2005 : 8 : the payments to be made in consideration of the same to others. It contains signatures of all except the first defendant. The signature appearing in Ext.B1 as that of the plaintiff has been admitted by the plaintiff. The plaintiff has no case in the plaint that Ext.B1 is an involuntary document or that it was induced by fraud, coercion or undue influence. Further, it is seen that the amounts directed to be paid to the sisters of the parties to the suit as mentioned in Ext.B1 are as indicated in the will executed by their mother. In the aforesaid circumstances, I have no doubt in my mind that Ext.B1 would satisfy the requirements of a family arrangement. It is only a memorandum concerning the prior decision rendered between the parties as to the manner in which the family house has to be partitioned and therefore not a compulsorily registrable document. The substantial questions formulated for decision in the second appeal R.S.A.No.1255 of 2005 : 9 : are thus answered in favour of the appellants. In the result, the second appeal is allowed, the impugned judgments are set aside and the suit is dismissed. sd/- **P.B. SURESH KUMAR, JUDGE** SKS