RFA No. 183 of 2007

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE SATHISH NINAN** **MONDAY, THE 18[TH] DAY OF MARCH 2024 / 28TH PHALGUNA, 1945** **RFA NO. 183 OF 2007** **AGAINST THE JUDGMENT DATED 17.11.2006 IN OS NO.32 OF 2001 OF SUB** **COURT, OTTAPPALAM** **-----** ## **APPELLANT/2ND DEFENDANT:** **VENUGOPALAN, AGED 59 YEARS, S/O.THOTTINGAL KUNJU, NUNDURKKODE DESOM, ARAKKARA AMSOM, OTTAPPALAM TALUK.** **BY ADVS.** - **T.SETHUMADHAVAN (SR.) K.JAYESH MOHANKUMAR PUSHPARAJAN KODOTH** ## **RESPONDENTS/PLAINTIFF & DEFENDANTS 3 TO 11, 13 TO 18:** - **1 SAROJINI, AGED 63 YEARS, W/O.PARAYAMVALAPPIL NARAYANAN, KUMARANELLUR AMSOM, VELLALURE DESOM, OTTAPPALAM TALUK.** - **2 AMMUKUTTY, AGED 70 YEARS, [DIED; LRs IMPLEADED]*[2] W/O.VARIYATHUVALAPPIL KUNJUMON, MUTHUR AMSOM AND DESOM, PONNANI TALUK.** - **3 JANAKI, AGED 66 YEARS, D/O.NELLIKKAL VADAKKETHIL BHASKARAN, ANAKKARA AMSOM, DESOM, OTTAPALAM TALUK.** - **4 SARADA, AGED 62 YEARS, [DIED; LRs IMPLEADED]*[1] W/O.PALLATH AYYAPPAN, NEDUNGOTTUR DESOM, THIRUVENGAPPURA AMSOM, OTTAPPALAM TALUK.** **RFA NO. 183 OF 2007 -2-** - **5 KAMALADEVI, AGED 55 YEARS, W/O.VELLATH NARAYANAN, NEDUNGOTTUR DESOM, THIRUVENGAPPURA AMSOM, OTTAPPALAM TALUK.** - **6 SIVASANKARAN, AGED 50 YEARS, S/O.THOTTUNGAL BALAN, RESIDING AT ANAKKARA AMSOM AND DESOM, OTTAPALAM TALUK.** - **7 RAMACHANDRAN, AGED 42 YEARS, S/O.THOTTUNGAL BALAN, RESIDING AT ANAKKARA AMSOM AND DESOM, OTTAPALAM TALUK.** **8 KRISHNAKUMARI, AGED 48 YEARS, D/O.THOTTUNGAL BALAN, W/O.VIJAYAKUMAR (LATE) KALLUMPUNATHIL HOUSE, KARAPARAMBA, KOZHIKODE -10.** - **9 VIJAYALAKSHMI, AGED 46 YEARS, D/O.THOTTUNGAL BALAN,.** - **W/O.V.V.SAHADEVAN, VARYATH VALAPPIL, P.O.MUTHUR, VATTAMKULAM (VIA), MALAPPURAM DISTRICT.** - **10 SREELATHA, D/O.THOTTUNGAL BALAN, W/O P.VIJAYAN (LATE) THUPRANGODE, P.O. POTHENCHERRY, MALAPPURAM DISTRICT.** - **11 T.M MOOSAKUTTY,** **AGED 56 YEARS, FATHER'S NAME NOT KNOWN, THORAYIL HOUSE, KUMBIDI, OTTAPALAM TALUK.** - **12 THANKA,** **AGED 61 YEARS, W/O.KAURUPPAN, PUSHPAMKUNNATH HOUSE, ANAKKARA, OTTAPALAM TALUK.** - **13 K.C.ACHUTHAN, AGED 81 YEARS, SARAYU HOUSE, CHERUVANNUR, KOLATHARA (VIA), FAROKE, KOZHIKODE DISTRICT.** **RFA NO. 183 OF 2007 -3-** ## **L.Rs OF 12TH DEFENDANT** ## **14 CHANDRAMATHI,** **AGED 64 YEARS, W/O.LATE MADHAVAN, CHATHAYIL HOUSE, ANAKARA, OTTAPALAM TALUK.** ## **15 PADMINI,** **AGED 38 YEARS, D/O.CHANDRAMATHY, CHATHAYIL HOUSE, ANAKARA, OTTAPALAM TALUK.** ## **16 BABY,** **AGED 36 YEARS, S/O.CHANDRAMATHI, CHATHAYIL HOUSE, ANAKARA, OTTAPALAM TALUK.** ## ***[1 ] ADDL. RESPONDENTS 17 TO 19 IMPLEADED** ## **ADDL. R17 AYYAPPAN,** **PALLATH HOUSE, NEDUNGOTTUR DESOM, THIRUVENGAPPURA AMSOM OTTAPALAM TALUK PALAKKAD DISTRICT,PIN-679308.** ## **ADDL. R18 SAJEEV** **S/O.DECEASED SARADA, PALLATH HOUSE, NEDUNGOTTUR DESOM, THIRUVENGAPPURA AMSOM OTTAPALAM TALUK PALAKKAD DISTRICT,PIN-679308.** ## **ADDL. R19 RAJEEV** **S/O.DECEASED SARADA, PALLATH HOUSE, NEDUNGOTTUR DESOM, THIRUVENGAPPURA AMSOM OTTAPALAM TALUK PALAKKAD DISTRICT,PIN-679308.** ## ***[1 ] [THE LEGAL HEIRS OF THE DECEASED RESPONDENT NO.4, ARE IMPLEADED AS ADDITIONAL RESPONDENT NOS.17 TO 19 AS PER ORDER DATED 18/2/13 IN IA 325/2013]** ## ***[2] ADDL RESPONDENTS 20 TO 25** **ADDL.R20 KUNJUMON, H/O LATE AMMUKUTTY, VARIYATHUVALAPPIL, ANAKKARA P.O., MUTHUR AMSOM AND DESOM, PONNANI TALUK-679551.** **RFA NO. 183 OF 2007 -4-** - **ADDL.R21 VIJAYARAJAN,** **S/O LATE AMMUKUTTY, VARIYATHUVALAPPIL, ANAKKARA P.O., MUTHUR AMSOM AND DESOM, PONNANI TALUK-679551.** - **ADDL.R22 SUDHADEVI,** **W/O.VIJAYAN, THOTTATH HOUSE, ANGADIPPURAM P.O., VAYILOKARA, PERINTHALMANNA – 679321.** ## **ADDL.R23 RAVIKUMAR,** **S/O.LATE AMMUKUTTY, VARIYATHUVALAPPIL, ANAKKARA P.O., MUTHUR AMSOM AND DESOM, PONNANI TALUK-679551.** ## **ADDL.R24 MOHANDAS,** **S/O.LATE AMMUKUTTY, VARIYATHUVALAPPIL, ANAKKARA P.O., MUTHUR AMSOM AND DESOM, PONNANI TALUK-679551.** ## **ADDL.R25 PUSHPADEVI,** **W/O.MOHANAN, THAMARAKKAD HOUSE, MEZHATHUR P.O., KUTTANAD, PALAKKAD DISTRICT-679534.** ## ***[2] [THE LEGAL HEIRS OF DECEASED 2ND RESPONDENT ARE IMPLEADED AS ADDITIONAL RESPONDENT NOS. 20 TO 25 AS PER ORDER DATED 21/02/2024 IN I.A.NO.1/2022].** **BY ADVS. SRI.P.S.APPU SRI.T.C.SURESH MENON SRI.SANTHEEP ANKARATH** **THIS REGULAR FIRST APPEAL HAVING COME UP FOR HEARING ON 18.03.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ## **SATHISH NINAN, J.** **= = = = = = = = = = = = = = = = = = R.F.A. No.183 of 2007 = = = = = = = = = = = = = = = = = = Dated this the 18[th] day of March, 2024** ## **J U D G M E N T** The preliminary decree in a suit for partition is under challenge by the second defendant. 2. The plaint schedule consists of six items of properties. The properties were allotted to Kunchu, the father of the plaintiff and defendants 2 to 6 and husband of the 1[st] defendant in Ext.A1 Partition Deed dated 18.03.1952. Kunchu died on 04.12.1997. The suit is filed seeking partition and separate possession of 1/7 shares. 3. The second defendant contended that, the plaint schedule properties were the joint family properties of Kunchu. The parties being governed by Mithakshara Law, the second defendant who is the only son of Kunchu was a coparcener along with Kunchu. Kunchu and the second defendant has half rights each over the property. In the R.F.A. No.183 of 2007 -: 2 :- year 1966 Kunchu had executed a gift to his brother's son Balan for an extent of 1 acre out of plaint item No.2, and under the very same document an extent of 60 cents out of plaint item No.3 to his brother's daughter Madhavi. On 28.03.1985 Kunchu executed Ext.B6 Settlement Deed in favour of the second defendant for the remaining extent of plaint item No.2 and for four cents in plaint item No.3. On 23.05.1996 Ext.B1 Partition Deed was executed between Kunchu and the second defendant whereunder, plaint item No.1 was allotted towards the share of Kunchu and the extent available in plaint item Nos.2 to 6 were allotted to the second defendant. Therefore, on the death of Kunchu it is only the plaint item No.1 that has devolved on his legal heirs viz. the plaintiff and defendants 1 to 6. On 05.01.2001, the first defendant conveyed her share over the plaint item no.1 in favour of the second defendant as per Ext.B2 Settlement Deed. On the same date the fourth defendant R.F.A. No.183 of 2007 -: 3 :- released her rights over the property in favour of the second defendant under Ext.B3 Release Deed. Thus the second defendant holds 3/7 shares in plaint item No.1. Thus all that is available is 4/7 shares to be partitioned between the plaintiff and defendants 3, 5 and 6, it was contended. 4. The trial court held that the plaint schedule properties are not ancestral properties but the separate properties of Kunchu. Ext.B1 Partition Deed was held against holding that the division thereunder is inequitable. The court accepted Exts.B2, B3 and B6 documents. The gift deed of the year 1966 executed by Kunchu in favour of his brother's children Balan and Madhavi were produced before the Court but only after completion of evidence. The same was not accepted in evidence. A decree was passed for partition of the properties excluding the properties conveyed under Exts.B2, B3 and B6. R.F.A. No.183 of 2007 -: 4 :- ## 5. I have heard learned counsel on either side. ## 6. The points that arise for determination are :- _(i) Is the finding of the trial court that the plaint schedule properties are not joint family properties but are the separate properties of Kunchu sustainable on the materials ?_ _(ii) Are the plaint schedule properties the separate properties of Kunchu or are they family properties ?_ _(iii) Was the trial court right in having held against Ext.B1 Partition Deed ?_ _(iv) Is the Gift Deed of the year 1966 produced after the evidence was over, liable to be accepted in evidence and has there been a valid conveyance thereunder ?_ _(v) Does the decree and judgment of the trial court warrant interference ?_ 7. The learned Senior Counsel for the appellant would contend that a bare reading of Ext.A1 document regarding the derivation of title would indicate and admit of no doubt that the properties in question are the family properties of Kunchu. So also the finding of the trial court that Ext.B1 Partition Deed is not liable to be accepted for inequitable allotment of shares does ## R.F.A. No.183 of 2007 -: 5 :- not stand to reason and the test of law. The Court should have held that only plaint item No.1 property, excluding the extent covered under Exts.B2, B3 and B6 documents is available for partition, it is argued. 8. The learned counsel for the respondent would on the other hand contend that, a reading of the recitals in Ext.A1 would indicate that the parties understood and treated the properties to be the separate properties of Kunchu. This is further fortified by the recitals in Ext.B6 Settlement Deed executed by Kunchu asserting absolute title in himself. It is also urged that the misstatement of age of Kunchu in Ext.B1 and also the mistaken nomenclature of the document as a Partition Deed when the document could in fact be only a gift, would indicate that at the time of execution of Ext.B1 Kunchu did not have a sound disposing state of mind. Therefore, the document was rightly declined to be accepted by the trial court, it is argued. R.F.A. No.183 of 2007 -: 6 :- 9. The parties are governed by Mithakshara Law. Ext.A1 Partition Deed is dated 18.03.1952. It is executed between the three sons of Krishnan namely, Kunchu, Raman, Sankaran, and the son of a predeceased son Velu. Ext.A1 recites that the property is a “Tarwad property” obtained by them on the death of their father Krishnan. Therefore, it is evident that the property belonged to Krishnan and on his death it is devolved on his sons. It is beyond dispute that the property inherited by a son from his father is in the nature of ancestral property. The properties having been inherited by Kunchu from his father, it automatically partakes the character of ancestral properties. The mere recitals in Ext.A1 with regard to the right of separate enjoyment for the sharers thereunder does not and cannot change the character of the property. The trial court erred in holding that the properties are the separate properties of Kunchu. All the other children of Kunchu except the R.F.A. No.183 of 2007 -: 7 :- second defendant are daughters. Therefore, the second defendant along with Kunchu becomes coparceners having equal rights over the joint family property. Points (i) and (ii) are answered accordingly. 10. Having held that the plaint schedule properties are joint Hindu family properties, and that the plaintiff and the second defendant are coparceners, I proceed to consider the contention against Ext.B1 Partition Deed. Though there is an averment with regard to the mental and physical capacity of Kunchu at the relevant time, there is total lack of evidence regarding the same. The mere erroneous mentioning of the age is not a reason to hold that Kunchu did not have sound disposing state of mind. As regards the contention that the document ought to have been a gift deed whereas it is styled as a partition deed, the argument is baseless. As noticed, Kunchu and the second defendant were coparceners and the property vested with them. They had R.F.A. No.183 of 2007 -: 8 :- equal shares over the properties. Under Ext.B1 partition they separated their shares over the properties. The trial court has proceeded as if the properties dealt with under Ext.B1 are the separate properties of Kunchu and that the partition effected thereunder is inequitable. As already held the properties were joint family properties over which Kunchu and the second defendant alone had rights. It is for them to decide as to how the rights are to be adjusted between them. Merely because the Court considered it to be an inequitable distribution of the properties, is not a reason sufficient to find that Ext.B1 is vitiated. Therefore, the contention urged against Ext.B1 fails. Point (iii) is answered as above. 11. On 25.05.1966 Kunchu had executed a Gift Deed in favour of his brother's son and daughter viz. Balan and Madhavi. It related to one acre of property out of the plaint item No.2 and an extent of 60 cents out of R.F.A. No.183 of 2007 -: 9 :- plaint item No.3. Balan and Madhavi assigned their rights over the properties to strangers. They were impleaded in the suit as additional defendants 7 to 12. The Gift Deed executed by Kunchu was produced before the court but after closure of evidence. Hence it was not accepted in evidence. The second defendant who is the only remaining coparcener has accepted the execution of the said deed by Kunchu without any demur. In the written statement it has been specifically stated that he has no objection to the gift executed by Kunchu. It being a registered document, and the assignees from the donees have been brought on record, I am of the opinion that the document could be accepted in evidence. The same will stand accepted in evidence and marked as Ext.B7. Even assuming that in the year 1966 Kunchu, as a coparcener, did not have the right to execute Ext.B7 Gift Deed, on the coming into force of the Joint Hindu Family Abolition Act on 01.12.1976, Kunchu and the R.F.A. No.183 of 2007 -: 10 :- second defendant got absolute rights over the property. The second defendant accepts Ext.B7 gift. Therefore, the defective title if at all any become validated on the principle of feeding the grant. Point no.(iv) is answered as above. 12. After excluding the portion of the property gifted under Ext.B7 Gift Deed from plaint item Nos.2 and 3, Kunchu executed Ext.B6 Settlement Deed in the year 1985 with respect to the remaining extent of plaint item No.2 and four cents of property in plaint item No.3 to the second defendant. It is thereafter that they entered into Ext.B1 Partition Deed of the year 1966. In Ext.B1 partition, plaint item No.1 property was allotted to Kunchu, and the remaining extent of property available under plaint items 2 to 6 were allotted to second defendant. Therefore, after Ext.B1 partition Kunchu had right only over plaint item No.1. R.F.A. No.183 of 2007 -: 11 :- 13. Kunchu died in the year 1997. The property vested in equal shares (1/7) on all the legal heirs namely, the plaintiff and defendants 1 to 6. In the year 2001 the first defendant-one of the legal heirs, conveyed her share over the plaint item No.1 in favour of the second defendant under Ext.B2. On the same date the 4[th] defendant-another legal heir, released her share over the property in favour of the second defendant under Ext.B3. Thus over plaint item No.1 in addition to the 1/7 share held by the 2[nd] defendant as the son of Kunchu he has obtained the 1/7 shares each of the first defendant and the 4[th] defendant. Thus the total shares held by the second defendant over plaint item No.1 is 3/7. The remaining 4/7 shares is available for partition between the plaintiff and defendant 3, 5, and 6. The decree and judgment of the trial court is liable to be modified accordingly. Point no.(v) is answered accordingly. R.F.A. No.183 of 2007 -: 12 :- 14. In the result, this appeal is allowed. The decree and judgment of the trial court are set aside. A modified decree for partition is passed in the following terms :- (i) It is declared that 4/7 shares from out of the plaint item No.1 is liable to be partitioned in equal shares between the plaintiff and defendants 3, 5, and 6. The 2[nd] defendant is entitled to the remaining 3/7 shares. (ii) The other items of the plaint schedule properties are not available for partition. (iii) Partition is to be effected by metes and bounds. - (iv) Equity to be worked out in the final decree - proceedings. - (v) The quantum of mesne profits is to be determined in the final decree proceedings. R.F.A. No.183 of 2007 -: 13 :- In the light of the judgment of the Apex Court in _**Kattukandi Edathil Krishnan v. Kattukandi Edathil Valsan 2022 SCC OnLine SC 737**_ the trial court shall commence the final decree proceedings. Parties to appear before the trial court on 11.04.2024. Sd/- **SATHISH NINAN JUDGE** kns/- //True Copy// P.S. to Judge