RFA No. 543 of 2007

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE T.V.ANILKUMAR** **FRIDAY, THE 16TH DAY OF OCTOBER 2020 / 24TH ASWINA, 1942** ## **RFA.No.543 OF 2007** **AGAINST THE JUDGMENT AND DECREE DATED 20.03.2007 IN O.S.NO. 926/1999 OF I ADDITIONAL SUB COURT, THRISSUR** ## **APPELLANT/3RD PLAINTIFF:** **A1 SURESH P.K., CARPENTER, S/O. LATE PADINJARUTTU KUTTAPPAN, KIZHAKKUMPURAM DESOM, MANAKODY VILLAGE, THRISSUR TALUK.** ***ADDITIONAL APPELLANT 2** **ADDL.A2 SATHEESH,AGED 24 YEARS,CARPENTER, S/O LATE PADINJARUTTU KUTTAPPAN, KIZHAKKEUMPURAM DESOM, MANKODY VILLAGE, THRISSUR DISTRICT.** **THE 3RD RESPONDENT TRANSPOSED AS ADDL.A2 AS PER ORDER DATED 1/12/2011 IN IA 2797/2011** **BY ADVS.SRI.T.M.CHANDRAN SRI.P.R.NEELAKANDAN NAMBOODIRI SRI.SANTHOSH P.PODUVAL SMT.R.RAJITHA SRI.P.B.KRISHNAN** **RESPONDENTS: PLAINTIFF NO.2, DEFENDANTS 2 TO 4 AND ADDL.DEFENDANTS 5 TO 18.** ****1 SOBHANA(DIED), D/O.(LATE) PADINJARUTTU KUTTAPPAN, KIZHAKKUMPURAM DESOM, MANAKODY VILLAGE, THRISSUR TALUK.** **R.F.A.No.543/2007** ## **:-2-:** **2 SUSHAMA MOHANAN, W/O. MOHANAN, PANTHALLUUR HOUSE, CHOWANNUR P.O., KUNNAMKULAM, THRISSUR DISTRICT.** - ***3 SATHEESH, AGED 24 YEARS, CARPENTER, S/O. LATE PADINJARUTTU KUTTAPPAN, KIZHAKKEUMPURAM DESOM, MANAKODY VILLAGE, THRISSUR DISTRICT.(THE THIRD RESPONDENT TRANSPOSED AS ADDL. APPELLANT 2 AS PER ORDER DATED 1/12/2011 IN IA 2797/2011)** - **4 JAYAPRAKASH, AGED 36 YEARS, CARPENTER, S/O. LATE PADINJARUTTU KUTTAPPAN, -DO-, NOW EMPLOYED IN THE ADDRESS P.B.NO.54035, TERRAZZO COMPANY, DUBAI, U.A.E.** - **5 LAIZA, AGED 65 YEARS, W/O. LATE CHALISSERY JOHN, VELUTHUR DESOM AND VILLAGE, THRISSUR DISTRICT.** - **6 JOSEPH, S/O. LATE CHALISSERY JOHN -DO- -DO-** - **7 ANTONY, S/O. -DO- -DO8 OMANA, D/O. -DO- -DO9 GEORGE, S/O. -DO- -DO-** - **10 LILLY, D/O. -DO- -DO11 SEBASTIAN, S/O. -DO- -DO12 PIUS, S/O. -DO- -DO13 ANNIE, D/O. -DO- -DO14 ALPHONSA, D/O. -DO- -DO15 MARTIN, S/O. -DO- -DO-** **R.F.A.No.543/2007** **:-3-: 16 ALOSIOUS, S/O. -DO- -DO17 LONAPPAN, S/O. -DO- -DO18 GRACY, D/O. -DO- -DO-** **NOTE: APPELLANT IS THE 3RD PLAINTIFF IN OS NO.926 OF 1999. THE FIRST PLAINTIFF IN THAT SUIT IS HIS MOTHER WHO IS NO MORE. THE 2ND PLAINTIFF WAS THE SISTER OF THE APPELLANT. SHE IS THE 1ST RESPONDENT IN THIS APPEAL. ALL THE LEGAL HEIRS OF THE 1ST PLAINTIFF ARE ALREADY ON THE PARTY ARRAY. THE 1ST DEFENDANT IN THE SUIT IS NO MORE. HIS LEGAL HEIRS ARE ON THE PARTY ARRAY AS RESPONDENTS 5 TO 18. THEY WERE ADDL. DEFENDANTS 5 TO 18 IN THE COURT BELOW.** **ADDL.R19P.K NARAYANAN,** **AGED 64 YEARS,S/O KRISHNAN,KODAVANA HOUSE,NEAR RAJENDRA HOSPITAL,ASOKAPURAM P.O.,CALICUT.** **ADDL.R20DHANYA P.N, AGED 35 YEARS, D/O P.K.NARAYANAN, KODAVANA HOUSE,NEAR RAJENDRA HOSPITAL,ASOKAPURAM P.O., CALICUT.** **ADDL.R21SARANYA P.N, AGED 31 YEARS, D/O P.K.NARAYANAN,KODAVANA HOUSE,NEAR RAJENDRA HOSPITAL,ASOKAPURAM P.O.,CALICUT.** **ADDL.R22KSHAMA KRISHNAN.P.N., AGED 30 YEARS, D/O P.K.NARAYANAN,KODAVANA HOUSE,NEAR RAJENDRA HOSPITAL,ASOKAPURAM P.O.,CALICUT.** **LEGAL HEIRS OF DECEASED 1ST RESPONDENT ARE IMPLEADED AS ADDITIONAL R19 TO R22 VIDE ORDER DATED 13/12/2019 IN IA 4/2019** **R4 BY ADV. SMT.M.R.REENA R5,6 & 15 BY ADV. SRI.MILLU DANDAPANI R19-20 BY ADV. SRI.V.C.MADHAVANKUTTY** **THIS REGULAR FIRST APPEAL HAVING BEEN FINALLY HEARD ON 09-10-2020, THE COURT ON 16-10-2020 DELIVERED THE FOLLOWING:** ## **R.F.A.No.543/2007** ## **:-4-:** ## **Dated this the 16[th] day of October, 2020** ## **J U D G M E N T** The third plaintiff in O.S.No.926/1999 has filed this appeal challenging the judgment and decree dismissing the suit filed by him, his sister and mother for partition of plaint schedule property extending 24 1/3 cents of land with building. During the pendency of the appeal, the sole appellant was transposed by the third respondent/defendant as per an order passed by this Court in I.A.No.2797/2011. The person who is now interested in the reversal of the impugned judgment, is the transposed second appellant. 2. The plaintiffs three in number sued for getting 4/7 share in the property claiming 1/7 each for themselves and fourth respondent who is one of the brothers of the third plaintiff. Defendants 2 ## **R.F.A.No.543/2007** ## **:-5-:** to 4 and plaintiffs 2 and 3 are the children of late Sri.Kuttappan. First plaintiff is the widow of the deceased. 3. The sole contestant in the suit before the court below was the first defendant who died during the pendency of the suit and his legal representatives were impleaded as additional defendants 5 to 18 who are respondents 5 to 18 in the appeal. 4. The plaintiffs' case is that the plaint property was their erstwhile joint family property which was in the possession of the forefathers of deceased Sri.Kuttappan having the same been obtained on 'verumpattam' from the jenmi tarward. During the life time of Sri.Kuttappan, the plaintiffs and defendants 2 to 4 along with Sri.Kuttappan enjoyed the property as joint family property. The first defendant in the suit filed ## **R.F.A.No.543/2007** ## **:-6-:** O.S.No.658/1988 against Sri.Kuttappan for specific performance of contract of sale alleging that he agreed to sell the property by executing a document on 13.3.1985 claiming it as its absolute property. Sri.Kuttappan opposed the suit contending that the agreement for sale relied on was bogus. However, suit was decreed against him, which he challenged before this Court in A.S.No.567/1991. The appeal was dismissed, against which, he filed A.F.A.No.21/1994 before this Court which was also ultimately dismissed. 5. During the pendency of A.F.A.No.21/1994, Sri.Kuttappan passed away and plaintiffs and defendants 2 to 4 got themselves impleaded as his legal representatives and prosecuted the appeal. The contention of the plaintiffs is that they defended the deceased as his legal representatives and the subject matter of suit was Kuttappan's ## **R.F.A.No.543/2007** ## **:-7-:** interest alone which was claimed in the proceeding. As a matter of fact, the property was joint family property belonging to the parties and Sri.Kuttappan has no authority to have executed agreement for sale affecting the joint interest of other members. It is therefore contended that the decree granting specific performance and assignment of plaint schedule land obtained by first defendant through court, are not binding on the plaintiffs and defendants 2 to 4 in so far as their estate was not represented in the suit. 6. The plaintiffs claimed themselves to be 'Kammalas' following modified form of Hindu law and therefore the property in the possession of forefathers of Sri.Kuttappan was impressed with the character of joint family property. It was also contended that so far as the first plaintiff was concerned, she became the member of husband's ## **R.F.A.No.543/2007** ## **:-8-:** family since her marriage was solemnized in 'kudivaippu form'. On these allegations, plaintiffs sought partition of the suit property and separate possession among the co-sharers. 7. All the defendants except the additional defendants 5 to 18 in the suit remained _ex parte_ . 8. The legal representatives of the deceased first defendant challenged the suit as not maintainable mainly for the reason that it was barred by _res judicata_ by virtue of a decision in O.S.No.658/1988 which was later confirmed in appeal which was dismissed by this Court. It is contended that Sri.Kuttappan obtained the suit property under a purchase certificate issued from the Land Tribunal, Thrissur, in 1997 and describing the asset as his absolute property, he executed agreement for sale. It was denied that parties are Kammalas and were following modified form of ## **R.F.A.No.543/2007** ## **:-9-:** 'mithakshara law'. The allegation that first plaintiff was married in kudivaippu form was denied. Another contention is that the plaintiffs and others, who prosecuted A.F.A.No.21/1994 before this Court, had opportunity to agitate the present suit claim and for their failure to plead that the property was joint family property, the suit is barred by constructive _res judicata_ by virtue of Explanation IV to Section 11 of the CPC. 9. On the side of the plaintiffs, PWs 1 to 3 were examined and Exts.A1 to A6 were tendered in evidence. Exts.B1 and B2 were marked on the side of the contesting defendants. 10. The court below framed several issues including those as to _res judicata_ and nature of the plaintiffs' rights in the plaint property. It was found that the plaint property was not the joint family property of the plaintiffs and others ## **R.F.A.No.543/2007** ## **:-10-:** but, on the other hand, it was the absolute property owned by Sri.Kuttappan. The contention that first plaintiff was married in kudivaippu form was rejected for want of evidence. It was also held that satisfactory evidence was not brought forth to prove that the parties were Kammalas following the modified form of mithakshara law. While answering the question of _res judicata_ , the court below found it in favour of the plaintiffs. 11. I have already stated that third plaintiff who was the sole appellant was already transposed by the third respondent/third defendant in the suit. The transposed appellant was impleaded as additional second respondent and the third plaintiff was recorded as first appellant. 12. The second appellant came on record as a transposed party to appeal following the sole appellant having purchased the suit property during ## **R.F.A.No.543/2007** ## **:-11-:** the pendency of the appeal. Quite naturally, when assignment of plaint property was taken in the name of the sole appellant, he must necessarily step into the shoes of the respondents 5 to 18 in the appeal and have to support his assignors so as to protect his own interests in the assigned property. 13. The learned counsel for the second appellant contended that so long as the first appellant has not sought to withdraw from the suit and get transposed as a contesting defendant, he may not be permitted to pursue the appeal defending the interests of respondents 5 to 18. 14. The fourth respondent/fourth defendant in the suit supported the additional second appellant in this appeal. 15. The second appellant contended that the judgment decree are liable to be interfered with in as much as it failed to consider the evidence in ## **R.F.A.No.543/2007** ## **:-12-:** its true perspective and re-appreciation of evidence would lead to a resistible conclusion that the property during the life time of Sri.Kuttappan was held by plaintiffs' family as joint family property and the parties being Kammalas were following modified form of mithakshara law. It was contended that there was enough evidence on record to prove that first plaintiff was married in kudivaippu form and the evidence on the side of the plaintiffs was not rebutted by the contesting legal representatives of the first defendant. 16. The learned counsel for the additional first appellant supported the impugned judgment and decree contending that the suit is barred by _res judicata_ in as much as the contentions now taken in the suit and the independent right set up in respect of the suit land were to have been raised in O.S.No.658/1988 when the plaintiffs prosecuted ## **R.F.A.No.543/2007** ## **:-13-:** A.F.A.No.21/1994 following the death of Sri.Kuttappan and also in the subsequent execution proceedings, and failure on their part estoppes them from maintaining the suit which is barred by estoppel by election as well as constructive _res judicata_ . He relied on the decisions reported in **Annaimuthu Thevar (Dead) v. Alagammal & ors. [(2005)6 SCC 202]** , **Commissioner of Endowments & ors. v. Vittal Rao & ors. [(2005)4 SCC 120]** , **Shajudhi v. Sabinsa Begum (2017(3) KLT 789)** , **Sulochana Amma v. Narayanan Nair [(1994)2 SCC 14]** , **Ramchandra Dagdu Sonavane (Dead) v. Vithu Hira Mahar (Dead) [(2009)10 SCC 273]** , **Vittala D.Prabhu v. Nalini Shenoy (2012(3) KLT 70)** , **Gorie Gouri Naidu (Minor) & anr.v. Thandrothu Bodemma & ors. [(1997)2 SCC 552]** . 17. In my view, none of these decisions would apply since those decisions did not consider the ## **R.F.A.No.543/2007** ## **:-14-:** effect of failure of legal representatives coming on record to agitate independent rights held in the property in obedience to Order XXII Rule 4(2) of the CPC. The argument based on estoppel by election as well as _res judicata_ needs to be tested in the light of the principle underlying Order XXII Rule 4(2) of the CPC which provides that the contention taken by the legal representatives ought to be appropriate to their character as legal representatives of the deceased. On the contrary, the learned counsel for the transposed second appellant relied on the decisions in **Vidyavati v. Man Mohan (1995 KHC 469), Sukhalal & ors. v. Jacob** **& anr.(2020(1) KHC 466) Jaiprakash Mangilal Agarwal v. Smt.Lilabai & anr. [AIR 1963 BOMBAY 100]** , **Ittiathi Kunjan v. Kunju Kochuntan (1963 KLT 500)** , **Babulal N.Shukla v. Jeshankar N.Shukla (AIR 1972 CALCUTTA 494)** , **Krishnan Sathyadas v. Lakshmikutty** ## **R.F.A.No.543/2007** ## **:-15-:** **Amma (1990(2) KLT 795)** , **Niranjan Sahu v. Gauri Sahu & ors.** ,( **MANU/OR/0049/2016:122(2016)CLT 195)** and **Joseph D'Silva v. Emperor (AIR (34) 1947 Bombay** **310)** to contend for the position that it is not mandatory for the legal representatives defending the interests of the deceased to set up and agitate their independent rights in the property and any failure in that regard will not preclude them from agitating their rights in a separate suit by virtue of the legal bar under Explanation IV to Section 11 of the CPC. 18. I have my own doubt as to the right of the first appellant to be heard in this appeal in support of the impugned judgment and decree. Even though he lawfully purchased the plaint property and thereby stepped into the shoes of respondents 5 to 18, the law of procedure,in my opinion, does not permit him to contest the case against his own case ## **R.F.A.No.543/2007** ## **:-16-:** in the plaint. Having set up a case that decree in O.S.No.658/1988 and assignment of property to deceased first defendant through court are not binding, he cannot take a U turn to set up the inconsistent plea of supporting the rights of his assignors. It is the settled law that one cannot approbate and reprobate and take inconsistent contentions particularly in the same proceeding. 19. The learned counsel for the first appellant submitted that he has right to be heard at least as a respondent in the appeal. If at all he is brought on the respondent side as well, the position will not change in my view, because until he withdraws from the suit and seeks to be impleaded in the proceeding in a capacity distinct from that of the plaintiff in the suit, he will be estopped from contending against his own case. 20. The two material points which arise for ## **R.F.A.No.543/2007** **==> picture [44 x 9] intentionally omitted <==** consideration in this appeal are the following; (i) whether the plaintiffs proved that the plaint property was the joint family property of deceased Kuttappan, plaintiffs and defendants 2 to 4? - (ii)whether the suit is barred by _res_ _judicata?_ **==> picture [402 x 13] intentionally omitted <==** Kammalas following modified form of Hindu Law. The respondents 5 to 18 who contested the case in the court below disputed that they are not Kammalas nor they followed the modified form of mithakshara law. To prove that the parties are Kammalas, there is no satisfactory evidence available on record. PW1, the widow of Sri.Kuttappan said that School records are available to prove that the parties are Kammalas. But no such records were produced before the court. PW3, who is the son of Sanku, another brother of ## **R.F.A.No.543/2007** **:-18-:** Sri.Kuttappan, said that his community as per the School records is viswakarma. I have my own doubt whether viswakarma is interchangeable for Kammalas. Both seem to represent different communities. Mere oral assertion by PWs.1 to 3 is not sufficient to prove that plaintiffs are Kammalas. 22. There is serious dispute as to the claim of the plaintiffs that their family was following modified form of Hindu law. This has to be proved by strict and convincing evidence. Mere verbal assertion is no substitute for convincing and authentic evidence. No documents are available to prove that the parties were following the modified form of mithakshara law. It is true that if parties followed the modified form of Hindu law as members of joint family, all including female members will also get right in the properties of the family. The first plaintiff claimed to be a member of her ## **R.F.A.No.543/2007** ## **:-19-:** husband's family allegedly because her marriage was solemnized in kudivaippu form. This was not proved by any evidence according to the court below. The court below was not prepared to believe the oral evidence tendered in support of the kudivaippu form of marriage. PW2, the sister of PW1 supported by PW3 only said that the form of marriage of PW1 was kudivaippu. This is not sufficient to prove the form of marriage, because apart from general assertion of the form, the formalities of such marriages must, if it had so taken place, also be proved by the witnesses. No such evidence is forthcoming and further no independent witness who attended the marriage from outside the plaintiffs' family was examined also. The evidence on the side of the plaintiffs, by all means, could be probably interested as well. In my view, the court below rightly held that kudivaippu form of marriage of ## **R.F.A.No.543/2007** ## **:-20-:** the first plaintiff was not proved. 23. Even assuming that the parties were following modified form of Hindu Law also, there is nothing on record to show that the plaintiffs' family possessed plaint property as their joint family property. The evidence given by PW1 supported by PW3 is that the forefathers of plaintiffs' family had taken the plaint property along with other properties on verumpattam from jenmi tarward and under Ext.A4 family arrangement, the plaint property came to the share of Sri.Kuttappan. Ext.A4 shows that his two brothers, Balakrishnan and Sanku are also signatories to the arrangement dated 9.9.1963. There is nothing in the document which suggests that the parties enjoyed the property as their joint family property. 24. On reading the document dated 9.9.1963, it is doubtful whether the nature of dues mentioned ## **R.F.A.No.543/2007** ## **:-21-:** therein related to payment of verumpattam. None of the witnesses has any direct knowledge about the execution of Ext.A4. If Ayyappan, the father of Sri.Kuttappan had been a member of the joint family, materials necessary for such inference would have been available in the document. It has come out in evidence through the testimonies of PWs.1 and 3 that some of their children were also alive when Ext.A4 family arrangement was made between the three brothers. The brothers were also married and if by kudivaippu form their wives had become members of their family, they and their then living children also would have got their shares as members as per the family arrangement. There is no explanation offered as to why they were not given shares in the property. 25. All these facts when taken together would lead to irresistible conclusion that the plaint ## **R.F.A.No.543/2007** ## **:-22-:** property was not enjoyed by the plaintiffs and others as their joint family property. The view taken by the court below that the property was exclusively owned by Sri.Kuttappan is therefore in tune with the evidence on record. Therefore, I do not find any reason to interfere into the finding entered into by the court below that plaint property was the absolute exclusive property of late Sri.Kuttappan. 26. Point No.2 : It is true that the plaintiffs and defendants 2 to 4 did not set up in A.F.A.No.21/1994 any independent right claiming the property to be their joint family property. Under Order XXII Rule 4(2) of the CPC, a legal representative is supposed to make only such defence as is appropriate to his character as the legal representative. The very object of this provision appears to limit the contentions of the ## **R.F.A.No.543/2007** ## **:-23-:** legal representative only to those which the deceased alone could have taken. This may probably be because the new rights brought forth would some times take the issues in the proceeding out of the scope of the suit. That, however, does not mean that under no circumstance, a legal representative cannot urge his independent claim in respect of the subject matter of the suit. The court can in appropriate cases permit such contentions to be taken also. The decided cases lay down that until the legal representative is impleaded in his own independent capacity as such, he cannot avail an opportunity of raising plea based on such independent claim. So the test to decide whether a legal representative could be or could have been allowed to contest the suit in his own independent right depends on the question whether he came on record or was impleaded in the suit in such ## **R.F.A.No.543/2007** ## **:-24-:** independent capacity or otherwise as the legal representative. 27. In the present case, the contesting defendants 5 to 18 did not have a contention before the court below that the legal representatives who prosecuted the appeal before this Court came on record in their independent capacity invoking Order I Rule 10 of the CPC. Since Sri.Kuttappan had denied the execution of agreement for sale, they pursued the same contention opposing the suit for specific performance. At that stage, it was not at all mandatory for them to have pleaded that the property was the joint family property of theirs as well as of Sri.Kuttappan. If they had raised with the leave of the court the alleged independent right in the property before the appellate court and it was lost, then it would certainly have been a case where the bar of _res judicata_ applied. ## **R.F.A.No.543/2007** **:-25-:** Therefore, I agree with the court below that the present suit is not barred by _res judicata_ for different reasons. In the result, appeal fails and it is dismissed. All pending interlocutory applications are closed. Sd/- ## **T.V.ANILKUMAR JUDGE** ami/