R.M. Parameswaran Nair v. Bhaskara Pillai Sukumaran Nair and others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE P.SOMARAJAN** **THURSDAY ,THE 24TH DAY OF JANUARY 2019 / 4TH MAGHA, 1940** ## **RSA.No. 772 of 2006** **AGAINST THE JUDGMENT AND DECREE DATED 25-05-2006 IN AS 210/1999 of I ADDITIONAL DISTRICT COURT, THIRUVANANTHAPURAM** **AGAINST THE JUDGMENT AND DECREE DATED 27-07-1999 IN OS 7/1996 of SUB COURT, NEDUMANGAD** ## **APPELLANT/APPELLANT IN FIRST APPEAL/6TH DEFENDANT:** **R.M.PARAMESWARAN NAIR, MULAVANA VEEDU, ANAKUDI MURI, VAMANAPURAM VILLAGE, NEDUMANGAD TALUK, THIRUVANANTHAPURAM.** ## **BY ADV. SRI.P.R.VENKETESH** **RESPONDENTS/RESPONDENTS IN FIRST APPEAL/PLAINTIFF AND DEFENDANTS 1 TO 5 &7 TO 13 :** - **1 BHASKARA PILLAI SUKUMARAN NAIR, DARBHAKKATTAKKALIL VEEDU, ANAKUDI MURI, VAMANAPURAM VILLAGE, NEDUMANGAD TALUK, THIRUVANANTHAPURAM DISTRICT.** - **2 R.M.KRISHNA PILLAI MULAVANA VEEDU, DO. DO.(DIED)** - **3 R.M.GOPALA PILLAI DO. DO. 4 R.M.NEELAKANTA PILLAI DO. DO.** - **5 B.VIJAYAMMA DO. DO. 6 B.LEELAMMA DO. DO. 7 B.NARAYANI AMMA DO. DO. (DIED)** **RSA.No. 772 of 2006 2** - **8 R.M.GANGADHARAN NAIR DO. DO.** - **9 R.M.MADHAVAN NAIR DO. DO. 10 B.RAVEENDRAN NAIR DO. DO.** **11 SREEKALA, D/O.PARAMESWARI AMMA PANANVILAKATHU VEEDU, PADIKULAM, VAMANAPURAM DESOM,, PULIMATH VILLAGE.** - **12 SANTHAKUMARI AMMA, D/O PARAMESWARI AMMA PANANVILAKATHU VEEDU, PADIKULAM, DO. DO.** - **13 RAVEENDRAN NAIR, S/O KUTTAN PILLAI, VILAYIL VEEDU KANNANKADU, MANIKKAL MURI, NELLANAD VILLAGE.** **BY ADVS. SRI.M.DEVESH SRI.RAJIT SMT.MEENA.A. SMT.REJITHA RAJAN SRI.K.C.KIRAN SRI.M.DINESH SRI.T.KRISHNANUNNI (SR.) SRI.VINAY MATHEW JOSEPH SRI.VINOD RAVINDRANATH** **THIS REGULAR SECOND APPEAL HAVING BEEN FINALLY HEARD ON 24.01.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **RSA.No. 772 of 2006 3** ## **JUDGMENT** Against the concurrent verdict given by the Trial Court (Sub Court, Nedumangad) in O.S.No.7/1996 and by the First Appellate Court (I Addl.District Court, Thiruvananthapuram) in A.S.No.210/1999, the 6[th] defendant came up with this appeal. 2. The suit is one for partition simplicitor. There are 10 items of properties sought to be partitioned in the suit. The preliminary decree was granted by the Trial Court adjudicating the share and entitlement of plaintiffs over the property. It was confirmed in appeal against which this second appeal is preferred. 3. The property originally belonged to one Bhargavi Amma. Defendants 1 to 9 are her children. She was having another daughter by name Padmakshi Amma. The plaintiff and the 10[th] defendant are the two children of above said Padmakshi Amma. The plaintiff claimed 1/20[th] share over the property ## **RSA.No. 772 of 2006 4** being one of the son of Padmakshi Amma over the plaint schedule properties. 4. The contention raised by the 6[th] defendant/appellant is that, during the life time of Bhargavi Amma she had executed Ext.B7 to B9 unregistered Will bequeathing all these properties to a sole legatee under the Will, the 6[th] defendant and as such the plaint schedule property is not available for partition. The status of plaintiff also disputed as the son of Padmakshi Amma. 5. Concurrent finding that the plaintiff and 10[th] defendant are the children of Padmakshi Amma by both the Trial Court and the First Appellate Court based on evidence adduced cannot be interfered by this Court in the absence of warranting reason. 6. The contention raised by the 6[th] defendant is that the entire plaint schedule property were bequeathed under Ext. B7 to B9 Wills by Bhargavi Amma to the sole legatee, the 6[th] defendant, the appellant herein and as such the subsequent partition executed as A7 and A8 with respect to the plaint schedule properties in which he is a party ## **RSA.No. 772 of 2006 5** and signatory, can only be considered as an arrangement entered in between the parties to the partition with the 6[th] defendant/appellant. 7. It is also contended that Ext.B7 to B9 documents were proved by summoning the attesting witnesses as mandated under Section 68 of the Evidence Act and as such he is the exclusive owner of the property being the sole legatee under the three Wills and subsequent partition entered as Ext.A7 and A8 can only be construed as document of gift in favour of other parties to the partition done by the 6[th] defendant, and the nomenclature of the document is not decisive and took support from the decision of this court in _**Ponnu and another v.**_ ## _**Taluk Land Board, Chittoor and others (AIR 1982**_ _**Kerala 330).**_ Ext A7 and A8 partition deeds were executed after the death of Bhargavi Amma. There is a reference with respect to existence of Ext.B7 to B9 Wills alleged to have been executed by Bhargavi Amma in favour of the 6[th] defendant. There is further recital in the said documents that the Will has not been acted upon and the property was ## **RSA.No. 772 of 2006 6** not mutated and that the sole legatee had not taken possession of the property in the opening portion of the said document. It is further recited in the said document that the property was left out by Bhargavi Amma and as such capable of partition. The fact that the 6[th] defendant is also a signatory and party to these two documents Ext.A7 and A8 and the various recital/declaration made in the said document while executing a deed of partition with respect to the property in question would sufficiently show that all the parties are bound by the declaration made in the document, recognizing the nature of the property as estate left out by Bhargavi Amma, liable for partition. There is nothing in the document with respect to any understanding or arrangement alleged to have been entered into by parties to the said partition deed. On the other hand, there is a specific, unambiguous, clear declaration in the document by its executant inclusive of the 6[th] defendant/appellant that the property is liable for partition being the one left out by deceased ## **RSA.No. 772 of 2006 7** Bhargavi Amma to the common estate of her legal heirs. No challenge was raised by the 6[th] defendant regarding the execution of Ext.A7 and A8 deed of partition and no suit was filed to set aside these two partition deed and no counter claim was also raised. On the other hand, the stand taken by the 6[th] defendant admitting the execution of Ext.A7 and A8 partition deeds, admitting the nature, character and ownership as the property left out by Bhargavi Amma the original owner, on her death, the declaration that the property is liable for partition and the execution of the deed of partition separating the joint co-ownership derived under Bhargavi Amma, would sufficiently show that the property was brought back to the common estate left out by the deceased Bhargavi Amma by the act of 6[th] defendant and thereafter the 6[th] defendant cannot overturn it and cannot challenge it as he is debarred by the operation of estoppal by conduct. In short, the existence of Ext.B7 to B9 three Wills left out by Bhargavi Amma and its proof may not have much impact over the property as the 6[th] ## **RSA.No. 772 of 2006 8** defendant had subsequently by his action declared the status of the property as the property left out by deceased Bhargavi Amma. Hence, he cannot thereafter come and say that the property is not available for partition especially when there is no challenge regarding Ext.A7 and A8 partition deed. 8. In short, the 6[th] defendant by his act had relinquished the testamentary succession under Ext.B7 to B9 documents by making himself as a consenting party to Ext.A7 and A8 deed of partition and by affixing his signature as an executant with full knowledge. 9. The decision relied on by the learned counsel for the appellant is pertaining to an issue regarding an execution of a partition by father along with his children. It is the usual practice in the society to execute deed of partition by father along with his children though the children may not have any right, title or interest over the property. Though, the document styled as a partition it is really a gift or settlement in favour of children. Here, in this case it is not a **RSA.No. 772 of 2006 9** property owned by the 6[th] defendant or acquired by the 6[th] defendant and there is no execution of any partition deed by him along with his children. But, by this act he has rejected Ext.B7 to B9 and accepted the character of the property as the property left out by Bhargavi Amma without any testamentary succession and a declaration was made to that effect stating that the property is liable to be partitioned. The property will go to all the legal heirs and that is what is actually done by both the First Appellate Court and the Trial Court, and hence deserves no interference. The appeal fails, dismissed. No costs. ## **Sd/-** msp **P.SOMARAJAN JUDGE** //TRUE COPY// P.A. TO JUDGE