Rosna and others v. Muhammed and others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE C.K.ABDUL REHIM** ## **&** ## **THE HONOURABLE MR.JUSTICE T.V.ANILKUMAR** **THURSDAY, THE 11TH DAY OF APRIL 2019 / 21ST CHAITHRA, 1941** **MAT.APPEAL.NO. 465 OF 2013 E** **AGAINST THE ORDER IN O.P.NO.1003/2002 OF FAMILY COURT,THRISSUR** **DATED 20.4.2013** ## **APPELLANTS/ADDITIONAL RESPONDENTS 6 TO 8:** |**1**|**ROSNA, AGED 29 YEARS,**| |---|---| ||**D/O.LATE NABEESA @ NABEESAKUTTY,**| ||**ARANGATHPARAMBIL HOUSE, OPPOSITE TO MUJAHIT MOSQUE,**| ||**OTTUPARA, KUMARANELLOOR VILLAGE, TALAPPILLY TALUK.**| |**2**|**SIBU MON, AGED 27 YEARS,**| ||**S/O.LATE NABEESA @ NABEESAKUTTY,**| ||**ARANGATHPARAMBIL HOUSE, OPPOSITE TO MUJAHIT MOSQUE,**| ||**OTTUPARA, KUMARANELLOOR VILLAGE, TALAPPILLY TALUK.**| |**3**|**SHUKOOR, AGED 35 YEARS,**| ||**PRESENT HUSBAND OF NABEESA @ NABEESAKUTTY,**| ||**ARANGATHPARAMBIL HOUSE, OPPOSITE TO MUJAHIT MOSQUE,**| ||**OTTUPARA, KUMARANELLOOR VILLAGE, TALAPPILLY TALUK.**| ||**BY ADVS.**| ||**SRI.RENJITH THAMPAN (SR.)**| ||**SMT.P.R.REENA**| ## **RESPONDENTS/PETITIONER & RESPONDENTS 3 TO 5:** - **1 MUHAMMED, AGED 49 YEARS, S/O.YOUSAF, ARANGATHUPARAMBIL HOUSE, NEAR THIRUVANIKKAVU TEMPLE, THEKKUMKARA VILLAGE, THALAPPILLY TALUK, THRISSUR DISTRICT.** - **2 HASSAN, S/O.LATE HAMSA, ARANGATHPARAMBIL HOUSE, OPPOSITE TO MUJAHIT MOSQUE, OTTUPARA, KUMARANELLUR VILLAGE, THALAPPILLY TALUK, THRISSUR DISTRICT.** **MAT.APPEAL.NO. 465 OF 2013 : 2 :** **3 NOORDHEEN, S/O.LATE HAMSA, ARANGATHPARAMBIL HOUSE, OPPOSITE TO MUJAHIT MOSQUE, OTTUPARA, KUMARANELLUR VILLAGE, THALAPPILLY TALUK, THRISSUR DISTRICT.** **4 PATHUMABI, D/O.LATE HAMSA, ARANGATHPARAMBIL HOUSE, OPPOSITE TO MUJAHIT MOSQUE, OTTUPARA, KUMARANELLUR VILLAGE, THALAPPILLY TALUK, THRISSUR DISTRICT** **R1 BY ADVS. SRI.NAGARAJ NARAYANAN SRI.SAIJO HASSAN, SRI.BENOJ C AUGUSTIN SRI.SEBIN THOMAS SMT.J.KASTHURI SRI.P.E.SAJAL SRI.VIVEK V. KANNANKERI** **THIS MATRIMONIAL APPEAL HAVING BEEN FINALLY HEARD ON 28.1.2019, THE COURT ON 11.4.2019 DELIVERED THE FOLLOWING:** **MAT.APPEAL.NO. 465 OF 2013 : 3 :** ## **C.K.ABDUL REHIM & T.V.ANILKUMAR, JJ.** **--------------------------------Mat.Appeal No.465 of 2013 ---------------------------------Dated this the 11**[th] **day of April, 2019** ## **J U D G M E N T** ## T.V.ANILKUMAR,J. Appellants are the original respondents 6 to 8, being the legal heirs of deceased 1[st] respondent in O.P.No.1003/2002 filed by her former husband, the petitioner in the original petition before the Family Court, Thrissur seeking partition and separate possession of petition schedule 57½ cents and a building therein in equal half share as between them. A preliminary decree passed on 20.4.2013 declaring half right of the petitioner as sought for him, is challenged by her legal heirs as appellants in this appeal. 2. The original 1[st] respondent in the Family Court died on 21.5.2007 during pendency of the case. The 2[nd] ## **MAT.APPEAL.NO. 465 OF 2013 : 4 :** respondent in the original petition is her father who died on 24.10.2002 during pendency of the original petition and his legal heirs are additional respondents 3 to 5 in the court below. 3. The petition schedule property originally belonged to Hajaru, sister of 2[nd] respondent. She was unmarried and died issueless and thereupon half right over the scheduled property devolved on deceased 2[nd] respondent and the remainder half right jointly on his other two sisters. 4. Case of the original petitioner, who is the 1[st] respondent in this appeal, is that the undivided half right held by deceased 2[nd] respondent was purchased by him under Ext.A1 sale deed dated 14.11.1991 and he became a co-owner of the property. The remainder half right jointly held by sisters of deceased 2[nd] respondent were transferred to 1[st] respondent and she too became a co-owner of the undivided half share. The 1[st] respondent was married to the original petitioner, and after the relationship between them strained, the parties dissolved their marriage and she was ## **MAT.APPEAL.NO. 465 OF 2013 : 5 :** later married by the 8[th] respondent in the O.P. According to the petitioner, the 1[st] respondent in this appeal, since the spousal relationship came to an end, the joint enjoyment of the petition schedule property has become difficult, necessitating partition of property by equal half right between himself and 1[st] respondent. There is a building in the property worth nearly `10 lakhs which, according to him, was built by himself spending his own money. Ground floor of the building was rented out for running a shop on a monthly rent of `5,000/- and being co-owner of the property and building, he is entitled to half share of the monthly rent. It is in this background, original petition seeking partition and separate possession of property was filed by him. 5. The deceased 1[st] and 2[nd] respondents in the original petition had identical contentions and they through joint counter statement, opposed the claim for partition by contending that the land and building are not partible. They denied the title claimed by the original petitioner under Ext.A1 sale deed and Ext.A1 was contended to be vitiated by fraud and misrepresentation and devoid of consideration. ## **MAT.APPEAL.NO. 465 OF 2013 : 6 :** The contention in the joint objection is that 2[nd] respondent, in fact, intended to transfer his undivided share to his daughter, the 1[st] respondent. But by virtue of fraud played on him, Ext.A1 happened to be executed in the name of his son-in- law. On coming to know that Ext.A1 was created by fraud, the 2[nd] respondent cancelled Ext.A1 through Ext.B5 Cancellation deed registered on 7.10.1996 and settled the property to his daughter, the 1[st] respondent, under Ext.B2 registered settlement deed on 11.10.1996. They also claimed that the building in the property was, in fact, put up with the exclusive funds of the 1[st] respondent. She had raised money from various sources including financial institutions. As regards the monthly income of rent from shop building, contention is that it was only `3,750/-. The 1[st] respondent contended that if, in any event, the building is found to be partible, she is entitled to claim value of improvements, i.e. the building structure. 6. After death of the 1[st] respondent, her legal heirs, respondents 6 to 8 pursued her contentions and stated that during her lifetime, she had transferred 3 cents each in the **MAT.APPEAL.NO. 465 OF 2013 : 7 :** property to the 6[th] and 8[th] respondents. 7. The court below framed necessary points for consideration and examined the original petitioner as PW1. Exts.A1 to A5 were marked on his side. The husband of deceased 1[st] respondent who is the 8[th] respondent in the O.P. was examined as RW1 and Exts.B1 to B28 were marked on the side of the original respondents. Exts.C1 is the Commission Report prepared by CW1 which has not much relevance in the case. 8. The court below considered the issues relating to partibility of the property as well as the alternative claim for value of the property advanced by the respondents and after appreciating the whole evidence, it held that, Ext.A1 is a valid sale deed transferring undivided half right of the 2[nd] respondent to his son-in-law, the original petitioner. It held that the allegations of fraud and misrepresentation were not proved and further Ext.B5 Cancellation deed dated 7.10.1996 itself is void under law. Consequently, Ext.B2 settlement deed executed by him in favour of 1[st] respondent was also held to be void _ab initio,_ not capable of transferring ## **MAT.APPEAL.NO. 465 OF 2013 : 8 :** any interest in favour of the settlee, his daughter. The building in the property was found by the lower court to be put up by 1[st] respondent with her own funds. On the basis of these findings, the court below passed the impugned preliminary decree declaring equal half right each on the parties. 9. In this appeal, the legal heirs of the deceased 1[st] respondent pursue the same contentions taken by her in the court below. The findings of the lower court are assailed as not sustainable in law and opposed to evidence. The major contention raised is that, the 1[st] respondent herein did not acquire any right under Ext.A1 deed and the property is, therefore, not partible. It was also contended that the building should have been reserved to the share of the deceased 1[st] respondent even after the building was found to be not partible. 10. The points that arise for consideration in this appeal are following: - 1.Whether the property is partible? 2. Whether the appellants are entitled to claim value of ## **MAT.APPEAL.NO. 465 OF 2013 : 9 :** improvements? 11. Partibility of petition schedule property is a serious issue agitated between parties. The original petitioner, the 1[st] respondent in the appeal, claims to be a co-sharer on the strength of Ext.A1 sale deed dated 14.11.1991 executed in his name by his father-in-law, the deceased 2[nd] respondent. Unless Ext.A1 could be shown to be valid and supported by consideration, the 1[st] respondent will not be entitled to claim half right as sought by him in the original petition. The contention of the appellants is that deceased 2[nd] respondent signed the document on the assumption that he was executing the sale deed in the name of his daughter, the 1[st] respondent. The court below, in our view, rightly found that there was no evidence to prove his contention. The best persons who could have given evidence were the 1[st] and second respondents who are not alive to give evidence in the course of the trial proceeding. The 2[nd] husband of 1[st] respondent, who is the 8[th] respondent sought to prove as RW1 that, execution of Ext.A1 by the 2[nd] respondent was under a mistaken belief ## **MAT.APPEAL.NO. 465 OF 2013 : 10 :** that he was transferring the property to his daughter. RW1's knowledge in this regard, presumably is of what he might have heard from his wife and father-in-law. No value can be attached to his evidence in this respect. On the other hand, PW1, the original petitioner said that he purchased the property for consideration and spoke to the circumstances that led to the transaction. Ext.A1 also discloses that it was executed for sufficient consideration received by the executant. The evidence on record, as rightly pointed out by the court below, does not substantiate the case of the appellants that Ext.A1 was created by fraud or misrepresentation. 12. The appellants fall back upon Ext.B5 cancellation deed and Ext.B2 settlement executed by deceased 2[nd] respondent in favour of his daughter, the 1[st] respondent, to contend that the original petitioner has no title and the property is not partible. The question arises is whether the 2[nd] respondent had authority under law to cancel Ext.A1 sale deed by himself without resorting to legal proceedings and to transfer the property in whatever manner he pleased. ## **MAT.APPEAL.NO. 465 OF 2013 : 11 :** The court below took the view that Exts.B2 and B5 deeds are void since the executant could not have under law executed a cancellation deed without the junction of the vendee also as a party. We too agree with the view taken by the court below. 13. A party to a sale deed has no right, by his unilateral act, to cancel the deed for reasons right or wrong. This is because the executant after the execution of the deed is divested of his title and interests leaving no subsisting rights to vest in him. The only remedy available with the 2[nd] respondent was to sue for cancellation of the document, rather than revoking it by means of a registered cancellation deed. Learned counsel for the respondents in this appeal rightly cited a decision in **Pavakkal Noble John** v. **Kerala State & Others [CDJ 2010 Ker HC 618]** which held that a Sub Registrar cannot permit a party to a sale deed to cancel the deed unilaterally without the joinder of the vendee as a party to the deed. Exts.B2 and B5 are therefore void _ab initio_ in any view of the matter. 14. When Exts.B2 and B5 are void _ab initio_ incapable ## **MAT.APPEAL.NO. 465 OF 2013 : 12 :** of conferring any rights on 1[st] respondent, it was not at all necessary for the original petitioner to have sued for the cancellation of the deeds in the O.P. filed for partition, because law would compel a suit for recession or cancellation only when a party has reasonable apprehension that the document, if left outstanding, would cause him serious injury. The appellants have no contention that they or their predecessor had ever prescribed title by adverse possession or the claim for partition itself was barred by limitation. The contention that Ext.A1 was created by fraud and misrepresentation has already been found to be devoid of any merit by the court below as well as by us. Therefore, it is manifestly clear that the 1[st] respondent in this appeal acquired under Ext.A1 deed a valid title to undivided half share in the petition schedule property. Therefore, we hold that the property is partible and the contrary contention of the appellants to the contrary is liable to be rejected. 15. The court below, after analyzing the entire evidence, according to us, came to a right conclusion that ## **MAT.APPEAL.NO. 465 OF 2013 : 13 :** building in the property was put up by 1[st] respondent with her own funds. This conclusion of fact based on evidence needs only to be upheld as correct. There is no evidence available on record to show that petitioner sent any amount to the 1[st] respondent in connection with construction of the building. It is a fact that the permission for construction of the building was taken by the 1[st] respondent in her sole name. RW1, 8[th] respondent, from his personal knowledge said that the deceased had raised funds from various sources including financial institutions. He enumerated the names of lenders who helped her and also sources of money from where funds were raised. On the other hand, PW1 conceded that he did not have documents nor did he maintain any accounts in regard to the alleged spending of money towards construction of the building. In cross examination, he admitted that it was 1[st] respondent who undertook the entire construction of the building. 16. The 1[st] respondent was a Teacher for sometime and after she discontinued her job, she used to earn from business conducted in a shop room. This shows that she ## **MAT.APPEAL.NO. 465 OF 2013 : 14 :** had sufficient income also to complete the construction of the building. The court below relied on Exts.B11 to B13 and B20 in this respect and found that the entire structure was put up with her sole funds. Since the building was put up by the 1[st] respondent, it is no longer a partible asset between the parties. We hold that the building in the petition schedule property is not partible. 17. A co-owner putting up a construction in the common property cannot be equated to a trespasser who makes improvement in a property after wrongful entry. An improvement by a co-sharer could be normally presumed to be made with the knowledge and implied consent of the other sharers depending on the circumstances in the case. The courts of law tend to award compensation for improvement to a sharer in cases where improvement made by him happens to become part of the share of another cosharer at the time of allocation of shares. In other words, when the co-sharer is made to part with the improvements effected by him, to another sharer on final allocation, he is under law entitled to claim the value as a person who ## **MAT.APPEAL.NO. 465 OF 2013 : 15 :** effected improvements believing in good faith that he was entitled to improve the land. In the present case also, there is enough reason to assume that 1[st] respondent constructed the building in good faith believing that she was entitled to proceed with construction since she had acquired Ext.B2 in her name. Ext.C1 report does not indicate the exact part of the property where the building lies. Taking all the aspects into consideration, we are of the opinion that the court below shall have to do equity and take all earnest endeavour to see that the building is allotted to the share of the appellants in the final decree proceeding. 18. The 1[st] respondent has claimed mesne profits at the rate of `5,000/- per month and this was relegated as per the impugned decree to the stage of final decree. The observation of the court below that 1[st] respondent would be entitled to future mesne profits for three years in proportion to his share from the date of O.P. or till delivery of possession whichever event happens earlier, is not in accordance with law. In a suit for partition, the liability of the co-sharer is to account for the income which the common ## **MAT.APPEAL.NO. 465 OF 2013 : 16 :** property yields, in such shares as determined by the court. The share of profits is no synonym for mesne profits which is a monetary liability under law fastened on a person in wrongful possession unlike a co-sharer in possession. A coowner being entitled to share of profits has right to recover the same from his counter part since the date of suit till the actual delivery of property. The court below has rightly relegated the enquiry regarding the rate of profits to the stage of final decree though it was misdescribed as mesne profits. 19. We, therefore, agreeing with the lower court hold that the property is partible in equal half share to appellants and 1[st] respondent. Appellants' plea of impartibility is rejected. The points raised for consideration in this appeal are answered against the appellants. In the result, appeal is dismissed confirming the preliminary decree dated 20.4.2013 passed by the Family Court, Thrissur in O.P.No.1003/2002. The court below while passing final decree shall take all efforts to allot the building in the plaint schedule property to the share of the **MAT.APPEAL.NO. 465 OF 2013 : 17 :** appellants. Parties will suffer the respective costs. Sd/- **C.K.ABDUL REHIM JUDGE** Bb Sd/- **T.V.ANILKUMAR, JUDGE** _[True copy] P.A to Judge_