Sainaba v. Alavi s/o Parappan Mammed and others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** **THE HONOURABLE MR.JUSTICE THOMAS P.JOSEPH** **THURSDAY, THE 20TH DAY OF JUNE 2013/30TH JYAISHTA 1935** ## **RFA.No. 35 of 2004 (D)** **-------------------------------[AGAINST THE JUDGMENT AND DECREE IN O.S.NO.105/1993 OF THE SUB COURT, MANJERI DATED 30-08-2003]** **..........** ## **APPELLANT/PLAINTIFF:** **-----------------------------------** **SAINABA, D/O. KODALAYIL AHAMMED, AGED 45 YEARS, PANDIKKAD AMSOM DESOM, ERNAD TALUK, MALAPPURAM DISTRICT.** ## **BY ADV. SRI.P.V.KUNHIKRISHNAN.** ## **RESPONDENTS/DEFENDANTS NO.4 TO 21 IN O.S.:** **------------------------------------------------------------------------** ## **1. ALAVI S/O.PARAPPAN MAMMED, 52 YEARS.** ## **2. AMBADAN MUHAMMAD'S SON,** - **MUHAMMAD, 50 YEARS.** **3. CHEVIDIKUNNAN MAMMAD'S SON, MUHAMMAD, 28 YEARS.** **4. PUZHAKKAL MAMMAD MASTER'S SON, MUHAMMAD SHEREEF, 35 YEARS.** ## **5. KOLLARANTHODI MUHAMMAD'S SON, MUHAMMADALI, 38 YEARS.** ## **6. PODUVANNI KUNHIMUHAMMAD, S/O. MARIYUMMA, 30 YEARS.** **7. P.V.AHAMMADKUTTY, 35 YEARS, S/O. ALIKUTTY.** ## **8. DECEASED 1ST DEFENDANT'S WIFE KUNNUMMAL VEERANKUTTY'S DAUGHTER SAINABA, 35 YEARS.** **Prv.** ## **R.F.A.NO.35/2004-D:** **9. SON- ERUFAN, MINOR, 2 YEARS, (BY GUARDIAN R8).** - ***10. DECEASED 2ND DEFENDANT'S CHILDREN KONTHRATH KUNHALAVI'S CHILDREN POCKER, 70 YEARS *(DIED).** ***THE 10TH RESPONDENT DIED AND RESPONDENTS 11 AND 12 ARE RECORDED AS THE LEGAL REPRESENTATIVES OF THE 10TH RESPONDENT AS PER ORDER DTD. 28/09/05 IN I.A. 2940/05.** ## **11. SISTER KADIYUMMA, 32 YEARS.** **12. SULAIKHA, 28 YEARS.** **13. DECEASED 3RD DEFENDANT PARAPPAN MOIDEEN'S CHILDREN, MUHAMMAD, 28 YEARS.** **14. BROTHER SULAIMAN, 24 YEARS.** **15. SISTER SUBAIDA, 26 YEARS.** **16. BROTHER IBRAHIM, 20 YEARS.** **17. SISTER SUHARA, MINOR 15 YEARS, (R17 BY R18).** **18. MOTHER OF D16 TO 20 AND WIFE OF DESEASED MOIDEEN SARA, 55 YEARS.** - **(R2 & R3 TO R12 WERE RESIDING AT PANDIKKAD AMSOM, DESOM, ERNAD TALUK, MALAPPURAM DISTRICT, R1 AND R13 TO R18 WERE RESIDING AT VELLAYOOR AMSOM. DESOM, ERANAD TALUK, MALAPPURAM).** ## ***ADDITIONAL RESPONDENTS 19 & 20 IMPLEADED:** **19. K.T. YOUSUFF, S/O. ABOOBACKER, KUNNATHODI HOUSE, PANDIKAD (P.O), MALAPPURAM.** **Prv.** ## **R.F.A.NO.35/2004-D:** **20. NOORMUHAMMED, S/O. ALIKUTTY, PUTHANVEETIL, PANDIKKAD. (P.O), MALAPPURAM DISTRICT.** ***ADDL. RESPONDENTS 19 AND 20 ARE IMPLEADED AS PER ORDER DATED 20/06/2013 IN I.A. NO.1059/2005.** **R1,R15,R17,R18 BY ADVS. SRI.T.K.AJITH KUMAR, SRI.P.B.KRISHNAN, R7, ADDL.R19 & R20 BY ADV. SRI.M.P.MOHAMMED ASLAM, R8 & R9 BY SRI.M.M.ABDUL AZIZ, SENIOR ADVOCATE, SRI.M.A.ABDUL HAKHIM.** **THIS REGULAR FIRST APPEAL HAVING BEEN FINALLY HEARD ON 20-06-2013, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **Prv.** ## **R.F.A.NO.35/2004-D:** ## **APPENDIX** ## **PETITIONER'S ANNEXURES:** **ANNEXURE A: COPY OF THE ASSESSMENT DEED NO.1563/92 DT. 20/10/2003. ANNEXURE B: COPY OF THE LAWYER NOTICE WITH THE ACKNOWLEDGEMENT CARD DT. 16/02/2005.** **RESPONDENTS' ANNEXURES:** **ANNEXURE R.19(A): COPY OF THE OWNERSHIP CERTIFICATE ISSUED BY THE SECRETARY, SPECIAL GRADE GRAMA PANCHAYATH, PANDIKKAD DT. 01/04/07.** - **ANNEXURE R.19(B): COPY OF THE LOW TENSION ELECTRICITY SUPPLY AGREEMENT DTD. 14/06/2007.** - **ANNEXURE R.19(C): COPY OF THE COMPLAINT DTD. 07/10/2007.** - **ANNEXURE R.19(D: COPY OF THE LETTER DTD. 17/02/2005 ISSUED TO THE HUSBAND OF THE PETITIONER.** ## **//TRUE COPY//** ## **P.A. TO JUDGE.** **Prv.** ## **THOMAS P. JOSEPH, J** - - - - - - - - - - - - - - - - - R.F.A.35 OF 2004 - - - - - - - - - - - Dated this the 20[th] day of June, 2013 - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - ## **JUDGMENT** This appeal arises from the judgment and decree dated 30.08.2003 of the learned Sub Judge, Manjeri in O.S.105 of 1993. Parties are referred as plaintiffs and defendants as in the trial Court for convenience. 2. The appellant/plaintiff claimed that the suit properties belonged to the Tarwad of the plaintiff and defendants 1 to 4. Geniology is given in schedule 1 of the plaint. Properties sought to be partitioned are shown in schedule 2. Defendants 1 to 3 died pending the suit. Defendants 11 and 12 are legal representatives of the 1[st] defendant. Defendants 13 to 15 are legal representatives of the 2[nd] defendant. Defendants 16 to 21 are legal representatives of the 3[rd] defendant. Plaintiff claimed that she was staying with the 1[st] defendant for quite some time (until her marriage) and on 5.1.1993, she requested for **R.F.A.35/04** 2 partition and separate possession of her share. 1[st] defendant informed her about partition of the property in the year, 1969 as per a registered documents. Plaintiff claimed that she is neither a party nor was aware of the said partition deed and hence she is entitled to get partition of the suit property in the way she claimed in the plaint. 3. The contesting defendants resisted the suit. They claimed that the plaintiff was represented in the partition deed by her brother as guardian and that she is bound by the partition deed. They also raised a contention that the plaintiff, by her conduct contention has ratified and accepted the partition deed of the year, 1969 and hence is not entitled to seek fresh partition. 4. The trial Court found that partition deed of the year, 1969 (neither the original nor its copy is produced and marked in the case) is void as against the plaintiff since she was represented by her brother **R.F.A.35/04** 3 who is not her natural or legal guardian as per Mohammedan law. But the trial Court took the view that partition of the year 1969 has been accepted and ratified by the plaintiff and hence she cannot claim fresh partition. The Suit was dismissed. That dismissal is under challenge. 5. The learned counsel for the appellant/plaintiff contends that since the trial Court also found that partition deed of the year 1969 is void as against the plaintiff, question of its ratification by the plaintiff does not arise. Reliance is placed on the decision in **Saidu v. Amina and Others (1970 KLT 430).** It is further contended that Ext.X1, the written statement (allegedly) filed by the plaintiff in O.S.104 of 1990 (filed by the 4[th] defendant) cannot be taken as a ratification of the partition effected as per the impugned partition deed of the year 1969. The learned counsel asserted that it is only in the year, 1993 when 1[st] defendant informed the plaintiff about the said partition deed that she learned about it. **R.F.A.35/04** 4 6. The learned counsel for the contesting defendants and respondents 19 and 20, the assignees of the property (prior to Suit) contended that it is possible to ratify the partition deed of the year, 1969 assuming that the plaintiff was not party to the said deed and that evidence would show that there was unambiguous ratification and acceptance of the partition of the deed of the year, 1969 at the instance of the plaintiff. 7. So far as the impugned partition deed of the year, 1969 is concerned, it is seen that though a copy of the partition deed was produced along with the plaint, the same was not exhibited in evidence. But both sides proceeded on the basis that a registered partition deed was executed in the year 1969. In that partition deed the plaintiff was described as a minor and represented by her brother as guardian. The trial Court found and rightly that under the Mohammedan law the brother could not be the legal guardian of the **R.F.A.35/04** 5 sister. Hence if the plaintiff was a minor at the time of the impugned partition deed, that document can only be treated as void to the extent it concerns the plaintiff. 8. In the decision relied on by the learned counsel and cited supra question considered was whether a sale deed executed on behalf of a muslim minor by a defacto guardian could be ratified by the minor on attaining majority. This Court held that so far as Mohammedan law is concerned the transactions made by the defacto guardian on behalf of the minor is void and as such no question of ratification arose. That is a case where the minor, on attaining majority took steps to avoid the transfer. 9. In this case, plaintiff is described as a minor in the partition deed of the year 1969. Ext.A1 is the SSLC book of the plaintiff where her date of birth is shown as 15.6.1948. In that case, she had attained the age of 21 years on the date of execution of the **R.F.A.35/04** 6 impugned partition deed. From Ext.A1 it is clear that the plaintiff was a major at the time the partition deed was executed in the year, 1969 but she was represented by a guardian. Therefore, it can be treated that the plaintiff was not even an eo nominee party to the partition deed. 10. Unlike in the case of other transactions, partition could be oral, the rule being that if partition is effected by a document, it has to be registered if it is in respect of immovable property worth more than Rs.100/-. 11. Ext.X1 is the written statement dated 29.05.1991 filed by the plaintiff, in O.S.104 of 1990 filed by the 4[th] defendant. It is not very much in dispute that the 4[th] defendant sued for partition of the Tarwad properties. Ext.X1 shows that items set apart to the share of plaintiff in the impugned partition deed of the year 1969 were also sought to be partitioned in O.S.No.104 of 1990. Answering the plaint in O.S.104 **R.F.A.35/04** 7 of 1990, the plaintiff contended in Ext.X1 that schedule properties therein (which admittedly takes in items allotted to the plaintiff as per the impugned partition deed of the year 1969) are not in the joint possession of the 4[th] defendant and others as averred in the plaint in O.S.No.104 of 1990. The plaintiff asserted in Ext.X1 that the properties were partitioned as per the impugned partition deed of the year, 1969 and that property was set apart to the share of the plaintiff. 12. The plaintiff has a contention that Ext.X1 does not amount to a ratification of execution of the partition deed of the year 1969. According to her, the 1[st] defendant got her signature in blank papers and that was made use of for preparing Ext.X1. I am unable to accept that contention. The plaintiff is not an illiterate lady. She is a teacher by profession. It is unlikely that she gave signed blank papers. The trial Court has observed that the plaintiff, as a defendant in O.S.104 of 1990 was represented by a **R.F.A.35/04** 8 senior lawyer of Manjeri Bar. In Ext.X1 the plaintiff has sworn by the partition deed of the year, 1969. She further says in Ext.X1 that she sold an item of property allotted to her in the partition deed of the year 1969 to Ambadan Muhammad (the 5[th] defendant herein). In such situation I can only hold Ext.X1 as a ratification and acceptance of the partition deed of the year, 1969. 13. A further fact I must notice is Ext.B4, registered document of the year, 1992 whereby the husband of the plaintiff purchased a portion of property allotted to the 3[rd] defendant as per partition deed of the year, 1969. It is not very much in dispute that plaintiff and her husband were staying together at the time of Ext.B4. It is difficult to say that plaintiff was unaware of her husband purchasing the property as per Ext.B4. 14. The plaintiff has a contention that she was unaware of the partition deed of the year, 1969 until **R.F.A.35/04** 9 the 1[st] defendant gave that information in the year 1993. Prima facie, that plea cannot be accepted. For, in Ext.X1 dated 29.5.1991, plaintiff has referred to the partition deed of the year, 1969. 15. Yet another contention that plaintiff has advanced is that there is fraud in getting the partition deed of the year 1969 executed showing the plaintiff as a minor and represented by the defacto guardian. Assuming so, plaintiff did not challenge the partition deed within the time the law has provided. More over, in the light of Ext.X1 and Ext.B4 the said contention cannot also be accepted. 16. I must also notice that though the impugned partition deed is of the year, 1969, the Suit for partition comes only in the year, 1993. True that if plaintiff were not a party to the partition deed, she can ignore the same and seek partition at any time. But that contention, I said, is not available to the plaintiff. If that be so, the plaintiff ought to have 10 ## **R.F.A.35/04** filed the Suit at any rate, within three years of her attaining majority which also did not happen. 17. For the above reasons, I do not find merit in this appeal. Resultantly, - i.Appeal fails and it is accordingly dismissed. - ii.Parties are directed to suffer their cost in the appeal. ## **Sd/- THOMAS P. JOSEPH, Judge** mrcs //true copy// P.A.To Judge