Suresh Babu v. Valsala and others

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE C.K.ABDUL REHIM & THE HONOURABLE MR. JUSTICE R. NARAYANA PISHARADI MONDAY, THE 6TH DAY OF AUGUST 2018 / 15TH SRAVANA, 1940 RFA.No. 223 of 2018 ARISING FROM PRELIMINARY DECREE AND JUDGMENT OF SUB JUDGE, CHAVAKKAD IN ORIGINAL SUIT NO.50/2016 DATED 27-10-2017 ## APPELLANT/DEFENDANT SURESH BABU, AGED 48 YEARS, S/O.AYINIPULLI SUBRAMANIYAN, VAZHAPPULLY DESOM, PERAKOM AMSOM, CHAVAKKAD TALUK, P.O.PERAKOM PIN-680 506 BY ADV.SMT.P.K.PRIYA ## RESPONDENTS/PLAINTIFFS: 1. VALSALA, AGED 70 YEARS, W/O.SUBRAMANIYAN AYINIPULLY, VAZHAPPULLY DESOM, PERAKOM AMSOM, CHAVAKKAD TALUK, P.O.PERAKOM PIN – 680 506, NOW RESIDING AT THAIVALAPPIL VEETTIL, MAMMIYUR DESOM, GURUVAYUR AMSOM, PIN – 680 101. 2. SUPRABHA, AGED 42 YEARS, W/O.KALLUNGAL BABU, CHOWANNUR VILLAGE AND P.O., THALAPPILLY TALUK, PIN – 680 517. 3. SANGEETHA, AGED 39 YEARS, W/O. THAIVALAPPIL SURENDRAN, MAMMIYUR DESOM, GURUVAYUR AMSOM, PIN – 680 101. R1-3 BY ADV. SRI.P.RAMACHANDRAN THIS REGULAR FIRST APPEAL HAVING BEEN FINALLY HEARD ON 01-08-2018, THE COURT ON 06-08-2018 DELIVERED THE FOLLOWING: ## **C.K.ABDUL REHIM &** ## **R.NARAYANA PISHARADI, JJ.** *************************** R.F.A.No.223 of 2018 ---------------------------------------------Dated this the 6[th] day of August, 2018 ## **JUDGMENT** ## **R.Narayana Pisharadi,J** The appellant is the defendant and the respondents are the plaintiffs in a suit for partition. The court below passed a preliminary decree for partition of the plaint schedule property. The defendant has come up in appeal challenging the decree. 2. The first plaintiff is the wife of late Subrahmanian. The second and the third plaintiffs and the defendant are his children. The plaint schedule property belonged to late Subrahmanian. One Kumaran had got assignment of undivided right in the property. The plaintiffs and the defendant and Kumaran executed and registered Ext.A1 partition deed in the year 2001. As per that partition deed, R.F.A.No.223/2018 2 the plaint schedule property was set apart to the common share of the plaintiffs and the defendant. The plaintiffs demanded partition of that property. The defendant rejected their demand. Therefore, the plaintiffs filed the suit for partition of the plaint schedule property into four equal shares and allotment of three such shares to them jointly. 3. The defendant resisted the claim for partition of the plaint schedule property mainly on two grounds. He pleaded that he had given 65 sovereigns of gold ornaments each for the marriage of the second and the third plaintiffs and he had met the expenses in connection with their marriage. He also pleaded that he had met the expenses of the education of the second plaintiff. He pleaded that at the time of the marriage of the second and the third plaintiffs, they had orally relinquished their right in the plaint schedule property. He further contended that it was agreed by the parties that the first plaintiff would have only the right to reside in the R.F.A.No.223/2018 3 house in the property and to take the income from it. The defendant also raised another plea that the suit is bad for partial partition. 4. During the trial of the suit, the first plaintiff was examined as PW1 and Ext.A1 document was marked on the side of the plaintiffs. The defendant was examined as DW1 and Exts.B1 to B3 series documents were marked on his side. The court below found that there can be no oral relinquishment of right in an immovable property having the value of more than one hundred rupees. The court below also found that the plea of the defendant that the suit is bad for partial partition is not sustainable. Accordingly, the court below passed a preliminary decree for partition of the plaint schedule property into four equal shares and allotment of three such shares to the plaintiffs and one share to the defendant. 5. We have heard the learned counsel for the appellant R.F.A.No.223/2018 4 as well as the respondents. 6. There is no dispute with regard to the relationship between the parties. There is no dispute with regard to the fact that the plaint schedule property originally belonged to Subrahmanian and that one Kumaran had purchased undivided right in that property. There is also no dispute with regard to the fact that the plaintiffs and the defendant and Kumaran executed and registered Ext.A1 partition deed and the plaint schedule property was set apart to the common share of the plaintiffs and the defendant in that partition. Normally, it would mean that the plaintiffs and the defendant are co-owners of the plaint schedule property. 7. However, the defendant set up a plea that he had met the entire expenses in connection with the marriage of the second and the third plaintiffs and also with regard to the education of the second plaintiff and therefore, the plaintiffs orally relinquished their right in the plaint schedule R.F.A.No.223/2018 5 property in his favour and they had ceased to be the coowners of the property. 8. The plea of oral relinquishment of right in an immovable property, having the value of more than one hundred rupees, is not legally sustainable. Oral relinquishment of the right in an immovable property by a person in favour of another amounts to transfer of such right. Then, the law requires that it shall be reduced to writing and if the value of the immovable property is more than one hundred rupees, it shall be registered. 9. When there is a relinquishment of right over the immovable property, the value of which is more than one hundred rupees, it should be evidenced by a registered document (See **Kannan v. Meenakshi : 2013 (2) KLT 847: 2013 (2) KHC 815** ). The relinquishment of share to be legally effective should be by a registered deed. Oral relinquishment cannot divest the rights of a person in an 6 R.F.A.No.223/2018 immovable property (See **Vasanti v. Pharez John Abraham: AIR 2007 Kar 121** ). 10. True, binding family arrangements dealing with immovable property worth more than hundred rupees can be made orally (See **Subraya v. Vittala : AIR 2016 SC 3236** ). But, in this case, the defendant has not pleaded any family arrangement. He has also not set up a plea of oral partition. 11. The plea of the defendant that the suit is bad for partial partition is negatived by the court below. The plea of the defendant is that there is a paddy field which belongs to the parties and that the plaintiffs have not included that property as an item liable to partitioned. The lower court found that the aforesaid property belonged to the mother of Subrahmanian and apart from the plaintiffs and the defendant, there are other persons who are co-owners of that property. The defendant did not produce any document R.F.A.No.223/2018 7 to show that there was any other property which jointly belonged to him and the plaintiffs. Therefore, the court below has rightly negatived the plea that the suit is bad for partial partition. 12. In **Meenakshi Amma v. Kalliani Amma (2010 (4) KHC 282: ILR 2010 (4) Kerala 449)** , a Division Bench of this Court has held as follows: _“The general rule is that there cannot be a partial partition. But, there is no invariable rule that a suit has to fail merely due to seeking of partial partition. Partial partition may be in respect of parties or it may be in respect of properties. Normally, when a suit for partition is laid, it is presumed that all the properties, which are available for partition, are included. However, it does not mean that it is mandatory that all the properties should be included for seeking partition. The co-sharers may decide to keep some items in common and seek partition in respect of some other items”._ 13. In **Gopalan v. Vasu (1986 KLT 1100)** , it has been held that the rule against partial partition is only one of prudence and convenience and that a suit for partition of co- R.F.A.No.223/2018 8 ownership properties cannot be thrown out on the ground of partial partition. 14. But, in the instant case, it is not necessary to delve deep into the question of non-maintainability of the suit for partial partition because the defendant did not produce any document to prove that any other property jointly belonged to him and the plaintiffs. 15. In the aforesaid circumstances, we see no sufficient ground to interfere with the preliminary decree for partition of the plaint schedule property passed by the court below. Consequently, we dismiss the appeal. The parties shall suffer their respective costs in the appeal. (sd/-) ## **C.K.ABDUL REHIM, JUDGE** (sd/-) **R.NARAYANA PISHARADI, JUDGE** jsr