V.K. Ravindranathan v. Tulasi Ramadas and Meenakshikutty alias Thankamma and P. Radhakrishnan

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT** **THE HONOURABLE MRS. JUSTICE SHIRCY V.** **MONDAY, THE 18TH DAY OF MARCH 2019 / 27TH PHALGUNA, 1940** **AS.No.273 of 2003** **AGAINST THE JUDGMENT IN OS 106/1996 of SUB COURT, OTTAPPALAM DATED 31-10-2002** ## **APPELLANT/3RD DEFENDANT:** **V.K.RAVINDRANATHAN S/O KRISHNAN NAMBOODIRI “SREE SAILAM”, KARIMBA P.O.KARIMBA, PALAKKAD DISTRICT.** **BY ADVS. SRI.R.RAJESH KORMATH SMT.BIJIMOL JOSE SMT.SANJANA R.NAIR SRI.ANISH S.AMBADY** ## **RESPONDENTS/(PLAINTIFFS AND DEFENDANT NO.2):** **1 TULASI RAMADAS W/O RAMADAS, B-12, NEW SHRENIK SOCIETY ASHOK NAGAR, NAHUR ROAD, MULUND WEST, MUMBAI- 400 080 2 MEENAKSHIKUTTY ALIAS THANKAMMA W/O K.P.T. KUTTY, EKSAR ROAD, BORIVILI WEST, MUMBAI- 400 092** **3 P. RADHAKRISHNAN S/O V.K. KERALA VARMA, B-9, GREENLAND CO-OPERATIVE SOCIETY LTD,SECTOR 16-A, VASHI, NEW MUMBAI-400705** **BY ADVS. SRI.T.C.SURESH MENON A. KRISHNAN SRI.A.KRISHNAN SRI.T.C.SURESH MENON** **THIS APPEAL SUITS HAVING BEEN FINALLY HEARD ON 18.03.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** AS.No.273 of 2003 2 ## **JUDGMENT** The 3[rd] defendant in O.S.No.106/1996 on the file of the Subordinate Judge's Court, Ottapalam has preferred this appeal being aggrieved by the judgment and decree passed against him in the suit for partition filed by the respondents 1 and 2/plaintiffs . 2. Facts relevant for disposal of this appeal are as follows: The plaintiffs and the 2[nd] defendant are the children of one V.K.Kerala Varma @ Appan Thampuran .The suit properties originally belonged to Appan Thampuran alias V.K. Kerala Varma as per assignment deed No. 1791/77 of S.R.O. Palakkad. He executed a Will deed and registered as document No. 64/84 whereby he bequeathed all his properties equally among his children, the plaintiffs (daughters) and the 2[nd] defendant( son). Kerala Varma expired on 29.6.1994. The 2[nd] defendant is in management of the properties with the help of the 1[st] defendant. The 3[rd] defendant is residing in the residential building situated in the property under a licence from Appan Thampuran. Though he was requested to quit and leave the building after the death of AS.No.273 of 2003 3 their father, he did not vacate the premises. The suit is for partition of the properties with future profits. 3. Defendant No.1, who is the mother of the plaintiff and defnendant No.2 who is the brother of the plaintiff admitted the plaintiffs' case by filing a common written statement. 4. The 3[rd] defendant filed written statement inter alia contending that the mother of Appan Thampuran @ Kerala Varma was Ikku Thampuratty. Her sister was Manku Thampuratty. Kavu Thampuratty is the daughter of Manku Thampuratty. The 3[rd] defendant is the son of Kavu Thampuratty and he got three brothers namely Vikraman alias Rama Varma, Anujan alias Kerala Varma and Vikraman alias Aniyan. Among them, Vikraman expired. 1 acre 80 cents of land out of the plaint schedule properties was already disposed of in the year 1978. By a document executed in the year 1982, 37 cents out of the 2[nd] item was also disposed of. But that property is also included in the plaint schedule. The father of the plaintiffs, Appan Thampuran had no right over the properties as the properties are owned and possessed by the 3d defendant. In 1970 Appan Thampuram and the 3[rd] defendant's brother Anujan had purchased 12 acres of land. The same was acquired for AS.No.273 of 2003 4 construction of houses for the Housing Board in the year 1973 for an amount of Rs.1,35,000/-. After settlement of all the liabilities, they got Rs.58,500/- in the year 1975. The defendant and his brothers along with Appan Thampuram decided to purchase 30 acres of land for an amount of Rs.1,50,000/-. But the fund was insufficient and therefore they availed a loan of Rs.31,500/- from the plaintiffs' father Appan Thampuran and a pronote was executed for the same and the amount was deposited in State Bank of India. Later when they contacted Sri Thiruvappad, the owner of the property, he had insisted to get the whole amount for the property and Thiruvappad had sent a lawyer notice and later they gave an amount of Rs.1,48,150/after deducting the liabilities due to rubber board. An agreement was executed with an advance amount of Rs.1,00,000/-. On 10.5.1975 Thiruvappad handed over possession of the plaint schedule properties to the 3[rd] defendant and his brothers and they sold 6 acres of land and settled the debt of Thiruvappad. An amount of Rs.20,000/- was given to Appan Thampuran with interest of Rs.11,500/- Appan Thamapuran insisted for a registered deed in his name when the loan was availed and agreed to re-register the properties when the loan is settled. AS.No.273 of 2003 5 Thus the properties were registered in favour of Appan Thampuran but he failed to re-register the properties. The 3[rd] defendant was residing in the property on the belief that the properties would be registered in his favour by Appan Thampuram. In fact, the father of the plaintiffs or the plaintiffs have no right over the property. 5. Before the court below, PW1 was examined and Exts.A1 to A6 were marked for the plaintiffs. DW1 and DW2 were examined and Exts.B1 to B11 series were marked on the side of the defendants. On consideration of the entire evidence on record the court below passed a preliminary decree for partition of the property as prayed for by the plaintiffs. 6. Heard the learned counsel for the appellants/ 3[rd] defendant and the learned counsel for the respondents/plaintiffs. 7. The plaint schedule properties are six items in different survey numbers of Mannarkad Taluk. The plaintiffs and the 2[nd] defendant are the children born to Appan Thampuran alias V.K.Kerala Varma and Padmadevi Amma, the 1[st] defendant. During the pendency of the suit, the 1[st] defendant expired. According to the plaintiff, the plaint schedule properties originally belonged to Appan Thampuram as per assignment deed No. AS.No.273 of 2003 6 1799/1977 dated 30.3.1977. Ext.A1 is the copy of assignment deed No.1799/77 and Ext.B1 is the original assignment deed. As per this assignment deed, the properties scheduled therein stand in the name of Appan Thampuran. The properties scheduled in the plaint are the properties scheduled in the assignment deed. According to the plaintiffs, Appan Thampuran had alienated certain properties as per assignment deed Nos. 2236/1982 (Ext.A3) and 3753/82 (Ext.A4) and he was holding possession of the balance property. It is also the case of the plaintiffs that their father had availed subsidiary from the Rubber Board and Ext.A6 series are the notices issued from the Rubber Board on various dates. Ext.A5 is a legal opinion dated 8.2.1978 of one Advocate Subramania Iyer regarding availing of loan by mortgaging the properties by Appan Thampuran. These documents would prove that the title holder of the properties was Appan Thampuran. According to the plaintiffs while so he had sought for the help of the 3[rd] defendant to manage the property in his absence as a care taker/licencee and their definite case is that the 3[rd] defendant had absolutely no right in the properties. Appan Thampuran later executed Ext.A2 Will deed and registered it as document No.64/84 before the SRO Palakkad bequeathing AS.No.273 of 2003 7 the properties in favour of the plaintiffs and the 2[nd] defendant. On his death, the will deed had taken effect and the properties are in the possession and enjoyment of the plaintiffs and the 2[nd] defendant and the 3[rd] defendant continued to reside in the residential building in the property as permitted by Appan Thampuram and later by his legal heirs. 8. According to PW1, the 1[st] plaintiff when they approached the 3[rd] defendant and informed that they could manage the property, he was not ready to vacate the premises as agreed previously and that has necessitated in filing the suit for partition to have separate possession and enjoyment of their respective shares by the share holders. 9. So it is discernible that the 3[rd] defendant is only a licensee of the plaint schedule properties. But he is claiming right over the properties on the basis of Ext.B7 an agreement entered into between himself (the 3[rd] defendant), his brothers and the assignor of Ext.B1. Ext.B7 is a sale agreement dated 3.5.1975 for a total sum of Rs.1,50,000/- with certain liabilities due to the Rubber Board. The time fixed for execution of the document was one year from the date of execution of the agreement for sale. According to the 3[rd] defendant on the basis of Ext.B7, the AS.No.273 of 2003 8 possession of properties had been given to him and his brothers and they were holding the same. The 3[rd] defendant also submitted that he had availed a loan for a sum of Rs.31000/from the father of the plaintiffs and the said amount had been settled and a promissory note was executed as the plaintiffs' father insisted for the same and execution of Ext.B1 in his favour was on the basis of the non-payment of the said amount. It is also the case of the 3[rd] defendant that Appan Thampuram, the plaintiffs father agreed to cancel Ext.A1 assignment deed and execute document in his favour when the loan amount was repaid and thus he continued to be in possession of the properties. To substantiate his case he relies on the tax receipt, water tax receipt etc. It is well settled that payment of tax will not confer any right over the property on the person who remit the tax. In _**Nevin Raju v Basheer (2015 (3) KLT SN 4 (C.No.6**_ ) it was observed by this court that Payment of land tax or mutation will not enable the person who paid it to claim better title or, any way affect the adjudication of the disputes between the parties. Moreover, Ext.B7 is challenged by the plaintiffs as a concocted document executed by the 3[rd] defendant so as to snatch away the property of the plaintiffs. Firstly Ext.B7 is not styled as a legal AS.No.273 of 2003 9 document executed on a stamp paper. The execution is on a simple plain paper. Secondly the scribe as well the witnesses to B7 were not examined to prove the genuineness of the document. Thirdly, the time fixed for execution of the sale deed was over long back to execution of Ext.A1/B1. In Ext.A1/B1, there is reference about Ext. B7 agreement to the effect that the purchasers had obtained possession of the property on 10.5.1975 which was handed over on the basis of the agreement dated 3.5.1975 (Ext.B7). It is also discernible from the recital of Ext.A1/B1 that the possession of the properties was with Appan Thampuran even before the assignment deed and thus he had the title and possession of the property as on 30.3.1977. So even if by Ext.B7 any one had any kind of possession over the property for a short period from 3.5.1975 to 10.5.1975 that was taken back by the assignors of the property and thereafter the title deed was executed for the properties in favour of the father of the plaintiffs and the 2[nd] defendant. 10. The plaintiffs have a case that as per Ext.A2 Will deed, the properties had been bequeathed in favour of the plaintiffs and the 2[nd] defendant, the children of Appan Thampuran and Padmadevi Amma, the 1[st] defendant. Of-course none of the AS.No.273 of 2003 10 attesting witnesses to the will deed were examined to prove it's execution. 11. The learned counsel for the 3[rd] defendant relying on the decision of the Division Bench of this Court in **Sarada and Others v. Radhamni and others [ 2017 (2)KHC 527]** argued that a Will deed shall not be used as evidence until one attesting witness at least has been examined even if its execution is not specifically denied. 12. The Division Bench while answering a reference has held in paragraph No.16 that: “There is a world of difference between the factum of a document akin to the Will being admitted under S. 58 of the Act and poof of due execution of the Will under S. 68 of the Act. The due execution of the will cannot be proved otherwise than by recourse to S.68 of the Act and S.63 of the Indian Succession Act ,1925 as has been held time and again..............''. 13. Notably, in the present case the pleadings as well the reliefs sought for would show that the plaintiffs had mainly sought for division of the plaint schedule properties into three equal shares and to allot 2 such shares to them and one such share to the 2[nd] defendant as the legal heirs of Appan Thampuran, on his death. Admittedly, the legal heirs of Appan AS.No.273 of 2003 11 Thampuran and Padamdevi Amma are the plaintiffs and the 2[nd] defendant. So on the death of Appan Thampuran, the property devolved upon his legal heirs who are already in the party array. Padamdevi Amma, their mother died during the pendency of the suit. So the plaint schedule properties are only to be divided into three equal shares and the plaintiffs are entitled to get 2/3 shares out of the total shares and the 2[nd] defendant is entitled to get 1/3 share and therefore, even if Ext.A2 execution of the will deed was not proved, the plaintiffs are entitled to get 2/3 shares out of the total three shares as prayed for. A decree for partition of the properties could be granted without considering the will deed, and it is not used as evidence to decide the issue. 14. The court below has decreed the suit allotting 2/3 shares to the plaintiffs and one share to the 2[nd] defendant, the only legal heirs of deceased Appan Thampuran as well Padmadevi Amma. There no merit in the appeal and it deserves a dismissal and I do so. The parties shall bear their respective costs. Accordingly, the appeal is dismissed. Sd/- **SHIRCY V,** Ks **JUDGE** AS.No.273 of 2003 12