Kerala High Court
Velammal vs Kalimuthu on 2 July, 2025
RFA No.146/2020
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IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE C.PRATHEEP KUMAR
WEDNESDAY, THE 2ND DAY OF JULY 2025 / 11TH ASHADHA, 1947
RFA NO. 146 OF 2020 (E)
AGAINST THE JUDGMENT AND DECREE DATED 31.01.2020 IN OS
NO.60 OF 2017 OF ADDITIONAL SUB COURT, KOTTAYAM
APPELLANTS/PLAINTIFFS & DEFENDANT NO.2:
1 VELAMMAL
AGED 65 YEARS, D/O.LATE S.PERUMAL,
HOUSE NUMBER 290, KOSAMATTOM COLONY,
PARAMPUZHA.P.O., KOTTAYAM TALUK,
KOTTAYAM DISTRICT, PIN-686004.
2 P.MARIYAMMAL
AGED 55 YEARS, S/O.LATE S.PERUMAL,
HOUSE NO.15/A, NETHAJI NAGAR, MULLAMKUZHY,
KOTTAYAM COLLECTORATE.P.O., KOTTAYAM TALUK,
KOTTAYAM DISTRICT, PIN-686002.
3 P.VALLY
AGED 61 YEARS, D/O.LATE S.PERUMAL,
HOUSE NUMBER XE 751, HARI BHAVAN HOUSE,
KUNNUKUZHY CHIRA, SUB JAIL ROAD, KOTTAYAM
COLLECTORATE.P.O., MUTTAMBALAM VILLAGE,
KOTTAYAM TALUK, KOTTAYAM DISTRICT, PIN-686002.
BY ADV SRI.JACOB E SIMON
RESPONDENTS/DEFENDANT NOS.1 & 3:
1 KALIMUTHU,
AGED 57 YEARS, S/O.LATE S.PERUMAL,
HOUSE NUMBER 3, MUNICIPAL COLONY,
SUB JAIL ROAD, KOTTAYAM COLLECTORATE.P.O.,
NATTASSERY KARA, MUTTAMBALAM VILLAGE,
KOTTAYAM TALUK, KOTTAYAM DISTRICT,
PIN-686002.
RFA No.146/2020
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2 SPECIAL TAHSILDAR (LA) RAILWAY,
KOTTAYAM, M.M.M., BUILDING,
BACKER HILL ROAD, KOTTAYAM, PIN-686001.
BY ADV SRI.A.K.HARIDAS -R1
SMT.SYLAJA,GOVERNMENT PLEADER-R2
THIS REGULAR FIRST APPEAL HAVING BEEN FINALLY HEARD
20.06.2025, THE COURT ON 02.07.2025 DELIVERED THE FOLLOWING:
RFA No.146/2020
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JUDGMENT
Dated this the 2nd day of July, 2025 The plaintiffs 1 and 2 and the 2nd defendant in O.S. No.60/2017 on the file of Additional Sub Court, Kottayam are the appellants. (For the purpose of convenience, the parties are referred to as per their rank before the trial court).
2. The plaintiffs filed the above suit for partition. The plaintiffs 1 and 2 and the 2nd defendant are the daughters and the 1st defendant is the son of late Perumal, who died intestate on 25.9.1985. His wife Madathiammal died on 18.5.1986. The 3 rd defendant is the Special Tahsildar (LA) Railway, Kottayam, who is impleaded only as a formal party, as the compensation in respect of acquisition of the scheduled property is to be disbursed by him. Admittedly, plaintiffs 1 and 2 and defendants 1 and 2 are the legal heirs of deceased Perumal and they are governed by Hindu Succession Act.
3. Though the parties originally belong to Tamil Nadu, now they are settled in Kottayam District. Late Perumal left behind major part of RFA No.146/2020 4 2025:KER:48134 his properties in the State of Tamil Nadu and plaint schedule property consisting of 1.21 Ares is the only property left behind by him outside the State of Tamil Nadu. It is also admitted that late Perumal and his wife died intestate. It was in the above context, the plaintiff preferred this suit for partition, claiming that plaintiffs 1 and 2 and defendants 1 and 2 are entitled to get ¼ share each from the schedule property. Since the schedule property was acquired by Railway, the compensation due on the said property is now in the hands of 3rd defendant.
4. The 1st defendant filed written statement contending that the plaint schedule property is not partible, as about 30 years back, the plaintiffs 1 and 2 and the 2nd defendant released their right in the schedule property in favour of the 1st defendant after receiving a consideration of Rs.2,000/- each and executed registered Release Deed in favour of the 1st defendant. Therefore, the 1st respondent prayed for dismissing the suit. The 2nd defendant filed written statement supporting the plaint and claiming ¼ share from the schedule property.
5. In the light of the above pleadings, the trial court framed three issues. The evidence in the case consists of the oral testimonies of RFA No.146/2020 5 2025:KER:48134 PW1 and DW1 and Exhibits A1 to A7 and B1 to B10. After evaluating the evidence on record, the trial court dismissed the suit. Being dissatisfied with the judgment and decree of the trial court, the plaintiffs 1 and 2 along with the 2nd defendant preferred this appeal.
6. Now, the points that arise for consideration are the following:
1) Whether the plaintiffs 1 and 2 along with the 2 nd defendant released their share in the plaint schedule property in favour of the 1st defendant as per Exhibit B2 document?
2) Whether the plaintiffs 1 and 2 and the 2 nd defendant are entitled to get any share from the scheduled property?
7. Heard Sri. Jacob E. Simon, the learned counsel for the appellant and Sri. A.K. Haridas, the learned counsel for the 1 st respondent and the learned Government Pleader Smt. Shylaja on behalf of the 3rd respondent.
8. Admittedly, the plaintiffs 1 and 2 and defendants 1 and 2 are the children of Late Perumal and Madathiammal, who died intestate in 1985 and 1986 respectively. It is also admitted that the plaint schedule RFA No.146/2020 6 2025:KER:48134 property having an extent of 1.21 Ares of property comprised in Re- Survey No.45 (Old Sy No.67/1A/4 of Muttambalam Village (earlier in Nattasseri Village)), belonged to late Perumal. The fact that the plaintiffs 1 and 2 and defendants 1 and 2 are governed by the Hindu Succession Act, is also not disputed. The contention taken by the 1 st defendant is that by virtue of Exhibit B2 Partition Title Release Deed dated 4.2.1988 of Alangulam Sub Registry, the plaintiffs 1 and 2 and defendant No.2 released their right in the schedule property in his favour. Exhibit B2 is in Tamil and its English translation was marked as Exhibit B2(a).
9. On the other hand, according to learned counsel for the appellants, Exhibit B2 was executed in violation of several provisions of the Registration Act, in a fraudulent manner and stealthily along with Exhibit B4 Partition Deed executed on the very same day. According to him, the plaintiffs 1 and 2 and the 2 nd defendant, who does not know Tamil, affixed their signature in Exhibit B2 without knowing its contents. He has also relied upon several suspicious circumstances to substantiate the argument that Ext.A2 does not affect their right in the RFA No.146/2020 7 2025:KER:48134 scheduled property.
10. One of the arguments advanced by the learned counsel is that on the very same day, another document namely Exhibit B4 Partition Deed was executed between plaintiffs 1 and 2 and defendants 1 and 2. According to him, if Exhibit B2 was a bona fide document, the same could have been incorporated along with Exhibit B4 and a separate document in the form of Exhibit B2 was not at all required. Exhibit B4 is a Partition Deed, admittedly executed between the parties on the very same day on 4.2.1988. As per Exhibit B4 and B4(a), on 4.2.1988, an extent of 87 cents of property comprised in Sy.No.58/2 in Mayammanikurichi Village left behind by Perumal was divided into two equal shares and eastern 431/2 cents was allotted to the 1st defendant and the western 431/2 cents was allotted jointly to plaintiffs 1 and 2 and the 2nd defendant. As argued by the learned counsel, along with Ext.B4, the plaint schedule property also could have been included, if the parties really wanted to do so. For not including the plaint schedule property also in Ext.B4 and for executing a separate document like Ext.B2 on the very same day, no explanation is forthcoming.
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11. Another circumstance is that several provisions of the Registration Act were violated or not complied, while executing Exhibit B2. The details of Register Books to be kept in the Office of Registrar, is dealt with in Section 51 of the Registration Act, which is extracted below:
"51. Register-books to be kept in the several offices.--(1) The following books shall be kept in the several offices hereinafter named, namely:--
A--In all registration offices-- Book 1, "Register of non-testamentary documents relating to immovable property".
Book 2, "Record of reasons for refusal to register". Book 3, "Register of wills and authorities to adopt", and Book 4, "Miscellaneous Register".
B--In the offices of Registrars--
Book 5, "Register of deposits of wills".
(2) In Book 1 shall be filed -
(i) true copies of all documents; and
(ii) memoranda, registered under sections 17, 18 and 89 which relate to immovable property, and are not wills.
(3) In Book 4 shall be filed true copies of all documents registered under clauses (d) and (f) of section 18 which do not relate to immovable property.
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2025:KER:48134 (4) Nothing in this section shall be deemed to require more than one set of books where the office of the Registrar has been amalgamated with the office of a Sub-Registrar."
12. As per section 51 of the Registration Act, all non- testamentary documents relating to immovable property shall be entered in Book No.1. Accordingly, Ext.B4 is seen registered before the Alangulam Sub Registry in the State of Tamil Nadu, on 5.2.1988 as document No.205 of 1988 in Book No.1 itself. However, Exhibit B2 is seen entered only in the Book No.4. In short, Exhibit B2 was endorsed only in Book No.4 and not in Book No.1, as required by law.
13. Another crucial fact is that, in Exhibit B2, the details of the property involved therein are not disclosed. It simply states that:
"We are all sisters. We are born to one parent. This properties belonging to our father. It is his self- acquired property. Our father died. We demanded our share in the property. The Pachayatdars settled the matter that we are each entitled to Rs.2000/-for our share in the property.
We have received Rs.2000/- each and released our share in the above property. Now we assure that we are not entitled to any share in the property now belonging to our father. The property is valued Rs.6000/- as our share. We have not RFA No.146/2020 10 2025:KER:48134 received any amount, except this Rs.6000/- Our joint property value is Rs.8000/-. Our 3/4th shares value is Rs.6000/- we have received Rs.6,000/-."
14. Though Ext.B2 starts with the words: "This properties belong to our father", the property is not specified. No details like the extent, survey number, village etc. are also given and hence, from Ext.B2 the property could not be identified. The only hint is that it is the property of their father. During cross examination of the 1st defendant as DW1, it is revealed that Perumal left behind some other properties also, which situates within the State of Tamil Nadu. During the cross examination, he admitted that there was another 125 cents of property in the name of Perumal. When it was suggested that there was yet another 10 cents of property in the name of Perumal, within the limits of Tamil Nadu State, at first he replied in the affirmative, but thereafter he denied the suggestion. Even then, the fact remains that, there was at least 125 cents of property in the name of Perumal, other than the one involved in Exhibit B4.
15. Sub Section (1) of Section 21 of the Registration Act 1908 RFA No.146/2020 11 2025:KER:48134 states that:
"21. Description of property and maps or plans.--(1) No non- testamentary document relating to immovable property shall be accepted for registration unless it contains a description of such property sufficient to identify the same."
16. Sub Section (4) of Section 21 states that:
"(4) No non-testamentary document containing a map or plan of any property comprised therein shall be accepted for registration unless it is accompanied by a true copy of the map or plan, or, in case such property is situate in several districts, by such number of true copies of the map or plan as are equal to the number of such districts."
17. In this case, the mandates of Section 21 (1) and (4) of the Registration Act were not complied with. In the decision in T.Sankaranarayanan Nair v. Achuthan Nair and Others, 1982 KLJ 61 a division bench of this court held in paragraph 7 as follows:
"7. When Section 21 provides that a document shall not be accepted for registration unless the description of the immovable property intended to be dealt with is sufficient to identify it and when the rule issued u/s 22(1) read with Section 22(2) provides that failure to comply with the provisions of the rule shall disentitle a document to be registered, the matter is clearly one of the jurisdiction of the Registrar. When a Statute RFA No.146/2020 12 2025:KER:48134 prohibits the acceptance for registration unless the requirements of the Statute are complied with that prohibition is a prohibition to the Registrar and is one relating to his jurisdiction. This prohibition against acceptance for registration is made emphatic by the rule issued u/s 22(1) read with Section 22(2). These two provisions disentitle a document to be registered if the requirement of the Statute is not satisfied. The Registrar is told not to accept it and the document is also disqualified for registration. The Statute disqualifies a document and bars its acceptance for registration. So this is clearly a matter of jurisdiction and that would affect the validity of the registration even though there is a de facto registration. It is different from a matter of procedure. There is always a distinction between an error of jurisdiction and an error of procedure. In the latter case it may not invalidate the document but the lack of jurisdiction will. The distinction between a defect in the procedures of the Registrar and lack of jurisdiction is fundamental goes to the root of the matter and this cannot be cured by resort to Section 87 of the Registration Act. The Privy Council had occasion to high-light the distinction between a defect of procedure and the defect of jurisdiction in registering a document. In the latter case the registration was found to be invalid - see Dottie Karan v. Lachmi Prasad Sinha ((1930) 58 Indian Appeals 58). To the same effect is the decision in Mujib-un-Nissa v. Abdul RFA No.146/2020 13 2025:KER:48134 Rahim (I.L.R. 23 All 233 (P.C.)). This case is similar to one where a document presented for registration by a person not entitled to it or where the Registrar has lack of territorial jurisdiction or where the said document is presented out of time. If the above three instances go to the jurisdiction, the non-compliance of Section 21, 22 and the Rules framed u/s 21(1) will make the registration one without jurisdiction. In the light of the above principle of law and the terms of Ext. B- 1 there is no compliance with Sections 21 and 22(2) of the Registration Act. Hence there is no valid registration. "
18. In the decision in Paul Varghese and Others v. C.C.Annie (RFA 641/2008) a learned Single Judge of this court relying upon the decision in T.Sankaranarayanan Nair (supra) held in paragraph 14 that:
"14. Ext.A3 release deed does not contain any property description. What is mentioned as released under Ext.A3 are rights whatever the executants held in their properties. It is reasonably difficult to cull out from this document the precise items of properties which the executants intended to relinquish. This is also the same view taken by the court below also. What S.21 of the Registration Act provides is that a document shall not be accepted for registration unless it contained description of property sufficient to identify the RFA No.146/2020 14 2025:KER:48134 same. The Section as held in T.Sankaranarayanan Nair's case, does not provide for enquiry at a later stage to ascertain the property dealt with thereunder. Following the principles laid down in T.Sankaranarayanan Nair's case, I am satisfied that Ext.A3 is void and is not capable of affecting the rights of the plaintiff. I fully agree with the view taken by the court below that Ext.A3 is void and incapable of creating rights in the name of first defendant's father in respect of properties dealt with thereunder."
19. Further, though the plaint schedule property situates within the limits of Muttambalam village in Kottayam district in State of Kerala, Ext.B2 is seen executed in Tamil Nadu. Section 28 of the Registration Act dealing with place of registering documents reads as follows:
"28. Place for registering documents relating to land.--Save as in this Part otherwise provided, every document mentioned in section 17, sub-section (1), clauses (a), (b), (c) 3, (d) and (e), section 17, sub-section (2), insofar as such document affects immovable property, and section 18, clauses (a), (b) (c) and (cc), shall be presented for registration in the office of a Sub-
Registrar within whose sub-district the whole or some portion of the property to which such document relates is situate" RFA No.146/2020 15
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20. In the light of Section 28 of the Registration Act, a document like Exhibit B2 in respect of the plaint schedule property, which situates within the limits of Muttambalam Village in Kottayam district, is to be registered before the Sub-Registry, Kottayam, and the aforesaid requirement is also not complied in this case.
21. The procedure to be followed where document relates to land in several sub-districts is dealt with in Section 64, which reads as follows:
"64. Procedure where document relates to land in several sub-districts.--Every Sub-Registrar on registering a non- testamentary document relating to immovable property not wholly situate in his own sub-district shall make a memorandum thereof and of the endorsement and certificate (if any) thereon, and send the same to every other Sub-Registrar subordinate to the same Registrar as himself in whose sub-
district any part of such property is situate, and such Sub- Registrar shall file the memorandum in his Book No. 1."
22. The procedure in case the properties situate in different districts is dealt with in Section 65, which reads as follows:
"65. Procedure where document relates to land in several RFA No.146/2020 16 2025:KER:48134 districts.--(1) Every Sub-Registrar on registering a non- testamentary document relating to immovable property situate in more districts than one shall also forward a copy thereof and of the endorsement and certificate (if any) thereon, together with a copy of the map or plan (if any) mentioned in section 21, to the Registrar of every district in which any part of such property is situate other than the district in which his own sub-district is situate.
(2) The Registrar on receiving the same shall file in his Book No. 1 the copy of the document and the copy of the map or plan (if any), and shall forward a memorandum of the document to each of the Sub-Registrars subordinate to him within whose sub-district any part of such property is situate;
and every Sub-Registrar receiving such memorandum shall file in his Book No. 1."
23. If a document is registered, it is the duty of the Registrar to forward a memorandum of such documents to every Registrar, in whose district any part of such property situates, as required under Section 66, which is extracted below for reference:
"66. Procedure after registration of documents relating to land.--(1) On registering any non-testamentary document relating to immovable properly, the Registrar shall forward a memorandum of such document to each Sub-Registrar RFA No.146/2020 17 2025:KER:48134 subordinate to himself in whose sub-district any part of the property is situate.
(2) The Registrar shall also forward a copy of such document, together with a copy of the map or plan (if any) mentioned in section 21, to every other Registrar in whose district any part of such property is situate. (3) Such Registrar on receiving any such copy shall file it in his Book No. 1, and shall also send a memorandum of the copy to each of the Sub-Registrars subordinate to him within whose sub-district any part of the property is situate. (4) Every Sub-Registrar receiving any memorandum under this section shall file it in his Book No. 1. "
24. Therefore, it can be seen that, in the instant case, with respect of Exhibit B2, the mandates of sections 21, 28, 51, 64, 65 and 66 of the Registration Act were not complied with. It was in the above context, Exhibit A4 encumbrance certificate relating to the plaint scheduled property for the period 1.1.1984 to 16.11.2011 does not contain any endorsement relating to Exhibit B2.
25. Exhibit B5 is the proceedings dated 27.4.1991 issued by the Tahsildar, Kottayam effecting mutation in respect of plaint schedule property in favour of the 1 st defendant. In the said proceedings, it is RFA No.146/2020 18 2025:KER:48134 stated that though the 1st defendant has three sisters, at the time of their marriage their share was given and hence the 1 st defendant alone is the legal representative of his father and he has also produced an affidavit to that effect attested before a Notary Public. Conspicuously, in Exhibit B5, there is no mention about Exhibit B2 Release Deed.
26. Exhibit A7 is the mortgage deed No.365/95 executed by the 1st defendant in favour of Kottayam Co-operative Urban Bank Ltd., mortgaging the plaint scheduled property. In the said document, it is stated that the plaint schedule property originally belonged to Perumal and that after the death of Perumal, the 1 st defendant is the only child and legal representative of deceased Perumal. In Exhibit A7 also there is no mention about Exhibit B2 and about the fact that he has three sisters namely the plaintiffs 1 and 2 and 2 nd defendant. However, during the course of examination of DW1, he claimed that Exhibit B2 was produced before the Tahsildar. The said claim of DW1 can only be false, because, if it was produced, there was no chance for an endorsement in Ext.A7 to the effect that the 1st defendant is the only child and legal representative of deceased Perumal.
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27. At the time of arguments, the learned counsel for the 1st defendant would argue that though in the written statement, the 1 st defendant claimed that the plaintiffs 1 and 2 and the 2 nd defendant executed release deed in favour of the 1st defendant, after receiving a sum of Rs.2,000/- each, no replication was filed by them and according to the learned counsel, the same amounts to admission. The trial court also found fault with the plaintiffs for not disclosing receipt of Rs.2,000/- each from the 1st defendant.
28. However, relying upon Order VIII Rule 5 CPC, the learned counsel for the appellants would argue that since no set-off or counter- claim was raised in the written statement, there was no occasion for them to file any additional pleading. It is true that Order VIII Rule 5 CPC deals only about denial of averments in the plaint and Order VIII Rule 9 CPC states that subsequent pleadings cannot be filed without the leave of the court, except in reply to a set-off or counter-claim. In the instant case, the 1st defendant has not raised any set-off or counter-claim and as such there was no occasion for the plaintiffs to file any replication.
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29. Moreover, in the decision in K. Laxmanan vs Thekkayil Padmini & Ors [(2009) 1 SCC 354], the Apex Court held that, "mere non filing of a replication does not and could not mean that there has been admission of the facts pleaded in the written statement." In the above circumstances, merely for the reason that the plaintiffs have not filed any replication, it cannot be presumed that they have admitted the execution of Exhibit B2 and receipt of Rs.2,000/- each from the 1 st respondent.
30. Relying upon the decision of the Hon'ble Supreme Court in Elumalai and Ors v. M. Kamala and Ors. [AIR 2023 SC 659], the learned counsel for the 1st defendant would argue that even in case the release deed executed is found to be void, the plaintiffs are estopped from claiming share in the property as they have already received consideration for the same from the 1 st defendant. In the above decision, Chandran, the father of the appellant executed a Release Deed in respect of his share from the properties of his father. The trial court found that the said release deed was void as at the time when it was executed, Chandran's father was alive. It was in the above context, the Apex Court RFA No.146/2020 21 2025:KER:48134 held that though the release deed was void, the appellants cannot claim share as Chandran has already received consideration for his share from his father.
31. In the light of the above decision, it is to be held that, if the 1st defendant is able to prove that the plaintiff's 1 and 2 and the 2 nd defendant received Rs.2,000/- each towards their share from the plaint schedule property, he will succeed in the suit. However, in the instant case, there is no reliable evidence to prove that the plaintiffs 1 and 2 and the 2nd defendant received Rs.2,000/- each from the 1 st defendant, in consideration of their share from the plaint schedule property. As I have already noted above, in Exhibit A2, no details of the property is given. Though it refers to some property of their father, it is not clear as to which property was referred to in the said document. Though at one place the word 'properties' is used, at seven places, the word 'property' alone is used. Even from the evidence of the 1st defendant as DW1, it is revealed that at the time of execution of Exhibit B2 and B4, there was, at least, another 125 cents of property in the name of Perumal, in the State of Tamil Nadu. Since from Exhibit B2, the property mentioned therein is RFA No.146/2020 22 2025:KER:48134 not clear and Exhibit B2 was executed before a Sub Registry having no jurisdiction and there was another 125 cents of property in the State of Tamil Nadu in the name of Perumal, even if the 1st defendant succeeds in proving the payment of money as stated in Ext.B2, at the most what can be presumed is that, that amount was received only towards the share from the property left behind by Perumal, which situates within the limits of State of Tamil Nadu.
32. However, in this case there is no reliable evidence to prove the payment of any such money. In the proof affidavit of PW1, the 2 nd plaintiff, he categorically deposed that the plaintiffs have not executed any Release Deed in favour of the 1 st defendant and have not received any amount from him in consideration of the same. The above evidence of PW1 is not seen challenged during the cross examination and as such her above evidence remains unchallenged. In other words, from the unchallenged testimony of PW1, it is revealed that the 1 st defendant has not paid any such amount to plaintiffs and 2nd defendant. The above circumstance also improbablises the genuineness and due execution of Exhibit B2.
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33. The learned counsel for the appellants relying upon the decision of the Patna High Court in Lal Babu Yadav and Others v. Ram Bilash Rai and Others [AIR 1997 Patna 131], would argue that inaccurate or insufficient description of property in document does not invalidate the document. However, in the instant case, no details of the property is given and it is not a case of inaccurate or insufficient description of property and as such the above decision does not apply in this case.
34. At the time of evidence, it is revealed that the plaintiffs 1 and 2 and the 2nd defendant are ill-educated and did not know Tamil. As I have noted above, if there was any genuine desire to executed a document like Exhibit B2, the contents of the same could have been included in Exhibit B4 partition deed itself. In this context, it is also to be noted that, though in the written statement the 1 st defendant contended that the plaintiffs 1 and 2 and the 2 nd defendant released their right in his favour about 30 years back by executing a release deed, even the number of the document was not mentioned in the written statement. He also has not produced Exhibit B2 along with the written statement. RFA No.146/2020 24
2025:KER:48134 Admittedly, he has produced Exhibit B2 before the trial court only along with his proof affidavit, after the evidence of plaintiff's is over. That means, Exhibit B2 was practically suppressed, till the 1 st defendant filed proof affidavit. In the above circumstances, there was no opportunity for the plaintiffs to effectively challenge Exhibit B2 in the suit. Though the plaint schedule property is situated in Kottayam District in the State of Kerala, Exhibit B2 was created without mentioning the details of the property stealthily, before Alangulam Sub Registry in Tamil Nadu. Thereafter, it was seen entered only in Book No.4, instead of Book No.1. Even after registration, memorandum relating to its registration and its copy were not sent to the Additional Sub Registry Kottayam where the property situates. Even now, the Sub Registry Kottayam is not aware of Exhibit B2, as revealed from Exhibit A4 Encumbrance Certificate. Before the Tahsildar, who issued Exhibit B5 and in Exhibit A7 mortgage deed the 1st defendant has not disclosed Exhibit B2.
35. In this context, it is also to be noted that from the 87 cents of property covered by Exhibit B4 also, the plaintiffs 1 and 2 and the 2 nd defendant together were given only ½ share and the remaining ½ share RFA No.146/2020 25 2025:KER:48134 was taken by the 1st defendant. From the remaining 125 cents and 10 cents belonging to Perumal also no share was given to the plaintiffs 1 and 2 and the 2nd defendant. In Exhibit A7, the 1st defendant made a misrepresentation that he is the only child of Perumal, entitled to inherit his share. Before the Tahsildar, who prepared Exhibit B5, his contention was that the share due to the plaintiffs 1 and 2 and the 2 nd defendant was given at the time of their marriage and hence he alone is entitled to inherit Perumal. Therefore, it can be seen that, all along there was an attempt on the part of the 1 st defendant to appropriate major part of the property left behind by Perumal and to exclude his sisters from inheriting due share from their father's property. Therefore, the manner in which Exhibit B2 was executed along with Exhibit B4 could only be with ulterior motive to exclude the plaintiffs 1 and 2 and the 2 nd defendant from inheriting the plaint schedule property.
36. In the light of the above material circumstances, there is every reason to believe that plaintiffs 1 and 2 and the 2 nd defendant happened to affix their signature without knowing its contents and without receiving any amount as mentioned therein. In the above RFA No.146/2020 26 2025:KER:48134 circumstances, Exhibit B2 is not binding on plaintiffs 1 and 2 and the 2 nd defendant and the plaint schedule property. Therefore, the plaintiffs 1 and 2 and the 2nd defendant are entitled to get ¼ share each from the plaint schedule property.
37. In the result, this appeal is allowed. The impugned judgment and decree of the trial court is set aside. The original suit No.60 of 2011 on the file of the Sub Judge, Kottayam is decreed holding that plaintiffs 1 and 2 and defendants 1 and 2 are entitled to get ¼ share each from the scheduled property in a metes and bounds partition. Any of the sharers can apply for passing final decree in tune with this preliminary decree. The cost of the suit will form part of the estate.
All pending interlocutory applications shall stand closed.
Sd/-
C. PRATHEEP KUMAR, JUDGE sou.