T.D.Radhakrishnan Nair vs Chandravathy Amma
2021 Latest Caselaw 21287 Ker

         IN THE HIGH COURT OF KERALA AT ERNAKULAM
                         PRESENT
          THE HONOURABLE MR.JUSTICE N.ANIL KUMAR
 FRIDAY, THE 29TH DAY OF OCTOBER 2021 / 7TH KARTHIKA, 1943
                     RSA NO. 613 OF 2019
   [AGAINST THE JUDGMENT AND DECREE DTD.15.12.2017 IN AS
 146/2014 ON THE FILE OF THE COURT OF ADDITIONAL DISTRICT
                JUDGE - III, PATHANAMTHITTA
  CONFIRMING THE JUDGMENT AND DECREE DTD.27.10.2014 IN OS
             73/2009 OF MUNSIFF'S COURT, RANNI]

APPELLANT/APPELLANT/1ST DEFENDANT:

         T.D.RADHAKRISHNAN NAIR,
         AGED 51 YEARS,
         S/O. C.R. DIVAKARAN NAIR, THAMARASSERIL HOUSE,
         MADAMON-THEKKEKARA POST., MADAMON THEKKEKARA
         MURI, PERUNADU VILLAGE, RANNI TALUK,
         PATHANAMTHITTA DISTRICT.
         BY ADV.SRI.SAMEER NAIR
         BY ADVS.
         MANU RAMACHANDRAN
         SRI.T.S.SARATH
         SRI.R.RAJESH (VARKALA)
RESPONDENTS/RESPONDENTS/PLAINTIFFS 1 TO 5 & DEFENDANTS 2
TO 4:

    1    CHANDRAVATHY AMMA
         AGED 65 YEARS
         W/O. CHANDRASEKHARAN NAIR, SANTHOSH BHAVAN,
         KADAMMANITTA POST, CHERUKOLE VILLAGE,
         KOZHENCHERRY,
         PATHANAMTHITTA DISTRICT 689 649

    2    SUSHEELA NARENDRAPRASAD,
         AGED 60 YEARS,W/O.NARENDRA PRASAD,
         RESIDING AT PRAVEEN BHAVAN, VALLAMKULAM MURI,
         ERVAVIPEROOR VILLAGE, THIRUVALLA TALUK,
         PATHANAMTHITTA DISTRICT 689 541.

    3    SUDHA TULASEEDHARAN,
         AGED 58 YEARS, W/O.THULASEEDHARAN,
         BHAVANIMANDIRATHIL, THOLIKKODU POST, PUNALUR
         VILLAGE, PUNALUR TALUK,
         PATHANAMTHITTA DISTRICT 691 333
 R.S.A.No.613 of 2019


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        4      USHAKUMARI,
               AGED 55 YEARS, D/O.C.R.DIVAKARAN NAIR,
               RESIDING AT CHAMBON HOUSE, VADASSERIKKARA P.O.,
               PERUNADU VILLAGE, RANNI TALUK,
               PATHANAMTHITTA DISTRICT 689 661


        5      SHEELA HARIKUMAR,
               AGED 50 YEARS, W/O.HARIKUMAR,
               RESIDING AT NELLIKUNNATHU HOUSE, PARIYARAM POST,
               ELANTHOOR VILLAGE, KOZHENCHERY TALUK,
               PATHANAMTHITTA 689 585

        6      RUKMINIAMMA,
               AGED 62 YEARS,
               W/O LATE SASIDHARAN NAIR, RESIDING AT THAMARASSERIL
               HOUSE, MADAMON POST, PERUNADU VILLAGE, RANNI TALUK,
               PATHANAMTHITTA DISTRICT 689 711

        7      SEEJU,
               AGED 45 YEARS,
               S/O. RUKMINIAMMA,
               RESIDING AT THAMARSSERIL HOUSE, MADAMON POST,
               PERUNADU VILLAGE, RANNI TALUK, PATHANAMTHITTA
               DISTRICT 689 711

        8      SEENU,
               AGED 40 YEARS,
               S/O. RUKMINIAMMA,RESIDING AT THAMARASSERIL HOUSE,
               MADAMON POST, PERUNADU VILLAGE, RANNI TALUK,
               PATHANANTHITTA DISTRICT 689 711.

               BY ADVS.
               SRI.ANSU VARGHESE FOR R1.
               SRI.JOSEPH GEORGE FOR R2 TO R8.
               SRI.BIJO THOMAS GEORGE
               SMT.NICEY A. MENON
               SRI.P.A.REJIMON



        THIS    REGULAR   SECOND     APPEAL   HAVING    COME   UP   FOR

   ADMISSION     ON    27.10.2021,    THE     COURT    ON   29.10.2021

   DELIVERED THE FOLLOWING:
 R.S.A.No.613 of 2019


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                            JUDGMENT

This second appeal is directed against the

judgment and decree dtd.15.12.2017 in A.S.No.146/2014 on

the file of the Additional District Court-III, Pathanamthitta

(hereinafter referred to as 'the first appellate court') whereby

the judgment and decree dated 27.10.2014 in O.S.No.73/2009

on the file of the Munsiff's Court, Ranni (hereinafter referred to

as 'the trial court') was confirmed. The appellant is the first

defendant in the above suit. The suit was for partition of the

plaint schedule property.

2. The plaintiffs, the first defendant and the

husband of defendant No.2 and father of defendant Nos.3 and

4 are the children of the deceased C.R.Divakaran Nair. The

aforesaid Divakaran Nair had obtained title over the plaint

schedule property by virtue of Exts.A1 and A2 documents. He

died intestate as early as in 1993. Meenakshi Amma, the wife

of late Divakaran Nair, died intestate in 1999. After the death

of Divakaran Nair and Meenakshi Amma, the plaint schedule R.S.A.No.613 of 2019

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property devolved on the plaintiffs as well as the defendants as

legal heirs. The plaintiffs claim 5/7 right over the plaint

schedule property. The first defendant is not ready to partition

the plaint schedule property by metes and bounds. Hence,

the suit.

3. The first defendant filed written statement,

contending that the plaint schedule property is not identifiable.

However, he admitted the relationship between the parties to

the suit. He also admitted that his father and mother ie., late

Divakaran Nair and late Meenakshi Amma were the owners of

the property. He contended that the plaintiffs were given in

marriage during the life time of their father and they were given

money and gold ornaments after disposing 12 acres of landed

property owned by the father. Over and above, 12 cents and

30 cents of landed property were given by his father and

mother respectively to defendant Nos.2 to 4 and his father

went to the extent of constructing a new house therein and

was given to defendant Nos 2 to 4. Added to this, it was

contended by the first defendant that by the family R.S.A.No.613 of 2019

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arrangement on 10.2.1993, the plaint schedule property was

given to the first defendant exclusively. According to him, his

father had agreed to execute a settlement deed in his favour.

However, he passed away on 14.2.1993 due to sudden heart

attack. He would contend that fifth plaintiff received an amount

of Rs.75,000/- from him in 1995. When he demanded the

money back, it was not paid stating that the first defendant has

been enjoying the property for and on behalf of the 5 th plaintiff

as well.

4. Defendants 2 to 4 filed a written statement

raising a counter claim. They supported the claim of the

plaintiffs and contended that they are entitled to get 1/7 th share

in the plaint schedule property and prayed for allowing the

counter claim for partition of the plaint schedule property by

metes and bounds.

5. The trial court framed necessary issues for trial.

During the trial, the second plaintiff was examined as PW1

and marked Exts.A1 and A2 on the side of the plaintiffs. The

first and third defendants were examined as DWs.1 and 2. R.S.A.No.613 of 2019

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6. On appreciation of the evidence, the trial court

entered a finding that the parties are co-owners of the plaint

schedule property subsequent to the death of Meenakshi

Amma and Divakaran Nair. Accordingly, a preliminary decree

was passed allowing 1/7th share of the plaint schedule

property to each of the plaintiffs, 1/7th share to the first

defendant and 1/7th share to defendant Nos. 2 to 4 jointly.

Challenging the preliminary judgment and decree, the first

defendant preferred an appeal before the first appellate court.

The first appeal was dismissed confirming the judgment and

decree of the trial court. Hence, this second appeal.

7. Heard Sri.Sameer Nair, the learned counsel

appearing for the appellant, Sri.Ansu Varghese, the learned

counsel for respondent No.1 and Sri.Joseph George, the

learned counsel for respondent Nos.2 to 8.

8. Learned counsel for the appellant contended that

at the intervention of his father, the family settlement was

agreed between the parties whereby he obtained the plaint

schedule properties. According to the learned counsel for the R.S.A.No.613 of 2019

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appellant, the family settlement as deposed by DW1 can be

accepted as piece of evidence for explaining the conduct of

the plaintiffs in receiving the patrimony and gold from the

father at the time of their marriage in lieu of relinquishing their

interest in the scheduled properties. Learned counsel for the

appellant relied on the decisions reported in Tek Bahadur

Bhujil v. Debi Singh Bhujil and others [1966 KHC 417],

Kale v. Deputy Director of Consolidation [1976 KHC 809],

M.N.Aryamurthi and another v. M.L.Subbaraya Setty

(dead) by his legal Representatives and Others [1972 KHC

659] and Korukonda Chalapathi Rao and another v.

Korukonda Annapurna Sampath Kumar [Manu/

SC/0757/2021] and contended that the family arrangement

pleaded is substantiated in accordance with law.

9. On the other hand, the learned counsel for the

contesting respondents submitted that the parties are co-

owners subsequent to the death of their father and mother

and the plaint schedule property is partible. According to the

learned counsel, the intention of the appellant is to drag on R.S.A.No.613 of 2019

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the suit for partition raising untenable plea of family settlement

as a pretext for avoiding partition of the plaint schedule

property to the detriment of the other co-owners. It is their

common contention that the plea of family settlement lacks

bona fides and is liable to be discarded.

10. Certain facts are admitted. The first defendant

is the brother of the plaintiffs and defendant Nos.2 to 4 are

respectively the wife and children of plaintiffs' deceased

brother, late Sasidharan. They are having intestate

succession over the plaint schedule property, which belonged

to their father late C.R.Divakaran Nair as per Exts.A1 and A2.

Divakaran Nair passed away in 1993. Subsequent to the

death of Divakaran Nair, his wife Meenakshi Amma, who is

none other than the mother of the parties, died in 1999. The

plaint schedule property consists of five shoprooms within

Perunad Grama Panchayath.

11. The first defendant contended that the plaint

schedule property is not identifiable and an executable decree

cannot be passed. According to him, the plaint schedule R.S.A.No.613 of 2019

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property is not partible. He admitted that his father died on

14.2.1993. However, his contention is that just before his

death, the plaint schedule shoprooms were given to him

exclusively by virtue of a family settlement dated 10.2.1993.

He deposed as DW1 that the plaintiffs, who are none other

than his sisters, were given proper patrimony as well as gold

ornaments at the time of marriage after disposing 12 acres of

landed property owned by his father. He further deposed that

defendants 2 to 4 were given 12 cents of property by his father

and another 30 cents by his mother. He would say that his

father constructed a residential building for them in the said

property. He stated that he has been conducting a provision

shop in the shop rooms for the past 16 years consequent to

the family arrangement between the parties. It is his further

case that first defendant's father promised to execute a

settlement deed in favour of the first defendant before his

death. However, such a settlement deed could not be

executed due to his sudden death.

12. It is not in dispute that the parties are closely R.S.A.No.613 of 2019

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related. The father and mother of the plaintiffs and

defendants are no more. The father obtained plaint schedule

property by virtue of Exts.A1 and A2. The title is not disputed.

Based on the oral evidence adduced during trial, the trial court

negatived the contention on family settlement. The trial court

held that the evidence adduced was not reliable or trustworthy

as the evidence is not sufficient to prove the family settlement

pleaded. The first appellate court found that the first defendant

had failed to prove the family settlement pleaded. After

analysing the entire evidence, the first appellate court held

that no document was produced by the first defendant to show

that the father had given property to defendants 2 to 4. It is a

fact that DW1 stated in evidence that he had constructed

additional rooms in the building in the plaint schedule property.

However, there was no such pleading in the written statement.

13. No evidence was adduced by the appellant to

prove that the family arrangement pleaded by him was

accepted by other co-owners. The first appellate court relied

on the Apex Court decision reported in M.N.Aryamurthi and R.S.A.No.613 of 2019

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another v. M.L.Subbaraya Setty (dead) by his legal

Representatives and Others [(1972) 4 SCC 1] and held

that the alleged family settlement is not binding on other

sharers of the plaint schedule property and that the first

defendant has failed to prove the alleged family settlement

pleaded by him.

14. While passing preliminary decree, the court is

concerned as to whether the plaint schedule property is

partible. The shares can be allotted to the sharers in

accordance with law only during the final decree stage. The

plaintiffs and the defendants, being the class one legal heirs,

are entitled to share in the plaint schedule property as

concurrently held by the courts below. Both the trial court and

the first appellate court concurrently found that the plaintiffs

and the first defendant are entitled to 1/7 th share each and

defendants 2 to 4 are jointly entitled to 1/7 th share over the

plaint schedule property.

15. On going through the entire evidence, this

Court is of the view that the family settlement pleaded lacks R.S.A.No.613 of 2019

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bona fides to resolve family disputes and rival claims. The

alleged family settlement, which was oral in nature, was made

four days before the death of the father of the appellant.

There was no evidence adduced to prove that it was made

voluntarily by the deceased. The family settlement was not

reduced to writing. There was no case that all the sharers

were parties to the family settlement. Further, there was no

evidence to prove that the alleged family settlement would

result in establishing or ensuring amity and goodwill among

the plaintiffs and defendants.

16. The jurisdiction of the High Court to entertain

appeal under Section 100 of the Code of Civil Procedure is

strictly confined to cases involving substantial question of law.

In the present case, the trial court as well as the first appellate

court gave cogent reasons on appreciation of evidence on

record and thereafter, held that the plaintiffs are entitled to get

a preliminary decree for partition. This is a clear case

whereby the plaintiffs have succeeded in proving that the

parties are co-owners and they are entitled to share over the R.S.A.No.613 of 2019

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plaint schedule property. The judicial precedents cited by the

learned counsel for the appellant are only an attempt to raise

a substantial question of law touching the family settlement,

though the contentions of the appellant are prima facie

unsustainable. The judicial precedents submitted by the

learned counsel for the appellant are not applicable in this

case and have no nexus or connection with facts and

circumstances involved in this case. No substantial questions

of law arise for consideration in this appeal.

Resultantly, this R.S.A is dismissed in limine. There

will be no order as to cost. Pending applications, if any, shall

stand closed.

Sd/-

(N.ANIL KUMAR) JUDGE MBS/