Kerala High Court
Kumaran (Died) vs Arumughan,(Died) Legal Heirs ... on 6 February, 2024
Author: Sathish Ninan
Bench: Sathish Ninan
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE SATHISH NINAN
TUESDAY, THE 6TH DAY OF FEBRUARY 2024 / 17TH MAGHA, 1945
RSA NO. 689 OF 2007
AGAINST THE JUDGMENT AND DECREE DATED 12.01.2006 IN AS
NO.77/1995 OF SUB COURT, TIRUR ARISING OUT OF JUDGMENT AND
DECREE IN OS NO.335/1990 ON THE FILE OF MUNSIFF COURT, TIRUR
APPELLANTS/APPELLANTS/PLAINTIFFS:
1 KUMARAN (DIED)
PACHATTIRI AMSOM, PARAVANNA DESOM, TIRUR TALUK.
2 SUBRAMANYAN,
PACHATTIRI AMSOM, PARAVANNA DESOM, TIRUR TALUK.
3 SAROJINI,
PACHATTIRI AMSOM, PARAVANNA DESOM, TIRUR TALUK.
4 MEENAKSHY,
W/O.LATE CHOYI, PACHATTIRI AMSOM, PARAVANNA
DESOM, TIRUR TALUK.
5 MAYANDI, S/O.LATE CHOYI,
VETTOM AMSOM,PADIYAM DESOM, TIRUR TALUK.
6 BABU,
VETTOM AMSOM,PADIYAM DESOM, TIRUR TALUK.
7 SASI,
VETTOM AMSOM,PADIYAM DESOM, TIRUR TALUK.
8 LATHA, D/O.CHOYI,
VETTOM AMSOM,PADIYAM DESOM, TIRUR TALUK.
9 AJITHA, D/O.CHOYI,
VETTOM AMSOM,PADIYAM DESOM, TIRUR TALUK.
10 VALLI, WO.LATE RAMAN,
VETTOM AMSOM,PADIYAM DESOM, TIRUR TALUK.
11 RAMANI,
D/O.CHOYI,
VETTOM AMSOM,PADIYAM DESOM, TIRUR TALUK.
12 DASAN,
S/O.CHOYI,
VETTOM AMSOM,PADIYAM DESOM, TIRUR TALUK.
13 GANESAN,
S/O.CHOYI,
VETTOM AMSOM,PADIYAM DESOM, TIRUR TALUK.
R.S.A.No.689 of 2007
-: 2 :-
14 BINDU,
D/O.CHOYI,
VETTOM AMSOM,PADIYAM DESOM, TIRUR TALUK.
15 ADDL.15 - P.P. SAROJINI
WIFE OF KUMARAN, PADINJAREPURACKAL HOUSE, C/O.
CHENGOT, PACHATTIRI, VETTOM PANCHAYAT, TIRUR
TALUK, MALAPPURAM DISTRICT, PIN - 676105.
16 ADDL. A16 - P.P. RAVINDRAN
SON OF KUMARAN, PADINJAREPURACKAL HOUSE, C/O.
CHENGOT, PACHATTIRI, VETTOM PANCHAYAT, TIRUR
TALUK, MALAPPURAM DISTRICT, PIN - 676105.
17 ADDL. A17 - P.P. HARISHAN,
SON OF KUMARAN, PADINJAREPURACKAL HOUSE, C/O.
CHENGOT, PACHATTIRI, VETTOM PANCHAYAT, TIRUR
TALUK, MALAPPURAM DISTRICT, PIN - 676105.
18 ADDL. A18 - P.P. SUJITH,
SON OF KUMARAN, PADINJAREPURACKAL HOUSE, C/O.
CHENGOT, PACHATTIRI, VETTOM PANCHAYAT, TIRUR
TALUK, MALAPPURAM DISTRICT, PIN - 676105.
19 ADDL. A19 - SATHYAVATHY,
DAUGHTER OF KUMARAN, PADINJAREPURACKAL HOUSE,
C/O. CHENGOT, PACHATTIRI, VETTOM PANCHAYAT,
TIRUR TALUK, MALAPPURAM DISTRICT,
PIN - 676105.
20 ADDL. A20 - P. ANITHA,
DAUGHTER OF KUMARAN, PADINJAREPURACKAL HOUSE,
C/O. CHENGOT, PACHATTIRI, VETTOM PANCHAYAT,
TIRUR TALUK, MALAPPURAM DISTRICT,
PIN - 676105.
21 ADDL. A21 - PREETHA,
WIFE OF JAYARAJ, NOONJIPURAYIL HOUSE,
OZHAYAADI, KUNNAMANGALAM P.O., KOZHIKODE
DISTRICT, PIN - 673571.
22 ADDL. A22 - SAJINA
WIFE OF SUNIL, VALIYAVEETTIL HOUSE,
PADINJAREKKARA, KUTTAYI P.O., MALAPPURAM
DISTRICT, PIN - 676562.
(ADDL. A15 TO 22 AND ADDL R6 ARE IMPLEADED
BEING THE LRS OF THE DECEASED FIRST APPELLANT
VIDE ORDER DATED 27/1/11 IN I.A 3018/10)
R.S.A.No.689 of 2007
-: 3 :-
BY ADVS.
Muralikrishnan C
ABRAHAM GEORGE JACOB(K/003159/1999)
P.I.RAHEENA(K/283/2015)
RESPONDENTS/RESPONDENTS:
1 ARUMUGHAN(DIED - LEGAL HEIRS IMPLEADED AS
ADDL.R7 TO R11)
S/O.PADINHAREPURACKAL AYYAPPAN @ APPU,
PACHATTIRI AMSOM, PARAVANNA DESOM,
TIRUR TALUK.
2 KUNHAMMU, S/O.VELUKUTTY,
PACHATTIRI AMSOM, PARAVANNA DESOM,
TIRUR TALUK.
3 KAUSULYA, D/O.VELUKUTTY,
PACHATTIRI AMSOM,, PARAVANNA DESOM,
TIRUR TALUK.
4 BALAN (DIED), S/O. ARUMUGHAN,
PACHATTIRI AMSOM, PARAVANNA DESOM,
TIRUR TALUK.
5 UNNI, S/O. ARUMUGHAN,
PACHATTIRI AMSOM, PARAVANNA DESOM,
TIRUR TALUK.
6 ADDL. R6 - P.P. SIVADASAN,
SON OF KUMARAN, PADINJAREPURACKAL HOUSE, C/O.
CHENGOT, PACHATTIRI, VETTOM PANCHAYAT, TIRUR
TALUK, MALAPPURAM DISTRICT, PIN - 676105
7 ADDL.R7 - CHANDRAN PADINJAREPPURACKAL,
S/O.ARUMUGHAN,
PACHATTIRI AMSOM, PARAVANNA DESOM,
TIRUR TALUK.
8 ADDL.R8- GOVINDAN,
S/O.LATE ARUMUGHAN,
PACHATTIRI AMSOM, PARAVANNA DESOM,
TIRUR TALUK.
9 ADDL.R9 - PRADEEP P.P.@ PRADEEP KUMAR,
SON OF LATE ARUMUGHAN,P.O.BOX,NO.13107,DIBA AL
HIJRA,RUJAIRAH,UNITED ARAB EMIRATES.
R.S.A.No.689 of 2007
-: 4 :-
10 ADDL.R10 - SAKUNTHALA,
WIFE OF VISHWANATHAN, THORAYIL
HOUSE,PACHATTIRI P.O.,VIA TIRUR MALAPPURAM
DISTRICT.
11 ADDL.R11 - JANAKI @ JANU,
WIFE OF LATE ARUMUGHAN,
PACHATTIRI AMSOM, PARAVANNA DESOM,
TIRUR TALUK.
(LEGAL HEIRS OF DECEASED RESPONDENT NO.1 ARE
IMPLEADED AS ADD.R7 TO R11 AS PER ORDER DATED
25.07.2023 IN I.A.1787/2008)
12 R12 - PREMALATHA, AGED 55 YEARS,
W/O THE LATE BALAN, RESIDING AT PADINJARE
PURACKAL, VAKKAD PO, TIRUR,
MALAPPURAM - 676 502.
13 R13 - PRABIN, AGED 33 YEARS,
S/O THE LATE BALAN, RESIDING AT PADINJARE
PURACKAL, VAKKAD PO, TIRUR,
MALAPPURAM - 676 502
14 R14 - VIPIN, AGED 31 YEARS,
S/O. LATE BALAN, RESIDING AT PADINJARE
PURACKAL, VAKKAD PO, TIRUR,
MALAPPURAM - 676 502
15 R15 - PRANAV, AGED 28 YEARS,
S/O THE LATE BALAN, RESIDING AT PADINJARE
PURACKAL, VAKKAD PO, TIRUR,
MALAPPURAM - 676 502.
(LEGAL HEIRS OF THE DECEASED 4TH RESPONDENT
ARE IMPLEADED AS ADDL.RESPONDENTS 12 TO 15 AS
PER ORDER DATED 08.11.2023 IN I.A.NO.1 OF
2023.)
BY ADVS.
MEENA.A.
T.KRISHNANUNNI (SR.)
VINOD RAVINDRANATH
M.R.MINI
THIS REGULAR SECOND APPEAL HAVING COME UP FOR HEARING
ON 06.02.2024, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
SATHISH NINAN, J.
= = = = = = = = = = = = = = = = = =
R.S.A.No.689 of 2007
= = = = = = = = = = = = = = = = = =
Dated this the 6th day of February, 2024
JUDGMENT
The concurrent preliminary decree in a suit for
partition, insofar as it declined partition of plaint
schedule item No.1, is under challenge by the
plaintiffs.
2. The plaint schedule consists of three items of
property. While the claim for partition over item No.1
was declined, plaint item Nos.2 and 3 were held to be
partible. In this appeal, we are concerned only with
plaint item No.1.
3. One Choyi had four children, namely, Appu,
Velukutty, Thappa and Arumughan. Choyi is the son of
Ayyappan. The legal heirs of Appu are the plaintiffs.
The legal heirs of Velukutty are defendants 2 to 4.
Thappa died issue-less, and Arumughan is the 1 st
defendant. It was claimed that the property belonging to
Ayyappan on 'verumpattam' arrangement. The property has
devolved on the plaintiffs and the defendants as
successors in interest. It is accordingly that partition
is claimed.
4. The 1st defendant challenged the claim for
partition of item No.1. He claimed exclusive right over
the same under Ext.B1 mortgage deed dated 22.01.1948 and
Ext.B2 purchase certificate. It was contended that the
1st defendant had obtained mortgage right over the
property from one Kulangaraveetil Koyakutty and
Aboobacker.
5. The trial court upheld the claim of exclusive
title of the 1st defendant and accordingly held item
No.1 to be not partible. The decree was affirmed by the
First Appellate Court.
6. I have heard the learned counsel on either
side on the following substantial question of law;
"Were the courts right in holding that the 1 st defendant has
explained the admission made in Ext.A5 written statement in
O.S.No.82 of 1970, and that the same is not binding on him and
will not constitute estoppel ?"
7. O.S.No.82 of 1970 was a suit filed by
Koyakutty and Aboobacker against the 1 st defendant
herein for redemption of Ext.B1 mortgage and recovery of
possession. Therein, the 1 st defendant herein denied
Ext.B1 mortgage and contended that the property belonged
to their great grandfather, Ayyappan, under a lease
arrangement from the predecessor in interest of
Koyakutty and Abubacker. The interest over the property
has devolved on all the heirs of Ayyappan. On such plea,
the other legal heirs of Ayyappan, including the
plaintiffs herein, were impleaded. The contention of the
plaintiffs is that, the 1 st defendant having pleaded in
the written statement in O.S.No.82 of 1970 tracing title
under Ayyappan and disowning Ext.B1 mortgage deed, it is
not open for him to contend to the contrary in the
present suit. The written statement filed by the 1 st
defendant herein in the said suit is marked as Ext.A5
herein. The 1st defendant is bound by the admissions
made in Ext.A5 written statement and is estopped from
now contending that Ext.B1 mortgage deed is valid, it is
argued.
8. In O.S.No.82 of 1970, namely, the suit for
redemption, though the 1 st defendant contended that
Ext.B1 mortgage deed was not valid, the contention was
negatived by the court. Ext.B1 mortgage was upheld.
Since the court found that the 1 st defendant was
entitled for the benefit of Section 4A of the Kerala
Land Reforms Act, 1970, he was held to be a deemed
tenant. For the said reason, the decree for redemption
and recovery of possession was not granted. But a decree
was granted for arrears of rent. While it is true that,
in O.S.No.82 of 1970, the 1st defendant had contended
against Ext.B1 mortgage deed, he cannot be pinned down
to the same in the light of the finding in Ext.B4
judgment and also the explanation offered by him. The
plea culminated in Ext.B4 judgment rejecting the
challenge against Ext.B1 mortgage deed. It is the 1 st
defendant's case that it was to thwart the claim for
redemption that such a stance was adopted by him. The
contention is quite probable. At any rate, on the
finding of the court in Ext.B4 judgment upholding Ext.B1
mortgage deed, the said admission has no significance.
Admissions are not conclusive proofs but can be
explained away.
9. As regards the contention of the 1 st defendant
regarding estoppel, there is no such plea taken before
the courts. Moreover, it could not be said that there
was any representation by the 1 st defendant to the other
defendants and that, they had acted to their detriment
based on such representation. This is especially so in
the light of Ext.B4 judgment upholding Ext.B1 mortgage
deed and holding the 1st defendant to be a deemed tenant
entitled for fixity of tenure. In Ext.B4 judgment, it
was held "Hence in any event, the 1 st defendant is a
tenant entitled to fixity of tenure". Therefore, the
said contention is only to be negatived. There is no
evidence to show that, based on the pleadings of the 1 st
defendant in Ext.A5 written statement in O.S.No.82 of
1970, the parties had acted to their prejudice. The
substantial question of law is answered accordingly.
10. The trial court and the First Appellate Court
have rightly held the plaint item No.1 is not available
for partition. The decree and judgment of the Courts
warrant no interference.
The appeal fails and is dismissed. No cost.
Sd/-
SATHISH NINAN, JUDGE
yd
