Kerala High Court
Remani @ Kanjana vs K.N. Appu on 28 May, 2025
2025:KER:41774
RSA NO. 748 OF 2013
1
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE EASWARAN S.
WEDNESDAY, THE 28TH DAY OF MAY 2025 / 7TH JYAISHTA, 1947
RSA NO. 748 OF 2013
AGAINST THE JUDGMENT AND DECREE DATED 31.10.2012 IN AS
NO.53 OF 2010 OF VTH ADDITIONAL DISTRICT COURT, ERNAKULAM
ARISING OUT OF THE JUDGMENT AND DECREE DATED 21.8.2009 IN OS
NO.1501 OF 2006 OF III ADDITIONAL MUNSIFF'S COURT, ERNAKULAM
APPELLANT/APPELLANT/2ND DEFENDANT:
REMANI @ KANJANA
D/O.KRISHNANKUTTY, AGED 52 YEARS, KACHERIL,
KANJIRAMATTOM P.O., AMBALLOOR VILLAGE,
KANAYANNUR TALUK, ERNAKULAM DISTRICT.
BY ADV DR.V.N.SANKARJEE
RESPONDENTS/RESPONDENTS/PLAINTIFFS, DEFENDANTS 4 TO 10 &
LRS OF THE DECEASED 3RD DEFENDANT:
1 K.N. APPU (DIED - LHRS IMPLEADED)
AGED 77 YEARS
S/O.KUNJIAMMA, PADMAVIHAR, KANJIRAMATTOM P.O.,
KANAYANNUR TALUK, ERNAKULAM DISTRICT-682315.
2 K.N.RAMANKUTTY
AGED 68 YEARS
S/O.KUNJIAMMA, DO- -DO-
3 T.A.LEELA,
AGED 62 YEARS, D/O.KUNJIAMMA, KACHERIL,
KANJIRAMATTOM P.O., KANAYANNUR TALUK, ERNAKULAM
DISTRICT, PIN - 682 315.
(DIED - LHRS IMPLEADED AS ADDL.R29 TO ADDL.R31)
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4 K.M.GOURIKUTTY, (DIED - LHRS RECORDED)
AGED 69 YEARS
W/O.LATE AMBUJAKSHAN, PANAPARAMBIL,
KANJIRAMATTOM P.O., ERNAKULAM, PIN - 682 315.
(RESPONDENTS 5 & 6 ARE RECORDED AS LEGAL HEIRS
OF DECEASED 4TH RESPONDENT AS PER ORDER DATED
26.07.2024 IN IA.NO.6/2024)
5 K.A.JAYA
AGED 45 YEARS
D/O.LATE AMBUJAKSHAN, ANJALI BHAVAN, PALLIPURAM
P.O., CHERTHALA TALUK, ALAPPUZHA DISTRICT-
688541.
6 K.A.RAJENDRA BABU
AGED 42 YEARS
S/O.LATE AMBUJAKSHAN, PANABAPARAMBIL,
KANJIRAMATTOM.P.O., KANAYANNUR TALUK, ERNAKULAM
DISTRICT-682315.
7 M.K.RAGHAVAN PILLAI (DEAD)
S/O.NARAYANI AMMA, GEETHA BHAVAN, KANJIRAMATTOM
P.O., KANAYANNUR TALUK, ERNAKULAM DISTRICT-
682315.
8 M.S.APPU
AGED 70 YEARS
S/O.NARAYANI AMMA, DEEPTHI, 44/855, KALOOR WEST
P.O., KOCHI-17, KANAYANNUR TALUK, ERNAKULAM
DISTRICT.
9 PARUKUTTY,
AGED 78 YEARS
D/O.KAVUKUTTY AMMA, KALAYIL, KALAYATTIKKARA
P.O., ERNAKULAM-682315.
(DIED - LHRS IMPLEADED AS ADDL.R24 TO ADDL.R28)
10 PURUSHOTHAMAN PILLAI,
AGED 73 YEARS
S/O.KAVUKUTTY AMMA, NEDUVELIKUNNEL HOUSE,
KANJIRAMATTOM P.O., KANAYANNUR TALUK, ERNAKULAM
DISTRICT-682315.
(DIED - LHRS IMPLEADED AS ADDL.R32 TO ADDL.R35)
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11 NARAYANAN
AGED 68 YEARS
S/O.KAVUKUTTY AMMA, AMBAT HOUSE, VENGOOR P.O.,
PERUMBAVOOR, ERNAKULAM-683546.
12 N.V.PARAMESWARAN
AGED 62 YEARS
S/O.KAVUKUTTY AMMA, NEDUVELIKUNNEL HOUSE,
KANJIRAMATTOM P.O., KANAYANNUR TALUK, ERNAKULAM
DISTRICT-682315.
13 MOHANAN,
AGED 57 YEARS
S/O.KAVUKUTTY AMMA, THADATHIMALAYIL HOUSE,
PERUMPILLY P.O., KANAYANNUR TALUK, ERNAKULAM
DISTRICT-682314.
(DIED - LHRS IMPLEADED AS ADDL.R36 AND ADDL.R37)
14 BHASKARAN PILLAI
AGED 65 YEARS
S/O.JANAKI AMMA, VADAKKEVELI HOUSE, PALLIPPURAM
P.O., PALLIPPURAM VILLAGE, CHERTHALA TALUK,
ALAPPUZHA DISTRICT-688541.
15 RADHA
AGED 62 YEARS
W/O.THANKAPPAN PILLAI, EDAVAZHIKKAL VEEDU,
ULAVYPPU P.O., PANAVALLY, CHERTHALA TALUK,
ALAPPUZHA DISTRICT-688566.
16 BHAVANI
AGED 59 YEARS
W/O.LATE THANKAPPAN PILLAI, PUTHIYEDATHU VEEDU,
KANJIRAMATTOM P.O., PIN-682315, KANAYANNUR
TALUK, ERNAKULAM DISTRICT.
17 GOPI
AGED 56 YEARS
S/O.JANAKI AMMA, JITHIN NIVAS, POOCHACKAL P.O.,
CHERTHALA TALUK, ALAPPUZHA DISTRICT-688526.
18 SASIDHARAN
AGED 53 YEARS
S/O.JANAKI AMMS, SANTHINI BHAVAN, KANJIRAMATTOM
P.O., PIN-682315, KANAYANNUR TALUK, ERNAKULAM
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DISTRICT.
19 MANI
AGED 50 YEARS
D/O.JANAKI AMMA, MECHERIL HOUSE, KANJIRAMATTOM
P.O., KANAYANNUR TALUK, ERNAKULAM DISTRICT-
682315.
20 PADMAJA
AGED 47 YEARS
D/O.JANAKI AMMA, MECHERIL HOUSE, KANJIRAMATTOM
P.O., KANAYANNUR TALUK, ERNAKULAM DISTRICT-
682315.
21 PANKAJAKSHY AMMA
AGED 70 YEARS
W/O.M.K.RAGHAVAN PILLAI, GEETHA BHAVAN,
KANJIRAMATTOM P.O., KANAYANNUR TALUK, ERNAKULAM
DISTRICT-682315.
(DIED - RESPONDENTS 22 AND 23 ARE RECORDED AS
THE LEGAL HEIRS OF THE DECEASED 21ST RESPONDENT,
AS PER ORDER DATED 29.11.2024 IN I.A.NO.8/2024)
22 SREEDEVI
AGED 43 YEARS
D/O.RAGHAVAN PILLAI, GEETHA BHAVAN,
KANJIRAMATTOM P.O., KANAYANNUR TALUK, ERNAKULAM
DISTRICT-682315.
23 GEETHA
AGED 39 YEARS
D/O.RAGHAVAN PILLAI, GEETHA BHAVAN,
KANJIRAMATTOM P.O., KANAYANNUR TALUK, ERNAKULAM
DISTRICT-682315.
ADDL.R24 SASIDHARAN
S/O RAMAN PILLAI, AGED ABOUT 68, KALAYIL,
KULAYATTIKKARA P.O., ARAYANKAVU, KANAYANNUR
TALUK, ERNAKULAM DISTRICT, PIN 682315.
ADDL.R25 VISWAMBHARAN
S/O.RAMAN PILLAI, AGED ABOUT 62, KALAYIL HOUSE,
MACKIL P.O., CHOORAL, KANNUR DISTRICT.
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ADDL.R26 SURENDRAN, S/O.RAMAN PILLAI,
AGED ABOUT 48, KALAYIL, KULAYATTIKKARA P.O.,
ARAYANKAVU, KANAYANNUR TALUK, ERNAKULAM
DISTRICT, PIN 682315
ADDL.R27 VASALA
D/O PARUKUTTY, AGED ABOUT 51, KADAPURATHU,
KULAYATTIKKARA P.O., ARAYANKAVU, KANAYANNUR
TALUK, ERNAKULAM DISTRICT, PIN 682315
ADDL.R28 OMANA NANDAKUMAR
D/O PARUKUTTY, AGED ABOUT 45, ILLATHUPARAMBIL,
SOCIETY ROAD SRRA/07, MARADU P.O., ERNAKULAM
DISTRICT, PIN 682304
(LEGAL HEIRS OF DECEASED 9TH RESPONDENT ARE IMPLEADED AS
ADDITIONAL RESPONDENTS 24 TO 28 AS PER ORDER DATED
26.07.2024 IN IA.NO.2225/2015)
ADDL.R29 ARAVINDAKSHAN PILLAI,
H/O T.A.LEELA, AGED 78, ARUNAGIRI (H),
PONGALLIL, AROOR P.O., CHERTHALA TALUK,
ALAPPUZHA DISTRICT, PIN 688534
ADDL.R30 ARUN KUMAR
S/O T.A.LEELA, AGED 45, ARUNAGIRI (H),
PONGALLIL, AROOR P.O., CHERTHALA TALUK,
ALAPPUZHA DISTRICT, PIN 688534.
ADDL.R31 ANUPAMA
D/O T.A.LEELA, AGED 42, ARUNAGIRI (H),
PONGALLIL, AROOR P.O., CHERTHALA TALUK,
ALAPPUZHA DISTRICT, PIN 688534
(LEGAL HEIRS OF DECEASED 3RD RESPONDENT ARE IMPLEADED AS
ADDITIONAL RESPONDENTS 29 TO 31, AS PER ORDER DATED
26.07.2024 IN IA.NO.1/2024)
ADDL.R32 AMMINI
AGED 77 YEARS
W/O PURUSHOTHAMAN PILLAI, SREERAGAM (H),
KALAVOOR P.O., ALAPPUZHA DISTRICT,PIN-688522.
ADDL.R33 PREETHY
AGED 56 YEARS
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D/O PURUSHOTHAMAN PILLAI, SREERAGAM (H),
KALAVOOR P.O., ALAPPUZHA DISTRICT,PIN-688522.
ADDL.R34 USHA
AGED 53 YEARS
D/O PURUSHOTHAMAN PILLAI, SREERAGAM (H),
KALAVOOR P.O., ALAPPUZHA DISTRICT.,PIN-688522.
ADDL.R35 MANOJ
AGED 50 YEARS
S/O PURUSHOTHAMAN PILLAI, SREERAGAM (H),
KALAVOOR P.O., ALAPPUZHA DISTRICT,PIN-688522.
(LEGAL HEIRS OF DECEASED 10TH RESPONDENT ARE IMPLEADED AS
ADDITIONAL RESPONDENTS 32 TO 35, AS PER RODER DATED
26.07.2024 IN IA.NO.4/2024)
ADDL.R36 SARASWATHI
W/O MOHANAN, AGED 65, THADATHIMALAYIL, HOUSE,
PERUMPALLY P.O, KANAYANNUR TALUK, ERNAKULAM
DISTRICT, PIN 682314
ADDL.R37 JAYASREE
D/O MOHANAN, AGED 36, PERUMPALLY P.O.,
KANAYANNUR TALUK, ERNAKULAM DISTRICT, PIN 682
314
(LEGAL REPRESENTATIVES OF DECEASED 13TH RESPONDENT ARE
IMPLEADED AS ADDITIONAL RESPONDENTS 36 & 37 AS PER ORDER
DATED 26.07.2024 IN IA.NO.2/2024 )
ADDL.R38 PADMAVATHI AMMA,
AGED 85 YEARS,
W/O K.N. APPU, PADMAVIHAR, KANJIRAMATTOM P.O.
KANAYANNUR TALUK, ERNAKULAM DISTRICT, PIN -
682315.
ADDL.R39 HARILAL,
AGED 61 YEARS
S/O K.N. APPU, CHANDRAKANTHAM, KANJIRAMATTOM
P.O. KANAYANNUR TALUK, ERNAKULAM DISTRICT ,PIN-
682315.
ADDL.R40 LETHA, AGED 55 YEARS
W/O REGHUNANDAN, (D/O. K.N. APPU), HARISREE,
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KUMBALAM P.O. KANAYANNUR TALUK, ERNAKULAM
DISTRICT.
ADDL.R41 VINOD K.A., AGED 52 YEARS
S/O K.N. APPU, PADMAVIHAR, KANJIRAMATTOM P.O.
KANAYANNUR TALUK, ERNAKULAM DISTRICT ,PIN-
682315.
(LEGAL HEIRS OF DECEASED 1ST RESPONDENT ARE IMPLEADED AS
ADDITIONAL RESPONDENTS 38 TO 41 AS PER ORDER DATED
29.11.2024 IN IA.NO.7/2024)
BY ADVS.
SHRI.K.SHRIHARI RAO FOR R1, R2, R5, R6, R29, R30
& R31
SMT.N.SHOBHA
THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION
ON 28.05.2025, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
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"C.R"
EASWARAN S., J.
------------------------------------
RSA No.748 of 2013
-------------------------------------
Dated this the 28th day of May, 2025
JUDGMENT
The 2nd defendant in OS No.1501/2006 on the files of the III
Additional Munsiff's Court, Ernakulam, a suit for partition, has come
up with the present appeal against the concurrent findings by the trial
court as well as the first appellate court, on the ground that both
courts went wrong in appreciating the facts as well as the law involved
in the case in a perverse manner.
2. The brief facts necessary for disposal of the appeal are as
follows:
One Karthiayaniyamma and her four children consisted of a joint
family. In 1114 ME (Malayalam Era), a partition deed was executed
between Karthiayaniyamma and children. Ext.A1 is the certified copy
of the partition deed. As per the said partition deed, the property was
partitioned among Karthiayaniyamma and her children as follows:
(a) A schedule property was allotted to Karthiayaniyamma and her
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minor child, Sri.Krishnankutty.
(b) B schedule to Narayaniyamma and two minor children
(c) C schedule to Kunjiyamma and two minor children
(d) D schedule to Kavukkuttiyamma and two minor children
3. Plaint schedule property consists of A schedule of Ext.A1
partition deed of 1114 ME. Item No.1 consists of the property known
as kambalam, with well defined four boundaries in survey No.332/3
of Amballoor village. Item no.2 of the plaint schedule, which forms
part of A schedule consists of 8½ para, is a paddy land. The plaintiffs
who are the legal heirs of the deceased Kunjiyamma were allotted to
C schedule to Ext.A1. Smt.Karthiayaniyamma died on 10.3.1960. The
suit was filed in the year 2006, claiming partition of the share held by
Karthiayaniyamma in Ext.A1 document. The defendants entered and
contested the suit. The 1st defendant is the wife of late Krishnankutty,
the son of late Karthiayaniyamma. According to the 1st defendant, the
property in question devolved absolutely in favour of
Karthiayaniyamma and her husband and that the plaintiffs have no
right title over the plaint A schedule property. The parties intended
to divide the property, and A schedule being in exclusive possession
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of Karthiayaniyamma and Krishnankutty, the daughters of
Karthiayaniyamma are not entitled to claim the right over the share
of Karthiayaniyamma by inheritance. It is further contended that on
15.6.1960, the son of Karthiayaniyamma executed a
'nadappupanayadharam' in favour of Narayana Pilla, who is the
father of the plaintiffs 1 to 3 and Ambujakshan and the delivery of the
possession was also given to Narayana Pilla. The mortgage was not
redeemed and thereafter, the 1st defendant purchased the right title
and interest over the property when Narayana Pilla sold the entire
extent of the property to Ammukkutty Amma, the 1st defendant and,
therefore, the 1st defendant was in exclusive possession of the
property, hostile to that of the plaintiffs and other defendants and,
therefore, there is a clear case of ouster made out. As regards item
no.2 of the plaint schedule property, it was contended that by Ext.B7,
Karthiayaniyamma and Krishnankutty mortgaged the property in
favour of third parties by a registered document. On 23.6.1966, the
amount outstanding under the mortgage was repaid and it was
redeemed. Ext.B7 would show that Karthiayaniyamma was divested
of the title over the property even before her death, that is on
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10.3.1960, and that after redemption of the mortgage, the property is
in exclusive possession of the 1st defendant. Therefore, the claim for
partition on behalf of the plaintiffs is unsustainable. On behalf of the
plaintiffs, Ext.A1 alone was produced and PW1 was examined. On
behalf of the defendants, Exts.B1 to B16 documents were produced.
Ext.X1 series were marked as third party exhibits. The trial court, on
consideration of the material evidence on record, framed the
following issues:
"1. Whether the plaint schedule properties are partiable?
2. If so what shall be the share of parties?
3. Whether the plaintiffs are entitled for a decree of
permanent prohibitory injunction as prayed for?
4. Reliefs and costs?"
4. After analysing the evidence on record, the trial court
found that on the death of Karthiayaniyamma, the right, title and
interest over the plaint schedule property, insofar as the share held by
Karthiayaniyamma is concerned, opened up for inheritance, and
therefore, notwithstanding the execution of Ext.A1, the parties are
entitled to claim the rights over the share held by Karthiayaniyamma.
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As regards execution of mortgage (panayadharam), the trial court
held that late Krishnankutty, son of Karthiayaniyamma, had no right,
title and interest over the property and therefore, execution of the
mortgage deed is of no consequence. Further, as regards the
contention of ouster, the trial court negated the contention of the
plaintiffs on the ground that there is no evidence to prove ouster as
pleaded by the 1st defendant. Accordingly, the suit was decreed by
passing a preliminary decree for partition. Aggrieved by the judgment
and decree, the 2nd defendant filed an appeal, A.S.No.53/2010, before
the Vth Additional District Court, Ernakulam, which was dismissed
by judgment and decree dated 31.10.2012 confirming the judgment of
the trial court. It is against the judgment of the first appellate court
dismissing the appeal, confirming the judgment of the trial court, that
the 2nd defendant has approached this Court with the present appeal.
5. Heard Dr.V.N.Sankarjee, the learned counsel appearing
for the appellant, and Sri.K.Sreehari Rao, the learned counsel
appearing for the respondent Nos.1, 2, 5, 6, 29, 30 and 31.
6. The learned counsel for the appellant raised the following
submissions:
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(a) Ext.A1 takes the form of a family settlement between the
parties by which respective shares were given to all branches in the
joint family. Therefore, the other sharers cannot claim any right by
inheritance. In support of the aforesaid contention, the learned
counsel placed reliance on the judgment of the Single Bench of this
Court in Damodaran Kavirajan and Others v. T.D.Rajappan
[1992 KHC 557].
(b) It is further contended that in terms of the provisions
contained under Section 35 of the Transfer of Property Act, 1882 read
with Section 43, the 2nd defendant is entitled to hold the property in
exclusion of the plaintiffs, since the representative of the plaintiffs,
namely Narayana Pilla, who is none other than the husband of
Kunjiyamma and father of the plaintiffs, had executed Ext.B11
registered document on 6.8.1960, whereby the property was
reconveyed to the 1st defendant, wife of late Krishnankutty. There is
a clear recital in Ext.B11 that the property has been given possession
to the 1st defendant and thereafter, she is in exclusive possession.
(c) It is further contended that the mother of the plaintiffs,
namely late Kunjiyamma, did not claim any right over the share of
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Karthiayaniyamma. Moreover, the plaintiffs claim right over the
share of Karthiayaniyamma by inheritance. Since Kunjiyamma did
not claim any right of inheritance, the plaintiffs by themselves cannot
claim right over the property of Karthiayaniyamma.
(c)(i) Even if the finding of the trial court as regards execution
of Ext.B10 could be a plausible view, at any rate, the trial court could
not have ignored the execution of a registered document, which
operates as constructive notice against the plaintiffs in terms of
Section 3 of the Transfer of Property Act, 1882.
(d) Lastly, it is contended that the 2nd item of the plaint
schedule property was already under mortgage to third parties as
early as on 23.8.1954 and therefore, Karthiayaniyamma and
Krishnankutty were divested with the right title and interest over the
property. Therefore on the date of death of Karthiayaniyamma, there
was no existing right and what remained is only equity of redemption.
Going by the endorsement made in Ext.B7, the mortgage was
redeemed by Ammukutty Amma, the 1st defendant, on 23.9.1966 and
the possession was given to her. The endorsement made in Ext.B7
can be considered for collateral purposes in terms of Section 49 of the
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Registration Act, 1908. Thus, the plaintiffs cannot claim any right
over item No.2 of the plaint schedule property.
(e) It is further pointed out that the 3rd defendant died during
the pendency of the suit, and the plaintiffs had not impleaded her
legal heirs and, thus, the suit having been abated and the judgment
being passed against a dead person is a nullity. Though the appellate
court by order dated 25.2.2010 granted stay of execution of the decree
on the sole ground, it did not consider the aforesaid issue in detail
while rendering the final judgment.
(f) Lastly, it is contended that, even if the plaintiffs had any
semblance of right over the plaint schedule property, the same is lost
by ouster.
7. Per contra, the learned counsel appearing for the
plaintiffs would contend that despite Ext.A1, the property opened up
for inheritance, insofar as the share of Karthiayaniyamma is
concerned, on her death. Therefore, the plaintiffs are entitled to
maintain the suit for partition. As regards the contention of the
appellant that a panayadharam was executed, the learned counsel by
referring to the findings rendered by the trial court would contend
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that the panayadharam having been executed without any authority
of law does not part in the characteristics of a valid document and
therefore, does not have any efficacy of law.
8. From the record of proceedings, it is seen that this Court
issued consolidated notice on the appeal as well as in the interlocutory
application for stay. However since there were numerous respondents
in the appeal, completion of service was delayed. On consideration of
the rival submissions and pleadings, both sides agree that the
following substantial questions of law arise for consideration:
1) Is not the decree dated 21.8.2009 in the suit a nullity, as the
3rd defendant had died on 10.12.2008 and the suit was abated against
the deceased 3rd defendant much before the passing of the impugned
decree?
2) Is not Ext.Al a family arrangement as laid down in
Thayyullathil Kunhikannan and others v. Thayyullathil
Kalliani and others [AIR 1990 Kerala 266] and if so, the
inheritance of Karthiayaniyamma whether to be made as provided in
Ext. Al?
3) Is it not necessary to interpret Ext.Al as a family arrangement
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in the light of subsequent conduct of the parties as revealed from Exts.
B10, B11, B16 and X1?
4) Is not the transfer or mortgage made as per Exts.B10 and B11
come within Articles 134 & 148 of the Limitation Act, 1908 as laid
down in Madhavan Ezhuthassan v. Venkatarama Iyer
[2008(2) KLT 609]?
5) Whether Exts.B8, B9 & B11 are valid in the light of Section
35 read with Section 43 of the Transfer of Property Act, 1882?
9. Before going into the real controversy, it is necessary to
examine whether the decree of the trial court is a nullity since the
plaintiffs failed to implead the legal heirs of the 3rd defendant. It is to
be noted that the 3rd defendant is the granddaughter of
Karthiayaniyamma. Other legal heirs of Narayaniyamma, the
daughter of Late Karthiayaniyamma, were already there in the party
array. In fact going by the preliminary decree, defendants 3 to 5
together take 1/5th share. Since the estate of Narayaniyamma to the
extent of their entitlement to claim share of the estate of late
Karthiayaniyamma were already in the party array, it cannot not be
said that presence of legal heirs of the 3rd defendant is absolutely
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necessary for adjudication of the lis. Thus applying the doctrine of
substantial representation, it cannot be said, that the decree passed
by the trial court is a nullity. Accordingly the question of law is
answered against the appellant.
10. Coming to the core issue raised in the appeal, certain
indisputable facts clearly shower light on the devolution of title
among the parties and establish that joint family property consisting
of Karthiayaniyamma and her minor son Krishnankutty and three
sisters were broken in the year 1939. Each branch, namely, the three
daughters and Karthiayaniyamma separated from the joint family
property and were allotted with different shares. Therefore, the joint
family property at the hands of Karthiayaniyamma got broken by
virtue of execution of a registered partition deed. The question would
be whether, the plaintiffs could claim further a right over the share
held by Karthiayaniyamma under Ext.A1 partition deed. Though
Ext.A1 is styled as a partition deed, there are sufficient materials
before this Court to conclude that Ext.A1 is in the form of a settlement
deed. If Ext.A1 is construed as a settlement deed, then, the principles
of estoppel under Section 115 of the Indian Evidence Act, 1872 would
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come into operation.
11. In Damodaran Kavirajan and others Vs
T.D.Rajappan [1992 KHC 557], this Court held that, on
execution of a family settlement, other sharers are estopped from
claiming the right over the property by way of inheritance.
12. In Hameed Vs Jameela and others [2009 KHC
1204], a Single Bench of this Court held that when Muslim daughter
receives money in lieu of heir's share in father's property, the act
would estop the heir from claiming the share in father's property.
While arriving at this view, this Court applied the principles
enshrined under Section 115 of the Indian Evidence Act, 1872.
13. Though in Hameed (supra) this Court rendered the
decision in context of Mohammedan Law, the principles laid down
therein are very much applicable in the present case.
14. A reading of Ext.A1 shows that Karthiayaniyamma
wanted A schedule therein to be in exclusive possession of herself and
her minor son, late Krishnankutty. The silence on the part of the other
daughters, more specifically Kunjiyamma, who was allotted C
schedule property to Ext.A1, till her death, from claiming any right
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over her mother's share is a crucial factor while judging the
entitlement of the plaintiffs. It is thus clear, that late Kunjiyamma,
daughter of Karthiayaniyamma and mother of the plaintiffs, never
wanted the share over the property. Viewed in the perspective, this
Court cannot but notice that, the trial court completely erred in
holding that on the death of Karthiayaniyamma, the share held by
Karthiayaniyamma over A schedule to Ext.A1 opened up for partition.
Therefore, it is imperative for this Court to hold that Ext.A1 being in
the form of a settlement, the plaintiffs who are the legal heirs of
deceased Kunjiyamma, D/o.Karthiayaniyamma, are estopped from
claiming right by inheritance. Accordingly, the question of law is
answered in favour of the appellant.
15. It is the further case of the appellant that after the death
of Karthiayaniyamma, Krishnankutty, S/o. late Karthiayaniyamma
and husband of the deceased 1st defendant, was exclusively managing
the property and he executed the panayadharam. The trial court
proceeded to hold that Ext.B7 panayadharam (lease deed) does not
have any sanctity in law, inasmuch as Krishnankutty had no right, title
and interest to execute the same. But, it is pertinent to note that
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Ext.B7 was executed in the year 1954 during the lifetime of
Karthiayaniyamma, and Karthiayaniyamma did not raise any
objection to Ext.B7. Karthiayaniyamma passed away only in the year
1960 and by that time, the Ext.B7 document was executed. Therefore,
it can be safely concluded that late Karthiayaniyamma had impliedly
consented to the execution of Ext.B7. Hence, this Court is inclined to
hold that the staunch silence on the part of late Karthiayaniyamma is
a strong indicative factor of her consent to the execution of Ext.B7.
Both the courts erred miserably to notice this fact.
16. Yet another reason, which would persuade this Court to
hold in favour of the appellant is the principle governing the Doctrine
of Election. The provision dealing with this under the Transfer of
Property Act, 1882 is Section 35. Section 35 of the Transfer of
Property Act, 1882 reads as under:
"35. Election when necessary.--(1) Where a person
professes to transfer property which he has no right to
transfer, and as part of the same transaction confers any
benefit on the owner of the property, such owner must elect
either to confirm such transfer or to dissent from it; and in
the latter case he shall relinquish the benefit so conferred,
and the benefit so relinquished shall revert to the transferor
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or his representative as if it had not been disposed of, subject
nevertheless,
where the transfer is gratuitous, and the transferor has,
before the election, died or otherwise become incapable of
making a fresh transfer,
and in all cases where the transfer is for consideration,
to the charge of making good to the disappointed transferee
the amount or value of the property attempted to be
transferred to him.
(2) The rule in the first paragraph of this section
applies whether the transferor does or does not believe that
which he professes to transfer to be his own.
(3) A person taking no benefit directly under a
transaction, but deriving a benefit under it indirectly, need
not elect.
(4) A person who in his own capacity takes a benefit
under the transaction may in another dissent therefrom.
Exception to the last preceding four rules.--Where a
particular benefit is expressed to be conferred on the owner
of the property which the transferor professes to transfer,
and such benefit is expressed to be in lieu of that property, if
such owner claim the property, he must relinquish the
particular benefit, but he is not bound to relinquish any
other benefit conferred upon him by the same transaction.
Acceptance of the benefit by the person on whom it is
conferred constitutes an election by him to confirm the
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transfer, if he is aware of his duty to elect and of those
circumstances which would influence the judgment of a
reasonable man in making an election, or if he waives
enquiry into the circumstances.
Such knowledge or waiver shall, in the absence of
evidence to the contrary, be presumed, if the person on
whom the benefit has been conferred has enjoyed it for two
years without doing any act to express dissent.
Such knowledge of waiver may be inferred from any act
of his which renders it impossible to place the persons
interested in the property professed to be transferred in the
same condition as if such act had not been done."
17. In C.Beepathumma Vs Velasari Shankaranarayana
Kadambolithaya and others [AIR 1965 SC 241], the Supreme
Court held that the Doctrine of Election as stated in the classic words
of Maitland- "That he who accepts a benefit under a deed or will or
other instrument must adopt whole contents of that instrument, must
conform to all its provisions and renounce all rights that are
inconsistent with it".{See Maitland's Lecture on Equity, Lecture 18}.
18. As could be seen above, the doctrine of election is based
on the fundamental principle of equity and has a strong resemblance
to the principle of "estoppel". Going by the observation of learned
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Authors White and Tudor on Equity Vol 18th Edn. page 444,
"Election is the obligation imposed upon a party by courts
of equity to choose between two inconsistent or alternative
rights or claims in cases where there is clear intention of
the person from whom he derives one that he should not
enjoy both.....that he who accepts a benefit under a deed or
will must adopt the whole contents of the instrument."
19. The application of Section 35 of the Transfer of Property
Act assumes significance in view of the subsequent conduct of the
parties. It is pointed out that, after execution of Ext.B7
panayadharam, the liability over the property was never discharged.
The benefits derived out of Ext.B7 were enjoyed by Kunjiyamma,
through her husband Narayana Pilla and thereafter by the plaintiffs.
Later, the 1st defendant, Ammukutty Amma, W/o.Krishnankutty,
came forward to discharge the liability and the property was
conveyed to Ammukutty Amma, the 1st defendant, by the father of the
plaintiffs. The silence on the part of late Kunjiyamma must be
construed as one giving assent to the transfer in favour of the 1 st
defendant. It is further pertinent to note that when the re-transfer of
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the property held under the panayadharam (lease deed) was made
by Ext.B11 a registered document, it acts as a constructive notice to
the plaintiffs thereby triggering the application of Section 3 of the
Transfer of Property Act. Therefore, the plaintiffs cannot plead
ignorance of the fact that Exts.B9 and B11 and contend that those
documents were executed without their knowledge and that are not
binding on the plaintiffs.
20. So also, Ext.B10, a nadappupanayadharam, is also a
registered document executed on 15.6.1960. From the admitted facts,
Karthiayaniyamma died on 10.03.1960. That be so, the principles
governing the constructive notice under Section 3 will equally apply
to the nadappupanayadharam (Ext.B10) and also the re-transfer in
favour of the 1st defendant by Ext.B11.
21. In this context, this Court finds that the argument of the
learned counsel for the appellant that the principles governing
feeding of Estoppel by Grant embodied under Section 43 of the
Transfer of Property Act, 1882 will apply.
Section 43 of the Transfer of Property Act 1882 reads as under.
"43. Transfer by unauthorised person who
subsequently acquires interest in property
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transferred.--
Where a person [fraudulently or] erroneously
represents that he is authorised to transfer certain
immovable property and professes to transfer such
property for consideration, such transfer shall, at the
option of the transferee, operate on any interest which
the transferor may acquire in such property at any time
during which the contract of transfer subsists.
Nothing in this section shall impair the right of
transferees in good faith for consideration without
notice of the existence of the said option."
22. Section 43 provides that where a person erroneously
represents that he is authorized to transfer certain immovable
property and transfer such property for consideration, such transfer
shall be at the option of the transferee and operate on any interest
which the transferor may acquire in such property during which the
contract subsists. The principle underlying the doctrine of feeding
estoppel by grant is that when the transferor having no interest in the
property transfers the same, but subsequently acquires interest in the
said property, the purchaser may claim the benefit of such subsequent
acquisition of the property by the transferor. {See Agricultural
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Produce Marketing Committee Vs Bannama (Dead) by LRs
[(2015) 5 SCC 691]. Applying the principles as above to the facts
of the case, it can be safely vouched that, even if Krishnankutty had
no right over the property at the time when Ext.B10 was executed, on
death of Karthiayaniamma, the entire rights devolved on late
Krishanankutty. Therefore, the 'panayadharam' becomes valid.
Further, consequent to the discharge of the outstanding liability over
the property and accepted by the father of the plaintiffs, the right,
title and interest passes into the hands of Ammukutty Amma, W/o
late Krishnankutty. The plaintiffs' father having received the amounts
outstanding on the property by Ext.B10, the plaintiffs are bound by
the act of their predecessor and thus cannot plead the invalidity of the
"panayadharam". Still further, by virtue of operation of Section 3 of
the Transfer of Property Act, the plaintiffs are deemed to have a
constructive notice of the execution of the document. Therefore,
answering the question of law framed as above, it is held that Exts.B10
and B11 documents are valid in the eyes of law.
23. Lastly, it is contended before this Court that insofar as
item No.2 of plaint schedule property is concerned, which forms as
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item No.2 to plaint A schedule, Karthiayaniyamma and
Krishnankutty both executed a registered mortgage deed in the year
1953 as Ext.B5. A perusal of Ext.B5 shows that the possession has
been handed over to the mortgagee. The endorsements made therein
would show that in the year 1966, the redemption of the mortgage
took place. However, it is pertinent to mention that redemption is not
by virtue of a registered document. But, that by itself will not deter
the appellant to successfully resist the claim of the plaintiffs. As stated
above, on 10.3.1960, Karthiayaniyamma died and she had no right
title and interest over the property and therefore, no right of
inheritance flowed into the hands of the defendants and only an
equity of redemption was available. Since the redemption was by a
third party, necessarily, the benefit of the mortgage should go into the
hands of the 1st defendant. Viewed in the perspective, it is clear that
item Nos.1 & 2 were not available for partition. Accordingly,
answering the question of law, it is held that the suit properties are
not available for partition.
24. Before parting with this case, this Court should also
consider the alternate plea of the appellant that, even if the plaintiffs
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had any right, the same is lost due to ouster. It must be remembered
that the plea of ouster is only an alternative plea. But for sake of
completing the exercise, this Court decided to look into the same as
well.
25. Law as regards 'ouster' needs no elaboration. The
uninterrupted sole possession of such property, without more, must
be referred to the lawful title possession by the joint holder to use the
joint estate, and cannot adversely claim against other interested
members. If possession may be either lawful or unlawful, in the
absence of evidence, it must be assumed to be formal. While deciding
the question of ouster or exclusion from the joint property in true
route which is deductible is that there can be no adverse possession
by one co-sharer as against others until there is an ouster or exclusion
and that the possession of the co-sharers becomes adverse to the other
co-sharer from the moment when there is ouster. That is after
assertion of an ouster title by one co-sharer against the other and to
the knowledge of the latter.
26. In Govindammal v. R.Perumal Chettiyar & Others
[(2006) 11 SCC 600], the Supreme Court held that a co-sharer
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becomes constructive trustees of the other co-sharers and the right of
a person or its predecessor in interest is deemed to have been
protected by the trustees. In order to prove ouster and adverse
possession against the co-sharer, the following relevant factors have
to be taken into consideration:
(i) Exclusive possession and perception of profits for
well over the period prescribed by the law of limitation;
(ii) Dealings by the party in possession treating the
properties as exclusively belonging to him;
(iii) The means of excluded co-sharer of knowing that his
title has been denied by the co-owner in possession.
27. Again, in Des Raj & Ors Vs Bhagat Ram (Dead) By
Lrs. & Ors [(2007) 9 SCC 641], the Supreme Court considered the
issue of adverse possession and ouster in suits relating to partition. It
was held that a plea of adverse possession or a plea of ouster would
indisputably be governed by Articles 64 and 65 of the Limitation Act.
Mere assertion of the title by itself may not be sufficient unless the
parties prove animus possidendi.
28. In B.R.Patil Vs Tulsa Y Sawkar & Others [2022
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SCC OnLine SC 240], the Supreme Court had occasion to consider
the plea of ouster in a wider perspective and it was held that the very
essence of adverse possession and therefore ouster lies in a party
setting up a hostile title in himself. The possession of a co-owner is
ordinarily on his behalf and also on behalf of the entire body of the
co-owners. In the case of an ouster, the co-owner must indeed have
the hostile animus. He must assert a title which is not referable to a
lawful title.
29. The evidence in this case clearly shows that by virtue of
Exts.B10 and B11 documents and also the endorsements contained in
Ext.B7, any doubt as regards the exclusive possession of the 1 st
defendant over the plaint schedule property is dispelled. There is
clear evidence in this case, to show that right from the year 1960
onwards, late Krishnankutty and his wife Ammukutty Amma, the 1st
defendant, was in exclusive possession of the plaint schedule property
hostile to the plaintiffs. A perusal of the judgment rendered by the
trial court as affirmed by the first appellate court would show that
both the courts erred egregiously in appreciating the evidence as well
as the law raised before it. Inevitably, the perverse appreciation of
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evidence, by itself qualifies as a substantial question of law, which
would entail the appellant to successfully maintain this appeal before
this Court.
Resultantly, on appreciation of the entire facts as well as
the law involved in the present case, this Court is constrained to hold
that both the courts erred in holding that the plaint schedule property
is available for partition. Accordingly, the appellant is entitled to
succeed and the appeal is thus allowed reversing the judgment dated
21.8.2009 of the trial court in OS No.1501/2006 as well as that of the
first appellate court dated 31.10.2012 in AS No.53/2010 and,
resultanly, the suit stands dismissed. No costs.
Sd/-
EASWARAN S.
JUDGE
jg
