K. Sivadasan vs K. Parvathy

Harun-Ul-Rashid, J.—The following substantial question of law is formulated in the second appeal at the time of admission.

Whether the courts below were justified in not considering the rights of the parties on the basis of the law applicable to them as admitted by all the parties rather than merely relying upon the pleadings in the plaint alone.

Additional Defendants 6 to 8 in O.S. No. 124 of 1989 on the file of the Sub Court, Kottarakkara are the Appellants. The appeal is directed against the decree and judgment in A.S. No. 219 of 1995 on the file of the District Court, Kollam. The sole Plaintiff filed the suit claiming partition of one half share in the plaint schedule properties on redemption of the mortgage in respect of 94 cents of land forming portion of plaint schedule item No. 1. The trial court dismissed the suit finding that the Plaintiff has failed to prove right or title to the plaint schedule properties. The Appellants claimed division and separate possession of 3/5th share in the plaint schedule properties. Their claim for partition of the property was also found unsustainable. Plaintiff preferred A.S. No. 219 of 1995 before the District Court, Kollam. The appellate court confirmed the findings recorded by the trial court and dismissed the appeal filed by the Plaintiff and cross objection filed by the Defendants 6 to 8. Parties hereinafter are referred to as the Plaintiff and Defendants as arrayed in the suit.

The plaint schedule item No. 1 is 94 cents of land in survey No. 768/1. Item No. 2 is 10 cents of wet land in survey No. 775/88. The case of the Plaintiff is that the plaint schedule properties belong to Nangeli, mother of the Plaintiff, that Nangeli executed a mortgage deed regarding 40 cents of plaint schedule item No. 1 in favour of Nanu Achari and the second Defendant on 2.2.1962, that the Plaintiff and Nanu Achari became the absolute owners of the property on the demise of Nangeli and that the right of Nanu Achari over the property devolved on the 1st Defendant. On the basis of the aforesaid averments, Plaintiff sought for redemption of the mortgage and for separate possession of one half share over the plaint schedule properties.

The first Defendant in the written statement contended that the plaint schedule properties belong to Raman Achari and Pappu Achari on whose demise the property devolved on the Plaintiff, Nanu Achari and their mother Nangeli. According to the first Defendant the property did not belong to Nangeli absolutely, but, Nangeli was a co-owner along with her two sons namely, Plaintiff and Nanu Achari. The first Defendant claimed one half right over the property as a legal heir of Nanu Achari.

Defendants 2 to 4 in the written statement have stated that 1.29 acres inclusive of plaint item No. 1 was belong to Raman Achari and Pappu Achari as per partition deed No. 767/1086 and that they were in joint possession of the property.

Defendants 6 to 8 in their written statement stated that the total extent of plaint schedule item No. 1 is 1.29 acres, that the suit property belong to Raman Achari and his brother Pappu Achari and that they obtained title to the property as per partition deed No. 767/1086. According to the said Defendants, who are the Appellants herein, right of Pappu Achari over the property was conveyed in favour of Nangeli as per gift deed No. 5430 of 1117 M.E and that plaint item No. 2 belong to Raman Achary by virtue of sale deed No. 2676/1101 M.E., that Raman Achari, Pappu Achari and Nangeli were in joint possession of the plaint item Nos. 1 & 2 and that the plea of the Plaintiff that the plaint schedule item No. 1 belong to Nangeli is incorrect in the light of the recitals in hypothecation deed executed by Raman Achari in favour of Narayanan Achari in the year 1117 M.E. In the written statement it is also stated that Pappu Achari has conveyed his right over the 1.29 acres of land in favour of Nangeli as per gift deed No. 5430 of 1117. Defendants 6 to 8 claimed that they are in possession of the plaint schedule properties and that they are entitled to 3/5th share. They prayed for passing a decree for separate possession of their share in the plaint schedule property.

Parties adduced oral and documentary evidence. Exts.B1 to B17 were marked, P Ws 1 to 3 and D Ws 1 to 4 were examined.

On the basis of the averments in the plaint the Plaintiff has sought for redemption of the mortgage and separate possession of one half share over plaint schedule properties. The contesting Defendants resisted the suit and contented that the property did no belong to Nangeli absolutely. The first Defendant claimed one half right and the 5th Defendant claimed right over 35 cents of land forming the southern most portion of plaint item No. 1. Since the first Defendant did not pay any court fee, the trial court held that her claim for partition does not deserve consideration. The Plaintiff''s right to succeed to the plaint schedule property is opposed by the contesting Defendants on the grounds that Raman Achari and Pappu Achari and Nangeli have executed Ext.B4 partition deed No. 5836 dated 5.12.1117 conveying property in favour of the Plaintiff in lieu of the share that he may obtain from the assets of his parents. The trial court observed that the burden is on the Plaintiff to establish that the plaint schedule property belong to Nangeli and he is the legal heir entitled for the estate that belong to Nangeli. The trial court also referred to the documents produced by the Defendants. The trial court observed that the Plaintiff has not produced any document to show that his mother Nangeli had obtained title to the property and held that in the light of Ext.B5 & B6 and the recitals in Ext.B2 it is possible to conclude that item No. 1 property demised to Raman Achari, Pappu Achari and as per partition deed No. 767/1086, Pappu Achari conveyed his right over the property in favour of Nangeli, that Nangeli and Raman Achari continued to be in possession of the property and they have created the mortgage regarding 40 cents forming the souther most portion of the plaint schedule property. The trial court also relying on Exts.B2 & B3 held that plaint item No. 2 belong to Raman Achari exclusively and that the said property was outstanding on the second Respondent and husband on the death of Nangeli. Based on the recitals in Ext.B4 partition deed dated 5.12.1117, the court found that the Plaintiff was given 64.5 cents of land and building comprised in survey No. 828/9 absolutely as A schedule therein and also the B schedule therein and that the B schedule to Ext.B4 was allotted to the Plaintiff reserving life estate in favour of the executants of the document. The court further held that the property allotted to the Plaintiff was received by him and therefore the recitals and terms in Ext.B4 are binding on the Plaintiff. After analysing the oral and documentary evidence, especially, Exts.B2, B4 B5 & B6, the trial court concluded that the Plaintiff had failed to prove right or title to the plaint schedule property.

The claim of the Appellants/Defendants 6 to 8 was also considered and the court found that the Defendants have not let in any evidence to prove that they have acquired any right over the property. Defendants 6 to 8 are the children of the Plaintiff. The court held that the claim for partition of the property is found unsustainable.

The Plaintiff in the suit challenged the decree and judgment in A.S. No. 219 of 1995. The Defendants 6 to 8 who claimed 3/5th share over the property filed cross objection. The lower appellate court basing its findings on the very same materials relied on by the trial court held that the Plaintiff has not succeeded in establishing the right or title over the plaint schedule property.

The claim of the Defendants 6 to 8 was considered and the appellate court dismissed the cross objection finding that Defendants 6 to 8 have not adduced any evidence to show that they are entitled to 3/5th share in the plaint schedule property.

Legal heirs of the Plaintiff filed S.A. No. 900 of 1998 challenging the dismissal of the appeal.C.M.P. No. 2657/1998 was also filed along with the S.A for condoning the delay in filing the appeal. The petition for condonation of delay in filing the appeal was dismissed for default. Consequently, the second appeal also stands dismissed. Thus the decree and judgment passed by the trial court dismissing the suit has become final. Defendants 6 to 8 preferred this appeal challenging the dismissal of the cross objection.

The trial court after analysing the evidence on record observed that in the light of Exts.B5 and B6 and the recitals in Ext.B2 it is possible to conclude that plaint item No. 1 demised to Raman Achari and Pappu Achari as per partition deed 767 of 1086. The partition deed of 767/1086 was not produced by any of the parties before the trial court. The document was produced by the present Appellants before the first appellate court on 5.8.1996 along with I.A. No. 1288/1996. The first appellate court dismissed the petition by a single line order. No reasons are stated for not receiving in evidence the partition deed of the year 1086 which was mentioned in the pleadings and by the trial court. The trial court after reading Exts.B2, B5 and B6 in fact, reached the conclusion that plaint item No. 1 is demised to Raman Achari and Appu Achari as per partition deed of 1086.

The learned Senior Counsel for the Appellants referred to the pleading of Defendants 2 to 4 and the Appellants who are Defendants 6 to 8 and contended that the case set up by Defendants 2 to 4 and the Appellants is that plaint item No. 1 was the ancestral co-parcenery property of Raman Achari and Pappu Achari, that the parties were Malayala Kammalas and are governed by the modified form of Hindu Mithakshara Law, that under the modified form of Hindu Mithakshara Law, the Plaintiff and his brother Nanu Achari and Plaintiff''s children, namely, Defendants 6 to 8 (Appellants) are entitled to hold shares in the ancestral property, they obtained title as a matter of right by birth. The learned Senior Counsel also contended that the right available to the Appellants cannot be taken away by execution of documents by any other parties. Learned Counsel also pointed out that Ext.B4 partition deed was concerned only in respect of the self acquired properties and not the property covered under document No. 767/1086. Therefore, it is contended that the plaint schedule item No. 1 being the ancestral property is liable to be partitioned only among the co-parceners and that the document executed by Raman Achari, Pappu Achari, Nangeli and Nanu Achari in respect of the co-parcenery properties are void ab initio and will not affect the right of the Appellants. In the light of the fact that the trial court also concluded that the plaint item No. 1 property is a property obtained by Raman Achari and Pappu Achari by partition deed 767/1086 from their ancestors, the lower appellate court should have examined the right of the Appellants especially when they have produced partition deed No. 767/1086. The dismissal of the I.A. No. 1258/1996 filed for reception of additional evidence is not proper and was passed without adhering to the principles enumerated under Order XLI Rule 27 of the Code of Civil Procedure. The order in I.A. No. 1258/1996 is set aside.

On a reading of the judgments passed by the trial court and appellate court , it can be seen that the contentions of the Appellants are not enquired into for the reason that they have not adduced any evidence in support of their contentions. But, both courts failed to taken into consideration of the fact that Raman Achari and Pappu Achari obtained the property under the partition deed 767/1086 while discussing the rights claimed by Defendants 6 to 8. At the same time the trial court as well as the appellate court referred to the partition deed of 1086 and concluded in the light of Exts.B2, B5 and B6 that plaint item No. 1 is demised to Raman Achari and Pappu Achari as per the partition deed of 1086.

In the above discussed factual matrix this Court is of the view that the contentions raised by the Appellants requires re-consideration in the light of the partition deed of the year 1086. The dismissal of the suit finding that the Plaintiff failed to prove right or title in respect of the plaint schedule properties has become final by the dismissal of S.A. No. 900 of 1998. The questions to be considered is the contentions of the Appellants in the light of the partition deed of the year 1086. The trial court shall mark the partition deed of 1086 produced before the appellate court. All the parties to the suit are at liberty to raise all contentions available to them while deciding the question as to whether Defendants 6 to 8 have title and whether they are entitled to partition and separate possession of any share in the plaint schedule property. The case is remanded to the trial court for the limited purpose of deciding the question as to whether the Appellants/Defendants 6 to 8 are entitled to claim any share over the plaint schedule property. The finding that the Plaintiff is not entitled to any right or title has become final need not be re-opened. The Appellants and Respondents are at liberty to adduce further evidence if any, if so advised. The Appellants are also at liberty to file a petition for transposition as additional Plaintiff, if so advised.

The trial court at page 5 of the printed judgment stated that the Defendants 6 to 8 have not paid the court fee on the written statement. If the court fee is not paid, they are at liberty to pay the court fee praying partition and separate possession.

In the result, the appeal is allowed. The case is remanded to the trial court for fresh consideration of the claim of the Appellants for partition. The trial court shall hear and dispose of the suit untrammelled by any of the observations of all the Courts, within a period of nine months from the date of receipt of a copy of this judgment. The parties shall appear before the court below on 17.2.2011. No order as to costs.