Appeal against dismissal of partition suit where plaintiffs claimed joint ownership via a prior document, but respondent proved sole funding of purchase. Court upheld dismissal, holding that mere name inclusion without financial contribution does not confer title under Section 45 Transfer of Property Act.
Second appeal dismissed.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT :
THE HONOURABLE MR. JUSTICE P.BHAVADASAN
FRIDAY, THE 3RD JUNE 2011 / 13TH JYAISHTA 1933
SA.No. 239 of 1999(C)
------------------------------AS.25/1990 of SUB COURT, CHERTHALA OS.523/1987 of PRL.MUNSIFF COURT, CHERTHALA ....................
APPELLANT(S): APPELLANTS/PLAINTIFFS
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1. NANIKUTTY, W/O. KANNAN, PUTHUVAL NIKARTH KAVALPARAMBU VEEDU, EZHUPUNNA MURI, AROOR VILLAGE AROOR.
2. PANKAJAKSHY D/O. NANIKUTTY, OF DO. DO.
3. SUBHANA D/O. NANIKUTTY OF DO. DO.
4. MADANAN, S/O. NANIKUTTY OF DO. DO.
5. USHA, D/O. NANIKUTTY OF DO. DO.
BY ADV. SMT.VANAJA MADHAVAN
RESPONDENT(S): RESPONDENT/DEFENDANT
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KUMARAN, SON OF KARUMBA, RESIDING AT PANDOTHUKARIYIL HOUSE, EZUPUNNA MURI, AROOR VILLAGE.
ADV. SRI.V.L.SHENOY
THIS SECOND APPEAL HAVING BEEN FINALLY HEARD ON 03/06/2011 , THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
tss
ORDER ON CMP. NO.742/1999 IN SA. NO.239/1999
DISMISSED
03/06/2011
SD/- P.BHAVADASAN, JUDGE
TRUE COPY
P.A. TO JUDGE
tss
P.BHAVADASAN, J.
SA No.239 of 1999-C
Dated this the 3rd day of June 2011
Judgment
The plaintiffs in OS No.523/87 before the Munsiff's Court, Cherthala in a suit for partition and damages, are the appellants.
SA 239/99
2
defendant had obtained kudikidappu right in 50 cents of property, which he sold and utilising the said funds, he had purchased the plaint schedule property and though Kannnan's name is seen included in the document, he has not contributed any funds towards the purchase of the property and therefore, he has no right over the suit property. On the basis of these contentions, he prayed for dismissal of the suit.
SA 239/99 3
i) Whether the court below is justified in dismissing the suit
purely on the basis of oral evidence of the parties ?
ii) Whether the court below is justified in discarding the documentary evidence produced by the appellant ?
iii)Whether the nature of possession is immaterial in a suit
for partition ?
SA 239/99
4
property. Ext.A1 stands in the joint name of Kannan and the defendants and that being the position, it is clear that Kannan had half share in the property. It is also contended that the kudikidappu purchase by the defendant was for and on behalf of the family and therefore, he having sold the same for a consideration and utilising the same for purchasing the plaint schedule property, it had to enure to the benefit of Kannan also. It is accordingly contended that
the judgment and decree of the courts below are unsustainable in law.
SA 239/99 5
deposition of the plaintiff. Merely because the name of Kannan is seen included in Ext.A1, it does not lead to the conclusion that he had any right over the suit property. Unless it is shown that the purchase was utilising the funds of Kannan or that Kannan had contributed any amount for the purchase of the suit property, the mere inclusion of the name o f Kannan in the document of title will not confer any right on him. In support of that contention, the learned counsel relied on the decision in Vasanthakumary v. Omanakkuttan Nair (2009(2) KHC 1049 (DB).
SA 239/99
6
he had obtained 10 cents of property as kudikidappu and he had sold the same. Utilising the said funds, he had purchased the suit property. It appears that the defendant had placed confidence on Kannan and Kannan had done a mischief. Whatever that be, evidence is to the effect that there was no contribution by Kannan towards the sale consideration for the purchase of the suit property.
reads as follows :
“45. Joint transfer for consideration – Where immoveable property is transferred for consideration to two or more persons and such consideration is paid out of a fund belonging to them in common, they are, in the absence of a contract to the contrary, respectively entitled to interests in such property identical as nearly as may be with the interests to which they were respectively entitled in the fund and where such consideration is paid out of separate funds belonging to them respectively, they are, in the absence of a contract to the contrary, respectively entitled to interests in such property in proportion to the shares of the consideration which they respectively advanced.
In the absence of evidence as to the interests in the fund to which they were respectively
SA 239/99 7
entitled, or as to the shares which they respectively advanced, such persons shall be presumed to be equally interested in the property.”
Vasanthakumary v. Omanakkuttan Nair (supra), it was held as follows :
“When consideration is paid entirely and exclusively from the separate fund of one of the acquirers of the property, Section 45 of the Act squarely applies and only that party has exclusive title over the property notwithstanding the fact that the name of the person who has not contributed any consideration is shown in the document as one of the acquirers.”
Merely because the name of a person is included in a document, it does not confer any right on him and the other person can certainly show that there was no contribution from the person whose name appears in the document nor had he any right over the property covered by the document. Both the courts below have concurrently found that Kannan had not contributed any funds for purchase of
SA 239/99
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the suit property. If that be so, the courts below were perfectly justified in coming to the conclusion that Kannan cannot have any right over the plaint schedule property. The finding that Kannan had not contributed any amount towards the purchase of the suit property, is a finding based on evidence on record. They are findings of fact. No substantial questions of law arise for consideration in this second appeal. The second appeal is devoid of any merit and it is accordingly dismissed.
P.Bhavadasan, Judge
sta
SA 239/99 9
3 issues framed by the court
Whether the lower courts were justified in dismissing the suit solely based on oral evidence regarding lack of contribution to purchase funds.
Whether the documentary evidence, which included the appellant's ancestor's name, was correctly discarded.
Whether the mere inclusion of a prior owner's name in a transfer document confers title absent financial contribution.
Colour shows how this judgement treated each authority
Vasanthakumary v. Omanakkuttan NairDistinguished¶10
(2009(2) KHC 1049 (DB)
1 provisions across 1 enactments
Nanikutty, W/o. Kannan
Pankajakshy, D/o. Nanikutty
Subhana, D/o. Nanikutty
Madanan, S/o. Nanikutty
Usha, D/o. Nanikutty
Kumaran, Son of Karumba
P. Bhavadasan
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
P. Bhavadasan
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