Allowed

Jayaraj v. K.Rajalakshmi

Kerala HC18 Jun 2012RSA/1104/2006

Case brief

AI extract

What is this about?

This appeal challenged a lower court decree setting aside a gift deed executed by a widow. The High Court interpreted the partition deed, finding the suit property was exclusively allotted to the widow. Consequently, the Court held the gift valid, dismissed the suit to set aside the gift, and set aside the lower court's judgment and decree.

What did the court decide?

The judgment and decree of the Additional District Judge and Munsiff were set aside; O.S. No. 689 of 2002 was dismissed; cross objection dismissed.

Jayaraj Vs K.Rajalakshmi — Partition | Kerala HC (2012)

¶1

IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT:

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THE HONOURABLE MR.JUSTICE THOMAS P.JOSEPH

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MONDAY, THE 18TH DAY OF JUNE 2012/28ND JYAISHTA 1934

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RSA.No. 1104 of 2006 (F) & CROSS OBJECTION NO.28 OF 2007

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AS.372/2003 OF ADDITIONAL DISTRICT COURT (ADHOC-II), ERNAKULAM. OS.689/2002 OF PRINCIPAL MUNSIFF COURT, ERNAKULAM.

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APPELLANTS/APPELLANTS/DEFENDANTS::

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1. JAYARAJ (MINOR), AGED 16, SON OF RAJKUMAR,

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RESIDING AT KADAIKAL HOUSE, C.C.37/1309, ELAMKULAM ROAD,

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ELAMKULAM VILLAGE, KANAYANNUR TALUK.

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2. K. SREERAJ (MINOR), AGED 11,

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SON OF RAJKUMAR, RESIDING AT KADAIKAL HOUSE,

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C.C.37/1309, ELAMKULAM ROAD, ELAMKULAM VILLAGE, KANAYANNUR TALUK.

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3. K. RAJKUMAR,

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SON OF LATE POZHOTH UNNIKRISHNAN MENON, AGED 44, RESIDING AT KADAIKAL HOUSE, C.C.37/1309, ELAMKULAM ROAD, ELAMKULAM VILLAGE, KANAYANNUR TALUK.

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(APPELLANTS 1 AND 2 ARE REPRESENTED BY THEIR FATHER K. RAJKUMAR, THE 3RD APPELLANT).

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BY ADV. SRI.K.C.CHARLES.

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RESPONDENTS/RESPONDENTS/PETITIONERS:

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1. K. RAJALAKSHMI, AGED 37,

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WIFE OF ADVOCATE T. SATHYANATHAN,

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KADAIKAL HOUSE, C.C.37/1309, ELAMKULAM ROAD, ELAMKULAM VILLAGE, KANAYANNUR TALUK.

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2. D.V. SUDHAKARAN, SON OF LATE C.V. PRABHU, AGED 48,

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DEVASWOM PARAMBIL,

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ELAMKULAM ROAD, KOCHI-17.

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BY ADV. SRI.P.CHANDRASEKHAR.

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THIS REGULAR SECOND APPEAL HAVING BEEN FINALLY HEARD ON 18-06-2012, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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rs.

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RSA.No. 1104 of 2006 (F)

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APPENDIX

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APPELLANT'S ANNEXURES:-

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ANNEXURE A1 COPY OF THE DOCUMENT DATED 30/12/1989.

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RESPONDENT'S ANNEXURES:- NIL.

//TRUE COPY//

P.S. TO JUDGE

rs.

THOMAS P. JOSEPH, J.

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====================== R.S.A. No. 1104 of 2006

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and Cross Objection No. 28 of 2007 ====================== Dated this the 18^th day of June, 2012

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JUDGMENT

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The second appeal and cross objection arise from the judgment and decree of learned Additional District Judge (Adhoc) – II, Ernakulam in A.S. No. 372 of 2003 confirming the judgment and decree of learned Munsiff, Ernakulam in O.S No.689 of 2002.

¶41

First respondent/plaintiff and 3^rd appellant are two of the three children of the late Santhamma and Unnikrishnan Menon. The said Santhamma and Unnikrishnan Menon separately acquired certain properties and after the death of Unnikrishnan Menon, Santhamma along with her three children (including the first respondent and the 3^rd appellant) effected partition of the entire properties including the self acquired property of Santhamma as per Ext.A1, partition deed No. 1 of 1990 dated 30.12.1989. Properties were partitioned among Santhamma and the first respondent (who then was unmarried)as forming one group and the 3^rd appellant and another son (Jayakumar), forming two groups. Subsequent to the partition as per Ext.A1 (dated 30.12.1989), first respondent was married to PW.1 on 09.01.1990. Later, there were demands for partition of various items referred to in Ext.A1. But, either the suit was withdrawn or it become infructuous on account ground of the

¶42

R.S.A. No. 1104 of 2006 & -: 2 :-

¶43

Cross Objection No. 28 of 2007

¶44

death of Santhamma. During her life time, she executed Ext.B1, gift deed No.689/99 dated 18.02.1999 concerning item No.5 of A schedule of Ext.A1 (the suit property) in favour of appellants 1 and 2, minor sons of the 3^rd appellant. She claimed that the said item exclusively belonged to her with full power of disposal and that she wanted to settle that item in favour of appellants 1 and 2. After the death of Santhamma, first respondent filed O.S. No. 689 of 2002 to set aside Ext.B1, gift deed on the allegations that the said gift deed is vitiated by fraud, undue influence and misrepresentation and that Santhamma had no right of disposal of the said item. She also prayed for a decree for prohibitory injunction to restrain the appellants from trespassing into the suit property (covered by Ext.B1, gift deed). The tenant of the building in the suit property was impleaded as 4^th defendant (second respondent herein)

¶45

Appellants resisted the suit contending that Ext.B1, gift deed deed is not vitiated by any of the circumstances pleaded by the first respondent. They contended that Santhamma had exclusive right, title, interest and possession of the suit property being item No.5 of A schedule of Ext.A1.

¶46

The trial court came to the conclusion that Ext.B1 was obtained under undue influence. It also came to the conclusion that Sanhamma had no exclusive right over the suit property to be

¶47

R.S.A. No. 1104 of 2006 & -: 3 :-

¶48

Cross Objection No. 28 of 2007

¶49

disposed of as per Ext.B1. Consequently, the suit was decreed, Ext.B1, gift deed was set aside and by invoking Rule 7 of Order 7 of the Code of Civil Procedure (for short 'the Code') appellants were directed to surrender possession of the suit property to the first respondent within one month from the date of decree.

¶50

Appellants challenged that judgment and decree before the learned Additional District Judge. Learned Additional District Judge while disagreeing with the view of the trial court that Ext.B1 is vitiated obtained by undue influence, confirmed the finding of the trial court that Santhamma had no exclusive right over the suit property to be gifted to appellants 1 and 2 as per Ext.B1. Accordingly the judgment and decree of the trial court were confirmed. Hence, this second appeal.

¶51

First respondent, aggrieved by the reversal of the finding that Ext.B1 is not vitiated by undue influence has preferred the cross objection.

¶52

The following substantial questions law are framed for a decision in the second appeal:

¶53

Whether, courts below are justified in holding that the late Santhamma had no alienable absolute right over the plaint schedule property when in the schedule to Ext.A1, partition deed it is expressly stated that

¶54

R.S.A. No. 1104 of 2006 & -: 4 :-

¶55

Cross Objection No. 28 of 2007

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plaint schedule is set apart to the exclusive share of Santhamma ?

¶57

Whether, in the facts and circumstances of the case courts below are justified in holding that late Santhamma had no alienable right over the plaint schedule property and that Ex.B1 is therefore void and whether the courts below have correctly interpreted Ext.A1 partition deed ?

¶58

Even if the suit property belonged to the plaintiff and the late Santhamma jointly, whether or not Ext.B1 gift deed can take effect in respect of Santhamma's right and interest in the said property ?

¶59

Whether in the light of definite finding that plaintiff was out of possession of the suit property much before institution of the suit, courts below are justified in granting a decree for recovery of possession without amendment of the plaint ?

¶60

Whether the finding of the first appellate court that Ext.B1 is not vitiated by undue influence is against the evidence on record ?

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It is contended by Sri. Renju. A.T., the learned counsel for

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appellants that the trial and first appellate courts have proceeded on

¶63

R.S.A. No. 1104 of 2006 & -: 5 :-

¶64

Cross Objection No. 28 of 2007

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a wrong assumption that the suit property (dealt with under Ext.B1) originally belonged to the late Santhamma but at the time of Ext.A1, partition it was brought to the common pool and hence, it is a case of family arrangement. It is argued by the learned counsel that the suit property belonged to the late Unnikrishnan Menon as per document No.2339 of 1091 and hence no question of family arrangement as found by the courts below is involved. Hence the decision in Sumathyamma V. Sankara Pillai Ananthakrishnan Nair (AIR 1987 KERALA 84) relied on by the trial court has no application.

¶66

It is further argued by the learned counsel that a reading of Ext.A1 would show that the intention of parties thereto was to allot item Nos. 1 to 4 of A schedule therein to the first respondent and her mother, the late Santhamma jointly and item No.5 of A schedule was to go to the share of the late Santhamma exclusively. Learned counsel contends that while interpreting a deed and the expressions therein, the deed has to be read as a whole, attempt must be to give effect to all the provisions of the deed and that a part of the deed cannot be read in isolation to the other. It is argued that even the heading given to the schedules would assume relevance and importance while interpreting the document. Learned counsel has placed reliance on the decisions in Ramaswamy Iyer V. Suppalu Ammal (1964 KLT 1098), F.M. Devaru Ganapathi Bhat V. Prabhakar Ganapathi

¶67

R.S.A. No. 1104 of 2006 & -: 6 :-

¶68

Cross Objection No. 28 of 2007

¶69

Bhat (2004) 2 SCC 504) and C. Cheriathan V. P. Narayanan Embranthiri ((2009)2 SCC 673). It is also argued by the learned counsel that circumstances proved in the case would lead to the irresistible conclusion that the parties wanted item No.5 of A schedule of Ext.A1 to be the exclusive property of the late Santhamma. Learned counsel further argued that the finding of the first appellate court that Ext.B1 is not vitiated by undue influence does not call for any interference.

¶70

Sri. P. Chandrasekhar, the learned counsel for first respondent has contended that it is on a proper interpretation of all the provisions of Ext.A1, partition deed that the trial and first appellate courts came to the conclusion that the suit property - item No.5 of A schedule of Ext.A1 was allotted to the first respondent and Santhamma jointly and hence, Santhamma was not competent to execute Ext.B1 in favour of appellants 1 and 2. According to the learned counsel, the heading given to the schedule cannot control the recitals in the body of Ext.A1. Learned counsel has also invited my attention to the various schedules in Ext.A1 to contend that the parties intended that in item Nos. 1 to 5 of A schedule of Ext.A1 should go to the first respondent and the late Santhamma jointly.

¶71

Learned counsel also argued that finding of the first appellate court that Ext.B1 is not vitiated by undue influence is not

¶72

R.S.A. No. 1104 of 2006 & -: 7 :-

¶73

Cross Objection No. 28 of 2007

¶74

correct. According to the learned counsel, the late Santhamma a widow was not given opportunity for proper advice before the execution of Ext.B1. The 3^rd appellant made her believe that she has exclusive right over the suit property (item No. 5 of A schedule of Ext.A1) and made her to execute Ext.B1 in favour of appellants 1 and 2 who are the children of the 3^rd appellant. In the matter of execution of Ext.B1, the 3^rd appellant (examined as DW.1) had a major role. It is argued that even after Ext.B1, the late Santhamma was collecting rent from the tenant (second respondent) of the building in the suit property. In the circumstances, finding of the trial court regarding undue influence did not warrant interference by the first appellate court.

¶75

Challenge in the cross objection filed by the first respondent is to the finding of the first appellate court that Ext.B1 is not vitiated by undue influence. Trial court answered the question in favour of the first respondent, but the first appellate court was not inclined to accept that view.

¶76

As regards the alleged undue influence, evidence available is that of the husband of first respondent examined as PW.1. He, ofcourse stated that Ext.B1 was obtained under undue influence but, what exactly is the undue influence allegedly practised by the 3^rd appellant is not clear from his evidence, apart from certain

¶77

R.S.A. No. 1104 of 2006 & -: 8 :-

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Cross Objection No. 28 of 2007

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allegations that he has made as to the late Santhamma being taken by the 3^rd appellant to stay with him at a time when she was staying with the first respondent and PW.1. Rule 4 of Order 6 of the Code requires, when a party challenges a document on the ground of undue influence or other vitiating circumstance to give particulars of such undue influence etc. Vague allegations are not sufficient.

¶80

I must notice that Ext.B1 was executed on 18.02.1999. Following that, Santhamma caused Ext.A2 notice to be issued to the first respondent demanding partition of item Nos. 1 to 4 of the A schedule in Ext.A1. That was followed by her filing O.S. No. 173 of 2000 for partition. In the plaint in that case, there is reference to Ext.B1. That means, the late Santhamma has no case that it was under undue influence that she happened to execute Ext.B1. In the circumstances case of the first respondent that Ext.B1 is vitiated by undue influence cannot be accepted as rightly found by the first appellate court. I must also bear in mind that what is frowned upon by the law is not 'influence' but 'undue influence'. Undue influence is the unfair persuasion of a party who is under the domination of the person expressing the persuasion or who, by virtue of the relation between them is justified in assuming that the person will not act in a manner inconsistent with his welfare (see Gopalakrishnan V. Srinivasan - 2010(2) KLT 216). Evidence of such undue influence is

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R.S.A. No. 1104 of 2006 & -: 9 :-

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Cross Objection No. 28 of 2007

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looking in this case. In the circumstances, finding of the first appellate court that Ext.B1 is not vitiated by undue influence requires no interference. The cross objection has to fail.

¶84

The next question is whether the late Santhamma had exclusive right over the suit property - item No. 5 of A schedule of Ext.A1 so that she could gift the entire suit property to the appellants 1 and 2 as per Ext.B1, gift deed ?

¶85

Though learned counsel for the first respondent has contended that even after execution of Ext.B1, the late Santhamma was collecting rent from the second respondent/tenant of the building therein, I do not find any plea that Ext.B1 is a sham document. Moreover, it is seen from the documentary evidence produced by the appellant that the gift as per Ext.B1 was accepted and acted upon by the 3^rd appellant as guardian on behalf of appellants 1 and 2. It is also revealed from the various documents produced by the appellants in the trial court that pursuant to Ext.B1, the appellants are in possession of the suit property, paying its revenue and tax for the building thereon.

¶86

So far acceptance of the gift is concerned the settled possession of law is that when the gift is not onerous, only slight evidence of its acceptance is sufficient and that in appropriate case, even the recital in the document as to the donor divesting

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R.S.A. No. 1104 of 2006 & -: 10 :-

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Cross Objection No. 28 of 2007

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himself/herself of his/her title, interest and possession of the property in favour of the donee would be sufficient . In this case it is not disputed that sufficient recitals are contained in Ext.B1 by which the late Santhamma divested herself of whatever right she had in the suit property and it was conveyed to the appellants 1 and 2. I also referred to the documentary evidence to show that the gift was accepted and acted upon on behalf of appellants 1 and 2 during the life time of the late Santhamma. Hence, even if it is shown that after Ext.B1, gift deed the late Santhamma collected rent from the second respondent/tenant in the building in the suit property that in my view is of no consequence.

¶90

The crucial question for decision is whether the late Santhamma had exclusive right over the suit property ? For that, a reference to the recitals in Ext.A1 is necessary. The said document shows that the parties to it, the late Santhamma, the first respondent, 3^rd appellant and Jayakumar decided to terminate their ownership right in the properties referred to therein and have exclusive title and possession of the shares allotted to them. It is stated in Ext.A1 that the properties referred to therein are divided into 4 equal shares among the late Santhamma, first respondent, 3^rd appellant and Jayakumar . It is further stated that Santhamma and the first respondent were to form one group while the two sons (of whom the

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R.S.A. No. 1104 of 2006 & -: 11 :-

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Cross Objection No. 28 of 2007

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3^rd appellant was by then married) were to form two other groups. Each sharer was to take the share allotted to him/her exclusively without any right or claim for other sharers. Each sharer was permitted to mutate the property and obtain patta for the share allotted to him/her. The total value of properties was assessed at Rs. 6 lakhs and each sharer was to get property worth Rs. 1,50,000/-. So far as A schedule of Ext.A1 is concerned, it is further recited in Ext.A1 that if any property was left behind on the death of Santhamma (party No.1 therein), on her death, that item was to go to the first respondent. For A schedule item Nos. 1 to 5, value was fixed as Rs. 3 lakhs i.e. property worth Rs. 1,50,000/- each to the late Santhamma and the first respondent while for the B and C schedule items in Ext. A1 ( allotted to the sons) the value fixed was Rs. 1,50,000/- each.

¶94

In the A schedule of Ext. A1, the following heading is given:

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"I kŸ]W KÐOU jLsOU jÒrOWLqLp wLÍ AÚàOU qL^ sƒÜ]àOU''

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(A schedule for party Nos. 1 and 4, Santhamma and Rajalekshmi)

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Rajalekshmi is the first respondent. Thereafter comes items 1 to 4 of the schedule. Then comes item No.5 of A schedule of Ext.A1. For that item, a separate heading is given as under

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""KÐLU jÒrOWLq] wLÍ AÚàV fj]\ÿV ''

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(for Santhamma, party No.1 exclusively)

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R.S.A. No. 1104 of 2006 & -: 12 :-

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Cross Objection No. 28 of 2007

¶102

There is a mark given (in the form of a line) below the said heading and thereafter, item No.5 of A schedule (the suit property) is described. The trial court proceed on a wrong assumption that item No.5 of A schedule was the self acquired property of the late Santhamma brought into the family hotchpotch and hence the allotment of that item as per Ext.A1 has to be treated as a family arrangement. That view is not correct as item No.5 of A schedule of Ext.A1 belonged to the late Unnikrishnan Menon as per document No. 2339 of 1091.

¶103

The argument of learned counsel for the appellant is that in the light of the above, the irresistible conclusion is that item No.5 of A schedule of Ext.A1 (the suit property) was exclusively allotted to the share of the late Santhamma. On the other hand, learned counsel for the first respondent would contend that the expression,

¶104

''So¤ NkWLqU y]È]\ÿ''

¶105

stated in A schedule of Ext.A1 meant, properties allotted to the late Santhamma and the first respondent as per the recitals in Ext.A1. It is argued that the said expression used while describing item No.5 of A schedule of Ext.A1 meant that the late Santhamma was allotted item No.5 as recited in Ext.A1.

¶106

It is relevant to refer to the decisions on construction of

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R.S.A. No. 1104 of 2006 & -: 13 :-

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Cross Objection No. 28 of 2007

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deeds. In Ramaswamy Iyer V. Suppalu Ammal (supra), it is held that in interpreting documents, the entire documents has to be read as a whole. If all the provisions can be given effect to without overriding any principle of law, it has to be so done. If there are conflicting provisions (in the document), those provisions which are in accordance with the principal intention of the executant have to be given effect to. It is always a matter of ascertaining the true intention of the parties and the intention must be gathered on a fair and reasonable construction of the document considered as a whole. The same principle is laid down in F.M. Devaru Ganapathi Bhat V.

¶110

Prabhakar Ganapathi Bhat and C. Cheriathan V. P. Narayanan Embranthiri (supra). In the last of the said decisions in para 12, it is held that;

¶111

“ a document, as is well known, must be read in its entirety. When a character of a document is in question, although the heading thereof would not be conclusive, it plays a significant role. Intention of the parties must be gathered from the document itself but therefore circumstances attending thereto would also be relevant; particularly when the relationship between the parties is in question. For the said purpose, it is essential that all parts of the deed should be read in their entirety".

¶112

In the light of the above decision, it is not as if the headings

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R.S.A. No. 1104 of 2006 & -: 14 :-

¶114

Cross Objection No. 28 of 2007

¶115

given to the schedules in Ext.A1 are to be ignored. That also has to be read along with the other recitals in Ext.A1 to understand the true intention of the parties to it.

¶116

Ext.A1, partition deed was executed on 30-12-1989. The first respondent was married to PW.1 on 09-01-1990. That is, on the day Ext.A1 was executed, first respondent was unmarried. That is why the first respondent and the late Santhamma, then a widow formed one group in Ext.A1. The 3^rd appellant and Jayakumar, the sons of the late Santhamma formed the two other group. In Ext.A1, properties are partitioned among the late Santhamma, her two sons and the first respondent as 4 equal shares, each share being valued at Rs. 1,50,000/-. I also referred to the recitals in Ext.A1 that each sharer is to get his/her share exclusively with right to effect mutation and obtain patta and that the other sharer was not have any right over such shares. In other words, each of the sharers under Ext.A1 was to get exclusive right over the shares allotted to them. That is what the body of Ext. A1 in clear cut terms say. Items 1 to 4 of A schedule of Ext.A1, it is specially stated in Ext.A1 were allotted to the first respondent and the late Santhamma jointly. So far as item No. 5 is concerned, though it falls in the A schedule, it is the last item mentioned in A schedule with a separate heading that it is the exclusive share allotted to the late Santhamma.

¶117

R.S.A. No. 1104 of 2006 & -: 15 :-

¶118

Cross Objection No. 28 of 2007

¶119

In item No.1 of A schedule of Ext.A1, it is written

¶120

'' So¤ v]vq]\ÿ NkWLqU'' (as described above). It can only meanacquisition of that item as per the deed referred to in the body of Ext.A1. In item No. 2 of A schedule, it is stated that the property mentioned therein is covered by document No.1663 of 1975. When it comes to item No. 3 of A schedule, the expression ''So¤ NkWLqU y]È]

¶121

\ÿ'' (acquired as above stated ) is used which means that the said item is also covered by document No.1663 of 1975. So far as item No.4 of A schedule of Ext.A1 is concerned, it is specially stated that the said item was acquired as per document No.2339 of 1091(by the late Unnikrishnan Menon). Hence, when for item No.5 of the A schedule,

¶122

the expression ''So¤ NkWLqU y]È]\ÿ'' (acquired as above stated) is used, I can only understand it as an item acquired (by the late Unnikrishnan Menon) as per Document No.2339 of 1091 mentioned specifically for item No.4 of A schedule.

¶123

Even otherwise, I do not find any expression or recital in Ext.A1 which says that the entire item Nos.1 to 5 of A schedule are allotted to the first respondent and the late Santhamma jointly. On the other hand, the clear recital and indication are to the effect that item Nos. 1 to 4 were allotted to the late Santhamma and first respondent jointly while, item No. 5 of A schedule was allotted to the

¶124

R.S.A. No. 1104 of 2006 & -: 16 :-

¶125

Cross Objection No. 28 of 2007

¶126

share of the late Santhamma exclusively.

¶127

Apart from the heading given to item No.5 which I have extracted above, there are also other circumstances which support the above view.

¶128

Santhamma was a widow at the time Ext.A1 was executed and was aged about 46 years. There is no case or evidence that she was having any job or other occupation. Her self-acquired property was also brought into the family hotchpotch. Ext.A1 was executed on 30.03.1989 and registered on 03.01.1990. First respondent was married to PW.1 on 09.01.1990. It is therefore clear that at the time Ext.A1 was executed the marriage of first respondent with PW.1 was almost settled. The 3^rd appellant, son of the late Santhamma was married. In such a situation it was quite unlikely that when the family properties were partitioned, nothing was left exclusively for the late Santhamma who, I said, was a widow aged about 46 years. Item No.5 of A schedule of Ext.A1 took in the residential building. Parties to Ext.A1 wanted the house to go to the share of the late Santhamma exclusively. If that item were also allotted to the late Santhamma and the first respondent jointly, a further division of item No. 5 including the house was inevitable probably possible putting the widow to difficulty. That is why the parties decided to allotted item No.5 of A schedule to the late Santhamma exclusively.

¶129

R.S.A. No. 1104 of 2006 & -: 17 :-

¶130

Cross Objection No. 28 of 2007

¶131

If the intention of the parties were to allot item Nos. 5 of A schedule of Ext.A1 also jointly to the first respondent and the late Santhamma, there was no necessity to divide the properties into 4 equal shares, each share being valued at Rs.1,50,000/-. It was sufficient that properties were divided into three shares, one share jointly for the group formed by the first respondent and the late Santhamma and the other two shares for the 3^rd appellant and Jayakumar. Thus, the division of properties into 4 equal shares, each share being valued at Rs. 1,50,000/- is a definite indication of the intention of the parties. Yet another circumstance is that notwithstanding that item Nos. 4 and 5 of A schedule in Ext.A1 falls in the same survey number and otherwise have common boundaries, it is divided separately and included in two schedules - 4 and 5 of A schedule of Ext.A1. A reading of the boundaries of item Nos. 4 and 5 of A schedule of Ext.A1 shows that otherwise the said items lay contiguous within the same boundaries. It is also seen that item No.5 is carved out from item No.4, abutting the public road on the western side. It is interesting to note that on all sides of item No.5 except the western side, it is bounded by the rest of the property - item No.4. I must also notice from Ext.C1, report of the Advocate Commissioner that the house compound (item No.5) is well bounded by compound walls on all sides. Learned counsel for the first respondent points out

¶132

R.S.A. No. 1104 of 2006 & -: 18 :-

¶133

Cross Objection No. 28 of 2007

¶134

that while as per the measurement of item No.5 of A schedule in Ext.A1, the extent is about 5 cents, the meter measurements given by the Advocate Commissioner in Ext.C1 shows the extent of property bounded by the compound walls as around 3.77 cents. This argument is raised to show that at the time of Ext.A1, item No.5 was not measured or demarcated. In response, learned counsel for the appellants submits that the Advocate Commissioner has not conducted any survey of the properties and that for widening of the public road on the western side, a portion of the suit property (item No.5 of A schedule) was surrendered and thus a lesser extent. If the parties intended that item No.5 should also go to the late Santhamma and the first respondent jointly, there was absolutely no necessity to carve out item No.5 from item No.4 and include it in a separate schedule with a separate heading, giving it separate boundaries and describing it by side measurement. If item No.5 were to go to the late Santhamma and the first respondent, normally a single schedule involving items 4 and 5 would have been given under the caption given for the A schedule, rather than giving a separate caption for item No.5 that it is allotted to the late Santhamma exclusively. These circumstances clinchingly show that the intention of parties to Ext.A1 was to allot item No.5 to the late Santhamma exclusively.

¶135

The learned counsel for first respondent has brought to my

¶136

R.S.A. No. 1104 of 2006 & -: 19 :-

¶137

Cross Objection No. 28 of 2007

¶138

notice that in Ext.A2, notice issued on behalf of the late Santhamma demanding partition preceding the filing of O.S. No.173 of 2000. There is no mention of Ext.B1 and the entire A schedule items (1 to 5) is sought to be partitioned. It is argued that if item No. 5 of A schedule was allotted exclusively to the late Santhamma, she would not and need not have asked for partition of item No.5 also. The demand for partition of item No.5 indicated that it was the joint property of the late Santhamma and the first respondent, it is argued.

¶139

In the plaint in O.S. No.173 of 2000, there is reference to in Ext.B1. Admission if any, cannot confer or extinguish title to immovable property. Hence the mere mention of entire A schedule items in O.S. Nos. 173 of 2000 for partition cannot affect the nature of disposition of item No.5 of A Schedule of Ext.A1 or the intention of the parties to that document I have stated above.

¶140

As against O.S.No. 173 of 2000, the first respondent came with O.S. No.537 of 2000 contending that Ext.A1, partition deed is null and void and demanding partition of the entire properties dealt with as per Ext.A1. That suit was withdrawn later.

¶141

I have referred to the recitals in Ext.A1 as also the description of A schedule items and the separate heading given for item No.5 of A schedule of Ext.A1. I also referred to the conferment of exclusive right for the sharers over the shares allotted to them with

¶142

R.S.A. No. 1104 of 2006 & -: 20 :-

¶143

Cross Objection No. 28 of 2007

¶144

the other sharers having no right over it. Having read Ext.A1 as a whole also in the light of the description of A schedule item Nos. 1 to 4, particularly item Nos. 4 and 5 falling in the same survey numbers and the separate heading given for item No.5 of the A schedule, I am inclined to uphold the contention of the learned counsel for appellants that the intention of parties revealed from Ext.A1 was to confer exclusive right on the late Santhamma over item No. 5 of A schedule item of Ext.A1 (suit property). If that be so, she was competent to execute Ext.B1 concerning the said property in favour of the appellants 1 and 2.

¶145

Even if it is assumed that the late Santhamma had only joint right over item Nos. 5 of A schedule of Ext.A1 with the first respondent, still, I must hold that the late Santhamma was competent to transfer by way of gift or otherwise her half right over item No.5 of A schedule in Ext.A1. Learned counsel for the first respondent contends that there is no such case pleaded by the appellants. What I have pointed out is the consequence if I were to hold that item No.5 of A schedule of Ext.A1 belongs to the late Santhamma and the first respondent jointly. But I found that by Ext.A1, the late Santhamma got exclusive right over item No.5 of the A schedule and hence she was competent to dispose of by way of gift or otherwise the said item in favour of the appellants 1 and 2. If that be so the challenge to

¶146

R.S.A. No. 1104 of 2006 & -: 21 :-

¶147

Cross Objection No. 28 of 2007

¶148

Ext.B1 should fail. The finding of the trial and first appellate courts to the contrary cannot be sustained as the finding is based on a wrong interpretation of Ext.A1.

¶149

The substantial questions of law framed are answered as above.

¶150

Resultantly,

¶151

1.The cross objection filed by the first respondent is dismissed.

¶152

2.The second appeal is allowed as under :-

¶153

a) The judgment and decree of learned Additional District Judge, Ernakulam in A.S. No. 372 of 2003 and the judgment and decree of learned Munsiff, Ernakulam in O.S. No. 689 of 2002 are set aside.

¶154

b) O.S. No. 689 of 2002 of the court of learned Munsiff, Ernakulam will stand dismissed.

¶155

Having regard to the relationship between the parties they are directed to suffer their costs through out.

¶156

sd/-

¶157

THOMAS P. JOSEPH, JUDGE. //True copy// P.A. To Judge

¶158

smv

Jayaraj v. K.Rajalakshmi

Case brief

What is this about?

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Jayaraj v. K.Rajalakshmi

Case brief

What is this about?

What did the court decide?

What the court decided

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