Dismissed

Vareed v. Elia

Kerala HC5 Dec 2013RFA/597/2007

Case brief

AI extract

What is this about?

This appeal against a suit for partition arose from a dispute over family properties devolving from deceased Kunjipylo. Appellants challenged a 1969 settlement deed as a sham executed during mental incapacity. The High Court upheld the trial court's dismissal, ruling the deed valid and effects of partition in praesenti, rendering remaining properties non-partible.

What did the court decide?

The appeal was dismissed and the parties were directed to suffer costs.

Vareed Vs Elia — Succession and Inheritance | Kerala HC (2013)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT:

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THE HONOURABLE MR.JUSTICE T.R.RAMACHANDRAN NAIR &

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THE HONOURABLE MR. JUSTICE B.KEMAL PASHA

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THURSDAY, THE 5TH DAY OF DECEMBER 2013/14TH AGRAHAYANA, 1935

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RFA.No. 597 of 2007 ( )

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AGAINST THE JUDGMENT IN OS.NO. 273/2005 OF PRL.SUB COURT, IRINJALAKUDA

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APPELLANTS/PLAINTIFFS 2 TO 6 :

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1. VAREED S/O. PUTHENVEETIL KUNJAVARA

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MURINGOOR DESOM, MELOOR VILLAGE, MUKUNDAPURAM TALUK.

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2. THOMAS,

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S/O.PUTHENVEETIL KUNJAVARA, -DO- -DO-

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3. AVARACHAN,

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S/O.PUTHENVEETTIL KUNJAVARA, KORATTY THEKKUMURI VILLAGE & DESOM, MUKUNDAPURAM TALUK.

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4. JOHNY, S/O. -DO- -DO-

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5. BABU,

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S/O.PUTHENVEETTIL PAULOSE MURINGOOR DESOM, MELOOR VILLAGE.

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BY ADV. SRI.T.N.MANOJ

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RESPONDENTS/IST PLAINTIFF AND DEFENDANTS :

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1. ELIA, W/O. KANNAKADAN LONA, VELLANCHIRA DESOM, ALOOR VILLAGE,

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MUKUNDAPURAM TALUK, PIN - 680 307.

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2. ROSSY, W/O.CHAMAKKALA LONAPPAN, MURINGOOR DESOM, KORATTY THEKKUMURI VILLAGE

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MUKUNDAPURAM TALUK, PIN - 680 307.

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3. ELIAMMA, W/O.ARAKKAL JOHNY,

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CHIRANGARA DESOM, KORATTY KIZHAKKUMURY VILLAGE MUKUNDAPURAM TALUK, PIN - 680 307.

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...2/-

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RFA.No. 597 of 2007 ( ) -2-

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4. VARGHESE, S/O.MANDY LAZER, KORATTY THEKKUMURI DESOM, MUKUNDAPURAM TALUK.

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PIN - 680 307.

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5. LINSY, D/O.MANDY VARGHESE, -DO- -DO6. WILSY, D/O. MANDY VARGHESE, -DO- -DO7. PINCY, -DO- -DO8. ELIA, W/O. PUTHENVEETIL PAULOSE, MELOOR VILLAGE, MURINGOOR DESOM, MUKUNDAPURAM TALUK, PIN - 680 307.

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9. JOY, S/O. PUTHENVEETIL PAULOSE, -DO- -DO-

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10. SHAJU, S/O. -DO- -DO11. LISSY, W/O. KANNUKADAN WILSON VELLANCHIRA DESOM, ALOOR VILLAGE MUKUNDAPURAM TALUK, PIN - 680 307.

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12. VARGHESE, S/O. PULLELI VAREED MELOOR VILLAGE, MURINGOOR DESOM MUKUNDAPURAM TALUK, PIN - 680 307.

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13. AMMINI @ ROSSY, D/O. VADAKKAN MANJALI KUNJUVAREED ALUVA TALUK, KARUKUTTY VILLAGE MUKUNDAPURAM TALUK, PIN - 680 307.

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14. THRESSIAMMA, W/O. MUKADAYIL JOHN, THAMMANAM VILLAGE KANAYANNOOR TALUK, PIN - 680 307.

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15. ANNAM, W/O. PULLELY VAREED, MELOOR VILLAGE, MURINGOOR DESOM PIN - 680 307.

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*ADDL. R16 & R17 IMPLEADED

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*16. JOHN, MUKKADAYIL HOUSE, NORTH PALATHURUTHY, KARANAKODAM KALOOR, ERNAKULAM.

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17. SHIJU, S/O. JOHN, -DO- -DOARE IMPLEADED AS ADDL. R16 & R17 AS PER ORDER IN IA NO. 2820/2009

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DATED 05/12/2013.

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R2 TO R9 & R11 BY ADV. SRI.G.P.SHINOD

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R12 TO R17 BY ADV. SRI.AYPE JOSEPH

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R16 & R17 BY ADV. SRI.K.G.BALASUBRAMANIAN

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THIS REGULAR FIRST APPEAL HAVING BEEN FINALLY HEARD ON 05-12-2013, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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T.R. RAMACHANDRAN NAIR & B.KEMAL PASHA, JJ. ~~~~~~~~~~~~~~~~~~~~~~~~~~~

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R.F.A.No.597/2007

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~~~~~~~~~~~~~~~~~~~~~~~~~~~ Dated this the 5^th day of December, 2013

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J U D G M E N T

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Ramachandran Nair, J.

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This is an appeal from the decree and judgment in a suit for partition

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and the plaintiffs 2 to 6 are the appellants and the first plaintiff and other

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defendants are the respondents.

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The parties are Christians. The case of the plaintiffs was that

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the plaint schedule properties originally belonged to one Kunjipylo and after

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his death, the properties devolved on plaintiffs and defendants. When

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partition was demanded, a reply was given stating that a settlement deed

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was executed in the year 1969. According to the plaintiffs, the same is not

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a valid document and the document is a sham one as late Shri Kunjipylo

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was mentally and physically unable to execute any such document also

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and it was not the result of free disposing of mind.

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In the written statement filed by defendants 11, 12 and 13, it

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was contended that document No.1103/69 of S.R.O, Chalakudy is a valid

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R.F.A.No.597/2007

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-:2:-

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one and after the execution of the document in the year 1969, Kunjipylo

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died only on 17/01/1982. He did not suffer from any mental or physical

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disability. Out the plaint schedule property, 92 cents in Survey No.911, 12

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cents in Survey No.909, 48 cents in Survey No.910/2 and 70 cents in Survey No.797 were sold during the life time of Kunjipylo and Vareed, who

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is the father of defendant No.11, and the said properties are in possession

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of various other persons. Defendant No.14 also supported the pleas raised

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by defendant Nos.11, 12 and 13.

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Accepting the contentions of the defendants, the suit was

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dismissed.

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Learned counsel for the appellants Shri T.N.Manoj submitted

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that the court below mainly dismissed the suit relying upon Ext.B1

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document produced therein. By referring to the clauses in the said document, learned counsel explained that even though it is styled as a settlement and partition deed, the same is not clear. Going by the same, 'A' schedule is allotted to late Shri Kunjipylo and 'B' schedule is allotted to

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Shri Vareed. Late Shri Kunjipylo had one son Shri Vareed and two

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R.F.A.No.597/2007

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-:3:-

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daughters Mariyam and Elia, who is the first plaintiff. After the death of

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Kunjipylo, 'A' schedule properties in the entirety or whatever remaining will

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go to share of Vareed itself. It is submitted that even though it is alleged

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that the document has come into effect, as the nature of the document is

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not clear, the suit should not have been dismissed.

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Learned counsel Shri K.G.Balasubramanian appearing for the

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respondents submitted that Ext.B1 is a valid document which was executed in the year 1969. There is no evidence, as is clear from the

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findings of the trial court also, that plaintiffs could not prove that late Shri Kunjipylo did not have a disposing mind at the time of execution of Ext.B1.

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He lived for another 13 years after the document was executed. Learned counsel also submitted that the first plaintiff, who was given `1,500/- as per

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the provisions of Ext.B1 had received it as evident from Ext.B2 which is dated 20/03/1971. Therefore, there is clear admission on the part of the

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first plaintiff about Ext.B1 document and her son PW1 and other legal

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representatives are bound by Ext.B1 document and Ext.B2 receipt.

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R.F.A.No.597/2007

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-:4:-

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The trial court has heavily relied upon Ext.B1 document along

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with Ext.B2 receipt for dismissing the suit. The oral evidence was also

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considered. It was found that there is no evidence to show that after the

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death of Kunjipylo on 17/01/1982, the property was possessed jointly.

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Therefore, it was found that the property was being enjoyed as provided in

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Ext.B1 deed. In the absence of any evidence that late Shri Kunjipylo was

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not mentally and physically fit, it was held by the court that Ext.B1 was a

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family arrangement and the devolution of the properties as per Ext.B1 will

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survive. It is also stated that the execution of Ext.B2 document is also

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important.

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It is clear from Ext.B1 document which was executed in 1969

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that late Shri Kunjipylo and his son Vareed divided the properties into 'A'

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and 'B' schedule. It is mentioned that the daughters have been married away and provisions have been made in respect of them also. Even

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though the learned counsel for the appellants submitted that there is no

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validity regarding the same, we are of the view that the said contention

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cannot be accepted.

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R.F.A.No.597/2007

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-:5:-

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The execution of Ext.B1 document and the acceptance of the

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terms therein is clear from Ext.B2 also. Acceptance of Ext.B1 by the first

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plaintiff is evident from Ext.B2 which refers to it. In that view of the matter,

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it can be safely concluded that the document Ext.B1 can easily be termed

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as settlement and effects partition and the properties were clearly being

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enjoyed in terms of it and, as rightly pointed out by the learned counsel for

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the respondents, the shares have been allotted for enjoyment in praesenti

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and not in future. Therefore, the document cannot be considered as a Will.

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In that view of the matter, the properties were rightly not found partible.

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We find nothing wrong with the Judgment rendered by the trial court and,

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hence the appeal is dismissed. The parties are directed to suffer their

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costs.

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Sd/-

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(T.R. Ramachandran Nair, Judge)

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Sd/-

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(B.Kemal Pasha, Judge)

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\True copy// P.S to Judge

Vareed v. Elia

Case brief

What is this about?

What did the court decide?

Vareed v. Elia

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Parties & counsel

Coram

Case details

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