Allowed

K.J.Rosamma v. Kannamkara Mathew

Kerala HC7 Oct 2016AS/277/1994

Case brief

AI extract

What is this about?

This is an appeal against a trial court decree granting partition of 25 acres of land. The appellant challenged the decree on the grounds that it failed to frame issues regarding the validity of alleged gift and assignment deeds creating rights for respondents. The High Court set aside the decree and remanded the case to ensure issues on document validity are framed.

What did the court decide?

Decree and judgment set aside; case remanded to trial court for fresh consideration and disposal with opportunities to frame issues on document validity.

K.J.Rosamma Vs Kannamkara Mathew — Partition | Kerala HC (2016)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT:

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THE HONOURABLE MRS.JUSTICE K.HEMA

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THE HONOURABLE MR.JUSTICE A.M.SHAFFIQUE

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THURSDAY, THE 15TH DAY OF MARCH 2012/25TH PHALGUNA 1933

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AS.No. 277 of 1994

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OS.481/1991 of ADDL. SUB COURT, THALASSERY

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APPELLANTS/DEFENDANTS 6 TO 14:

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K.J.ROSAMMA, D/O JOSEPH, RESIDING AT

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PADIPARAMBIL, KOLAYAD, KUTHUPARAMBA.

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K.J.ELIZABATH, D/O JOSEPH, DO. DO.

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K.J.THOMAS, S/O JOSEPH, DO. DO.

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K.J.PHILOMINA, D/O JOSEPH, DO. DO.

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K.J.ACHAMMA, D/O JOSEPH, DO. DO.

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K.J.JACOB, S/O JOSEPH, DO. DO.

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K.J.DOMINIC, S/O JOSEPH, DO. DO.

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K.J.MONI MARY, D/O JOSEPH, DO. DO.

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ANNA THOMAS, W/O K.J.THOMAS, DO. DO.

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BY ADV. SRI.KALEESWARAM RAJ

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RESPONDENTS/PLAINTIFFS & DEFENDANTS 1 TO 5:

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KANNAMKARA MATHEW, S/O KURIYAN, RESIDING AT PUTHALAM, KOLAYAD AMSOM DESOM, KUTHUPARAMBA.

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KANNAMKARA JOSEPH, S/O KURIAN,

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DO. DO. (DIED LRS R10 TO 15 IMPLEADED)

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KANNAMKARA ROSAMMA, D/O KURIYAN, DO. DO.

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KANNAMKARA MARY, MARIYAM, D/O KURIYAN, DO. DO. 5. K.J.OSHA MARIYAM, D/O LATE K.J.MARIYAM, ERSIDING AT PADIPARAMBIL, KOLAYAD AMSOM DESOM, KUTHUPARAMBA. 6. K.J.JOSEPH, S/O JOSEPH, DO. DO. (DIED LRS ADDL. R16 TO 23 IMPLEADED) 7. K.J.THRESYA, D/O JOSEPH, DO. DO. (DIED LRS ADDL. R24 TO 27 IMPLEADED) 8. K.J.ANNAKUTTY, D/O JOSEPH, DO. DO. (DIED LRS ADDL. R28 TO 34 IMPLEADED) 9. K.J.MATHEW, S/O JOSEPH, DO. DO. (DIED LRS ADDL. R35 TO 38 IMPLEADED) ADDL. R10 TO R38 IMPLEADED 10. MARY JOSEPH, W/O LATE KANNANKARA JOSEPH, AGED 45 YEARS, UPPUVEETTIL HOUSE, P.O.NELLARACHAL, AMBALAVAYAL, MEPPADY, WAYANAD DIST. 11. MATHAI JOSEPH, S/O LATE JOSEPH, AGED 20 YEARS, UPPUVEETTIL HOUSE, P.O.NELLARACHAL, AMBALAVAYAL, MEPPADY, WAYANAD DIST. 12. ANIL JOSEPH, S/O LATE JOSEPH, AGED 18 YEARS, UPPUVEETTIL HOUSE, P.O.NELLARACHAL, AMBALAVAYAL, MEPPADY, WAYANAD DIST. 13. YESODHA JOSEPH, W/O LATE JOSEPH, KANNANKARA HOUSE, VAYANNUR P.O., KOLAYAD. 14. PRAVEEN, S/O LATE JOSEPH, KANNANKARA HOUSE, VAYANNUR P.O., KOLAYAD. 15. PRAMITHA, D/O LATE JOSEPH, KANNANKARA HOUSE, VAYANNUR P.O., KOLAYAD. 16. EALIKUTTY, W/O LATE PAPPU @ JOSEPH, KANNANKARA HOUSE, P.O.MATTILAYAM, NIRAVILPUZHA, WAYANAD DIST.

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MARY, D/O LATE JOSEPH, KANNANKARA HOUSE, P.O.MATTILAYAM, NIRAVILPUZHA, WAYANAD DIST.

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CHINNAMMA, D/O LATE JOSEPH, KANNANKARA HOUSE, P.O.MATTILAYAM, NIRAVILPUZHA, WAYANAD DIST. 19. THRESIAMMA, D/O LATE JOSEPH, KANNANKARA HOUSE, P.O.MATTILAYAM, NIRAVILPUZHA, WAYANAD DIST.

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ROSELY, D/O LATE JOSEPH, KANNANKARA HOUSE, P.O.MATTILAYAM, NIRAVILPUZHA, WAYANAD DIST.

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PHILOMINA, D/O LATE JOSEPH, KANNANKARA HOUSE, P.O.MATTILAYAM, NIRAVILPUZHA, WAYANAD DIST.

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SHELLY, D/O LATE JOSEPH, KANNANKARA HOUSE, P.O.MATTILAYAM, NIRAVILPUZHA, WAYANAD DIST.

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JOLLY, D/O LATE JOSEPH, KANNANKARA HOUSE, P.O.MATTILAYAM, NIRAVILPUZHA, WAYANAD DIST.

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OSHA, D/O LATE THRESSIA, KURAVANPADY, AGALI P.O., ATTAPPADY, MANNARCAD, PALAKKAD.

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KURIACHAN, S/O LATE THRESSIA, KURAVANPADY, AGALI P.O., ATTAPPADY, MANNARCAD, PALAKKAD.

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DEVASIYACHAN, S/O LATE THRESSIA, KURAVANPADY, AGALI P.O., ATTAPPADY, MANNARCAD, PALAKKAD.

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MARYKUTTY, D/O LATE THRESSIA, KURAVANPADY, AGALI P.O., ATTAPPADY, MANNARCAD, PALAKKAD.

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THOMAS (HUSBAND OF ANNAKUTTY), CHALAKKAL HOUSE, PUTHALAM P.O.KOLAYAD, KANNUR DIST.

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JOSE, S/O LATE ANNAKUTTY, CHALAKKAL HOUSE, PUTHALAM P.O.KOLAYAD, KANNUR DIST.

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MARY, D/O LATE ANNAKUTTY, CHALAKKAL HOUSE, PUTHALAM P.O.KOLAYAD, KANNUR DIST.

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DAISY, D/O LATE ANNAKUTTY, CHALAKKAL HOUSE, PUTHALAM P.O.KOLAYAD, KANNUR DIST. 32. BABU, S/O LATE ANNAKUTTY, CHALAKKAL HOUSE, PUTHALAM P.O.KOLAYAD, KANNUR DIST. 33. SUJA, D/O LATE ANNAKUTTY, CHALAKKAL HOUSE, PUTHALAM P.O.KOLAYAD, KANNUR DIST.

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NIMMY, D/O LATE ANNAKUTTY, CHALAKKAL HOUSE, PUTHALAM P.O.KOLAYAD, KANNUR DIST.

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GRACY, W/O LATE MATHEW, KANNANKARA HOUSE, PUTHALAM, P.O. KOLAYAD, KANNUR DIST.

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DENSIL, S/O LATE MATHEW, KANNANKARA

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HOUSE, PUTHALAM, P.O. KOLAYAD, KANNUR DIST.

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PREMOSH, S/O LATE MATHEW, KANNANKARA HOUSE, PUTHALAM, P.O. KOLAYAD, KANNUR DIST.

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NIYA, D/O LATE MATHEW, KANNANKARA HOUSE, PUTHALAM, P.O. KOLAYAD, KANNUR DIST.

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Impleaded as per order dt. 14.02.2012 in IA 1055/2010

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BY ADV. SRI.K.DIVAKARAN NAIR BY ADV. SRI.KAUSER EDAPPAGATH for R5 BY ADV. SRI.A.MOHAMED MUSTAQUE for R5,R11,R16R23,R29,R32,R36,R37.

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THIS APPEAL SUITS HAVING BEEN FINALLY HEARD ON 15-03-2012, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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K.Hema & A.M.Shaffique, JJ.

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A.S.No.277 of 1994

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Dated this the 15^th day of March, 2012

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JUDGMENT

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Hema J.

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A suit was filed by plaintiffs-four in number before Sub Court against defendants 1 to 13 for partition. Later, defendant no.14 was also impleaded in the suit (parties will be referred hereafter as they are referred in the suit). After trial, a decree was passed by Sub Court, directing plaint schedule properties, which is having an extent of 25 acres, to be divided into 14 equal shares and plaintiffs be allotted 1/14 share. The shares of defendants were also declared. Equity and reservation was ordered to be considered in the final decree. The said decree and judgment are challenged in this appeal by defendants 6 to 14 (defendants 1, 2, 3, 7, 9 and 10 were set ex parte before the trial court).

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According to plaintiffs, plaint schedule property having

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an extent of 25 acres belong to their grandfather (Joseph). The grandfather had two wives and children in both the wedlocks. The

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children and grandchildren are entitled to get right in the property, but some of them are no more. Surviving legal representatives of deceased Joseph are parties to the suit. Defendant no.14 (appellant no.9) was impleaded, since an extent of two acres of property was allegedly assigned in her favour by deceased Joseph by virtue of Ext.B8 assignment deed dated 01.12.1975. She is the daughter-in-law of deceased Joseph.

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According to plaintiffs, the property originally belonged to their grandfather deceased Joseph and they inherited the property through their father Kannamkara Kurian, who died in the year 1971. He is the son of deceased Joseph in his first wife. After the death of grandfather, plaintiffs and defendants 1 to 13 are in joint possession and enjoyment of plaint schedule property. This was admitted by defendants till two years prior to filing of the suit. Later, they started showing indifferent attitude and profits were given to the plaintiffs only up to 1989.

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Defendants 1 to 13 avoided partition of the property

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and there was a rumour that defendants created some documents. But, such documents are not binding on the

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AS 277/94 3

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plaintiffs. They are entitled to ignore those documents and proceed to claim partition, especially since they are not parties to such documents. Plaint schedule property is jointly possessed and enjoyed by plaintiffs and defendants 1 to 13. Deceased Joseph was laid up for five years prior to the death and he was not having disposing capacity. Defendants utilised this opportunity to create false documents. A lawyer notice was issued requesting defendants to partition the plaint schedule property, but no reply was sent. Therefore, the suit is filed.

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A joint written statement was filed by defendants 8 and 13 denying all the allegations made in the plaint in respect of right in the property. They contended that plaintiffs and defendants were in joint possession and enjoyment of plaint schedule property. Deceased Joseph gifted portions of the property to his children on different occasions as per registered documents. After the death of Joseph, no portion of the plaint schedule property was in possession and enjoyment of plaintiffs. If at all plaintiffs or other defendants have any right over plaint schedule property, it is lost by adverse possession and limitation.

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It is also averred that the fact that properties were gifted and bequeathed by deceased Joseph was known to the plaintiffs and defendants. Therefore, without asking for setting aside the document executed by deceased Joseph, the suit for partition is not maintainable. It is not correct to say that deceased Joseph had no proper state of mind to execute the document. Properties were improved by defendants after the gift. Plaintiffs never asserted any right in the plaint schedule property, since all the properties were gifted and bequeathed in favour of children of deceased Joseph. Joseph had no right over the property at the time of death. Hence, a decree for partition cannot be granted.

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Defendants 11 and 12 also filed a written statement almost in the same lines as that of defendants 8 and 13. Defendant no.14 filed a separate written statement and contended that her father-in-law, deceased Joseph, had executed a registered assignment deed (Ext.B8) in the year 1975 and sold two acres of plaint schedule property to her and since then she is in possession and enjoyment of said property. She has also

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improved the same after spending considerable money. She also raised similar contentions in respect of gift, etc.

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Issues were framed by trial court in respect of

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partibility of plaint schedule property and plea of adverse possession and limitation, etc. Evidence was adduced. PWs1 and 2 were examined on the side of plaintiffs and Ext.A1 was marked. On the side of defendants, DWs 1 to 4 were examined and Exts.B1 to B23 were marked. Exts.X1 and X2 were also marked. After considering pleadings and evidence, trial court found that signature in Exts.B1, B2 and X1 (gift deeds) are not similar in all pages. It was also held that there is a suspicion surrounding creation of Ext.B3 which arose from evidence of DW3. The court below also held that properties were not transferred to the donee, even if it is accepted that gift deeds were executed. Trial court also found that though defendant no.14 claims that she got some property by virtue of Ext.B8 assignment deed, it is not a valid document.

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The property is held to be in exclusive possession and enjoyment of defendants, but in the light of the findings in

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AS 277/94

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respect of gift deeds and sale deed, etc. it was held that plaintiffs are entitled to get 1/14 share in the property and first defendant is entitled to 1/14 share and defendants 2 to 13 are entitled to 1/14 share each. The said decree and judgment are challenged in this appeal.

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Heard both sides. Perused the records. According to learned counsel for appellants, a decree for partition ought not to have been granted, since there is no prayer to set aside the various documents like registered gift deeds, sale deed, etc. A decree for partition ought not to have been granted without considering the validity of those documents in proper perspective, it is argued. Learned counsel for respondents argued that court below had considered the evidence adduced in respect of each and every document and entered a finding in favour of plaintiffs and that those documents cannot be acted upon. Therefore, there is no reason to interfere with the findings, it is argued.

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On hearing both sides and on going through the pleadings, we find that plaintiffs took up a contention that there was some rumor regarding creation of certain documents in

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AS 277/94

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respect of the property and that those documents can be ignored by plaintiffs. It is also their case that defendants have no right over the disputed property by virtue of those documents. Defendants contended that there are certain gift deeds, assignment deed, etc. relating to the disputed property and they also produced those documents before the court. On a perusal of the impugned judgment, it is clear that no specific issue was framed in respect of validity of each of the registered documents involved in this case, which pertain to considerable extent of property which forms part of the plaint schedule property.

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Of course, pleadings in the written statement are vague. Learned counsel for respondents pointed out that documents were also not produced along with the written statement. In the light of the vague pleadings in the written statement and in the absence of documents being produced along with the written statement, strictly speaking, the court below cannot be blamed for not framing specific issues regarding various registered documents produced in this case, it is submitted.

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AS 277/94

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On going through the records, it can be seen that written statements were filed in July and August 1992. But the documents were produced only along with the applications filed in the year 1993, numbered as I.A.Nos.3605/93, 3635/93 and 3634/93. Various documents (Exts.B1 to B23) produced by defendants include registered gift deeds, assignment deed, tax receipts, purchase certificate, etc. In the light of what is revealed from those documents and the written statements, court ought to have considered whether appropriate issues are to be framed in respect of the validity of the documents or not.

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Order XIV Rule 3 of Code of Civil Procedure will reveal that court may frame issues on the basis of the allegations made in the pleadings or in answers to interrogatories delivered in the suit and also the contents of documents produced by either party. The court has also to hear both sides before issues are framed, in the light of what is revealed from various documents. The court below appears to have not focused its attention to the actual controversy between the parties.

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It is relevant to mention that court below ignored even the assignment deed Ext.B8 from consideration, by merely entering a finding that it is not a valid document. No other reason is stated for ignoring that document. In the same manner, various contentions are raised before this Court regarding absence of handing over possession prior to the death of donor, omission on the part of the first defendant in not filing a written statement and raising a plea in respect of gift etc. The court below failed to consider the effect of not raising specific plea in the written statement and also in not filing written statement by certain defendants, especially since they seem to make a claim on the basis of gift deeds.

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We are satisfied that the matter requires reconsideration and disposal, in accordance with law. The tial court will hear both sides and consider whether appropriate issues can be framed relating to the validity of the documents, in accordance with law. If the parties find that issues cannot be framed appropriately in the absence of specific plea, the court below may give opportunity to amend the pleading, as it may

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AS 277/94

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deem fit and proper and dispose of the matter in accordance with law. The decree and judgment cannot be sustained in the absence of lower court applying its mind to the relevant aspects especially the validity of various documents to the property in the right perspective.

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In the result, following order is passed:

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i. Decree and judgment are set aside.

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ii. Case is remanded to trial court for fresh consideration and disposal in accordance with law, in the light of the observations made in this judgment.

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iii. If fresh issues are to be framed, court may give opportunity to adduce evidence as may be required by both sides and as the court thinks fit and proper.

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iv. Parties shall appear before the trial court on receipt of notice from the court by their respective counsel.

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This appeal is allowed.

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Sd/-

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(K.Hema, Judge)

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Sd/(A.M.Shaffique, Judge)

tkv

AS 277/94

K.Hema, J.

A.S.No.277 of 1994

JUDGMENT

15^th March, 2012

K.J.Rosamma v. Kannamkara Mathew

Case brief

What is this about?

What did the court decide?

K.J.Rosamma v. Kannamkara Mathew

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Statutes considered

Parties & counsel

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Case details

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