Allowed

Santhammal v. Sivankutty Asari

Kerala HC15 Feb 2016RSA/885/2010

Case brief

AI extract

What is this about?

This second appeal concerns a partition suit regarding inherited property. The High Court held that a partition deed, executed after a temporary armed conflict but in furtherance of a specific family agreement for a sister's dowry, was valid. The appeal was accepted, restoring the trial court's decree and setting aside the appellate court's cancellation of the deed.

What did the court decide?

Impugned judgment of the lower appellate court set aside; decision of the trial court restored; interlocutory applications closed.

Santhammal Vs Sivankutty Asari — 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 MR. JUSTICE P.B.SURESH KUMAR

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MONDAY, THE 15TH DAY OF FEBRUARY 2016/26TH MAGHA, 1937

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RSA.No. 885 of 2010 ( )

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AGAINST THE JUDGMENT IN AS. NO.87/2007 OF ADDITIONAL DISTRICT COURT-I, THIRUVANANTHAPURAM DATED 25/06/2010. AGAINST THE JUDGMENT IN OS. NO.365/1997 OF I ADDITIONAL SUB COURT, THIRUVANANTHAPURAM DATED 18/01/2007.

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APPELLANTS/RESPONDENTS 1 & 3/DEFENDANTS 1 & 3:

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1. SANTHAMMAL, D/O.MEENAKSHY AMMAL, PANIKKATHUVILAKATHU VEEDU, T.P.9/670, PACHALLOOR, THIRUVANANTHAPURAM-680 213.

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2. SADANANDAN ASARI, S/O.VELAYUDHAN ASARI, PANIKKATHUVILAKATHU VEEDU, T.P.9/670, PACHALLOOR, THIRUVANANTHAPURAM-680 213.

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BY ADV. SRI.P.S.RAMESH KUMAR.

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RESPONDENTS/APPELLANT & RESPONDENT NO.2/PLAINTIFF & DEFENDANT NO.2 :

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1. SIVANKUTTY ASARI, S/O.VELAYUDHAN ASARI, AGED 54 YEARS, PANIKKATHUVILAKATHU VEEDU, T.P.9/669, PACHALLOOR, THIRUVANANTHAPURAM-680 213.

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2. SASIDHARAN ASARI, S/O.VELAYUDHAN ASARI, PANIKKATHUVILAKATHU VEEDU, T.P.9/670, PACHALLOOR, THIRUVANANTHAPURAM-680 213.

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R1 BY ADV. SRI.D.SAJEEV.

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THIS REGULAR SECOND APPEAL HAVING BEEN FINALLY HEARD ON 27/01/2016, THE COURT ON 15/02/2016 DELIVERED THE FOLLOWING:

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rs.

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P.B.SURESH KUMAR, J.

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R.S.A. No.885 of 2010

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Dated 15^th February, 2016.

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J U D G M E N T

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Defendants 1 and 3 in a suit for cancellation of a document and for partition are the appellants.

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The suit property is a property measuring 7.5 cents and a building therein. The suit property belonged to the father of the parties, viz., Velayudhan Achari. Velayudhan Achari bequeathed the suit property to the plaintiff and defendants 2 and 3. According to the plaintiff, the defendants obtained Ext.A6 partition deed from the plaintiff under threat and coercion and that therefore, the same is liable to be cancelled. The suit was, therefore, filed for cancellation of Ext.A6 partition deed and for partition of the one third right of the plaintiff over the suit property.

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The defendants 1 and 3 contested the suit contending, inter alia, that Ext.A6 is a document voluntarily executed by the plaintiff and therefore, he is not entitled to the reliefs claimed in the suit. The trial court found that the plaintiff

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RSA 885 of 2010

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has not established the case set up by him and consequently dismissed the suit. However, the appellate court reversed the decision of the trial court and passed a decree declaring the one third right of the plaintiff over the suit property, holding that Ext.A6 is vitiated by threat and coercion. Defendants 1 and 3, who are aggrieved by the said decision of the appellate court have, thus come up in this second appeal.

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Heard the learned counsel for the appellants as also the learned counsel for the first respondent/plaintiff.

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The learned counsel for the appellants took me to the relevant pleadings and evidence in the case and contended based on the same that the view taken by the appellate court that Ext.A6 is vitiated by threat and coercion is perverse. In the light of the submission made by the learned counsel for the appellants, the following question is formulated for decision in the second appeal :

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Is the finding rendered by the lower appellate court that Ext.A6 is vitiated by threat and coercion perverse?

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RSA 885 of 2010

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The fact that the suit property belonged to the deceased father of the parties is not in dispute. Likewise, the fact that the father of the parties had bequeathed the suit property to the plaintiff and defendants 2 and 3 is also not in dispute. The father of the parties is no more. As such, there cannot be any dispute to the fact that the bequeathal made by the father of the parties has taken effect. As noted above, the case of the plaintiff is that he is entitled to one third share in the suit property. He also claimed a special right over the building in the suit property as specifically mentioned in the will of his father. The defendants, while admitting the bequeathal made by their father in favour of the plaintiff and defendants 2 and 3, contended that after the death of the father, the parties have entered into Ext.A6 partition deed by which 1½ cents out of the suit property was given to the first defendant who is their sister. According to the defendants, in the light of Ext.A6 partition deed executed by the parties, the plaintiff is not entitled to the reliefs claimed in the suit.

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Ext.A6 partition deed was executed between the

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RSA 885 of 2010

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parties on 23.11.1993. An agreement was entered into between the plaintiff and the third defendant a few days prior to the execution of Ext.A6 partition deed, on 12.11.1993. Ext.A9 is the said agreement. Ext.A9 recites that the plaintiff and defendants 2 and 3 have agreed to meet the marriage expenses of their younger sister by contributing Rs.23,333/each and that out of the said amount of Rs.23,333/-, the plaintiff has paid a sum of Rs.20,000/- to the third defendant. Ext.A9 also recites that the plaintiff and defendants 2 and 3 have agreed to give to the first defendant ½ cent of property each out of the property obtained by them. Ext.A9 further recites that since the building in the suit property is allotted to the plaintiff by the father, in case the building covers the entire 2 ½ cents of property which the plaintiff is entitled to, he has agreed to pay to the first defendant the price of the ½ cent in lieu of the property. It is recited in Ext.A9 that all the cases, both civil and criminal pending between the parties will be withdrawn by the respective parties. It is evident from Ext.A9 that it is an arrangement entered into at the mediation of the

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RSA 885 of 2010

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local political leaders and they also witnessed the agreement. Ext.A6 partition deed is executed between the parties in furtherance to Ext.A9 agreement. The appellate court seems to have taken the view that since there was an occurrence on 28.10.1993 by which defendants 2 and 3 had assaulted the plaintiff, Exts.A6 and A9 can only be taken as documents obtained by the defendants from the plaintiff by threat and coercion. I do not agree with the view taken by the appellate court. The occurrence referred to by the appellate court took place on 28.10.1993. Ext.A9 agreement was entered into between the parties thereafter on 12.11.1993. As noted above, in Ext.A9, there is a recital to the effect that the plaintiff has paid Rs.20,000/- to the third defendant towards the marriage expenses of their younger sister. A reading of Exts.A6 and A9 would indicate beyond doubt that Ext.A6 partition deed has been executed by the parties in furtherance to Ext.A9 agreement. When there is nothing on record to indicate that Ext.A9 agreement was vitiated by threat and coercion, it cannot be said that Ext.A6 is vitiated by threat and coercion. True,

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RSA 885 of 2010

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there was an occurrence on 28.10.1993 by which defendants 2 and 3 had assaulted the plaintiff. Ext.A9 executed between the parties subsequent to the date of occurrence, on 12.11.1993 contains a clause to the effect that the parties have agreed to withdraw the civil and criminal cases between them. As such, merely for the reason that there was an occurrence as alleged by the plaintiff on 28.10.1993, it cannot be said that the document executed on 12.11.1993 is vitiated, especially in view of the recitals contained in Ext.A9 agreement. Further, a close reading of the materials on record would indicate that the only modification made by the parties as regards the ownership of the suit property is that 1 ½ cents out of the 7 ½ cents of property obtained by the plaintiff and defendants 2 and 3 was given to the first defendant, who is none other than their sister. It has come out in evidence that the first defendant does not have any property of her own and that she is residing in the kitchen of the residential building in the suit property. As noted above, Exts.A6 and A9 agreements are witnessed by the local political party leaders. In the said circumstances, it is only

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RSA 885 of 2010

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reasonable to infer that since the first defendant does not have any property of her own, the two brothers, namely, defendants 2 and 3 negotiated with the plaintiff and made him give ½ cent of property out of the property obtained by him from his father to the first defendant. A document executed in this regard, according to me, can never be challenged on the ground of threat and coercion. The question of law framed for decision is thus answered in favour of the appellants.

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In the result, the impugned judgment of the lower appellate court is set aside and the decision of the trial court is restored. All the interlocutory applications in the appeal are closed.

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Sd/-

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P.B.SURESH KUMAR, JUDGE.

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tgs

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(true copy)

Santhammal v. Sivankutty Asari

Case brief

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Santhammal v. Sivankutty Asari

Case brief

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