Dismissed

K.Mohanan Pillai v. K.Asokan

Kerala HC8 Jun 2017AS/338/2001

Case brief

AI extract

What is this about?

The High Court of Kerala dismissed the appeal of an unsuccessful partition suit. The court held that evidence did not support the plea of fraud regarding a sale deed in the names of the respondents and found the business concern to be a partnership firm, not the appellant's father's proprietorship.

What did the court decide?

The appeal was dismissed, and the judgment of the court below was confirmed.

K.Mohanan Pillai Vs K.Asokan — Partition | Kerala HC (2017)

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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 V.CHITAMBARESH & THE HONOURABLE MR. JUSTICE SATHISH NINAN

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THURSDAY, THE 8TH DAY OF JUNE 2017/18TH JYAISHTA, 1939 AS.No. 338 of 2001 ( ) -----------------------

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AGAINST THE JUDGMENT AND DECREE IN OS.431/1996 of PRINCIPAL SUB COURT,NORTH PARAVUR DATED 31-10-2000

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APPELLANT/PLAINTIFF: --------------------

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K.MOHANAN PILLAI, S/O KARUNAKARA PILLAI, KARUNALAYAM, KAPPRASSERY KARA, CHENGAMANAD VILLAGE, ALUVA TALUK.

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BY ADV. SRI.DINESH R.SHENOY

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RESPONDENTS/DEFENDANTS:

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1. K.ASOKAN, S/O PADMALAYATHIL KARUNAKARAN PILLAI, KAPPRASSERY KARA, CHENGAMANAD VILLAGE, ALUVA TALUK. 2. K.AJAYAN, S/O KARUNAKARAN PILLAI, -DO- -DO-

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3. K.MANOJ KUMAR, S/O KARUNAKARAN PILLAI, -DO- -DO-

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4. INDIRA VIJAYAN, D/O KARUNAKARAN PILLAI AND W/O VIJAYAN, OFFICER'S COLONY, MAVOOR P.O, KOZHIKODE.

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5. K.MALATHY SASI, D/O KARUNAKARAN PILLAI AND W/O SASI, GEETHANJALI, KEEZHTHANI P.O, IRINJALAKUDA.

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6. K.AJITHA, D/O KARUNAKARAN PILLAI AND W/O PRABHAKARAN NAIR.

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7. K.SOBHANA, D/O KARUNAKARAN PILLAI -DO- -DO8. K.MAYA, D/O KARUNAKARAN PILLAI AND W/O VENUGOPALAN, -DO-

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9. PADMAVATHI AMMA, W/O PADMALAYATHIL KARUNAKARAN PILLAI, KAPPRASSERY, CHENGAMANAD VILLAGE, ALUVA TALUK.

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R1-R3 BY ADV. SRI.M.GOPIKRISHNAN NAMBIAR

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THIS APPEAL SUITS HAVING BEEN FINALLY HEARD ON 01-06-2017, THE COURT ON 08.06.2017 DELIVERED THE FOLLOWING:

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V.Chitambaresh & Sathish Ninan, JJ. ==============================

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A.S No.338 of 2001

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==========================

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Dated this the 8^th day of June, 2017

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JUDGMENT

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Sathish Ninan, J

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The unsuccessful plaintiff in a suit for partition is the appellant.

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The plaint schedule consists of two items of properties, plaint A and B schedule. The plaint A schedule is 2.60 Ares of property with building thereon. Plaint B schedule is the business concern under the name and style “Bharath Hardware Stores”, with the hardware, sanitary wares, paints and other items of the business functioning in the building in plaint A schedule.

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Plaintiff and defendants 1 to 8 are siblings. The 9^th defendant is their mother. Exhibit A1 is the document of title relating to the plaint A schedule property. It stands in the name of defendants 1 to 3. The plaintiff seeks for partition of the plaint A schedule on the contention that, though Ext.A1 sale

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A.S No.338/2001

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deed dated 04.08.1992 stands in the name of defendants

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1 to 3, the real title holder is the plaintiff's father late Karunakaran Pillai and that Ext.A1 was caused to be executed in the name of defendants 1 to 3 by exercising fraud. The consideration for the sale had proceeded from the father which he had obtained out of the plaint B schedule business. Plaintiff seeks for partition of the plaint A schedule property on setting aside Ext.A1. The plaintiff also claims that the business shown in B schedule to the plaint belonged to their late father Karunakaran Pillai, that it was his proprietorship concern and accordingly seeks for partition of the plaint B schedule.

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The defendants contend that as per Ext.A1 sale deed

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of the year 1992 they got title to the property. They purchased the property utilising their funds. The allegation of fraud etc are denied. The title over the property vest with defendants 1 to 3 and not their father. As regards the business concern included in

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A.S No.338/2001

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the plaint B schedule, it was contended that it is the partnership business of defendants 1 to 3. Originally it was the partnership business of Karunakaran Pillai and defendants 1 to 3. But later Karunakaran Pillai retired from the firm and Ext.B9 partnership agreement was executed. The claim of the plaintiff that it is the proprietorship concern of the father, was denied.

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The court below found that the title over the plaint A schedule property vests with defendants 1 to 3, that the plaint B schedule business is the partnership concern of defendants 1 to 3, and accordingly dismissed the suit.

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Heard Sri. Dinesh R. Shenoy on behalf of the appellant-plaintiff and Sri. M. Gopikrishnan Nambiar on behalf of respondents 1 to 3.

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Ext.A1 sale deed stands in the name of defendants 1 to 3. The said document is challenged by the plaintiff alleging to be vitiated by fraud. According to the plaintiff, the consideration for the said document was

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A.S No.338/2001

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paid by their father late Karunakaran Pillai and that defendants 1 to 3 fraudulently caused the document to be executed in their names. We find that on the materials on record it is not possible to uphold the plea of fraud. Karunakaran Pilla died in the year 1996. Ext.A1 document was executed on 4-8-1992. Karunakaran Pilla never raised any objection to nor did he challenge the document. There is no case that defendants 1 to 3 by exercising fraud had kept him and the other members of the entire family out of knowledge regarding the contents of Ext.A1. There is no reason to believe that Karunakaran Pilla after paying the consideration and purchasing the property did not even care to enquire about the document. Even taking it that Karunakaran Pilla had paid the consideration still there is nothing preventing him from doing it for defendants 1 to 3. It is in evidence that another business concern of Karunakaran Pilla namely “Bharat Industries” was given by him to the

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A.S No.338/2001

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plaintiff. So there is nothing strange or unnatural in the acquisition of Ext.A1 in the names of defendants 1 to 3. There is no evidence to prove the fraud alleged. The learned counsel for the appellant would relying upon Ext.A5 document argue that the parties had treated Ext.A1 as belonging to the family. Referring to the deposition of PW1 it is submitted that there was a mediation between the parties pursuant to which Ext.A5 letter was written by the 7^th defendant who is their sister proposing terms of settlement wherein Ext.A1 property is also included. Relying on this he would argue that the parties always treated it as an asset of the family and not as that of defendants 1 to 3. We are not able to agree with the said submission. Ext.A5 is not signed by anyone. The maker of Ext.A5 is not examined. So also, Ext.A5 seem to include even the engineering workshop admittedly given to the plaintiff. What ever that be, Ext.A5 cannot help the plaintiff to prove the

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A.S No.338/2001

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contention that Ext.A1 belongs to the entire family. In the circumstances, going by the apparent tenure of Ext.A1 sale deed, it can only be held that defendants 1 to 3 are the title holders of the plaint schedule A schedule property covered by Ext.A1. The finding of the court below as regards the same is liable to be confirmed.

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As regards the claim of the plaintiff that the business included in plaint B schedule in the name and style Bharath Hardware Stores is a proprietorship concern of late Karunakaran Pilla and that on his death the same is partible, the evidence in the case shows otherwise. Ext.B1 is the shop inspection report of the Agricultural Income Tax and Sales Tax department dated 24.10.1984 in respect of the business concern Bharath Hardware Stores. Therein late Karunakaran Pillai is shown as the managing partner. Ext.B2 is another such shop inspection report dated 21.11.1985 wherein also Karunakaran Pillai shown as

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A.S No.338/2001

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the managing partner of the concern. Ext.B3 is the application for licence submitted by Karunakaran Pillai as the managing partner of Bharath Hardware Stores to the Municipal Commissioner, Aluva. Ext.B4 is the Assessment order dated 28.02.1985 by the Income Tax department with respect to the business concern. Therein the status of the concern is shown as registered firm. Ext.B5 is yet another assessment order from the Income Tax department wherein also the business concern M/s Bharath Hardware Stores is shown as a registered firm. Ext.B6 is an order passed by the Assistant Commissioner of Agricultural Income Tax and Sales Tax, Ernakulam dated 27.02.1992 wherein the business concern M/s Bharath Hardware Stores is represented in the proceedings by its managing partner K.Ajayan, who is the second defendant in the suit. It is claimed by defendants 1 to 3 that in Ext.B6 the second defendant figure as managing partner since by that time as per Ext.B9 partnership agreement dated

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20.12.1991 their father Karunakran Pillai had retired from the firm and the firm was reconstituted with defendants 1 to 3. Ext.B9 is signed by Karunakaran Pillai also. The genuiness of Ext.B9 is disputed by the appellant. The learned counsel invited the attention of the court to the signatures of Karunakaran Pilla in Ext.B9 to persuade us to hold that it is a concocted document. It is the signatures of Karuanakaran Pilla at pages 3 and 4 of Ext.B9 that the appellant wanted us to refer to, to hold against the genuiness of the document and conclude against the partnership and the retirement of Karunakaran Pilla. The stamp papers on which Ext.B9 is written are dated 10-12-1991. They were issued on 19-12-1991 and the document is written on 20-12-1991. Even ignoring the contents of pages 3 and 4 of the document the recitals at the other pages of B9 sufficiently indicates retirement of Karunakaran Pilla. Ext.B7 dated 14.07.1982 is copy of the proceedings of the Income

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A.S No.338/2001

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Tax Officer, Aluva, in respect of the business concern M/s Bharath Hardware Stores wherein also the assessee is shown as partnership firm with three partners namely the late Karunakaran Pillai and defendants 1 and 2. Ext.B8 is a shop inspection report dated 06.12.1981 of the Agricultural Income Tax and Sales Tax department wherein also the business concern Bharath Hardware Stores is shown as a partnership firm. Ext.B9 as noted above is a retirement and reconstitution deed of the partnership. It relates to the business concern M/s Bharath Hardware Stores. Under the said deed, Karunakaran Pillai retired from the firm and the firm was reconstituted with defendants 1 to 3. Ext.B9 is acted upon, as is evidence by Ext.B6. There is nothing to indicate that Karunakaran Pilla involved with the business of the firm in any manner subsequent to the date of Ext. B9. On the face of Exts.B1 to B9, the contention of the plaintiff that the plaint B schedule business was a

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proprietorship concern of Karunakaran Pillai, is unsustainable. The plaintiff was at no point of time, a partner of the firm. Apart from the above, it is to be noted that these documents Exts.B1 to B9 were marked through PW1 in his cross examination wherein he has admitted all these documents though in reexamination he denied the signature in Ext.B9. So also he has admitted that their father Karunakaran Pillai had another business concern under the name and style Bharath Industries, which is an engineering

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workshop, which was given by the father to the plaintiff. The document produced by the plaintiff marked as Ext.A2, which is a letter from the Sales Tax Office, Aluva relates to the said business concern. Right over the plaint B schedule and partition, is claimed on the assertion that it is the proprietory concern of late Karunakaran Pilla. Since it is found against, the claim of the plaintiff as regards the plaint B schedule also fails.

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A.S No.338/2001

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We do not find any reason to interfere with the judgment passed by the court below. Accordingly, the appeal stands dismissed.

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Sd/- V.Chitambaresh, Judge

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Sd/- Sathish Ninan, Judge

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vdv

K.Mohanan Pillai v. K.Asokan

Case brief

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K.Mohanan Pillai v. K.Asokan

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