Allowed

Sundaran v. Smt.Sathyabhama and Another

Kerala HC12 Dec 2019RFA/585/2009

Case brief

AI extract

What is this about?

A partition claim between co-sharers was held within limitation, which commenced upon opposition to or neglect of a demand for division, not the predecessor's death. The appeal was allowed and the preliminary decree set aside for additional assignment deeds to be received and the partible extent determined through a commissioner.

What did the court decide?

Preliminary decree set aside; trial court directed to receive additional deeds, ascertain the partible extent through a commissioner, and pass a fresh preliminary decree.

Sundaran Vs Smt.Sathyabhama and Another — Partition | Kerala HC (2019)

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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 MARY JOSEPH

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THURSDAY, THE 12^TH DAY OF DECEMBER 2019 / 21ST

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AGRAHAYANA, 1941

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RFA NO. 585 OF 2009

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AGAINST THE JUDGMENT AND DECREE IN OS 316/2006 OF ADDITIONAL SUB COURT, PALAKKAD, DATED 30/03/2009

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APPELLANT/DEFENDANT:

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SUNDARAN, SON OF KOCHAN, ORAMBALAM HOUSE, NJARAKKODE POST,, MANKARA, PALAKKAD TALUK,, PALAKKAD DISTRICT. BY ADV SRI.S.EASWARAN

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RESPONDENTS/PLAINTIFFS:

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1 SMT.SATHYABHAMA, WIFE OF KRISHNAN, THENOOR, PARLI POST, PALAKKAD TALUK, PALAKKAD DISTRICT.

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2 SMT. VATSALA WIFE OF VELAYUDHAN KOOTHUPARAMBU HOUSE, EDATHARA POST, PARLI, PALAKKAD TALUK, PALAKKAD DISTRICT. BY ADVS.SRI.GEEN T.MATHEW SRI.O.RAMACHANDRAN NAMBIAR(SR.)

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THIS REGULAR FIRST APPEAL HAVING COME UP FOR HEARING ON 12.12.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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C.R.

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MARY JOSEPH, J.

Dated this the 12^th day of December, 2019

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JUDGMENT

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The judgment and decree dated 30.03.2009 in O.S. No.316 of 2006 of Additional Subordinate Judge's Court, Palakkad (for short, 'the trial court') is under challenge in the appeal on hand. The appellant is the defendant in the suit and respondents are plaintiffs therein. The suit was for partition.

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The suit was tried by the trial court and a preliminary

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decree for partition was passed on the following terms :

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“a) The plaint schedule properties, excluding the 40 cents of land shown in the schedule

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to the written statement, shall be divided into three equal shares and two such shares be allotted to the plaintiffs together (one such share each) and one such share to the defendant.

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b) The plaintiffs are entitled to get 2/3 share in the profits derived from the partible properties from the defendant from the date of suit till the date of actual delivery of the properties to the plaintiffs. The quantum of share of profits shall be decided in final decree proceedings.

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c) The plaintiffs are entitled to get costs of the suit and costs shall come out of the estate.

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d) The parties are at liberty to file petition for passing final decree for partition. The defendant shall remit court fee for getting his share allotted in final decree proceedings.

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e) A copy of the schedule to the written statement shall be attached to the decree in addition to the plaint schedule.

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f) The suit was adjourned sine die .”

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3. The appeal on hand is filed by the defendant through

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Adv.Easwaran challenging the preliminary decree on twin grounds as stated hereinbelow:

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a) The suit is not maintainable as it is barred by limitation.

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b) Without adverting to a contention raised in the written

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statement that certain items of properties included in the schedule appended to the plaint were already sold to one Mr.Azhagappan, Chandran and others, the preliminary decree was passed holding that the entire extent of plaint schedule property is partible.

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The learned counsel for the appellant has filed I.A. No.3396 of 2009 under Order XLI Rule 27 read with Section 151 of the Code of Civil Procedure, 1908 (for short, 'the C.P.C') in the appeal memorandum.

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Alongwith the above interlocutory application, documents were also produced and sought to be marked as

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Annexures A1 & A2 in evidence additionally. It was averred that the 1^st respondent in the appeal had sold certain extent of properties given to her by Sri.Kochan, to one Sri.Chandran as per document dated 20.12.1974, photocopy of which is produced alongwith the petition as Annexure A1, and 23½ cents out of the properties scheduled in the plaint was assigned by Sri.Kochan to one Sri.Azhagappan as per document dated 13.07.1982, photocopy of which is produced as Annexure A2 and that on the same day, certain extent of property was also sold by his father to him.

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According to the learned counsel for the appellant, though those aspects were suppressed by plaintiffs before the trial Court by omitting to plead in the plaint, the court was made to apprise of those by the appellant by raising specific contentions in the written statement filed. Though the above contended factums were material and relevant for adjudication of the issues involved and grant of a decree for partition as applied for, the trial court failed to advert to those while passing the impugned preliminary decree. The learned counsel has also taken a contention that Annexures A1 and A2 were not available in his custody at the relevant time but could be traced out and produce, only when the

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trial court was in the process of passing a preliminary decree. According to him those documents being relevant and necessary to have a just and proper adjudication in the case on hand, he has applied for receiving those in evidence additionally.

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The contention raised secondly was that the suit being filed after the statutorily prescribed time is barred by limitation. According to him, as per Article 113 of the Limitation Act, 1963 (for short, ‘the Act’), any suit for which no period of limitation is provided elsewhere in the schedule appended to the Act, the period of limitation is three years from the date on which the right to sue accrues. According to the appellant, the mother of the parties, predeceased their father Kochan, who died on 17.01.1983. Therefore, the right to sue having been accrued to the plaintiff on 17.01.1983, the suit ought to have been instituted within three years therefrom. The suit in the case on hand having been instituted only in the year 2016 is barred by limitation. According to him, a plea on maintainability was taken up in the written statement, but the trial court omitted to raise it as an issue for adjudication and answer it. According to him, since the contention was taken intending to be dealt with as an issue in the case, the trial court ought not to have passed a preliminary decree, without

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raising it as an issue and adjudicating on it. Therefore, the trial court ought to have considered the issue of limitation and on finding it affirmatively, given a decent burial to the suit.

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In the backdrop of arguments advanced as above, it is incumbent upon this Court to see whether material pleadings on limitation were incorporated in the plaint by the plaintiff or whether the defendant had taken care to incorporate those in the written statement.

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On a perusal of the plaint, this Court noticed dearth of pleadings in the plaint to apprise the court that certain extent of the plaint schedule property had been assigned to third parties during the lifetime of Sri.Kochan and even thereafter. If such transfers were actually effected as urged by the learned counsel for the defendant, those being crucial and material for determining the partible extent of plaint schedule property, the trial court must have been apprised of those, by incorporating necessary contentions in the written statement. As rightly contended by the learned counsel for the appellant, the plaintiff failed to incorporate those in the plaint, by way of specific pleadings, for reasons best known to him alone.

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According to the learned counsel, the appellant had taken contentions of the nature precisely in his written statement. Paragraph 4 of the written statement being apposite in the context is extracted hereunder;

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“4) This defendant submits that subsequent to the above said assignment deed in favour of this defendant he is in absolute possession and enjoyment of the property detailed in the schedule of this written statement and that the plaintiffs have no right, title, interest or possession over the same and that this defendant is entitled to enjoy and put to use the property in any legal manner as the rightful owner. This defendant submits that there is a toddy shop, bamboo depot, hollowbricks/Wellring manufacturing unit in the property detailed in the schedule to this written statement. The above units are all licensed units run by Sivadasan son of this defendant and by one Muraleedharan. The plea in para 3 of the plaint are all incorrect and are denied by this defendant. The plaintiffs are not entitled to claim nor this defendant is liable to pay any share of profit accruing from the property detailed in the schedule to this written statement which forms a part of the plaint schedule property. This defendant is collecting the rent as the rightful owner and the allegations to the contrary in para 3 are all incorrect and false and is liable to be dismissed. The above suit is wholly lacking in bonafides filed with intent to harass this defendant suppressing the material facts. The plaintiffs are well aware about the assignment deed in favour of this defendant. The plaintiffs are not entitled to claim future profits as stated in the plaint. The pleas in paras 4 to 8 of the plaint are incorrect and denied by this defendant. This defendant is not in management of the property and is not liable to give possession of the property owned and possessed by this defendant. The plaint schedule property is not liable to be partitioned as claimed. The extent and measurements shown in the plaint schedule are incorrect. This defendant submits that even during the lifetime of Kochan, he has given several portions of

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the plaint schedule property to the plaintiffs and that there is no property in existence to be partitioned.”

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The above extract would make it clear that contentions

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about the assignments of properties were taken by the defendant in his written statement. Therefore, necessarily an issue regarding the extent of property partible ought to have been raised by the trial court for adjudication. In Paragraph 2 of the written statement to which attention of this Court is drawn, a specific contention was found taken that,

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“this defendant submits that the above suit is not maintainable both in law and on facts and is to be dismissed on that ground”.

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The relevant provisions of C.P.C. are worth mention note of hereunder and this Court do so.

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Order VII Rule 6 provides that grounds for exemption from limitation must be specifically shown in the plaint. It reads:

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“Where the suit is instituted after the expiration of the period prescribed by the law of limitation, the plaint shall show the ground upon which exemption from such law is claimed:

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Provided that the court may permit the plaintiff to claim exemption from the law of limitation on any ground not set out in the plaint, if such ground is not inconsistent with the grounds

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set out in the plaint.”

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Order XIV Rule 1 provides for framing of issues, which reads :

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“1. Framing of issues—

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(1) Issues arise when a material proposition of fact or law is affirmed by one party and denied by the other.

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(2) Material propositions are those propositions of law or fact which a plaintiff must allege in order to show a right to sue or a defendant must allege in order to constitute his defence.

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(3) Each material proposition affirmed by one party and denied by the other shall form the subject of distinct issue.

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(4) Issues are of two kinds :

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(a) issues of fact,

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(b) issues of law.

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(5) At the first hearing of the suit the Court shall, after reading the plaint and the written statements if any, and after examination under rule 2 of Order X and after hearing the parties or their pleaders, ascertain upon what material propositions of fact or of law the parties are at variance, and shall thereupon proceed to frame and record the issues on which the right decision of the case appears to depend.

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(6) Nothing in this rule requires the Court to frame and record issues where the defendant at the first hearing of the suit makes no defence.”

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When viewed in the above statutory background, it is clear that the pleading extracted supra does not have the quality of precision. The pleading is one found commonly taken in all written statements and therefore, an adjudication on it cannot be taken as intended. The defendant in a suit must particularly contend that the suit is barred by limitation and he must also refer to the Article that governs the period of limitation in the case on hand. The court must also able to be convinced that the contention raised has bonafides and is intended to be adjudicated

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after framing it as an issue. In the case on hand the written statement incorporates only a vague plea of non-maintainability of suit, without stating anything particularly about the reasons for it, the statutory provision providing for it and the time limit within which the suit has to be filed.

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On a perusal of the written statement, a contention was taken in paragraph 2 that the suit is not maintainable both in law and on facts and is to be dismissed on that ground. The contention of the nature being vague, an issue is unlikely to be framed on its basis and adjudicated. If the contention on maintainability of the suit on the ground of limitation was actually intended by the defendant to be adjudicated by the court, it ought

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to have been, “suit is barred as it was filed beyond the period of limitation prescribed under Article 113 of the Act which governs it. If contention was taken in the above manner, the trial court would not have evaded to frame an issue on it's basis and adjudicate it. In the trial court, limitation having not been pleaded particularly and precisely, the trial court cannot be found fault with for not framing it as an issue. Only when the contention taken is precise, clear and unambiguous, the trial court is bound to frame an issue on its basis. Or in other words, the trial court must primarily be convinced from the rival pleadings of the parties that they are at controversy on a point and intended to have an adjudication on it.

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The opposite party must also apprised of the plea in advance and granted with opportunity to contest it in all possible manner. Only when the defendant incorporate the necessary inputs about his defence, then only the court can be convinced of the need to raise an issue on it's basis so as to let the parties to adduce necessary and relevant evidence to establish it. It is well discerned from the written statement, material part of which is extracted supra that, a contention was taken regarding maintainability of the suit, but without stating the grounds on which the said plea was rested. Then the question that warrants

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consideration is whether the defendant is entitled to take the plea of limitation as a ground while canvassing on the question of non maintainability of the original suit for the first time at the appellate stage.

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It is contended by the learned counsel that the suit on hand being one for partition, a specific provision is lacking in the Limitation Act prescribing for period of limitation. Such being the position, Article 113, the residuary provision incorporated under part X of the Limitation Act with caption “suits for which there is no prescribed period will have to be resorted to, for counting the limitation period” has to be resorted to. The provision is extracted hereunder;

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Description of Suit	Period of Limitation	Time from which period beings to run
113. Any suit for which no period of	Three years	When the right
limitation is provided elsewhere in this Schedule		to sue accrues

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Therefore, the period of limitation applicable to a suit for

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partition can be taken as three years and it will start to run from the date on which the right to sue accrues. The time when the right to sue accrues for making an application for obtaining a

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decree for partition is relevant in the context. This undoubtedly will vary from case to case and being a mixed question of law and facts an enquiry by the court into the very question is inevitable.

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According to Sri.Easwaran, the learned counsel, the plaint schedule properties are claimed by the plaintiffs as devolved upon themselves and the defendant after the death of Sri.Kochan and Smt.Chella, his wife, who predeceased him. According to him, allocation of shares in the plaint schedule properties was sought by the plaintiffs and defendant by instituting the suit on hand, in view of their entitlement as legal heirs by way of devolution, on the death of Sri.Kochan and Smt.Chella. Therefore, according to him, the right to sue for division of their shares accrued to the legal heirs necessarily on 17/01/1983, the date of death of Sri.Kochan and the three year period as contemplated under Article 113 of the Act will start to run from 17.01.1983. Therefore, the suit on hand having been filed on 19.08.2006, i.e after 23 years from 17.01.1983, is hopelessly barred by limitation.

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Per contra, Sri.O.Ramachandran Nambair, the learned Senior Counsel has contended on behalf of the respondent that the accrual of right to sue will vary from case to case. According to him, the Apex Court in Vidya Devi alias Vidya Vati (dead) by

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LRs Vs. Prem Prakash and others [(1995)4 SCC 496] and Mst.Rukhmabai v. Lala Laxminarayan and others (AIR 1960

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SC 335) had dealt with the time of accrual of right to sue in different contexts and the same would help this Court while appreciating the argument advanced that the right to sue was not accrued to plaintiffs on the death of Sri.Kochan and therefore, the suit was not barred by limitation.

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In Mst.Rukhmabai supra, the question, regarding limitation was raised for the first time before the High Court. The High Court allowed the same to be raised but answered in the negative. The finding when challenged before the Apex Court, the argument raised was whether the plaintiff, respondent therein had knowledge of the fraudulent character of the trust deed as early as on 1917 or at any time during the pendency of the partition suit between Rukhmabai and Chandanlal, instituted in the year 1929 and the suit filed in 1940 admittedly after six years from the date of knowledge, therefore is barred under Article 120 of the Limitation Act. Article 120 of the Limitation Act reads:

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Description of suit Period of Time from which limitation period begins to run __________________________________________________________

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Suit for which Six years When the right no period of to sue accrues limitation is provided elsewhere in this Schedule. __________________________________________________________

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Article 120 was the residuary provision, akin to Article 113

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of the Act. Article 120 was subject to judicial scrutiny both by the judicial committee as well as by the High Courts of various States. The leading decision on the subject of limitation is that of the judicial committee in Mt. Bolo v. Mt. Koklan (AIR 1930 PC 270). The observation of Sir Benod Mitter in the case as quoted in Mst.Rukhmabai supra is extracted hereunder :

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“There can be 'no right to sue' until there is an accrual of the right asserted in the suit and its infringement, or at least a clear and unequivocal threat to infringe that right, by the defendant against whom the suit is instituted.”

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21. In Annamalai Chettiar v. Muthukaruppan Chettiar

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(AIR 1931 PC 9) and in Gobinda Narayan Singh v. Sham Lal Singh (AIR 1931 PC 89), the dictum in Mt. Bolo supra was followed and reiterated.

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In Pothukutchi Appa Rao and Ors. v. Secretary of

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State for India in Council (AIR 1938 Mad 193), a Division Bench

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of the Madras High Court had considered cases of successive

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invasions or denials of a right, and Mutha Venkatasubba Rao. J, speaking for the court expressed his views as follows :

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“There is nothing in law which says that the moment a person's right is denied, he is bound at his peril to bring a suit for declaration. The Government beyond passing the order did nothing to disturb the plaintiff's possession. It would be most unreasonable to hold that a bare repudiation of a person's title, without even an overt act, would make it incumbent on him to bring a declaratory suit.”

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The court continued to observe :

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“It is a more difficult question, what is the extent of the injury or infringement that gives rise to, what may be termed, a compulsory cause of action?”

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The factual matrix in Mst.Rukhmabai supra, if

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discussed in a nutshell would help to understand the position in a better manner. In that case, a trust deed was executed in 1916. The suit house was constructed in 1920. The trust deed and construction were meant for the benefit of the family and therefore its execution could not constitute any invasion of the plaintiff's right. From 1930 onwards plaintiff has been residing in the suit house. Though it is contended that he had knowledge of

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the litigation between Rukhmabai and Chandanlal claiming the property under the trust deed, for being not a party in that suit, the decision in that litigation did not, in any way bind him or affect his possession of the house. In execution of the decree, the Commissioner appointed by the Court came to the premises on February 13, 1937 to take measurements of the house for effecting partition of the property. Then the plaintiff raised objection and the suit in question in the case was filed in 1940, i.e. within a period of 6 years from 1937.

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What is manifested from the decision supra was that till the time of visit of the Commissioner of the property to divide the same, there was no effective threat on the plaintiff's right to the property and therefore, the right to sue would start to run then alone. Only when a threat to his right over the suit property was made and suit was filed by him within 6 years therefrom, the suit can be taken to have filed within the period of limitation prescribed under Article 120 of the Limitation Act. Accordingly, it was held that the suit was filed within time and the appeal raising challenge mainly on the ground of bar of limitation was dismissed with costs.

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The appellate court held that when period of limitation is not fixed for filing a suit for partition by a Co-bhumidhar against

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other Co-bhumidhar in respect of a joint holding, the question of the other Co-bhumidhar acquiring his title to such holding by adverse possession for over 12 years can never arise. If that be so, the defence taken that title is perfected by adverse possession of a holding by Co-bhumidhar against other Co-bhumidhar, can be of no relevance. Accordingly, the appeal was allowed. The judgment of the Division Bench of the High Court was set aside and the orders of the revenue assistant as affirmed by financial commissioner and the learned Single Judge of the High Court was restored with costs.

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S.Saghir Ahmad, J. was leaned to allow the appeal but expressed his different view, which is also extracted hereinbelow:

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“19. I, find it difficult to subscribe to the view taken by my brother that since under the Delhi Land Reforms Act, period of limitation for filing a suit for partition is not prescribed, a co-sharer cannot, particularly in view of Explanation to Sub-section (1) of Section 186, raise the plea of adverse possession.

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The legislature has not prescribed any period of limitation for filing a suit for partition because partition is an incident attached to the property and there is always a running cause of action for seeking partition by one of the co-sharers if and when he decides not to keep his share joint with other co-

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sharers. Since the filing of the suit is wholly dependent upon the will of the co-sharer, the period of limitation, specially the date or time from which such period would commence, could not have been possibly provided for by the legislature and, therefore, in this Act also a period of limitation, so far as suits for partition are concerned, has not been prescribed. This, however, does not mean that a co-sharer who is arrayed as a defendant in the suit cannot raise the plea of adverse possession against the co-sharer who has come before the Court as a plaintiff seeking partition of his share in the joint property.” (Emphasis supplied)

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The factual scenario in the case on hand is analysed in the above background to see whether the suit for partition filed before the Court of Additional Subordinate Judge, Palakkad by the plaintiff (Respondent herein) was barred by limitation. Since there is a vacuum in the Act regarding the period of limitation for filing suits for partition, the residuary Article 113 which prescribes a period of 3 years from the date of accrual of the right to sue would have to be adopted.

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Article 113 as quoted above for reference purpose makes it clear that the period of three years prescribed therein will start to run from the date on which the right to sue for the remedy accrues to the person proposing to institute the suit seeking

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partition. Therefore, the crucial question is from what date the period of three years will start to run or else when the right to sue is accrued to the plaintiff.

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The 1^st and 2^nd paragraphs of plaint being very relevant for adjudication of the above issue are extracted hereunder for reference purpose:

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“1. The plaintiffs and the defendant are the children of Late Kochan and Chella. The plaintiffs and defendant are Ezhuvas following Hindu Law now governed by the Hindu Succession Act. Sri, Kochan died intestate on 17.01.1983. Smt.Chella, his wife predeceased Kochan”

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The Plaint scheduled properties are the A schedule properties in the partition deed No.453/1971, SRO, Parli, Dated 21.4.1971 which are allotted to the share of Sri. Kochan while effecting the partition between Sri. Kochan and his brother Malan. On the death of Sri. Kochan and his wife Chella the plaint schedule property devolved upon the plaintiffs and the defendant. The plaintiffs and defendant have 1/3rd share each over the plaint schedule property. The plaintiffs and the defendant are in joint possession of the plaint schedule property as co-owners.”

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The pleadings emphasized in the above paragraphs are

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not disputed by the plaintiff. Partition is an incident attached to the

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property. The parties in the case on hand are Hindus, governed by 'Mitakshara Law'. After the death of Kochan in the year 1983, the

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properties belonged to him were in the joint possession and enjoyment of the plaintiff and the defendants as co-sharers. The dispute now is only with reference to the partible extent of the plaint schedule property in view of certain assignments already effected during the life time of Kochan, the predecessor in interest of the plaintiffs. The status as co-shares would be maintained until one among them comes forward or takes initiative for having severance of their respective shares from the common pool of property.

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In the case on hand, the plaintiff, a co-sharer of the plaint schedule property has filed the suit for partition out of his desire to sever his share from the common pool, to have independent ownership, possession and enjoyment of it. According to him demands were made severally but not fructified due to inaction of the defendant. Moreover, measures by the defendant to dispose of those to third parties were also in progress. Therefore, the stand of adamance and reluctance of the defendant had driven the plaintiffs to file the suit for allocation of respective shares in their favour by metes and bounds partition through intervention of the court.

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Therefore, the case on hand is one wherein a running cause of action was crystallized and culminated in the filing of the suit on hand due to the adamant and non-cordial approach of the defendant to the claim raised by the plaintiff for severance of shares. True that the dates on which demand for division of shares were made by the plaintiff were not stated in the plaint. The contra stand of the defendant in the matter of division of shares is well evidenced from the contentions taken in the written statement itself. It was contended that the right to sue accrues to the plaintiffs from the day following the death of his father, Sri.Kochan itself and filing of a suit for partition beyond three years commencing from the date of his death, is barred by limitation.

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Plaintiffs and defendant are co-sharers and in law they will be recognized as tenants in common till division of their respective shares take place. Law will not favour any of them in their claim for excessive possession and enjoyment of shares in excess than for what they are legally entitled to. Law will always stand for due division of shares. Recourse to mutual agreements agreeable to all alone is an exemption to legal severance of shares.

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The right to sue if given the meaning as proposed by the defendant, will lead to a situation wherein tenants in common will

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be compelled to move the court for getting their shares divided, within three years of their entitlement. Period of limitation can commence only from a day when one of the co-sharers finds it inconvenient to hold and enjoy the property in common and raises a claim for severance of shares and objected to by any others. In the case on hand, the plaintiff has ventured to get a division of his shares from the common pool of property (plaint schedule property) and the right to sue accrues on the day when a demand for that is firstly made and opposed to by his co-sharers or ignored by them. Therefore, undoubtedly the claim of the plaintiff in the suit is not barred by limitation.

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A contention was raised by the defendant in the written statement that his father Kochan had assigned the property shown in the schedule to the written statement by way of assignment deed registered as 1609/82 at S.R.O, Parali. The said property is part of item No.1 of plaint schedule property and has an extent of 40 cents and at present comprised in Re-survey No.110/2 of Kizhakumpuram Amsom, Desom. 68 Cents of landed property comprised in Re-survey No.110/2 belongs to Kochan. The total extent included in Re-survey No.110/2 is 1.84 acres. It has come out in evidence that the defendant had created a mortgage with

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State Bank of Travancore by depositing the assignment deed No.1609/1982. The Bank Manager caused the deed produced and marked in evidence on service of summons for the purpose. A photocopy of the original assignment deed was marked in evidence as Ext.B1 after comparing it with the original. It is clear from Ext.B1 that 40 cents of land comprised in Re-Survey No.110/2 is owned and possessed by the defendant. During cross examination, assignment of 40 cents of land by Sri.Kochan is admitted by DW1. In the backdrop of that evidence, the trial court had found that only an extent of 40 cents of land belongs to Sri.Kochan was conveyed to the defendant and, not the entire plaint Schedule item No.1 as contended by him.

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Though it was contended by the defendant that Sri.Kochan had sold portions of the plaint schedule properties to Azhakappan, Chandran and others, he did not specifically state the items of properties transferred in favour of each of them by his father. Deeds to evidence assignments of portions of plaint schedule property in favour of third parties were also not produced. Though cross examined on this aspect, DW1 did not give any valid reason for non production of the documents. That was the reason for the trial court to pass a preliminary decree in

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ignorance of the assignments of plaint schedule properties by Sri.Kochan in favour of Sri.Azhakappan, Sri.Chandran and others.

¶170

Therefore, it was proved during trial that except the 40 cents of property assigned by Sri.Kochan in favour of the defendant, the entire extent of property covered by the schedule appended to the plaint are also liable for partition. The findings in respect of 40 cents of property having not been challenged by the plaintiffs, has reached finality.

¶171

As already stated the defendant failed to produce the deeds evidencing assignment of properties to Sri.Azhakappan, Sri.Chandran and others. The defendant had also failed to state specifically the details regarding the properties allegedly assigned by his father in favour of the above persons. It was in such a circumstance that the entire extent of the plaint schedule properties, except 40 cents was found by the trial court as partible. The defendant was aggrieved by the said finding and that was one among the reasons of challenge in the appeal.

¶172

I.A No.3396/2009 is filed in the appeal seeking to receive and mark documents produced alongwith the petition as Annexures A1 and A2, in additional evidence. It has been sworn by the deponent in the affidavit filed in support of the application

¶173

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¶175

that by virtue of the sale deeds, copies of which are produced in the appeal as Annexures A1 and A2, certain extent of the plaint schedule properties have already been assigned respectively to Sri.Chandran and Sri.Azhakappan. It was further stated in the affidavit that Annexures A1 and A2, though were in his custody, could not be traced out and produced in evidence during trial despite exercise of due diligence. According to him, for want of documents evidencing the assignments, the trial court was constrained to discard the contentions as untenable. According to him, it is expedient in the interest of justice to receive the documents which are crucial in the matter of adjudication of the extent of property available for partition. According to him, if the decree is maintained, there is every likelihood of multiple suits to originate therefrom.

¶176

As already found Annexures A1 and A2 are documents, available with the defendant but contended as not traceable at the relevant time. This Court is convinced that the documents are very much relevant for finding the actual extent of property available for partition. According to the appellant the property covered by Annexures A1 and A2 assignment deeds are also included in the plaint schedule properties now found by the trial

¶177

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¶179

court as partible by the preliminary decree. Reception of Annexures A1 and A2 in evidence is relevant for the purpose of considering the actual extent of partible property. The contentions raised by the appellant could only be established after ascertaining the matter through an Advocate Commissioner.

¶180

The question to be considered in the context is whether the properties assigned by Annexures A1 and A2 deeds are included in the plaint schedule properties and if so what is the actual extend of property available for partition. The said finding is very much relevant for a proper adjudication of the case on hand. If that issue is left without consideration, there is likelihood of prejudice being caused to the assignees under Exts.A1 and A2. In that event of the matter, the preliminary decree assailed suffers and needs to be set aside.

¶181

In the result, the appeal is allowed. The preliminary decree is set aside. The trial court shall re-open the evidence and permit marking of Annexures A1 and A2 produced before this Court in evidence. An Advocate Commissioner shall be deputed to see whether the plaint schedule properties will also takes within the properties covered by the aforesaid deeds. The Advocate Commissioner's fee shall be met with by the appellant/defendant. If it is found that the plaint schedule properties also takes within it,

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the properties covered by Annexures A1 and A2, the said properties shall be exempted from partition and a preliminary decree to that effect must be passed.

¶185

The parties shall appear before the trial court on 3.11.2021. The Registry shall transmit the case records to the trial court forthwith. On getting the case records on its file and on appearance of the parties on the above date, the trial court shall proceed to adjudicate the issue on the partible extent of property in the light of the additional evidence proposed to be adduced.

¶186

The trial court shall also see that the a preliminary decree is passed within a period of five months from 03.11.2021.

¶187

sd/-

¶188

MARY JOSEPH, JUDGE

¶189

ab/ttb

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