Dismissed

Xavier v. Mercy

Kerala HC2 Mar 2020RFA/587/2005

Case brief

AI extract

What is this about?

The High Court of Kerala dismissed three appeals challenging preliminary decrees in partition suits. The Court held that a guest deed executed by the father shortly before his death while he was mentally incapacitated is invalid. Furthermore, even if valid, the father could not gift the entire property as his sisters were co-owners. Thus, partition decrees were affirmed.

What did the court decide?

Appeals dismissed; no order as to costs; parties to suffer respective costs.

Xavier Vs Mercy — Partition | Kerala HC (2020)

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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 DEVAN RAMACHANDRAN

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MONDAY, THE 02ND DAY OF MARCH 2020 / 12TH PHALGUNA, 1941

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AS.No.188 OF 1999(B)

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AGAINST THE PRILIMINARY DECREE IN OS 293/1995 DATED 29-09-1998 OF ADDITIONAL SUB COURT, KOCHI

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APPELLANT/2ND DEFENDANT:

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XAVIER,

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S/O.JOSEPH, CARPENTER, KIZHEKECHERUVALLI VEETTIL, EDAKOCHI MURI, EDAKOCHI VILLAGE KOCHI TALUK.

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BY ADV. SRI.PEEYUS A.KOTTAM

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RESPONDENTS/PLAINTIFFS AND DEFENDANTS 1 & 3 TO 7:

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1 MARY

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W/O. MEENKU, AGED 67 YEARS, PUTHENPARAMBIL HOUSE, MULANKUZHI MURI, RAMESWARAM VILLAGE, KOCHI TLAUK.

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2 TRESSAY,

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W/O.JOSEPH, AGED 60 YEARS, CHIRAKKAL HOUSE, PALLURUTHY THEKKUMDESOM, PALLURUTHY VILLAGE, KOCHI TALUK.

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3 THRESSIA, W/O.LATE JOSEPH, AGED 57 YEARS, KIZHEKECHERUVALLI VEETTIL , EDAKOCHI MURI, EDAKOCHI VILLAGE, KOCHI TALUK.

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4 MERCY W/O.JOSEPH, AGED 39 YEARS, ERUBANATH VEETTIL, KADEBHAGAM, PALLURUTHY VILLAGE, KOCHI TALUK.

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5 ELSY, W/O.ANTONY, AGED 38, MUTHERRY VEETTIL, PERUMPADAPPU DESOM, EDAKOCHI VILLAGE, KOCHI TALUK.

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6 JESSY, W/O.ANTONY AGED 34 YEARS, THUNDATHIL MADAVANA DESOM, PANANGAD VILLAGE, KOCHI TALUK.

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7 GRACY, W/O.JOY, AGED 30 YEARS, NARANGATHARA VEETTIL, KAZHUTHUMUTTU DESOM, THOPPUMPADY VILLAGE, KOCHI TALUK.

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AS.188/1999, RFA 586&587/2005

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8 RUBY, W/O.JOHNSON, THAMASSERY VEETTIL, EDAKOCHI VILLAGE, KOCHI TALUK.

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R1-2 BY ADV. SRI.SAJAN MANNALI R1-2 BY ADV. SMT.SANTHI K.PAI R3, R5-6, R8 BY ADV. SRI.SOMAN P.PAUL R3, R5-6, R8 BY ADV. SRI.A.P.UNNIKRISHNAN

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THIS APPEAL SUITS HAVING BEEN FINALLY HEARD ON 02.03.2020, ALONG WITH RFA.586/2005, RFA.587/2005, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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AS.188/1999, RFA 586&587/2005

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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 DEVAN RAMACHANDRAN

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MONDAY, THE 02ND DAY OF MARCH 2020 / 12TH PHALGUNA, 1941

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RFA.No.586 OF 2005(E)

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AGAINST THE PRELIMINARY DECREE IN OS 352/1995 DATED 29/09/1998 OF ADDITIONAL SUB COURT, KOCHI

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APPELLANT/3RD DEFENDANT:

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XAVIER, S/O.JOSEPH CARPENTER, KIZHEKE CHERUVALLIL HOUSE,, EDAKOCHI MURI, EDAKOCHI VILLAGE,, KOCHI TALUK.

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BY ADV. SRI.PEEYUS A.KOTTAM

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RESPONDENTS/PLAINTIFF/DEFENDANT:

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1 TRESSIA JOSEPH, W/O. JOSEPH, AGED 57, KIZHAKKECHERUVALLIL VETTIL, EDAKOCHI MURI, EDAKOCHI VILLAGE, KOCHI TALUK.

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2 MERCY, D/O. JOSEPH,

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AGED 40, KIZHAKKECHERUVALLI VEETIL, EDAKOCHI VILLAE, EDAKOCHI MURI, EDAKOCHI TALUK.

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3 ELSY, D/O. JOSEPH, AGED 38,

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KIZHEKKECHERUVALLI VEETIL, EDAKOCHI MURI, EDAKOCHI VILLAGE, EDAKOCHI TALUK.

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4 GRACY, D/O. JOSEPH AGED 30, DO. DO.

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5 JESSY, D/O. JOSEPH, AGED 27, DO. DO.

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6 MINI, D/O. JOSEPH, AGED 25, DO. DO.

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7 MARY, D/O. SAOURIYAR AGED 67, KIZHAKKECHERUVALLI VEETTIL, EDAKOCHI MURI, EDAKOCHI VILLAGE, KOCHI TALUK.

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8 THRESSIA, D/O. SOURIYAR,

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AS.188/1999, RFA 586&587/2005

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KIZHEKKECHERUVALLI VETTIL, EDAKOCHI MURI, EDAKOCHI VILLAGE, KOCHI TALUK.

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THIS REGULAR FIRST APPEAL HAVING BEEN FINALLY HEARD ON 02.03.2020, ALONG WITH AS.188/1999, RFA.587/2005, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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AS.188/1999, RFA 586&587/2005

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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 DEVAN RAMACHANDRAN

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MONDAY, THE 02ND DAY OF MARCH 2020 / 12TH PHALGUNA, 1941

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RFA.No.587 OF 2005

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AGAINST THE PRELIMINARY DECREE IN OS 170/1995 DATED 29/09/1998 OF ADDITIONAL SUB COURT, KOCHI

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APPELLANT/PLAINTIFF:

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XAVIER, S/O.JOSEPH, AGED 38 YEARS, CARPENTER, KIZHAKKE CHERUVALLIL HOUSE, EDAKOCHI MURI, EDAKOCHI VILLAGE, KOCHI TALUK.

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BY ADV. SRI.PEEYUS.A.KOTTAM

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RESPONDENTS/DEFENDANTS:

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1 MERCY, W/O.I.P.JOSEPH, AGED 46 YEARS, IRUMPANATH HOUSE, THOPPUMPADY, KOCHI-5.

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2 ELSY, W/O. A.M. ANTAPPAN, AGED 44 YEARS, MUTHERI HOUSE, PAI ROAD, PERUMPADAPPU, KOCHI-6.

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3 GRACY, W/O. N.T. JOY, AGED 34 YEARS, NARANGATHARA HOUSE, THOPPUMPADY, KOCHI-5.

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4 JESSY, W/O. T.P. ANTONY, AGED ABOUT 32 YEARS, RESIDING AT THUNDATHIL, HOUSE, MADAVANA, PANANGAD P.O., NETTUR, KOCHI.

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5 MINI, W/O. M.T. JOHNSON, AGED 26 YEARS, RESIDING AT MUNDASSERRY HOUSE,, EDAKOCHI, NEAR PALAMATTOM THEATRE.

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THIS REGULAR FIRST APPEAL HAVING BEEN FINALLY HEARD ON 02.03.2020, ALONG WITH AS.188/1999, RFA.586/2005, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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AS.188/1999, RFA 586&587/2005

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JUDGMENT

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Shri.Xavier, S/o. Joseph is the appellant

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in all these three appeals, which has been heard together on account of the fact that all of them arise from a common judgment in three different suits.

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The impugned judgment has been delivered in O.S.No.170 of 1995, O.S.No.293 of 1995 and O.S.No.352 of 1995 all on the

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files of the Additional Sub Judge, Kochi.

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Out of the three above, O.S.No.170 of

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1995 had been filed by the appellant claiming that he is the owner in possession of 6 cents

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of property, which is the plaint schedule property; and he claims such ownership on the strength of Ext.B1 Gift Deed executed by his father late Shri.Joseph in his favour. This suit had been filed by the appellant against his sisters, asserting that they are trying

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to trespass into the afore property and to

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AS.188/1999, RFA 586&587/2005

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commit waste thereon.

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While so, O.S.No.293 of 1995 had been

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filed by Smt.Mary and Smt.Thressia, who are the paternal aunts of the appellant, seeking partition of the same property, arraying the appellant and his mother and sisters as defendants. The plaintiffs in the suit, namely Smt.Mary and Smt.Thressia, allege that the property originally belonged to their father late Shri.Souriar and that consequent to his death, the same devolved upon themselves and the father of the appellant late Shri.Joseph. They thus asserted 1/3 right each over the plaint schedule property, conceding the balance 1/3rd to the legal heirs of late Shri.Joseph, including the

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appellant herein.

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filed by the appellant's mother and sisters against himself and his afore mentioned

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AS.188/1999, RFA 586&587/2005

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maternal aunts, Smt.Mary and Smt.Thressia,

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stating that they are predecessor-in-interest of late Shri.Joseph and admitting that he was entitled only to 1/3rd right over the plaint schedule property and thus seeking partition of their shares.

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The conspectus of the facts involved in these cases show that except the appellant, all the others concede that the property in question, namely the plaint schedule property in all cases, was originally owned by late Shri.Souriar and that on his death, it devolved upon Smt.Mary, Smt.Thressia and late Shri.Joseph. (Smt.Mary and Smt.Thressia is the plaintiffs in O.S.No.293 of 1995). All the parties, except

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the appellant, also agree that on the death of late Shri.Souriar, late Shri.Joseph - being his only son - obtained a Purchase Certificate in his own name from the Land Tribunal, Palluruthy in O.A.No.5811/70; and

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AS.188/1999, RFA 586&587/2005

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that since the said Purchase Certificate was intended for the benefit of the family, it inured to all of them. It is in such circumstances, that Smt.Mary and Smt.Thressia sought 1/3rd rights over the property; while the legal heirs of Shri.Joseph, except the appellant herein, concede that he was entitled only to the balance 1/3.

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That being said, the contention of

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the appellant herein is that the plaint schedule property is not partible because his father, late Shri.Joseph, had executed Ext.B3 Gift Deed in his favour with respect to the entire plaint schedule property as early as on 08/02/1995; and therefore, that the suits for partition, namely O.S.No.293 of 1995 and O.S.No.352 of 1995 are not maintainable. He thus prayed that his suit, namely O.S.No.170 of 1995, be decreed, since his siblings were trying to trespass into the property and oust him from its possession.

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AS.188/1999, RFA 586&587/2005

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Court took the three suits to trial jointly and that O.S.No.352 of 1995 was taken as the

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lead case, wherein Exts.A1 to A5 marked on

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behalf of the plaintiffs; while Exts.B1 to B4 were marked on behalf of the defendants. The Court is also seen to have marked Exts.C1, C1(a) and C1(b), as well as Ext.X1 as the Court's exhibits; while PW1 to PW9 were

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examined on the side of the plaintiffs and DW1 to DW6 were examined on the side of the

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defendants.

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only person who opposes the plea for

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partition of the plaint schedule property is the appellant herein. The thrust of his

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contention is that the property originally belonged to his father, late Shri.Joseph, and that when he was alive he had executed Ext.B3

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Gift Deed in his favour and that he thus became its exclusive owner, entitled to its

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AS.188/1999, RFA 586&587/2005

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full ownership and possession.

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However, in his testimony, the

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appellant as DW3, unequivocally conceded that

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he was born and brought up in the plaint schedule property, which belonged to his grand father late Shri.Souriar, who obtained the same under a 'Kudikadappu' right. After admitting so, he then asserted that his father late Shri.Joseph, approached the Land Tribunal, Palluruthy and obtained a Purchase Certificate in his exclusive name and that he

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thus became its exclusive owner. He added to

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this by saying that his father, on 08/02/1995, executed Ext.B3 Gift Deed, as per which, the entire plaint schedule property was gifted to him and therefore, that it is

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not capable of being subjected to partition.

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The afore assertions of the

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appellant herein are, indubitably therefore, founded on the specific claim that the plaint

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AS.188/1999, RFA 586&587/2005

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schedule property belonged to his father,

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late Joseph, on the strength of the purchase certificate obtained by him in the year 1970,

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and therefore, that he was fully entitled to execute Ext.B3 gift deed in his favour. However, the further evidence on record would clearly show that all the other witnesses, namely, PW1 to PW9, DW1, DW2 and DW4 to DW6, assert that the property originally belonged to late Souriyar and that consequent to his

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death, his daughters-Smt.Mary and

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Smt.Thressia-along with late Sri.Joseph, became the joint owners of the same. They further assert that being the elder son of the family, Ext.B4 purchase certificate was applied for and obtained in the name of late Sri.Joseph from the Land Tribunal,

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Palluruthi, but that this would not make him the exclusive owner of the same, but would enure to the benefit of the other co-owners namely, Smt.Mary and Smt.Thressia

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AS.188/1999, RFA 586&587/2005

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I notice that the afore assertions of

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facts are clearly supported by Ext.X1, which

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was a rent deed executed in favour of Smt.Narayani, wife of Sri.Karuvelil Sankaran,

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by late Sri.Souriyar in 1122 ME, which document has been proved in evidence by DW2,

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Balakrishnan, who is the son of the aforementioned Narayani. The recitals in Ext.X1 indicate without doubt that the property in question was held under kudikidappu right by late Souriyar and the description in the said rent deed makes this absolutely limpid. Obviously, therefore, and particularly because the appellant, while being examined as DW3, has also conceded that the property originally belonged to late Souriyar, the factum of Ext.B4 purchase certificate having been obtained in the name of late Sri. Joseph would not have entitled him to claim full ownership over the plaint

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schedule property. Ineluctably, therefore,

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AS.188/1999, RFA 586&587/2005

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even if Ext.B3 gift deed is taken to be validly executed, it becomes incompetent in law because, concededly, late Sri.Joseph could not have gifted the entire property to the appellant but only, at the best, his 1/3^rd right over the same, since the other 2/3^rd rights had already become vested with his sisters-Smt.Mary and Smt.Thressia.

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Be that as it may, the execution of Ext.B3 gift deed on 8.2.1995 and the death of Sri.Joseph on 11.2.1995, which was a mere two months thereafter, are clouded by various vitiated circumstances. The evidence of the witnesses including DW3 – the appellant herein - would show that late Sri.Joseph was suffering from tuberculosis for several years prior to his death and that he was mentally and physically very weak. The evidence of PW1

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to PW6, who are the siblings of the appellant and DW1 who is Smt. Thressia – the maternal aunt of the appellant – would render

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AS.188/1999, RFA 586&587/2005

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it indubitable that late Sri.Joseph was not in a proper mental or physical capacity to execute a document on 8.2.1995, but that he

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was taken to the Sub-Registrar's office by the appellant, making him believe that he was to execute a mortgage deed to obtain a loan for his son and that when he came to be aware of the deception played upon him, he had prepared Ext.A1 cancellation document on 21.2.1995, but could not register it on account of his indisposition.

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The further evidence on record also show that a few days after Ext.B3 had been allegedly executed, the appellant filed Ext.A3 Suit, namely O.S.No.56 of 1995, before the Sub Court, Kochi, against his own father – Sri. Joseph, seeking an injunction against him from selling the plaint schedule property. These circumstances which are fully conceded, would lead to the inevitable inference that Ext.B3 gift deed was a

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AS.188/1999, RFA 586&587/2005

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document created without the volition of

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Sri.Joseph and that he had, in fact, intended to cancel the same on being aware of the deception played on him. It is also beyond doubt that the gift deed had not been acted upon and that the appellant, therefore, was under an apprehension that the property will be sold by his father to others, thus causing him to file Ext.A3 Suit seeking injunction against such sale, which was thereafter withdrawn, subsequent to the death of Sri.Joseph on 11.4.1995.

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That having been said, it cannot be lost sight of that even if Ext.B3 gift deed is taken to be a valid document, it would obtain no benefit to the appellant since his father, late Sri.Joseph, had only 1/3^rd right over the plaint schedule property and could not have, therefore, gifted it to him in its entirety, as has been done therein. In that perspective also, Ext.B3 becomes incompetent

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AS.188/1999, RFA 586&587/2005

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and unworthy of any support from this Court.

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When Ext.A3 gift deed was thus

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found by the Court below correctly to be

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an invalid document, obviously the Suits

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for partition filed by the maternal aunts

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and the mother and siblings of the appellant would certainly require to be decreed and this is all that the Trial Court has done while allowing O.S.293 of 1995 and O.S.352 of 1995, especially since the claims therein are not in conflict but

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are complimentary to each other.

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Needless to say, once Ext.B3 gift

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deed propounded by the appellant is thus found not capable of worth, then his Suit,

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namely O.S.170 of 1995, seeking an injunction against his siblings, would only deserve to be dismissed, as has been rightly done by the Trial Court.

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Resultantly, I cannot find any

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reason to intervene with the impugned

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AS.188/1999, RFA 586&587/2005

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judgments and decrees of the Trial Court and I am of the view that it has analyzed the entire evidence and circumstances correctly to arrive at the conclusions, as it has done.

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In the afore circumstances these appeals are dismissed; however, taking note of the peculiar circumstances involved, I deem it appropriate not to make any order as to costs and to

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consequently direct the parties to suffer

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the respective costs.

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Sd/-

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DEVAN RAMACHANDRAN

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JUDGE

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MC/Mrcs

Xavier v. Mercy

Case brief

What is this about?

What did the court decide?

Xavier v. Mercy

Case brief

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What did the court decide?

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