Dismissed

Sadanandan v. Lalitha

Kerala HC1 Nov 2021RSA/762/2006

Case brief

AI extract

What is this about?

The Kerala High Court dismissed an appeal challenging an order in an original suit for partition. The court held that the plaintiff's oral evidence establishing a prior partition agreement was more probable than the defendant's plea regarding an oral agreement where payment was made in lieu of her share.

What did the court decide?

Maintained the decree and judgment of the courts below permitting partition of the property.

Sadanandan Vs Lalitha — Partition | Kerala HC (2021)

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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 K. BABU

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MONDAY, THE 1^ST DAY OF NOVEMBER 2021 / 10TH KARTHIKA, 1943

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RSA NO. 762 OF 2006

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AGAINST THE ORDER/JUDGMENT IN AS 426/2001 OF I ADDITIONAL DISTRICT

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COURT, THRISSUR

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OS 1641/2000 OF PRINCIPAL MUNSIFF'S COURT, THRISSUR

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APPELLANT/APPELLANT/2ND DEFENDANT:

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SADANANDAN, S/O. PANIKKAPARAMBAN NARAYANAN, PUZHAMAPALLAM DESOM, MARATHAKKARA VILLAGE, THRISSUR TALUK. BY ADV SRI.DILIP J.AKKARA

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RESPONDENTS/RESPONDENTS/PLAINTIFF/1ST DEFENDANT:

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1 LALITHA, W/O KORANADAN VEETTIL BALAN, VETTUKAD DESOM & D/O.PANIKKAPARAMBAN NARAYANAN, PUTHUR VILLAGE, DESOM, THRISSUR TALUK. 2 UNNICHEKKAN, S/O. PANIKKAPARAMBAN VEETTIL NARAYANAN, VARANDARAPPILLY, THRISSUR.

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BY ADV SRI.G.SREEKUMAR CHELUR FOR R1

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THIS REGULAR SECOND APPEAL HAVING BEEN FINALLY HEARD ON 01.11.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

R.S.A No.762/2006

K.BABU, J .

R.S.A No.762 of 2006

Dated this the 1^st day of November, 2021

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JUDGMENT

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The decree and judgment in A.S.No.426/2001 passed by the First Additional District Judge, Thrissur, which arose from the decree and judgment passed by the Principal Munsiff, Thrissur in O.S.No.1641/2000, is under challenge in this Regular Second Appeal.

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Defendant No.2 in the original suit is the appellant. The

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plaintiff and defendant No.1 are the respondents.

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The facts giving rise to this appeal are as follows:

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3.1 The plaintiff and defendant No.1 are siblings. They have

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one more sister by name Padmavathy. Defendant No.2 is the son of the father of the plaintiff in his second marriage. When the plaintiff, defendant No.1, and Padmavathy were minors, their father Narayanan purchased 27 cents of land by way of Ext.A1 Assignment Deed in the name of the minors. Out of the said 27 cents, 5 cents

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were assigned to defendant No.2 as per Ext.B1 Assignment Deed. The remaining property, being 22 cents of land, was in the joint

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possession and ownership of plaintiff, defendant No.1 and Padmavathy. As per Ext.A2 Release Deed, Smt.Padmavathy released her right over the property to the plaintiff and defendant No.1 and thereby, they became absolute owners in possession of the plaint schedule property. Defendant No.1 assigned his share in the plaint schedule property to defendant No.2 as per Ext.B4 assignment deed. The plaintiff claims that she is entitled to partition of the plaint schedule property.

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The defendants resisted the claim of the plaintiff, contending that there was an oral agreement between the plaintiff and defendants for partition of the plaint schedule property, whereby it was agreed to pay a sum of Rs.19,000/- to the plaintiff as the value of her share. According to the defendants, since there was no liquid cash with defendant No.2, it was agreed to obtain a loan from the Service Co-operative Bank, Puthur by the plaintiff and defendant No.1, and defendant No.2 had agreed to repay the loan amount. Defendant No.2 repaid the entire amount with interest. However, the plaintiff failed to assign that share to defendant No.2 as agreed. Defendant No.2 set up a counterclaim

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for a declaration that as per oral partition, the plaintiff had obtained her half share on the plaint schedule property, which was valued at 19,000/- and for directing her to execute and register an assignment deed in respect of her half share over the property in favour of defendant No.2.

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The evidence, in this case, consists of the oral evidence of PW1 and DWs 1 to 3, and Exts.A1 to A5 series marked on the side of the plaintiff, and Exts.B1 to B7 series marked on the side of the defendants.

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The Trial Court held that the plaint schedule property is to be divided into two equal shares and the plaintiff is entitled to get one such share. Accordingly, the Trial Court dismissed the counterclaim preferred by defendant No.2.

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Defendant No.2 challenged the decree and judgment passed by the Trial Court in A.S.No.426/2001. The First Appellate Court confirmed the decree and judgment passed by the Trial Court. Aggrieved by the concurrent findings recorded by the Trial Court and the First Appellate Court, defendant No.2 has preferred this second appeal.

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R.S.A No.762/2006

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On 23.01.2007, this Court admitted the appeal and

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formulated the following substantial questions of law:

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(i) Have the courts below acted in accordance with law in the matter of appreciating the evidence on record?

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(ii) Have the courts below drawn the necessary inferences and presumptions that would apply on the facts and circumstances of this case?

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(iii) Is the suit property liable to be partitioned?

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Heard the learned counsel for the appellant and the learned counsel for the respondents.

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The learned counsel for the appellant contended that the

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oral evidence of DWs.1 to 3 corroborated by Exts.B1 to B7 established the contention of defendant No.2 that there was an oral partition, whereby the plaintiff received a sum of Rs.19,000/- as the value fixed by the parties as consideration to her share in respect of the plaint schedule property. The learned counsel for the appellant/defendant No.2 heavily relied on Ext.B5 receipt, which would show that he had paid a sum of Rs.24,358/-, the loan amount

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with interest availed by the plaintiff and defendant No.1 by mortgaging the plaint schedule property.

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Per contra, the learned counsel for the respondents contended that there is no material to establish the plea of oral

R.S.A No.762/2006

partition.

Exhibit B5 receipt, by which defendant No.2 cleared the mortgage amount, was dated 30.12.1997. Thereafter, defendant No.1 had assigned his share of the plaint schedule property to defendant No.2 as per Ext.B4 assignment deed on 22.01.2000. Exhibit B4 assignment deed, executed after the remittance of the amount in the Bank by defendant No.2 as per Ext.B5 receipt, does not contain anything about the oral agreement. If the defendants had remitted the loan amount as per oral agreement, it would have found a place in the recitals in Ext.B4 assignment deed executed by defendant No.1 in favour of defendant No.2.

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Exhibit B4 clearly shows that the share of the plaintiff in the plaint schedule property was left to her, and defendant No.2 and the plaintiff are the co-owners of the plaint schedule property.

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Though the contention of defendant No.2 is that the plaintiff went back upon her word to assign her share in respect of the plaint schedule property in favour of defendant No.2, even after a long lapse of time, he had taken no legal steps against her.

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Relying on the above materials, the Trial Court held that

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R.S.A No.762/2006

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the case of the plaintiff is more probable than the plea set up by the defendants. The First Appellate Court confirmed the findings of the Trial Court. Both the Trial Court and the First Appellate Court had appreciated the evidence on record in accordance with law. The Courts below have drawn necessary inferences and presumptions that would apply to the facts and circumstances of the case. The substantial questions of law are answered against the appellant.

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The Regular Second Appeal is dismissed. The parties are directed to bear their respective costs.

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Sd/K.BABU,

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JUDGE

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KAS

Sadanandan v. Lalitha

Case brief

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Sadanandan v. Lalitha

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