An appeal against the dismissal of a suit for partition of self-acquired family property held by a trust. The High Court held the suit barred by res judicata as a prior suit determined the property was not partible, with shares declared contingent on a trustee decision to sell.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE P.B.SURESH KUMAR
&
THE HONOURABLE MRS. JUSTICE C.S. SUDHA
TUESDAY, THE 29TH DAY OF MARCH 2022 / 8TH CHAITHRA, 1944
RFA NO.813 OF 2008
AGAINST THE DECREE AND JUDGMENT DATED 12.02.2008 IN O.S.NO.244/2000 ON THE FILE OF THE SUB COURT, PALAKKAD. APPELLANT(PLAINTIFF):
V.N.BHARATHI, W/O.P.A. ANANDHARAMAN, RESIDING AT.V.V.P.BUILDINGS, H.P.O. ROAD, PALAKKAD.
BY ADVS.R.HARISHANKAR PARVATHY NAIR
RESPONDENTS/DEFENDANTS:
RESIDING AT OPPOSITE HEAD POST OFFICE, KOPPAM AMSOM AND DESOM, PALAKKAD-678 001.
2 V.N. AMBIKA, D/O. LATE V.P. NATARAJAN, C1-308, 3RD FLOOR, HARASIDAN PARK, POKRAN ROAD, NO.2, PAWAR NAGAR, THANE WEST, MUMBAI-400 601.
3 V.N.JAGATHAMBAL, D/O. LATE V.P. NATARAJAN, FLAT NO.605, 6TH FLOOR, RADIANT WING, REHEJA VIHAR, CHANDIVALLI-1, MUMBAI-400 072.
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5 S.GANESH, S/O. V.N. RAJESWARI, RAJAPRIYA HILL TOP GARDENS, THURAVOORKONAM, KARAKULAM PO., THIRUVANANTHAPURAM-695 564.
6 NEERA, D/O. LATE V.N. VANI, PLOT NO.2021, SUNDARESH FIRST FLOOR, SHREENAGAR, ESTATE GOREGOAN, WEST MUMBAI.
7 RAJAN, S/O. LATE V.N. VANI, PLOT NO.20/21, SUNDARESH FIRST FLOOR, SHREENAGAR, ESTATE GOREGOAN, WEST MUMBAI.
8 VIJAYA, D/O. LATE V.N.VANI, PLOT NO.20/21, SUNDARESH FIRST FLOOR, SHREENAGAR, ESTATE GOREGOAN, WEST MUMBAI.
11 V.H.LALITHA, D/O. KALYANI AMMAL,932-H, K.N.EXTENSION, YASWANTHAPUR, BANGALORE.
*** 12 V.V.PARAMESWARAN,(DIED-LRS IMPLEADED) S/O. LATE V.P. VISWANATHAN, 4, A.V.S., A.V.R. COLONY, CHINNA ANDAVAR KOVIL STREET, KAROOR-639 001.**
13 MUHAMMED MUSTHAFA, S/O. KIZHAKKAPALLIKAL MUHAMMEDALI HAJI, PANNAKKAD VILLAGE, ERANAD TALUK, MALAPPURAM DISTRICT.
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*** LRs OF THE DECEASED R12 ARE IMPLEADED AS ADDITIONAL R14 & 15 VIDE ORDER DATED 23.02.2016 IN I.A.NO.312/2014. SRI.S.V.BALAKRISHNA IYER SR. SRI.K.JAYAKUMAR SRI.P.B.KRISHNAN R1 SRI.P.M.NEELAKANDAN SRI.SABU GEORGE SMT.B.ANUSREE R2,R3,R6, R8,R10,R11**SMT.MINI V.MENON R4, R7 & SRI. THIYYANNOOR RAMAKRISHNAN R9 SRI.O.RAMACHANDRAN NAMBIAR R15 SRI.GEEN T.MATHEW SRI. S.SREEKUMAR (SR.) R13 SRI.P.MARTIN JOSE R14 SRI. P. ARUN KUMAR SRI.K.A.SHAMSUDEEN R12 SRI.K.I.ABDUL RASHEED THIS REGULAR FIRST APPEAL HAVING COME UP FOR ADMISSION ON 29.03.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
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P.B.SURESH KUMAR & C.S.SUDHA, JJ.
R.F.A.No.813 of 2008
Dated this the 29th day of March, 2022
C.S.Sudha, J.
This appeal is filed against the judgment and decree dated 12.02.2008 in O.S.No.244/2000 on the file of the Subordinate Judge's Court, Palakkad. The suit for partition has been dismissed. The plaintiff is the appellant herein and the defendants are the respondents herein. The parties in the appeal will be referred to as described in the suit.
The plaint schedule property is the self acquired property of late V.V. Parameswara Iyer (V.V.P. Iyer), who had four children, namely, V.P. Viswanathan, V.P. Natarajan, V.P. Kallyani Ammal and V.P. Saraswathy Ammal. All these four persons are now no more. Plaintiffs and defendants 1 to 9 are the heirs of late V.P. Natarajan. Defendants 10 and 11 are the heirs of late Kallyani Ammal. Saraswathy Ammal died issueless and hence, her share has devolved on the other heirs. The 12th defendant is the legal heir of late V.P. Viswanathan. After the demise of V.V.P. Iyer, the
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property was managed by his wife, late Samboorna Ammal and his son late V.P. Natarajan. The property has been in the joint possession and enjoyment of the plaintiff and the defendants as per the provisions of the Will executed by late V.V.P. Iyer. After the demise of late V.P. Natarajan in the year 1960, the properties were possessed and managed by his widow Janaki Ammal. Another property that was included in the Will executed by V.V.P. Iyer is the Higher Elementary School at Vadakkanthara. The same was sold by all the legatees jointly and the profits divided and apportioned in proportion to their respective shares. This was done since the running of the school was found to be not profitable. From 1964 onwards, the property is being managed by the 1st defendant. There was a school functioning in the property under the name and style V.V.P. High School, Palakkad. Another educational institution namely, Kulapathy Elementary School has been wound up by the 1st defendant and the buildings in which the school was being run are now kept under the lock and key of the 1st defendant. The rent from the buildings situated in the property other than the school and the profits derived from the management of the school are being collected by the 1st defendant. Adjacent to the Kulapathy Elementary School, the 1st defendant has constructed a building out of the profits
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derived from the management of the properties. The 1st defendant has no income of his own and the entire investment for the construction has come out of the funds he received in his capacity as Manager of the entire properties. This building consisting of four rooms in the ground floor has been rented out. There is a residential apartment in the first floor. The 1st defendant is running a medical store by name, 'Gita Medicals' in another building constructed out of the profits he has derived from the management of the common properties. All the shop rooms situated in the schedule property are situated abutting the main road and it is understood that the 1st defendant has taken hefty sums as advance from the tenants. From the year 1988, it has come to the notice of the other sharers that the 1st defendant has been mis-managing the property. Therefore, the 2nd defendant herein along with her mother filed O.S.No.255/1988 for partition of the properties. The plaint schedule property in this case was the 'A' schedule property in O.S. No.255/1988. In the said case, 'A' schedule was found to be not partible. The Will under which the parties are claiming right in the property provides for a clause that the trustee is the person to decide when the school has to be wound up. As the school in the property was functioning, the court in the said suit found 'A' schedule
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property to be not partible. Thereafter, by judgment dated 21.02.2000 in W.A. No.325/1994, permission granted for closure of the school has been upheld. Consequent to the said order, the school has been wound up and all educational activities in the property have ceased. After the closure of the school, the 1st defendant is trying to deal with the property as if it belongs to him exclusively. He started demolishing the structures in the premises and attempted to dispose of the property at throw away price. The entire property is partible. Hence, the suit for partition claiming plaintiff's 66/864 share in the property.
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properties of late V.V.P. Iyer was bequeathed to the Trust. His wife late Samboorna Ammal and his second son, late V.P. Natarajan were appointed, the executors of the Will to the exclusion of all the other members of the family, to carry out the directions in the Will. Therefore, neither the plaintiff nor any other member of the family is competent to claim any right or title to the properties of the Trust. The Trust properties are placed exclusively in the care and management of the executors and in accordance with the terms of the Will, the 1st defendant, the present trustee alone is competent to decide and do whatever is required in the best interest of the Trust. The sale of the Higher Elementary School at Vadakkanthara was effected by the Executor appointed under the Will and not by all the members of the family jointly, as alleged in the plaint. It was only because the purchaser of the property insisted that all the parties join in the assignment deed relating to the Higher Elementary School at Vadakkanthara, the members of the family had joined in the deed. This would not confer them any right in the property. The Will does not confer any right or title relating to the movable and immovable property referred to in the Will. The 1st defendant has been given exclusive rights over the same. Kulapathy Elementary School has been closed since it was
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uneconomical. The allegation that the 1st defendant has started to demolish the structures in the property and has attempted to dispose of the property at throw away prices is also false and incorrect. The allegation in the plaint that as the school has been wound up, the educational activities have ceased to exist and therefore, the intention of the Trustee is to close down the educational activities and the trust, is incorrect. The educational activities have not ceased to exist. The Trust has not ceased to function after the disposal of the assets or the properties of the school. The Trust continues under the exclusive management of the Trustee. In the interest of the Trust, the Trustee is competent to even start fresh educational institutions or connected activities. The plaintiff is not entitled to the reliefs prayed for, as the properties are not partible and hence, the suit is liable to be dismissed with costs.
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already paid an amount of ` 1,00,000/- as advance. However, the attempt of the 1st defendant is to wriggle out of the agreement and demolish the buildings in the property and sell the property to third parties.
appeal is whether there is any infirmity in the findings of the court below calling for an interference by this Court.
8 . Heard Sri.R.Harisankar, the learned counsel for the appellant and Sri.S.V. Balakrishna Iyer, the learned Senior Counsel for the 1st respondent, Sri.Arun Kumar P., the learned counsel for respondents 4, 7 and 9 and Sri. K.A. Shamsudeen, the learned counsel for the 12 th respondent.
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acquired property of late V.V.P. Iyer, the predecessor in interest of the plaintiff and defendants 1 to 12. Ext.B1 Will is admitted by both sides. Ext.B1 Will is dated 10.06.1939. As the Will is more than 30 years old, the presumption contained in Section 90 of the Evidence Act is available
(Narayanan Radhakrishna Menon v. Narayanan Sukumara Menon
[2018 (2) KLT 553]) .
10. Clause 9 in Ext.B1 Will reads thus:-
" (9) Should it be found that the schools are not self supporting for three consecutive years it shall be permissible for the trust to reduce the status of the schools to make them self supporting or to handover the management of one or more of the schools to any public or private body in return for a reasonable rent or even ultimately to wind up the Trust selling the properties and good wills of the schools to the best advantage and the sale proceeds be divided equally among: "
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as per the stipulation contained in the Will. Admittedly, a suit for partition, namely, O.S.No.255/1988 had been filed by one of the defendants in this case in which the plaintiff herein and the other defendants excluding the additional 13th defendant were parties. The 'A' schedule in O.S.No.255/1988 is the plaint schedule property herein. Ext.B5 is the copy of the judgment in the said suit. In Ext.B5 judgment, the Court relying on Clause 9 of Ext.B1 Will, held that 'A' schedule property is not partible and that the cause of action for partition would arise only when the Trustee, i.e., the 1st defendant herein, decides to wind up the activities of the Trust and decides to sell the property. When the said case was filed and pending, admittedly, V.V.P. School was functioning in the property. As the school was functioning, the court held that the property was not partible. Ext.B5 judgment has become final as no appeal has been preferred against the same. Admittedly, the 'A' schedule property in the said case is the plaint schedule property in this case and the parties in both suits are also the same. The issue involved is also the same and therefore, the present suit, as held by the court below is barred by resjudicata.
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the court below. The sharers are entitled to get their share in the event of the trustee, viz., th e 1 st defendant selling the pla int schedule property. The allotment of shares is not disputed. Therefore, no interference is called for on that account also.
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behalf of the plaintiff, it appears that the stand of the plaintiff is that the 1st defendant is adopting a "dog in the manger attitude" by neither acting in terms of the stipulations contained in Ext.B1 nor is he taking any step(s) to dispose of the property and share the sale proceeds with the remaining sharers. However, the parties are not without any remedy. Admittedly, the 12th defendant herein has filed O.S.No.120/2009 claiming reliefs on the strength of Section 61 of the Trust Act, which reads:-
" 61. Right to compel to any act of duty.
The beneficiary has a right that his trustee shall be compelled to perform any particular act of his duty as such, and restrained from committing any contemplated or probable breach of trust. "
injunction to direct the trustee to sell the propert y in the best interest of the beneficiaries.
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interference.
In the result, the appeal is dismissed. We direct the Munsiff's Court, Palakkad wherein O.S.No.120/2009 is pending to dispose of the matter, at the earliest. In the circumstances of the case, the parties shall suffer their respective costs.
All interlocutory applications, pending if any, shall stand
disposed of.
Sd/-
P.B.SURESH KUMAR
JUDGE
Sd/-
C.S.SUDHA JUDGE
bpr/
2 issues framed by the court
Whether there is any infirmity in the findings of the court below calling for interference by this Court regarding the dismissal of the partition suit.
Whether the possessoir plaintiff is entitled to a decree for partition of the trust properties despite the existence of a will and prior res judicata.
Colour shows how this judgement treated each authority
Narayanan Radhakrishna Menon v. Narayanan Sukumara MenonReferred¶70
Narayanan Radhakrishna Menon v. Narayanan Sukumara Menon [2018 (2) KLT 553]
V.N. Bharathi
V.N. Parameswaran
V.N. Ambika
V.N. Jagathambal
Geethamoorthy
S. Ganesh
P.B.Suresh Kumar
C.S. Sudha
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
