Appeal against decree setting aside a partition deed alleged to have been fraudulently executed contrary to a mediation settlement, allotting the entire property to defendants 1 and 2. The court upheld the trial court's finding of fraud on the evidence of the attestors, affirmed the partition decree, with the deceased father's share vesting in his heirs.
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 SATHISH NINAN
FRIDAY, THE 15TH DAY OF MARCH 2024 / 25TH PHALGUNA, 1945
RFA NO. 284 OF 2012
AGAINST THE JUDGMENT AND DECREE DATED 29.03.2011 IN OS NO.83 OF 2008 OF SUB COURT, CHERTHALA APPELLANT/1ST DEFENDANT:
MADHU S/O.JANARDHANAN NAIR @ JANARDHANAN PILLAI, CHITTAYILHOUSE, VAYALAR EAST VILLAGE, CHERTHALA TALUK, ALLEPPEY DISTRICT.
BY ADVS. SRI.N.SUBRAMANIAM SRI.M.S.NARAYANAN SRI.MURALIKRISHNAN C. SRI.ABRAHAM GEORGE JACOB(K/003159/1999) SRI.P.I.RAHEENA(K/283/2015) SRI.SHAHNA(K/001380/2023)
RESPONDENTS/PLAINTIFF/DEFENDANTS 2 AND 3:
THIS REGULAR FIRST APPEAL HAVING COME UP FOR HEARING ON 15.03.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
SATHISH NINAN, J.
= = = = = = = = = = = = = = = = = = R.F.A.No.284 of 2012
= = = = = = = = = = = = = = = = = = Dated this the 15th day of March, 2024
JUDGMENT
The suit for setting aside Ext.A3 Partition Deed
and for partition of the plaint schedule property was
decreed by the trial court. The 1st defendant is in appeal.
believe that a partition deed is prepared in tune with the mediation settlement, on 06.02.2008 defendants 1 and 2 made them execute Ext.A3 Partition Deed. Thereafter
the 1st defendant started to cut and remove the trees
standing in the property. Thereupon on enquiries it was
R.F.A.No.284 of 2012 -: 2 :-
realized that, contrary to the mediation settlement the entire property was allotted under Ext.A3 partition
between defendants 1 and 2 and that no property was set apart to the plaintiff and the 3rd defendant. It is thereupon that the suit was filed alleging fraud and collusion between defendants 1 and 2.
statements. Defendants 1 and 2 denied the allegations levelled. The 3rd defendant filed a written statement
raising a counter claim for partition.
and accordingly, granted a decree for partition.
side.
R.F.A.No.284 of 2012
-: 3 :-
Ext.A3 document is vitiated? iii) Does the decree and judgment of the trial court warrant any interference?
suit would, in the case of an intestate succession, be
entitled to 1/4 share each, in the property. However in Ext.A3 partition, the plaintiff and the 3rd defendant (father) have not been allotted any property.
on the plaintiff. In terms of Section 60 of the Registration Act, there is a presumption that the document has been duly executed and registered. The burden is heavy on the plaintiff and he has failed to discharge the burden, it is argued.
cropped up regarding partitioning, mediators intervened
R.F.A.No.284 of 2012 -: 4 :-
and a settlement was arrived at. A draft partition deed was prepared. Making the plaintiff and the 3rd defendant believe that a partition deed is being executed with the terms as settled in the mediation, they were made to execute Ext.A3 Partition Deed. However, in Ext.A3 partition, both the plaintiff and the 3rd defendant were not allotted any properties. Ext.A3 is even at variance from Ext.A1 draft partition. Ext.A3 was got executed without letting them know of the contents of the document.
R.F.A.No.284 of 2012 -: 5 :-
(Ext.A3) were examined as PWs 2 and 3. PW1 deposed in tune with the plaint averments. Though PW1 was cross examined at length, no contradictions or any material to discredit the testimony were brought out.
A reading of his evidence shows that he is not at all a reliable witness. At one point of time, he would depose that he had reached the document writer's office and signed the document after the executants had signed it. By the time he reached the office, the executants had signed the same. He deposed that he is not aware as to what all transpired before he affixed the signature. However, later he would say that, when he arrived the office, the document was being read over to the parties. He would then add that, after it was read over, he signed the document. He also deposed that, he did not see the parties signing the document. He would add that he is the 2nd witness to the document and that he
R.F.A.No.284 of 2012 -: 6 :-
doesn't know the first witness and that he didn't see
the first witness or the other executants signing the document. The relevant portions of his deposition, which indicate its contradictory nature, are extracted hereunder;
"നടര�ജയ�ടട എഴ�ത�ഫ�സ�ൽ വച� ഭ�ഗഉടമട�ക� ശ�ഷ� എട�വ�ള�ച� ഒപ�ട�വ�ക�കയ�യ�ര���.
xxxx xxxx xxxx
ത�ങൾ ട� ആധ�രത�ൽ ഒപ�ട�ശമ�ൾ ആടരല�� ഒപ�വച�ര��� (Q). അത�ട+ കക�കടളല�� ഒപ�വച�ട�ണ�യ�ര��� (A). ആധ�രത�ൽ അത�ന�മ�ൻപ� ഒപ�വച�ര�� ആള�കൾ ഏത� സ�ഹചര4ത�ൽ എങടന ഒപ�വച�ടവട����� +�+ൻ കണ�ലശല� (Q). ഇല (A). ആധ�രത�ൽ +�+ൻ ഒപ�വയ�ക��ത�ന�മ�മ� +�+ൻ ഈ ആധ�ര� വ�യ�ച�ശകൾക�കശയ� ഈ ആധ�ര� വ�യ�ച�ശന�ക�കശയ� ടചയ�ശത� (Q). ഇല. അവർ മ9�� ശപര�� വ�യ�ച� ശന�ക�യ�ര��� (A).
xxxx xxxx xxxx
കക�കടള വ�യ�ച�ശകൾപ�ക��ത�� മറ�� +�+ൻ കണ�ര�ശ�� (Q). കക�കടള നടര�ജൻ വ�യ�ച� ശകൾപ�ക���ണ�യ�ര��� (A). ഞ�ൻ അവ�ടട
R.F.A.No.284 of 2012 -: 7 :-
ടചല�ശമ�ൾ വ�യ�ച� ശകൾപ�ച� ടക�ണ�ര�ക�കയ�യ�ര���. എട<�ടക വ�യ�ച� ശകൾപ�ച� എ�ത�ടനക�റ�ടചന�കറ�യ�ല. ഏത� ആധ�രത�ൽന���� വ�യ�ച� എ�ത�� എന�കറ�യയ�ല. ഞ�ൻ ടചല�� സമയത� ഏത� ഭ�ഗമ�ണ� വ�യ�ചത� എ��ളത�� എന�കറ�യ�ല. xxxx xxxx xxxx
ഞ�ൻ ടചല�ശമ�ൾ നടര�ജൻ വ�യ�ചത� എ<�ടണ�� ഞ�ൻ പര�ശ��ധ�ച� ശന�ക�യ�ല.
xxxx xxxx xxxx
ന�ങൾ ഈ ശരഖയ�ൽ ഒപ�വയ�ക��ത�ന�മ�മ� ആടരല�� ഒപ�വച�ര���ടവ�� ന�ങൾ കണ�ട�ലശല� (Q). ഇല (A).
xxxx xxxx xxxx
ഈ ആധ�രത�ട+ല�� ജന�ർദനൻ ന�യര�� മകള�യ മധ�, ശ��+ത, ശസത� എ��വടരല�� ഒപ�ട��ത� കണ സ�ക�യ�യ�ട�ണശല� ന�ങൾ ഒപ�ട��ത� (Q). ഭ�ഗ ഉടമട� നട�ത�ന� ശ�ഷ� ഇവടരല�� ഒപ�ടത�ന� ശ�ഷമ�ണ� ഞ�ൻ ടചല��ത�. അശ�രമ�ണ� ഞ�ൻ ഒപ�ടത�. ഞ�ൻ ടചല�� സമയത� വ�യ�ച�ശകൾക�കയ�യ�ര���. ഒപ�ട��ത� ഞ�ൻ കണ�ല. അവടര വ�യ�ച� ശകൾപ�ക��ത� ഞ�ൻ ശ�ദ�ച�ല.
xxxx xxxx xxxx
R.F.A.No.284 of 2012 -: 8 :-
ടച�ശപ�ൾ അവ�ടട എ<� സ�ഭവ�ച� (Q). ഞ�നവ�ടട ടചല�ശമ�ൾ അവർ വ�യ�ച� ശകട�ടക�ണ�ര�കയ�യ�ര��� (A).
xxxx xxxx xxxx
ഞ�ൻ വ�യ�ച� ശകട�ല. അവർ വ�യ�ച� ശകടത�ന� ശ�ഷ� ഞ�ൻ ഒപ�ട� (A). വ�യ�ച�ശകടത�ന� ശ�ഷമ�ശണ� അത�ന� മ�ൻപ�ശണ� ജന�ർദനൻ ന�യര�� മകള�� ഒപ�ടത� (Q). അവടര�പ�ട��ത� ഞ�ൻ കണ�ല.
xxxx xxxx xxxx
ഒ��� സ�ക� ഒപ�ട��ത� ഞ�ൻ കണ�ല.
xxxx xxxx xxxx
ഇത�ട+ കക�കൾ ഒപ�ട��ത� കണ� ശD�ധ4ടപട�ണ� ന�ങൾ ഇത�ൽ സ�ക�യ�യ� ഒപ�ടടത�� പറയ��ത� (Q). ഭ�ഗ ഉടമട�യ�ൽ ഒപ�ണ�യ�ര���. അത� ഒപ�ടത� ഞ�ൻ കണ�ല. ഒപ�ൻ്�ടറ ത�ടഴയ�ണ� ഞ�ൻ ഒപ�ടത�.”
The trial court has also found his evidence to be not trustworthy.
R.F.A.No.284 of 2012 -: 9 :-
not read the contents nor were the contents read over to him. He also deposed that, when he signed the document, the 2nd witness had not signed. On a reading of the entire evidence of PW3, it could be seen that he is a trustworthy witness. He has deposed about the mediation. Though cross examined at length regarding the mediation, nothing could be brought out to discredit the witness.
The trial court, which had the opportunity to see the demeanor of the witness, found the witness to be trustworthy. Ext.A3 Partition deed was executed on 06.02.2008 and the suit is filed on 07.05.2008, i.e., within a period of three months.
R.F.A.No.284 of 2012 -: 10 :-
plaintiff is probable. The finding of the trial court that Ext.A3 is vitiated, is liable to be upheld and I do so.
Pending the appeal, the 3rd defendant died. The
plaintiff and defendants 1 and 2 are the legal heirs. Therefore the 1/4th share of the 3rd defendant will vest equally with them. Subject to the allotment of the shares of the 3rd defendant as above, the decree and judgment of the trial court are affirmed. The appeal is disposed of as above. No costs.
Sd/-
SATHISH NINAN, JUDGE
yd
3 issues framed by the court
Is the trial court's finding that Ext.A3 Partition Deed was vitiated by fraud sustainable on the evidence?
Has the plaintiff discharged the burden of proving that Ext.A3 is vitiated?
Does the decree and judgment of the trial court warrant interference?
1 provisions across 1 enactments
Madhu S/o. Janardhanan Nair @ Janardhanan Pillai
Sreelatha D/o. Chittayil Kamalamma
Sethu S/o. Janardhanan Nair @ Janardhanan Pillai
Janardhanan Nair @ Janardhanan Pillai (died)
Sathish Ninan
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
