Appeal against dismissal of a partition suit seeking to set aside a partition deed allegedly obtained by fraud, where the plaintiff believed only four cents were being settled. The court found no evidence of fraud and held the family partition deed was supported by consideration.
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IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE SATHISH NINAN
MONDAY, THE 25TH DAY OF MARCH 2024 / 5TH CHAITHRA, 1946
RFA NO. 528 OF 2016
AGAINST THE JUDGMENT DATED 31.01.2015 IN OS NO.330 OF 2009 OF I ADDITIONAL SUB COURT, ERNAKULAM.
APPELLANT/PLAINTIFF:
SAROJINI, AGED 62 YEARS, W/O. CHANDU, RESIDING AT MANJADIPARAMBIL, MARUVAKKADU, CHELLANAM P.O., CHELLANAM VILLAGE, KOCHI.
BY ADVS. SRI.G.KRISHNAKUMAR SMT.PRIYA S.SHENOY KOCHI SMT.M.L.REMYA SRI.B.S.SURAJ KRISHNA
RESPONDENTS/DEFENDANTS:
1 V.R. BALAN, [DIED; LRs IMPLEADED] AGED 67 YEARS, S/O. BALAN, VALIYAVEETIL PIZHALA, KADAMAKKUDY VILLAGE,KANAYANNUR TALUK.
2 APPU, AGED 68 YEARS, S/O. CHANDU, VELIYATH HOUSE, CHERANELLOOR, KANAYANNUR.
3 GEENA, AGED 44 YEARS, D/O. APPU, VELIYATH HOUSE,CHERANELLOOR, KANAYANNUR.
RFA NO. 528 OF 2016 -2-
*** ADDL. RESPONDENTS 5 TO 9 IMPLEADED**
W/O. V.R. BALAN, AGED 72 YEARS, VALIYAVEETIL, PIZHALA, KADAMAKKUDY VILLAGE, KANAYANNUR TALUK, PIN CODE-682027.
***[LEGAL HEIRS OF THE DECEASED 1ST RESPONDENT ARE IMPLEADED AS ADDITIONAL RESPONDENTS 5 TO 9 VIDE ORDER DATED 22.02.2024 IN IA 1/2023]**
BY ADVS.
SRI.M.N.SANJITH – ADDL. R5 TO R9
THIS REGULAR FIRST APPEAL HAVING COME UP FOR HEARING ON 25.03.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
SATHISH NINAN, J.
= = = = = = = = = = = = = = = = = = R.F.A. No.528 of 2016
= = = = = = = = = = = = = = = = = = Dated this the 25th day of March, 2024
J U D G M E N T
The suit for partition on setting aside Ext.A2
Partition Deed, was dismissed by the trial court.
siblings. Defendants 2 to 4 are the legal heirs of yet another sister, late Devayani. The properties sought to be partitioned belonged to their father Raman. He died intestate. The first defendant requested that he needed to create a mortgage to raise a loan for the renovation of the ancestral house where he was residing with family, and wanted to have the said property having an extent of 24.250 cents in his favour. The plaintiff was not amenable. Thereupon he requested for conveyance of 4 cents therefrom so that it could be mortgaged and loan availed. It was suggested that the remaining properties could be partitioned later. The plaintiff agreed for the
R.F.A. No.528 of 2016
-: 2 :-
same. Making the plaintiff believe that a settlement deed is being executed, on 09.09.2005 the first defendant got executed Ext.A2 Partition Deed. Their mother Madhavi died intestate in the year 2007. On coming to know about the fraud, the suit has been filed.
He supported Ext.A2 partition.
accordingly dismissed the suit.
The point that arises for determination is :-
“Is Ext.A2 Partition Deed vitiated as alleged by the plaintiff”.
R.F.A. No.528 of 2016
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arose some difference of opinion about giving the entire property where the house is situated, to the 1st defendant. Normally, the parties would have proceeded to settle the differences and divide the entire properties amongst the sharers rather than executing a document in respect of 4 cents alone. There is no case that the house was in a bad condition requiring immediate repair and renovation.
relevant portion of the deposition reads thus :- “എനന
കകാരര്യങ്ങൾ സബബ്ബ് രജജിസകാർ പറഞ്ഞു മനസജിലകാകജി തന.”.
Therefore, the contention that she was not aware of the nature of the document, cannot be accepted. The plaintiff is not an illiterate lady. She is working as a helper in an Anganvady. She has studied up to 8th
standard. She has admitted that she knows to read and
write Malayalam. The husband of the plaintiff was
R.F.A. No.528 of 2016
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examined as PW2. He is a retired forest officer. He has admitted that he had been to many Magistrate Courts. It cannot be believed that he would have been ignorant about the execution of Ext.A2. It is also to be noticed that, defendants 2 to 4 who are the legal heirs of the deceased sister Devayani had also signed in Ext.A2 Partition Deed. They have no complaints against Ext.A2.
allegation of fraud and misrepresentation.
not been allotted any share. There is no evidence of payment of any consideration. The averments in the plaint, especially regarding consideration, have not been specifically denied, it is argued. Under Ext.A2 the plaintiff and defendants 2 to 4 have given up their share in the property. Consideration need not always be
R.F.A. No.528 of 2016
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monetary in form. Ext.A2 is between the siblings and within the family. It has been recited that the document is being executed for the benefit of the family and to avoid future disputes and that the plaintiff and defendants 2 to 4 have expressed that they do not want any share in the property. It could be construed that they had relinquished or gifted there share in favour of others. At any rate it could be considered that for maintaining peace in the family they had given up their share. Either way the document is valid. Regarding the allegation of absence of denial, the written statement supports the partition deed. In sum and substance the allegations levelled are denied. The recitals in the document coupled with the relationship between the parties are sufficient to find that the document is supported by consideration. Therefore, the said contention fails.
R.F.A. No.528 of 2016
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contention of the plaintiff that Ext.A2 Partition Deed is vitiated. The evidence was appreciated by the trial court in the correct perspective. The judgment and decree warrants no interference.
Resultantly, the appeal fails and is dismissed.
Sd/-
SATHISH NINAN JUDGE
kns/-
//True Copy//
P.S. to Judge
1 issue framed by the court
Is Ext.A2 Partition Deed vitiated by the alleged fraud and misrepresentation as contended by the plaintiff?
Sarojini
V.R. Balan (died; LRs impleaded)
Appu
Geena
Jagathy
Karthyayani
Sathish Ninan
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
