Suit for partition by one sibling excluded from a family partition deed executed by other co-owners. Courts below decreed the suit; second appeal dismissed, holding a non-executing co-owner may ignore a void partition deed without seeking declaration, and no release of her share was proved.
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IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MRS. JUSTICE C.S. SUDHA
WEDNESDAY, THE 10TH DAY OF JULY 2024 / 19TH ASHADHA, 1946
RSA NO. 1227 OF 2019
AGAINST THE JUDGMENT AND DECREE DATED 26.08.2019 IN AS NO.17 OF 2017 OF DISTRICT COURT,KOTTAYAM, ARISING OUT OF THE JUDGMENT AND DECREE DATED 21.12.2016 IN OS NO.46 OF 2015 OF MUNSIFF COURT, CHANGANACHERRY
APPELLANT/APPELLANT/2ND DEFENDANT:
CHACKO MATHAI @ SAN, AGED 66 YEARS,S/O.MATHAI, PATHIYIL HOUSE, PUTHENCHANTHA BHAGOM, VAKATHANAM VILLAGE, CHANGANACHERRY TALUK, KOTTAYAM - 686 538.
BY ADVS.SADCHITH P.KURUP SRI.C.P.ANIL RAJ SRI.RENJITH B.MARAR SMT.LAKSHMI.N.KAIMAL SMT.SINDHU K.S.
RESPONDENTS/RESPONDENTS/PLAINTIFF & DEFENDANTS 1,3 TO 6:
BY ADV SRI.BIJU C. ABRAHAM, FOR R1
THIS REGULAR SECOND APPEAL HAVING COME UP FOR FINAL HEARING ON 03.07.2024, THE COURT ON 10.07.2024 DELIVERED THE FOLLOWING:
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C.S.SUDHA, J.
R.S.A.No.1227 of 2019
Dated this the 10 th day of July 2024
J U D G M E N T
This second appeal under Section 100 read with Order
XLII Rule 1 CPC filed by the second defendant/appellant is against the judgment and decree dated 26/08/2019 in A.S.No.17/2017 on
the file of the District C ourt, Kottayam, which appeal in turn is against the judgment and decree dated 21/12/2016 in O.S.No.46/2015 on the file of the Munsiff Court, Changanacherry.
The parties and the documents will be referred to as described in the suit.
The plaintiff and the defendants are the children of Mathai, who passed away on 16/09/1976. Maria, the wife of Mathai and mother
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of the plaintiff and defendants passed away on 05/09/2003. The
plaint schedule property has devolved on the plaintiff and defendants. However, in order to deprive the plaintiff of her share in the plaint schedule property, the defendants and Maria executed Ext.A1 partition deed without the knowledge or consent of the plaintiff or without allotting her any share in the property. Hence, the suit.
parties went to trial on the basis of the aforesaid pleadings. PW1 was examined and Exts.A1 to A3 were marked on the side of the
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plaintiff. DW1 was examined and Exts.B1 and B2 were marked on the side of the defendants. The report and plan of the advocate commissioner has been marked as Exts.C1 and C1(a). The trial court on an appreciation of the oral and documentary evidence and after hearing both sides, decreed the suit. Aggrieved, the second defendant filed A.S.No.17/2017. The first appellate court confirmed the judgment and decree of the trial court and dismissed the appeal. Hence, the second defendant has come up in second appeal.
appeal on the following substantial questions of law -
“1. Whether the courts below went wrong in a proper appreciation of the entire facts and evidence in the case? 2. Whether the courts below were justified in granting a relief of declaration with regard to the document of the year 1994 in a suit which is filed in the year 2015 when Article 56 of the Limitation Act, 1963 provides that the period for seeking a declaratory relief is only 3 years?
3. Whether the plaintiff is entitled to partition of the plaint schedule property on the basis of a suit filed in the
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year 2015 when there has been a specific document executed excluding the share of the plaintiff in the year 1994 whereby the plaintiff is ousted from claiming a partition of the property after 20 years?
4. Whether the courts below were justified in ordering partition when there had been a specific family settlement to the knowledge of the plaintiff whereby her shares had been ousted in respect of the plaint schedule property?”
Mathai, the predecessor-in-interest of the plaintiff and defendants, who died intestate. Merely because the plaintiff had been given a share in her mother's property, that would not deprive her of a share in her father's property. The defendants had taken up a contention before the first appellate court that the suit was barred by limitation as the plaintiff was aware of the execution of Ext.A1 partition deed in the year 1994 itself and that her allegation that she came to know about the execution of Ext.A1 only on 09/12/2014, is false. The suit
ought to have been filed within three years of the execution of
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Ext.A1 and hence the prayer sought for declaring Ext.A1 as void, is barred by limitation. As rightly held by the first appellate court, the plaintiff not being a party to Ext.A1 deed and being a co-owner, can ignore Ext.A1 as it is a void document. She did not even have to seek a declaration that the document is void. Though the defendants contended that the plaintiff was all along aware of the execution of Ext.A1, no satisfactory evidence came on record to substantiate the said aspect. All the other co-owners of the plaint schedule property except the plaintiff are signatories in Ext.A1. If the plaintiff had actually released her share or agreed to the partition arrangement among the other siblings, in all probability there would have been a recital to the said effect in Ext.A1. There is no such recital in Ext.A1. No release deed has been executed by the plaintiff releasing her share in the property. As the father died intestate and the plaint schedule property being the father's property, the plaintiff is also entitled to a share in the same. Therefore, the questions of law are answered against the second defendant/appellant.
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appreciation of evidence or findings of the trial court or the first appellate court calling for an interference by this Court. Hence, the appeal is liable to be dismissed and I do so.
Interlocutory applications, if any pending, shall stand
closed.
Sd/-
C.S.SUDHA JUDGE
ami/
2 issues framed by the court
Whether the plaintiff, not a party to a 1994 partition deed executed by other co-owners, is entitled to a share and partition of her intestate father's property.
Whether a suit filed in 2015 seeking declaration that the 1994 deed is void was barred by limitation under Article 56 of the Limitation Act.
2 provisions across 2 enactments
Chacko Mathai @ San
Achamma
Alice
Kunjoojamma Soman
Leelamma
Saramma
C.S. Sudha
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
