Dismissed

Kumaran (Died) v. Arumughan,(Died) Legal Heirs Impleaded

Kerala HC6 Feb 2024RSA/689/2007

Case brief

AI extract

What is this about?

Regular second appeal against concurrent decrees declining partition of plaint item No.1 in a partition suit. The court held that the first defendant's earlier plea in a redemption suit disowning the mortgage could be explained away in light of Ext.B4 judgment upholding the mortgage and conferring deemed tenancy under Section 4A of the Kerala Land Reforms Act; no estoppel was made out. Appeal dism

What the court decided

AI extract

Kumaran (Died) Vs Arumughan,(Died) Legal Heirs Impleaded — Partition | Kerala HC (2024)

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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 SATHISH NINAN

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TUESDAY, THE 6^TH DAY OF FEBRUARY 2024 / 17TH MAGHA, 1945

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RSA NO. 689 OF 2007

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AGAINST THE JUDGMENT AND DECREE DATED 12.01.2006 IN AS NO.77/1995 OF SUB COURT, TIRUR ARISING OUT OF JUDGMENT AND DECREE IN OS NO.335/1990 ON THE FILE OF MUNSIFF COURT, TIRUR APPELLANTS/APPELLANTS/PLAINTIFFS:

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1	KUMARAN (DIED)
	PACHATTIRI AMSOM, PARAVANNA DESOM, TIRUR TALUK.
2	SUBRAMANYAN,
	PACHATTIRI AMSOM, PARAVANNA DESOM, TIRUR TALUK.
3	SAROJINI,
	PACHATTIRI AMSOM, PARAVANNA DESOM, TIRUR TALUK.
4	MEENAKSHY,
	W/O.LATE CHOYI, PACHATTIRI AMSOM, PARAVANNA DESOM, TIRUR TALUK.
5	MAYANDI, S/O.LATE CHOYI, VETTOM AMSOM,PADIYAM DESOM, TIRUR TALUK.
6	BABU, VETTOM AMSOM,PADIYAM DESOM, TIRUR TALUK.
7	SASI, VETTOM AMSOM,PADIYAM DESOM, TIRUR TALUK.
8	LATHA, D/O.CHOYI, VETTOM AMSOM,PADIYAM DESOM, TIRUR TALUK.
9	AJITHA, D/O.CHOYI, VETTOM AMSOM,PADIYAM DESOM, TIRUR TALUK.
10	VALLI, WO.LATE RAMAN, VETTOM AMSOM,PADIYAM DESOM, TIRUR TALUK.
11	RAMANI, D/O.CHOYI,
	VETTOM AMSOM,PADIYAM DESOM, TIRUR TALUK.
12	DASAN, S/O.CHOYI, VETTOM AMSOM,PADIYAM DESOM, TIRUR TALUK.
13	GANESAN, S/O.CHOYI, VETTOM AMSOM,PADIYAM DESOM, TIRUR TALUK.

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R.S.A.No.689 of 2007

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-: 2 :-

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14	BINDU, D/O.CHOYI, VETTOM AMSOM,PADIYAM DESOM, TIRUR TALUK.
15	ADDL.15 - P.P. SAROJINI WIFE OF KUMARAN, PADINJAREPURACKAL HOUSE, C/O. CHENGOT, PACHATTIRI, VETTOM PANCHAYAT, TIRUR TALUK, MALAPPURAM DISTRICT, PIN - 676105.
16	ADDL. A16 - P.P. RAVINDRAN SON OF KUMARAN, PADINJAREPURACKAL HOUSE, C/O. CHENGOT, PACHATTIRI, VETTOM PANCHAYAT, TIRUR
	TALUK, MALAPPURAM DISTRICT, PIN - 676105.
17	ADDL. A17 - P.P. HARISHAN, SON OF KUMARAN, PADINJAREPURACKAL HOUSE, C/O. CHENGOT, PACHATTIRI, VETTOM PANCHAYAT, TIRUR TALUK, MALAPPURAM DISTRICT, PIN - 676105.
18	ADDL. A18 - P.P. SUJITH, SON OF KUMARAN, PADINJAREPURACKAL HOUSE, C/O. CHENGOT, PACHATTIRI, VETTOM PANCHAYAT, TIRUR TALUK, MALAPPURAM DISTRICT, PIN - 676105.
19	ADDL. A19 – SATHYAVATHY, DAUGHTER OF KUMARAN, PADINJAREPURACKAL HOUSE, C/O. CHENGOT, PACHATTIRI, VETTOM PANCHAYAT, TIRUR TALUK, MALAPPURAM DISTRICT, PIN - 676105.
20	ADDL. A20 - P. ANITHA, DAUGHTER OF KUMARAN, PADINJAREPURACKAL HOUSE, C/O. CHENGOT, PACHATTIRI, VETTOM PANCHAYAT, TIRUR TALUK, MALAPPURAM DISTRICT, PIN - 676105.
21	ADDL. A21 – PREETHA,
	WIFE OF JAYARAJ, NOONJIPURAYIL HOUSE, OZHAYAADI, KUNNAMANGALAM P.O., KOZHIKODE DISTRICT, PIN - 673571.
22	ADDL. A22 - SAJINA
	WIFE OF SUNIL, VALIYAVEETTIL HOUSE, PADINJAREKKARA, KUTTAYI P.O., MALAPPURAM DISTRICT, PIN - 676562.
	(ADDL. A15 TO 22 AND ADDL R6 ARE IMPLEADED
	BEING THE LRS OF THE DECEASED FIRST APPELLANT
	VIDE ORDER DATED 27/1/11 IN I.A 3018/10)

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R.S.A.No.689 of 2007

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-: 3 :-

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BY ADVS. Muralikrishnan C ABRAHAM GEORGE JACOB(K/003159/1999) P.I.RAHEENA(K/283/2015)

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RESPONDENTS/RESPONDENTS:

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1 ARUMUGHAN(DIED - LEGAL HEIRS IMPLEADED AS ADDL.R7 TO R11) S/O.PADINHAREPURACKAL AYYAPPAN @ APPU, PACHATTIRI AMSOM, PARAVANNA DESOM, TIRUR TALUK.

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2 KUNHAMMU, S/O.VELUKUTTY, PACHATTIRI AMSOM, PARAVANNA DESOM, TIRUR TALUK.

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3 KAUSULYA, D/O.VELUKUTTY, PACHATTIRI AMSOM,, PARAVANNA DESOM, TIRUR TALUK.

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4 BALAN (DIED), S/O. ARUMUGHAN, PACHATTIRI AMSOM, PARAVANNA DESOM, TIRUR TALUK.

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5 UNNI, S/O. ARUMUGHAN, PACHATTIRI AMSOM, PARAVANNA DESOM, TIRUR TALUK.

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6 ADDL. R6 - P.P. SIVADASAN, SON OF KUMARAN, PADINJAREPURACKAL HOUSE, C/O. CHENGOT, PACHATTIRI, VETTOM PANCHAYAT, TIRUR TALUK, MALAPPURAM DISTRICT, PIN - 676105

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7 ADDL.R7 - CHANDRAN PADINJAREPPURACKAL, S/O.ARUMUGHAN, PACHATTIRI AMSOM, PARAVANNA DESOM, TIRUR TALUK.

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8 ADDL.R8- GOVINDAN, S/O.LATE ARUMUGHAN, PACHATTIRI AMSOM, PARAVANNA DESOM, TIRUR TALUK.

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9 ADDL.R9 - PRADEEP P.P.@ PRADEEP KUMAR, SON OF LATE ARUMUGHAN,P.O.BOX,NO.13107,DIBA AL HIJRA,RUJAIRAH,UNITED ARAB EMIRATES.

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R.S.A.No.689 of 2007

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-: 4 :-

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10	ADDL.R10 - SAKUNTHALA, WIFE OF VISHWANATHAN, THORAYIL HOUSE,PACHATTIRI P.O.,VIA TIRUR MALAPPURAM DISTRICT.
11	ADDL.R11 - JANAKI @ JANU, WIFE OF LATE ARUMUGHAN, PACHATTIRI AMSOM, PARAVANNA DESOM, TIRUR TALUK. (LEGAL HEIRS OF DECEASED RESPONDENT NO.1 ARE IMPLEADED AS ADD.R7 TO R11 AS PER ORDER DATED 25.07.2023 IN I.A.1787/2008)
12	R12 – PREMALATHA, AGED 55 YEARS, W/O THE LATE BALAN, RESIDING AT PADINJARE PURACKAL, VAKKAD PO, TIRUR, MALAPPURAM – 676 502.
13	R13 - PRABIN, AGED 33 YEARS, S/O THE LATE BALAN, RESIDING AT PADINJARE PURACKAL, VAKKAD PO, TIRUR, MALAPPURAM – 676 502
14	R14 – VIPIN, AGED 31 YEARS, S/O. LATE BALAN, RESIDING AT PADINJARE PURACKAL, VAKKAD PO, TIRUR, MALAPPURAM – 676 502
15	R15 – PRANAV, AGED 28 YEARS, S/O THE LATE BALAN, RESIDING AT PADINJARE PURACKAL, VAKKAD PO, TIRUR, MALAPPURAM – 676 502. (LEGAL HEIRS OF THE DECEASED 4TH RESPONDENT ARE IMPLEADED AS ADDL.RESPONDENTS 12 TO 15 AS PER ORDER DATED 08.11.2023 IN I.A.NO.1 OF 2023.) BY ADVS. MEENA.A. T.KRISHNANUNNI (SR.) VINOD RAVINDRANATH M.R.MINI

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THIS REGULAR SECOND APPEAL HAVING COME UP FOR HEARING ON 06.02.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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SATHISH NINAN, J.

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= = = = = = = = = = = = = = = = = = R.S.A.No.689 of 2007

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= = = = = = = = = = = = = = = = = = Dated this the 6^th day of February, 2024

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JUDGMENT

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The concurrent preliminary decree in a suit for

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partition, insofar as it declined partition of plaint schedule item No.1, is under challenge by the plaintiffs.

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The plaint schedule consists of three items of property. While the claim for partition over item No.1 was declined, plaint item Nos.2 and 3 were held to be partible. In this appeal, we are concerned only with plaint item No.1.

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One Choyi had four children, namely, Appu,

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Velukutty, Thappa and Arumughan. Choyi is the son of Ayyappan. The legal heirs of Appu are the plaintiffs. The legal heirs of Velukutty are defendants 2 to 4.

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Thappa died issue-less, and Arumughan is the 1^st

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defendant. It was claimed that the property belonging to

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R.S.A.No.689 of 2007 -: 2 :-

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Ayyappan on 'verumpattam' arrangement. The property has devolved on the plaintiffs and the defendants as successors in interest. It is accordingly that partition is claimed.

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The 1^st defendant challenged the claim for partition of item No.1. He claimed exclusive right over the same under Ext.B1 mortgage deed dated 22.01.1948 and Ext.B2 purchase certificate. It was contended that the 1^st defendant had obtained mortgage right over the property from one Kulangaraveetil Koyakutty and Aboobacker.

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The trial court upheld the claim of exclusive title of the 1^st defendant and accordingly held item No.1 to be not partible. The decree was affirmed by the First Appellate Court.

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I have heard the learned counsel on either

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side on the following substantial question of law;

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R.S.A.No.689 of 2007 -: 3 :-

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“Were the courts right in holding that the 1^st defendant has explained the admission made in Ext.A5 written statement in O.S.No.82 of 1970, and that the same is not binding on him and will not constitute estoppel ?”

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O.S.No.82 of 1970 was a suit filed by

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Koyakutty and Aboobacker against the 1^st defendant herein for redemption of Ext.B1 mortgage and recovery of possession. Therein, the 1^st defendant herein denied Ext.B1 mortgage and contended that the property belonged to their great grandfather, Ayyappan, under a lease arrangement from the predecessor in interest of Koyakutty and Abubacker. The interest over the property has devolved on all the heirs of Ayyappan. On such plea,

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the other legal heirs of Ayyappan, including the plaintiffs herein, were impleaded. The contention of the plaintiffs is that, the 1^st defendant having pleaded in the written statement in O.S.No.82 of 1970 tracing title under Ayyappan and disowning Ext.B1 mortgage deed, it is not open for him to contend to the contrary in the

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R.S.A.No.689 of 2007 -: 4 :-

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present suit. The written statement filed by the 1^st

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defendant herein in the said suit is marked as Ext.A5 herein. The 1^st defendant is bound by the admissions made in Ext.A5 written statement and is estopped from now contending that Ext.B1 mortgage deed is valid, it is argued.

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In O.S.No.82 of 1970, namely, the suit for

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redemption, though the 1^st defendant contended that Ext.B1 mortgage deed was not valid, the contention was negatived by the court. Ext.B1 mortgage was upheld. Since the court found that the 1^st defendant was entitled for the benefit of Section 4A of the Kerala Land Reforms Act, 1970, he was held to be a deemed tenant. For the said reason, the decree for redemption and recovery of possession was not granted. But a decree

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was granted for arrears of rent. While it is true that, in O.S.No.82 of 1970, the 1^st defendant had contended against Ext.B1 mortgage deed, he cannot be pinned down

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R.S.A.No.689 of 2007 -: 5 :-

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to the same in the light of the finding in Ext.B4

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judgment and also the explanation offered by him. The plea culminated in Ext.B4 judgment rejecting the challenge against Ext.B1 mortgage deed. It is the 1^st defendant's case that it was to thwart the claim for redemption that such a stance was adopted by him. The contention is quite probable. At any rate, on the finding of the court in Ext.B4 judgment upholding Ext.B1 mortgage deed, the said admission has no significance. Admissions are not conclusive proofs but can be explained away.

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As regards the contention of the 1^st defendant

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regarding estoppel, there is no such plea taken before the courts. Moreover, it could not be said that there was any representation by the 1^st defendant to the other defendants and that, they had acted to their detriment based on such representation. This is especially so in the light of Ext.B4 judgment upholding Ext.B1 mortgage

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R.S.A.No.689 of 2007 -: 6 :-

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deed and holding the 1^st defendant to be a deemed tenant

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entitled for fixity of tenure. In Ext.B4 judgment, it was held “Hence in any event, the 1^st defendant is a tenant entitled to fixity of tenure”. Therefore, the said contention is only to be negatived. There is no evidence to show that, based on the pleadings of the 1^st defendant in Ext.A5 written statement in O.S.No.82 of 1970, the parties had acted to their prejudice. The substantial question of law is answered accordingly.

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The trial court and the First Appellate Court

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have rightly held the plaint item No.1 is not available for partition. The decree and judgment of the Courts warrant no interference.

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The appeal fails and is dismissed. No cost.

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SATHISH NINAN, JUDGE

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Kumaran (Died) v. Arumughan,(Died) Legal Heirs Impleaded

Case brief

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What the court decided

Kumaran (Died) v. Arumughan,(Died) Legal Heirs Impleaded

Case brief

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