Kerala High Court
A.M.Sulochana vs A.M.Subadra on 13 August, 2025
2025:KER:60633
RSA NO. 1042 OF 2012
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IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE EASWARAN S.
WEDNESDAY, THE 13TH DAY OF AUGUST 2025 / 22ND SRAVANA, 1947
RSA NO. 1042 OF 2012
AGAINST THE JUDGMENT AND DECREE DATED 10.02.2012 IN AS
NO.30 OF 2007 OF SUB COURT, OTTAPPALAM ARISING OUT OF THE
JUDGMENT AND DECREE DATED 9.1.2007 IN OS NO.122 OF 2002 OF
MUNSIFF COURT, OTTAPPALAM
APPELLANTS/RESPONDENTS 1 AND 2/PLAINTIFFS:
1 A.M.SULOCHANA
W/O.SACHIDANANDAN K.V., KURUKANPARA HOUSE, MANNUR
AMSOM AND DESOM, OTTAPALAM TALUK, PALAKKAD
DISTRICT.
2 VASANTHI
W/O.CHULLIPARAMBIL VISHNU KUMAR, ENGANDIYOOR DESOM,
THRISSUR DISTRICT.
BY ADV SRI.P.RAMACHANDRAN
RESPONDENTS/APPELLANT AND RESPONDENTS 3 TO 7/DEFENDANTS:
1 A.M.SUBADRA
W/O.JAYARAJAN, MEENA MANDIRAM, KANNIYAMPURAM,
OTTAPPALAM P.O., PALAKKAD DISTRICT-679101.
2 A.M.RADHA
W/O.PADMANABHAN, RESIDING AT EARATH HOUSE,
KUNNAMKULAM AMSOM, KAKKAD DESOM, KUNNAMKULAM P.O.,
THRISSUR DISTRICT-680503.
2025:KER:60633
RSA NO. 1042 OF 2012
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3 RAMANI
W/O.LATE BALAN, PROPRIETOR OF V.V.BISCUIT FACTORY,
OTTAPPALAM AMSOM, ARIYUR, THEKKUMURI DESOM,
OTTAPPALAM P.O., PALAKKAD DISTRICT-679101.
4 BIJOY
S/O.LATE BALAN, PROPRIETOR OF V.V.BISCUIT FACTORY,
OTTAPPALAM AMSOM, ARIYUR, THEKKUMURI DESOM,
OTTAPPALAM P.O., PALAKKAD DISTRICT-679101.
5 SAJOY
S/O.LATE BALAN, PROPRIETOR OF V.V.BISCUIT FACTORY,
OTTAPPALAM AMSOM, ARIYUR, THEKKUMURI DESOM,
OTTAPPALAM P.O., PALAKKAD DISTRICT-679101.
6 SUMIJA
D/O.LATE BALAN, PROPRIETOR OF V.V.BISCUIT FACTORY,
OTTAPPALAM AMSOM, ARIYUR, THEKKUMURI DESOM,
OTTAPPALAM P.O., PALAKKAD DISTRICT-679101.
BY ADV SHRI.JACOB SEBASTIAN FOR R1
THIS REGULAR SECOND APPEAL HAVING BEEN FINALLY HEARD ON
16.07.2025, THE COURT ON 13.08.2025 DELIVERED THE FOLLOWING:
2025:KER:60633
RSA NO. 1042 OF 2012
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EASWARAN S., J.
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R.S.A. No.1042 of 2012
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Dated this the 13th day of August, 2025
JUDGMENT
The plaintiffs in OS No.122/2002 on the files of Munsiff's Court, Ottapalam, are the appellants herein. The suit was one for partition of the plaint schedule property.
2. Brief facts necessary for the disposal of the appeal are as follows:
The property originally belonged to Mattamkottu Anandan, father of the plaintiffs 1 and 2 and defendants 1 and 2 as per assignment deed No.1570/46 of Ottapalam SRO. After the death of Anandan, one of his children, Chandran, released his right over the property as per document No.367/77 of Ottapalam SRO, in favour of other legal heirs. Out of the total extent of 4 Acres and 36 Cents of property comprised in Sy.No.7/1A acquired as per document No.1570/1946, 2 Acres was assigned to the 2 nd defendant by the legal heirs. Thereafter, out of the balance 2 Acres 36 Cents, one Acre each was given to the 1st plaintiff and 2nd defendant as per partition deed No.3106/83 of Ottapalam 2025:KER:60633 RSA NO. 1042 OF 2012 4 SRO. The balance 36 Cents remained as such and was not partitioned. The plaintiffs are entitled to 2/5 shares in the property and profits derived therefrom. Since the 2nd defendant was not amenable to the partition, the suit was filed. Defendants 1 and 3 to 6 filed written statement admitting that the plaint schedule property is partible. The 2nd defendant resisted the suit, contending that there is no property available for partition and that the entire properties were partitioned in the year 1983. Had any property remained in the hands of the co-owners, they would have partitioned the same. Merely because the 2 nd defendant was having excess land in her hands, that by itself will not enable the plaintiffs to contend that the same is available for partition. It is contended that the plaint schedule property is in survey No.7/1A and will be either the part of One Acre property allotted to the defendant as per the partition deed or will be part of the property belonging to the defendant as per the release deed. At any rate, no part of the defendant's property is available for partition. On behalf of the plaintiffs, PW1 was examined and Exts.A1 and A2 were marked. On behalf of the defendants, DW1 was examined and no documentary evidence was adduced. An advocate commissioner was taken out for local inspection, who filed Exts.C1 and C2 reports and Exts.C1(a) and C2(a) plans and was examined as CW1. The trial court, on consideration of the oral and documentary evidence, 2025:KER:60633 RSA NO. 1042 OF 2012 5 found that the plaintiffs are entitled to partition and therefore, decreed the suit by dividing the plaint schedule property into five equal shares and that the plaintiffs are entitled to 2/5 shares. Aggrieved by the judgment and the decree of the trial court, the 2nd defendant preferred a first appeal, AS No.30/2007 before the Sub Court, Ottapalam. The first appellate court, placing reliance on Ext.A2 partition deed, found that, had any property been left out for partition, the sharers would have partitioned the same when Ext.A2 document was executed. In the light of the recitals in Ext.A2 that no other property is left with the sharers, the first appellate court reversed the finding of the trial court and dismissed the suit. Aggrieved by the judgment of the first appellate court, the plaintiffs have approached this Court with the present second appeal.
3. When the appeal was admitted to file on 7.9.2012, the following substantial questions of law were framed by this Court:
"1) Did not the court below err in declining the relief of partition of the plaint schedule property merely on reliance to a recital in Ext.A2, partition deed that no other properties are in the joint ownership of the plaintiffs and defendants?
2) Should not have the court below seen that there is documentary evidence to prove that there were properties in the joint ownership of plaintiff and defendants other than the properties partitioned as 2025:KER:60633 RSA NO. 1042 OF 2012 6 per Ext.A2 and which were transferred long after Ext.A2 partition deed?
3) Whether the court below was was justified in ignoring the partible nature of the jointly owned property merely because of the mistake in survey numbers?
4) Whether the court below was justified in ignoring the Advocate Commissioner's reports and plans?"
4. Heard Sri.P.Ramachandran, the learned counsel appearing for the appellants/plaintiffs, and Sri.Jacob Sebastian, the learned counsel appearing for the 1st respondent/2nd defendant.
5. Sri.P.Ramachandran, the learned counsel appearing for the appellants, contended that the finding of the first appellate court is erroneous, inasmuch as it failed to appreciate the evidence adduced by the plaintiffs before the trial court. It is indisputable that, late Anandan had, right title and interest over 4.36 Acres of land. Admittedly, after Ext.A2 partition deed was executed, there was a remaining extent of property available. The advocate commissioner, after inspecting the property, based on the measurements under Ext.A1 as well as the release deed executed by Chandran in favour of the 2nd defendant, found 2025:KER:60633 RSA NO. 1042 OF 2012 7 and identified the balance 31½ Cents of the property and therefore, the trial court rightly decreed the suit.
6. Per contra, Sri.Jacob Sebastian, the learned counsel appearing on behalf of the 1st respondent/2nd defendant, contended that the finding of the first appellate court is perfectly justifiable. The discrepancy in the extent of the property, if any, covered by the release deed, is of no consequence and the boundaries will have to prevail over the same. With reference to the recitals in Ext.A2, the learned counsel for the 1st respondent pointed out that in the teeth of the recitals contained in the registered deed of partition, the appellants/plaintiffs cannot be permitted to lead oral evidence in the light of the prohibitions contained under Section 92 of the Indian Evidence Act, 1872. It is further contended that in a suit for partition, the procedure adopted by the trial court is unheard of and that only in a final decree, identification of the property would take place. In the present case, the advocate commissioner was taken out at the preliminary stage itself in order to identify the extent of the property, and it was only thereafter that the preliminary decree was passed. Such a procedure being unacceptable, the first appellate court had rightly reversed the judgment. In support of his contentions, relied on the decisions of the Supreme Court in Shub Karan Bubna @ Shub Karan Prasad Bubna v. Sita Saran Bubna and 2025:KER:60633 RSA NO. 1042 OF 2012 8 Others [2009 KHC 5075] and Arsad Sk. And Another v. Bani Prosanna Kundu and Others [2014 KHC 4291] and this Court in Thankachan v. V.Gireesh Kumar [2022 (1) KHC 521] (DB) and Aayisa Anees v. K.Vinod [2024 KHC 257] and Chandrakumar v. Narayanan Bahuleyan and Another [2011(2) KHC 884].
7. In reply, Sri.P.Ramachandran, the learned counsel appearing for the appellants, pointed out that the normal rule is, if there is conflict between the description of the area and the boundaries, the boundaries will prevail over the area and that the said rule is not an inflexible one. Depending upon the factual circumstances, the parties can lead evidence to prove otherwise. In support of his contention, relied on the decision of this Court in Kamalamma v. Shibu [2024 (3) KHC 547].
8. I have considered the rival submissions raised across the bar and have perused the records of the case and also the judgments rendered by the courts below.
9. The consideration of this appeal hinges on the outcome of the interpretation of Ext.A2 partition deed. The first appellate court reversed the finding of the trial court, largely based on the recitals contained in Ext.A2 deed of partition. It is true that when Ext.A2 partition was executed, it was mentioned 2025:KER:60633 RSA NO. 1042 OF 2012 9 that there are no other properties left for partition. The crucial question before this Court would be whether the recitals contained in Ext.A2 could be taken as the final testament of the fact that, there exists no other property for partition. Admittedly, late Anandan possessed 4.36 Acres of land, and going by the release deed executed by Chandran in favour of the 2nd defendant and also the remaining extent of the property available for partition, it would make up only 4 Acres of land and, therefore, it becomes clear that a balance 36 Cents was available for partition. The entitlement of the plaintiffs to claim partition has to be judged through the combined construction of Exts.A1 and A2 documents. Even on a cursory reading of the contents of Exts.A1 and A2, it becomes clear that the parties were not aware of the existence of the balance 36 Cents when Ext.A2 was executed. Therefore, this Court finds that the recitals in Ext.A2 that, no other properties are left with the sharers for partition cannot be viewed as a detriment to the claim of the plaintiffs. Thus, this Court holds that the construction placed by the first appellate court to Ext.A2 is totally unwarranted and perverse, and the first question of law framed by this Court is answered in favour of the appellants.
10. Next, it is contended by Sri.Jacob Sebastian, the learned counsel appearing for the 1st respondent, that the trial court could not have appointed an 2025:KER:60633 RSA NO. 1042 OF 2012 10 advocate commissioner to identify the property before a preliminary decree for partition is passed. However, it must be remembered that there is no inexplicable rule that, in a suit for partition, an advocate commissioner cannot be appointed at a preliminary stage. The purpose of the appointment of an advocate commissioner in the present case was to identify the lie and nature and further to ascertain as to whether the 36 Cents as claimed by the plaintiffs is available or not. Therefore, the principles laid down by the Supreme Court in Shub Karan Bubna @ Shub Karan Prasad Bubna v. Sita Saran Bubna and Others [2009 KHC 5075] cannot be strictly applied in the facts of the present case. The question of dividing the properties by metes and bounds will arise only in a final decree proceedings. Since, there is no express bar under the Code of Civil Procedure for appointing an advocate commissioner in a partition suit to identify the property, this Court has no hesitation to reject the said contention.
11. As regards the contention of the learned Counsel for the 1 st respondent that, the plaintiffs cannot be permitted to adduce evidence contrary to the contents of Ext.A2 partition deed, Sri.Jacob Sebastian, the learned counsel appearing for the 1st respondent, relied on the decisions of this Court in Thankachan v. V.Gireesh Kumar [2022 (1) KHC 521] (DB) and Aayisa Anees v. K.Vinod [2024 KHC 257]. No doubt, Section 92 of the Indian 2025:KER:60633 RSA NO. 1042 OF 2012 11 Evidence Act, 1872 prohibits a person from adducing evidence against the recitals of a registered document. However, it must be remembered that the proviso (1) to Section 92 enables a party to lead evidence to prove a mistake in fact or law in the execution of a registered agreement. Therefore, notwithstanding the recitals contained in Ext.A2, the plaintiffs are perfectly entitled to lead evidence to show that there existed excess property other than what was partitioned among the sharers in the family. Therefore, to that extent, the first appellate court failed miserably to appreciate the facts, the evidence, as well as the law.
12. It is next contended that, if there is any discrepancy in the extent of the property/description of the area in the document, boundaries will prevail, and, therefore, the trial court was not justified in decreeing the suit. The thrust of the argument of the learned counsel appearing for the 1st respondent is that when the release deed was executed, it is possible that the 1 st respondent could have been granted a larger extent of the property and that, the commissioner has not identified the property with reference to the properties allotted to the other sharers in Ext.A2, the trial court could not have decreed the suit. In support of the proposition, Sri.Jacob Sebastian, the learned counsel, relied on the decisions of the Supreme Court in Arsad Sk. And Another v. Bani Prosanna Kundu 2025:KER:60633 RSA NO. 1042 OF 2012 12 and Others [2014 KHC 4291] and this Court in Chandrakumar v. Narayanan Bahuleyan and Another [2011(2) KHC 884]. The decisions cited above, do not have any application to the facts of the case. In Arsad Sk. (Supra) the Supreme Court interfered with the Judgment of the High Court since no substantial question of law was framed. It is true that in Chandrakumar (supra), the Single Bench of this Court held that in case of discrepancy in the extent in a suit for declaration of title, the plaintiff is entitled to go by the extent in the boundaries. However, it cannot be said that, the same is an inexplicable rule. This Court cannot but notice that the 2nd defendant failed to adduce any documentary evidence. More specifically, the release deed executed in her favour was not marked in evidence. Though the learned counsel appearing for the 1st respondent/2nd defendant would contend that the said document was produced along with I.A.No.56/2007 and was put in cross-examination of PW1 and was marked through PW1, on a careful scrutiny of the records, it is seen that I.A.No.56/2007 was dismissed on 6.1.2007 and the said order was not carried forward in any manner. Insofar as the oral testimony of PW1 is concerned, the cross-examination of PW1 reveals that the release deed was never put against PW1 and marked through her.
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13. Be that as it may, the interesting aspect, insofar as the claim based on the release deed is concerned, when the trial court remitted the report of the advocate commissioner and solicited a second report from the commissioner, document No.368/77 was produced before him. In the work memo submitted before the advocate commissioner, a specific question regarding the identity of the property qua the release deed No.368/77 and the document No.3106/83 was required to be verified and the advocate commissioner measured out the properties covered by document Nos.368/77 and 3106/83 and found that the property having an extent of 31½ Cents is available lying sandwiched between the properties of the 2nd defendant. Accordingly, Ext.C2(a) plan was drawn showing the lie and nature of the property having an extent of 31½ cents. Therefore, the argument of the learned counsel appearing for the 1st respondent that in a case of misdescription of an area in a document of title, the boundaries will have to prevail, cannot be accepted. It is also pertinent to note that the plaintiffs did not file any objection to the report of the advocate commissioner. Therefore, this Court finds that the identification of the property done by the advocate commissioner is perfectly correct.
14. The learned counsel appearing for the 1st respondent/2nd defendant raised a further contention that, the property held by his client must be construed 2025:KER:60633 RSA NO. 1042 OF 2012 14 to be one with exclusive possession and that the plaintiff has no semblance of right to claim partition. However, this Court is afraid that, it cannot subscribe to the aforesaid argument, especially since the possession of the 2 nd defendant over 31½ Cents of property can only be construed as for and on behalf of other co-sharers. Therefore, this Court finds that the first appellate court was not justified in reversing the findings of the trial court. Accordingly, answering the remaining questions of law in favour of the appellants, this Court holds that the first appellate court went wrong in interfering with the well-reasoned judgment of the trial court.
Resultantly, this second appeal is allowed, reversing the judgment of the Sub Court, Ottapalam in AS No.30/2007 dated 10.02.2012 and restoring that of the Munsiff's Court, Ottapalam in OS No.122/2002 dated 9.1.2007. The appellants will be entitled to costs throughout.
Sd/-
EASWARAN S. JUDGE jg