Kerala High Court
Remani @ Kanjana vs K.N. Appu on 28 May, 2025
2025:KER:41774
RSA NO. 748 OF 2013
1
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE EASWARAN S.
WEDNESDAY, THE 28TH DAY OF MAY 2025 / 7TH JYAISHTA, 1947
RSA NO. 748 OF 2013
AGAINST THE JUDGMENT AND DECREE DATED 31.10.2012 IN AS
NO.53 OF 2010 OF VTH ADDITIONAL DISTRICT COURT, ERNAKULAM
ARISING OUT OF THE JUDGMENT AND DECREE DATED 21.8.2009 IN OS
NO.1501 OF 2006 OF III ADDITIONAL MUNSIFF'S COURT, ERNAKULAM
APPELLANT/APPELLANT/2ND DEFENDANT:
REMANI @ KANJANA
D/O.KRISHNANKUTTY, AGED 52 YEARS, KACHERIL,
KANJIRAMATTOM P.O., AMBALLOOR VILLAGE,
KANAYANNUR TALUK, ERNAKULAM DISTRICT.
BY ADV DR.V.N.SANKARJEE
RESPONDENTS/RESPONDENTS/PLAINTIFFS, DEFENDANTS 4 TO 10 &
LRS OF THE DECEASED 3RD DEFENDANT:
1 K.N. APPU (DIED - LHRS IMPLEADED)
AGED 77 YEARS
S/O.KUNJIAMMA, PADMAVIHAR, KANJIRAMATTOM P.O.,
KANAYANNUR TALUK, ERNAKULAM DISTRICT-682315.
2 K.N.RAMANKUTTY
AGED 68 YEARS
S/O.KUNJIAMMA, DO- -DO-
3 T.A.LEELA,
AGED 62 YEARS, D/O.KUNJIAMMA, KACHERIL,
KANJIRAMATTOM P.O., KANAYANNUR TALUK, ERNAKULAM
DISTRICT, PIN - 682 315.
(DIED - LHRS IMPLEADED AS ADDL.R29 TO ADDL.R31)
2025:KER:41774
RSA NO. 748 OF 2013
2
4 K.M.GOURIKUTTY, (DIED - LHRS RECORDED)
AGED 69 YEARS
W/O.LATE AMBUJAKSHAN, PANAPARAMBIL,
KANJIRAMATTOM P.O., ERNAKULAM, PIN - 682 315.
(RESPONDENTS 5 & 6 ARE RECORDED AS LEGAL HEIRS
OF DECEASED 4TH RESPONDENT AS PER ORDER DATED
26.07.2024 IN IA.NO.6/2024)
5 K.A.JAYA
AGED 45 YEARS
D/O.LATE AMBUJAKSHAN, ANJALI BHAVAN, PALLIPURAM
P.O., CHERTHALA TALUK, ALAPPUZHA DISTRICT-
688541.
6 K.A.RAJENDRA BABU
AGED 42 YEARS
S/O.LATE AMBUJAKSHAN, PANABAPARAMBIL,
KANJIRAMATTOM.P.O., KANAYANNUR TALUK, ERNAKULAM
DISTRICT-682315.
7 M.K.RAGHAVAN PILLAI (DEAD)
S/O.NARAYANI AMMA, GEETHA BHAVAN, KANJIRAMATTOM
P.O., KANAYANNUR TALUK, ERNAKULAM DISTRICT-
682315.
8 M.S.APPU
AGED 70 YEARS
S/O.NARAYANI AMMA, DEEPTHI, 44/855, KALOOR WEST
P.O., KOCHI-17, KANAYANNUR TALUK, ERNAKULAM
DISTRICT.
9 PARUKUTTY,
AGED 78 YEARS
D/O.KAVUKUTTY AMMA, KALAYIL, KALAYATTIKKARA
P.O., ERNAKULAM-682315.
(DIED - LHRS IMPLEADED AS ADDL.R24 TO ADDL.R28)
10 PURUSHOTHAMAN PILLAI,
AGED 73 YEARS
S/O.KAVUKUTTY AMMA, NEDUVELIKUNNEL HOUSE,
KANJIRAMATTOM P.O., KANAYANNUR TALUK, ERNAKULAM
DISTRICT-682315.
(DIED - LHRS IMPLEADED AS ADDL.R32 TO ADDL.R35)
2025:KER:41774
RSA NO. 748 OF 2013
3
11 NARAYANAN
AGED 68 YEARS
S/O.KAVUKUTTY AMMA, AMBAT HOUSE, VENGOOR P.O.,
PERUMBAVOOR, ERNAKULAM-683546.
12 N.V.PARAMESWARAN
AGED 62 YEARS
S/O.KAVUKUTTY AMMA, NEDUVELIKUNNEL HOUSE,
KANJIRAMATTOM P.O., KANAYANNUR TALUK, ERNAKULAM
DISTRICT-682315.
13 MOHANAN,
AGED 57 YEARS
S/O.KAVUKUTTY AMMA, THADATHIMALAYIL HOUSE,
PERUMPILLY P.O., KANAYANNUR TALUK, ERNAKULAM
DISTRICT-682314.
(DIED - LHRS IMPLEADED AS ADDL.R36 AND ADDL.R37)
14 BHASKARAN PILLAI
AGED 65 YEARS
S/O.JANAKI AMMA, VADAKKEVELI HOUSE, PALLIPPURAM
P.O., PALLIPPURAM VILLAGE, CHERTHALA TALUK,
ALAPPUZHA DISTRICT-688541.
15 RADHA
AGED 62 YEARS
W/O.THANKAPPAN PILLAI, EDAVAZHIKKAL VEEDU,
ULAVYPPU P.O., PANAVALLY, CHERTHALA TALUK,
ALAPPUZHA DISTRICT-688566.
16 BHAVANI
AGED 59 YEARS
W/O.LATE THANKAPPAN PILLAI, PUTHIYEDATHU VEEDU,
KANJIRAMATTOM P.O., PIN-682315, KANAYANNUR
TALUK, ERNAKULAM DISTRICT.
17 GOPI
AGED 56 YEARS
S/O.JANAKI AMMA, JITHIN NIVAS, POOCHACKAL P.O.,
CHERTHALA TALUK, ALAPPUZHA DISTRICT-688526.
18 SASIDHARAN
AGED 53 YEARS
S/O.JANAKI AMMS, SANTHINI BHAVAN, KANJIRAMATTOM
P.O., PIN-682315, KANAYANNUR TALUK, ERNAKULAM
2025:KER:41774
RSA NO. 748 OF 2013
4
DISTRICT.
19 MANI
AGED 50 YEARS
D/O.JANAKI AMMA, MECHERIL HOUSE, KANJIRAMATTOM
P.O., KANAYANNUR TALUK, ERNAKULAM DISTRICT-
682315.
20 PADMAJA
AGED 47 YEARS
D/O.JANAKI AMMA, MECHERIL HOUSE, KANJIRAMATTOM
P.O., KANAYANNUR TALUK, ERNAKULAM DISTRICT-
682315.
21 PANKAJAKSHY AMMA
AGED 70 YEARS
W/O.M.K.RAGHAVAN PILLAI, GEETHA BHAVAN,
KANJIRAMATTOM P.O., KANAYANNUR TALUK, ERNAKULAM
DISTRICT-682315.
(DIED - RESPONDENTS 22 AND 23 ARE RECORDED AS
THE LEGAL HEIRS OF THE DECEASED 21ST RESPONDENT,
AS PER ORDER DATED 29.11.2024 IN I.A.NO.8/2024)
22 SREEDEVI
AGED 43 YEARS
D/O.RAGHAVAN PILLAI, GEETHA BHAVAN,
KANJIRAMATTOM P.O., KANAYANNUR TALUK, ERNAKULAM
DISTRICT-682315.
23 GEETHA
AGED 39 YEARS
D/O.RAGHAVAN PILLAI, GEETHA BHAVAN,
KANJIRAMATTOM P.O., KANAYANNUR TALUK, ERNAKULAM
DISTRICT-682315.
ADDL.R24 SASIDHARAN
S/O RAMAN PILLAI, AGED ABOUT 68, KALAYIL,
KULAYATTIKKARA P.O., ARAYANKAVU, KANAYANNUR
TALUK, ERNAKULAM DISTRICT, PIN 682315.
ADDL.R25 VISWAMBHARAN
S/O.RAMAN PILLAI, AGED ABOUT 62, KALAYIL HOUSE,
MACKIL P.O., CHOORAL, KANNUR DISTRICT.
2025:KER:41774
RSA NO. 748 OF 2013
5
ADDL.R26 SURENDRAN, S/O.RAMAN PILLAI,
AGED ABOUT 48, KALAYIL, KULAYATTIKKARA P.O.,
ARAYANKAVU, KANAYANNUR TALUK, ERNAKULAM
DISTRICT, PIN 682315
ADDL.R27 VASALA
D/O PARUKUTTY, AGED ABOUT 51, KADAPURATHU,
KULAYATTIKKARA P.O., ARAYANKAVU, KANAYANNUR
TALUK, ERNAKULAM DISTRICT, PIN 682315
ADDL.R28 OMANA NANDAKUMAR
D/O PARUKUTTY, AGED ABOUT 45, ILLATHUPARAMBIL,
SOCIETY ROAD SRRA/07, MARADU P.O., ERNAKULAM
DISTRICT, PIN 682304
(LEGAL HEIRS OF DECEASED 9TH RESPONDENT ARE IMPLEADED AS
ADDITIONAL RESPONDENTS 24 TO 28 AS PER ORDER DATED
26.07.2024 IN IA.NO.2225/2015)
ADDL.R29 ARAVINDAKSHAN PILLAI,
H/O T.A.LEELA, AGED 78, ARUNAGIRI (H),
PONGALLIL, AROOR P.O., CHERTHALA TALUK,
ALAPPUZHA DISTRICT, PIN 688534
ADDL.R30 ARUN KUMAR
S/O T.A.LEELA, AGED 45, ARUNAGIRI (H),
PONGALLIL, AROOR P.O., CHERTHALA TALUK,
ALAPPUZHA DISTRICT, PIN 688534.
ADDL.R31 ANUPAMA
D/O T.A.LEELA, AGED 42, ARUNAGIRI (H),
PONGALLIL, AROOR P.O., CHERTHALA TALUK,
ALAPPUZHA DISTRICT, PIN 688534
(LEGAL HEIRS OF DECEASED 3RD RESPONDENT ARE IMPLEADED AS
ADDITIONAL RESPONDENTS 29 TO 31, AS PER ORDER DATED
26.07.2024 IN IA.NO.1/2024)
ADDL.R32 AMMINI
AGED 77 YEARS
W/O PURUSHOTHAMAN PILLAI, SREERAGAM (H),
KALAVOOR P.O., ALAPPUZHA DISTRICT,PIN-688522.
ADDL.R33 PREETHY
AGED 56 YEARS
2025:KER:41774
RSA NO. 748 OF 2013
6
D/O PURUSHOTHAMAN PILLAI, SREERAGAM (H),
KALAVOOR P.O., ALAPPUZHA DISTRICT,PIN-688522.
ADDL.R34 USHA
AGED 53 YEARS
D/O PURUSHOTHAMAN PILLAI, SREERAGAM (H),
KALAVOOR P.O., ALAPPUZHA DISTRICT.,PIN-688522.
ADDL.R35 MANOJ
AGED 50 YEARS
S/O PURUSHOTHAMAN PILLAI, SREERAGAM (H),
KALAVOOR P.O., ALAPPUZHA DISTRICT,PIN-688522.
(LEGAL HEIRS OF DECEASED 10TH RESPONDENT ARE IMPLEADED AS
ADDITIONAL RESPONDENTS 32 TO 35, AS PER RODER DATED
26.07.2024 IN IA.NO.4/2024)
ADDL.R36 SARASWATHI
W/O MOHANAN, AGED 65, THADATHIMALAYIL, HOUSE,
PERUMPALLY P.O, KANAYANNUR TALUK, ERNAKULAM
DISTRICT, PIN 682314
ADDL.R37 JAYASREE
D/O MOHANAN, AGED 36, PERUMPALLY P.O.,
KANAYANNUR TALUK, ERNAKULAM DISTRICT, PIN 682
314
(LEGAL REPRESENTATIVES OF DECEASED 13TH RESPONDENT ARE
IMPLEADED AS ADDITIONAL RESPONDENTS 36 & 37 AS PER ORDER
DATED 26.07.2024 IN IA.NO.2/2024 )
ADDL.R38 PADMAVATHI AMMA,
AGED 85 YEARS,
W/O K.N. APPU, PADMAVIHAR, KANJIRAMATTOM P.O.
KANAYANNUR TALUK, ERNAKULAM DISTRICT, PIN -
682315.
ADDL.R39 HARILAL,
AGED 61 YEARS
S/O K.N. APPU, CHANDRAKANTHAM, KANJIRAMATTOM
P.O. KANAYANNUR TALUK, ERNAKULAM DISTRICT ,PIN-
682315.
ADDL.R40 LETHA, AGED 55 YEARS
W/O REGHUNANDAN, (D/O. K.N. APPU), HARISREE,
2025:KER:41774
RSA NO. 748 OF 2013
7
KUMBALAM P.O. KANAYANNUR TALUK, ERNAKULAM
DISTRICT.
ADDL.R41 VINOD K.A., AGED 52 YEARS
S/O K.N. APPU, PADMAVIHAR, KANJIRAMATTOM P.O.
KANAYANNUR TALUK, ERNAKULAM DISTRICT ,PIN-
682315.
(LEGAL HEIRS OF DECEASED 1ST RESPONDENT ARE IMPLEADED AS
ADDITIONAL RESPONDENTS 38 TO 41 AS PER ORDER DATED
29.11.2024 IN IA.NO.7/2024)
BY ADVS.
SHRI.K.SHRIHARI RAO FOR R1, R2, R5, R6, R29, R30
& R31
SMT.N.SHOBHA
THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION
ON 28.05.2025, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
2025:KER:41774
RSA NO. 748 OF 2013
8
"C.R"
EASWARAN S., J.
------------------------------------
RSA No.748 of 2013
-------------------------------------
Dated this the 28th day of May, 2025
JUDGMENT
The 2nd defendant in OS No.1501/2006 on the files of the III Additional Munsiff's Court, Ernakulam, a suit for partition, has come up with the present appeal against the concurrent findings by the trial court as well as the first appellate court, on the ground that both courts went wrong in appreciating the facts as well as the law involved in the case in a perverse manner.
2. The brief facts necessary for disposal of the appeal are as follows:
One Karthiayaniyamma and her four children consisted of a joint family. In 1114 ME (Malayalam Era), a partition deed was executed between Karthiayaniyamma and children. Ext.A1 is the certified copy of the partition deed. As per the said partition deed, the property was partitioned among Karthiayaniyamma and her children as follows:
(a) A schedule property was allotted to Karthiayaniyamma and her 2025:KER:41774 RSA NO. 748 OF 2013 9 minor child, Sri.Krishnankutty.
(b) B schedule to Narayaniyamma and two minor children
(c) C schedule to Kunjiyamma and two minor children
(d) D schedule to Kavukkuttiyamma and two minor children
3. Plaint schedule property consists of A schedule of Ext.A1 partition deed of 1114 ME. Item No.1 consists of the property known as kambalam, with well defined four boundaries in survey No.332/3 of Amballoor village. Item no.2 of the plaint schedule, which forms part of A schedule consists of 8½ para, is a paddy land. The plaintiffs who are the legal heirs of the deceased Kunjiyamma were allotted to C schedule to Ext.A1. Smt.Karthiayaniyamma died on 10.3.1960. The suit was filed in the year 2006, claiming partition of the share held by Karthiayaniyamma in Ext.A1 document. The defendants entered and contested the suit. The 1st defendant is the wife of late Krishnankutty, the son of late Karthiayaniyamma. According to the 1st defendant, the property in question devolved absolutely in favour of Karthiayaniyamma and her husband and that the plaintiffs have no right title over the plaint A schedule property. The parties intended to divide the property, and A schedule being in exclusive possession 2025:KER:41774 RSA NO. 748 OF 2013 10 of Karthiayaniyamma and Krishnankutty, the daughters of Karthiayaniyamma are not entitled to claim the right over the share of Karthiayaniyamma by inheritance. It is further contended that on 15.6.1960, the son of Karthiayaniyamma executed a 'nadappupanayadharam' in favour of Narayana Pilla, who is the father of the plaintiffs 1 to 3 and Ambujakshan and the delivery of the possession was also given to Narayana Pilla. The mortgage was not redeemed and thereafter, the 1st defendant purchased the right title and interest over the property when Narayana Pilla sold the entire extent of the property to Ammukkutty Amma, the 1st defendant and, therefore, the 1st defendant was in exclusive possession of the property, hostile to that of the plaintiffs and other defendants and, therefore, there is a clear case of ouster made out. As regards item no.2 of the plaint schedule property, it was contended that by Ext.B7, Karthiayaniyamma and Krishnankutty mortgaged the property in favour of third parties by a registered document. On 23.6.1966, the amount outstanding under the mortgage was repaid and it was redeemed. Ext.B7 would show that Karthiayaniyamma was divested of the title over the property even before her death, that is on 2025:KER:41774 RSA NO. 748 OF 2013 11 10.3.1960, and that after redemption of the mortgage, the property is in exclusive possession of the 1st defendant. Therefore, the claim for partition on behalf of the plaintiffs is unsustainable. On behalf of the plaintiffs, Ext.A1 alone was produced and PW1 was examined. On behalf of the defendants, Exts.B1 to B16 documents were produced. Ext.X1 series were marked as third party exhibits. The trial court, on consideration of the material evidence on record, framed the following issues:
"1. Whether the plaint schedule properties are partiable?
2. If so what shall be the share of parties?
3. Whether the plaintiffs are entitled for a decree of permanent prohibitory injunction as prayed for?
4. Reliefs and costs?"
4. After analysing the evidence on record, the trial court found that on the death of Karthiayaniyamma, the right, title and interest over the plaint schedule property, insofar as the share held by Karthiayaniyamma is concerned, opened up for inheritance, and therefore, notwithstanding the execution of Ext.A1, the parties are entitled to claim the rights over the share held by Karthiayaniyamma.
2025:KER:41774 RSA NO. 748 OF 2013 12 As regards execution of mortgage (panayadharam), the trial court held that late Krishnankutty, son of Karthiayaniyamma, had no right, title and interest over the property and therefore, execution of the mortgage deed is of no consequence. Further, as regards the contention of ouster, the trial court negated the contention of the plaintiffs on the ground that there is no evidence to prove ouster as pleaded by the 1st defendant. Accordingly, the suit was decreed by passing a preliminary decree for partition. Aggrieved by the judgment and decree, the 2nd defendant filed an appeal, A.S.No.53/2010, before the Vth Additional District Court, Ernakulam, which was dismissed by judgment and decree dated 31.10.2012 confirming the judgment of the trial court. It is against the judgment of the first appellate court dismissing the appeal, confirming the judgment of the trial court, that the 2nd defendant has approached this Court with the present appeal.
5. Heard Dr.V.N.Sankarjee, the learned counsel appearing for the appellant, and Sri.K.Sreehari Rao, the learned counsel appearing for the respondent Nos.1, 2, 5, 6, 29, 30 and 31.
6. The learned counsel for the appellant raised the following submissions:
2025:KER:41774 RSA NO. 748 OF 2013 13
(a) Ext.A1 takes the form of a family settlement between the parties by which respective shares were given to all branches in the joint family. Therefore, the other sharers cannot claim any right by inheritance. In support of the aforesaid contention, the learned counsel placed reliance on the judgment of the Single Bench of this Court in Damodaran Kavirajan and Others v. T.D.Rajappan [1992 KHC 557].
(b) It is further contended that in terms of the provisions contained under Section 35 of the Transfer of Property Act, 1882 read with Section 43, the 2nd defendant is entitled to hold the property in exclusion of the plaintiffs, since the representative of the plaintiffs, namely Narayana Pilla, who is none other than the husband of Kunjiyamma and father of the plaintiffs, had executed Ext.B11 registered document on 6.8.1960, whereby the property was reconveyed to the 1st defendant, wife of late Krishnankutty. There is a clear recital in Ext.B11 that the property has been given possession to the 1st defendant and thereafter, she is in exclusive possession.
(c) It is further contended that the mother of the plaintiffs, namely late Kunjiyamma, did not claim any right over the share of 2025:KER:41774 RSA NO. 748 OF 2013 14 Karthiayaniyamma. Moreover, the plaintiffs claim right over the share of Karthiayaniyamma by inheritance. Since Kunjiyamma did not claim any right of inheritance, the plaintiffs by themselves cannot claim right over the property of Karthiayaniyamma.
(c)(i) Even if the finding of the trial court as regards execution of Ext.B10 could be a plausible view, at any rate, the trial court could not have ignored the execution of a registered document, which operates as constructive notice against the plaintiffs in terms of Section 3 of the Transfer of Property Act, 1882.
(d) Lastly, it is contended that the 2nd item of the plaint schedule property was already under mortgage to third parties as early as on 23.8.1954 and therefore, Karthiayaniyamma and Krishnankutty were divested with the right title and interest over the property. Therefore on the date of death of Karthiayaniyamma, there was no existing right and what remained is only equity of redemption.
Going by the endorsement made in Ext.B7, the mortgage was redeemed by Ammukutty Amma, the 1st defendant, on 23.9.1966 and the possession was given to her. The endorsement made in Ext.B7 can be considered for collateral purposes in terms of Section 49 of the 2025:KER:41774 RSA NO. 748 OF 2013 15 Registration Act, 1908. Thus, the plaintiffs cannot claim any right over item No.2 of the plaint schedule property.
(e) It is further pointed out that the 3rd defendant died during the pendency of the suit, and the plaintiffs had not impleaded her legal heirs and, thus, the suit having been abated and the judgment being passed against a dead person is a nullity. Though the appellate court by order dated 25.2.2010 granted stay of execution of the decree on the sole ground, it did not consider the aforesaid issue in detail while rendering the final judgment.
(f) Lastly, it is contended that, even if the plaintiffs had any semblance of right over the plaint schedule property, the same is lost by ouster.
7. Per contra, the learned counsel appearing for the plaintiffs would contend that despite Ext.A1, the property opened up for inheritance, insofar as the share of Karthiayaniyamma is concerned, on her death. Therefore, the plaintiffs are entitled to maintain the suit for partition. As regards the contention of the appellant that a panayadharam was executed, the learned counsel by referring to the findings rendered by the trial court would contend 2025:KER:41774 RSA NO. 748 OF 2013 16 that the panayadharam having been executed without any authority of law does not part in the characteristics of a valid document and therefore, does not have any efficacy of law.
8. From the record of proceedings, it is seen that this Court issued consolidated notice on the appeal as well as in the interlocutory application for stay. However since there were numerous respondents in the appeal, completion of service was delayed. On consideration of the rival submissions and pleadings, both sides agree that the following substantial questions of law arise for consideration:
1) Is not the decree dated 21.8.2009 in the suit a nullity, as the 3rd defendant had died on 10.12.2008 and the suit was abated against the deceased 3rd defendant much before the passing of the impugned decree?
2) Is not Ext.Al a family arrangement as laid down in Thayyullathil Kunhikannan and others v. Thayyullathil Kalliani and others [AIR 1990 Kerala 266] and if so, the inheritance of Karthiayaniyamma whether to be made as provided in Ext. Al?
3) Is it not necessary to interpret Ext.Al as a family arrangement 2025:KER:41774 RSA NO. 748 OF 2013 17 in the light of subsequent conduct of the parties as revealed from Exts.
B10, B11, B16 and X1?
4) Is not the transfer or mortgage made as per Exts.B10 and B11 come within Articles 134 & 148 of the Limitation Act, 1908 as laid down in Madhavan Ezhuthassan v. Venkatarama Iyer [2008(2) KLT 609]?
5) Whether Exts.B8, B9 & B11 are valid in the light of Section 35 read with Section 43 of the Transfer of Property Act, 1882?
9. Before going into the real controversy, it is necessary to examine whether the decree of the trial court is a nullity since the plaintiffs failed to implead the legal heirs of the 3rd defendant. It is to be noted that the 3rd defendant is the granddaughter of Karthiayaniyamma. Other legal heirs of Narayaniyamma, the daughter of Late Karthiayaniyamma, were already there in the party array. In fact going by the preliminary decree, defendants 3 to 5 together take 1/5th share. Since the estate of Narayaniyamma to the extent of their entitlement to claim share of the estate of late Karthiayaniyamma were already in the party array, it cannot not be said that presence of legal heirs of the 3rd defendant is absolutely 2025:KER:41774 RSA NO. 748 OF 2013 18 necessary for adjudication of the lis. Thus applying the doctrine of substantial representation, it cannot be said, that the decree passed by the trial court is a nullity. Accordingly the question of law is answered against the appellant.
10. Coming to the core issue raised in the appeal, certain indisputable facts clearly shower light on the devolution of title among the parties and establish that joint family property consisting of Karthiayaniyamma and her minor son Krishnankutty and three sisters were broken in the year 1939. Each branch, namely, the three daughters and Karthiayaniyamma separated from the joint family property and were allotted with different shares. Therefore, the joint family property at the hands of Karthiayaniyamma got broken by virtue of execution of a registered partition deed. The question would be whether, the plaintiffs could claim further a right over the share held by Karthiayaniyamma under Ext.A1 partition deed. Though Ext.A1 is styled as a partition deed, there are sufficient materials before this Court to conclude that Ext.A1 is in the form of a settlement deed. If Ext.A1 is construed as a settlement deed, then, the principles of estoppel under Section 115 of the Indian Evidence Act, 1872 would 2025:KER:41774 RSA NO. 748 OF 2013 19 come into operation.
11. In Damodaran Kavirajan and others Vs T.D.Rajappan [1992 KHC 557], this Court held that, on execution of a family settlement, other sharers are estopped from claiming the right over the property by way of inheritance.
12. In Hameed Vs Jameela and others [2009 KHC 1204], a Single Bench of this Court held that when Muslim daughter receives money in lieu of heir's share in father's property, the act would estop the heir from claiming the share in father's property. While arriving at this view, this Court applied the principles enshrined under Section 115 of the Indian Evidence Act, 1872.
13. Though in Hameed (supra) this Court rendered the decision in context of Mohammedan Law, the principles laid down therein are very much applicable in the present case.
14. A reading of Ext.A1 shows that Karthiayaniyamma wanted A schedule therein to be in exclusive possession of herself and her minor son, late Krishnankutty. The silence on the part of the other daughters, more specifically Kunjiyamma, who was allotted C schedule property to Ext.A1, till her death, from claiming any right 2025:KER:41774 RSA NO. 748 OF 2013 20 over her mother's share is a crucial factor while judging the entitlement of the plaintiffs. It is thus clear, that late Kunjiyamma, daughter of Karthiayaniyamma and mother of the plaintiffs, never wanted the share over the property. Viewed in the perspective, this Court cannot but notice that, the trial court completely erred in holding that on the death of Karthiayaniyamma, the share held by Karthiayaniyamma over A schedule to Ext.A1 opened up for partition. Therefore, it is imperative for this Court to hold that Ext.A1 being in the form of a settlement, the plaintiffs who are the legal heirs of deceased Kunjiyamma, D/o.Karthiayaniyamma, are estopped from claiming right by inheritance. Accordingly, the question of law is answered in favour of the appellant.
15. It is the further case of the appellant that after the death of Karthiayaniyamma, Krishnankutty, S/o. late Karthiayaniyamma and husband of the deceased 1st defendant, was exclusively managing the property and he executed the panayadharam. The trial court proceeded to hold that Ext.B7 panayadharam (lease deed) does not have any sanctity in law, inasmuch as Krishnankutty had no right, title and interest to execute the same. But, it is pertinent to note that 2025:KER:41774 RSA NO. 748 OF 2013 21 Ext.B7 was executed in the year 1954 during the lifetime of Karthiayaniyamma, and Karthiayaniyamma did not raise any objection to Ext.B7. Karthiayaniyamma passed away only in the year 1960 and by that time, the Ext.B7 document was executed. Therefore, it can be safely concluded that late Karthiayaniyamma had impliedly consented to the execution of Ext.B7. Hence, this Court is inclined to hold that the staunch silence on the part of late Karthiayaniyamma is a strong indicative factor of her consent to the execution of Ext.B7. Both the courts erred miserably to notice this fact.
16. Yet another reason, which would persuade this Court to hold in favour of the appellant is the principle governing the Doctrine of Election. The provision dealing with this under the Transfer of Property Act, 1882 is Section 35. Section 35 of the Transfer of Property Act, 1882 reads as under:
"35. Election when necessary.--(1) Where a person professes to transfer property which he has no right to transfer, and as part of the same transaction confers any benefit on the owner of the property, such owner must elect either to confirm such transfer or to dissent from it; and in the latter case he shall relinquish the benefit so conferred, and the benefit so relinquished shall revert to the transferor 2025:KER:41774 RSA NO. 748 OF 2013 22 or his representative as if it had not been disposed of, subject nevertheless, where the transfer is gratuitous, and the transferor has, before the election, died or otherwise become incapable of making a fresh transfer, and in all cases where the transfer is for consideration, to the charge of making good to the disappointed transferee the amount or value of the property attempted to be transferred to him.
(2) The rule in the first paragraph of this section applies whether the transferor does or does not believe that which he professes to transfer to be his own.
(3) A person taking no benefit directly under a transaction, but deriving a benefit under it indirectly, need not elect.
(4) A person who in his own capacity takes a benefit under the transaction may in another dissent therefrom.
Exception to the last preceding four rules.--Where a particular benefit is expressed to be conferred on the owner of the property which the transferor professes to transfer, and such benefit is expressed to be in lieu of that property, if such owner claim the property, he must relinquish the particular benefit, but he is not bound to relinquish any other benefit conferred upon him by the same transaction.
Acceptance of the benefit by the person on whom it is conferred constitutes an election by him to confirm the 2025:KER:41774 RSA NO. 748 OF 2013 23 transfer, if he is aware of his duty to elect and of those circumstances which would influence the judgment of a reasonable man in making an election, or if he waives enquiry into the circumstances.
Such knowledge or waiver shall, in the absence of evidence to the contrary, be presumed, if the person on whom the benefit has been conferred has enjoyed it for two years without doing any act to express dissent.
Such knowledge of waiver may be inferred from any act of his which renders it impossible to place the persons interested in the property professed to be transferred in the same condition as if such act had not been done."
17. In C.Beepathumma Vs Velasari Shankaranarayana Kadambolithaya and others [AIR 1965 SC 241], the Supreme Court held that the Doctrine of Election as stated in the classic words of Maitland- "That he who accepts a benefit under a deed or will or other instrument must adopt whole contents of that instrument, must conform to all its provisions and renounce all rights that are inconsistent with it".{See Maitland's Lecture on Equity, Lecture 18}.
18. As could be seen above, the doctrine of election is based on the fundamental principle of equity and has a strong resemblance to the principle of "estoppel". Going by the observation of learned 2025:KER:41774 RSA NO. 748 OF 2013 24 Authors White and Tudor on Equity Vol 18th Edn. page 444, "Election is the obligation imposed upon a party by courts of equity to choose between two inconsistent or alternative rights or claims in cases where there is clear intention of the person from whom he derives one that he should not enjoy both.....that he who accepts a benefit under a deed or will must adopt the whole contents of the instrument."
19. The application of Section 35 of the Transfer of Property Act assumes significance in view of the subsequent conduct of the parties. It is pointed out that, after execution of Ext.B7 panayadharam, the liability over the property was never discharged. The benefits derived out of Ext.B7 were enjoyed by Kunjiyamma, through her husband Narayana Pilla and thereafter by the plaintiffs. Later, the 1st defendant, Ammukutty Amma, W/o.Krishnankutty, came forward to discharge the liability and the property was conveyed to Ammukutty Amma, the 1st defendant, by the father of the plaintiffs. The silence on the part of late Kunjiyamma must be construed as one giving assent to the transfer in favour of the 1 st defendant. It is further pertinent to note that when the re-transfer of 2025:KER:41774 RSA NO. 748 OF 2013 25 the property held under the panayadharam (lease deed) was made by Ext.B11 a registered document, it acts as a constructive notice to the plaintiffs thereby triggering the application of Section 3 of the Transfer of Property Act. Therefore, the plaintiffs cannot plead ignorance of the fact that Exts.B9 and B11 and contend that those documents were executed without their knowledge and that are not binding on the plaintiffs.
20. So also, Ext.B10, a nadappupanayadharam, is also a registered document executed on 15.6.1960. From the admitted facts, Karthiayaniyamma died on 10.03.1960. That be so, the principles governing the constructive notice under Section 3 will equally apply to the nadappupanayadharam (Ext.B10) and also the re-transfer in favour of the 1st defendant by Ext.B11.
21. In this context, this Court finds that the argument of the learned counsel for the appellant that the principles governing feeding of Estoppel by Grant embodied under Section 43 of the Transfer of Property Act, 1882 will apply.
Section 43 of the Transfer of Property Act 1882 reads as under.
"43. Transfer by unauthorised person who subsequently acquires interest in property 2025:KER:41774 RSA NO. 748 OF 2013 26 transferred.--
Where a person [fraudulently or] erroneously represents that he is authorised to transfer certain immovable property and professes to transfer such property for consideration, such transfer shall, at the option of the transferee, operate on any interest which the transferor may acquire in such property at any time during which the contract of transfer subsists. Nothing in this section shall impair the right of transferees in good faith for consideration without notice of the existence of the said option."
22. Section 43 provides that where a person erroneously represents that he is authorized to transfer certain immovable property and transfer such property for consideration, such transfer shall be at the option of the transferee and operate on any interest which the transferor may acquire in such property during which the contract subsists. The principle underlying the doctrine of feeding estoppel by grant is that when the transferor having no interest in the property transfers the same, but subsequently acquires interest in the said property, the purchaser may claim the benefit of such subsequent acquisition of the property by the transferor. {See Agricultural 2025:KER:41774 RSA NO. 748 OF 2013 27 Produce Marketing Committee Vs Bannama (Dead) by LRs [(2015) 5 SCC 691]. Applying the principles as above to the facts of the case, it can be safely vouched that, even if Krishnankutty had no right over the property at the time when Ext.B10 was executed, on death of Karthiayaniamma, the entire rights devolved on late Krishanankutty. Therefore, the 'panayadharam' becomes valid. Further, consequent to the discharge of the outstanding liability over the property and accepted by the father of the plaintiffs, the right, title and interest passes into the hands of Ammukutty Amma, W/o late Krishnankutty. The plaintiffs' father having received the amounts outstanding on the property by Ext.B10, the plaintiffs are bound by the act of their predecessor and thus cannot plead the invalidity of the "panayadharam". Still further, by virtue of operation of Section 3 of the Transfer of Property Act, the plaintiffs are deemed to have a constructive notice of the execution of the document. Therefore, answering the question of law framed as above, it is held that Exts.B10 and B11 documents are valid in the eyes of law.
23. Lastly, it is contended before this Court that insofar as item No.2 of plaint schedule property is concerned, which forms as 2025:KER:41774 RSA NO. 748 OF 2013 28 item No.2 to plaint A schedule, Karthiayaniyamma and Krishnankutty both executed a registered mortgage deed in the year 1953 as Ext.B5. A perusal of Ext.B5 shows that the possession has been handed over to the mortgagee. The endorsements made therein would show that in the year 1966, the redemption of the mortgage took place. However, it is pertinent to mention that redemption is not by virtue of a registered document. But, that by itself will not deter the appellant to successfully resist the claim of the plaintiffs. As stated above, on 10.3.1960, Karthiayaniyamma died and she had no right title and interest over the property and therefore, no right of inheritance flowed into the hands of the defendants and only an equity of redemption was available. Since the redemption was by a third party, necessarily, the benefit of the mortgage should go into the hands of the 1st defendant. Viewed in the perspective, it is clear that item Nos.1 & 2 were not available for partition. Accordingly, answering the question of law, it is held that the suit properties are not available for partition.
24. Before parting with this case, this Court should also consider the alternate plea of the appellant that, even if the plaintiffs 2025:KER:41774 RSA NO. 748 OF 2013 29 had any right, the same is lost due to ouster. It must be remembered that the plea of ouster is only an alternative plea. But for sake of completing the exercise, this Court decided to look into the same as well.
25. Law as regards 'ouster' needs no elaboration. The uninterrupted sole possession of such property, without more, must be referred to the lawful title possession by the joint holder to use the joint estate, and cannot adversely claim against other interested members. If possession may be either lawful or unlawful, in the absence of evidence, it must be assumed to be formal. While deciding the question of ouster or exclusion from the joint property in true route which is deductible is that there can be no adverse possession by one co-sharer as against others until there is an ouster or exclusion and that the possession of the co-sharers becomes adverse to the other co-sharer from the moment when there is ouster. That is after assertion of an ouster title by one co-sharer against the other and to the knowledge of the latter.
26. In Govindammal v. R.Perumal Chettiyar & Others [(2006) 11 SCC 600], the Supreme Court held that a co-sharer 2025:KER:41774 RSA NO. 748 OF 2013 30 becomes constructive trustees of the other co-sharers and the right of a person or its predecessor in interest is deemed to have been protected by the trustees. In order to prove ouster and adverse possession against the co-sharer, the following relevant factors have to be taken into consideration:
(i) Exclusive possession and perception of profits for well over the period prescribed by the law of limitation;
(ii) Dealings by the party in possession treating the properties as exclusively belonging to him;
(iii) The means of excluded co-sharer of knowing that his title has been denied by the co-owner in possession.
27. Again, in Des Raj & Ors Vs Bhagat Ram (Dead) By Lrs. & Ors [(2007) 9 SCC 641], the Supreme Court considered the issue of adverse possession and ouster in suits relating to partition. It was held that a plea of adverse possession or a plea of ouster would indisputably be governed by Articles 64 and 65 of the Limitation Act. Mere assertion of the title by itself may not be sufficient unless the parties prove animus possidendi.
28. In B.R.Patil Vs Tulsa Y Sawkar & Others [2022 2025:KER:41774 RSA NO. 748 OF 2013 31 SCC OnLine SC 240], the Supreme Court had occasion to consider the plea of ouster in a wider perspective and it was held that the very essence of adverse possession and therefore ouster lies in a party setting up a hostile title in himself. The possession of a co-owner is ordinarily on his behalf and also on behalf of the entire body of the co-owners. In the case of an ouster, the co-owner must indeed have the hostile animus. He must assert a title which is not referable to a lawful title.
29. The evidence in this case clearly shows that by virtue of Exts.B10 and B11 documents and also the endorsements contained in Ext.B7, any doubt as regards the exclusive possession of the 1 st defendant over the plaint schedule property is dispelled. There is clear evidence in this case, to show that right from the year 1960 onwards, late Krishnankutty and his wife Ammukutty Amma, the 1st defendant, was in exclusive possession of the plaint schedule property hostile to the plaintiffs. A perusal of the judgment rendered by the trial court as affirmed by the first appellate court would show that both the courts erred egregiously in appreciating the evidence as well as the law raised before it. Inevitably, the perverse appreciation of 2025:KER:41774 RSA NO. 748 OF 2013 32 evidence, by itself qualifies as a substantial question of law, which would entail the appellant to successfully maintain this appeal before this Court.
Resultantly, on appreciation of the entire facts as well as the law involved in the present case, this Court is constrained to hold that both the courts erred in holding that the plaint schedule property is available for partition. Accordingly, the appellant is entitled to succeed and the appeal is thus allowed reversing the judgment dated 21.8.2009 of the trial court in OS No.1501/2006 as well as that of the first appellate court dated 31.10.2012 in AS No.53/2010 and, resultanly, the suit stands dismissed. No costs.
Sd/-
EASWARAN S. JUDGE jg