E.K. Kunhammedkutty vs Kalliyath Abdul Gafoor on 9 October, 2025

[Cites 8, Cited by 0]

Kerala High Court

E.K. Kunhammedkutty vs Kalliyath Abdul Gafoor on 9 October, 2025

The preliminary decree in a suit for partition and profits, with a counter claim for rendition of accounts, is under challenge by the plaintiff. The plaint 'A' schedule which is the subject matter of dispute is 59 cents with a commercial building therein.

2. Under Exts.A1 to A3 sale deeds of the year 1999, the plaintiff and defendants 1 and 2 jointly purchased the 59 cents of property. The share of investment of the plaintiff and defendants 1 and 2 was 25:50:25 respectively. They decided to construct a multi-storeyed commercial complex in the property and to lease/sell out the same. The second defendant is the brother- in-law of the plaintiff. Since he was abroad, he executed Ext.B1 power of attorney in favour of the plaintiff. R.F.A. No.234 of 2014

2025:KER:74577 -: 2 :-

3. It is the case of the plaintiff that since the 1 st defendant was a busy businessman and the 2 nd defendant was abroad, he was vested with the responsibility for construction of the building by raising amounts by way of availing loans, giving the shop rooms on rent or sale etc. In consideration for the same, it was agreed between the parties that the plaintiff would be entitled for 40% out of the total profits after assessing the value of the building after construction, and the remaining 60% was to be divided in the proportion of 25:50:25 between the plaintiff and defendants 1 and 2.

4. The construction of the building was completed by 01.11.2006 and the building was named "Inter City Arcade". The plaintiff alleged that the defendants refused to honour the agreement for payment of 40% of the profits to him. It is accordingly that the suit has been filed. The reliefs claimed in the suit read thus:-

"a) directing partition of the properties described in 'A' and 'B' schedule below allotting ¼ share to the plaintiff with separate possession of specific areas in the building located in the properties with share of profits and arrears of rent as shown below with share of future rent and profits; and

b) directing the 1st defendant to return the agreement dated 5-2-2005, all account books, day books, loan register, advance receipt books, rent receipt books, bills, R.F.A. No.234 of 2014 2025:KER:74577 -: 3 :- vouchers etc. taken from the office of the plaintiff by a mandatory injunction,

c) directing the defendants or the estate to pay costs of the plaintiff and,

d) granting such other relief which this Honourable Court may deem fit and proper to grant."

5. Defendants 1 and 2 filed separate written statements. The fist defendant denied the plaint allegation that the construction of the building was the sole responsibility of the plaintiff. He claimed that the construction was with his active involvement also. The alleged agreement to give 40% of the profits to the plaintiff, was denied. It was contended that the sharing is to be in the ratio of 25:50:25 between the plaintiff and defendants. He alleged that the plaintiff had not accounted with regard to the income and the expenditure, and raised a counter claim for rendition of accounts. The second defendant also raised similar contentions.

6. The trial court held that the plaintiff failed to prove the alleged agreement whereby he claims to be entitled for 40% of the profits. It was held that the share of the parties is in the proportion of 25:50:25. The plaintiff was required to furnish the accounts. A preliminary decree was passed accordingly. R.F.A. No.234 of 2014

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7. We have heard Sri.T.Sethumadhavan, learned Senior Counsel instructed by Smt.Preethi P.V., for the appellant-plaintiff, Sri.V.V.Asokan, the learned Senior Counsel instructed by Adv. S.Parvathi, for the first respondent-first defendant and Sri.K.M.Firoz, the learned counsel for the second respondent- second defendant.

8. The points that arise for determination are:-

(i) Is the alleged agreement between the parties, entitling the plaintiff for 40% share out of the total profits, substantiated by evidence? Is the plaintiff entitled for a decree for the same?

(ii) Does the decree of the trial court directing settlement of accounts warrant any interference?

9. The trial court raised the following issues for trial:-

"1) Whether the plaint schedule properties are partible? If so, what is the share of the parties ?

2) Whether the mandatory injunction prayed for by the plaintiff is allowable?

3) Whether the plaintiff is liable for accounts as prayed for in the counter claim?

4) Relief and cost?"

Additional issues

5) Whether defendants are liable to pay any share of profits to plaintiff on completion of building in plaint schedule property as alleged? If so, at what quantum ?

6) Whether D2 is liable to get any share of rent income from plaint schedule property? If so, who is liable and at what quantum? Concededly, only issues 3 and 5 arise for consideration in this appeal, that is, regarding the alleged agreement entitling the R.F.A. No.234 of 2014 2025:KER:74577 -: 5 :- plaintiff for 40% of the share of profits and regarding the liability of the plaintiff for settlement of accounts.

10. The recitals in Exts.A1 to A3 sale deeds, under which the land was purchased, unambiguously indicate that the investment of the plaintiff and the defendants were in the proportion of 25:50:25. They decided to put up a multi-storeyed commercial complex in the property. Admittedly the building was constructed and completed by 01.11.2006. The building consists of a basement floor and five floors, with 284 commercial rooms.

11. It is the plaintiff's case that he was entrusted with the responsibility for raising funds and constructing the building. He had planned and manned the sources and the construction. Since he was to bear the burden, the defendants agreed that he would be entitled to 40% of the total profits and that the balance 60% of the profit be shared between them in the proportion of 25:50:25. Such agreement is disputed by the defendants.

12. According to the plaintiff on 05.02.2005, a written agreement was entered into between the plaintiff and the defendants with regard to the sharing of 40% profit with the R.F.A. No.234 of 2014 2025:KER:74577 -: 6 :- plaintiff. The first defendant is alleged to have clandestinely removed the agreement from the office of the plaintiff. To prove that there existed such an agreement, all that is available is the oral evidence of the plaintiff as PW1. A reading of his evidence would indicate that the case set up by him regarding the existence of an agreement and that such written agreement was taken away by the first defendant is not true.

13. It is the case of the plaintiff that on 16.11.2006 when he was at Ernakulam, the first defendant telephoned him and told him that there was some raid by the Sales Tax Department at his business establishment and that the keys of the locker etc. were required to take the accounts of the project. Accordingly the keys were obtained from the staff of the plaintiff, and the first defendant took away various records including the agreement dated 05.02.2005. However, in his cross examination he deposed that the keys of the locker used to be with him even when he went out of station. In further examination he deposed that on that day the keys were at his home. He did not say as to who gave the key. Nobody was examined to prove the same. He deposed thus, R.F.A. No.234 of 2014 2025:KER:74577 -: 7 :- "ഈ കകെടട്ടിടതട്ടികന്റെ ആവശശ്യങ്ങൾകകക, മററ്റ് വശ്യകട്ടിപരമമായ കെമാരശ്യങ്ങൾകകക ഞമാൻ കകെമാഴട്ടികകമാടറ്റ് തകന്നെയകക, out of station ആയകക പലകപമാഴകക പകറതറ്റ് കപമാകെമാറകണറ്റ്. ആ സമയങ്ങളട്ടിൽ office കന്റെയകക കസഫട്ടികന്റെയകക തമാകകമാലകകെൾ എകന്റെ പകലമായട്ടിരട്ടികകക"........."തമാകകമാൽ ഞമാൻ തമാമസട്ടികകന്നെ വവീടട്ടിൽ കവചറ്റ് " . Though he claims that various documents were lost he did കപമായതമായട്ടിരകന്നെക not care to find out which were the documents so lost. "എകന്റെ ഓഫവീസട്ടിൽ നട്ടിന്നെറ്റ് നഷറ്റ്ടകപട കരഖകെളളുകട list ഞമാൻ തയമാറമാകട്ടിയട്ടിടട്ടില."

14. PW1 claimed that it was only a copy of the agreement that was available with him and he is not aware as to who is in custody of the original. He even expressed ignorance as to who were the witnesses in the agreement. He deposed, " എഗഗട്ടികമന്റെന്റികല സമാകട്ടികെൾ ആരമായട്ടിരകന്നെകകവന്നെറ്റ് അറട്ടിയട്ടില. സമാകട്ടികെൾ ഉണമാകെമാൻ സമാധശ്യതയകണറ്റ്." He is not definite whether the 1st defendant had removed the document. The relevant deposition read thus:

"1--മാക ഗപതട്ടി ഞമാൻ ഉകണന്നെറ്റ് പറയകന്നെ എഗഗട്ടികമന്റെറ്റ് നവീകക കചെയളുന്നെതമായട്ടി ഞമാൻ കെണട്ടിടട്ടില. ഞമാൻ പറയകന്നെ മകറട്ടിയട്ടിൽ നട്ടികന്നെമാ, കസഫട്ടിൽ നട്ടികന്നെമാ എകന്തെങട്ടിലകക കരഖകെകളമാ, റട്ടികകമാർഡകകെകളമാ 1--മാക ഗപതട്ടി മമാറളുന്നെതറ്റ് ഞമാൻ കെണട്ടിടട്ടില . 16-11-2006 നറ്റ് 1--മാക ഗപതട്ടി എഗഗട്ടികമന്റെറ്റ് നവീകക കചെയറ്റ്തകകവന്നെമാണറ്റ് എകന്റെ ഓർമ . എഗഗട്ടികമന്റെടകക എകന്റെ custody യട്ടിലകള്ള കരഖകെളമാണറ്റ് നഷറ്റ്ടകപടതറ്റ്. 1--മാക ഗപതട്ടിയമാണറ്റ് കരഖകകെമാണകകപമായകതന്നെറ്റ് ആകരമാടകക എകന്നെമാടറ്റ് പറഞട്ടിടട്ടില. കരഖകെൾ നഷറ്റ്ടകപടളുകവന്നെറ്റ് ഞമാൻ പറയകന്നെതട്ടികന്റെ കെകറചറ്റ് ദട്ടിവസക കെഴട്ടിഞമാണറ്റ് കരഖകെൾ നഷറ്റ്ടകപട വട്ടിവരക ഞമാൻ അറട്ടിഞതറ്റ്. സകഭവക ഞമാൻ കെമാണമാതതകകകെമാണറ്റ് 1--മാക ഗപതട്ടിയമായട്ടിരട്ടികമാക കകെമാണകകപമായകതന്നെറ്റ് ഞമാൻ ധരട്ടിചളു.... 1--മാക ഗപതട്ടികറ്റ് തമാകകമാൽ കകെമാടകകകന്നെതട്ടിനറ്റ് ആകരങട്ടിലകക കെകണമാ എകന്നെനട്ടികറട്ടിയട്ടില. ഞമാൻ കെണട്ടിടട്ടില."....... 1--മാക ഗപതട്ടി കെണകറ്റ് പകസറ്റ്തകെങ്ങൾ മമാറളുന്നെതറ്റ് ഞമാൻ കെണട്ടിടട്ടില."

R.F.A. No.234 of 2014

2025:KER:74577 -: 8 :- The above deposition of PW1 is sufficient enough to find the improbability of the plaintiff's case regarding the alleged agreement.

15. In the plaint as well as in Ext.A6 notice issued prior to the suit, the plaintiff is categoric that both the defendants had executed the alleged agreement dated 05.02.2005. Ext.A6 notice was issued to both the defendants; therein a specific demand is made to the first defendant to return the original agreement dated 05.01.2005 signed by the plaintiff and both the defendants. The relevant sentence reads thus:-

"To return the original agreement dated 5/1/2005 signed by my client and No.1,2 to my client.".

In the cross examination of PW1, at page 2, he would reaffirm that the agreement was signed by both the defendants. He deposed thus:-

"Ext.A1 മകതൽ A3 കരഖകെൾകറ്റ് പകറകമ 40% വരകന്നെ സകമമാർ 6 1/2 കകെമാടട്ടി രരൂപ എനട്ടികറ്റ് തരമാകമന്നെറ്റ് 1,2, ഗപതട്ടികെൾ ഏറതമായട്ടി കെമാണകന്നെ കരഖ ഉണമായട്ടിരകന്നെക. Written Agreement ആയട്ടിരകന്നെക. ആ എഗഗട്ടികമന്റെന്റിൽ ഞമാനകക 1,2 ഗപതട്ടികെളളുക ഒപട്ടിടട്ടിരകന്നെക. 2005 ലമാണറ്റ് ആ കരഖ ഉണമാകട്ടിയതറ്റ്. "

However, in further cross-examination he would depose that the agreement was signed only by the first defendant. The deposition reads thus:-

R.F.A. No.234 of 2014

2025:KER:74577 -: 9 :- "ഞമാനകക, 1--മാക ഗപതട്ടിയകക ആണറ്റ് എഗഗട്ടികമന്റെന്റിൽ ഒപട്ടിടതറ്റ് . 2--മാക ഗപതട്ടി ഒപട്ടിടട്ടില . ആ എഗഗട്ടികമന്റെന്റിൽ 2--മാക ഗപതട്ടി കെകട്ടി അല . "

Suffice to notice that the plaintiff failed to prove the existence of such an agreement and also the case that it was removed by the 1st defendant.

16. Ext.A10 is a letter dated 17.06.2006 sent by the second defendant to the plaintiff. As was noticed earlier, the second defendant is the brother-in-law of the plaintiff and he was abroad. The plaintiff is his power of attorney holder. In Ext.A10, the second defendant has expressed his willingness to give a portion of the profits from out of his share to the plaintiff. However, the contents of the letter reveals that even as on that date there was no agreement as claimed by the plaintiff, to give 40% of the total profits.

17. Ext.A11 is an agreement dated 10.04.2007 between the plaintiff and the second defendant. As per Ext.A11 the second defendant has agreed to give 20% of his share of profits to the plaintiff. As noted by the trial court, Ext.A11 is dated 10.04.2007 and the suit was filed on 12.04.2007. In spite of the same, the plaint does not refer to Ext.A11 agreement or Ext.A10 R.F.A. No.234 of 2014 2025:KER:74577 -: 10 :- letter. With regard to Ext.A11 agreement it is suggested to the plaintiff in his cross-examination that it was caused to be executed when he was lying sick at the Amritha Hospital and was misled into its execution. That it was executed while the 2 nd defendant was at hospital is admitted by PW1. He deposed, "Ext.A11 കെരമാർ ഒപട്ടിടകകമമാൾ 2--മാക ഗപതട്ടി , അമമൃത ഇൻസട്ടിറററ്റ്യൂടറ്റ് ഓഫറ്റ് കമഡട്ടികൽ കഹമാസറ്റ്പട്ടിറലട്ടിൽ അഡറ്റ്മട്ടിറമായട്ടിരകന്നെക." It is also significant to note that Ext.A10 and Ext.A11 documents were produced only at the time of trial. The learned Senior Counsel for the appellant relied on Exts.A10 and A11 only to argue that those documents probabilises the case of the plaintiff that there was an agreement to give 40% of the total profits to the plaintiff to recompense his toil and efforts in the construction of the building. But we find that there is no evidence to find that there existed an agreement, oral or documentary, entitling the plaintiff for 40% of the profits.

18. The learned counsel appearing for the second defendant urged before this Court that the said documents are of no avail since they are not supported by any pleadings. As contended by the counsel, the existence of an agreement between the plaintiff R.F.A. No.234 of 2014 2025:KER:74577 -: 11 :- and the second defendant for payment of 20% profit, was never pleaded. So also, there is no claim based on Ext.A11. We have found that the plaintiff has failed to prove the existence of any agreement whereby defendants 1 and 2 consented to give 40% of the profits to the plaintiff and to share the remaining 60% in the proportion of 25:50:25 between the plaintiff and defendants.

19. The learned Senior Counsel appearing for the appellant relied on the judgments of the Apex Court in Pandurang Jivaji Apte v. Ramchandra Gangadhar Ashtekar (Dead) by Lrs. and Ors (AIR 1981 SC 2235 ) ,Vidhyadhar v. Manikrao And Another (1999 (3) SCC 573), Iqbal Basith and Others (S) v. N. Subbalakshmi and Others (2021 (2) SCC 718) in support of his contention that an adverse inference is to be drawn against the defendants since they abstained from the witness box. The respondent would on the other hand relied on Section 101 of the Evidence Act and of the Judgment of the Apex Court in Rangammal v. Kuppuswami And Another (2011 (12) SCC 220), State Of J&K v. Hindustan Forest Co. And Others (2006 (12) SCC 198), Union Of India v. Ibrahim Uddin And Another (2012 (8) SCC 148), Chirag Enterpriseis v. Star Traders (2012 (4) KHC

271) to contend that the question of raising an adverse inference would raise only if the party was required to prove a fact. The burden of proving the agreement as claimed by the plaintiff being R.F.A. No.234 of 2014 2025:KER:74577 -: 12 :- entirely upon him, the mere fact that the defendants did not mount the witness box cannot lead to any adverse inference, it was argued.

20. The special claim of the plaintiff for profits is founded on an alleged agreement with the defendants. Such an agreement is denied by the defendants. But for the oral evidence of the plaintiff as PW1, there is no evidence to prove the alleged agreement. The oral evidence of the plaintiff as PW1 would disprove the existence of an agreement. We have already held that there is total lack of evidence to find any agreement. On the facts of the present case we do not think that the failure of the defendants to mount the witness box is of any consequence or significance. Whether an adverse inference is liable to be drawn for the failure of the party to mount the witness box, would depend on the facts of each case. In Chirag Enterprises v. Star Traders (supra) it was held thus:

"26. Learned counsel for the appellant submitted that the Trial Court ought to have drawn an adverse inference from the fact that the defendants did not examine either by themselves of somebody else on their behalf to rebut the evidence of the plaintiff. We are unable to countenance that argument in view of the pleadings and evidence on record. It is a case wherein the defendant denied the transactions totally and according to them no amount is due to the plaintiff from them. On the other hand, plaintiff miserably failed to R.F.A. No.234 of 2014 2025:KER:74577 -: 13 :- state his case and produce evidence against the defendants. The settled law is that it is incumbent upon the plaintiff to establish his case averred in the plaint and produce evidence at first. Unless and until the plaintiff discharge his initial burden, the question of rebuttal evidence does not arise. The plaintiff, who desires the Court to give Judgment as to his right to get the amount dependent on the facts which he asserted in the plaint must establish his case at first. But here, the plaintiff miserably failed to discharge his initial burden of proof. Non examination of the defendant or his witnesses is immaterial, where no onus cast on the defendants. The above view is supported by the decision reported in Union of India v. Ibrahimuddin, 2012 KHC 4379 : 2012 (3) KLT SN 73 (Case No. 79) (SC) : 2012 (3) KHC SN 19 : 2012 (6) SCALE 476 : 2012 (8) SCC 148 wherein the Supreme Court held that :

"Issue of drawing adverse inference is required to be decided by the Court taking into consideration the pleadings of the parties and by deciding whether any document/evidence, withheld, has any relevance at all or omission of its production would directly establish the case of the other side. The court cannot lose sight of the fact that burden of proof is on the party which makes a factual averment."

xxxx xxxx xxxx "Failure of party to prove its defence does not amount to admission, nor it can reverse of discharge the burden of proof of the plaintiff." The above decision was laid down following the decisions in Srinivasa Das v. Surjanarayan, 1967 KHC 465 : AIR 1967 SC 256 : 1966 Supp SCR 436 Ramrati Kuer v. Dwarika Prasad, 1967 KHC 637 : AIR 1967 SC 1134 : 1967 (1) SCR 153 : 1967 MPWR 1 and Manager, R.B.I. Bangalore v. S. Mani, 2005 KHC 1118 : AIR 2005 SC 2179 : 2005 (5) SCC 100. Therefore, no adverse inference can be drawn against the defendant either for their non-examination or for non-production of documentary evidence. Invariably it is optional and depends upon pleadings mooted by the parties." There cannot be an inviolable rule that in all cases whether a party fails to mount the witness box an adverse inference is to be drawn against him. Hence the said contention is only to be repelled and we do so.

R.F.A. No.234 of 2014

2025:KER:74577 -: 14 :-

21. The plaintiff has failed to prove the existence of an agreement entitling him to 40% of the profits, we concur with the trial court in having declined such claim.

22. But for the claim for a special right for 40% of the profits, the proportion in which the parties are otherwise entitled to namely, 25% for the plaintiff, 50% for the first defendant, and 25% for the second defendant, is not in dispute. Hence the trial court was right in having decreed accordingly.

23. Now coming to the counter claim for settlement of accounts, it is the claim of the plaintiff that the audited balance sheet during the period 2001-06 were produced as Exts.A12 to A16, Ext.A23 to 28, and Ext.A37. The parties have submitted their income tax return based on such statement of accounts. Therefore, there remained no further accounts to be settled between the parties, it is argued.

R.F.A. No.234 of 2014

2025:KER:74577 -: 15 :-

24. The claim of the plaintiff that there remained no accounts to be settled between the parties and hence the very prayer should have been rejected, is not liable to be accepted. Even going by the case of the plaintiff as pleaded in the plaint as well as in his deposition as PW1, the audited accounts are available only up to 31.03.2006. The construction of the building was completed only on 01.11.2006. In the plaint it is stated thus:-

"The figure up to 31.03.2006 is audited and thereafter the accounts are to be audited to get the actual figure up to 01.11.2006 and so it is quoted as approximate estimate."

The mere fact that the total value of the building was assessed by a Commissioner would not absolve the plaintiff of the duty to settle their accounts. The plaintiff can rely upon the audited balance sheets also in the final decree proceedings in the course of settlement of accounts. Admittedly there were various R.F.A. No.234 of 2014 2025:KER:74577 -: 16 :- unaccounted dealings also with regard to the construction work. Therefore, the direction for settlement of accounts warrants no interference. The trial court was right in having passed a final decree accordingly.

25. Thus, on a re-appreciation of the entire evidence, we are in agreement with the trial court in having declined the plaintiff's claim for additional profits, and also in having upheld his liability for accounting.

There is no merit in the appeal. The appeal fails and is dismissed. No costs.

Sd/-

SATHISH NINAN JUDGE Sd/-

P. KRISHNA KUMAR JUDGE kns/-

//True Copy// P.S. To Judge

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