Kerala High Court
Rajendran Nair vs Sreedeviyamma on 15 September, 2025
2025:KER:70751
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE EASWARAN S.
MONDAY, THE 15TH DAY OF SEPTEMBER 2025 / 24TH BHADRA, 1947
RSA NO. 882 OF 2016
AGAINST THE JUDGMENT AND DECREE DATED 18.03.2015 IN AS
NO.105 OF 2008 OF ADDITIONAL DISTRICT COURT-I, MAVELIKKARA
ARISING OUT OF THE JUDGMENT AND DECREE DATED 23.05.2008 IN
OS NO.501 OF 1998 OF MUNSIFF COURT, MAVELIKKARA
APPELLANT [APPELLANT IN THE COURT BELOW & 2ND DEFENDANT IN
THE TRIAL COURT]:
RAJENDRAN NAIR, AGED 46 YEARS,
S/O. KESAVA KURUP, VRINDAVANAM, PAYYANALOOR P.O.,
NOORANADU, ALAPUZHA DISTRICT, PIN-690504.
BY ADV SHRI.K.B.PRADEEP
RESPONDENTS [RESPONDENTS IN THE COURT BELOW & ADDITIONAL
PLAINTIFFS IN THE TRIAL COURT] [FIRST PLANTIFF REVEENDRAN
NAIR EXPIRED AND LR'S ARE RESPONDENTS 1 -3 HEREIN]:
1 SREEDEVIYAMMA, AGED 47 YEARS,
W/O. RAVEENDRAN NAIR, VRINDAVAN, PALAMEL,
PAYYANALOOR P.O., NOORANADU, ALAPUZHA DISTRICT,
PIN-690504.
2 ANJANA R.NAIR, AGED 20 YEARS,
VRINDAVAN, PALAMEL, PAYYANALOOR P.O., NOORANADU,
ALAPUZHA DISTRICT, PIN-690504.
3 ARAVIND R.NAIR, AGED 18 YEARS,
VRINDAVAN, PALAMEL, PAYYANALOOR P.O., NOORANADU,
ALAPUZHA DISTRICT, PIN-690504.
RSA Nos.882 & 1227/2016
2
2025:KER:70751
4 JANARDHANAN NAIR, AGED 63 YEARS,
S/O. LATE GOWRI AMMA, GOWRI NILAYAM, PALAMEL
VILLAGE, PAYYANALOOR P.O., NOORANADU, ALAPUZHA
DISTRICT, PIN-690504.
BY ADVS.
SRI.M.NARENDRA KUMAR - R1 TO R3
SMT.HARSHADEV M.- R1 TO R3
SMT.S.RAKHEE - R4
THIS REGULAR SECOND APPEAL HAVING BEEN FINALLY HEARD ON
15.09.2025, ALONG WITH RSA.1227/2016, THE COURT ON THE SAME
DAY DELIVERED THE FOLLOWING:
RSA Nos.882 & 1227/2016
3
2025:KER:70751
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE EASWARAN S.
MONDAY, THE 15TH DAY OF SEPTEMBER 2025 / 24TH BHADRA, 1947
RSA NO. 1227 OF 2016
AGAINST THE JUDGMENT AND DECREE DATED 18.03.2015 IN AS
NO.105 OF 2008 OF ADDITIONAL DISTRICT COURT-I, MAVELIKKARA
ARISING OUT OF THE JUDGMENT AND DECREE DATED 23.05.2008 IN
OS NO.501 OF 1998 OF MUNSIFF COURT, MAVELIKKARA
APPELLANTS/ADDITIONAL RESPONDENTS 2 TO 4/LEGAL
REPRESENTATIVES OF THE PLAINTIFFS:
1 SREEDEVI AMMA
AGED 49, W/O.RAVEENDRAN NAIR, VRINDAVAN,
PAYYANALLOOR, PALAMEL, NOORANADU VILLAGE.
2 ARCHANA R.NAIR.
AGED 22 YEARS, D/O.SREEDEVI AMMA, VRINDAVAN,
PAYYANALLOOR, PALAMEL, NOORANADU VILLAGE.
3 ARAVIND R.NAIR
AGED 20 YEARS, S/O.SREEDEVI AMMA, VRINDAVAN,
PAYYANALLOOR, PALAMEL, NOORANADU VILLAGE.
BY ADVS.
SRI.M.NARENDRA KUMAR
SMT.HARSHADEV M.
RESPONDENTS/2ND APPELLANT AND ADDITIONAL 5TH RESPONDENT:
1 RAJENDRAN NAIR, AGED 46 YEARS,
S/O.KESAVAKURUP, VRINDAVAN, PAYYANALLOOR,
RSA Nos.882 & 1227/2016
4
2025:KER:70751
PALAMEL, NOORANADU VILLAGE, PAYYANALLOOR P.O.,
ALAPPUZHA DISTRICT.690564.
2 JANARDHANAN NAIR, AGED 70 YEARS,
GOURI NILAYAM, PALAMEL VILLAGE, PAYYANALLOOR
P.O., ALAPUZHA DISTRICT. 690564.
BY ADV
SHRI.K.B.PRADEEP - R1
SMT.S.RAKHEE - R2
THIS REGULAR SECOND APPEAL HAVING BEEN FINALLY HEARD ON
15.09.2025, ALONG WITH RSA.882/2016, THE COURT ON THE SAME
DAY DELIVERED THE FOLLOWING:
RSA Nos.882 & 1227/2016
5
2025:KER:70751
EASWARAN S., J.
---------------------------------------------------------
R.S.A Nos.882 and 1227 OF 2016
---------------------------------------------------------
Dated this the 15th day of September, 2025
JUDGMENT
The above appeals arises out of the judgment in O.S.No.501/1998 on the files of Munsiff Court, Mavelikara.
The brief facts necessary for the disposal of these appeals are as follows:
2.1. O.S.No.501/1998 is a suit for declaration of title, cancellation of settlement deed, and injunction was instituted by one Raveendran Nair(plaintiff). R.S.A.No.1227/2016 is filed by his legal representatives and R.S.A.No.882/2016 is filed by the 2 nd defendant in the suit. The plaintiff and the 2nd defendant are brothers. Plaint A and B schedule properties originally belonged to the 1st defendant, the mother, who obtained the same by Sale Deed No.5114/1960 of S.R.O. Nooranadu. According to the plaintiff, in the year 1987, the property was orally partioned and A schedule property was allotted as the share of the plaintiff and B schedule as the share of the 2nd defendant. As such, A schedule property is in the possession of the plaintiff and B RSA Nos.882 & 1227/2016 6 2025:KER:70751 schedule property is in the possession of the 2 nd defendant. It is further contended that thereafter the plaintiff constructed a house in A schedule property and was residing in the said property. Later a loan was availed by mortgaging the property in the possession of the plaintiff along with his mother. On 05.11.1996, the mother informed the plaintiff that a settlement deed was executed by her in favour of the 2nd defendant and that the said document is executed under coercion and influence. Thus according to the plaintiff, the settlement deed executed by his mother is not binding on him especially in the light of the oral partition.
2.2. The defendants entered appearance and contested the suit. Both the defendants filed a joint written statement, wherein the mother categorically denied the suggestion that the settlement deed was executed under coercion and fraud. The 1st defendant stated that the settlement deed was executed purely out of her own Will and that there was no coercion and fraud. The 2nd defendant also asserted that the claim for oral partition is false and that A schedule property was never allotted to the share of the plaintiff and that going by the settlement deed, the 2nd defendant alone is entitled for the property. On behalf of the plaintiff, Exts.A1 to A8 documents were marked and PW1 was examined and on behalf of the defendants, Exts.B1 to B8 documents were marked and DW1 was examined. Exts.C1 and C2 are RSA Nos.882 & 1227/2016 7 2025:KER:70751 the reports of the Advocate Commissioner and Mahazar and Ext.C2(a) is the plan.
2.3. The Trial Court, on the basis of the report of the Advocate Commissioner, found that inasmuch as the plaintiff was in exclusive possession of the property identified by him having an extent of 5.47 Ares, decreed the suit holding that the claim for oral partition is made out and therefore, further held that the settlement deed is not binding upon the parties, since it is not accompanied by a valid attestation under Section 123 of the Transfer of Property Act, 1882. Aggrieved, the defendants preferred A.S.No.105/2008 before the Additional District Court-I, Mavelikara. The District Court, by judgment dated 18.03.2015, allowed the appeal in part by reversing the findings of the Trial Court as regards the oral partition set up by the plaintiff, but however confirming the judgment and decree of the Trial Court by which the settlement deed was invalidated. Hence, both the plaintiff and defendants have come up in these present appeals.
3. On 05.03.2020, this Court in R.S.A.No.1227/2016 framed the following substantial questions of law:
"i. Whether the finding of the lower appellate Court that Section 17 of the Hindu Succession Act has application in the facts of this Case correct in law?
ii. Whether in the facts and circumstances of this case, the finding of the lower appellate Court that in view of the principle laid down in 1993 (1) KLT 174 FB and Section 3 of the Kerala RSA Nos.882 & 1227/2016 8 2025:KER:70751 Joint Hindu Family System (Abolition) Act, the 2 nd defendant has got 1/3 right over the plaint schedule property sustainable in law?"
and in R.S.A.No.882/2016, the following substantial question of law was framed :
"What is the character of Ext.A4 document?"
4. Heard, Sri.K.B.Pradeep - learned counsel appearing for the appellant in R.S.A.No.882/2016 and Sri.M.Narendra Kumar - learned counsel appearing for the appellants in R.S.A.No.1227/2016.
5. Before going into the question as to whether what is the character of Ext.A4(Ext.B3) settlement deed, it is imperative for this Court to discuss the claim of the plaintiff as regards the oral partition. It is admitted across the Bar that the property in question exclusively belongs to the mother by virtue of a sale deed executed in her favour in the year 1960. The plaintiff set up a claim for oral partition in the year 1987. It is further contended that the building was constructed by him consequent to the oral partition. One must remember that in order to sustain a plea of oral partition, the degree of proof required is certainly high. Since a claim for oral partition is set up by the plaintiff, this Court does not have any hesitation to hold that it is the burden of the plaintiff to establish the same. The consequent question is whether the plaintiff has discharged the aforesaid burden. Going by RSA Nos.882 & 1227/2016 9 2025:KER:70751 the evidence adduced by the parties, this Court finds that except the oral testimony of the plaintiff, there is no independent evidence adduced by the plaintiff to hold that there was an oral partition between the parties in the year 1987. Merely because the portion of the property in possession of the plaintiff was mortgaged along with the mother is not a conclusive proof to hold that there was an oral partition in the year 1987 as claimed. A reading of the judgment of the First Appellate Court shows that the First Appellate Court found that the plaintiff has not examined any independent witness despite noticing the case of the plaintiff that there were witnesses to the oral partition. But, however, the First Appellate Court chose to accept the circumstantial evidence in the present case. Read as may, this Court could not find any such circumstantial evidence which would enable the plaintiff to sustain the plea of oral partition.
6. Equally so, the certificates issued by the creditor bank, evidenced by Exts.A1 and A3 will not ipso facto lead to a conclusion that the 1st defendant had partitioned the plaint schedule property in the year 1987. Still further, the First Appellate Court went into minutious details as regards the evidence adduced by the parties and ultimately came to the conclusion that the oral partition pleaded by the plaintiff is not proved. Once the First Appellate Court concluded that the oral partition is not proved, it becomes imperative for this RSA Nos.882 & 1227/2016 10 2025:KER:70751 Court to decide as to whether the appreciation of the evidence by the First Appellate Court was perverse warranting interference under Section 100 of the Code of Civil Procedure, 1908. It is in this context, the questions of law raised by this Court in the appeal preferred by the plaintiff, has to be considered. In doing so, the validity of Ext.A4 (Ext.B3) settlement deed as well will have to be considered, in order to ultimately answer the aforesaid questions. If this Court were to sustain the findings of the courts below as regards Ext.A4 (Ext.B3) deed, then only the consideration of the questions of law framed in R.S.A.No.1227/2016 arises and if the questions of law is answered in affirmative, the consequences should follow.
7. Ext.A4 (Ext.B3) is a settlement deed executed by the 1 st defendant in favour of the 2nd defendant. The point of dispute revolving around the execution of Ext.A4 (Ext.B3) deed is regarding the presence of two attestors while the said deed was executed. Though the learned counsel for the 2 nd defendant has a case that the said deed cannot be construed as a gift deed warranting strict compliance of Section 123 of the Transfer of Property Act, 1882, a reading of the contents of Ext.A4 shows that though it is stylled as a settlement deed, it is in fact a gift deed. Therefore, the question which assumes significance in this case is whether Ext.A4 (Ext.B3) is validly executed.
RSA Nos.882 & 1227/2016 11 2025:KER:70751
8. Sri.K.B.Pradeep - learned counsel appearing for the appellant in R.S.A.No.882/2016, had an alternate contention regarding Ext.A4 (Ext.B3) settlement deed. According to the learned counsel, even if it is construed as a gift deed, it cannot be said that the gift deed is vitiated by fraud and undue influence because, the 1 st defendant herself has stated that the settlement deed was executed out of her own will and volition. Therefore, the requirement to prove the settlement deed in terms of proviso to Section 68 of the Indian Evidence Act, 1872, does not arise for consideration in the present case.
9. This Court finds considerable force in the aforesaid submission. No doubt the execution of the settlement deed is admitted by the 1st defendant, but that by itself will not suffice the cause. Section 123 of the Transfer of Property Act, 1882, deals with the manner in which the settlement deed is to be executed. Section 123 of the Transfer of Property Act, 1882, reads as follows:
"Transfer how effected.--For the purpose of making a gift of immoveable property, the transfer must be effected by a registered instrument signed by or on behalf of the donor, and attested by at least two witnesses.
For the purpose of making a gift of moveable property, the transfer may be effected either by a registered instrument signed as aforesaid or by delivery.
Such delivery may be made in the same way as goods sold may be delivered."
RSA Nos.882 & 1227/2016 12 2025:KER:70751
10. A perusal of the settlement deed shows that there were two attesting witnesses. The point of dispute revolves around the second attesting witness. According to the plaintiff, the second attesting witness is none other than the scribe and therefore, a scribe cannot be an attesting witness unless he had affixed the signature with due animus. In support of the contentions, the learned counsel for the plaintiff relied on the decision of this Court in Ammini Kuruvila and Ors. v. Kunjumol Charly and Ors. [2021 (6) KHC 546] and a decision of the Supreme Court in M.L.Abdul Jabbar Sahib v. M.V. Venkata Sastri and Sons and Ors. [1969 KHC 434].
11. The aforesaid submissions were countered on behalf of the 2nd defendant by the learned counsel - Sri.K.B.Pradeep, by relying on the following decisions: Gopinath K.I.V. v. K.I.V. Vimala [2025 KHC 281] and Varghese C.Philip Kutty v. C.Varghese Mathai [2025 KHC 659] authored by ES,J.
12. Based on these conflicting claims, this Court is called upon to decide as to whether Ext.A4 (Ext.B3) settlement deed is validly executed.
13. As stated above, it cannot be disputed that there were two witnesses who have attested the settlement deed. The question of RSA Nos.882 & 1227/2016 13 2025:KER:70751 examining these witnesses to prove the attestation does not arise in the present case because, the executant of the settlement deed herself has admitted that she has executed the settlement deed with her own volition. Therefore, what remains to be considered by this Court is whether there is a proper attestation or not.
14. On an entire reading of Ext.A4 (Ext.B3), this Court is not persuaded to hold that there is no valid attestation. The description of the 2nd witness is stated as follows: "കിഴക്കേതിൽ കേശവപിള്ള ശിവരാമപിള്ള ഒപ്പ് കൈപട സാക്ഷി ASA 424-၁၀ നമ്പർ ലൈസെൻസി"
15. There is no prohibition under law for a scribe to be an attesting witness. If the scribe was not intended to be an attesting witness in Ext.A4 (Ext.B3), there was no requirement to describe him as "കൈപട സാക്ഷി". This necessarily postulates that the scribe had affixed the settlement deed as an attesting witness. Therefore, the findings of the courts below that Ext.A4(Ext.B3) is not validly attested is completely perverse and had stemmed out of a wrong interpretation of the document.
16. Having thus concluded that Ext.A4 (Ext.B3) is validly attested, this Court proceeds to consider the other two substantial questions of law framed in R.S.A.No.1227/2016. Once the settlement deed is upheld and consequently the findings rendered by the First RSA Nos.882 & 1227/2016 14 2025:KER:70751 Appellate Court as regards oral partition is also sustained, then no consequences follows out of the subsequent questions of law raised by this Court. Section 17 of the Hindu Succession Act, 1956, has no application to the facts of the case. Much less, the provisions of Hindu Joint Family System (Abolition Act), 1975 also does not apply to the facts of the case. Thus the principles laid down by this Court in Chellamma Kamalamma v. Narayana Pillai.J [1993 (1) KLT 174 (F.B.)] does not have any application at all. This is primarily for the reason that the property at the hands of the original 1 st defendant - mother is not an ancestral property and it is a self acquired property of the mother in the year 1960 by virtue of a sale deed. Even if the plaintiff and the 2nd defendant were born prior to 1975, no consequences would follow because the 1 st defendant was entitled to treat the property derived by her by virtue of a sale deed in whatever manner she liked. Therefore, this Court is inclined to answer the aforesaid questions of law against the plaintiff and in favour of the 2 nd defendant.
17. Before parting with this case, this Court needs to consider one more aspect. It is admitted across the Bar that after the judgment and decree of the Trial Court, the mother of the appellants herein had executed a registered Will bequeathing the properties in favour of the 2nd defendant. Though, the plaintiff tried to raise an RSA Nos.882 & 1227/2016 15 2025:KER:70751 issue before the First Appellant Court by producing the Will, the same was not accepted. At any rate, the bequest in favour of the 2 nd defendant is in tune with the contents of the settlement deed. Therefore, at any rate, even if the settlement deed is found to be invalid, in the absence of any challenge to the said document, the 2nd defendant/appellant in R.S.A.No.882/2016 is entitled to hold the property on his own and consequently, the plaintiff is not entitled to the decree as prayed for.
As an upshot of the above discussion, this Court is of the considered view that R.S.A.No.1227/2016 is liable to be dismissed. Consequently, R.S.A.No.882/2016 is allowed by reversing in part the judgment and decree in A.S.No.105/2008. Consequently, O.S.No.501/1998 shall stand dismissed. Considering the facts and circumstances, the the parties are directed to suffer their respective costs.
Sd/-
EASWARAN S, JUDGE ACR