Kerala High Court
Villatta Krishnan vs Unknown on 4 March, 2020
Author: P.Somarajan
Bench: P.Somarajan
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE P.SOMARAJAN
WEDNESDAY, THE 04TH DAY OF MARCH 2020 / 14TH PHALGUNA, 1941
RSA.No.1141 OF 2006
AGAINST THE DECREE & JUDGMENT DATED 31-08-2006 IN AS 2/2002 OF SUB
COURT, VADAKARA
AGAINST THE DECREE & JUDGMENT DATED 06-11-2001 IN OS 147/1999 OF
MUNSIFF COURT, NADAPURAM
APPELLANTS/APPELLANTS IN A.S./DEFENDANTS 3,4 AND 5 IN OS:
1 VILLATTA KRISHNAN, AGED 58 YEARS,
BUSINESS, RESIDING AT 'ASITHALAYAM', PURAMERI AMSOM,
DESOM, VADAKARA TALUK, KOZHIKODE DISTRICT. (DIED)
2 THIRUVANGOTH GOPALAN, AGED 51 YEARS,
S/O. KORUMBAN, BUSINESS, RESIDING AT, PANCHANTAVITA,
EDACHERI AMSOM, DESOM,, VADAKARA TALUK, KOZHIKODE
DISTRICT.
3 THAYYULLATHIL DAMODHARAN, AGED 55 YEARS,
S/O. KANARAN, BUSINESS, RESIDING AT, THAZHE MADATHIL,
VELLOOR AMSOM, DESOM,, VADAKARA TALUK, KOZHIKODE
DISTRICT. (DIED)
ADDL.A4 MUTHU, AGED 65 YEARS,
W/O. THAYYULATHIL LATE DAMODARAN, THAZHE MADATHIL,
P.O. KODENCHERI, PURAMERI, VELLOOR, KOZHIKODE
DISTRICT.
ADDL.A5 RANJANA, AGED 65 YEARS,
D/O. THAYYULATHIL LATE DAMODARAN, THAZHE MADATHIL,
P.O. KODENCHERI, PURAMERI, VELLOOR, KOZHIKODE
DISTRICT.
ADDL.A6 RANJISH, AGED 65 YEARS,
S/O. THAYYULATHIL LATE DAMODARAN, THAZHE MADATHIL,
P.O. KODENCHERI, PURAMERI, VELLOOR, KOZHIKODE
DISTRICT.
(LEGAL HEIRS OF DECEASED 3RD APPELLANT ARE IMPLEADED
AS ADDITIONAL APPELLANTS 4 TO 6 AS PER ORDER DATED
RSA.No.1141 OF 2006 2
10/12/2018 IN IA 3/2018)
BY ADVS.
SRI.B.KRISHNAN
SRI.R.K.MURALEEDHARAN
SRI.R.PARTHASARATHY
RESPONDENTS/RESPONDENTS IN A.S./PLAINTIFFS 1,2,3,4 AND
DEFENDANTS 1,2 AND 6:
1 KANHAROLI GOPALAKRISHNAN NAIR,
S/O. GOVINDAN VYDIAR, AGED 61 YEARS,, BUSINESS,
RESIDING AT PULICHU KUNNATH,, DURAMERI AMSOM,
DESOM, VADAKARA TALUK,, KOZHIKODE DISTRICT. (DIED)
2 SISTER EDATHATTA PADMAVATHI AMMA,
D/O. GOVINDAN VYDIAR, AGED 66 YEARS,, SWASTHAM,
RESIDING AT KANHAROLI,, PURAMERI AMSOM, DESOM,
VADAKARA TALUK,, KOZHIKODE DISTRICT.
3 SISTER EDATHATTA KALLIANI AMMA,
D/O. GOVINDAN NADAR, AGED 59 YEARS,, SWASTHAM,
RESIDING AT VADAKKEDATH-MAHALIL,, SIVAPURAM AMSOM,
KANHILERI DESOM,, THALASSERY TALUK, KANNUR
DISTRICT.
4 SISTER EDATHATTA NARAYANI AMMA,
D/O. GOVINDAN VYDIAR, AGED 54 YEARS,, SWASTHAM,
RESIDING AT CHITTANGARI,, PURAMERI AMSOM, DESOM,
VADAKARA TALUK,, KOZHIKODE DISTRICT.
5 EDATHATTA PUTHANPURAYIL APPUKUTTAN NAIR,
AGED 71 YEARS, AGRICULTURIST, RESIDING AT, 'RAM
NIVAS', CHERUVANNOOR VILLAGE, MUYIPPOTH AMSOM,
DESOM, KOYILANDY TALUK, KOZHIKODE DISTRICT (DIED).
6 EDATHATTA PUTHANPURAYIL RADHA AMMA,
AGED 56 YEARS, RESIDING AT THURUTHIYIL,
CHERUVANNOOR VILLAGE, MUYIPPOTH AMSOM,, DESOM,
KOYILANDY TALUK, KOZHIKODE DISTRICT.
7 P.RADHAKRISHNAN,
(FATHER'S NAME NOT KNOWN), MODERN CLINIC,,
PURAMERI, AGED 55 YEARS, PURAMERI AMSOM, DESOM,,
VADAKARA TALUK, KOZHIKODE DISTRICT.
ADDL.R8 LAKSHMI,
RSA.No.1141 OF 2006 3
W/O. LATE KANHAROLI GOPALAKRISHNAN NAIR, AGE NOT
KNOWN TO THE APPELLANTS, PULICHU KUNNATH, PURAMERI
AMSOM, DESOM, VATAKARA TALUK, KOZHIKODE-673503.
ADLD.R9 MADHUSUDHAN, S/O. LATE KANHAROLI GOPALAKRISHNAN
NAIR, AGE NOT KNOWN TO THE APPELLANTS, PULICHU
KUNNATH, PURAMERI AMSOM, DESOM, VATAKARA TALUK,
KOZHIKODE-673503.
ADDL.R10 SHYJA, D/O. LATE KANHAROLI GOPALAKRISHNAN NAIR,
AGE NOT KNOWN TO THE APPELLANTS, PULICHU KUNNATH,
PURAMERI AMSOM, DESOM, VATAKARA TALUK, KOZHIKODE-
673503.
ADDJ.R11 VIJAYAKUMAR, S/O. LATE KANHAROLI GOPALAKRISHNAN
NAIR, AGE NOT KNOWN TO THE APPELLANTS, PULICHU
KUNNATH, PURAMERI AMSOM, DESOM, VATAKARA TALUK,
KOZHIKODE-673503.
(LEGAL HEIRS OF DECEASED 1ST RESPONDENT ARE
IMPLEADED AS ADDITIONAL RESPONDENTS 8 TO 11 AS PER
ORDER DATED 10/12/2018 IN IA 9/2018)
ADDL.R12 JANU, W/O. LATE VILLATA KRISHNAN, AGED 70 YEARS,
ASITHALAYAM, PURAMERI AMSOM, DESOM, VATAKARA TALUK,
KOZHIKODE DISTRICT-673503.
ADDL.R13 MALATHI, D/O. LATE VILLATA KRISHNAN, AGED 70
YEARS, VARAPRASADAM, PURAMERI AMSOM, DESOM,
VATAKARA TALUK, KOZHIKODE DISTRICT-673503.
ADDL.R14 MUKUNDAN, S/O. LATE VILLATTA KRISHNAN, AGED 54
YEARS, MUDUPAT THAZHAKUNI, PURAMERI AMSOM, DESOM,
VATAKARA TALUK, KOZHIKODE DISTRICT-673503.
ADDL.R15 ANITHA V.,D/O. LATE VALLATTA KRISHNAN, AGED 50
YEARS, ANITHALAYAM, CHAVALERI, PURAMERI, KOZHIKODE
DISTRICT.
ADDL.R16 VINOD KUMAR V., S/O. LATE VILLATA KRISHNAN, AGED
48 YEARS, ASITHALAYAM, PURAMERI AMSOM, DESOM,
VATAKARA TALUK, KOZHIKODE DISTRICT-673503.
ADDL.R17 PRASANTH V., S/O. LATE VILLATA KRISHNAN, AGED 45
YEARS, ASITHALAYAM, PURAMERI AMSOM, DESOM, VATAKARA
TALUK, KOZHIKODE DISTRICT-673503.
RSA.No.1141 OF 2006 4
ADDL.R18 ASITHA V., D/O. LATE VILLATA KRISHNAN, AGED 43
YEARS, ASITHALAYAM, PURAMERI AMSOM, DESOM, VATAKARA
TALUK, KOZHIKODE DISTRICT-673503.
(LEGAL HEIRS OF DECEASED 1ST APPELLANT ARE
IMPLEADED AS ADDITIONAL RESPONDENTS 12 TO 18 AS PER
ORDER DATED 10/12/2019IN IA 6/2018)
ADDL.R19 LAKSHMY AMMA, W/O. LATE EDATHATTA PUTHANPURAYIL
APPUKUTTAN NAIR, AGED 71 YEARS, RAM NIVAS,
CHERUVANNOOR VILLAGE, P.O. MUYIPPOTH, VATAKARA,
KOZHIKODE DISTRICT-673503.
ADDL.R20 JYOTHIRMAYI,D/O. LATE EDATHATTA PUTHANPURAYIL
APPUKUTTAN NAIR, AGED 50 YEARS, RAM NIVAS,
CHERUVANNOOR VILLAGE, P.O. MUYIPPOTH, VATAKARA,
KOZHIKODE DISTRICT-673503.
ADDL.R21 VEERAMANI,S/O. LATE EDATHATTA PUTHANPURAYIL
APPUKUTTAN NAIR, AGED 47 YEARS, RAM NIVAS,
CHERUVANNOOR VILLAGE, P.O. MUYIPPOTH, VATAKARA,
KOZHIKODE DISTRICT-673503.
ADDL.R22 THANKAMANI,D/O. LATE EDATHATTA PUTHANPURAYIL
APPUKUTTAN NAIR, AGED 45 YEARS, RAM NIVAS,
CHERUVANNOOR VILLAGE, P.O. MUYIPPOTH, VATAKARA,
KOZHIKODE DISTRICT-673503.
(LEGAL HEIRS OF DECEASED 5TH RESPONDENT ARE
IMPLEADED AS ADDITIONAL R19 TO R22 AS PER ORDER
DATED 10/12/2019 IN IA 1/2019)
R1 BY ADV. SRI.M.KRISHNAKUMAR
R1 BY ADV. SMT.PRABHA R.MENON
THIS REGULAR SECOND APPEAL HAVING BEEN FINALLY HEARD ON
04.03.2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
RSA.No.1141 OF 2006 5
JUDGMENT
Is it not legally sustainable to have a partition of a property by the act of parties after suffering a decree rejecting partition ? Whether any observation or finding arrived at in the earlier suit would bind on the parties when they have subsequently entered into a partition of the same property ? Are they not bound by the terms and condition agreed into by a registered partition and what would be the effect of estoppel by conduct, unless there is challenge against the partition are the questions came up for consideration.
2. The challenge is with respect to a declaration granted by both the courts below that Ext.A3 sale deed would not bind upon plaint A schedule property and it is invalid. The defendants 3 to 5 came up with this appeal. The RSA.No.1141 OF 2006 6 plaint schedule was the H schedule of an earlier settlement, Ext.A1 dated 14.11.1981. It was given by one Govindan Vydiar to his wife Ammalu Amma and her children, the first and second defendants and other children. The defendant Nos. 1 and 2 and the plaintiffs are the children of Ammalu Amma in her wedlock with Govindan Vydiar. H schedule in the document, the plaint schedule, was allotted jointly and kept in common for the purpose of meeting expenditure in connection with annual chandiga homam in Kollur Sree Mookambika Temple and the first plaintiff was authorised to manage the property. While so, a suit for partition was initiated by plaintiffs 2 to 4, but the same ended in dismissal under Exts.A5 and A6 decree and judgment. The matter was fought upto this court and ultimately, this court dismissed the appeal, presumably on the reason that by that time, the parties had entered into a compromise and executed RSA.No.1141 OF 2006 7 Ext.A2 partition, by which, the property was divided into two halves, one half was allotted to the share of plaintiffs and the first and second defendant and other half exclusively to the 2nd plaintiff. Both the first and second defendants are signatories to Ext.A2 partition.
3. It is true that Ext.A2 partition deed was executed and registered overlooking the provision contained in the earlier settlement deed executed by its original owner Govindan Vydiar. But all persons in whose favour the property was allotted in common subsequently entered in Ext.A2 partition deed, by which the property was divided among them. Thereafter, any of the parties to Ext.A2 partition will have any right to challenge the separation and allotment of various plots under it. In fact, Ext.A2 partition is not under challenge and as such they are governed by Ext.A2 partition and not by the decree and judgment under Exts.A5 and A6 and as RSA.No.1141 OF 2006 8 such they will not get any right to challenge Ext.A3 sale deed executed by the one of the allottees under Ext.A2 partition deed. In fact, they are estopped by their conduct in challenging Ext.A3 sale deed in the absence of challenge against A2 partition deed.
4. The trial court and the first appellate court committed a very serious error and failed to understand the legal position regarding the subsequent act of parties by a registered document with respect to the same property which is the subject matter of the earlier decree. It is not at all necessary to go into the finding rendered in Exts.A5 and A6 as the parties have entered into a subsequent partition. So the dismissal of the suit for partition under Exts.A5 and A6 would not bind on them. The finding arrived at in that decree also may not have any legal impact unless the status of the property declared as a private RSA.No.1141 OF 2006 9 religious trust or a public religious trust as the case may be. Then also, in the absence of a challenge against Ext.A2 partition, none of the parties to the said document can come up with a suit against Ext.A2 partition. Ext.A2 partition deed was executed subsequently after Exts.A5 and A6 decrees. All of them are parties to Ext.A2 partition deed and as such they are bound by Ext.A2 partition deed executed subsequent to Exts.A5 and A6 judgment and decree and they are signatories to the partition deed. As such, they are estopped from stating anything against the partition deed or claiming anything based on the earlier decree covered by subsequent partition deed, Ext.A2. That cardinal legal issue was not properly understood by both the courts below. The decree and judgment of both the courts below hence cannot be sustained and liable to set aside. I do so by allowing this appeal.
RSA.No.1141 OF 2006 10
The appeal is allowed accordingly. The decree and judgment of both the courts below are set aside. The suit is dismissed. No costs.
P.SOMARAJAN, JUDGE pm // TRUE COPY // PA TO JUDGE