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2025 DIGILAW 1909 (KER)

Kolliyan Valappil Janaki v. Naniyil Narayani

2025-07-09

EASWARAN S.

body2025
JUDGMENT : Easwaran S., J. Defendants 17 to 21 in O.S.No.136/2008 on the files of Sub Court, Payyannur are the appellants herein. 2. Brief facts necessary for the disposal of the appeal are as follows: O.S.No.136/2008 is a suit for partition, for partitioning plaint schedule property by meets and bounds and allow 28/252 shares to the plaintiff and allow such share to the defendants. The claim of the plaintiff is based on Ext.A1 Marupattam No.413/1938 of SRO Payangadi executed by one Genmi Kannan Nair in favour of Kolliyan Valappil Mathayi @ Mathi. The plaintiff contended that after the death of Mathayi the right and possession over the plaint schedule property devolved upon her children namely Umbachi, Kunhappu and Govindan and they died and their rights over the property would be devolved upon their respective legal heirs. 3. The defendants entered appearance and contested the suit contending that the plaintiff has no right title and interest over the plaint schedule property entitling him to seek partition. It is further contended that a partition deed was executed in the year 1967 as document No.389/1967 wherein a clause is inserted by which the possession of various properties in the hands of the parties to the partition deed is reserved to be kept by the respective sharers. One of the shares executed an Osyath as document No.18/75 on 26.07.1975 bequeathing the right, title and interest over the properties to be partitioned and therefore, the plaintiffs have no right and title over the property. It is further contended that the property is in absolute possession of the 1 st defendant as an independent holder, and Ext.B1 Purchase Certificate was produced to evidence the possession. Therefore, according to the defendants, when an independent right title and interest is claimed, the plaintiff has no right to seek partition. 4. On behalf of the plaintiff Exts.A1 to A5 were produced and PW1 was examined. On behalf of the defendants Exts.B1 to B17 were produced. An Advocate Commissioner was appointed to inspect the property, who filed Ext.C1 report and Ext.C2 plan. DW1 was examined on behalf of the defendants. 5. On an appreciation of the oral and documentary evidence, the trial court declined to grant partition over Item No.1 of the plaint schedule property and decreed the suit as regards Item No.2. 6. An Advocate Commissioner was appointed to inspect the property, who filed Ext.C1 report and Ext.C2 plan. DW1 was examined on behalf of the defendants. 5. On an appreciation of the oral and documentary evidence, the trial court declined to grant partition over Item No.1 of the plaint schedule property and decreed the suit as regards Item No.2. 6. Aggrieved by the judgment and decree of the trial court, the 7 th and 9 th defendant preferred A.S No.91/2011 before the Additional District Court-I, Thalassery contending that the plaintiff and the defendants are entitled for partition over item No.1 of A schedule property as well. The First Appellate Court found that since the Will in question, Ext.B3 is not proved in accordance with Section 68 of the Evidence Act, 1872, the claim of the defendants has to fail. The 1 st Appellate Court also found that plaint item No.1 is not seen included in the partition deed of the year 1967 and therefore, it probabilises the case of the appellants for partition. Accordingly, the appeal was allowed. It is aggrieved by the judgment of the First Appellate Court decreeing the suit as regards Item No.1, Defendants 17 to 21 are on appeal before this Court. 7. Heard Sri.M.M.Anto, the learned counsel appearing for the appellants and Sri.M.Sasindran, the learned counsel appearing for the respondents Nos. 1,2 4 to 9 and 12 to 14. 8. When the appeal was admitted, this Court framed the following questions of law: “d. Whether the lower appellate court is legally justified in ignoring the partition in the year 1967 excluding R.S 38/3 will in the year 1975 allotting R.S.38/3 in favour of D1 and certificate of purchase in 2008 in favour of D1 for arriving at a conclusion that the item No.1 is partiable as claimed Appellants before the lower appellate court who never tendered any evidence before the lower court? e. Whether the lower appellate court is legally justified in holding that Item No.1 is identified by the Advocate commission especially when the identification was the plaint scheduled property alone and not Ext.A1 Manpart property?” 9. The learned counsel for the appellants submitted that the 1 st Appellate Court ought not to have decreed the suit finding that Ext.B3 Will was not proved in terms of Section 68 of the Evidence Act. The learned counsel for the appellants submitted that the 1 st Appellate Court ought not to have decreed the suit finding that Ext.B3 Will was not proved in terms of Section 68 of the Evidence Act. The Will was marked without any objection and the plaintiff was an active participant in executing the Will. Therefore, if the 1 st Appellate Court entertained any doubt as regards the execution of the Will, then the suit ought to have been remanded back to the trial court, enabling the defendants/appellants herein to prove the Will in accordance with Section 68 of the Evidence Act. It is further contended that there is no proper identification of the plaint schedule item No.1. The Advocate Commissioner had identified the plaint schedule item No.1 based on the plaint description not on the basis of Ext.A1 Marupatta Chit. The Appellants are in possession of 98 cents of property in Sy.No.38/3. The said possession is independent to that of Item No.1 of the plaint schedule. In as much as item No.1 of plaint schedule is not identified properly, the1 st Appellate Court could not have decreed the suit. 10. Per contra, Sri.M.Sasindran, the learned counsel appearing for the respondents would contend that the 1 st Appellate Court had rightly appreciated the facts and came into conclusion that the decision of the trial court requires to be interfered. The claim of the defendants based on Ext.B3 Will has to fail, since no title is raised to the execution of B3 Will. In the absence of any title to the testator in executing Ext.B3 Will, no independent right can be set up in respect of the property by virtue of Ext.B3. 11. I have considered the rival submissions raised across the Bar, and perused the records of the case and also the judgments of the courts. 12. The reading of the judgment of the 1 st Appellate Court shows that the 1 st Appellate Court has proceeded on a mistaken assumption that the identity of item No.1 of the plaint schedule stood unequivocally proved by the plaintiff. A reading of Ext.C1 report shows that the Commissioner had identified the property solely based on the plaint schedule and not on the basis of Ext.A1 document. A reading of Ext.C1 report shows that the Commissioner had identified the property solely based on the plaint schedule and not on the basis of Ext.A1 document. When the defendants had asserted their right title and interest over the property by virtue of a Will and also the partition deed which pertains the character of a family settlement, the 1 st appellate court ought to have considered the question as to whether the identity of the property stood proved before proceeding to consider the entitlement of the plaintiff to seek partition of the properties. It is in this context that the existence of Ext.B3 Will assume importance. 13. As rightly stated by the learned counsel for the appellants, the Will was marked without any objection. But however, marking of the Will alone will not suffice the cause for the defendants in as much as the Will has to be proved independently in terms of Section 68 of the Evidence Act. In that context, the trial court ought to have gone into the question as regards the execution of the Will. As soon as the 1 st appellate court found that Ext.B3 Will is not proved in terms of Section 68, it ought not have decided the case on merits, but rather it should have remanded the case back to the trial court in order to enable the defendants 17 to 21 to prove the Will in accordance with Section 68 of the Evidence Act. In not doing so, there is a clear abdication on the part of the 1 st appellate court. 14. Now coming back to the identity of item No.1 of plaint schedule property, as stated above, the Commissioner has not identified the property with respect to Ext.A1 document, but instead identified the property solely based on the plaint schedule. It must be noted that the re-survey Number mentioned in Ext.A1 is 58/4 whereas the property in the hands of the defendants is seen included in Sy.No.38/3. Therefore, in a case where the identity of the property is not established, the 1 st appellate court ought not have decreed the suit as sought for by the plaintiff. In such circumstances, it is inevitable for this Court to set aside the judgment of the trial court and remand the matter back to the trial court for fresh consideration in accordance with the law. In such circumstances, it is inevitable for this Court to set aside the judgment of the trial court and remand the matter back to the trial court for fresh consideration in accordance with the law. Accordingly, answering the questions of law raised in favour of the appellant, the judgment and decree of the Additional District Court-I, Thalassery in AS No.91/2011 and O.S.No.136/2008 of the Sub Court, Payyannur are set side. O.S.No.136/2008 stand restored to the Sub Court, Payyannur. The trial court shall depute the very same Advocate Commissioner if available, for the purpose of identification of the plaint schedule property with reference to Ext.A1. On receiving the report the trial court shall permit the defendants 17 to 21 to prove Ext.B3 Will in accordance with Section 68 of the Evidence Act and thereafter proceed with the suit in accordance with the law. If the Advocate Commissioner who submitted Ext.C1 report is not available, the trial court shall appoint a fresh Advocate Commissioner and also a Taluk Surveyor to assist him to identify the property covered by Ext.A1 on the date fixed by this Court for appearance of the parties. The trial court shall expedite the trial of the suit at any rate, as expeditiously as possible, within a period of six months from the date of receipt of copy of this judgment. In order to enable the parties to comply with the directions of this Court, the parties shall appear before the Sub Court, Payyannur on 30.07.2025.