JUDGMENT : EASWARAN S., J. The 1 st defendant in O.S.No.521/2014 before the Principal Munsiff Court, Cherthala is the appellant herein. 2. The brief facts necessary for the disposal of the appeal are as follows: The plaintiff/sister of the 1 st defendant alleged that execution of a partition deed between the 1 st defendant and 2 nd defendant who is none other than the brother of both the 1 st defendant and the plaintiff who is a deaf and dumb person was inequitable. By virtue of the said partition deed, the plaintiff relinquished the right title and interest over the properties of her father which have devolved upon the plaintiff as well as the defendants. At the same time, the plaintiff concedes that the 1 st defendant had given a gift in respect of certain extent of property by virtue of gift deed No.1426/2011 of Pattanakkad SRO dated 30.10.2011 and that she had mortgaged the above said property with a co-operative bank for securing loan. However, the plaintiff contends that the partition deed No.1347/2004 dated 16.04.2004 was never intended to take effect and it is a sham document and that the plaintiff was made to believe that after the partition deed, her due share will be given by the 1 st defendant, her brother. Finding that the 1 st defendant has rescinded from the assurance, the suit was filed. 3. The defendant contested the suit contending that the plaintiff had relinquished her share over the ancestral property by executing Ext.A1 partition deed and that later the 1 st defendant had executed a Gift deed in her favour which was accepted. Once the Gift deed stood unequivocally accepted by the plaintiff, she has accepted the terms of partition and having relinquished her share, cannot turn around and contend otherwise. 4. Before the trial court, the plaintiff produced Exts.A1 and A2 and examined PWs 1 and 2. On behalf of defendants B1 to B4 were produced and DW1 was examined. Exts.C1 and C1(a) are the report and plan of the Advocate Commissioner. 5. 4. Before the trial court, the plaintiff produced Exts.A1 and A2 and examined PWs 1 and 2. On behalf of defendants B1 to B4 were produced and DW1 was examined. Exts.C1 and C1(a) are the report and plan of the Advocate Commissioner. 5. The trial court on appreciation of the oral and documentary evidence, found that in as much as the plaintiff had accepted 6 cents of land forming part of the property comprised in the partition deed No.1347 of 2004 cannot turn around and contend that the entire distribution of the ancestral property is inequitable and that she did not intend to release the right over the property. Accordingly, the suit was dismissed. Aggrieved by the judgment and decree dismissing the suit, the plaintiff preferred A.S.No.59/2018 before the Sub Court, Cherthala. The first appellate court by judgment dated 11.04.2023 reversed the findings of the trial court and decreed the suit and passing a preliminary decree finding that the plaintiff and defendants are entitled for one share each. Aggrieved by the judgment of the lower appellate court allowing the appeal, the 1 st defendant has come up with the present appeal. 6. Heard Sri.K.P. Sreekumar, the learned counsel appearing for the appellant and Dr.V.N.Sankarjee appearing for the 1 st respondent. 7. While admitting the appeal on 27.06.2023, this Court framed the substantial questions of law as raised in the Memorandum of Appeal for consideration. The substantial questions of law framed thus are extracted hereunder: “(a) When the plaintiff has willfully relinquished her right over the plaint schedule property in favour of the 1 st defendant as per Ext.A1 and this has been accepted and acted upon as per Ext.A2 gift deed will a suit for partition maintainable without setting aside Exts.A1 and A2 documents? (b) Can a suit be maintained by the plaintiff on a cause of action available only to the 2 nd defendant? (c) Is the Lower Appellate Court right in law in holding that Ext.A1 partition deed is a void document as a whole in view of the fact that Ext.A1 has been accepted and acted upon by the plaintiff in view of Ext.A2 gift deed in her favour and the said document also has been accepted and acted upon? (c) Is the Lower Appellate Court right in law in holding that Ext.A1 partition deed is a void document as a whole in view of the fact that Ext.A1 has been accepted and acted upon by the plaintiff in view of Ext.A2 gift deed in her favour and the said document also has been accepted and acted upon? (d) Merely because the 2 nd defendant who is a mentally retarded person also is a party to Ext.A1 document and the said document is void to the extend it affects the interests of the 2 nd defendant, will it be a cause of action for filing a suit ignoring the readiness and willingness in relinquishing the share of the plaintiff in the plaint schedule property. (e) When once the plaintiff accepts and acts upon Ext.A2 gift deed executed by the plaintiff in her favour will a suit of this nature is maintainable without declaring that Exts.A1 and A2 will not affect the interests of the plaintiff. (f) Is the court below committed an error in not considering the question of bar of limitation to sustain the claim of the plaintiff?” 8. Sri.K.P. Sreekumar, the learned Senior Counsel appearing for the appellant would raise the following submissions. (a) The plaintiff had relinquished her share over the plaint schedule property when Ext.A1 partition deed was executed and therefore, cannot recede back and claim that the entire part of the plaint schedule properties is open to the parties. (b) There is no prayer to re-open the partition deed between the parties as finalised as per Ext.A1. (c) After the Execution of Ext.A1, the 1 st defendant had executed a Gift deed for 6 cents out of the share allotted to the 1 st defendant under Ext.A1. The plaintiff accepted the aforesaid Gift deed and constructed a residential house there and further mortgaged the aforesaid property for the purpose of availing loan from a co-operative bank. Therefore, the plaintiff having accepted the Gift deed has directly accepted the conditions of the partition deed. (d) Ext.A1 being a registered partition deed and that the plaintiff had consciously relinquished her share, is debarred from adducing any oral evidence contrary to the terms of Ext.A1 deed, going by the provisions of Section 92 of the Indian Evidence Act, 1872. 9. (d) Ext.A1 being a registered partition deed and that the plaintiff had consciously relinquished her share, is debarred from adducing any oral evidence contrary to the terms of Ext.A1 deed, going by the provisions of Section 92 of the Indian Evidence Act, 1872. 9. Per contra, Dr.V.N.Sankarjee the learned counsel appearing for the 1 st respondent contended that Ext.A1 is a sham document, that was never intended to be acted upon. It is the specific case of the 1 st respondent that the 2 nd defendant being a deaf and dumb person, no enquiry under order XXXII Rule 15 of the Code of Civil Procedure, 1908 was conducted before the partition deed was executed. It is his specific case that, there is an inequitable distribution of shares as regards the 2 nd defendant is concerned. The plaintiff was misrepresented as regards the character of Ext.A1 and she was made to believe that the 1 st defendant would give her due share subsequent to the execution of Ext.A1. In such circumstances, it is contended that a suit for partition is perfectly maintainable and that Ext.A2 Gift deed has no consequences as far as the shares of the plaintiff is concerned. In support of the contention, relied on the decision of the Division Bench of this Court in State Bank of India, Asset Recovery Management Branch, Ernakulam V. Niyas and Another [2021 (2) KHC 18] . It is further contended that the 2 nd defendant is a mentally retarded person but wrongly described as deaf and dumb person in the document. The result of the partition is that the 1 st defendant stands to gain out of the inequitable distribution of the shares. 10. I have considered the rival submissions raised across the Bar and perused the records of the case as well as the judgments rendered by the courts below. 11. A reading of paragraph 4 of the plaint shows that after the execution of registered partitioned deed, the plaintiff admits that she has received an extent of 6 cents by way of Gift deed. Therefore, the essential question before this Court is whether the plaintiff can recede from the said transaction. The plea of the plaintiff of partition of the plaint schedule property has two infirmities: (a) As far as the plaintiff is concerned, she has relinquished her share by the execution of Ext.A1 partition deed. Therefore, the essential question before this Court is whether the plaintiff can recede from the said transaction. The plea of the plaintiff of partition of the plaint schedule property has two infirmities: (a) As far as the plaintiff is concerned, she has relinquished her share by the execution of Ext.A1 partition deed. (b) Consequent to the relinquishment, when the 1 st defendant agreed to execute the Gift deed, in respect of 6 cents, she has accepted the Gift deed. Therefore, one cannot comprehend as to how the plaintiff would seek to re-open the partition under Ext.A1 and then claim that the extent of plaint schedule property should be equally divided between the plaintiff and the defendants. 12. Pertinently, the plaintiff has no case that the 2 nd defendant is ill treated by the 1 st defendant. Along with the plaint, an application under Order XXXII Rule 15 has been filed in which the plaintiff had sought an appointment of next friend of the 2 nd defendant. In fact, the plaintiff has sought the 1 st defendant to be appointed as next friend of the 2 nd defendant. She has no case that the 2 nd defendant is not being looked after by the 1 st defendant. 13. Be that as it may, the larger question before this Court could be whether the plaintiff can seek to repel Ext.A1 contrary to what is stated therein. Section 92 of the Evidence Act prohibits a person from leading evidence contrary to the contents of the written instruments. Section 92 reads as under: “ 92. Exclusion of evidence of oral agreement. When the terms of any such contract, grant or other disposition of property, or any matter required by law to be reduced to the form of a document, have been proved according to the last section, no evidence of any oral agreement or statement shall be admitted, as between the parties to any such instrument or their representatives in interest, for the purpose of contradicting, varying, adding to or subtracting from, its terms : Proviso (1): Any fact may be proved which would invalidate any document, or which would entitle any person to any decree or order relating thereto; such as fraud, intimidation, illegality, want of due execution, want of capacity in any contracting party, [want or failure] of consideration, or mistake in fact or law. Proviso (2): The existence of any separate oral agreement as to any matter on which a document is silent, and which is not inconsistent with its terms, may be proved. In considering whether or not this proviso applies, the Court shall have regard to the degree of formality of the document. Proviso (3): The existence of any separate oral agreement, constituting a condition precedent to the attaching of any obligation under any such contract, grant or disposition of property, may be proved. Proviso (4): The existence of any distinct subsequent oral agreement to rescind or modify any such contract, grant or disposition of property, may be proved, except in case in which such contract, grant or disposition of property is by law required to be in writing, or has been registered according to the law in force for the time being as to the registration of documents. Proviso (5): Any usage or custom by which incidents not expressly mentioned in any contract are usually annexed to contracts of that description, may be proved: Provided that the annexing of such incident would not be repugnant to, or inconsistent with, the express terms of the contract. Proviso (6): Any fact may be proved which shows in what manner the language of a document is related to existing facts.” 14. The reading of the 1 st proviso to Section 92 shows that though it is permissible to lead evidence contrary to the terms and conditions of a written contract, only to the limited extent of showing that there is a mistake of fact or law. The relinquishment of share at any rate, cannot amount to a mistake of fact or law. Relinquishment is a conscious act of a person by which he or she decides to forsake her right over a thing or a property. There is no explanation from the plaintiff as to why she had decided to execute Ext.A1 partition deed. Except a vague assertion that she was made to believe that the brother/1 st defendant would give her due share after execution of the partition deed. It is also pertinent to mention that no pleading as regards the fraud played by the 1 st defendant on the plaintiff on execution of Ext.A1 is stated. Thus the requirement of Order VI Rule 4 of the Code of Civil Procedure is not complied with. It is also pertinent to mention that no pleading as regards the fraud played by the 1 st defendant on the plaintiff on execution of Ext.A1 is stated. Thus the requirement of Order VI Rule 4 of the Code of Civil Procedure is not complied with. Apart from a vague statement that she was misrepresented as regards the character of Ext.A1, no other pleadings are seen in the plaint. 15. When a plea of misrepresentation as regards the character of the document is raised in a suit, it is for the plaintiff to prove that the plaintiff was misled into the execution of the document. Apart from the oral testimony of PW1, the evidence in the present case is totally lacking to sustain the plea of misrepresentation of the character of the law. 16. In State Bank of India, Asset Recovery Management Branch, Ernakulam (supra), this Court had an occasion to consider what constitutes a sham document. Paragraph 17 of the decision reads as under: “17. A deed is usually considered to be sham or nominal when nothing could come out of it. A sham or nominal document is wholly inoperative and incapable of creating any rights in the property in favour of the purported assignee or transferee.” 17. Though the proposition laid down by this Court in the above decision, cannot be disputed, the principles laid down therein has no application insofar as the present case is concerned. Admittedly, the plaintiff after execution of Ext.A1 has accepted a gift in respect of 6 cents out of the share allotted to the 1 st defendant under Ext.A1. Therefore, this Court is of the considered view that she cannot recede from the execution of Ext.A1 to contend that since there is an inequitable distribution of share, the partition is void. 18. Pertinently, the plaintiff has not sought for the re-opening of the partition. It is admitted across the Bar that she still holds an extent of 6 cents in her possession and has mutated the aforesaid property and thus an exclusive possession over 6 cents by virtue of the Gift deed is made out. As an upshot of the above discussion, this Court is of the considered view that the questions of law raised in the Memorandum of Appeal is to be answered in favour of the appellant. As an upshot of the above discussion, this Court is of the considered view that the questions of law raised in the Memorandum of Appeal is to be answered in favour of the appellant. Accordingly, it is held that the plaintiff after accepting Exts.A1 and A2 cannot seek for partition of the plaint schedule property. Thus no cause of action is available to the plaintiff and if at all, it was available only to the 2 nd defendant. Resultantly, the appeal is allowed reversing the judgment and decree in AS No.59/2018 of the Sub Court, Cherthala and restoring that of the Principal Munsiff Court, Cherthala in O.S.No.521/2014. No costs.