Kerala High Court · 2009

THOMAS P JOSEPH, J----------------------------------------R.S.A.No.1304 of 2004---------------------------------------Dated this 05th day of October 2009JUDGMENTSecond appeal arises at the instance of legal representatives ofdefendant who successively lost in the courts below in a suit forpartition and separate possession of the half share claimed by therespondent, his younger brother. Respondent instituted the suit in thecourt of learned Munsiff, Parappanangadi claiming that the suitproperty was purchased, at a time when he was employed abroadusing his funds also. He had instructed and deceased defendantagreed that the property will be purchased in their joint names butlater when he returned to his native place he learned that thedocument was taken only in the name of deceased defendant.Thereon he demanded partition and separate possession of his halfshare of the property which deceased defendant denied. There was amediation on 01-03-1997 in the presence of mediators in whichdeceased defendant admitted that the property could be partitionedwithin fifteen days and executed an agreement to that effect.Deceased defendant refused to honour his undertaking and hence thesuit. Deceased defendant denied the allegation of purchase of theproperty using joint funds and claimed that he purchased the propertywith his own funds. That property is not partible nor has respondentany right or interest over it. He denied that Ext.A1, agreement was R.S.A.No.1304 of 20042executed by him and claimed that it is the result of forgery.Respondent gave evidence as PW1 and proved Exts.A1 to A4. Son ofdeceased defendant gave contra evidence as DW1. He proved Exts.B1to B3. Ext.A1, disputed agreement was sent to the handwriting expertfor opinion along with the admitted signatures of deceased defendant.Expert opined that the disputed signature in Ext.A1 and the admittedsignatures are of the same person. Learned Munsiff also compared thedisputed signature in Ext.A1 with the admitted signatures of deceaseddefendant. On evidence it was found that Ext.A1 is genuine andaccordingly, partition as claimed by respondent was ordered. Apreliminary decree was passed. Deceased defendant took up thematter in appeal. Learned Sub Judge concurred with the finding oflearned Munsiff and dismissed the appeal. On the death of defendanthis legal representatives have preferred this second appeal.2.Following substantial questions of law are formulated bythis court for a decision:(i)Whether the suit, as framed, is maintainable in law.(ii)Is not the suit barred by section 4 of the Benami Transactions (Prohibition) Act, 1988.(iii)Is not Ext.A1 agreement void under section 23 of the Contract Act, as it is opposed to the provisions of section 3 of the Benami Transactions (Prohibition) Act, 1988. R.S.A.No.1304 of 20043After hearing both sides and in the light of the contention raisedby deceased defendant in the written statement, the followingsubstantial question of law is also framed: (iv). Whether, the suit as framed without a prayer fordeclaration of title and payment of court fee accordingly ismaintainable?Respondent has sued for partition and separate possession of thehalf share he claimed, he has in the suit property as if he is a co ownerin joint possession of that property along with deceased defendant andpaying fixed court fee of Rs.50/- under section 37(2) of the Court FeesAct. Deceased defendant contended that the suit as framed is notmaintainable. Learned Munsiff considered the question in para 16 ofthe judgment and stated that Ext.A1 shows that respondent is a coowner of the suit property and hence contention that the suit is notmaintainable without a prayer for declaration of title and payment ofcourt fee accordingly cannot be sustained. The first appellate courthas not adverted to that question while disposing of the appeal.According to the learned counsel for appellants, suit as framed is notmaintainable. It is contended that Ext.A1 is not a document of title andhence, respondent cannot trace his title to Ext.A1. Ext.B1 is theassignment deed dated 16-01-1981 in favour of deceased defendant.Therefore, according to learned counsel for appellants without adeclaration of the right, title and interest claimed by respondent over R.S.A.No.1304 of 20044the suit property, he cannot straight away sue for partition andseparate possession of the property as if he is a co-owner withdeceased defendant. According to the learned counsel for respondent,in the light of Ext.A1 and the finding entered by the courts belowdeclaration of title is not required. 3.As per Ext.B1, title over the property apparently vests withthe deceased defendant and consideration also has flowed from him.So far as Ext.A1 is concerned, it is not a document of title. It is only anagreement allegedly executed by deceased defendant in favour ofrespondents stating that the purchase was utilising the funds ofrespondent also and hence, deceased defendant is agreeable topartition the property within the time stated therein. Ext.A1 can onlybe taken, even if it is assumed that is executed by deceased defendantas an admission of respondent also contributing to the saleconsideration. Ext.A1 can only be used as an item of evidence infavour of the case pleaded the respondent. Admission if proved may bethe best form of evidence but cannot confer title. Partition is amongpersons who have an antecedent title. Title to immovable property hasto be acquired in the manner provided in the Transfer of Property Actor by a declaration by a competent court. Here, respondent cannottrace the title he claimed to a document as provided in the Transfer ofProperty Act. In such a situation, respondent had to get the right, title R.S.A.No.1304 of 20045and interest claimed by him declared by a competent court beforeseeking partition. In the absence of a declaration of title as abovestated, respondent cannot claiming to be a co-owner and seek partitionpaying fixed court fee under section 37(2) of the Court Fees Act whichprovision can apply only when a co-owner is in joint possession of theproperty with the co-owner in actual possession. In the circumstances,I am inclined to accept contention raised by learned counsel forappellants that in the absence of a declaration of title and payment ofcourt fee accordingly, respondent cannot straight away sue forpartition. Learned Munsiff was not correct in holding that in view ofExt.A1, a declaration of title is not required. If that be so, the suit asframed is not maintainable. Substantial question of law No.IV isanswered accordingly.In the light of my above finding it isunnecessary to consider the other substantial questions of law framedfor decision. 4.At this stage learned counsel for respondent requested thatin view of the finding regarding maintainability of the suit respondentmay be given an opportunity to amend the plaint suitably incorporatingprayer for declaration of title and to prosecute the suit further.Considering the facts and circumstances and the nature of thecontentions raised, I am inclined to allow that request.5.In the light of my above finding, findings entered by the R.S.A.No.1304 of 20046courts below regarding other issues are set aside and left open forfresh consideration and decision.Resultantly the second appeal is allowed by way of remand.Judgment and decree under challenge are set aside and the caseremitted to the court of learned Munsiff, Parappanangadi for freshdisposal after giving the respondent opportunity to amend the plaintincorporating prayer for declaration of title as claimed by him or suchother reliefs as found necessary and payment of court fee accordingly.In case of such amendment appellants will get opportunity to fileadditional written statement. Both sides shall be given opportunity toadduce further evidence on all issues if they wish to do so. Since thesuit is of the year 1997, learned Munisff is directed to dispose of thesame within six months from the date of receipt of the records.Registry is directed to sent the records to the court of learned Munsiff,Parappanangadi immediately. Parties shall appear in that court on05-11-2009.THOMAS P JOSEPH, JUDGESbna/