Mary George & Ors. v. NONE

CRV. RAMKUMAR, J.* * * * * * * * * * * * * * * * * *R.S.A. NO. No. 1129 of 2008* * * * * * * * * * * * * * * * * * Dated: 09-12-2008JUDGMENTDefendants 1 to 5 in O.S. No. 392 of 2005 on the file of theSub court, Ernakulam are the appellants in this Second Appeal.The said suit was one for partition and separate possession of theplaintiffs' 1/4th share over the plaint A and B schedule propertiesadmeasuring 29 cents and 24 cents respectively after settingaside Ext.B10 assignment deed dated 28-5-1953. The suit wasoriginally filed before the Munsiff's Court, Ernakulam as O.S. No.1320/2001 on 20-07-2001. Subsequently on 4-4-2005 it wasreturned for presentation before the Sub Court since thevaluation exceeded the pecuniary jurisdiction of the Munsiff'sCourt. The plaint was thereafter presented before the Sub Courton 30-6-2005. The trial court dismissed the suit. But the lowerappellate court reversed the decree passed by the trial courtand passed a preliminary decree for partition allotting 1/6 shareto the plaintiffs. The lower appellate court also held that R.S.A. NO. No. 1129 of 2008-:2:-Ext.B10 assignment deed is valid as against the share of theassignors but will not be binding as against the share ofplaintiffs and defendants 6 to 8. Hence this Second Appeal bydefendants 1 to 5. THE FACTUAL SETTING 2.One Anna who died on 30-09-1957 had two sons byname Vareed and Joseph . Vareed died on 12-12-1935 andJoseph died on 8-11-1985. The wife of Vareed was one Rosa andthe wife of Joseph was one Mariyakutty. Vareed had two sons byname Mathai and George @ Vareed. The said Mathai died on 18-11-1988 and George @ Vareed died on 27-12-1994. The firstplaintiff is the widow of Mathai and plaintiffs 2 to 5 are hischildren. 6th defendant is the widow of George @ Vareed anddefendants 7 and 8 are his children. Joseph the son of Annahad a son by name George who died on 15-4-1985. Defendants1 to 5 are the children of the said George. Goerge had twosisters by name Elizabeth and Mary. 3.The following is the genealogy showing therelationship between the parties and their predecessors:- R.S.A. NO. No. 1129 of 2008-:3:-Anna - died 1957Rosa x VareethJoseph 1935 1985P1 x Mathai George @ Vareeth X D6 D1 D2 D3 D4 D519881994(DW1) P2 P3 P4 P5 D7 D8 (PW1) Denotes maleDenotes femalex denotes marriageP1 - Ist plaintiffD1 - Ist defendant R.S.A. NO. No. 1129 of 2008-:4:-Plaint A schedule property admeasuring 29 cents, the plaint Bschedule property admeasuring 24 cents and another propertyadmeasuring 26 cents all situated in Cheranellur Village ofErnakulam District were acquired by Anna and her two sonsVareed and Joseph as per Exts. A1, A2 and B6 registereddocuments respectively all of the year 1109 M.E. correspondingto the year 1934. On 17-12-1124 M.E. corresponding to the year1949 Anna and her son Joseph executed a registered document(Ext.B9) possessorily mortgaging the plaint A and B scheduleproperties to one Ouseppunni. This document executed in theyear 1949 contains the following recital:-വറ(cid:3)ത(cid:5)ന(cid:7)റ മകള മത(cid:13)യ(cid:5) മമനര ജ(cid:19)(cid:13)ര(cid:19)(cid:20)“ഇവര(cid:23)ന(cid:24) തള ജറ(cid:13)സ ഇവരക(cid:20) ഞങള സരജവ ന(cid:29).642/5 1-ആ(cid:29) ന(cid:29)പര ഇര(cid:23)പത(cid:5)യ(cid:13)റ(cid:20)നസന(cid:20) വഹകള വ(cid:3)ത(cid:5)ച(cid:23)നക(cid:13)(cid:24)(cid:23)ത(cid:5)ട(cid:23)ളത(cid:23)(cid:29)ജമലപറഞവരക(cid:20) ഈ പട(cid:5)കവഹകള(cid:5)ജ1(cid:13) മജ2(cid:13)യ(cid:13)നത(cid:13)ര(cid:23) അവക(cid:13)ശങജള(cid:13) മജ2(cid:13) ഇന5ന(cid:23)(cid:29)ന(cid:5)ങനള പറഞ(cid:23) വ(cid:5)ശ7സ(cid:5)പ(cid:5)ച(cid:23)(cid:29)”[Mathai and minor George who are the childrenof Vareed and their mother Rosa have beengiven in partition the 26 cents of propertycomprised in Survey No. 642/5 and thosepersons have no right over the propertiesscheduled hereunder or any other items and themortgagee is given this assurance by theexecutants]. R.S.A. NO. No. 1129 of 2008-:5:-The first attestor to this usufractory mortgage deed is Mathai thethen surviving major son of Vareed (S/o. Anna) who had alreadydied in the year 1935. On the same day i.e. on 17-12-1124M.E. Anna and Joseph executed a registered release deedreleasing their rights over the 26 cents of land to Mathai and hisminor brother George @ Vareed who were the children of Anna'sson Vareed. Ousepunni the mortgagee under Ext.B9 is awitness to Ext.A3 release deed under which a consideration ofRs. 200/- was paid to the executees. Thereafter Anna and herson Joseph assigned their equity of redemption over the plaint Aand B schedule properties to George, S/o. Joseph authorising himto redeem Ext.B9 mortgage and pay a sum of Rs. 400/- to hissister Elizabeth. Subsequently, as per Exts. B11 and B12registered documents dated 27-11-1958 and 7-5-1974 Georgethe assignee under Ext.B10 redeemed Ext.B9 mortgage. Asevidenced by Ext.B13 receipt George paid Rs. 400 to Elizabeth,his sister. As per Ext.B3 assignment deed dated 28-12-1958,George sold 12 cents out of the plaint schedule properties to oneAnnamma who is in possession of the same. As per Ext.B2assignment deed dated 18-10-1985 George had sold 3.060 cents R.S.A. NO. No. 1129 of 2008-:6:-of property from the plaint schedule properties to one Surendranwho put up a building there and is residing there. Ext.B15evidences that George had effected mutation of the registers inhis name with regard to the balance extent of the plaintschedule properties. Exts. B18 to B26 evidence payment of landrevenue by George. The suit was filed in the year 2001 by thelegal heirs of Mathai seeking 1/4th share over the plaint A and Bschedule properties after setting aside Ext.B10 assignment deeddated 28-5-1953. 4. Defendants 6 to 8 supported the plaintiffs. The suitwas resisted by the appellants herein (defendants 1 to 5)contending inter alia that in the year 1124 M.E. there was apartition among Anna, Joseph and the legal heirs of deceasedVareed as per which the legal heirs of deceased Vareed weregiven 26 cents acquired under Ext.B6 assignment deed and thatthereafter the said 26 cents was enjoyed by the legal heirs ofVareed and the plaint schedule properties were dealt with byAnna and Joseph who assigned their rights in favour of George,S/o. Joseph as per Ext.B10 and that the rights, if any , of thelegal heirs of Vareed over the plaint schedule properties were R.S.A. NO. No. 1129 of 2008-:7:-lost by adverse possession, limitation and ouster. The trial courtas per judgment and decree dated 28-7-2007 accepted thedefence plea of partition, upheld Ext.B10 assignment in itsentirety and held that plaint schedule properties which are theabsolute properties of defendants 1 to 5 are not available forpartition. The suit was accordingly dismissed. On appealpreferred by the plaintiffs as A.S. 203 of 2007 before the DistrictCourt, Ernakulam the learned Addl. District Judge as perjudgment and decree dated 14-8-2008 held that since Ext.A3release deed is one for consideration of Rs. 200/- it does notevidence a partition, that Exts.B9 and A3 are not between thesame parties and therefore the principles governing theexecution of documents by the same parties on the same day arenot applicable, that Ext.B9 mortgage does not take away theright of the plaintiffs to seek partition as they were not parties toExt.B10 assignment after which the plaintiffs had become co-owners in respect of the plaint schedule properties along withdefendants 6 to 8, that the plaintiffs are entitled to a declarationwith regard to Ext.B10 assignment deed so far as their share isconcerned, that attestation by Mathai in Ext.B9 usufructory R.S.A. NO. No. 1129 of 2008-:8:-mortgage will not give him knowledge of the contents of thedocument and that the plea of adverse possession and ousterwas not pressed by defendants 1 to 5. Accordingly, the lowerappellate court passed a preliminary decree for partitiondeclaring that the plaintiffs are jointly entitled to 1/6 shares anddefendants 6 to 8 are together entitled to 1/6 shares anddefendants 1 to 5 (who are the appellants herein) are togetherentitled to 4/6 shares over the plaint A and B schedule properties.It is the said preliminary decree which is assailed in this Secondappeal by defendants 1 to 5. 5.The Second Appeal was admitted on the followingsubstantial questions of law:-i) Eventhough generally an attestor is not presumed to knowthe contents of the document, but if in a given case, wherethere is close relationship between the executants and theattestor, cannot such attestor be imputed with theknowledge of the contents of the document and cannot thepossibilities of the attestor having knowledge regarding therecitals in the documents and about the circumstances underwhich the document came to be executed be ruled out ?ii)When a person, that too a close relation of the executants,attest a document, which is against his own interest, is notsuch an attestor estopped from challenging the validity of R.S.A. NO. No. 1129 of 2008-:9:-said document ?iii)Is not a release deed valid, not only when it is gratuitous butalso when it is for consideration or some benefit accruing tothe releasor simultaneously and can the releasee be allowedto later on turn round and say that he will only receivethe benefits given under the document and that he is entitledto discard the disabilities incurred by virtue of that document?iv)In the light of averments in Ext.B9 whether interpretationgiven by court below to Ext.A3 read with Ext.B9, is correct,more so when Ext.B9 mentions about a past event recorded inExt.A3 of the same date ?v) In the facts and circumstances of the case and taking intoconsideration the conduct of parties whether the judgmentof the lower appellate court legally sustainable especiallywhen the court below has failed to decide the case on thebasis of preponderance of probabilities also ? 6. I heard Advocate Sri. N. Subramonian, the learnedcounsel appearing for the appellants and the learned counselappearing for the contesting respondents who are the plaintiffsand defendants 6 to 8. R.S.A. NO. No. 1129 of 2008-:10:-CONTENTION OF PLAINTIFFS(RESPONDENTS 1 TO 5) ANDDEFENDANTS 6 TO 8 (RESPONDENTS 6 TO 8)7. Learned counsels appearing for the plaintiffs anddefendants 6 to 8 made the following submissions before me inopposition of this Second Appeal :-The written statement filed by defendants 1 to 5 does notplead an oral partition. Ext.A3 release deed dated 17-12-1124M.E. cannot be treated as a document evidencing any partitionbecause it was a transfer for consideration. Ext.A3 release deeddoes not contain any recital regarding the oral partition.Hence, it can only be treated as a conveyance. Since the heirsof Vareed were not parties to Ext.B9 mortgage, the recitalregarding partition contained in Ext.B9 is not binding on them.With regard to the plaint A and B schedule properties, Vareed theelder son of Anna was also a co-owner . But Ext.B9usufructory mortgage was executed by Anna and Joseph alone.The recital in Ext.B9 to the effect that 26 cents have beenallotted in partition to the children of Vareed, cannot have theeffect of depriving the children of Vareed their right over theplaint A and B schedule properties, particularly when the legal R.S.A. NO. No. 1129 of 2008-:11:-heirs of Vareed were not parties to Ext.B9 mortgage. It is truethat Mathai the elder son of Vareed was an attester to Ext. B9usufructory mortgage. But he cannot be imputed withknowledge of the contents of Ext.B9 (Vide Ganesh Bhandaryv. Ambunhi - 1989 (2) KLT 882). The defendant examined asDW1 has admitted that Ext.A3 is a release deed obtained bythe legal heirs of Vareed on payment of consideration. He hasalso admitted that Ext.A3 release deed does not affect the rightsof the legal heirs of Vareed over the plaint A and B scheduleproperties. The findings recorded by the lower appellate court donot call for interference by this Court in exercise of the rarefiedjurisdiction under Sec. 100 C.P.C.JUDICIAL EVALUATION8.I am afraid that I cannot agree with the submissionsmade on behalf of the plaintiffs. As already noted the plaint Aschedule property admeasuring 29 cents, the plaint B scheduleproperty admeasuring 24 cents and another propertyadmeasuring 26 cents all comprised in Cheranellur Village wereacquired by Anna and her two sons Vareed and Joseph. Thecontention of the plaintiffs that the appellants (D1 to D5) did not R.S.A. NO. No. 1129 of 2008-:12:-plead in their written statement the partition in the family ofAnna is absolutely incorrect. It is definitely pleaded in paragraph2 of their written statement as follows:“Thereafter, a partition was effected among Smt. Annaand her son Joseph on the one part and the legal heirsof deceased Vareed, S/o. Anna, viz. Rosa, Mathai andVareed, @ George on the other part. This partitionwas effected by executing a deed styled as a releasedeed but the effect of which was to effect a partition.As per this partition, Rosa and her sons Mathai andVareed who were the predecessors in interest of theplaintiffs and defendants 6 to 8 obtained 26 cents ofland in Sy. No. 642/5 of Cheranallur Village. The restof the property was allotted to the share of Smt. Annaand Joseph. On the same day Smt. Anna and Josephexecuted a mortgage deed in favour of one Ousepunniin respect of the property comprised of 29 cents inSy.No. 643/9 and 24 cents in Sy. No. 643/1 inCheranellur Village. Since, a partition had taken placeamong Smt. Anna and her children viz. Joseph and thelegal heirs of her late son Vareed viz. Rosa, Mathai andVareed @ George, the plaintiffs and defendants 6 to 8cannot claim any right over the plaint scheduleproperties. They are not entitled to get any share in theplaint schedule properties”. R.S.A. NO. No. 1129 of 2008-:13:-Again in paragraph 9 of their written statement the appellantshad pleaded as follows:-“There was a partition among Smt. Anna, her sonJoseph and the legal heirs of Vareed. As per the saidpartition, the predecessors-in-interest of the plaintiffsand defendants 6 to 8, got 26 cents of property inSurvey No. 642/5 as their share. Thereafter they hadno right over the other properties and they areestopped from alleging that they are co-owners and injoint possession of the plaint schedule properties".9.It was on 17-12-1124 M.E. that as per Ext.A3release deed the 26 cents of property comprised in Survey No.642/5 of Cheranellur Village was given to Mathai and Georgewho were the legal heirs of Vareed, the elder son of Anna. Itis well settled that as between co-owners there need not be adocument executed as a partition deed for effecting a division ofthe co-ownership property. The intention to effect a partition asbetween co-owners can also be effectuated by two of the co-owners releasing their fractional rights in favour of the remainingco-owner in the form of a release deed. It must beremembered that Ext.A3 release deed was executed in the year1949 at a time when no stamp duty was payable for release R.S.A. NO. No. 1129 of 2008-:14:-deeds. as well. It is not the nomenclature of the document orthe language employed in the document that is decisive. What ismore important is the actual character of the transaction and thenature of the rights created by means of the instrument. In thecase of a transaction between co-owners with regard to theproperty under which those co-owners hold undivided shares andwhere there has been no partition by metes and bounds, thelaw is well settled that there need not be a conveyance by one ofthe co-owners in favour of the other co-owners. Each co-ownerin theory is entitled to enjoy the entire property in part and inwhole. It is not, therefore, necessary for one of the co-ownersto convey his interest to the other co-owners. It is sufficient ifhe releases his interest. The result of such a release would beenlargement of the share of the other co-owners. (See Board ofRevenue v. Merukesa Mudaliyar - AIR 1955 Madras 641 -FB). No doubt, Ext.A3 release deed in this case recitespayment of a sum of Rs. 200/- as consideration to the executees.It is well settled that a release deed can be validly executedalso for some benefit accruing to the releasor simultaneously. Arelease deed is valid not only when it is gratuitous but also R.S.A. NO. No. 1129 of 2008-:15:-when it is executed for some benefit accruing to the releasor.(See P.D. Palanivelu v. The Sub Registrar - (2003) 1 MLJ66 and Chief Controlling Revenue Authority v. R.N. Patel -AIR 1968 Madras 159). It is significant to note that afterExt.A3 release deed the aforementioned 26 cents of propertyhad been enjoyed by the legal heirs of Vareed to the exclusion ofthe appellants. It is true that Ext.A3 release deed does notrecite any partition between Anna and her children. But then,on the same day, that is on 17-12-1124 M.E. Anna and Joseph,the other co-owners executed Ext.B9 usufructory mortgage inrespect of both the plaint A and B schedule properties (53 cents)in favour of Ousepunni. It is in this document that we find therecital extracted herein above to the effect that Mathai and hisminor brother George who are the children of Vareed and theirmother Rosa have been given in partition the aforesaid 26 centsof land and that they have, therefore, no rights over the plaint Aand B schedule properties. When two or more documents areexecuted on the same day, all those documents are to be readtogether to know the real intention of the parties (See Pailothv. Kunjuvareed - 1986 KLT 1390, Prabhakaran v. R.S.A. NO. No. 1129 of 2008-:16:-Anthappan - 1986 KLT S.N. 58 Case No. 95 and paragraph14 of Mushir Mohammed Khan v. Sajeda Bano - 2000(3) SCC 536). The so-called admission of D.W.1 from thewitness-box cannot be decisive, for, it is well settled that titlecannot pass by admissions. It is the legal effect and subsequentconduct of the parties which are more relevant in deciding theissues.10. Mathai (who along with his minor brother George @Vareed got the 26 cents of land under Ext.A3) is the firstattestor to Ext.B9 usufructory mortgage. Now the question iswhether Mathai who figured as an attestor to the documentcontaining the recital regarding the partition, could be imputedwith knowledge of the contents of the document so as to bebound by or at least estopped from questioning the usufructorymortgage. The general proposition that an attester to aninstrument cannot ordinarily be presumed to know the contentsof the instrument is unassailable . (Vide Ganesh Bhandari v.Ambunhi - 1989 (2) KLT 882). This is because an attestationof a deed of transfer proves no more than that the signature ofthe executant has been affixed to the document in the presence R.S.A. NO. No. 1129 of 2008-:17:-of the attestor and ordinarily it does not involve the attestor withthe transaction nor does it afford him with notice of thetransaction. (Vide Banga Chandra Biswas v. Jagat KishoreAchariya Chowdhuri - AIR 1916 P.C. 110 and PandurangKrishnaji v. M. Thukaram and Others - AIR 1922 P.C. 20) .But then, the above proposition is not an inflexible rule whichcan be rigidly applied to all situations. There may be instancesin which the person attesting the document may be one who is aclose relative of the person entering into the transaction underthe instrument. The degree of his relationship with any of theparties to the transaction may be so proximate that he cannotbe expected to be insensitive to what is happening. It isinconceivable that a person standing in a near relationship withthe executants to an instrument will agree to figure as a witnessto the solemn act of attestation and lend his signature to theinstrument mechanically without being inquisitive or atleastcurious. There is profusion of case-law treating the attestationin such cases as tantamount to assent. The effect of a nearrelative witnessing a deed of conveyance was considered by theCalcutta High Court in Matadeen Roy v. Mussodun Sing and R.S.A. NO. No. 1129 of 2008-:18:-Others - (1868) Weekly Reporter 293. The Hon'ble SirBurnes Peacock, Chief Justice observed as follows:“When the plaintiff put his name as a witness to hisbrother's signature to a deed conveying the whole of theproperty, the court might reasonably infer that he knewthat his brother was selling the whole of the property. Ifhe knew that his brother was selling the whole of theproperty as his own and allowed him to do so withoutobjection it would be evidence against him either thatthe whole property did belong to his brother, or that hewas acquiescing in his brother's act of selling the whole".In Narayana Aiyar v. Rama Aiyar - ILR XXXVIIIMadras 396, Sadasiva Ayyar - J speaking for the DivisionBench observed as follows:-“In the later case of Vadrevu Banganayakamma v. Vadrevu BulliBamayya - - (1879) 5 C.L.R. 439 at page 447) , the Privy Councilapprovingly say “ but it frequently occurs in native (Indian)documents that a man signs as a witness to show that he isacknowledging the instrument to be correct”. I may respectfullyadd that, in my pretty long experience as a Judicial Officer, if theattestor of the document has an existing interest in the propertydealt with in the document, it has been always the case that thisattestation has been taken in order to bind him as to thecorrectness of the recitals therein”. R.S.A. NO. No. 1129 of 2008-:19:-In Ahemmadabad United Printing and General Agency Co.Limited v. Ardesir Cavasji - ILR XXXVI Bombay 515 aDivision Bench of the Bombay High Court speaking through SirBasil Scott, Chief Justice observed as follows:“We have , however, the fact that he was an attesting witness. Hewas a government servant who must have understood the effectof the deed which he was attesting and which was executed byhis brother who was in valivat of all the family properties”.The decisions of the Lahore High Court in Torubaz Khan v.Nanak Chand - AIR 1932 Lahore 566, of the Patna High Courtin Bhagwat Rai v. Gorakh Rai - AIR 1934 Patna 93, of theNagpur High Court in Nainsukhdas v. Gowardhandas - AIR1948 Nagpur 110 and of the Madhya Bharat High Court inAbbasali Shah v. Muhammed Shah - AIR 1951 MB 92 arealso to the same effect . In State of Kerala v. Babu - 2003(2) KLT 526 a learned Single Judge of this Court observed asfollows:-“Attestor to a document cannot by mere attestation be imputedwith the knowledge of the contents of the document.However, on the facts of a given case where there is a closerelationship between the executant and the attestor such as R.S.A. NO. No. 1129 of 2008-:20:-husband and wife, father and son, the possibilities of theattestor having knowledge regarding the recitals in thedocuments and about the circumstances under which thedocument came to be executed cannot be ruled out”The Apex Court had put on estoppel the conduct of a closerelative attesting the document in Mehboob Sahab v. SyedIsmayil - AIR 1995 SC 1205 . This is what the SupremeCourt has observed:-“Admittedly, the father continued to be in possession andenjoyment of the lands as owner as evidenced by the revenuerecords until it was mutated in the name of the appellants to theextent of 16 acres purchased by him as per the aforesaid saledeeds Ext.D1 and D-3. Ibrahim has attested Ext.D-1 when hisfather conveyed the lands as an owner. Though the sale wasagainst his interest, he had not objected to the sale. He, thereby, isestopped by conduct and record to assail Ext.D-1 sale or to claimany interest in the lands”Thus, Mathai who had an interest in the property cannot be saidto have attested Ext.B9 mortgage containing the recitalregarding the partition blissfully ignorant of what he wasattesting . It is not for the court to question the wisdom orsuspect the motives of a mother and her progeny at anundisputed point of time. R.S.A. NO. No. 1129 of 2008-:21:-11.The arrangement conceived of by the mother and herdescendants can be approached in another way also. Ext.A3document can also be construed as a measure by way of familysettlement. Members of a family can resolve prospectivedisputes through family settlement. (See Tarakanath v.Susheel Chandra Dey - (1996) 4 SCC 697). The concept offamily settlement is not peculiar to Hindus alone but has beenrecognised among Christians also. (Vide M.C. Chacko v. S.B.T.- AIR 1970 Sc 504 and Mariammal v. Sudali Muthu Thevar- 1999 (2) MLJ 102 (Para 26). It is a settled principle of lawthat no repudiation of a family arrangement is permissible .(Vide Krishna Benchilal v. Gulatchand - AIR 1971 SC 1041 -para 6). A releasee cannot approbate and reprobate by electingto take the benefit thereunder but at the same time disapprovewhat is not beneficial to him. (Damodaran Kavirajan v. T.D.Rajappan - ILR 1992 (2) Kerala 105). 12.The subsequent conduct of the legal heirs of Vareedincluding Mathai and George @ Vareed and the plaintiffs anddefendants 6 to 8 is also consistent with the arrangementbetween Anna and her descendants in the year 1949. While R.S.A. NO. No. 1129 of 2008-:22:-Mathai and George and their descendants retained with themthe 26 cents of land given to them under Ext.A3 to the exclusionof Anna , Joseph and his children, the other co-ownersnamely Anna and Joseph were exclusively dealing with the plaintschedule properties without sharing the same with thedescendants of Vareed the other co-owner. It is 52 years afterthe family settlement that the plaintiffs avariciously institutedthe present suit laying a claim over the plaint scheduleproperties as well. 13.It is in evidence that after Ext.B10 sale deed dated28-5-1953 assigning the equity of redemption over the plaintschedule properties by Joseph and Anna to George S/o. Joseph,George who was the predecessor-in-interest of the appellantshad been dealing with the property as his own to the exclusion ofthe descendants of his paternal uncle Vareed and hisdescendants. He had even sold portions of the properties tostrangers as evidenced by Exts.B3 sale deed dated 28-12-1958and B2 sale deed dated 18-10-1985. Those strangers are inpossession of the respective portions of the suit properties andhave constructed buildings thereon. The suit was filed as R.S.A. NO. No. 1129 of 2008-:23:-though the plaintiffs are in joint possession along withdefendants 1 to 8 in respect of the entirety of the plaint scheduleproperties. There cannot be a partition of the property in thehands of strangers unless it is brought into the hotch-pot of thejoint family or of the co-owners, as the case may be andadvalorem court fee on the value of the entire property in thepossession of such strangers is paid for ejectment of thosestrangers. (Vide Sarojini Amma v. Pappiamma and Others- 1973 KLT 148). No such relief was prayed for nor was anycourt fee paid for such relief. 14.Incidentally, I wish to point that the appellants hadspecifically pleaded that the rights, if any, of the plaintiffs andthe defendants 6 to 8 over the suit properties were lost byadverse possession, limitation and ouster and additional issueNo. 2 was also framed by the trial court in that behalf. Theappellants had adduced evidence also in support of the saidissue. But both the Courts below disposed of that issue byholding that the said issue was not pressed by the appellantsherein. Nothing in writing was taken by the courts below eitherfrom the appellants herein or from their counsel as enjoined by R.S.A. NO. No. 1129 of 2008-:24:-High Court Circular No. 28 of 1968. It is distressing to notethat both the Courts below appear to have overlooked the saidCircular as well as the decisions of this Court in Kannan v.Lakshmi - 1970 KLT 731 and Kunnirickal Chitty Fund v.Narayanan Nair - 1975 KLT 752. Fortunately, this Courthas been able to dispose of this Second Appeal without goinginto the said question of adverse possession and ouster.15.After a careful evaluation of the entire gamut of thepleadings and the evidence in this case, I have no hesitation toconclude that the suit which was rightly dismissed by the trialcourt was wrongly decreed by the lower appellate court. Theplaintiffs were not entitled to make a claim over the suitproperties 52 years after the partition effected between theancestors. They could not have made a valid prayer for settingaside Ext.B10 assignment deed of the year 1953 in a suit filedin the year 2001. The reasons given by the lower appellatecourt in support of the preliminary decree for partition passedby it, are unsustainable. The substantial questions of law are,accordingly, answered in the affirmative. The Judgment andpreliminary decree passed by the lower appellate Court, are set R.S.A. NO. No. 1129 of 2008-:25:-aside. I would have dismissed the suit in its entirety had it notbeen reported after the second appeal was posted for judgmentthat the parties have settled the matter by the appellantsceding a portion of the suit properties to the contestingrespondents. Leaving it to the will of the parties, this SecondAppeal is disposed of setting aside the appellate Judgment anddecree and laying down the legal position as aforesaid. Dated this the 9th December 2008.Sd/- V. RAMKUMAR, (JUDGE)/true copy/ani.