Kerala High Court · 2007

SA.No. 563 of 1999:: 8 ::ADDITIONAL RESPONDENTS 90 TO 92 AREIMPLEADED AS THE LEGAL HEIRS OF THE DECEASEDFIRST RESPONDENT AS PER ORDER DATED 28.1.04 IN IA125/2004.R1, 2, 4, 6 TO 30, 32, TO 36, 38, 40 TO 44 & 90 TO 92 BY ADV. SRI.B.SURESH KUMARTHIS SECOND APPEAL HAVING BEEN FINALLY HEARDON 14/02/2007, THE COURT ON THE SAME DAY DELIVEREDTHE FOLLOWING: ORDER ON C.M.P.NOS.1554/00 & 538/02 IN S.A.NO.563/99DISMISSED.Sd/- (K.A.ABDUL GAFOOR)14.02.2007. JUDGEsk/-//true copy//P.S. To Judge. K.A.ABDUL GAFOOR J.-------------------------S.A.No.563 of 1999 A -------------------------Dated this the 14th day of February, 2007.JUDGMENTAbdul Gafoor, J.The legal representatives of the 2nd defendantare the appellants in this case.2. The 2nd defendant, along with others resistedthe partition suit. The resistance was successful at thetrial stage. But in appeal by the plaintiffs, it was reversedand the partition suit was decreed, after considering indetail and finding that Ext.A1 under which the plaintiffsclaim partition was a partition deed effected between thedaughters of Kurumba, the common ancestor of theparties. 3. According to the appellants, Ext.A1 is nota partition deed, but only a family arrangement forenjoyment of the properties. It has been so decidedin a suit between the parties to the present suit or their S.A.No.563 of 1999 A :: 2 ::ancestors which led to Ext.B1 judgment and Ext.B1 hasbeen confirmed in Ext.A5 appellate judgment.Therefore, the point whether Ext.A1 was a partitiondeed could not have been further enquired into, asdone by the lower appellate court. Therefore, thisappeal at the instance of the legal representatives ofthe 2nd defendant raising a question of law, in the lightof the conclusive finding in Ext.B1 confirmed by Ext.A5,whether the lower appellate court was justified inconsidering as to whether Ext.A1 was a partition deedor not. 4. Ext.A1 is a document executed in the year1093 ME by Kochappi and Kochuchakki and theirchildren, who belong to the thavazhi of one Kurumba,who had executed a document in the year 1085 MEalong with her sister Kunjuchakki in respect of theproperty held by their mother Kurumba. Kochappi had S.A.No.563 of 1999 A :: 3 ::other children including Nani, the mother of theplaintiffs and Neelakantan - 2nd defendant, the father ofthe appellants. There was an earlier suit O.S.No.44/59on the file of the Munsiff's Court, Paravoor which led toExt.B1 judgment dated 8.4.1960. Some of the plaintiffstherein viz., plaintiffs 9, 10 and 11 are defendants 7, 8and 9 respectively in the present suit. Defendants 6, 7,8, 5, 9, 10, 11, 13 are plaintiffs 1, 2, 3, 5, 6, 7, 9 and 10respectively. Plaintiffs 4 and 8 are the legalrepresentatives of the 4th defendant in Ext.B1. Theothers are also persons claiming under the parties tothe said suits or members of the same tharwad.4. The present Ext.A1 is introduced inevidence by the plaintiffs as a partition deed underwhich the plaintiffs are claiming shares in the scheduledproperty. The trial court found that it was not apartition deed, but only an arrangement for enjoyment S.A.No.563 of 1999 A :: 4 ::of the properties by the executant of the saiddocuments. But in appeal, the lower appellate courtproceeded to examine the contentions of thedefendants in para 11 in the following lines:“According to the contesting defendantsD1 and D2, (D1 had died subsequently)the parties belonged to Thavazhi ofKochappi. But the properties are not thesub tarwad properties and Ext.A1 wasnot a partition and as such othe membersof the tarwad are necessary parties. Thepartition arrangement entered into bythe parties under the branch ofKochuchakki (A2) was not acceptableand the decree in O.S.44/59 was decidedagainst them and as such the presentclaim of the plaintiffs/appellants alsocannot sustain”.5. Then the court proceeded, in the light ofthe rival contentions, to consider, as mentioned in para12 of the appellate court judgment,: S.A.No.563 of 1999 A :: 5 ::“Whether Ext.A1 is only a familyarrangement for enjoyment of theproperties or an outright partition”.6. It is based on this consideration, the lowerappellate court came to the conclusion in paragraph 25as follows:“There was O.S.44/1959 filed byKochukunjali the sister of Nani, themother of the 1st plaintiff and her childrenagainst the present defendants on thestrength of Ext.A1. In that casedocument no.1085 and the documentNo.1093 (present Ext.A1) were produced.The court had found that all the membersof the family of Poova are necessaryparties and accordingly vide Ext.A3 thesuit was dismissed. A.S.209/60 was filedagainst the decree. Ext.A4 is the decreein A.S209/60. The appeal was allowed inpart and the partition over B scheduleitem was allowed in favor of theplaintiffs. Ext.A5 is the copy of thejudgment in A.S.209/60. The appeal wasallowed in part and the partition over B S.A.No.563 of 1999 A :: 6 ::schedule item was allowed in favor of theplaintiffs. Ext.A5 is the copy of thejudgment in A.S.209/60. The court hadfound by the recitals in the documentindicated that it was only an arrangementfor enjoyment of the property. Evidentlythis finding vide Ext.A5 cannot operate asres judicata or estoppel by record.Ext.A5 as such does not come within thepurview of Section 11 C.P.C. Theoperation of the Hindu Succession Actand the Joint Hindu Family System,(Abolition act 1976) are also to beconsidered in the case.”7. It is this approach and finding of the lowerappellate court, in re-examining whether Ext.A1 wasoutright partition, which is strongly assailed in thisappeal, raising the question of law as mentioned above,relying on Ext.B1 judgment between the parties thatExt.A1 never amounts to an outright partition, but onlyan arrangement for enjoyment of the properties. S.A.No.563 of 1999 A :: 7 ::8. As already found above, Ext.B1 is betweenthe parties or their ancestors. Ext.A1 is Ext.A in Ext.B1.That Ext.A was a document subsequent to Ext.1referred to in Ext.B1. Ext.1 is a family arrangemententered into between Kurumba and Kunjuchakki, whowere common ancestors. Kurumba had two daughtersKochappi and Kochuchakki. Their thawazhi entered intoa document Ext.A1 in the present case which is claimedas a partition deed. Examining these two documents inthe suit between the parties, as already mentionedabove, it was found in Ext.B1 as follows:“From a consideration of the entiredocument, the intention of the parties isunambiguously clear, and that intention isnot one of an out right partition, but onlyto have an arrangement for a better andconvenient enjoyment of the propertiestill some other arrangement is made. Theabsence of a clause for the continuance ofa common karnavan, or the provision for S.A.No.563 of 1999 A :: 8 ::the payment of tax separately and forseparate residence cannot make theudampady a partition. There is nothing toshow that absolute rights were conferredon the 2 groups and therefore thecontention of the plaintiffs that therestraint on alienation imposed on the 2groups under the document has to beignored, has no force. It is admitted thatthe different sharers have not jointlymodified this document.”9. This was a finding concerning Ext.1referred to in Ext.B1. Ext.A1 was further consideredand came to the following finding:“Further they have not got absoluterights over some of the propertiesincluded in Ext.A, namely those whichwere allotted to them under Ext.I, whichis only a maintenance arrangement andnot a partition, and as such the membersare also incompetent to divide themabsolutely.” S.A.No.563 of 1999 A :: 9 ::10. Thus, there is conclusive finding withrespect to Ext.A1 in the present case, in a former suitbetween the parties or between those under whom theparties claim that Ext.A1 was not an out right partition,but only an arrangement for enjoyment alone.11. Going by section 11 of the Code of CivilProcedure, “no court shall try any suit or issue in whichthe matter directly and substantially in issue in a formersuit between the same parties or between parties underwhom they or any of them claim”. The issue whichwas directly and substantially in issue in Ext.B1 suit waswhether Ext.A therein, which is the same as Ext.A1 inthe present suit, was a partition deed or not. It hasbeen conclusively found in Ext.B1 that it was not apartition deed. That has been confirmed in Ext.A5.Necessarily, the lower appellate court ought not to havereconsidered that issue which had been concluded S.A.No.563 of 1999 A :: 10 ::between the parties to arrive at a different finding thatit was a partition deed. It is opposed to Section 11 ofthe Code of Civil Procedure. Therefore, the said findinghas to be reversed on the ground that Ext.B1 acts asres judiciata as per Section 11 of the Code of CivilProcedure, answering the question of law raised in thisappeal in favour of the appellants.Accordingly, the appeal is allowed, thejudgment and decree of the lower appellate court is setaside and the judgment and decree of the trial court isrestored. Anyhow, there will be no order as to costs. Sd/- (K.A.ABDUL GAFOOR) JUDGEsk///true copy// K.A.ABDUL GAFOOR, J. ---------------------------------------------- S.A.No.563 of 1999 A JUDGMENT 14th February, 2007. ------------------------------------------------