2023:KER:60145

IN THE HIGH COURT OF KERALA AT ERNAKULAM

PRESENT
THE HONOURABLE MR. JUSTICE A. BADHARUDEEN
THURSDAY, THE 5TH DAY OF OCTOBER 2023 / 13TH ASWINA, 1945
RSA NO. 250 OF 2020
AGAINST THE JUDGMENT AND DECREE DATED 21.12.2019 IN A.S.NO.7/2019 OF
SUB COURT, MUVATTUPUZHA
AGAINST THE JUDGMENT AND DECREE DATED 15.10.2018 IN O.S.NO.539/2015
OF MUNSIFF COURT,MUVATTUPUZHA
APPELLANTS/RESPONDENTS 2 TO 4/DEFENDANTS 2 TO 4:
1 FATHIMA BEEVI
AGED 71 YEARS
W/O.MUHAMMED HUSSAIN RAWTHER, RESIDING AT
THEMPILLIKUDIYIL HOUSE, VADAKEN MARADY KARA, MARADY
VILLAGE, MUVATTUPUZHA TALUK, ERNAKULAM DISTRICT.
2 AYISHA BEEVI,
AGED 64 YEARS
W/O.HUSSAIN KUNJU RAWTHER, RESIDING AT
CHARIPURATHUPUTHENPURAYIL HOUSE, RAMANGALAM MARADY
VILLAGE, MUVATTUPUZHA TALUK, ERNAKULAM DISTRICT.
3 MYMOONA BEEVI,
AGED 62 YEARS
W/O.SIDHIQUE, RESIDING AT FAIZAL MANZIL, RANDAR KARA,
MUVATTUPUZHA VILLAGE, MUVATTUPUZHA TALUK, ERNAKULAM
DISTRICT.
BY ADVS.
T.A.UNNIKRISHNAN
SRI.K.K.AKHIL

RESPONDENT/APPELLANT/PLAINTIFF:
ABDUL RAHMAN
AGED 60 YEARS
S/O.HUSSAIN SAIDUMUHAMMED RAWTHER, CHENATTU HOUSE,
RAMANGALAM KARA, MARADY VILLAGE, MUVATTUPUZHA TALUK,
ERNAKULAM DISTRICT-686673.
BY ADVS.
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SRI.T.P.PRADEEP
SRI.S.SREEDEV

THIS REGULAR SECOND APPEAL HAVING BEEN FINALLY HEARD ON

21.09.2023, THE COURT ON 5.10.2023 DELIVERED THE FOLLOWING:
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CR
JUDGMENT

Dated this the 5th day of October, 2023

Defendants 2 to 4 in O.S.No.539/2015 on the files of the

Munsiff Court, Muvattupuzha, who are the respondents 2 to 4

in A.S.No.7/2019 on the files of the Sub Court, Muvattupuzha,

have filed this appeal under Section 100 r/w Order XLII Rule

1 of the Code of Civil Procedure (for short, ‘the C.P.C.’

hereinafter), challenging the decree and judgment passed in

the appeal. Sole respondent is the plaintiff in the suit.

2. Heard the learned counsel for the appellants as well

as the learned counsel for the respondent.

3. I shall refer the parties in this appeal as ‘plaintiff’ and

‘defendants’ for convenience.

4. This Court admitted this appeal, as per order, dated

16.3.2020, by raising the following questions of law:

“(a) Is not the finding of the lower appellate

court that Ext.B1 deed is executed for no valid
consideration is legally incorrect?
(b) Ext.B1 being a registered deed, can it
be ignored without setting aside the document?”

5. Plaintiff’s case in brief:

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According to the plaintiff, the plaint schedule property,

having an extent of 81 sq.m. in Sy.No.378/23A and 2.28 Ares

in Sy.No.378/21/2 of Marady Village, originally belonged to

Mr.Hussain Saidumuhammed Rawther, who is the father of

the plaintiff and defendants 2 to 4. The 1st defendant is the

wife of the above said Hussain Saidumuhammed Rawther. The

case of the plaintiff before the trial court was that, since

Hussain Saidumuhammed Rawther died intestate, the plaint

schedule property, as such, is liable to be partitioned and the

plaintiff is entitled to get 14/40 share, the 1st defendant is

entitled to get 5/40 share and defendants 2 to 4 are entitled to

get 7/40 share each.

6. Defendants’ case in nutshell:

Defendants 1 to 4 filed joint written statement and

admitted that the property originally belonged to Hussain

Saidumuhammed Rawther, as per the sale deed of the year

1953. According to the defendants, the entire property is not

partible, since during the life time of Hussain

Saidumuhammed Rawther, he had executed sale deed

No.6583/1994 of Muvattupuzha SRO and thereby, transferred

2.83 Ares of property in favour of the 3rd defendant and her

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husband, for a total consideration of Rs.12,000/- (Rupees

Twelve Thousand only), excluding 26 sq.mt of property. The

partible nature of the said property is to be proved by the

plaintiff.

7. After raising necessary issues, the trial court recorded

evidence. PW1 was examined and Exts.A1 to A3 were marked

on the side of the plaintiff. DWs 1 and 2 were examined and

Exts.B1 to B3 were marked on the side of defendants. Exts.C1

and C1(a) also were marked. On appreciation of evidence,

the learned Munsiff found that, 26 sq.m. of property,

comprised in Sy.No.378/21/2 covered by Ext.A1 sale deed i.e.,

sale deed No.3030/1953 of Muvattupuzha SRO, is partible and

accordingly, preliminary decree for partition was passed as

under:

“1. 26 sq.mtrs of property comprised in

sy.No.378/21/2 left after 2.2 Ares of property as
per Ext. B1 out of the plaint schedule property
shall be partible by metes and bounds into 5
equal shares.
2. Plaintiff is entitled to 2/5 shares in the above said
property and defendants 2 to 4 are entitled to 1/5
shares each therein.
3. The share of the plaintiff if found available shall
be separated and considering the meager extent
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of the property available for partition and the

assignment as per Ext. B1, it shall be open to the
parties to apply for auction of the partible
property among them as per the provisions of the
Partition Act.
4. If the property is found otherwise partible into
metes and bounds, the share of the 3 rd defendant
shall be allotted adjacent to the property obtained
by 3rd defendant and her husband as per Ext. B1
document.
5. Costs of the suit shall be come out of estate.

Suit is adjourned sine die. Either the plaintiff or

the defendants on payment of court fee, may
apply for passing of the final decree.”

8. It is discernible that the trial court allotted shares, as

hereinabove, excluding Ext.B1, the sale deed, relied on by the

3rd defendant and her husband. Allotment of shares also re

arraigned because of the death of the 1 st defendant during

pendency of the suit.

9. The plaintiff filed appeal before the Sub Court,

Muvattupuzha, vide A.S.No.7/2019. As per judgment, dated

21.12.2019, the learned Sub Judge allowed the appeal and

reversed decree and judgment of the lower court.

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Accordingly, the preliminary decree of partition was passed in

the appeal as under:

“Plaint schedule property is partible and is to be

divided into equal shares by metes and bounds.
Plaintiff is entitled to get 2/5 share and defendants 2
to 4 are entitled to get 1/5 share each in the plaint
schedule property.
Cost of the suit shall be comes out of estate.
Suit adjourned sine die. Either the plaintiff or the
defendants may apply for passing final decree on
payment of prescribed court fee.”

10. Now, defendants 2 to 4 are in appeal against the

said finding.

11. In fact, the substantial question of law in precise

form arises herein is, whether the appellate court went

wrong in rejecting Ext.B1 sale deed, though the same is a

pucca sale deed executed for valid consideration? On a bare

reading of the recitals in Ext.B1, it could be gathered that the

same was executed in the year 1994, at the time of marriage

of the 3rd defendant and the same was, in fact, for a

consideration of Rs.12,000/- (Rupees Twelve Thousand only).

It is in this context, the learned Munsiff found that, only 26

sq.m. of property, comprised in Sy.No.378/21/2, covered by

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Ext.A1 deed, excluding the property covered by Ext.B1 alone,

as partible. But, the learned appellate judge found that, ‘on a

close reading of Ext.B1, it could be seen that the

consideration of the document is numerous and the

consideration also was passed by adjusting amount received

prior to that. Therefore, Ext.B1 is liable to be ignored’, is the

finding of the appellate court. The appellate court is of the

opinion that, since the plaintiff is not a party to Ext.B1, the

plaintiff could very well ignore the document. The appellate

court relied on a ruling of this Court in Sankaran v.

Velukutty reported in [1986 KHC 196] : [1986 KLT 794]

in support of the said finding.

12. I have perused the judgment relied on by the

appellate court in Sankaran’s case (supra). In the said

judgment, the question considered was, whether in a suit for

partition and separate possession, court fee needs to be paid

for the prayer for declaration that a settlement deed is invalid

and not binding on the plaintiff or the plaint schedule

properties. In the said decision, the learned counsel for the

revision petitioner therein relied on decision in Y.G.Gurukul

v. Y.Subrahmanyam reported in [AIR 1957 AP 955], to

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contend that, 'when a person is not eo nomine a party to a

suit or a document, it is unnecessary for him to have the deed

or the decree annulled, and he can proceed on the

assumption that there was no such document or decree.' But,

in the case dealt by this Court, the plaintiff sought for a

declaration that, the document is invalid and not binding on

him and it was observed that eventhough there is prayer for

declaration that the settlement deed 1889/64 of the Mundoor

Registry Office is invalid and not binding on the plaintiff or

the plaint schedule properties, the plaintiff could not be

called upon to pay court fees under Section 25(d)(i) of the

Court Fees Act. It was observed further that, a plaintiff is not

a party to the document, it is unnecessary for him to have the

same annulled and the same could very well be ignored. But

the above decision does not lay down a proposition that in the

case of a sale deed, a party could very well ignore the sale

deed and seek the relief of partition without seeking a

declaration either to set aside it or to treat the document as

non-est and not one binding upon him and the property,

covered by the sale deed.

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13. In decision in Suhrid Singh @ Sardool Singh v.

Randhir Singh and Others, reported in [2010 KHC 4216],

the Apex Court considered the question as to payment of

court fee when the prayer is one for declaration that the

deeds do not bind the plaintiff or his right on the plaint

schedule property and it was held that, where the executant

of a deed wanted to annul a deed, he had to seek cancellation

of the deed. But if a non-executant seeks annulment of a

deed, he had to seek a declaration that the deed is invalid or

non-est or illegal or that it is not binding on him. The

following explanation also was given by the Apex Court to

make the position more vivid and the same is as under:

“The difference between a prayer for

cancellation and declaration in regard to a deed
of transfer / conveyance, can be brought out by
the following illustration relating to 'A' and 'B'
two brothers. 'A' executes a sale deed in favour
of 'C'. Subsequently 'A' wants to avoid the sale. A
has to sue for cancellation of the deed. On the
other hand, if 'B, who is not the executant of the
deed, wants to avoid it, he has to sue for a
declaration that the deed executed by 'A is invalid
/ void and nonest / illegal and he is not bound by
it. In essence both may be suing to have the deed
set aside or declared as non binding. But the form
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is different and court fee is also different. If 'A',

the executant of the deed, seeks cancellation of
the deed, he has to pay advalorem court fee on
the consideration stated in the sale deed. If 'B',
who is a non executant, is in possession and sues
for a declaration that the deed is null or void and
does not bind him or his share, he has to merely
pay a fixed court fee of Rs 19.50 under Art 17(iii)
of Second Schedule of the Act. But if 'B', a non
executant, is not in possession and he seeks not
only a declaration that the sale deed is invalid,
but also the consequential relief of possession, he
has to pay an advalorem court fee as provided
under S. 7(iv)(c) of the Act. S.7(iv)(c) provides
that in suits for a declaratory decree with
consequential relief the court fee shall be
computed according to the amount at which the
relief sought is valued in the plaint. The proviso
thereto makes it clear that where the suit for
declaratory decree with consequential relief is
with reference to any property, such valuation
shall not be less than the value of the property
calculated in the manner provided for by clause
(v) of S7.

It was held further in paragraph No. 9 as under:

“9. In this case, there is no prayer for
cancellation of the sale deeds. The prayer is for a
declaration that the deeds do not bind the
"coparcenery and for joint possession. The
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plaintiff in the suit was not the executant of the

sale deeds. Therefore, the court fee was
computable under S.7(iv)(c) of the Act. The trial
court and the High Court were therefore not
justified in holding that the effect of the prayer
was to seek cancellation of the sale deeds or that
therefore court fee had to be paid on the sale
consideration mentioned in the sale deeds.”

14. Thus, the legal position emerges is that, when there

is a sale deed, if the executant wanted to annul the same, he

had to seek cancellation of the said deed or the relief to set

aside the deed. If a non-executant seeks annulment of a deed,

he had to seek a declaration that the deed is invalid, or non-

est or, illegal or that the deed is not binding upon him. In this

matter, the plaintiff not sought the relief to declare Ext.B1 as

invalid, or non-est or, illegal or that the deed is not binding

upon him. In fact, the plaintiff could not succeed without

seeking such a relief and getting the said relief allowed.

15. In this matter, defendants 1 to 4 jointly filed written

statement and they put up a case that, Ext.B1 sale deed was

executed in favour of the 3rd defendant and her husband at

the time of marriage for a total consideration of Rs.12,000/-

(Rupees Twelve Thousand only). If so, whether the plaintiff is

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a party to the document or not, Ext.B1 is to be held as a

validly executed sale deed and by the operation of said deed,

the 3rd defendant and her husband perfected title to the

property covered by Ext.B1. Since the plaintiff failed to seek

the declaration as hereinabove referred and failure on the

part of the plead and prove that Ext.B1 is invalid, or non-est

or, illegal or that the deed is not binding upon him goes to the

root of the matter. Therefore, it appears that the learned

Sub Judge failed to appreciate the evidence and also to

consider the legality of Ext.B1 document, whereby, the 3 rd

defendant and her husband perfected title. In order to

disbelieve the pucca sale deed executed for valid

consideration, there must be specific challenge and the

document either to be set aside or to declare the same as

invalid, or non-est or, illegal or that the deed is not binding

upon the party who claims right in the property in exclusion

of the sale deed, since the same is not a void document.

Therefore, it has to be held that, the appellate court went

wrong in reversing the preliminary decree of partition passed

by the trial court and therefore, the judgment and decree

passed by the appellate court stand set aside, by confirming

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the decree passed by the trial court with a modification as

under:

16. In the result, this appeal stands allowed and the

decree and judgment of the appellate court in A.S.No.7/2019,

dated 21.12.2019, stand set aside. Consequently, the decree

and judgment passed by the trial court, dated 15.10.2018,

stand restored with a modification that, if any property

remains, excluding property, having an extent of 81 sq.mt. in

Sy.No.378/23A and 2.28 Ares in Sy.No.378/21/2 of Marady

Village, as detailed in Ext.B1, the same alone is partible and

the shares of the parties are in terms of the preliminary

decree passed by the trial court.

The matter stands adjourned sine die and the parties are

at liberty to proceed with the final decree application, in

accordance with law, if any property in excess of one covered

by Ext.B1 is physically available for partition.

Sd/-
A. BADHARUDEEN
JUDGE

Bb