1. The defendants 1 to 4 in O.S. No. 2 of 1998 are the appellants in A.S.549 of 2002. O.S. No. 2 of 1998 is a suit for partition filed by the sole respondent in the appeals. O.S.No. 363 of 1997 was also filed by him before the Munsiff’s Court, Kasaragod, which was later renumbered as OS No. 38/1998, for a permanent prohibitory injunction from committing waste and damage against the sole defendant, who is also the first defendant in the suit for partition.

2. The plaintiff in O.S. No.2 of 1998 is the brother of the first defendant, and D2 to D4 are the sons of the first defendant. The plaintiff alleged that the plaintiff, the defendants, and others constituted a joint family. The joint family was partitioned as per a partition deed, bearing Doc No. 660/1961 SRO Manjeswar, dated 12.11.1961. The properties in B schedule to the document were allotted to K.Krishna Bhat, the eldest son of K.Venkataramana Bhat, and the properties in ‘A’ Schedule to the document were allotted and retained by the rest of the family members. K. Krishna Bhat, thereafter, instituted O.S. No.14 of 1973 before the Sub Court, Kasaragod, seeking partition and separate allotment of the share so acquired from the ‘A’ Schedule properties covered by Doc. No.660/1961, which resulted in a preliminary decree, and thereafter, I.A.299 of 1978 was filed for a final decree for partition, as per the terms of which ‘A’ schedule property was allotted to the joint shares of the plaintiff, defendants, and other brothers and two sisters of the plaintiff and the first defendant.

3. It is alleged that the first defendant was conducting the suit on behalf of the plaintiff and the defendants and that though the shares of other brothers and sisters were acquired by the defendants, all such acquisitions were made out of the common funds. It is thus alleged that the plaintiff and the defendants are the co-owners in respect of plaint 'A' schedule. Thus, claiming a half share in 'A' schedule, O.S. 2 of 1998 was filed.

4. The defendants contended that the plaintiff, the first defendant and other brothers had entered into an oral partition of the family properties on 01.04.1973 and thereafter Ext B1 written agreement dated 03.06.1973 evidencing the same was also executed. 'A' schedule property in the said agreement was allotted to the first defendant branch and 'B' schedule was allotted to Sankara Narayana Bhat, another brother of the plaintiff, 'C' schedule allotted to Rama Sharma, another brother and 'D' schedule property was allotted to the plaintiff and that the respective persons have been in separate possession and enjoyment of the respective shares since the oral partition. The suit is filed suppressing the said partition. It is stated that an extent of 90 cents in R.S. 25/11B was allotted to the share of the plaintiff, and as per the final decree in O.S 14 of 1973, 22 cents from that item have been allotted to the plaintiff in O.S. 14 of 1973, and the present plaintiff is in possession of 68 cents in that item, along with other items.

5. It is also contended that the first defendant's brother, Rama Sharma, and his minor son Venkatesha had released their rights in the plaint 'A' schedule properties in favour of defendants 1 to 4 as per Ext.B2, registered release deed dated 10.7.1985. The defendant's other brother, Sankara Narayana Bhat, and his son Venkatakrishna had also released their rights in the plaint 'A' schedule in favour of defendants 2 to 4 as per Ext.B4, registered release deed dated 09.12.1997, and all these purchases were by utilising their own funds. The defendants' sisters, Lakshmi Amma and Kamakshi Amma, also released their rights in the plaint 'A' schedule in favour of the first defendant as per Ext.B3 release deed dated 09.12.1997. The allegation that the first defendant was collecting income from the 'A' schedule property was denied. The defendants contended that the plaintiff has only 11 out of 46 shares in the plaint 'A' schedule properties and prayed for dismissing the suit as framed.

6. The trial court raised issues, inter alia, as to whether the plaintiff has the right to claim partition of the plaint ‘A’ schedule and whether the partition set up by the defendants is true.

7. The trial court found that, as per the final decree for partition in O.S.14 of 1973 of the Sub Court, Kasaragod, the properties were allotted to the joint share of the plaintiffs, defendants, and their brothers, and therefore the defendant has no manner of right to cut and remove the timber trees or to misappropriate, as the property belongs to all the sharers. Thus, an injunction was granted against the defendants.

8. As regards the contention on oral partition evidenced by Ext.B1, the trial court found that all co-owners were not parties to Ext.B1 and that Exts.B2 to B4 release deeds were documents executed by other co-owners as though Ext. B1 was not acted upon. Thus, it was held that Ext. B1 cannot be said to be valid or binding on all the parties, as the case of oral partition set up by the defendants was found to be wrong. However, on the basis of the evidence and admission of PW1, it was found that the house in 'A' schedule was constructed by the first defendant and therefore the same was found to be not partible. The plaintiff was held entitled to a half share along with mesne profits from the 'A' schedule properties. An injunction was also granted against cutting or removing timber trees or committing waste in the plaint schedule property. It is against the said judgment and decree that the appeals are filed.

9. Learned Senior Counsel for the appellants Sri. S.V. Balakrishna Iyer, instructed by Smt. Atheena Antony argues that the trial court did not advert to the impact of the oral partition on 1.4.1973, which was proved and the terms of which were recorded in Ext. B1, the effect of Act 30 of 1976, the law relating to the nature and character of acquisition of property using coparcenary funds by a coparcener on one hand and using co-ownership funds by a co-owner to acquire property on the other or the law relating to the nature and character of an acquisition by a tenant-in-common vis-à-vis other tenants-in-common, were not considered while ordering partition. The property shown as ‘B’ schedule attached to the written statement was allotted to the plaintiff. It is argued that, at any rate, the plaintiff can be given a decree only for 11/46 share, and confining, as far as possible, to the allotment of ‘D’ schedule items in Ext.B1 agreement, less the extent taken delivery in O.S. 14 of 1973, and allotting further items out of the available items in ‘E’ schedule to Ext.B1.

10. It is also argued that though oral partition was effected at the instance of two mediators, both of them died before the suit. Though Ext.B1 was attempted to be denied by the plaintiff, in the evidence of PW1, he admits the agreement entered into in the year 1973. The handwriting of Rama Sharma and his brother was not disputed, and the plaintiff has not disputed his signature in Ext.B1. One of the attesting witnesses in Ext.B1 was examined, Ext.X1 dated 5.10.1996, claiming Areca Development Scheme for compensation by the plaintiff, and Ext.X2 receipt issued by the plaintiff for having received the compensation from the Agricultural Officer are the documents which were admitted by the plaintiff but were not even taken note of by the trial court. The plaintiff had also admitted that all the 4 brothers had 4 separate Ration Cards after 1973, separate land revenue and land cess payments.

11. PW1 admitted that he was aware of the execution of Ext.B2 and that he was an identifying witness before the Sub-Registrar. All these categorically proved the oral partition. The plaintiff had also admitted the independent income of the defendants, which also proved that the acquisitions under Exts.B2 to B4 were without the aid of the income from the properties of other tenants-in-common. PW1’s evidence was not even referred to in the trial court judgment. Similarly, the law applicable was not considered. The learned counsel also relied on the judgments of the Hon’ble Supreme Court in Bhagwati Prasad Sah and Others v. Dulhin Rameshwari Kuer and Another, [(AIR 1952 SC 72):(1951 SCC 486)], Kalyani (Dead) by Lrs. v. Narayanan and Others, [(AIR 1980 SC 1173) : 1980 Supp SCC 298)], Nani Bai v. Gita Bai Kom Rama Gunge, [(AIR 1958 SC 706) : (1958 SCC Online SC 17)], Peddu Reddiar v. Kothanda Reddi, [(AIR 1966 Mad 419) : (1965 SCC Online Mad 211)], Deo Chand and Others v. Shiv Ram and Others, [(1969) 3 SCC 330], Munna Lal (Dead) by Lrs and Others v. Suraj Bhan and Others, [(AIR 1975 SC 1119) : ((1975 1 SCC 556)], Roshan Singh and Others v. Zile Singh and Others, [AIR 1987 Del 161], Hans Raj Agarwal and Another v. Chief Commissioner of Income Tax and Others, [(2003) 2 SCC 295], K.B. Saha & Sons Private Limited. v. Development Consultant Limited [(2008) 8 SCC 564], C.S.Kumaraswami Gounder v. Aravagiri Gounder and another, [AIR 1973 SCC Online Mad 81], Hari Lal v. Amrik Singh and Another, [AIR 1978 All 292], M.N. Aryamurthy and Another v. M.D. Subbaraya Setty (Dead) through Lr and Others, [AIR 1972 SC 1279], Balakrishnan and Others v. Makkam and Others, [AIR 1974 Ker 18], Kuniyil Parvathi Amma and Others v. Vilangil Mani Amma, [1974 SCC OnLine Ker 20], G. Gulam Rasool v. G. Jawahar Beegum and Another, [1989 SCC OnLine Ker 143], Tresa Xavier v. Mary Simon, [2014 SCC Online Ker 13442], Jayarama Chandra lyer v. Thulasi Ammal and Others, [AIR 1976 Mad 17].

12. The learned counsel for the respondents, Sri.K. ShriHari Rao, would argue that the case of oral partition set up by the defendants is wrong and that Ext.B1 document does not evidence a partition as the recitals themselves would show that the same was a temporary arrangement to be in force till the decision in O.S. 14/1973. It is argued that the first defendant had no case that the said arrangement is extended any further. It is also argued that Ext.B1 was allegedly executed during the pendency of the suit, and that all the co-owners are not parties to Ext.B1, as the sisters were not included in the same. The argument that the properties were being separately enjoyed after the deed is also denied, and it is the specific contention that the first defendant was looking after the litigation as well as the entire properties. It is also argued that the subsequent purchases from the other sharers were made from the common funds. Thus, after the final decree in O.S. 14/1973, it is contended that the plaintiff was a co-owner of the remaining properties and, therefore, is entitled to partition, including the properties acquired under Exts.B2 to B4.

13. It is argued that the admission about the Ext.B1 document in I.A. 1056/1998, pending the suit for partition, cannot bind the plaintiff. It is also argued that the partition could not have been made on an unregistered agreement like Ext.B1. Since the acquisitions made under Exts.B2 to B4 were using income from the joint properties, the said acquisitions made were for the benefit of the plaintiff, and thus he is entitled to a half share. It is also argued that the Kerala Joint Hindu Family System (Abolition) Act 1975 would not apply to Wills, Intestacy and Succession, and therefore the said Act has no application to the facts of the present case. Accordingly, it is argued that the judgment and decree under challenge call for no interference.

14. Heard the learned counsel on both sides and perused the records.

15. The point that arises for determination in this appeal is whether the oral partition and Ext B1 set up by the defendants are proved.

16. Before considering the rival contentions regarding Ext.B1 and the subsequent acquisitions, it is necessary to notice a few facts that are necessary to adjudicate this case. The parties are members of a Hindu Mitakshara joint family descended from late K. Venkatramana Bhat. This joint family was partitioned as per a partition deed dated 12.11.1961, and the properties in ‘B’ Schedule to the document were allotted to K.Krishna Bhat, the eldest son, and the properties in ‘A’ Schedule to the document were allotted and retained by the rest of the family members. After the death of K. Venkatramana Bhat, his interest of ⅙ shares in the coparcenary properties, i.e., in ‘A’ Schedule properties, devolved by intestate succession on his wife and children under Section 6 of the Hindu Succession Act as if a partition had taken place immediately before his death. The same was inherited by his five sons, wife, and four daughters in equal share, i.e., 1/60 share each, and therefore each of the five sons had 10/60 share in their own right. No share devolved on Krishna Bhat as his share was already separated under the partition dated 12.11.1961. After the death of K.Govinda Bhat, the mother, Parvathi Amma, inherited the same under Section 8 of HSA, and this share was subsequently assigned to K.Krishna Bhat by a registered sale deed dated 7.2.1973.

17. K. Krishna Bhat, thereafter, instituted O.S. No.14 of 1973 before the Sub Court, Kasaragod, seeking partition and separate allotment of the share so acquired from the ‘A’ Schedule properties covered by Doc. No.660/1961. It is contended that an oral partition took place between four sons on 1.04.1973, subject to the final result of OS No. 14/1973, and as a record of the said partition, the terms thereof were reduced to writing in the document dated 3.06.1973, marked as Ext.B1 in the suit. The suit filed by Krishna Bhat resulted in a preliminary decree, wherein the 12/60 share assigned by the mother was allotted to the legal heirs of K.Krishna Bhat. Ultimately, under the final decree dated 26.07.1983 (Ext.A1), the shares of Krishna Bhat and the other sharers were separately allotted. Each of the four brothers held 11/46 shares, and their sisters, who were not separately allotted shares in the OS, held 1/46 shares. Later, the share of K.Rama Sharma, along with his son, K.Shankar Narayana Bhat, along with his son, and two sisters, was transferred to D1 to D4 by Ext.B2, B4, and B3, respectively. The plaintiff filed the suit alleging that the defendants are family members of the plaintiff, and the above purchases enure to the benefit of the plaintiff, and he is entitled to half the share.

18. The principal defence is that the four brothers orally partitioned the properties on 01.04.1973 in the presence of mediators and that Ext.B1 dated 03.06.1973 merely recorded the terms of the already completed oral partition. The question is whether the evidence probabilises this defence.

19. A reading of Ext.B1 shows that it does not itself purport to bring about a partition. It records that the partition had already taken place on 01.04.1973, and the oral partition was brought about at the instance of two mediators who died before the suit; it specifies the properties allotted to each brother. PW1 admitted an agreement of the year 1973 by stating that the document shown to him may be the agreement dated 3.06.1973 entered into between D1, myself and our two brothers. He also deposed that he cannot say whether the signature of executant No.4 was his or not. This shows that the respondent does not dispute entering into such an agreement, and also the handwriting of Rama Sharma is not disputed; moreover, the plaintiff does not dispute his own signature.

20. Further, DW2, one of the attesting witnesses, deposed that Ext.B1 was duly executed on instructions, which include the factum of oral partition already taken place as recorded in Ext.B1. There was no plea in the plaint that, though the terms of Ext.B1 came into effect, it came to an end by the final decree in OS No.14 of 1973, and was only raised at the time of IA No. 1065 of 1998 (Receiver Application). It is also to be noted that though Ext.B1 gives the parties the right to alter, cancel, or continue the agreement, there is nothing to show that the arrangement evidenced by Ext.B1 was altered. Pw1 also admits that he was aware of the execution of Ext.B2, and he was an identifying witness before the Sub-Registrar. All these, without doubt, prove the execution of Ext B1.

21. As regards the contention of the respondent that B1 is not valid since the sisters did not join the agreement, it turns out that the defendants have purchased their rights. It is also to be noted that the sisters have neither questioned the conveyance nor asserted any subsisting right over the properties, and have voluntarily transferred their respective shares. No prejudice is caused to them, and the respondent cannot espouse their cause to impeach Ext B1.

22. The evidence also proves that the oral partition evidenced by Ext.B1 was acted upon. Ext.B5 letter dated 15.07.1997 issued by the plaintiff to defendant No.1 authorising him to deliver the areca stored in the house of defendant No.1 to a purchaser. Likewise, Ext.X1 dated 5.10.1996, application by the plaintiff under the Areca Development Scheme for compensation for the damage caused to areca trees and Ext.X2 receipt dated 5.03.1997, issued by the plaintiff for having received the compensation from the Agricultural Officer, Paivalike. PW1 admits his signatures in Ext.X1 and X2 in cross-examination and also admits Ext.X1 and Ext.X2 relate to the trees in D schedule to Ext.B1. He also admits that the four brothers had four ration cards since 1973. The land revenue and cess payments were also made separately. Moreover, the PW1 admits that he was aware of the execution of Ext.B2 and that he was an identifying witness before the Sub-Registrar, which supports the oral partition and the implied admission that he has only 11/46 shares. These facts show that the parties possess the properties separately.

23. It is also trite law that members of a coparcenary having immovable properties or persons holding immovable properties in co-ownership can orally partition and hold the properties severally by dividing the properties by metes and bounds. (See: Rewun Persad v. Mussumat Radha Beeby [1846 SCC Online PC 6], Gyannessa And Ors. vs Mobarakannessa And Ors [(1898) ILR 25 CAL 210], Latchumammal v. Gangammal [1911 ILR 34 Mad 72], Alamelu Ammal and Anr. vs. Balu Ammal and Anr. (AIR 1915 Mad 103), Nanni Bai (supra), Peddu Reddiar (supra).

24. The next question that arises for consideration is whether the acquisitions made under Exts.B2 to B4 were out of the common income of the plaint ‘A’ schedule properties, as alleged by the plaintiff, or from the independent income of defendants 1 to 4. The burden to establish that the acquisitions were made from common funds squarely rests upon the plaintiff. However, the evidence on record does not substantiate such a plea. In cross-examination, PW1 admitted that, except for his own assertion, there is no evidence to show that the first defendant was managing the entirety of the suit properties after the oral partition. He further admitted that there is no material to prove that the consideration paid under Exts.B2 to B4 was derived from the income of the plaint schedule properties or that there was any surplus income available for making such acquisitions. PW1 also admitted that he was unaware as to whether the family possessed any cash balance, what the annual surplus income from the properties was, or even the cultivation expenses incurred. These admissions clearly belie the plaintiff's case that the acquisitions were financed from the common family funds. On the contrary, the evidence of DW1 that there was no surplus income from the properties allotted under Ext.B1 remains unshaken.

25. The evidence, on the other hand, probabilises the defendants' case that the acquisitions under Exts.B2 to B4 were made from their independent earnings and savings. PW1 himself admitted that the first defendant was employed as a teacher from 1960 to 1990 and that his wife was also a teacher from 1965 to 1993. He further admitted that the second defendant has been serving as a Government Doctor since 1988 and the third defendant has been employed as an Engineer since 1988. Exts.B15 and B16 further establish the independent acquisition of an arecanut garden by the first defendant's wife. DW1 has also deposed regarding the retirement benefits and pension received by him and his wife. Thus, the defendants had sufficient independent financial resources to acquire the shares covered by Exts.B2 to B4.

26. Once it is found that the parties had become tenants-in-common after the oral partition and, in any event, upon the coming into force of the Kerala Joint Hindu Family System (Abolition) Act, 1975, the acquisition by one tenant-in-common of the share of another cannot, in the absence of cogent evidence to the contrary, be presumed to have been made for the benefit of all the co-owners. It is also the specific case of the Appellant that the portions improved by D1 and D4 are to be allotted to them without valuation. This is an admitted fact by the PW1. The plaintiff having failed to establish that the consideration under Exts.B2 to B4 emanated from common funds, the said acquisitions have necessarily to be treated as the independent acquisitions of defendants 1 to 4. (See: M.N. Aryamurthy (Supra), Balakrishnan (Supra), Kuniyil Parvathi Amma (Supra), Gulam Rasool (Supra)

27. The findings of the trial court on Ext.B1 and the plea of prior oral partition cannot be sustained either on facts or in law. The trial court rejected Ext.B1 principally because all the co-owners were not parties to the document, and the subsequent execution of Exts.B2 to B4 indicated that Ext.B1 had not been acted upon. The court below, however, failed to examine the true legal character of Ext.B1 or the settled principles governing oral partition. It is well settled that members of a coparcenary or co-owners can effect a valid oral partition of immovable properties and thereafter hold the properties in severalty by metes and bounds. If a subsequent document merely records or memorises an already completed oral partition, such a document does not itself create or extinguish rights in immovable property and, therefore, does not require compulsory registration under Section 17(1)(b) of the Registration Act.

28. The evidence on record clearly establishes that Ext.B1 is only a memorandum of the oral partition effected on 01.04.1973 and not the instrument creating the partition. The subsequent conduct of the parties, including their separate possession, payment of land revenue, maintenance of separate ration cards, receipt of Government compensation in respect of their respective allotments, and independent dealings with the properties, unequivocally demonstrates that the oral partition had been acted upon for decades. Even assuming Ext.B1 required registration, the conduct of the parties subsequent thereto is a relevant circumstance to ascertain the factum of partition and separate enjoyment. The trial court failed to advert to these settled principles laid down in Nani Bai (supra), Deo Chand (supra), Munna Lal (supra), Roshan Singh (Supra), and K.B. Saha & Sons (P) Ltd. (Supra), and consequently arrived at an erroneous conclusion.

29. The trial court further omitted to consider the legal consequences flowing from the disruption of the coparcenary and the subsequent statutory abolition of the joint family system. Once Krishna Bhat separated and instituted O.S.No.14 of 1973, there was no presumption that the remaining members continued as a joint coparcenary, and the burden squarely lay on the plaintiff to establish such continued jointness, which he has failed to do. In any event, by virtue of Section 4(1) of the Kerala Joint Hindu Family System (Abolition) Act, 1975, with effect from 01.12.1976, the coparcenary stood statutorily extinguished, and the parties thereafter held the properties only as tenants-in-common. Consequently, the acquisitions made by one tenant-in-common of the share of another did not automatically enure to the benefit of the remaining co-owners. At the highest, if common funds had been utilised, which has not been proved in the present case, the remedy would only be one of accounting and not a declaration that the acquisition became joint property. The trial court also failed to assign any reasons for disregarding the oral and documentary evidence supporting Ext.B1 or the admissions elicited from PW1, thereby rendering its findings unsustainable.

30. Having found that the oral partition dated 01.04.1973 stood proved and was acted upon, and that the plaintiff has failed to establish the existence of common funds or continued coparcenary, the plaintiff cannot claim partition on the footing of one-half share. As the appellants concede, the plaintiff is entitled only to his 11/46 share. Learned Senior Counsel for the appellants submit that which, as far as practicable, 11/46 shares to which the plaintiff is entitled shall be worked out by allotting to him the properties substantially corresponding to the D Schedule of Ext.B1, after excluding the extent already allotted in execution of the final decree in O.S.No.14 of 1973, with any deficiency, if necessary, being adjusted from the remaining available properties in E Schedule of Ext.B1 during the final decree proceedings. It is also submitted that the discrepancies relating to the survey numbers, identity, and extent of the properties based on the records be directed to be ascertained. These are aspects the appellants would be justified in pointing out in the final decree proceedings, and in that event, the Court concerned shall deal with them in accordance with law.

31. The judgment and preliminary decree passed by the trial court are set aside to the extent they declare the plaintiff entitled to one-half share in the plaint schedule properties and treat the acquisitions under Exts.B2 to B4 as acquisitions for the common benefit of all the parties. It is declared that the plaintiff is entitled only to an 11/46 share in the properties available for partition. The preliminary decree shall stand modified accordingly. Consequently, the decree in O.S.No.38 of 1998 granting the injunction shall also stand modified in accordance with the above declaration regarding the respective rights of the parties. The appellants are restrained from committing acts of waste in respect of the plaint schedule properties, except the properties allotted to them under Ext.B1 and the properties acquired by them under Exts.B2 to B4.

The appeals are allowed in part.