Point of Law: When a person is not nomine a party to a suit or a document, it is unnecessary for him to have deed or decree annulled, and he can proceed on assumption that there was no such document or decree.

JUDGMENT :

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:

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 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 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 3rd 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 o