Point of Law: Section 45 of TP Act provides joint transfer for consideration.

JUDGMENT :

This regular second appeal has been filed under order XLII Rule 1 read with Section 100 of the Code of Civil Procedure (“CPC” hereinafter) challenging the decree and judgment in A.S. No.2 of 2019 dated 31.08.2022 on the files of the Court of the Subordinate Judge, Ottapalam arose from decree and judgment in O.S. No.328 of 2015 dated 30.10.2018 on the files of the Munsiff Court, Ottapalam. The appellant herein is the defendant and the respondent is the plaintiff in O.S. No. 328 of 2015.

2. Heard both sides in detail, perused the lower court records and the decisions placed by the learned counsel for the appellant/defendant.

3. Parties in this appeal shall be referred as “plaintiff” and “defendant” with reference to their status before the trial court.

4. Facts in brief:

The plaintiff filed suit demanding partition of the plaint schedule property on the assertion that the plaintiff and defendant jointly purchased the same by virtue of Jenm assignment deed No.3194/1985 of SRO, Ottapalam. According to the plaintiff, the plaintiff prayed for partition of the plaint schedule property into two shares and to get half share separately allotted to him.

5. The defendant filed written statement and raised contention that the plaint schedule property was purchased by sharing purchase money in the ratio 9:6 and therefore, the plaintiff would get only 6/15 shares and the defendant would get 9/15 shares. In this regard, an agreement executed after the execution of assignment deed had been given emphasis.

6. The trial court recorded evidence after raising necessary issues. PW1 examined and Exts.A1 and A2 marked on the side of the plaintiff. DW1 examined and Exts.B1 to B3 marked on the side of the defendant.

7. The trial court upheld the contention raised by the defendant and granted preliminary decree of partition and accordingly it was held that the plaintiff would get 6/15 shares and the defendant would get 9/15 shares out of the plaint schedule property.

8. The verdict of the trial court was challenged before the Appellate Court by filing A.S. No.2 of 2019. The Appellate Court reversed the finding of the trial court and held that the plaint schedule property is liable to be partitioned into two equal shares and 1/2 share would go to the plaintiff and 1/2 share would go to the defendant.

9. At the time of admission, as per the order dated 08.03.2023, my learned predecessor formulated one substantial question of law as under:

1. Whether the parties are bound by the terms in Ext.B2 agreement?

10. In answer, while espousing reasons to accept Ext.B2, the learned counsel for the defendant submitted that even though Ext.B2 is an agreement executed after the execution of Ext.A1 confining joint ownership in the name of plaintiff and defendant, the same is a document of 30 years old and when the plaintiff also admitted the signature therein, the same should be given predominance over Ext.A1 and if so, the share contributed by the plaintiff for the purchase of the plaint schedule property is 6/15. As such the trial court rightly granted the decree accepting the contention of the defendant. However, the Appellate Court, on wrong appreciation of facts, evidence and law on the point, reversed the verdict without any justification and by giving emphasis to Ext.B2, the trial court verdict is to be restored reversing the decree and judgment of the Appellate Court.

11. The learned counsel for the defendant read out the narration in Ext.B2, the agreement allegedly executed between the plaintiff and defendant, pursuant to the execution of Ext.A1 jenm assignment deed and also pointed out the impact of Section 45 of the Transfer of Property Act, 1882 in view of Ext.B2. A decision of the Allahabad High Court reported in [1982 KHC 1122 : AIR 1982 All. 273] Mohan Lal v. Board of Revenue, U.P. Allahabad and Others has been placed to contend that in view of the mandate under Section 45 of the Transfer of Property Act, 1882 (hereinafter referred as ‘TP Act’ for short),