Acceptance of a partition deed and a subsequent gift deed precludes a party from later claiming partition rights, confirming the binding nature of such agreements under Section 92 of the Indian Evidence Act.

JUDGMENT :

EASWARAN S., J.

The 1^st defendant in O.S.No.521/2014 before the Principal Munsiff Court, Cherthala is the appellant herein.

2. The brief facts necessary for the disposal of the appeal are as follows:

The plaintiff/sister of the 1^st defendant alleged that execution of a partition deed between the 1^st defendant and 2^nd defendant who is none other than the brother of both the 1^st defendant and the plaintiff who is a deaf and dumb person was inequitable. By virtue of the said partition deed, the plaintiff relinquished the right title and interest over the properties of her father which have devolved upon the plaintiff as well as the defendants. At the same time, the plaintiff concedes that the 1^st defendant had given a gift in respect of certain extent of property by virtue of gift deed No.1426/2011 of Pattanakkad SRO dated 30.10.2011 and that she had mortgaged the above said property with a co-operative bank for securing loan. However, the plaintiff contends that the partition deed No.1347/2004 dated 16.04.2004 was never intended to take effect and it is a sham document and that the plaintiff was made to believe that after the partition deed, her due share will be given by the 1^st defendant, her brother. Finding that the 1^st defendant has rescinded from the assurance, the suit was filed.

3. The defendant contested the suit contending that the plaintiff had relinquished her share over the ancestral property by executing Ext.A1 partition deed and that later the 1^st defendant had executed a Gift deed in her favour which was accepted. Once the Gift deed stood unequivocally accepted by the plaintiff, she has accepted the terms of partition and having relinquished her share, cannot turn around and contend otherwise.

4. Before the trial court, the plaintiff produced Exts.A1 and A2 and examined PWs 1 and 2. On behalf of defendants B1 to B4 were produced and DW1 was examined. Exts.C1 and C1(a) are the report and plan of the Advocate Commissioner.

5. The trial court on appreciation of the oral and documentary evidence, found that in as much as the plaintiff had accepted 6 cents of land forming part of the property comprised in the partition deed No.1347 of 2004 cannot turn around and contend that the entire distribution of the ancestral property is inequitable and that she did not intend to release the right over the property. Accordingly, the suit was dismissed. Aggrieved by the judgment and decree dismissing the suit, the plaintiff preferred A.S.No.59/2018 before the Sub Court, Cherthala. The first appellate court by judgment dated 11.04.2023 reversed the findings of the trial court and decreed the suit and passing a preliminary decree finding that the plaintiff and defendants are entitled for one share each. Aggrieved by the judgment of the lower appellate court allowing the appeal, the 1^st defendant has come up with the present appeal.

6. Heard Sri.K.P. Sreekumar, the learned counsel appearing for the appellant and Dr.V.N.Sankarjee appearing for the 1^st respondent.

7. While admitting the appeal on 27.06.2023, this Court framed the substantial questions of law as raised in the Memorandum of Appeal for consideration. The substantial questions of law framed thus are extracted hereunder:

“(a) When the plaintiff has willfully relinquished her right over the plaint schedule property in favour of the 1^st defendant as per Ext.A1 and this has been accepted and acted upon as per Ext.A2 gift deed will a suit for partition maintainable without setting aside Exts.A1 and A2 documents?

(b) Can a suit be maintained by the plaintiff on a cause of action available only to the 2ⁿ