A partition suit is not maintainable if the challenge is based on the voidability of a release deed without seeking its cancellation or declaration.

JUDGMENT

Challenging the concurrent findings entered by the Principal Munsiff's Court-II, Kozhikode in O.S.No.865/2008 followed by those of the Additional District Judge-II, Kozhikode in A.S.No.51/2012, the plaintiff has come up in second appeal.

2. The suit is one for partition. The original plaintiff is presently no more. His legal representatives are the present appellants, who are additional plaintiffs 2 to 4. The first defendant is the elder brother of the 2nd defendant and the plaintiff. The plaintiff is younger to the 2nd defendant.

3. The plaint schedule property is having an extent of 22.75 cents of land in Re.Sy.No.23-17-622 of the Panniyankara Amsom in Kozhikode Taluk. The said property was a part of the larger extent of properties originally belonged to the Thavazhy of the parties. Their occurred a partition in the Thavazhy through Ext.A1 in the year 1978 whereby the plaint schedule properties were allotted to the share of the first defendant, 2nd defendant and the plaintiff jointly. Ext.A1 was executed on 27.11.1978 and got it registered on 03.12.1978 only. It was a house registration, since some of the parties to the partition deed were too old, which made them impossible to attend the Sub Registry Office.

4. According to the plaintiff, the first defendant being the elder brother, was looking after the affairs of the plaint schedule properties for and on behalf of the plaintiff and the 2nd defendant also. It is the case of the plaintiff that they continued as tenants in common in respect of the plaint schedule properties. Thereafter, in the year 2008, the plaintiff forwarded a demand for partition and separate possession of his share from the plaint schedule properties. When the first defendant did not heed to the request, Ext.A2 notice dated 22.08.2008 was caused to be issued to the first defendant by the plaintiff thereby demanding partition and separate possession. Ext.A2 invited a response from the first defendant in the form of Ext.B4 reply notice in the month of October, 2008 whereby the first defendant has resorted to a contention that, after the execution of Ext.A1, the plaintiff and the 2nd defendant had executed release deed No.4784 of 1978 of the Chalappuram Sub Registry in favour of the first defendant, on accepting consideration and released the rights and title of the plaintiff and the 2nd defendant over the plaint schedule properties to the first defendant. On getting Ext.B4 reply notice, the plaintiff filed the suit on 26.11.2008.

5. According to the plaintiff, the plaintiff and the 2nd defendant had not jointly or separately executed any release deed on any date on or after the date of execution and registration of the partition deed. The allegations in the reply notice that the share of the plaintiff and the 2nd defendant over the plaint schedule properties was released in favour of the first defendant was specifically denied. According to the plaintiff, the said document styled as release deed is void in law on the reason of fraudulent misrepresentation with respect to the nature and character of the document. It is also pleaded that the said release deed could have been the result of a fraudulent misrepresentation by styling it as portions of the partition deed or it could have been the result of impersonation.

6. The first defendant contended that the plaintiff and the 2nd defendant were not interested in retaining their share in the property on the execution of Ext.A1 partition deed, and they wanted to release their rights over the property to the first defendant for consideration and that the first defendant purchased their shares by paying valid consideration, through the aforesaid release deed. The release deed was registered on the date on which the partition deed was registered. Thereafter, in the year 1991, the first defendant had availed an amount of ₹25,000/- from the Kozhikode Co-operative Urban Bank by mortgaging the plaint schedule properties. Further, in the year 1998, the first defend