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2025 Supreme(Online)(Ker) 68327
IN THE HIGH COURT OF KERALA AT ERNAKULAM
Easwaran S., J
JOHN PAUL ALUMKAL – Appellant
Versus
CARDINAL PADIYARA PUBLIC SCHOOL – Respondent
RSA NO. 594 OF 2025
For the Appellants/Petitioners: SRI. JOHN PAUL ALUMKAL (PARTY-IN-PERSON)
A plaintiff's failure to provide testimony and accept prior settlements impacts their claims in court.
Headnote:The dispute arose from a suit filed for declaration and monetary relief concerning a school, established by the appellant's father, with contention over a 2004 agreement. The courts found the appellant is estopped from claiming further rights, given he accepted prior settlement. The Court held that certain agreements require registration and plaintiff's failure to testify adversely affected his claims. The Court concluded that no substantial questions of law were raised warranting further proceedings.
JUDGMENT
This appeal is filed by the appellant aggrieved by the concurrent findings rendered by the Principal Sub Court, Kottayam in O.S. No. 486 of 2010 confirmed by the Addl. District Court – I, Kottayam in A.S. No. 32 of
2024.
2. The brief facts necessary for the disposal of the appeal are as follows:
2.1. The appellant/plaintiff had filed a suit for declaration, realization of money, permanent prohibitory injunction and mandatory injunction and for settlement of accounts. According to the plaintiff, a school was established by his father Paul J. Alumkal. For construction of the school building, the 2nd defendant transferred 1.927 acres of property in the name of the school. The entire expenses for construction of the school and purchase of equipment etc. were met by his father. Since the 2nd defendant had no experience in running a school, the experience of his father as a teacher at A.K.J.M School, Kanjirappally was utilized and he was appointed as the first Principal of the school and continued till his death. Based on the contributions by his father, on 10.04.2004, an agreement was executed between his father and the 2nd defendant by which the father was conferred with 1/3 share. On 23.09.2008, another agreement was executed between them agreeing to give his father Rs. 20,00,000/- towards the amount borrowed from him including the arrears of salary. According to the plaintiff, the agreement dated 23.09.2008 is executed by fraud on his father as his father was shown as loanee and a staff of the school. Since the plaintiff has 1/3 share over property by virtue of his derivation of the right in favour of the father and thereafter, consequent to the death of his father, the suit was instituted.
2.2. The defendants resisted the suit contending that the plaintiff has no right to seek any relief based on the agreement dated 10.04.2004. In fact, the execution of the agreement was denied, and it was stated that no amount was due to the father except the amount of Rs. 20,00,000/- which was received by the plaintiff himself. The plaint schedule property is exclusively belonging to a Trust by virtue of a Trust Deed executed in the year 2013. Between the parties, there was another suit before the Court as O.S. No. 34 of 2017 for partition and a preliminary decree was passed and challenging the same, an appeal is pending as A.S. No. 72 of 2022. The parties in the above suit are also necessary parties in the present suit and their non-impleadment is fatal to the case. The plaintiff filed a replication contending that the registration of the agreement dated 10.04.2004 is not required. Since the plaintiff has not been paid the share in the school for the past 14 years, the suit is perfectly maintainable.
2.3. On behalf of the plaintiff, PW1 to PW4 were examined and Exts. A1 to A7 documents were marked. On behalf of the defendants, the 2nd defendant was examined as DW1 and Ext. B1 Trust Deed was marked.
Ext. X1 was marked as third party exhibit.
2.4. The Trial Court on appreciation of the oral and documentary evidence has held that since the plaintiff has not mounted the box and had tendered evidence through PW1, the Power of Attorney, who does not have any acquaintance with the facts stated in the plaint, and further that since the plaintiff has received the amount of Rs. 20,00,000/- pursuant to the agreement dated 23.09.2008, he is estopped from claiming otherwise. It was further held that the Trust property is not partible and, therefore, the plaintiff cannot claim any further rights in the property. Aggrieved, the plaintiff preferred A.S. No. 32 of 2024. The First Appellate Court found that since the plaintiff has not proved Ext. A3, and that he has further received consideration in pursuance to the agreement dated 23.09.2008, he is estopped from claiming otherwise and accordingly dismissed the appeal. Aggrieved by the dismissal of the appeal by the First Appellate Court, the present appeal is preferred.
3. Heard Sri. John Paul Alumkal, wh
