Transfer of Property Act, 1882 – Sections 3, 35, 43 – Evidence Act, 1872 – Section 115 – Limitation Act, 1963 – Articles 64, 65 – Family Partition – Settlement Deed – Estoppel – Doctrine of Election – Adverse possession – Ouster.
2025 KER 41774 : 2025 (5) KLR 280
HIGH COURT OF KERALA
Easwaran S., J.
RSA No. 748 of 2013; 28 May 2025
The appellant, the second defendant, challenged the concurrent findings of the trial court and first appellate court in a suit for partition of property under a 1939 partition deed (Ext.A1). The High Court held that Ext.A1 was a family settlement deed, estopping the plaintiffs, legal heirs of Kunjiyamma, from claiming inheritance over the share allotted to Karthiayaniyamma. The court found that the plaintiffs’ predecessor, Kunjiyamma, never claimed rights over Karthiayaniyamma’s share, and subsequent transactions (Exts.B7, B10, B11) by Krishnankutty and the first defendant, Ammukutty Amma, were valid, supported by the Doctrine of Election (Section 35, TPA) and feeding estoppel by grant (Section 43, TPA). Constructive notice under Section 3, TPA applied due to registered documents. The court also upheld the plea of ouster, finding exclusive possession by the first defendant since 1960, hostile to the plaintiffs, satisfying requirements under Articles 64 and 65 of the Limitation Act. The decree was not a nullity despite the third defendant’s death, as other legal heirs substantially represented the estate. The suit properties were held not partible. The appeal was allowed, reversing the trial court’s decree dated 21.8.2009 in OS No.1501/2006 and the first appellate court’s judgment dated 31.10.2012 in AS No.53/2010, dismissing the suit.
