C.T. SANKARANARAYANAN NAIR Vs. ACHUTHEN NAIR

JUDGEMENT

(1.) FEELING aggrieved at the rejection of his claim for partition of all except four items in the plaint B schedule the plaintiff has come up with this appeal.The plaint B schedule contained 34 items.The lower court has found that items 8,13,20 and 33 were obtained by the plaintiff 's grand mother 's tavazhi on partition of the main tarwad.A decree for partition and allotment of the plaintiff 's 1/31 share has been granted by the lower court.Item 34 has been found to be the self acquisition of the first defendant.So the plaintiff 's claim for partition of it has been denied.The rest of the B schedule items have been found to be acquisitions in the name of the plaintiff 's grandmother by her husband and as such held to be tavazhi properties.But the plaintiff 's claim for partition over them has been denied to him on the sole ground that he relinquished his claim over them by a registered surrender deed dated 2 -6 -1952.Pending suit the plaintiff 's mother the fifth defendant died and the first defendant,a brother of the plaintiff propounded a will Ext.B14 under which he is made the sole legatee.In this appeal the plaintiff challenges the correctness of the decision of the lower court in respect of the last three points.

(2.) IN the nature of this case it is better to deal with the plaintiff 's case regarding his claim for partition of the properties acquired in the name of the grandmother over which his claim for partition has been denied.The only ground on which it has been denied is that he has surrendered his claim over them as per Ext.B1 dated 2 -6 -1952.The plaintiff - appellant admits that he executed that document and received Rs.1,500/ - to continue his studies.But according to him it does not legally amount to a surrender of his claim over them for more than one reason.Firstly he contends that this document was brought into existence only as a make - believe to pacify the objection of the fist defendant to spent money from the family to further educate the plaintiff.But this case has not been substantiated by the plaintiff.

(3.) BEFORE we consider this ground of attack it is necessary to dispose of an objection taken by the respondents 'counsel,namely that this ground of attack has not been put forward in the lower court or raised in the memorandum of appeal filed before this Court and so cannot be urged at this stage.It is true that this aspect of the matter has not been urged earlier.But as no new facts are required to be investigated or proved and the appellant 's argument is purely based on a reading of Ext.B1 we did feel that this aspect of the matter should be considered and we gave an opportunity to the respondents 'counsel to meet this point and both the counsel have addressed arguments on this aspect of the matter.Under O.41 R.2 the appellants court can permit the appellant to urge in support of the appeal any ground not set forth in the memorandum of appeal.Further in deciding the appeal the appellate court is not restricted to the grounds of objection set forth in the memorandum of appeal or taken by leave of the court.The only requirement of law is that before resting its decision the appellate court should give an opportunity to the person affected to contest the case on that ground.Keeping this rule in mind we have heard the arguments of either side in detail and we now proceed to consider the legal effect of Ext.B1 in the light of the Registration Act.