Co-Owner's Undertaking To Accept “Whatever Amount” On Future Sale Cannot Bar Statutory Right To Partition: Kerala High Court

The Division Bench of Justice Sathish Ninan and Justice P. Krishna Kumar delivered the judgment in a regular first appeal, affirming a preliminary decree for partition passed by the Principal Sub Court, Palakkad.

The case arose from a partition suit filed by a sister against her brother over properties inherited from their deceased parents. Initially, the plaint schedule comprised six items of immovable property.

During the pendency of the proceedings, the plaintiff withdrew the claim regarding Item No. 1 due to proceedings under the Kerala Forest (Vesting and Management of Ecologically Fragile Lands) Act, 2003; while items 2 to 5 were jointly sold by the parties. The dispute narrowed down to item 6.

The defendant relied on Ext.B1, an undertaking allegedly executed by the plaintiff during the pendency of the suit. Under this document, the plaintiff stated that she would accept whatever amount the defendant gives her when the property is sold.

The defendant argued that this undertaking barred the plaintiff from seeking partition.

The Court thus examined whether the Ext. B1 undertaking precludes the plaintiff from seeking partition of the property.

The Court noted that the undertaking was contingent upon the future sale of the property. However, no time limit for sale was specified and even four years after execution, the property had not been sold.

Referring to Section 35 of the Indian Contract Act and the decision in HPA International v. Bhagwandas Fateh Chand Daswani [(2004) 6 SCC 537], the Court held that since the defendant had not sold the property within a reasonable period and might even choose not to sell it at all the arrangement could not be relied upon to defeat the plaintiff's claim.

“The defendant having not sold the property within a reasonable period, it is to be treated that the contract has become void.” Court held.

The Court noted that the Ext. B1 undertaking did not specify any definite amount payable to the plaintiff, any method for determining the amount or any objective standard for payment.

Instead, the document stated that the plaintiff would accept “whatever amount” the defendant chose to give.

The court held that such a term is uncertain and incapable of being made certain, attracting Section 29 of the Indian Contract Act, which renders agreements with uncertain meaning void.

The Court relied on Keshavlal Lallubhai Patel and Ors. v Lalbhai Trikumlal Mills Ltd. [AIR 1958 SC 512] and Kalappa Devara v Krishna Mitter[AIR 1945 Mad. 10] which established that agreements lacking definite or determinable terms are unenforceable.

“Under Ext.B1, there is no certainty with regard to the amount. The quantum is left to the sweet will of the defendant. The term is not certain, nor is it capable of being made certain. It is also to be noticed that, the plaintiff could not have enforced the agreement since the term is vague and uncertain, and could not have been made certain.” Court observed.

The Court thus held that the Ext. B 1 undertaking cannot be maintained to negate the plaintiff's claim for partition and dismissed the appeal.

Case Title: Sheno Sebastian v Smitha Maxon

Case No: RFA 17/ 2025

Citation: 2026 LiveLaw (Ker) 148

Counsel for Appellant: S Sujin, Nita N S, T N Girija, Pooja Surendran, N Bharat, B Bilwin, Renu B Raju, Rajeesh K R

Counsel for Respondent: B Jayasanker