IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR WEDNESDAY, THE 30TH NOVEMBER 2011 / 9TH AGRAHAYANA 1933 RSA.No. 24 of 2004() -------------------- AS.272/2000 of I ADDL.DISTRICT COURT, THRISSUR OS.364/1995 of PRL.SUB COURT,THRISSUR .................... APPELLANTS/RESPONDENTS 1 to 4/PLAINTIFF-DEFENDANTS 2 to 4 ------------------------------------------------------------------------------------------------- 1. RAMACHANDRAN, S/O.TACHAMPILLY VELAYUDHAN KAIPPILLY DESOM, VELUTHUR VILLAGE, THRISSUR TALUK.(DIED) LRS IMPLEADED. 2. KARAPPAN , S/O. TACHAMPILLY VELAYUDHAN, KAIPPILLY DESOM, VELUTHUR VILLAGE, THRISSUR TALUK.(DIED) LRS IMPLEADED. 3. DURGAVATHY, D/O. TACHAMPILLY VELAYUDHAN, KAIPPILLY DESOM, VELUTHUR VILLAGE, THRISSUR TALUK. 4. LEELA, D/O.TACHAMPILLY VELAYUDHAN, W/O. CHONKULANGARA KARUNAKARAN, AYYANTHOLE VILLAGE, THRISSUR TALUK.(DIED) ADDL.APPELLANTS A5. AMMINI T.K, W/O.LATE RAMACHANDRAN, THACHAMPILLY HOUSE, ARIMBUR, KAIPPILLY. 6. GIRIJA, W/O.PARAN, OLLEKKADAN HOUSE, ARUMBUR, KAIPPILLY. 7. GEETHA T.R. W/O.SASI, PUTHUVIL PUTHEN VEEDU, ARIMBUR, KAIPPILLY. 8. SADANANDAN T.R. THACHAMPILLY HOUSE, ARIMBUR, KAIPPILLY. 9. VIJAYA T.R. THACHMPILLY HOUSE, ARIMBUR, KAIPPILLY. 10. RAMA.T.R. THACHAMPILLY HOUSE, ARIMBUR, KAIPPILLY. 11. RATHI.T.R. THACHAMPILLY HOUSE, ARIMBUR, KAIPPILLY. 12. ATHIRA, REPRESENTED BY GUARDIAN SADANANDAN T.R. THACHAMPILLY HOUSE, ARIMBUR, KAIPPILLY. 13. VISHNU, REPRESENTED BY GUARDIAN SADANANDAN T.R. THACHAMPILLY HOUSE, ARIMBUR KAIPPILLY. (ADDL.APPELLANTS 5 TO 13 ARE IMPLEADED AS THE LRS OF DECEASED 1ST APPELLANT AS PER ORDER DATED 20.6.2005 ON I.A.1049/05. 14. KARUNAKARAN C.K. S/O.LATE C.C.KRISHNAN CHONKULANGARA HOUSE, P.O.AYYANTHOLE, THRISSUR DISTRICT. 15. INDIRA ARAVINDAKSHAN (DASAN) VALIA PARAMBIL HOUSE, P.O. PUTHOOR THRISSUR DISTRICT. 16. ANITHA JYOTHIBABU, KUNNATH HOUSE, P.O. NATIKA, THRISSUR DISTRICT. 17. SATHEESH C.K. S/O.KARUNAKARAN C.K. CHONKULANGARA HOUSE, P.O. AYYANTHOLE, THRISSUR DISTRICT. (THE LRS OF DECEASED APPELLANT 4 ARE IMPLEADED AS ADDL.APPELLANTS 14 TO 17 AS PER ORDER DATED 23/7/2010 IN I.A.1786/2010. ADDL.18 TO 21 ADDL.A18. SMT.SARASWATHY KARAPPAN W/O.LATE KARAPPAN, THACHAMPILLY HOUSE, ARIMPOOR P.O. TRICHUR DISTRICT.680 620. ADDL.A19. SUNITHA, D/O.LATE KARAPPAN -DO- -DO- ADDL.A20. SINDHU ASOKAN, D/O.LATE KARAPPAN, KANDIRATHI HOUSE, KAIPARAMBU P.O. TRICHUR.680 ADDL.A21. BINDU, D/O.LATE KARAPPAN, THAMPILY HOUSE, ARIMPOOR P.O. TRICHUR DISTRICT.68- 620. (ADDL.APPELLANTS 18 TO 21 ARE IMPLEADED BEING THE LRS OF DECEASED A2 AS PER ORDER DATED 9/.6/2011 IN I.A.1262/2011.) BY ADV. SRI.T.M.CHANDRAN SRI.R.ARUN SRI.S.SUJITH V.A.SASIDHARAN JOSEPH ALBIN NEDUTHALY RESPONDENT(S): APPELLANTS/DEFENDANT NOS.1,5 & 6 -------------------------------------------------------------------------------- 1. RAMAN, S/O. TACHAMPILLY VELAYUDHAN, KAIPPILLY DESOM, VELUTHUR VILLAGE, THRISSUR TALUK. 2. RAVIKUMAR, S/O. TACHAMPILLY RAMAN, KAIPPILLY DESOM, VELUTHUR VILLAGE, THRISSUR TALUK. 3. VALSALA, W/O. TACHAMPILLY RAVIKUMAR & D/O. KARANATH KUMARAN, KAIPPILLY DESOM, VELUTHUR VILLAGE, THRISSUR TALUK. ADV. SRI.G.SREEKUMAR (CHELUR) FOR R2,3 SRI.N.P.SAMUEL FOR R1 THIS REGULAR SECOND APPEAL HAVING BEEN FINALLY HEARD ON 30/11/2011ALONG WITH RSA NO. 52 OF 2004 THE COURT ON THE SAME DAY PASSED THE FOLLOWING: M.SASIDHARAN NAMBIAR,J. =========================== R.S.A. No.24 & 52 OF 2004 =========================== Dated this the 30th day of November,2011 JUDGMENT Plaintiff in O.S.364/1995 is the first appellant in R.S.A.24/2004. Appellants 2 to 4 are defendants 2 to 4. Respondents are defendants 1, 5 and 6 in that suit. Appellants in R.S.A.52/2004 are the defendants in O.S.73/1995. Respondent therein is the Plaintiff. The first respondent in RSA 24/2004 is also the respondent in RSA 52/2004. Appellants 1, 2 and 4 in RSA 24/2004 are the appellants 1 to 3 in RSA 52/2004. First appellant in RSA 52/2004 is the first appellant in RSA 24/2004, who is the sole plaintiff in O.S.364/1995. O.S.364/1995 was filed for partition and O.S.73/1995 was filed for a permanent prohibitory injunction. In O.S.364/1995 there are three items in the RSA 24 & 52 of 2004 2 plaint schedule properties. In O.S.73/1995 though there is only one item, it takes in item No.1 of O.S.364/1995 also. Item No.1 of the plaint schedule property is 1.40 acres in survey No.376 of Veluthur Village. Item No.2 is 60 cents in survey No.228/2 and item No.3 one acre in survey No.408 of the same village. The plaintiff in O.S.73/1995 sought a decree for a permanent prohibitory injunction claiming title and possession under Ext.A7 will executed by Velayudhan. Appellants are claiming that item No.1 of the plaint schedule property is available for partition, contending that it is the property obtained by Ammu, the mother under Ext.B1 assignment of leasehold right. Item No.2 is claimed to be available for partition contending that it was obtained by Velayudhan on leasehold right and on his death, it devolved on his children and therefore plaintiff in O.S.364/1995 is entitled to the share. Item No.3 of the plaint schedule property is sought to be divided contending that it jointly belong to the RSA 24 & 52 of 2004 3 children of Velayudhan, as the property belonged to Velayudhan. Only first respondent and his children resisted the claim for partition. First respondent contended that item No.1 of the plaint schedule properties is not the properties obtained by the mother and it is the property which exclusively belonged to the father Velayudhan and Velayudhan executed Ext.A7 will whereunder he bequeathed the property obtained by him under Ext.A2 purchase certificate, in favour of the first respondent and therefore that property is not available for partition. There was no dispute with regard to item No.3 of the plaint schedule property. It was contended that item No.2 exclusively belong to the first respondent under Ext.A7 will. 2. Learned Munsiff on the evidence upheld Ext.A7 will and found that under Ext.A7 will Velayudhan bequeathed his property shown therein in favour of the first respondent and therefore item No.2 is not available for partition. Learned Munsiff also found that item No.3 of the plaint RSA 24 & 52 of 2004 4 schedule property is available for partition. Learned Munsiff further found that item No.1 of the plaint schedule property is available for partition. Learned Munsiff relied on Ext.C1 report and Ext.C2(a) plan to hold that item No.1 of the plaint schedule property is not the property obtained by Velayudhan under Ext.B5 and that property is the property which lies to the south of item No.1 of the plaint schedule property and therefore item No.1 of the plaint schedule property is available for partition. A preliminary decree was passed in O.S.364/1995 for division of item 1 and 3 of the plaint schedule properties into four equal shares and allotment of one share each to the plaintiff and defendants 1 to 4. Consequent to that finding O.S.73/1995 was dismissed. The decrees were challenged before District Court, Thrissur in A.S.271/2000 and A.S.272/2000. A.S.271/2000 was filed by the plaintiff challenging the dismissal of O.S.73/1995. He along with his children defendants 5 and 6 in O.S.364/1995 filed RSA 24 & 52 of 2004 5 A.S.272/2000 challenging the preliminary decree in respect of item No.1 of the plaint schedule property. Learned District Judge on reappreciation of the evidence found that learned Munsiff was not justified in relying on Ext.C1 report and C1(a) plan. Learned District Judge also upheld Ext.A7 will and held that properties covered under Ext.A7 will which belonged to Velayudhan were bequeathed to the plaintiff in O.S.73/1995 and therefore the said properties are not available for partition. Learned District Judge on appreciation of the evidence found that Commissioner did not identify the property covered under Ext.B1, by which mother Ammu obtained the right, which was sought to be divided by the plaintiff in O.S.364/1995 and the finding of the learned Munsiff that the property covered under Ext.B1 lies to the north of the property covered under Ext.B5 is not in accordance with the evidence. Learned District Judge also found that Velayudhan obtained the jenm right under Ext.A2 purchase certificate. Though plaintiff in RSA 24 & 52 of 2004 6 O.S.364/1995 contended that he was unaware of the purchase certificate obtained by the father,relying on Ext.A4 agreement for partition produced by the plaintiff and taking note of his admission that it was executed by him, though the plaintiff in O.S.73/1995 disputed the execution, held that from the recitals in Ext.A4 the plaintiff in O.S.364/1995 cannot be heard to contend that he was unaware of Ext.A2 purchase certificate. Finding that the case of the plaintiff himself was that the property covered under Ext.A2 is item No.1 of the plaint schedule properties and under Ext.A7 will that properties were bequeathed in favour of the first respondent, learned District Judge found that the decree for partition of item No.1 of the plaint schedule properties is not sustainable. Hence both the appeals were allowed. The preliminary decree passed in respect of item No.1 of the properties in O.S.364/1995 was set aside, confirming the preliminary decree in respect of plaint schedule item No.3. A decree for injunction was also RSA 24 & 52 of 2004 7 granted in O.S.73/1995. The Second Appeals are filed challenging the said decree. 3. The appeals were admitted formulating the following substantial questions of law. (1)Whether the interpretation of documents like Ext.B1, B2 and B5 given by the Lower Appellate Court is correct and legal. (2) Whether a purchase certificate issued without notice to the co-owners can be treated as a conclusive proof with respect to the ownership and possession of the properties. (3) Whether Lower Appellate Court can remand the case for proper identification of property especially when both parties have filed suits RSA 24 & 52 of 2004 8 claiming one and the same property? 4. Learned counsel appearing for the appellants and the respondents were heard. 5. There is no dispute with regard to the relationships of the parties. Velayudhan and Ammu are husband and wife. Plaintiff and defendants 1 to 4 in O.S.364/1995 are their children. Ammu died in 1129 M.E. Velayudhan died on 3.12.1994. Though Velayudhan had married Ammini thereafter she admittedly died in 1991 issueless. According to appellants in R.S.A.24/2004, the plaintiff and defendants 2 to 4 in O.S.364/1995, who claimed item No.1 of the plaint schedule properties was available for partition, would contend that on the death of Ammu her right devolved on her husband Velayudhan and children plaintiff and defendants 1 to 4 and on the death of Velayudhan, his rights also devolved on the children and therefore item No.1 of the plaint schedule property is to be divided into five shares and one such share is to RSA 24 & 52 of 2004 9 be allotted to the appellants. The claim for item No.1 of the plaint schedule property was based on Ext.B1 assignment deed of the leasehold right obtained by Ammu in 1113 M.E. Subsequent to the death of Ammu, Ext.B2 mortgage was executed by the husband and children of Ammu, later, indicating that her right devolved on her husband and children. In the plaint itself it was contended that subsequent to the death of the mother without the knowledge of the children, Velayudhan the father obtained Ext.A2 purchase certificate in respect of item No.1 of the plaint schedule properties and Velayudhan had only a fractional right over the property as it was obtained by Ammu and on her death it devolved on her legal heirs including the children and therefore Ext.A2 purchase certificate shall enure to the benefit of all the legal heirs. Respondents in RSA 24/2004 who resisted the claim for partition of item No.1 of the plaint schedule properties did not raise a specific plea in written statement that the RSA 24 & 52 of 2004 10 property covered under Ext.B1 is not available for partition. At the time of evidence an attempt was made to show that the property covered under Ext.B1 was divided orally between the sharers and therefore it is not available for partition. But no evidence was adduced to prove any such oral partition. Case of the respondents was that item No.1 of the plaint schedule properties is the property belonging to Velayudhan, who purchased the jenm right under Ext.A2 purchase certificate and it was bequeathed under Ext.A7 to the first respondent and therefore item No.1 of the plaint schedule properties is not available for partition. 6. Learned Munsiff found that item No.1 of the plaint schedule property is available for partition based on the identification of the property covered under Ext.B5 deed of assignment of leasehold right obtained by Velayudhan. As rightly found by the learned District Judge though the Commissioner reported that he identified the property covered under Ext.B5 and it is the southern plot A shown in RSA 24 & 52 of 2004 11 Ext.C1(a) plan, the Commissioner did not identify the property covered under Ext.B1. In fact the appellants claim partition of item No.1 of the plaint schedule properties on the specific plea that it is the property obtained under Ext.B1 by the mother and the father obtained a purchase certificate in respect of the said property later without the knowledge of the children and therefore the purchase certificate shall enure to the benefit of all. 7. Ext.A7 will executed by the father whereunder his properties shown therein were bequeathed to the first respondent only show that the property shown thereunder are inclusive of the property covered under Ext.A2 purchase certificate, which is having an extent of 1.33 acres. Ext.A7 does not show that the property for which jenm right was purchased under Ext.A2 purchase certificate, is the property covered under Ext.B5. Therefore by identifying the property covered under Ext.B5, even if the identification made by the RSA 24 & 52 of 2004 12 Commissioner is correct, it cannot be found that the property covered under Ext.A2 is not item No.1 of the plaint schedule properties. It is more so when the specific case of the plaintiff himself was that the property covered under Ext.A2 is item No.1 of the plaint schedule properties which was obtained by the mother under Ext.B1. There was no case for the plaintiff even when he was examined as DW1 that the property covered under Ext.A2 purchase certificate is not item No.1 of the plaint schedule properties. It was unambiguously deposed by DW1, the plaintiff in O.S.364/1995, that item No.1 of the plaint schedule properties in O.S.364/1995 is the property for which the father obtained Ext.A2 purchase certificate. In such circumstances, based on the identification made by the Commissioner as shown in Ext.C1 report and C1(a) plan, it cannot be found that item No.1 of the plaint schedule properties is not the property covered under Ext.A2 purchase certificate. As rightly found by the learned District Judge when the property covered RSA 24 & 52 of 2004 13 under Ext.B1 was not identified by the Commissioner with reference to the boundaries or extent shown in Ext.B1, it cannot be found that the northern plot C, marked in Ext.C1(a) plan, is the property covered under Ext.B1. So also the finding of the first appellate court that the Commissioner has not properly identified the property covered under Ext.B5 is also correct. On a perusal of Ext.B5 and the property identified by the Commissioner as plot A in Ext.A1, would establish that the property covered under Ext.B5 was not properly identified. 8. The argument of the learned counsel appearing for the appellants is that in such circumstances it is necessary to remand the suit to the trial court to identify the property covered under Ext.B1 as it is admittedly obtained by the mother and on her death it devolved on the children and Velayudhan and on the death of Velayudhan his rights would also devolve on the children. Learned counsel also argued that when the plaintiff in O.S.73/1995 was examined as PW1, he deposed that he RSA 24 & 52 of 2004 14 has no objection for dividing item No.1 of the plaint schedule properties in O.S.364/1995 and in such circumstances the decree is unsustainable. 9. The preliminary decree for partition in respect of item No.3 of the plaint schedule property which was confirmed by the first appellate court is not challenged. Therefore it has become final. The finding of learned Munsiff that item No.2 of the plaint schedule property is not available for partition, was not challenged by any of the parties, in the first appeal. Hence that finding has also become final. The only question that remains is with respect to item No.1 of the plaint schedule properties. Though the learned counsel appearing for appellants argued that Ext.A7 will was not proved, when based on Ext.A7 will, item No.2 was already excluded by the learned Munsiff and it was not challenged by the plaintiff or the other defendants before the first appellate court they are not entitled to contend that Ext.A7 is not proved. Even otherwise, based on the RSA 24 & 52 of 2004 15 evidence, courts below rightly found that Ext.A7 will was voluntarily executed by deceased Velayudhan and it is the last will and testament and thereunder the rights of Velayudhan shown in Ext.A7 were bequeathed to the first respondent. The appellants cannot now dispute it. 10. As stated earlier, appellants even in the plaint and at the time of evidence contended that item No.1 of the plaint schedule properties is the property covered under Ext.B1 and father Velayudhan obtained Ext.A2 purchase certificate in respect of the said property. The respondents on the other hand, contended that item No.1 of the plaint schedule properties is the property covered under Ext.A2 and not the property covered under Ext.B1. First appellate court unfortunately did not consider this aspect and held that the property covered under Ext.B1 was not identified and dismissed the claim for partition of item No.1 of the plaint schedule property. As rightly pointed out by learned counsel appearing for appellants and RSA 24 & 52 of 2004 16 respondents, at the time of evidence, first appellant as DW1 admitted that item No.1 of the plaint schedule properties is the property covered under Ext.A2 purchase certificate. So also as PW1, first respondent has also admitted that item No.1 of the plaint schedule properties is the property covered under Ext.B1. But based on this evidence alone, it cannot be found that item No.1 of the plaint schedule properties is the property covered under Ext.B1 or under Ext.A2. If item No.1 of the plaint schedule properties is the property covered under Ext.B1, as under Ext.B1, it was Ammu, who obtained the property, on her death, it devolved on Velayudhan and his five children. Therefore, each of them is entitled to 5/30 shares. Therefore, if that property is not the property covered under Ext.A2, in the absence of a case for the respondents that the property covered under Ext.B1 is not available for partition, on the death of Velayudhan, his 5/30 shares would devolve on all his children and each of them will be entitled to RSA 24 & 52 of 2004 17 1/30 shares in addition to their 5/30 shares. At the same time, if the property covered under Ext.A2 purchase certificate is also the same property covered under Ext.B1, then by virtue of Ext.A7 will executed by Velayudhan, his 5/30 shares will go to only the first respondent and others will not be entitled to get a share. Hence, the entire question would depend upon the identity of item No.1 of the plaint schedule properties. In such circumstances, without proper identification of the property covered under Ext.B1 and Ext.A2 a preliminary decree in respect of item No.1 cannot be passed. Unfortunately, the application filed by the plaintiff before the learned Munsiff to identify the property covered under Ext.B1 was seen dismissed for the reason that both properties are different. If item No.1 of the plaint schedule properties is the property covered under Ext.B1 and it is not covered under Ext.A2, then each of the plaintiff and defendants are entitled to 6/30 shares. On the other hand, if item No.1 of the RSA 24 & 52 of 2004 18 plaint schedule properties is the property covered under Ext.B1 and also under Ext.A2, then first respondent alone will be entitled to 5/30 shares due to Velayudhan, under Ext.A7 will. If so the plaintiff and defendants 2 to 4 will only be entitled to their 5/30 shares each and the first defendant will be entitled to 10/30 shares. If item No.1 of the plaint schedule properties is not the property covered under Ext.B1 deed of assignment of lease-hold right, unless plaint is amended and the property if any so identified is shown as one of the plaint schedule properties, a preliminary decree cannot be passed. It is made clear that item No.1 of the plaint schedule properties could be found available for partition, only if it is the property covered under Ext.B1. In the light of the said findings, both the suits are to be remanded for fresh disposal in accordance with the directions given earlier. 11. Appeals are allowed. The preliminary decree in respect of item No.1 of the plaint schedule RSA 24 & 52 of 2004 19 properties in O.S.364 of 1995 is set aside and O.S.364 of 1995 is remanded to Sub Court, Thrissur for fresh disposal. The preliminary decree for division of item No.3 and non availability of plaint schedule item No.2 are final. Learned Sub Judge shall appoint a Commission with specific direction to identify the property covered under Ext.B1 as well as Ext.A2. Parties are permitted to produce any other material including the application filed before the Land Tribunal, based on which Ext.A2 purchase certificate was issued or its order, which may be helpful to identify the property covered under Ext.A2. If on such identification, it is found that item No.1 of the plaint schedule properties is the property covered under Ext.B1 and not under Ext.A2, a preliminary decree is to be passed directing division of 30 shares and allotment of six such shares to each of the plaintiff and defendants. On the other hand, if it is found that item No.1 of the plaint schedule property is the property covered under Ext.B1, as RSA 24 & 52 of 2004 20 also Ext.A2, then the preliminary decree is to be passed directing division of the property into 30 shares and allotment of five share each to plaintiff and defendants 2 to 4 and 10 shares to the first defendant. If it is to be found that item No.1 of the plaint schedule property is not covered under Ext.B1, a preliminary decree cannot be passed. If it is found that property covered under Ext.B1 is not item No.1 of the plaint schedule property and another property which was identified, opportunity is to be granted to amend the plaint seeking division of the said property in which case, each plaintiff and defendants 1 to 4 will be entitled to 6/30 shares. Expenses for the commission is to be met by the plaintiff. The decree in O.S.73 of 1995 as confirmed by the learned District Judge in A.S.271 of 2000 is also set aside and that suit is also remanded to learned Sub Judge for fresh disposal in accordance with the findings in respect of item No.1 of the plaint schedule property in O.S.364 of 1995. Parties are RSA 24 & 52 of 2004 21 directed to appear before learned Sub Judge on 20.12.2011. Send back the records immediately. M.SASIDHARAN NAMBIAR, JUDGE tpl/lgk M.SASIDHARAN NAMBIAR, J. --------------------- W.P.(C).NO. /06 --------------------- JUDGMENT SEPTEMBER,2006