IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR TUESDAY, THE 26TH JULY 2011 / 4TH SRAVANA 1933 RSA.No. 359 of 2011() --------------------- AS.142/2008 of ADDL. DISTRICT COURT, THALASSERY OS.141/2004 of SUB COURT, PAYYANNUR .................... APPELLANT/PETITIONER: ----------------------------------------- KOLLAM VALAPPIL GOVINDAN, S/O.LATE RAMAN, KARIMKAYAM, THIMIRI AMSOM, THE THADIKKADAVU DESOM, P.O.THADIKKADAVU, THALIPARAMBA TALUK. BY ADV. SRI.K.V.PAVITHRAN SRI.JAYANANDAN MADAYI PUTHIYAVEETTIL SRI.ANIL.D.KAITHAKKAL RESPONDENT: --------------- KOLLAM VALAPPIL AMBU, S/O.LATE RAMAN, AGED 76 YEARS, KARIMKAYAM, THIMIRI AMSOM, THALIPARAMBA DESOM, THALIPARAMBA TALUK. THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 26/07/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: M.SASIDHARAN NAMBIAR, J ........................................... RSA No.359 of 2011 ............................................ DATED THIS THE 26th DAY OF JULY, 2011 JUDGMENT Defendant in O.S.141 of 2004 on the file of Sub Court, Payyannur is the appellant. Plaintiff is the respondent. Respondent instituted the suit seeking partition and separation of his share. Plaint schedule property admittedly originally belonged to Padappengad Devaswom and it was obtained on lease by Valiya Veettil Raman. Appellant and respondent are the only children of Raman. Respondent would contend that in 1959, Raman, the father, orally entrusted the plaint schedule property in favour of the children and while they were in possession of the property as tenants, O.A.23671/75 was filed before the Land Tribunal, Payyannur for purchase of jenmom right. Under Ext.A2, jenmom right was assigned in their favour. Ext.A1 purchase certificate was also issued. Hence the plaint schedule property is available for partition and it is to be divided into two shares and one share is to be alloted to respondent. Appellant resisted the suit admitting that the property originally belonged to Raman but RSA 359/2011 2 denying that there was an oral entrustment. It was contended that Raman has been in possession of the property till 1996 when under Ext.B1 gift deed dated 3.12.1996, father transferred the property in favour of the appellant and since then appellant alone has right and title to the property. It was also contended that the purchase certificate obtained by the respondent is not valid and binding on the appellant or the plaint schedule property and it was fraudulently obtained by the respondent and SM 281/02 was initiated before the Land Tribunal for purchase of jenmom right and it is pending and therefore the plaint schedule property is not available for partition. 2. Learned Sub Judge on the evidence, accepted the case of the respondent and found that plaint schedule property jointly belongs to the appellant and respondent and it is available for partition. A preliminary decree was passed. Appellant challenged the decree and judgment before Additional District Court, Thalassery in A.S.142 of 2008. Learned Additional District Judge, on re-appreciation of the evidence, confirmed the findings of learned Sub Judge and dismissed the appeal. It is challenged in RSA 359/2011 3 the second appeal. 3. Learned counsel appearing for appellant was heard. The argument of the learned counsel is that there is no evidence to substantiate the case of the respondent that there was an oral entrustment of the property in favour of respondent and appellant in 1959 which was denied by the appellant. The learned counsel would argue that before the first appellate court, appellant had produced a copy of deed of renewal of the lease by the father in 1969 which establishes that the father continued to be a tenant and if there was an entrustment in favour of the children, the father would not have renewed the lease in 1969 and for that sole reason, the case of the respondent is to be disbelieved. Learned counsel also pointed out that before the first appellate court, appellant had produced copy of the original application filed before the Land Tribunal for purchase of jenmom right and though Ext.A2 order shows that the appellant is also one of the applicants in the O.A proceedings, the copy of the application produced would show that appellant did not affix his signature in the application and therefore it should have been RSA 359/2011 4 found that Ext.A2 order or A1 purchase certificate are not binding on the appellant. Learned counsel also argued that according to the evidence of PW1, the O.A proceedings were initiated by the appellant, which cannot be true as even her signature is not available in the application. Learned counsel also argued that the conclusiveness provided under Section 72K of Kerala Land Reforms Act is available only if the appellant was also a party to the O.A proceedings and when the property was obtained on lease by the father and the lease was renewed by the father even after the alleged date of the entrustment to the children and the purchase certificate was obtained without impleading the father, respondent could not have claimed any right in the property as under Ext.B1 gift deed executed by the father in favour of the appellant, appellant alone has right and title to the property and therefore the preliminary decree is not sustainable. 4. On hearing the learned counsel, I do not find any substantial question of law involved in the appeal. Though appellant is challenging the validity of Ext.A2 order of the Land Tribunal assigning the jenmom right jointly in favour of the RSA 359/2011 5 appellant and respondent and Ext.A1 purchase certificate issued pursuant to Ext.A2 order, appellant himself has produced Ext.B2, an agreement for sale executed by the respondent in his favour subsequent to the execution of Ext.B1 gift deed. Ext.B2 establishes that recognizing the right jointly obtained under O.A.23671/75, appellant agreed to purchase the right of the respondent for a consideration of Rs.40,000/- and in the presence of witnesses, got the agreement executed by the respondent agreeing to assign his rights in the property. If Ext.A1 purchase certificate is vitiated by fraud as canvassed by the appellant and was obtained without his consent or knowledge and there was no entrustment of the property by Raman in favour of the respondent and the appellant, when under Ext.B1 gift deed, the father gifted the property to the appellant alone, respondent would not have any right or title to the property. If that be so, appellant would not have agreed to purchase the right of the respondent and that too for Rs.40,000/-. When under Ext.B2 agreement produced by appellant himself, he agreed to purchase the right of the respondent obtained under Ext.A1 purchase RSA 359/2011 6 certificate, appellant cannot contend that Ext.A1 purchase certificate is vitiated by fraud as canvassed by him. 5. On going through the judgments of the courts below, it is clear that the property originally belonged to the father on the tenancy right under Ext.A2 order, the jenmom right was assigned by the Land Tribunal, jointly in favour of the respondent and appellant and both are entitled to equal shares. It is admitting and recognizing the one half right of the respondent, appellant made the respondent to execute Ext.B2 agreement. Hence courts below rightly found that plaint schedule property is available for partition and respondent is entitled to get his half share separated. The appeal is dismissed. M.SASIDHARAN NAMBIAR, JUDGE lgk