IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.BHAVADASAN THURSDAY, THE 14TH JANUARY 2010 / 24TH POUSHA 1931 AS.No. 801 of 1999(A) --------------------- OS.177/1996 of SUB COURT, PALA .................... APPELLANT/DEFENDANT : ------------------------------------ MRS.LILLY DEVASSIA, W/O.DEVASSIA KOCHUPURACKAL, ATHIRAMPUZHA KOTTAYAM TALUK & DISTRICT BY ADV. SRI.MATHEW JOHN (K) RESPONDENTS/PLAINTIFFS 2 TO 9: ----------------------- 1. T.H.SHAMSUDEEN, S/O.LATE HAJI T M HASSAN RAWTHER HASSAN MANZIL, ATHIRAMPUZHA PO, KOTTAYAM 2. T H BALKESE, W/O.M ABDUL KAREEM BEENA MANZIL, THEVALLY, KOLLAM 3. T.H.AYSHA BEEVI, W/.O.ABDUL LATHIF, VALAYIL, ALUMPEEDIKA PO, OCHIRA 4. T H HYRUNNISA, W/O.DR.MUHAMMED HUSSAIN PAZHA, DISTRICT HOSPITAL QUARTERS, MANCHERI 5. T H MOOSA, S/O.LATE HAJI TM HASSAN RAWTHER NAYAR MANZIL, PALLITHOTTAM, KOLLAM 6. T H BADRUDEEN, S/O.-DO- TARIQ MANZIL, KALOOR, KOCHI 17 7. T H MOHAMMED ALI, S/O.LATE -DO- MEHER FABRICATIONS, SRM ROAD, COCHIN 8. T H FATHIMA BEEVI, W/O.LATE A B SAYEED MOHAMMED, PULLEPADY CHITTOOR ROAD, ERNAKULAM, COCHIN 18 AS NO.801/99 -2- 9. T H JAMEELA BEEVI, W/O.K B BAVA, KACHERIPADY ERNAKULAM COCHIN 18 10. T H HAJIRA BEEVI, RAHAMANSA, KALOOR, COCHIN 11. T H SULEKAH BEEVI W/O.P I M KASEEM, HILL TOP BUNGLOW AMMENCHERY, AMALAGIRI PO 12. T H NOORJAHAN, W/O.K M SALIM KALLUMKAL, CHIRAKKADAVU PO KANJIRAPPALLY ADV. SRI.ASP.KURUP FOR R1,2, & 4 SMT.SANDHYA DEVI FOR R1,2 & 4 THIS APPEAL SUITS HAVING BEEN FINALLY HEARD ON 07/01/2010, THE COURT ON 14.01.2010 DELIVERED THE FOLLOWING: P.BHAVADASAN, J. ------------------------------------ AS No.801 of 1999 ------------------------------------ Dated 14th January 2010 Judgment The first defendant in OS No.177/96 before the Sub Court, Pala, which was a suit for partition, is the appellant. The parties and facts are hereinafter referred to, as they are available before the Trial Court. 2. It is not in dispute that the properties originally belonged to late Haji T.M.Hassan Rawther, who is the father of the plaintiffs and defendants 2 to 9. He died on 24.04.1988. The plaintiffs and defendants 2 to 9 are his legal heirs and they follow the Hanafi Law of inheritance. The share of the widow is 16/128, that of the four sons, it will be 14/128 and for eight daughters, it is 7/128. The plaintiffs claimed that after the death of Rawther, they are in joint possession and enjoyment of the property along with the co-owners. On 21.12.1991, defendants 2 to 8 and the mother of Fathima Beevi executed a sale deed in favour of the first defendant, assigning their rights over the property. Later, the 9th defendant also assigned his right in the AS 801/99 2 property to the first defendant. The mother of the plaintiffs and defendants died on 04.10.1992. Claiming respective shares, the suit was filed. It was also pointed out that they were entitled to mesne profits @ Rs.2,187.50 ps. per annum with 18% interest. 3. Defendants 1 and 3 alone contested the suit. According to them, the property is not partible. At the time of death of Rawther, there were huge liabilities outstanding against him, including sales tax arrears. The legal heirs of Rawther jointly decided that the plaint schedule property, which is a paddy field, be sold and proceeds be utilised for discharging the sales tax arrears. This decision was taken in the presence of Adv.Mr.M.K.Mustaffa Kani Rawther. Accordingly, the plaint schedule paddy field was given possession to the first defendant and an agreement in writing, was signed by all the legal heirs. Consequent upon the sale deed, the first defendant and her husband made valuable improvements in the property. Alienations were also made by them. This defendant would contend that the assignment was made in her favour with the knowledge and consent of all the legal heirs and the plaintiffs cannot resile from the same. The paddy field was converted into a pakka garden land and vast improvements were made by the first defendant in the said property. AS 801/99 3 The improvements were made by the defendant, bona fide believing that she was entitled to do so. It was pointed out that under the above circumstances, the plaintiffs were not entitled to any reliefs. As alternative contention, it was pointed out that in case the Court finds the plaint schedule property to be partible, the first defendant be given the value of improvements. It was also pointed out by her that the suit was bad for partition. Therefore, she prayed for dismissal of the suit. 4. The contentions raised by the third defendant were almost same as that of the first defendant and therefore, they need not be repeated. 5. The Court below raised necessary issues for consideration. The evidence consists of the testimony of PW1 and Ext.A1 marked from the side of the plaintiffs. The defendants examined DW1 and marked Exts.B1 to B4(g). On a consideration of the materials before it, the Court below came to the conclusion that the claim of the first defendant that the plaint schedule property is not partible, cannot be accepted. 6. The preliminary decree as prayed for was passed. The said decree is assailed in this Appeal. The question that arises for AS 801/99 4 consideration is whether interference by this Court is called for with the Judgment of the Court below. 7. That the property originally belonged to late Haji T.M.Hassan Rawther, is a matter not in dispute. So also, that the plaintiffs and defendants 2 to 9 are his legal heirs. It is also not in dispute that a few of the legal heirs had executed Exts.B1 and B2 sale deeds dated 21.12.1991 in favour of the first defendant. By virtue of those sale deeds, the first defendant has come into possession of the plaint schedule property. According to the first defendant, those sales were effected by the legal heirs of Rawther, in pursuance of the joint decision taken by them. They had decided to sell the paddy field and to utilise the proceeds thereof, to wipe off the sales tax arrears due from Rawther. It is pointed out by the first defendant that after receiving the sale consideration, the debts of Rawther had been paid off and it was in pursuance of the joint decision taken by all the legal heirs of Rawther that the assignment of the property was made in her favour. She, therefore, contended that the plaintiffs cannot now resile from the joint decision taken by them along with other legal heirs of Rawther and set up an independent claim. AS 801/99 5 8. It is also contended on behalf of the first defendant that she had made considerable improvements in the property and if, by any reason, it is found that the plaint schedule property is partible, she is entitled to value of improvements. The contention taken was that the evidence disclosed other items of properties, which were owned by Rawther, but not brought into the suit, seeking partition. The learned counsel pointed out that the reason is obvious. The attempt of the plaintiffs and other defendants is to defeat the rights of the first defendant. If, as a matter of fact, all the properties of Rawther, which were available for partition had been scheduled to the plaint, the first defendant could have prayed for reservation or allocation of the portion sold to her in favour of her assignors. It was prayed that this Court should consider whether the first defendant could be given at least that relief. 9. The evidence in the case consist of the testimony of PW1 and Ext.A1 marked from the side of the plaintiffs. Even assuming that the sale consideration obtained by the assignors under Exts.B1 and B2 were utilised for discharging the debts of Rawther, it is difficult to accept the contention that the sale deeds Exts.B1 and B2 are equally binding on all the legal heirs of Rawther, including the AS 801/99 6 plaintiffs, who were not parties to the deeds. True, there is a recital in Exts.B1 and B2 regarding the decision taken by all the legal heirs, to assign the property. The question is whether that by itself is sufficient to rope in the plaintiffs also. Except for some circumstances, which would indicate that there might have been such a joint decision, there is nothing on record to show that in fact, the assignments by virtue of Exts.B1 and B2 were made as pointed out by the first defendant. It is well settled that one co-owner is not an agent of another co-owner. As of now, there are absolutely no materials on record to show that the plaintiffs had either authorised the defendants or any one of them to execute any deed on their behalf in relation to the plaint schedule property. The only evidence is the self-serving recital in Exts.B1 and B2. It is difficult to accept that the said recital is binding on the plaintiffs also. It is not as if, the real facts were concealed from the first defendant. She was fully aware of the rights of various persons in the property. 10. Even though it was contended that there was another agreement between the parties, which enable the defendants to assign the property to the first defendant, that document has not seen light of the day. The mere assertion on the part of the first AS 801/99 7 defendant that the assignment evidenced by Exts.B1 and B2 was in pursuance of the joint decision taken by Rawther, is not sufficient. One must remember that one is dealing with the rights of a few items of property. It is therefore, not possible in the absence of cogent and convincing evidence to accept the plea of the first defendant that by virtue of Exts.B1 and B2, consent of all legal heirs was implied, for the assignment made in her favour. One cannot also say that the first defendant purchased the property, bona fide believing that the assignment was made on behalf of all the legal heirs of Rawther, because she was aware of the rights of various persons over the said property and she purchased the property with open eyes. So, there is no justification to accept the said contention. 11. Equally untenable is the contention regarding the value of improvements. Exts.B1 and B2 only shows that the first defendant became a co-owner of the property. She was put in possession of the property and had made some improvements in it. But, there is nothing to show that it was in her capacity as an owner of the property. One cannot accept the contention raised by the first defendant that she believed that she was the absolute owner of the entire property as she knew that some of the legal heirs of Rawther AS 801/99 8 were not parties to Exts.B1 and B2. It cannot be said that she was bona fide believing that she was entitled to make improvements in the property, enabling her to make claim as per the Kerala (Compensation for Tenants Improvements) Act, 1958 (Act 29 of 1958). 12. Finally, the question regarding equity arises for consideration. It is not in dispute that there are other items of properties as well, owned by Rawther, which were available for partition. There is nothing wrong in the parties, choosing to partition a few properties available and retaining the possession of other properties as joint possession. In the case on hand, even assuming there are other items of properties owned by Rawther, that is not a ground to reject the claim of the plaintiffs in the suit. It is seen that during the pendency of the suit, the third plaintiff also assigned her right in favour of the first defendant. That contention pointed out by the learned counsel is too weak to come to a conclusion that the contention of the first defendant is true and it is well established. 13. PW1, in his evidence, has admitted that there were sales tax arrears due from his father. It is also stated that he came into possession of the property in 1992. The first defendant has also AS 801/99 9 adduced evidence in support of her claim and she examined two witnesses to show that the property was sold in order to wipe off the sales tax arrears of Rawther. As already noticed, it is of no consequence at all. It has, thus been, found beyond doubt that the three contentions taken by the appellant before this Court have no support in law. It may be a pity that the first defendant may have to loose a portion of the property owned by her. Relief in equity could have been given to the first defendant, if all the properties of late Rawther were included in the suit. But, one cannot compel the co- owners to do so. Though the first defendant deserves a lot of sympathy, he can get no legal relief. The result is that this appeal is devoid of any merit and it is liable to be dismissed. I do so, confirming the Judgment and decree of the Court below. There will be no order as to costs. P.BHAVADASAN, JUDGE sta AS 801/99 10 P.BHAVADASAN, JJ. ======================== AS NO.801 OF 1999 ======================== JUDGMENT DATED 14TH JANUARY 2010 ========================= AS 801/99 11 AS 801/99 12