IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE A.K.BASHEER & THE HONOURABLE MR. JUSTICE P.Q.BARKATH ALI SATURDAY, THE 30TH JANUARY 2010 / 10TH MAGHA 1931 AFA.No. 52 of 1993 ------------------ AGAINST THE JUDGEMENT IN LAA.9/1991 Dated 29/10/1992 LAR.211/1987 of PRL.SUB COURT, KOZHIKODE .................... APPELLANTAPPELLANT/CLAIMANT: ---------------------------- KONNANATTU MOHANDAS, “DEEPATHI”, 5/1625, NEAR S.V.COLONY, KOZHIKODE – 6. BY ADV. SRI.P.N.KRISHNANKUTTY ACHAN, SENIOR ADVOCATE RESPONDENTS/RESPONDENTS/CLAIMANTS: --------------------------------- 1. AMBADIKOVILAKATH VALIYA THAMPURATTY, MANKAVU, KOZHIKODE. 2. KALOOR MAYANADATH BALAKRISHNAN, DO. DO. (died) (DELETED) 3. STATE OF KERALA REPRESENTED BY THE DISTRICT COLLECTOR,KOZHIKODE. 4. K.M.SURESH BABU, KONTHANADATH HOUSE, S.V.COLONY (PO), KOZHIKODE-6. 5. K.M. SATHEESH BABU,5/1316 – A, NEAR S.V.COLONY,KOZHIKODE 6. 6. K.M.DINESH BABU, KONTHANADATH HOUSE, S.V.COLONY.P.O. KOZHIKODE – 6. (DIED) 7. K.M.SREELATHA, GOVINDA NIKETHAN, KEEZANTHI MUKKU, NEAR THIRUVANGOOR, TELLICHERRY, CANNANORE DISTRICT. 8. K.M.MEENAKSHI AMMA,5/1316– a,NEAR S.V.COLONY, CALICUT – 6. 9. K.M. RAMESH BABU, KONTHANADATH HOUSE, S.V.COLONY.P.O.,KOZHIKODE – 6. 10. K.M. ASHALATHA, W/O.ARANGIL RAJAN, “MADHAVI PURAM', CHETTIKULAM, ELATHUR, KOZHIKODE DISTRICT. 11. K.M.SOMALATHA, KONTHANADATH HOUSE,S.V.COLONY.P.O.KOZHIKODE-6. 12. THE SPECIAL TAHSILDAR (LA), KOZHIKODE(CDA) (R2 DIED. NAME OF R2 IS DELETED FROM PARTY ARRAY, AT THE RISK OF THE APPELLANT AS PER ORDER DATED 12/12/2003 IN IA.488/03.) ADDL.13. DEEPU DINESH, S/O.DINESH BABU, KONTHANADATH HOUSE, S.V.COLONY(P.O.), KOZHIKODE – 6. ADDL.R13 IMPLEADED AS PER ORDER IN IA.NO.625/2009 DATED 30/1/2010. GOVERNMENT PLEADER SRI.RA.LAKSHMINARAYANAN. SRI.D.KRISHNA PRASAD THIS APPEAL FROM FIRST APPEAL HAVING BEEN FINALLY HEARD ON 30/01/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: A. K. Basheer & P.Q. Barkath Ali, JJ. - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - A.F.A. No. 52 of 1993 - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 30th day of January, 2010. Judgment Basheer, J: Appellant is claimant-A in a Land Acquisition Reference made under Section 30 of the Land acquisition Act for apportionment. Appellant claimed the entire amount of compensation to the exclusion of his other brothers viz., claimants E and G and Ramesh Babu and Satish Babu. However the reference court repelled the above contention and held that award amount in deposit shall be divided into 9 shares and claimants A and E to L would be entitled to get one share each. 2. The above judgment and decree passed by the reference court were challenged by the appellant before this court in LAA.No.9/91. By the impugned judgment a learned single Judge of this Court confirmed the decree and judgment passed by the reference court. Hence this appeal under Section 5 of the Kerala High Court Act. 3. The short question that arises for consideration is whether any interference is warranted with the concurrent findings entered by the trial court as well as the appellant court. AFA.52/93 2 4. A small parcel of land having an extent of 0.0713 hectares situated in TS 5 – 11 – 508/4A was acquired for a public purpose pursuant to Section 4 (1) notification dated January 29, 1980. The Land Acquisition Officer awarded a sum of Rs. 82,494/- to the owners of the property. Since there was dispute with regard to apportionment, the award amount was deposited in Court as provided under Section 30 of the Act. 5. Before the reference court appellant-claimant A contended that the property in question originally belonged in jenmam to Ambadi Kovilakam. It was in the possession of Koyyeri Chathu on the strength of a lease in his favour. The leasehold right of Chathu was purchased by Kaloor Mayanadath Sankaran, grandfather of the appellant, in the year 1904. After the death of Sankaran the property devolved on his son Balakrishnan, father of the appellant and his brothers. The case of the appellant was that his father Balakrishnan had gifted the said property in his favour under a registered document of the year 1967 (Ext.A1). Appellant claimed that he was in exclusive possession of the subject matter ever since the gift in his favour. He had also purchased jenmam right from the Land Tribunal as revealed from Ext.A2 purchase certificate dated April 17, 1978. Thus it was contended by the appellant that none of his brothers or sisters or their legal representatives did have any AFA.52/93 3 right over the property and therefore the entire amount of compensation had to be released to him. 6. The above claim was resisted by claimants E and G, two of the brothers of the appellant contending that Ext.A1 gift deed was void ab initio and no exclusive right was conveyed to the appellant by their late father through that document. They further contended that Ext.A1 gift deed was a clandestine document, and even assuming that their late father had executed such a document in favour of the appellant, it was never acted open and was therefore only a sham document. The purchase certificate obtained by the appellant would enure to the benefit of all since the appellant was one of the co-owners of the property. Thus claimants E and G who alone contested the reference case contended that they were entitled to get 1/8 share each in the award amount. 7. On the basis of the above pleadings, the following points were raised for consideration by the reference court: “1. Whether the property is ancestral coparcenary property or the self acquired property? 2. Whether the gift of 1967 executed in favour of the A claimant is valid and has been duly acted upon? AFA.52/93 4 3. Whether the rights if any of the contesting claimants have been lost by adverse possession and ouster by limitation? 4. What are the shares available to the parties?” 8. The appellant got himself examined as AW.1 and Aws. 2 and 3 were also examined on his side. Exts.A1 to A11 were also marked on his side. On the side of the contesting claimants Rw.1 (claimant E) was examined and Exts.E1 to E12 were marked. 9. The reference court after a careful and elaborate consideration of the oral and documentary evidence on record held that the acquired land was an ancestral coparcenary property and deceased Balakrishnan (father of appellants and other claimants) could not have conveyed the said property in favour of the appellant on the strength of Ext.A1 gift deed to the exclusion of other coparceners. In other words, it was held that Ext.A1 gift deed being null and void it was legally ineffective and inoperative and the said gift deed did not convey any exclusive title or right to the appellant. After the death of Balalrishnan the right devolved on all his legal heirs viz., claimants A and E to L. The purchase certificate obtained by the appellant would enure to the benefit of all the legal representatives. Thus the reference court directed that the amount AFA.52/93 5 in deposit be divided into 9 equal shares and one such share be allotted to claimants A and E to L. 10. The learned single Judge in appeal re-evaluated the entire evidence on record and concurred with the view taken by the trial court. 11. It is contended by learned counsel for the appellant that the trial court as well as the appellate court fell in grave error in holding that Ext.A1 gift deed did not convey any exclusive right or title to the appellant. He points out that pursuant to the execution of Ext.A1 gift deed, appellant was in exclusive possession of the property. His father happened to execute the gift deed since appellant had been helping him financially. Appellant was an officer in the Air Force and therefore he was practically looking after the entire family. His father had executed the gift deed in consideration of the huge financial assistance received by him from the appellant for the benefit of the family. This fact was known to all the other members of the family including claimants E and G. Nobody had ever questioned the gift deed till the death of his father in the year 1973. Even thereafter when Ext.A5 partition deed was executed by the members of the family comprising the brothers and sisters of the appellant, Ext.A1 property was excluded. Similarly two other items of properties which were alienated to AFA.52/93 6 strangers covered under Exts.A3 and A4 were also excluded in Ext.A5 partition deed. Neither the contesting claimants nor any other member of the family had ever questioned or disputed the exclusion of these properties from partition. 12. It may at once be noticed that appellant had specifically contended that he was in exclusive possession of the property in question ever since the execution of Ext.A1 in the year 1967. But in the course of his examination before the Court, appellant admitted that the tax in respect of the said property was being remitted in the name of his mother till 1975. More significantly, he further stated that he was not sure whether he had remitted tax for the property either after 1975 or at any other point of time. He did not have any tax receipt in his possession to be exhibited before the Court. He tried to wriggle out of the inconvenient situation by saying that his mother might have remitted the tax on his behalf albeit in her name. 13. Admittedly appellant had retired from service in 1975 and the specific case of the other claimants was that he had been in exclusive management of the family properties ever since his return to the village. Thus it was contended by the contesting claimant that exclusion of Ext.A1 property from the partition deed was at the insistence of the appellant. The trial court as well as the appellate AFA.52/93 7 court found that the claim of exclusive possession of the property by the appellant could not be accepted in the light of the above evidence. 14. While considering the question whether Ext.A1 gift deed conferred title in favour of the appellant, it was noticed by the trial court that the appellant had tacitly admitted that the property belonged to the tharwad. As has been noticed already, appellant's grandfather Sankaran had purchased the property from Chathu in the year 1904. After the death of Sankaran the property devolved on late Balakrishnan, the only son of Sankaran, father of the appellant and other claimants. While dealing with the above issue the trial court had referred to the decision of their Lordships of the Supreme Court in Perusal Akka v. Kumaresan Balakrishnan (AIR 1967 SC 569). It was held in that decision that while movable ancestral property can be gifted out of affection to a wife or a daughter or a son if it is within reasonable limits, immovable property can be gifted only for pious purposes. A gift in favour of one of the sons or wife is void. In the decision rendered by this Court in Krishnan & Ors. v. Ratnam (1988 (1) KLT 142) it was held that a member of a joint Hindu family governed by Mithakshara Law cannot give up joint interest in the family estate to one of several coparceners if they remain joint in estate. In such AFA.52/93 8 circumstances a member can relinquish his interest alone. It was further held that an individual member of a Hindu family will not be competent to alienate by way of gift his undivided share or any portion thereof and such an alienation, if made, is void in toto. The trial court had referred to yet another decision of their Lordships of the Supreme Court in D.Nagaratnamba v. Kunuku Ramayya (AIR 1968 SC 253) in which it was held that coparcenary properties cannot be gifted by a coparcener. 15. The trial court and the appellate court had also considered the question of ouster also. The decision of the Supreme Court in Karbalai Beegum v. Mohammed Sayeed & another (1981 SC 77) was referred to by the trial court in this context. 16. The mere exclusion of Ext.A1 property from partition was not found sufficient enough to indicate that the appellant got exclusive title and possession over the property by virtue of Ext.A1 gift deed. Similarly, it was held by both courts that Ext.A2 purchase certificate obtained from the Land Tribunal will not confer any exclusive right or title on the appellant, especially in the absence of any evidence to show that he had been in exclusive possession of the property after execution of the alleged gift deed. Ext.A2 purchase certificate as rightly held by the trial court and appellate court will enure to the benefit of all coparceners . AFA.52/93 9 17. We have carefully perused the entire materials available on record. We do not find any justifiable reason to interfere with the concurrent findings entered by the trial courts as well as the learned single Judge. There is no merit in any of the contentions raised by the appellant. The appeal fails and it is accordingly dismissed. A.K. Basheer Judge P.Q. Barkath Ali Judge. an.