IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOTTATHIL B.RADHAKRISHNAN & THE HONOURABLE MR. JUSTICE P.BHAVADASAN FRIDAY, THE 19TH NOVEMBER 2010 / 28TH KARTHIKA 1932 AFA.No. 2 of 1999() ---------------------------- AGAINST THE JUDGEMENT IN AS.63/1991 Dated 10/02/1998 OS. NO.237/1981 OF IST ADDL. SUB COURT, KOZHIKODE .................... APPELLANT(S): (IST RESPONDENT/ IST DEFENDANT ---------------------------------------------------------------------------- CHALAMBATTIL BALAN, S/O. CHOYIKUTTY, ERAVANNOOR AMSOM AND DESOM, POST ERAVANNOOR , VIA, KODUVALLI, KOZHIKODE. BY SRI.A.P.CHANDRASEKHARAN, SENIOR ADVOCATE RESPONDENT(S): (APPELLANTS/ PLAINTIFFS) ----------------------------------------------------------------- 1. CHALAMBATTIL SREEDHARNA, S/O. CHOYIKUTTY, RESIDING AT ERAVANNOOR AMSOM AND DESOM, KOZHIKODE TALUK. 2. MUTHIYERI SREEDEVI, D/O. CHOYIKUTTY, RESIDING AT DO.DO. BY SRI.M.C.SEN, SENIOR ADVOCATE BY ADV. SMT.PARVATHY A. MENON. BY ADVS. SRI.M.P.SREEKRISHNAN SMT.SHAHNA KARTHIKEYAN SRI.S.PRAKASH. THIS APPEAL FROM FIRST APPEAL HAVING BEEN FINALLY HEARD ON 19/11/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: tss Thottathil B.Radhakrishnan & P.Bhavadasan, JJ. = = = = = = = = = = = = = = = = = = = = = = = = A.F.A.No.2 of 1999 = = = = = = = = = = = = = = = = = = = = = = = = Dated this the 19th day of November, 2010. Judgment “CR” Thottathil B.Radhakrishnan, J. 1.In this round, we are concerned only with item no.1 in the plaint schedule. The suit is one for partition. Following earlier order of remit, the claim of the plaintiffs for share in item no.1 was tried again by the trial court. Their plea was repelled. Plaintiffs, therefore, appealed. The learned single Judge held that the two plaintiffs were together entitled to 1/3 share in plaint A schedule item no.1, which is hereinafter referred to as the “suit property” and the remaining 2/3 shall go to the first defendant, ignoring the transfer made by the father of the parties in favour of the first defendant. This AFA2/99 -: 2 :- was done by treating that the suit property was ancestral property in the hands of the father of the parties and that, he had transferred his 1/3 share to the first defendant and hence, the remaining would go as stated above. 2.Parangodan II is the son of Parangodan I. Choyikutty and Kanaran were the sons of Parangodan II. Kanaran died before 1926 leaving behind a son then aged around two years. He is Parangodan III. Later on, Choyikutty married the second defendant and the two plaintiffs and the first defendant were born to them. 3.Ittirarappan Nair and Chennan Nair, whom together we shall call “Nairs” hereinafter, made Ext.A5, a lease (Kanam assignment) on 12.6.1877 in favour of one Parangodan. Twenty two years thereafter, Ext.A6, a renewal lease was made on 18.1.1899 by the Nairs in favour of a Parangodan. As we proceed, we will notice that one of the controversies, or, the only one ultimately, to be AFA2/99 -: 3 :- resolved is as to whether Ext.A5 lease by the Nairs was in favour of Parangodan I or Parangodan II. 4.Ext.A6 was followed by Ext.A4, a renewal of lease on 30.4.1916 by the Nairs, again in favour of a Parangodan. There is no controversy before us that the Parangodan referred to in Ext.A4 is Parangodan II. By Ext.B5 dated 25.1.1926, Parangodan II assigned the leasehold right in favour of his son Choyikutty and Parangodan III, the son of his predeceased son Kanaran. Twenty years thereafter, the Nairs executed Ext.B1, a renewal of lease, in favour of Choyikutty and Parangodan III on 9.1.1946 essentially recognising Ext.B5 assignment of leasehold right by Parangodan II. Twelve years thereafter, Choyikutty and Parangodan III entered into Ext.B2 partition on 18.2.1958. Nearly 12 years thereafter, Choyikutty executed Ext.B3 assignment on 1.3.1970 in favour of his son, the first defendant assigning to him whatever he had AFA2/99 -: 4 :- following Ext.B1 partition between him and Parangodan III. 5.The suit from which this appeal arises was filed in 1981 by a daughter and a son of Choyikutty without seeking any relief against Ext.B3 assignment of 1.3.1970 by Choyikutty in favour of the first defendant, however claiming partition of the properties that Choyikutty got under Ext.B2 partition. This was on the premise that what was dealt with by Parangodan II in Ext.B5 was ancestral property and what Choyikutty held following Ext.B2 partition was ancestral property in his hands which would inure to the benefit of the lineal descendants of Choyikutty. 6.Following the order of remit, additional evidence was adduced. The trial court, ultimately, concluded that there was no material to hold that the property dealt with by Parangodan II in Ext.B5 was ancestral property or that by the execution of Ext.B5, Choyikutty got any ancestral AFA2/99 -: 5 :- property in his hands. However, the learned single Judge allowing the appeal of the plaintiffs in part, set aside that finding and has ordered the grant of decree for partition of the suit property as already noted. 7.On the basis of the arguments addressed before us impeaching the finding of the learned single Judge, the only issue that arises for consideration is as to whether the suit property is ancestral property in which the plaintiffs could claim a share and if that were so, could they seek partition without seeking any relief against Ext.B3 assignment by Choyikutty in favour of the first defendant on 1.3.1970. 8.The learned counsel appearing for the first defendant-appellant argued that there is no material on record to support the finding of the learned single Judge that Ext.B2 partition was entered into between Choyikutty and Parangodan III on 18.2.1958 representing the two branches of AFA2/99 -: 6 :- the great grandfather and there is no shred of material to establish that Ext.A5, the initial lease by the Nairs, was obtained on 12.6.1987 by Parangodan I. This submission is answered by the learned senior counsel appearing for the plaintiffs by contending that the description of Parangodan in Ext.A5 is with reference to a Parangodan, son of Parangodan and in that view of the matter, the Parangodan I's father would have also been named Parangodan and the Parangodan referred to in Ext.A6 could be only Parangodan II because he is described as Parangodan, son of deceased Parangodan and in the meanwhile, Parangodan No.I would have died. These arguments are noticed at the threshold because the appeal needs to be decided with reference to the issue as to whether Ext.A5 lease was taken by Parangodan No.I because if it were so, it would have been ancestral property in the hands of Parangodan II and further down the line. The learned senior counsel appearing for the plaintiffs placed another argument, namely, that AFA2/99 -: 7 :- when Parangodan made Ext.B5 in the name of Choyikutty and Parangodan III on 25.1.1926, he was essentially putting property in the hands of Choyikutty to the extent of share that Choyikutty and his lineal descendants may acquire in the ancestral property referable to Parangodan No.II. 9.Looking at Exts.A5 to B1, it can be seen, as rightly pointed out by the learned counsel on either side, that there is a continuity of the holding for enjoyment, that is to say, that the tenure of the leasehold right that germinated with the grant of Ext.A5 by the Nairs was never interrupted at any point of time. With the passage of time, we find that after the institution of the suit from which this appeal arises, the first defendant initiated proceedings under the Kerala Land Reforms Act and obtained Ext.B6 order through the Land Tribunal, assigning to him right, title and interest of the landlord. The trial court, in our view, quite rightly said that Ext.B6 having been generated only during AFA2/99 -: 8 :- suit, its evidentiary value may be scant, though that could also be considered in the backdrop of the effect, if any, of Ext.B5 gift by Parangodan II on 25.1.1926 in favour of Choyikutty and Parangodan III. We may also notice that the learned senior counsel appearing for the plaintiffs rightly pointed out that even if a certificate of purchase is issued in favour of one of the heirs or co-owners, that would inure to the benefit of all co-owners and can be subjected to a process of partition. 10.Ext.A5 is made in favour of a Parangodan with reference to a place called 'Chavakkad'(or may be even Pavakkad, going by the manner in which that word is written in the vernacular in the original document). He is referred to Chavakkattil Parangodan by the parties. Ext.A6 refers to Chalampattil Parangodan. The learned single Judge indicates that the suit property is known as 'Chalampattil paramba'. Exts.A6 and A4 renewals of lease are made in favour of a Parangodan who AFA2/99 -: 9 :- is the son of deceased Parangodan. The non- mentioning of the Parangodan, the father of the lessee under Ext.A5 as a deceased person is suggested by the plaintiffs as indicative of the fact that Ext.A5 was in favour of Parangodan No.I and Ext.A6 was evidently executed in favour of Parangodan No.II after the demise of Parangodan No.I. The renewal of Ext.A5 lease as per Exts.A6, A4 and B1 are not merely because of the change of the identity of the lessees. We find that different terms, including the variation of the terms are made whenever the lease is renewed. So much so, the mere mentioning of a person as dead is not indicative of the identity, going by what emanates out of the documents themselves. 11.However, P.W.1, the first plaintiff spoke before the trial court after remand that the suit property was obtained in the name of Parangodan, the son of Parangodan and that the Kanaran and Choyikutty are the children of that Parangodan. This is the opening sentence recorded by the AFA2/99 -: 10 :- trial court in the cross examination of P.W.1 on 15.9.1990. If that were so, the plaintiffs stand with a case through the mouth of P.W.1, that the acquisition under Ext.A5 is in the name of Parangodan No.II and not Parangodan No.I. P.W.1 further states that the recitals in Ext.B2 partition dated 18.2.1958 are all true. These materials are sufficient to hold that the plaintiffs have failed to discharge their burden that the acquisition under Ext.A5 by way of a leasehold right was not by Parangodan II but it was by Parangodan I. 12.When the Court has to form an opinion as to the relationship of one person to another, the opinion, expressed by conduct, as to the existence of such relationship, of any person who, as a member of the family or otherwise, has special means of knowledge on the subject, is a relevant fact in terms of Section 50 of the Evidence Act. The manner in which a person is treated by the members of the family is a AFA2/99 -: 11 :- relevant fact. As held by the Apex Court in Sitaji v. bijendra narain, AIR 1954 SC 601, followed in Dolgobinda v. Nimai Charan, AIR 1959 SC 914, a member of the family can speak of his own ancestors; he can say in the witness box as to what he has been told and what he has learned about them, provided what he says is an expression of his own independent opinion (even though it is based on hearsay derived from deceased, not living persons) and is not merely repetition of the hearsay opinion of others, and provided the opinion is expressed by conduct. Sources of information and time at which he acquired the knowledge would affect its weight but not its admissibility. Such material is legally admissible evidence which, if believed, is legally sufficient to support the finding. In the case in hand, such evidence from no other person is required because the first plaintiff as P.W.1 himself has stated that it was in the name of Parangodan II that the leasehold right was obtained. Notwithstanding the fact that such AFA2/99 -: 12 :- evidence comes from the plaintiffs themselves and even without treating it as having all the vigour of what could be called as an admission in terms of the Evidence Act, the testimony of P.W.1 has necessarily to be taken as his statement on the basis of what he had learnt about his own ancestors and as a fact which he believes to be true. Therefore, this itself is legal evidence and there is no material diminishing its evidentiary value and weight. 13.This leads to the next question argued on behalf of the plaintiffs, namely, that the gift made by Parangodan No.II to Choyikutty and Parangodan No. III under Ext.B5 on 25.1.1926 should be treated as one inuring to the benefit of the lineal descendants of Choyikutty also and the property which came into the hands of Choyikutty under Ext.B5 should be treated as ancestral property available to plaintiffs and defendant no.1. For one thing, the first defendant is the eldest among the children of Choyikutty. Going by the AFA2/99 -: 13 :- age projected by them in their pleadings, even the first defendant would have been born only in late 1930s. Ext.B5 is on 25.1.1926. There was no child for Choyikutty at that point of time. Therefore, there was no lineal descendant of Choyikutty, when Parangodan II made the gift in favour of Choyikutty to have such gift to inure to the benefit of lineal descendants also. We may profitably quote from the celebrated decision of the Apex Court in Arunachala v. Muruganatha, AIR 1953 SC 495 that when the father obtains the grandfather's property by way of gift, he receives it not because he is a son or has any legal right to such property but because his father chose to bestow a favour on him which he could have bestowed on any other person as well and the interest which he takes in such property must depend upon the will of the grantor. Their Lordships further said that to find out whether a property is or is not ancestral, in the hands of a particular person, not merely the relationship between the original and the present holder but AFA2/99 -: 14 :- the mode of transmission also must be looked into and the property can ordinarily be reckoned as ancestral only if the present holder has got it by virtue of his being a son or descendant of the original owner. With this, even in Ext.B5 gift made by Parangodan II to Choyikutty and Parangodan III on 25.1.1926, the specific recital is that Choyikutty was being allotted in his personal capacity and he has to act as also the guardian of Parangodan III who had unfortunately lost his father at a young age. We do not find any recital in Ext.B5 which reflects any intention of Parangodan II that the allotment in favour of Choyikutty was intended to be to the benefit of any lineal descendant who had not even been born at that point of time, but may come through, though the presence of at least one lineal descendant at the time of acquisition by Choyikutty was necessary to give the acquisition under Ext.B5, the colour of ancestral property even if the argument in that regard were to be accepted. AFA2/99 -: 15 :- 14.There is yet another aspect of the matter. Ext.B2 partition between Choyikutty and Kanaran was on 18.2.1958. The two plaintiffs and the first defendant were alive on that day. Even if we accept the submission on behalf of the plaintiffs that they and the defendant could have claimed only per stirpes share along with Choyikutty, we do not find any logic or reason for the exclusion of the plaintiffs and the first defendant from Ext.B2 partition of 1958, if the parties had ever intended, understood or treated the properties as belonging to them from ancestors. 15.With the aforesaid, we do not find any justifiable ground to sustain the impugned judgment of the learned single Judge. In the result, this appeal is allowed setting aside the impugned judgment and restoring the revised preliminary decree and judgment of the AFA2/99 -: 16 :- trial court dated 27th September, 1990. Having regard to the nature of the relationship between the parties, they are directed to suffer their respective costs of this appeal. Thottathil B.Radhakrishnan, Judge. P.Bhavadasan, Judge. Sha/2311 AFA2/99 -: 17 :- Thottathil B.Radhakrishnan & P.Bhavadasan, JJ. = = = = = = = = = = = = = = = = = A.F.A.NO.2 OF 1999 = = = = = = = = = = = = = = = = = Judgment 19th November, 2010.