IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE HARUN-UL-RASHID MONDAY, THE 29TH NOVEMBER 2010 / 8TH AGRAHAYANA 1932 SA.No. 319 of 1999(D) --------------------- AS.65/1995 of ADDL. DISTRICT COURT, NORTH PARAVUR OS.576/1993 of MUNSIFF COURT, PARAVUR .................... APPELLANTS/APPELLANTS/PLAINTIFFS: ------------------------------------------ 1. EALYA, W/O.ANTONY, PUTHUSSERY HOUSE, MALIANKARA, MOOTHAKUNNAM VILLAGE, PARAVUR TALUK. 2. TREESA, W/O.XAVIER, CHIRAMEL HOUSE, -DO- 3. JESSY, W/O.ALBY, KOTTAPARAMBIL, MUNAMBAM KARA, KUZHUPPILLI VILLAGE, KOCHI TALUK. 4. ALPHONSA, W/O.XAVIER, KANIYAMPURAM CHETTIKKAD KARA, MOOTHAKUNNAM VILLAGE, PARAVUR TALUK. BY ADV. MR.S.VIDYASAGAR RESPONDENT/RESPONDENT/DEFENDANT: --------------------------------------------- STELLA, W/O.PAILY, PANAKKAPARAMBIL HOUSE, MUNAMBAM KARA, KUZHUPPILLI VILLAGE, KOCHI TALUK. ADV. MR.S.V.BALAKRISHNA IYER, SENIOR ADVOCATE MR.P.B.KRISHNAN THIS SECOND APPEAL HAVING BEEN FINALLY HEARD ON 29/11/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: SA.No. 319 of 1999(D) ORDER ON I.A.NO.113/2006 CLOSED. ORDER ON C.M.P.NO.1601/1999 DISMISSED. 29.11.2010 SD/- HARUN-UL-RASHID, JUDGE. // TRUE COPY // P.A TO JUDGE. HARUN-UL-RASHID, J. ------------------------ S.A.No.319 Of 1999 ---------------------- Dated this the 29th day of November, 2010. J U D G M E N T The following are the substantial questions of law formulated at the time of admission of the appeal. “(a) Whether the head of a family occupying a kudikidappu, obtaining a certificate of purchase in his name, is not doing so far and on behalf of all the members of the family residing in the kudikidappu at the relevant time? (b) Whether, under the provisions of the Kerala Land Reforms Act, which is a social welfare legislation, the head of a family occupying a kudikidappu and obtaining a certificate of purchase in respect of that kudikidappu in his name, does not become a constructive Trustee for and on behalf of the whole family? (c) Whether the provisions of a social welfare legislation intended to provide a hearth and home for the extremely poor and homeless sections of society ought not to be interpreted widely to give meaningful protection for the maximum number of persons? (d) Whether the courts below have not failed to appreciate or understand the position of law canvassed before them and come to a perverse conclusion? S.A.No.319 Of 1999 ::2:: (e) Whether the findings and the conclusion reached by courts below are not perverse such that no reasonable tribunal would have arrive at, on the pleadings, evidence and the circumstances of the case?” 2. Plaintiffs in O.S.No.576 of 1993 on the file of the Munsiff Court, Paravur are the appellants. The appeal is directed against the decree and judgment in A.S.No.65 of 1995 on the file of the Additional District Court, North Paravur. Suit is filed for partition and separate possession claiming 4/5th shares in the plaint schedule property. The trial court held that the plaint schedule property is not partible and therefore the plaintiffs are not entitled to get any share in the plaint schedule property. The lower appellate court confirmed the findings of the trial court and dismissed the appeal. 3. Plaintiffs 2 to 4 and the sole defendant are children of late Antony. The first plaintiff is the wife of said Antony. Antony obtained the plaint schedule property by way of kudikidappu. The extent of plaint schedule property is 10 cents. Antony obtained kudikidappu right in O.A.No.674 of 1971 of the Land Tribunal, Paravur. Ext.A1 is the certificate of purchase issued in S.A.No.319 Of 1999 ::3:: the name of Antony. The purchase certificate is dated 30.4.1971. Antony died on 10.5.1971. It is pleaded that on his death the right devolved on the plaintiffs and the defendant who are the legal heirs of deceased Antony. Plaintiffs, 4 in number claimed 4/5th shares in the plaint schedule property. It is also averred in the plaint that deceased Antony executed a sale deed No.3704 of 1975 in favour of the defendant and that it is invalid and not binding on the plaintiffs. 4. The defendant admitted that late Antony was the original title holder of the property. She claimed absolute title and exclusive possession over the plaint schedule property by virtue of sale deed No.3704 of 1975. She contended that the plaintiffs have no manner of right over the plaint schedule property and that the plaint schedule property is not partible. 5. The trial court as well as the appellate court appreciated the oral and documentary evidence. The evidence consists of testimony of PW1, exhibits A1 to A8, B1 & B2. 6. It is not disputed that the deceased Antony obtained kudikidappu right over the plaint schedule property. It is also not S.A.No.319 Of 1999 ::4:: disputed that deceased Antony was residing in the hut belonging to him along with his family members who are the plaintiffs and the defendant. It is also not disputed that Antony died on 10.5.1971. Both courts examined whether the plaint schedule property is partible and as to whether the plaintiffs are entitled to get any share in the plaint schedule property. The trial court as well as the appellate court examined the contentions of the respective parties. Both courts observed that it is an admitted case that Antony obtained kudikidappu right. Ext.A1 is the certificate of purchase. PW1 when examined also admitted that the deceased Antony got kudikidappu right over the plaint schedule property, that he filed application before the Land Tribunal and obtained certificate of purchase in respect of plaint schedule property. It is also an admitted case that the occupation of the plaint schedule property by the plaintiffs is in their capacity as family members of the deceased Antony. There is no pleading or proof to show that the plaintiffs and defendant had independent right in the plaint schedule property or that Antony obtained kudikidappu for and on behalf of them also. It is S.A.No.319 Of 1999 ::5:: averred in the plaint that deceased Antony constructed a house situated in the plaint schedule property. PW1 also admitted that Antony obtained permission from the jenmi to construct the building. After examining the facts and circumstances, both courts concluded that the plaintiffs and defendant had no independent occupation during the lifetime of Antony and that they are residing under him in the plaint schedule property. Both courts also considered the question of validity of the sale deed executed by Antony in favour of his daughter. Certificate of purchase was obtained in 1971 and the sale deed was executed three years later. The sale deed is marked as Ext.B1. Both courts held that since Antony is the original owner, he had every right to alienate the plaint schedule property to the defendant or to any person he likes. The court also on facts held that by virtue of Ext.B1 sale deed the defendant purchased the plaint schedule property from Antony for consideration. On execution of the sale deed title passed to the purchaser and thus the defendant became the owner of the property and hence the plaint schedule property is not available for partition. The findings S.A.No.319 Of 1999 ::6:: entered by the trial court which was confirmed by the appellate court are findings solely based on facts and pleadings in the case. No question of law much less any substantial questions of law arises for consideration in the appeal. In the result, the appeal fails and accordingly, dismissed. No order as to costs. HARUN-UL-RASHID, Judge. bkn/-