IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN TUESDAY, THE 20TH JANUARY 2009 / 30TH POUSHA 1930 AS.No. 136 of 1995(C) ------------------------------- OS.85/1990 of SUB COURT, VADAKARA .................... APPELLANT(S): DEFENDANTS 4 TO 6 AND 8. ------------------------ 1. P.SAINAVA, PADINHARE THALATHIKANDIYIL, CHORODE AMSOM AND DESOM, VADAKARA TALUK. 2. P.MARIYAM, RESIDING DO. 3. P.SAFIYA, RESIDING DO. 4. KUNHAMINA, RESIDING DO. BY ADV. SRI.T.A.RAMADASAN,A.K.ALEX RESPONDENT(S): PLAINTIFFS AND DEFENDANTS 1, 2 TO 4 AND 7 ------------------------- 1. AYISSA UMMA, D/O. MAMMED HAJI, PADINHARE THALATHIKANDIYIL, CHORODE AMSOM AND DESOM, VADAKARA TALUK. 2. P.SUHARA, RESIDING DO. 3. P.MOOSA, PUTHIYAPURAYIL, RESIDING DO. 4. THAHIRA, RESIDING DO. 5. P.ABDU RAHIMAN, RESIDING DO. DO. ADV. SRI.M.C.SEN,M.P.SREEKRISHNAN FOR R 1. SMT.SHAHNA KARTHIKEYAN FOR SRI.T.P.PANKAJAKSHAN FOR R2 AND R3. SRI.S.PRAKASH SRI.CIBI THOMAS FOR R5 THIS APPEAL SUITS HAVING BEEN FINALLY HEARD ON 20/01/2009 , THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: M.N.KRISHNAN, J ===================== AS No.136 OF 1995 ===================== Dated this the 20th day of January 2009 JUDGMENT This appeal is preferred by defendants 4 to 6 and 8 in O.S.No.85 of 1990 of the Sub Court, Vadakara. The suit is one for partition of the plaint schedule properties with share of mesne profits. The trial court by its judgment granted a decree with respect to item 1 other than B4 property and the assignments, if any, made to strangers into 80 equal shares. The plaintiff was entitled to 7 shares, defendants 1 and 4 to 7 each entitled to 7 shares, defendants 2 and 3 entitled to 14 shares and the 8th defendant 10 shares. So far as item 2 of the plaint schedule property was concerned, it was ordered to be divided into 1040 shares and the plaintiff was entitled to 821 shares, defendants 1, 3 and 5 to 7, 21 shares each, defendants 2 and 3, 42 shares each and 8th defendant is entitled to 30 shares. It is against that preliminary decree, defendants 4 to 6 and 8 have come up in appeal. 2. The point that is canvassed in the appeal is with respect to the property which according to the appellants were taken on oral lease by Mammad Haji from Amina Umma. It is contended by them that during the AS 136/1995 -:2:- life time of Mammad Haji he had executed a gift deed with respect to that property in favour of the plaintiff and defendants 2 to 6 and therefore it is not available for division. The facts of the case would reveal that the plaint schedule property belonged to one Aysumma. The jenmom right was purchased by Amina Umma. Aysumma leased the northern section of the property to his son Mammad Haji in 1951. She then released her entire right in the remaining property to Amina Umma in 1953. Thus Amina Umma was in possession of the section other than that was leased to Mammad Haji. The said Mammad Haji is the husband of Amina Umma. He had 4 wives and the plaintiff and defendants 1 to 7 are the children and 8th defendant a widow. So, the crucial question that had arisen for determination is whether Mammad Haji had obtained a lease from his wife Amina Umma as contended by the contesting defendants. Since it was a case of lease, the matter was referred to the Land Tribunal and the Land Tribunal by a reference order held that the said defendants are not entitled to any leasehold right for the reason that the lease in favour of Mammad Haji by Amina Umma is not established. Learned counsel for the appellants would contend that the trial court and the Tribunal failed to consider the impact of a certificate of purchase issued by the Tribunal in an earlier proceeding. He had relied upon Exts.B2 and B5, which are the two purchase AS 136/1995 -:3:- certificates and Ext.B2 is the certificate relating to the claim made by the contesting defendants. It has to be remembered that even if Mammad Haji had taken lease of the property from Amina Umma, Amina Umma will continue to be the landlord of the property and unless certificate of purchase is obtained with Amina Umma on record, one cannot hold that the said purchase certificate is valid. Learned counsel for the appellants in fairness had shown me the certificate of purchase application wherein the name of the landlord is shown as Amina. It can be seen from the submissions made that this Amina Umma had died as early as in 1962. When Amina Umma had died in 1962 with Amina Umma on record suppose a certificate of purchase is obtained in 1986 or thereafter, it is a document which is prima facie void and that cannot be looked into. So, the obtainment of certificate of purchase with respect to the property may not help the appellants for the reason that it is a document obtained against a person who is dead. 3. The next question is regarding the validity of the lease set up by the defendants/appellants. It appears that the case of the appellants is to the effect that Amina Umma had given a lease of the property orally with respect to the disputed property on 21.8.1954. It has to be remembered that the relationship between Mammad Haji and Amina Umma was that of a AS 136/1995 -:4:- husband and wife. Or, in other words, the husband is setting up a lease under the wife. It is ordinarily not believable and there are no convincing materials to establish that this Mammad Haji had paid rent to Amina Umma and had treated the property as a tenant under Amina Umma. It has also to be remembered that though the Land Reforms Act came into force on 1.1.1970 no attempt was made to file an application for certificate of purchase and it was a suo motu proceedings that was initiated and that too against a dead person. 4. I had perused the reference order passed by the Land Tribunal and the Land Tribunal had relied upon the recitals in the document as well and had come to a conclusion that the lease set up is not true. I also find that the said finding does not suffer from any infirmity. Therefore there is nothing to interfere with the decision rendered by the trial court on the basis of the finding of the Tribunal. Therefore the appeal lacks merit and the same is dismissed. But, under the circumstances, without any order as to costs. M.N.KRISHNAN, JUDGE Cdp/-