IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.GIRI TUESDAY, THE 6TH JANUARY 2009 / 16TH POUSHA 1930 SA.No. 199 of 1995(F) --------------------- AS.30/1993 of ADDL.SUB COURT, ALAPPUZHA OS.105/1984 of PRL.MUNSIFF COURT, CHERTHALA .................... APPELLANT(S): -------------- CHANDRAMATHY, D/O BHARGAVI, ARUTHENGUMCHIRAYIL, PERUNNORMANGALAM MURI, MARARIKULAM NORTH VILLAGE BY ADV. SRI.V.G.ARUN SRI.T.R.HARIKUMAR RESPONDENT(S): --------------- 1. THANKAPPAN, S/O VELU, KADAPPALLI VEETTIL, PERUNNORMANGALAM MURI, MARARIKULAM NORTH VILLAGE, SHERTALLAI. 2. BHARGAVI, D/O KARUMBI, ARUTHENGUMCHIRAYIL, PERUNNORMANGALAM MURI, MARARIKULAM NORTH VILLAGE 3. RAJAPPAN, S/O NEELAKANTAN, DEVASWOM VELIYIL OF -DO- ADV. SRI.M.K.PRADEEPKUMAR FOR R1 THIS SECOND APPEAL HAVING BEEN FINALLY HEARD ON 06/01/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: V.GIRI, J ------------------- S.A.199/1995 -------------------- Dated this the 6th day of January, 2009 JUDGMENT Plaintiff in O.S.No.105/1984 on the files of the Munsiff's Court, Cherthala, is the appellant in this appeal. Suit was instituted for setting aside Ext.A2 sale deed (the original being Ext.B2), in so far as it purports to convey the plaintiff's half share in the plaint schedule property in favour of the third defendant and for partition and separate possession of the plaintiff's one half share in the property and for mesne profits. The trial Court decreed the Suit declaring that Ext.A2 sale deed was not valid or binding on the plaintiff's half share in the property. It was found that the plaintiff was entitled to recover half share in the plaint schedule property and the Court below passed the decree in that regard further declaring that the plaintiff was entitled to mesne profits for a period of three years. The lower appellate Court reversed the judgment of the trial S.A.199/1995 2 Court and dismissed the Suit. Hence the Second Appeal by the plaintiff. 2. Plaint schedule property was outstanding on lease (Kanapattom) with one Madhavan. Plaint schedule property belonged to one Mattathil Damodaran Raghavan Kartha. The Kanapattom right was assigned in favour of the plaintiff's mother, the first defendant, and one Kuncheru. While so, the jenmam right was purchased by the plaintiff and her mother, the first defendant, as per Ext.A1 sale deed dated 8.3.1966. The leasehold interest that was available with Kuncheru continued even thereafter. It seems that the original owner of the property, Raghavan Kartha had earlier filed an application, as the owner of the property for resumption of the same, under Section 17 of the Land Reforms Act. But the said application was withdrawn by him before the execution of Ext.A1 sale deed dated 8.3.1966. According to the plaintiff, she and her mother continued in possession of the property. S.A.199/1995 3 3. By Ext.B2 sale deed dated 16.3.1977, plaintiff’s mother on her behalf and acting as the guardian of the plaintiff, who admittedly was a minor as on 16.3.1977, purported to assign the plaint schedule property in favour of the third defendant, Thankappan. Subsequently, the plaintiff attained majority. The instant suit O.S.No.105/1984 was, as stated above, instituted for setting aside Ext.B2 document in so far as it purported to convey the plaintiff’s right over the plaint schedule property and for partition and separate possession of the plaintiff’s one half share of the property. It was inter alia contended that Ext.B2 document is abinitio void in so far as the plaintiff’s share is concerned for two reasons. Firstly, the minor was not represented by her natural guardian, the father, the second defendant. Secondly, the sanction of the Court under Section 8 of the Hindu Minority and Guardianship Act, was not obtained. It was further contended that the document was not supported by consideration. S.A.199/1995 4 4. Defendants 1 and 2 filed a written statement supporting the case of the plaintiff. Third defendant took up the contention that the suit was barred by limitation, it having been instituted more than four years after the plaintiff became major. It was further contended that the plaint schedule property was outstanding on a lease with the plaintiff’s mother, the first defendant, and Kuncheru. They were cultivating tenants of the property and the land lords’ right title and interest over the property came to be vested in the Government on 1.1.1970, by reason of Section 72 of the Land Reforms Act. It was contended that therefore, the plaintiff did not have title over the property to be conveyed in favour of the third defendant on the date of execution of Ext.B2. Consequently, the plaintiff was not entitled to maintain a suit for setting aside Ext.B2 or claim one half share in the property. 5. The trial Court raised the following issues:- (i). Whether D1 and Kuncharu got kanapattom right as per the assignment deed number 1208 of 1959 ? S.A.199/1995 5 (ii). Whether plaintiff get any right as per the document No.1208 of 1959 ? (iii). Whether D1 and Kuncharu got fixity of tenure over the plaint schedule property as per Act 1 of 1964 ? (iv). Whether document number 916 of 1966 is void abinitio and against Act 1 of 1964 ? Whether plaintiff obtained any right as per that document ? (v). Whether document number 786 of 1977 is executed by D1 not as plaintiffs guardian also ? (vi). Whether 2nd defendant joined deed number 786 of 1977 as the owner of the property secured ? (vii).Whether the sale deed number 786 of 1977 is void for any reasons alleged in the plaint ? (viii). Whether plaintiff entitled to get the declaration and recovery prayed for ? (ix). Whether plaintiff is entitled to get share over the plaint property ? If so what share ? (x). whether plaintiff is entitled to get any mesne profits ? If so at what rate ? (xi). Whether D3 is not entitled to execute any document in respect of plaint schedule property ? S.A.199/1995 6 (xii).Whether injunction prayed for is allowable ? (xiii). Whether the suit is barred by limitation ? (xiv). Reliefs and costs. 6. The trial Court inter alia considered whether Ext.A1 sale deed, by which the plaintiff and her mother acquired jenmam right over the property, is a valid document and went on to affirmatively find the same. The issue regarding limitation was found against the third defendant essentially on the ground that Ext.B2 is a void document, it having been executed, by a person other than the natural guardian and that too without obtaining the consent of the Court under Section 8 of the Hindu Minority and Guardianship Act. The time for filing the suit was therefore, reckoned as 12 years in terms of Article 65 of the Limitation Act. Ext.B2 document was found to be void in so far as it relates to the plaintiff’s share in the property. It was in these circumstances, that the trial Court proceeded to decree the suit as stated above. S.A.199/1995 7 7. The lower appellate Court agreed with the trial Court on the question of limitation finding that Ext.B2 sale deed is void and therefore, suit can be filed within 12 years from the date of its execution. The lower appellate Court also agreed that the first defendant, the mother, was not a natural guardian and was therefore, incompetent to represent the plaintiff and that the previous permission of the Court had not been obtained. The lower appellate Court also found that the first defendant was not entitled to execute the sale deed on behalf of the plaintiff. 8. But the lower appellate Court disagreed with the trial Court that the plaintiff had title to the property. Lower appellate Court went on to find that Kuncheru remained the lessee of the property in spite of the assignment of the jenmam right in favour of the first defendant and the plaintiff, as per Ext.A1 sale deed dated 8.3.1966 and therefore, the right title and interest of the land lord over the property should be deemed to have vested in the Government under Section 72 of the Land Reforms Act. Consequently, according to S.A.199/1995 8 the lower appellate Court, plaintiff ceased to have any title to the property and the only right which she had, thereafter, was to get compensation for the property from the Government. On this basis, the lower appellate Court proceeded to reverse the judgment and decree of the trial Court and dismiss the suit. 9. This Court admitted the Second Appeal and issued notice on the following substantial questions of law:- (i). When a property outstanding on lease are liable to be resumed under the provisions of the KLR Act, whether the jenmam right of such properties vest in Government under Section 72 of the KLR Act ? (ii). Whether the sale deed in respect of such a land which is liable to be resumed under the KLR Act is hit by vesting possession under the Act ? S.A.199/1995 9 (iii). After having purchased the property by the defendant under a document admitting title and possession of the vendor, is not the defendant, vendor estopped from challenging the title and possession of the vendor ? 10. I heard Mr.T.R.Harikumar, learned counsel for the appellant and Mr.Pradeepkumar, learned counsel for the respondents. 11. In so far as the question of limitation is concerned, though the Courts below had found the said issue in favour of the plaintiff, learned counsel for the respondent persisted in contending that the suit is barred by Limitation. Respondent in an appeal is no doubt, entitled to support the impugned judgment and decree even on grounds which have been found against the respondent by the lower Court, by virtue of order 41 Rule 33 of the CPC. But the question is whether the findings of the Courts below that the suit is not barred by limitation is correct or not. I am of the view that the finding of the Courts below in this regard is correct. S.A.199/1995 10 Time for filing a suit, either on title or prior possession for recovery of possession under Article 64 and 65 of the Limitation Act, as the case may be, is 12 years. Courts below had proceeded on the premise that Ext.B2 sale deed is a void one, by reason of the fact that the minor's share was not conveyed by the natural guardian and also because the Court's sanction had not been obtained under Section 8 of the Hindu Minority and Guardianship Act. It is settled law that a person other than the natural guardian cannot purport to alienate the minor’s share over any immovable property. A reading of Ext.B2 would show that the plaintiff was purported to be represented by her mother though admittedly the plaintiff's father is alive. Mother cannot act as a natural guardian except in the absence of the father. Learned counsel for the respondents Mr.Pradeep Kumar relies on Ms.Githa Hariharan v. Reserve Bank of India (AIR 1999 (SC) 1149) to contend that the mother can be a natural guardian even during the life time of the father. Supreme Court construed the word “absence” as occurring in Section 6(a) of the Hindu Minority and Guardianship Act in such a manner that S.A.199/1995 11 the mother was held to be competent to act as natural guardian even during the life time of the father in certain contingencies, which are specifically mentioned in paragraph 10 of the judgment, where the father is not actually in charge of the minor either because of his indifference or because of an agreement between him and the mother and the father is not able to take care of the minor for physical or for mental reasons. No such incapacity is pleaded qua the second defendant in the present case. In fact, the specific case pleaded by the third defendant in the written statement is that he was not even aware of the fact that the second defendant was the father and that the second defendant is a party to Ext.B2 sale deed. Thus, there is a clear infraction of Section 6 of the Hindu Minority and Guardianship Act, in so far as Ext.B2 is concerned, to the extent it purports to convey the share of the minor. If that be so, Ext.B2 is void to the extent of the minor’s share. Finding of the Courts below in this regard does not warrant any interference. Once Ext.B2 is treated as void in so far as it relates to the minor’s share, suit is obviously within the period of limitation. I do not find S.A.199/1995 12 any reason to take a different view on the question of limitation. 12. The crucial question for consideration, is whether the plaintiff derived any title to the property under Ext.A1 sale deed and had title to the property on the date of execution of Ext.B2 (original of Ext.A2) sale deed No.786 dated 16.3.1977. The fact that the plaintiff along with her mother had purchased the land lords’ interest over the property vide Ext.A1 is not in dispute. The fact that the plaintiff’s mother, the first defendant, also held a leasehold interest over the property along with Kuncheru is also not in dispute. When the lessee acquires lessor's interest over the property, it is a case where there is an extinguishment of the lease by virtue of Section 111(d) of the Transfer of Property Act. Plaintiff’s mother, Bhargavi, who was a lessee in relation to the property, also acquired lessor's interest over the property along with the plaintiff, by virtue of Ext.A1 document. Had the matters remained so, there obviously would not have been any further leasehold interest in the property, so as to result in a vesting of S.A.199/1995 13 the property by virtue of Section 72 of the Land Reforms Act with effect from 1.1.1970. 13. But it is a fact that along with the plaintiff’s mother, Kuncheru also had acquired leasehold interest of the property and the same had survived the execution of Ext.A1 sale deed, under which the plaintiff and her mother acquired the jenmam right over the property. The lower appellate Court takes note of this fact and finds that Kuncheru, who was admittedly one of the lessees of the property, had proceeded to execute Ext.B1 Release deed in favour of the third defendant in the year 1977. But Kuncheru remained lessee of the property on 1.1.1970 and consequently, the right title and interest of the plaintiff vested in the State by virtue of Section 72 of the Act. The lower appellate Court proceeded to find as a consequence thereto, that the plaintiff had no title to the property to be conveyed in favour of the third defendant on the date of execution of Ext.A2/B2. Is this the correct position in law ? S.A.199/1995 14 14. Section 72(1) of the Land Reforms Act reads as follows:- “On a date to be notified by the Government in this behalf all right, title and interest of the landowners and intermediaries in respect of holdings held by cultivating tenants (including holders of kudiyiruppus and holders of karaimas) entitled to fixity of tenure under Section 13 and in respect of which certificates of purchase under sub- section (2) of section 59 have not been issued, shall, subject to the provisions of this section, vest in the Government free from all encumbrances created by the landowners and intermediaries and subsisting thereon on the said date.” 15. The lower appellate Court proceeded on the assumption that Kuncheru was a cultivating tenant of the property on the date of Ext.A1 sale deed under which the plaintiff and her mother acquired the jenmam right over the property and continued to be a cultivating tenant even as on the crucial date of 1.1.1970. I am S.A.199/1995 15 afraid, this assumption does not seem to be warranted as a matter of law. 16. Section 2A of the Act defines cultivating tenant as follows:- “Cultivating tenant” means a tenant who is in actual possession of, and is entitled to cultivate, the land comprised in his holdings. 17. No doubt, Kuncheru along with the first defendant acquired the leasehold interest over the property, but does it follow as a matter of law that Kuncheru continued to be a cultivating tenant of the property even after 8.3.1966 and was a cultivating tenant on the crucial date of 1.1.1970 ? There is nothing on record to indicate that Kuncheru had a claim that she was the cultivating tenant of the property as on 1.1.1970. Ext.A1 sale deed refers to the leasehold interest of Kuncheru, acquired along with the first defendant, the plaintiff's mother. Ext.B1 is the Release deed executed by S.A.199/1995 16 Kuncheru on the same date on which Ext.B2 sale deed was executed, ie, on 16.3.1977. Recitals in Ext.B1 Release deed are significant. After referring to the acquisition of jenmam right by the first defendant, the mother, along with the plaintiff as per Ext.A1 sale deed dated 8.3.1966, Kuncheru specifically affirmed that the property in question continued to be in the possession of Bhargavi, the first defendant, and others namely the plaintiff, who also purchased the land lords' right over the property by Ext.A1 sale deed. Kuncheru does not affirm possession of the property on the date of Ext.B1 Release deed. 18. Learned counsel for the respondent is correct when he submits that the mere fact that the plaintiff's mother and plaintiff had purchased the jenmam right over the property under Ext.A1 would not result in the extinguishment of the leasehold interest held by Kuncheru. Extinguishment of the leasehold right over the property took place only insofar as the plaintiff's mother is concerned. But survival of a residuary leasehold interest over the property ipso-facto, without S.A.199/1995 17 such a person actually exercising acts of possession over the property, will not make him eligible to be treated as a cultivating tenant under Section 2(8) of the Land Reforms Act. If Kuncheru had continued to be in possession of the property after Ext.A1, in spite of acquisition of the ownership right by the plaintiff and her mother and had continued such possession, even as on 1.1.1970, then, she could have claimed to be a cultivating tenant of the property. In such circumstances, as a matter of law, there could have been a vesting of the property in the State under Section 72 of the Act. It is not a matter of insignificance that Kuncheru did not, at any point of time, approach the competent land tribunal claiming right as a cultivating tenant of the property. It is also not a matter of insignificance that even in the release deed executed by Kuncheru on 16.3.1977, Kuncheru had specifically referred to the continued possession of the property by the plaintiff's mother and the plaintiff, after the execution of Ext.A1. In other words, Kuncheru had not claimed any right as a cultivating tenant over the property and it is an extremely moot question as to S.A.199/1995 18 whether Kuncheru could have raised such a claim, as per Section 2(8) of the Land Reforms Act. 19. Section 72 of the Land Reforms Act provides for statutory vesting of the right title and interest of the land owners and intermediaries in respect of holdings held by cultivating tenants. The term cultivating tenant as occurring in Section 72 of the Act should naturally derive its meaning from the said word as defined under Section 2(8) of the Act. Cultivating tenant under Section 2(8) of the Act means that tenant who is in actual possession of and entitled to cultivate the land comprised in his holding. The question is whether Kuncheru was a cultivating tenant in relation to the property as on the crucial date of 1.1.1970. An issue as to whether Kuncheru was a cultivating tenant would generally arise only when Kuncheru makes a claim in that regard and the same is repudiated by any other person. As noted above, Kuncheru did not raise any such claim. But in circumstances where the third defendant set up a plea of statutory vesting of the right title and interest of the land owner, over the plaint S.A.199/1995 19 schedule property, by virtue of Section 72 of the Land Reforms Act, it is necessary to consider the said question. In this context, the recitals in Ext.B1 release deed executed by Kuncheru to the effect that the plaintiff’s mother continued to be in possession of the property (along with the plaintiff) with effect from the date of Ext.A1, is clearly inconsistent with any case of Kuncheru being a cultivating tenant of the property. No doubt, notwithstanding the acquisition of a jenmom right over the property by the plaintiff’s mother and the plaintiff, Kuncheru could have asserted the status of the lessee qua the plaintiff and the plaintiff’s mother with effect from the date of Ext.A1 sale deed if she had chosen to do so. The recitals in Ext.B1 clearly gives an indication to the contrary. In these circumstances, it cannot be said that Kuncheru was a cultivating tenant of the property as on 1.1.1970 and that therefore, there was a statutory vesting of the land lords’ right title and interest over the property by virtue of Section 72 of the Land Reforms Act. S.A.199/1995 20 20. There is yet another fact, which seems to have escaped the notice of the lower appellate Court when it came to the conclusion that the plaintiff did not have any title to the property to be conveyed on the date of execution of Ext.B2. The lower appellate Court came to the said conclusion on the premise that the plaint schedule property was outstanding on a lease with the cultivating tenant on 1.1.1970 and this would have resulted in a statutory vesting on 1.1.1970. The plaintiff’s mother, the first defendant, along with the plaintiff, admittedly acquired the jenmom right over the property as per Ext.A1 sale deed. Admittedly, the plaintiff’s mother was one of the lessees of the property on the date of Ext.A1. There is a merger of the lessee's and lessor's interest insofar as the plaintiff’s mother is concerned, by reason of Ext.A1. Plaintiff became a part owner of the property by reason of Ext.A1. Plaintiff is entitled to exercise ownership rights over the entirety of the property on the strength of Ext.A1. Plaintiff's mother, who became part owner of the property, was entitled to convey the same. Significantly, even the third defendant had contended that the plaintiff’s S.A.199/1995 21 mother was entitled to convey her share over the plaint schedule property. A residuary right over the property could have been pleaded only by Kuncheru and she had not done that. Nominal residuary leasehold interest over the property was relinquished by her in favour of the third defendant, as per Ext.B1 Release deed. In such circumstances, finding of the lower appellate Court that the plaintiff did not have any title to be conveyed as per Ext.B2 sale deed, is unsustainable. 21. For all these reasons, I find that the substantial questions of law formulated in the Second Appeal are eligible to be answered in favour of the appellant. I do so. In the result, the Second Appeal is allowed. The judgment and decree of the lower appellate Court shall stand set aside and that of the trial Court shall stand restored. Parties shall bear their respective costs. sd/- V.GIRI, S.A.199/1995 22 Judge mrcs //true copy// P.A. to Judge