IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR FRIDAY, THE 1ST JULY 2011 / 10TH ASHADHA 1933 RSA.No. 760 of 2003(F) ---------------------- AS.354/1999 of DISTRICT COURT, THRISSUR OS.309/1997 of MUNSIFF COURT,,VADAKKANCHERRY .................... APPELLANT/APPELLANT/PLAINTIFF -------------------- GOVINDANKUTTY NAIR, S/O. PUTHENVEETTIL PARUKUTTY AMMA MALESAMANGALAM DESOM, THIRUVILWAMALA VILLAGE THALAPPILLY TALUK. BY ADV. SRI.N.N.SUGUNAPALAN, SENIOR ADVOCATE RESPONDENTS/RESPONDENTS/DEFENDANTS --------------- 1. RADHAMANI AMMA, D/O, KONGATT SEETHALAKSHMI AMMA ELANAD VILLAGE, THALAPPALLY TALUK. 2. KRISHNAKUMAR, S/O. RADHAMANI AMMA KONGATT HOUSE, DO,. DO. 3. DARSANA, D/O. RADHAMANI AMMA, DO. DO. 4. MOHANKUMAR, S/O. PUTHENVEETTIL ACHUTHAN NAIR, “ANUGRAHA”, KAMALALAYA ROAD, OTTAPALAM. 5. SAINABA W/O. BADARUDHEEN MALESEMANGALAM DESOM, TALAPPALLY TALUK. ADV. SRI.T.KRISHNAN UNNI, SENIOR ADVOCATE FOR R5 SRI.JIJO PAUL FOR R1 TO R3 THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 01/07/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: M.SASIDHARAN NAMBIAR, J ........................................... RSA No.760 OF 2003 ............................................ DATED THIS THE 1st DAY OF JULY, 2011 JUDGMENT Plaintiff in O.S.309 of 1997 on the file of Munsiff Court, Vadakkanchery is the appellant. Respondents are the defendants. Suit was filed for a declaration that plaint schedule properties were jointly acquired by the appellant and deceased Achuthan Nair and respondents 1 to 4 alone are not entitled to alienate the property and for a further declaration that assignment deed 1321 of 1997 executed by respondents 1 to 4 is not valid and binding on the appellant or the plaint schedule properties and for a permanent prohibitory injunction restraining the 5th respondent assignee from trespassing into the plaint schedule property and for a permanent prohibitory injunction restraining respondents 1 to 4 from transferring item Nos. 2 and 3 of the plaint schedule property. In the plaint it was contended that he and deceased Achuthan Nair were members of Perugottukurissi Puthenveed tarawad. Achuthan Nair was working in Military and retired in 1997. Achuthan Nair, his uncles Madhavankutty Nair and RSA 760/2003 2 Krishnankutty Nair and appellant had jointly owned 12.73 ½ acres of land in Thiruvilwamala Village purchased under Ext.A1/B1 registered sale deed 566/1969. Subsequently Madhavankutty Nair and Krishnankutty Nair released their right in favour of the appellant and Achuthan Nair under Ext.A2, and A3/B3 and B4 released deeds. Thus appellant and Achuthan Nair alone have right over the said property. While so, for the purpose of preparing the seedlings for paddy cultivation in those properties, the plaint schedule properties were purchased under Ext.A4/B2 egistered sale deed 97/1972 in the name of Achuthan Nair. Achuthan Nair died on 10.2.1997. Appellant would contend that as the properties were purchased for the cultivation of the properties jointly owned and Ext.A1 A3, he is having equal right to the property. Thereafter plaint schedule properties are in the possession and enjoyment of the appellant. It was contended that when he had gone to item No.1 of the plaint schedule properties, he was prevented by husband of the fifth respondent and on enquiry it was found that respondents 1 to 4 assigned in favour of fifth respondent under registered assignment deed 1321/97 and the said sale deed will not affect his rights. Appellant sought a declaration that it is not binding on the RSA 760/2003 3 appellant or the plaint schedule properties. It was also contended that respondents 1 to 4 are attempting to alienate item Nos.2 to 4 of the plaint schedule properties and they have no right to alienate and sought a decree for injunction restraining alienation. 2. Respondents 1 to 4 resisted the suit contending that plaint schedule properties belonged to Late Achuthan Nair and on his death, it devolved on his legal heirs and appellant has no right or title to the property. It was contended that for consideration of Rs.5000/- received from 5th respondent, item No.1 of the plaint schedule property was assigned in favour of 5th respondent and in fact out of the sale consideration, Rs.20,000/- was received by Achuthan Nair earlier and 5th respondent was put in possession of the property and as Achuthan Nair bequeathed his entire properties under registered will dated 8.12.1998 in favour of respondents 1 to 4, the entire properties devolved on respondents 1 to 4 and they are entitled to assign the property and appellant is not entitled to challenge it. Fifth respondent in his written statement reiterated the contentions raised by the other respondents and contended that during the life time of Achuthan Nair an agreement for sale was entered into and later the properties were assigned in his favour and therefore appellant RSA 760/2003 4 is not entitled to the decree sought for. A counter claim was preferred by respondents 1 to 4 in respect of 13 items of properties out of which item Nos. 1 and 2 are the same, viz, item Nos.2 and 3 of the plaint schedule properties. 3. Learned Munsiff, on the evidence of PW1, Dws 1 to 4, Exts.A1 to A12 and B1 to B8 and X1 dismissed the suit and granted a decree in the counter claim holding that item Nos. 1 to 13 of the counter claim schedule properties belonged to Achuthan Nair and under the will, respondents 1 to 4 have title to the property and they are entitled to recovery of possession from the appellant with mesne profits, at the rate of Rs.100/- from item Nos. 1 and 2, Rs.3250/- from item Nos. 3 and 4, Rs.300/- from item Nos.5 to 10 & Rs.2250/- from item Nos. 11 to 13 of counter claim schedule properties. Appellant challenged the judgment before District Court, Thrissur in A.S.354 of 1999. Learned District Judge on reappreciation of the evidence confirmed the findings of the learned Munsiff and dismissed the appeal. It is challenged in the second appeal. 4. When the second appeal came up for admission, notice was issued before admission and records were called for. 5. Learned counsel appearing for appellant and respondents RSA 760/2003 5 were heard. 6. The plaint schedule properties were admittedly obtained by Achuthan Nair under Ext.A4 assignment deed. Item Nos.1 and 2 of the counter claim schedule properties are item Nos.2 and 3 of the plaint schedule properties. There is no dispute with regard to the remaining properties of the counter claim schedule properties that they belong to Achuthan Nair and on his death respondents 1 to 4 are entitled to the said properties. Achuthan Nair admittedly died on 10.2.1997. Respondents 1 to 4 are the wife and children. Under Ext.B8 registered will, Achuthan Nair bequeathed his rights in favour of respondents 1 to 4. Courts below on the evidence, accepted Ext.B8 will and found that on the death of Achuthan Nair, respondents 1 to 4 are entitled to his rights. There is no dispute on that aspect. The only case is that though Ext.A4 assignment deed stands in the name of Achuthan Nair, it was obtained by the appellant and Achuthan Nair. The case is that Achuthan Nair was serving in Military and retired in 1997 and 12.73 ½ acres of land was purchased jointly by Achuthan Nair, his uncle Krishnankutty Nair and Madhavankutty Nair and the appellant, the nephew of Achuthan Nair, as per Ext.A1 registered sale deed in 1969 and later the uncles, RSA 760/2003 6 Krishnankutty Nair and Madhavankutty Nair released their rights in favour of Achuthan Nair and appellant under Exts.A2 and A3 release deeds. It is the case that in order to cultivate the said properties, the plaint schedule properties were purchased under Ext.A4 and though the document stands in the name of Achuthan Nair, it was purchased for the appellant also and hence appellant has title to the property. If the case of the appellant is that for cultivating the tarawad properties the plaint schedule properties were purchased, appellant alone cannot claim title to the plaint schedule property. If the case of the appellant is that the property was purchased by Achuthan Nair on behalf of the assignees of Ext.A1 registered sale deed, appellant, Achuthan Nair, Madhavankutty Nair and Krishnankutty Nair, no reason is shown why the document was obtained only in the name of Achuthan Nair and not in the name of all the four. What was contended before the courts below was that the properties were acquired using the tarawad funds. The learned counsel appearing for appellant pointed out that in paragraph 6 of the plaint, there is a specific allegation that Ext.A4 assignment deed was executed with the income from the joint family properties. Except the said allegation, there is no evidence to prove that the consideration RSA 760/2003 7 for the acquisition of Ext.A4 was not paid by Achuthan Nair individually or to prove that the consideration was contributed by the assignees of 1969 document. The courts below in such circumstances rightly found that only Achuthan Nair had title to the properties purchased under Ext.A4 assignment deed. If that be so, on the death of Achuthan Nair, appellant cannot claim any right or title to the property and under Ext.B8 will, only respondents 1 to 4 have title to the property. As appellant has not title, courts below were fully justified in granting a decree for recovery of possession of the counter claim schedule properties with mesne profits. On the facts and evidence, no substantial question of law is involved in the appeal. Appeal is dismissed. M.SASIDHARAN NAMBIAR, JUDGE lgk