IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH THURSDAY, THE 17TH DECEMBER 2009 / 26TH AGRAHAYANA 1931 SA.No. 796 of 1996(C) --------------------- AS.210/1993 of ADDL.SUB COURT, THALASSERY OS.69/1988 of MUNSIF COURT, KUTHUPARAMBA .................... APPELLANT(S)/APPELLANTS/DEFENDANTS: -------------- 1. KIDAVUNNIL PADUVILAN MADHAVI AMMA, KOLARI AMSOM, MATTADI DESOM, THALASSERY TALUK. 2. SON -DO- RAMAKRISHNAN NAMBIAR -DO- 3. SISTER USHAMANI AMMA -DO- 4. BROTHER RADHAKRISHNAN -DO- 5. KIDAVUNNIL PADUVILAN KUNHIKANNAN ALIAS GOPALAN -DO- 6. SISTER NARAYANI AMMA -DO- BY ADV. SRI.R.PARTHASARATHY SMT.PREETHY KARUNAKARAN SRI.G.SREEKUMAR (CHELUR) RESPONDENT(S)/RESPONDENTS/PLAINTIFFS: --------------- 1. KIDAVUNNIL PADUVILAN JANAKI AMMA, THILLENKERI AMSOM, ALAYAD DESOM, THALASSERY TALUK. 2. DAUGHTER MEENAKSHI AMMA -DO- 3. BROTHER GANGADHARAN NAMBIAR -DO- 4. BROTHER BALAKRISHNAN -DO- 5. SISTER CHANDRAMATHI AMMA -DO- 6. BROTHER BABURAJ -DO- 7. VASANTHI AMMA -DO- SA NO.796/1996 2 8. BROTHER SREENIVASAN -DO- 9. BROTHER SASIDHARAN -DO- 10. BROTHER MURALEEDHARAN -DO- 11. SISTER BINDU -DO- ADV. SRI.K.V.PAVITHRAN FOR R1 TO 11 SRI.M.P. JAYANANDAN FOR R1 TO 11 THIS SECOND APPEAL HAVING BEEN FINALLY HEARD ON 17/12/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: THOMAS P. JOSEPH, J. -------------------------------------- S.A.No.796 of 1996 -------------------------------------- Dated this the 17th day of December, 2009. JUDGMENT This Second Appeal arises from judgment and decree of learned Additional Sub Judge, Thalassery in A.S.No.210 of 1993 confirming judgment and decree of learned Munsiff, Kuthuparamba in O.S.No.69 of 1988. Parties are referred to as plaintiffs and defendants as in the trial court for convenience. 2. As per plaint averments, parties hereto are members of Kottayattukunnummel Kidavunnil Paduvilan Tarwad (for short, “the Tarwad”) to which the suit properties belonged in jenm. According to the plaintiffs, there was a division of properties of the Tarwad as per Exts.B1 and B2, settlement deeds of 1901 and 1912 involving all members of the Tarwad. That was followed by another settlement deed Ext.B3, of the year 1925 as per which properties were allotted to different tavazhies under the Tarwad. While so Ext.A1, settlement deed was executed in the year, 1956 as per which tavazhi of Kalyani Amma which includes plaintiffs and defendants settled item Nos.6 to 9 referred to therein among them. According to the plaintiffs, item No.7 is in the possession of tenant and the rest of the properties (item Nos.6, 8 and 9 of Ext.A1) are in joint possession and enjoyment of plaintiffs and defendants. As per Ext.A1, settlement deed of the year 1956 properties are to be in the joint possession of the eldest male member and eldest female member of the tavazhi. Tavazhi SA No.796/1996 2 came to an end by the enforcement of the Joint Family System (Abolition) Act, 1976 with effect from 1.12.1976 and thereafter suit properties are being held by the plaintiffs and defendants in co-ownership. In the circumstances plaintiffs demanded partition and separate possession of their share in the suit properties. Plaintiffs learnt that defendant No.5 claimed tenancy in respect of plaint schedule item No.1 on the strength of a marupattam deed dated 30.7.1966 but the allegation is false and at any rate, tenancy allegedly created is invalid since it violated provisions of the Kerala Land Reforms Act (for short, “the Act”). Defendant No.5 has obtained purchase certificate by fraud and collusion without impleading or giving notice to all members of the tavazhi. Plaintiffs contended that the signature allegedly of Kalyani Amma found in the J form based on which purchase certificate was issued to defendant No.5 is forged. Plaintiffs wanted a declaration that defendant No.5 has no right of tenancy over item No.1 and for partition of item Nos.1 to 3. Defendants resisted the suit contending that there was no partition of properties in the Tarwad or tavazhi, documents referred to by the plaintiffs only made arrangement for maintenance of the respective tavazhies and so far as it did not amount to partition, suit is bad for non-joinder of necessary parties since all members of the Tarwad (numbering around 400) are not impleaded in the suit. As all the properties of the Tarwad are not included, suit is bad for partial partition. It is further contended that so far as item No.1 of the plaint schedule is concerned, that property was outstanding on kuzhikkanam right with Chandroth Kunhambu Nair having acquired that from Kalyani Amma in the year, 1963 and while so in the year, 1966 Kunhambu Nair SA No.796/1996 3 executed Ext.B4, registered kuzhikana marupattam in favour of said Kalyani Amma. Kunhambu Nair assigned his leasehold right on item No.1 to defendant No.5 as per Ext.B5, registered assignment deed of the year 1972. In suo motu proceedings initiated by the Land Tribunal in the year 1973, a joint application (in J form) signed by defendant No.5 and Kalyani Amma was submitted before the Land Tribunal and based on that, purchase certificate was issued to defendant No.5. It is incorrect to say that the purchase certificate was obtained by fraud. The purchase certificate is valid. Defendant No.5 has assigned item No.1 in favour of defendant No.6 as per Ext.B6. Defendant Nos.5 and 6 thus got fixity of tenure over item No.1 and at any rate the issue has to be referred to the Land Tribunal for decision. Further contention is that at any rate, right, title and interest of plaintiffs over plaint schedule item No.1 is lost by adverse possession and limitation. Learned Munsiff held that the purchase certificate is obtained fraudulently, there is no evidence to show that Kalyani Amma had signed the notice issued to her from the Land Tribunal or the J form, no notice was given to other members of the tavazhi of Kalyani Amma and hence the purchase certificate is not binding on any member of the tavazhi. Learned Munsiff found against the contention that the suit is bad for non-joinder of other members of the tavazhi since evidence revealed that there was a partition of properties among different tavazhies of the Tarwad and further that defendant No.5 who acquired right of another tavazhi of the same Tarwad in respect of the properties of that tavazhi is estopped from contending otherwise. Though, defendant No.5 had raised an argument that at any rate, he is entitled to the SA No.796/1996 4 protection of Section 6C of the Act learned Munsiff did not consider that contention as there was no such plea. It was held that suit properties are partiable among plaintiffs and defendants and accordingly a preliminary decree was granted after declaring that defendant No.5 has not acquired any right of tenancy over plaint schedule item No.1. Preliminary decree and judgment were challenged in appeal but the defendants did not get any respite. Hence the Second Appeal. Following substantial questions of law are framed: i. Whether the courts below are justified in holding that the purchase certificate issued in favour of defendant No.5 is obtained by fraud? ii. Whether, the courts below were justified in holding that defendant Nos.5 and 6 are not entitled to fixity of tenure? iii. Whether the courts below are justified in holding that defendant Nos.5 and 6 are entitled to protection of Section 6C of the Act? iv. Whether the plea of adverse possession raised by defendant Nos.5 and 6 is acceptable? 3. It is contended by learned counsel for the appellants/defendants that finding of the courts below that Ext.B7, purchase certificate is obtained fraudulently is not sustainable. According to the learned counsel, fraud alleged by respondents/plaintiffs is intrinsic to the proceedings of the Land Tribunal SA No.796/1996 5 which is not required to be considered by the civil court and at any rate, no sufficient evidence is let in to show that there was fraud in obtaining the purchase certificate. Learned counsel submitted that it was not on the application of defendant No.5 that proceedings for issue of purchase certificate was taken, instead, it was a suo motu proceeding initiated by the Land Tribunal in which a joint application (J form) was submitted by defendant No.5 and Kalyani Amma representing the tavazhi of plaintiffs and defendants. It is contended by the learned counsel that even if it is assumed that Ext.B7, purchase certificate cannot stand, still the question whether defendant No.5 and under him defendant No.6 are entitled to fixity of tenure is not a matter which the civil court could have decided as that matter ought to have been referred to the Land Tribunal for a decision in view of Section 125 (3) of the Act. Without complying with the said procedure, courts below went wrong in holding that the lease is in violation of Section 74 of the Act and hence is invalid. A further contention is that in so far as there is no evidence of partition, all members of the Tarwad are necessary parties to the suit and entire properties of the Tarwad should have been brought in for partition. Learned counsel contends that finding of the courts below that defendant No.5 is estopped from contending otherwise is not sustainable since there can be no estoppal against the provisions of law. Per contra, it is contended by learned counsel for plaintiffs that there is sufficient evidence to show that no notice was served on Kalyani Amma as claimed by defendant No.5 which a perusal of Ext.X1, file would reveal. It is contended that at any rate, publication of notice as required under SA No.796/1996 6 Section 72 F of the Act has not been made and there is nothing on record to show that other members of the tavazhi of Kalyani Amma were given notice of the proceeding. Kalyani Amma was not competent to represent or bind the tavazhi and create a lease binding the entire members of the tavazhi. Learned counsel contends that evidence on record would show that there was division of properties among different tavazhies of the Tarwad which has been accepted and acknowledged by defendant No.5 also by his conduct of purchasing properties allotted to another tavazhi of the same Tarwad and hence defendant No.5 cannot now turn around and contend that there was no partition. Learned counsel contends that when the civil court is conferred with jurisdiction to decide whether the purchase certificate is obtained fraudulently, it is the incidental power of the civil court to decide whether defendant No.5 is a tenant of the suit properties and as such there is no jurisdictional error in the courts below entering a finding that defendant No.5 is not a tenant of the suit properties. Further contention is that argument based on Section 6C of the Act cannot be sustained in the absence of plea and evidence. At any rate, defendant No.5 having set up a specific lease and failed in that, cannot seek the protection of Section 6C of the Act. Learned counsel concluded that there is no reason to interfere with the judgment and decree of the courts below as it is based on the evidence on record and involved no substantial question of law. SA No.796/1996 7 4. It is not disputed that based on a 'J form' signed by defendant No.5 and allegedly by Kalyani Amma the Land Tribunal in Suo Motu Proceedings No.1164 of 1973 issued Ext.B7, purchase certificate to defendant No.5. Contention raised by the plaintiffs in this regard is two fold - firstly, no notice was given to Kalyani Amma from the Land Tribunal in the said S.M.Proceedings, she has not signed any J form along with defendant No.5 and there was no notice to other members of the tavazhi and no notice as required under Section 72 F of the Act was also published as Ext.X1, file would reveal. Secondly, Kalyani Amma was not competent to bind or represent the thavazhi since going by Section 3(c) of the Madrass Marumakkathayam Act, Kalyani Amma could not have been karanavathi of the tavazhi as the provision required that the oldest male member of the tavazhi should be karanavan and only in the absence of a male member, oldest female member could manage properties of the tavazhi. Under Section 33 of that Act, no lease created by the karanavan can bind the tavazhi unless it was for consideration, necessity or benefit of the tavazhi and unless such lease is with the written consent of majority of major members of the Tarwad. 5. So far as the issue regarding alleged fraud is concerned, binding decisions on the point say that civil court cannot go into intrinsic fraud if any committed in the proceedings of the Land Tribunal. Civil Court cannot interfere with the findings of the Land Tribunal on the ground that it is obtained by perjured evidence. Fraud alleged must be extraneous. [See Bappu @ SA No.796/1996 8 Moidunni v. Mohammed (1993 (2) KLT 969)]. Two grounds upon which fraud is alleged in the proceedings of the Land Tribunal are that Kalyani Amma has not signed the J form and that she has not been served with the notice of Suo Motu Proceedings. So far as alleged service of notice on Kalyani Amma in the proceeding is concerned, Ext.X1, file purports to show that notice was served on Kalyani Amma through the Village Officer concerned on 16.11.1974 [see Ext.X1(b)]. Ext.X1(b) contains endorsement of the official serving notice on Kalyani Amma to that effect. That has been countersigned by the Village Officer and submitted to the Land Tribunal. That service of notice was part of the official duty of the official concerned and as per Section 114 (e) of the Indian Evidence Act there is a presumption regarding regularity of official acts. That presumption is available to service of notice through the official concerned. Then the question is whether that presumption has been rebutted by the plaintiffs. 6. Ext.X1 also shows that J form was signed, indisputably by defendant No.5 and disputedly by Kalyani Amma. PW1 is the grandson of Kalyani Amma examined to show that the signatures allegedly of Kalyani Amma found in Ext.X1, file are not of her. To support that contention plaintiffs produced Ext.A2, a demand promissory notice admittedly executed by Kalyani Amma on 20.10.1950. Going by the age of PW1 given in his deposition he should have been aged only two or three years at the time of Ext.A2 and necessarily, he can have no direct information about the signature of Kalyani SA No.796/1996 9 Amma in Ext.A2. It is true that genuineness of Ext.A2 cannot be disputed by defendant No.5 since Ext.A2 is referred to in Ext.A3 to which defendant No.5 is also a party. My attempt is only to show that Ext.A2 by itself is not sufficient to show that the signature appearing to be of Kalyani Amma in Ext.X1, file is not put by her. PW1 would admit that he has not seen Kalyani Amma signing any document, but she has signed in his presence in three papers. He has seen her signing receipt in favour of the tenant of item No.7 of Ext.A1. But none of those receipts are produced. I must bear in mind that Ext.A2 produced for comparison of signature of Kalyani Amma with her disputed signatures (in Ext.X1, file) is of the year 1950 whereas the disputed signatures in Ext.X1 are put in the year 1974. It needs no mention that after a period of 24 years there was possibility of difference in the signatures even when it is put by the same person. There is no document of the relevant period (1974) produced by the plaintiffs to prove admitted signature of Kalyani Amma to show that signatures in Ext.X1, file are not that of Kalyani Amma. No attempt is made by the plaintiffs to rebut presumption under Section 114(e) of the Evidence Act by summoning the official who is said to have served notice on Kalyani Amma. On the other hand, defendants have examined DWs 2 and 3. DW2 is a witness in the 'J form' . He has stated that Kalyani Amma signed the J form in his presence. She is known to him since 25 years. DW2 is a witness in the J form. DW3 is the scribe of the 'J form'. He has stated that the jenmi (Kalyani Amma) signed the J form in his presence and he also signed the same. It has been held that when a previous judgment is challenged on the ground of fraud, evidence SA No.796/1996 10 must be of a high degree as in criminal cases since the allegation of fraud has to be established beyond reasonable doubt. (See Hans Raj Gupta and others v. Dehra Dun-Mussoorie Electric Tramway Company Ltd (1941 P.C. 93) and Narayanan Chettiyar v. Official Assignee, Rangoon (1941 ALJ 683). It is not sufficient that mere preponderance of probability is shown to prove that an earlier decision of a competent Court or Tribunal is obtained by fraud, evidence of high degree is essential. Having heard counsel on both sides and going through the records, I am not satisfied that such a high degree of evidence is let in by the plaintiffs to show that Ext.B7, purchase certificate is obtained by defendant No.5 fraudulently. Finding of the courts below in that regard is erroneous since courts below forgot the basic principle as to the degree of proof required to prove the allegation of fraud. 7. Next question is whether in the light of my finding that allegation of fraud in obtaining Ext.B7 is not established, defendant No.5 can be said to be a tenant of item No.1. It is not disputed that as per Ext.A1, item Nos.1 and 2 were given to the tavazhi of Kalyani Amma which takes in plaintiffs and the defendants. Under Section 3(c) of the Madras Marumakkathayam Act 'Karanavan” is the oldest male member of the Tarwad or tavazhi as the case may be in whom right to management of its properties vests or in the absence of a male member, the oldest female member or where by custom or family usage the right to such management vests in the oldest female member, such female member will be the karanavan. Section 33(1) of the said Act states SA No.796/1996 11 that no sale or mortgage of any immovable property of a Tarwad and no lease of any such property shall be valid unless it is executed by the Karanavan for consideration, for Tarwad necessity or benefit, and with the written consent of majority of major members of the Tarwad. Section 34 of the said Act states that a debt contracted or other transaction entered into by the Karanavan will not bind the Tarwad unless such debt or transaction is entered into for consideration and for Tarwad necessity or benefit. Section 34A states that the burden of proving Tarwad necessity or benefit shall be on the purchaser, mortgagee, other alienee, etc. as the case may be. In this case at the time when the alleged lease was created in favour of Chandroth Kunhambu Nair in the year 1963, defendant No.5 was the seniormost male member of the tavazhi. Hence he should have been the karanavan. But according to the defendants, lease was granted by Kalyani Amma. That lease cannot bind the tavazhi. Nor was the lease granted with the written consent of majority of members of the tavazhi. Though defendants contended that such written consent was obtained, there is absolutely no evidence in that line. There is also no evidence that the lease was for the benefit or legal necessity of the tavazhi. It is not disputed that at the time J form was signed by Kalyani Amma, defendant No.5 was the oldest male member of the tavazhi. It is not clear whether apart from defendant No.5 there was any other major male member in the tavazhi during the relevant time but going by the age of PW1 given in the evidence himself being a major male member next to defendant No.5 cannot be ruled out. Going by the definition of Karanavan in Section 3 (c)of the Madras Marumakkathayam Act, Kalyani Amma SA No.796/1996 12 could not have been the Karanavathi of the tavazhi during the relevant time. I do not forget that learned counsel for defendants have a contention that Sections 33 and 34 of the Madras Marumakkathayam Act would apply only in the case of Tarwad and not to tavazhi but that contention cannot be accepted. Tavazhi is a unit smaller to Tarwad and there is no indication in the Madras Marumakkathayam Act that the rules applicable to the Tarwad are not applicable to a tavazhi. No authority taking such a view has been brought to my notice. Moreover, the definition given in Section 3(c) of the Madras Marumakkathayam Act for the expression 'Karanavan' refers not only Tarwad but also tavazhi. Hence, in my view Sections 33 and 34 of the Act can apply in the matter of alienation of properties of the tavazhi as well. In so far as the tenancy allegedly created by Kalyani Amma does not come within the purview of Sections 33 and 34 of the Madras Marumakkathayam Act, learned counsel for plaintiffs is justified in contending that tenancy cannot bind the tavazhi or its properties. 8. Yet another question for consideration is whether publication of notice under Section 72 F of the Act was required and if so, such notice was published and whether notice was served on other members of the tavazhi. Ext.X1, file does not show that any such notice was published or individual notice was served on any other member of the tavazhi. Learned counsel for defendants have a contention that going by Section 72 MM of the Act, public notice was not required with respect to the proceeding as there was no joint SA No.796/1996 13 application but there was only a 'J form' signed by the tenant and jenmi. Section 72 MM of the Act refers to assignment by mutual consent and it also states that where the right, title and interest of the land owner and the intermediary or intermediaries if any in respect of a holding have vested in the Government under Section 72, the cultivating tenant, land owner, intermediary or intermediaries and other persons referred to therein may jointly apply to the Land Tribunal for an order assigning right, title and interest of the land owner. Even according to the defendants, the J form was signed only by Kalyani Amma as jenmi and by defendant No.5 as the tenant. There is no case that any other member of the tavazhi had signed the J form. That defendant No.5 was the oldest male member of the tavazhi and he himself applied for purchase of landlords' right does not dispense with the necessity to issue notice to other members of the tavazhi. Section 72 F of the Act states that when an application under Section 72 B or under Section 72 BB of the Act has been received by the Land Tribunal, it shall publish or cause to publish a notice in the prescribed form. Sub-section (4) of Section 72 MM states that before passing an order under Sub-section (3), Land Tribunal shall so far as may be follow the procedure laid down, among other things, the provisions of Section 72 F (1) of the Act as well. Therefore in the matter of assignment by mutual agreement coming under Section 72 MM of the Act, publication of a notice as referred to in Section 72 F (1) of the Act was required. In Manickan and another v. Kanakam and another (1990 (2) KLJ 702), at page No.708 it was stated that all the persons interested in the matter are entitled to notice. Members of the tavazhi SA No.796/1996 14 are persons interested. Paragraph No.8 of that decision would reveal that in that case, it was a joint application preferred by the parties concerned and it was held that by virtue of Section 72 MM (4) read with Section 72 F (1) of the Act notice is required to be published in such matters also. Therefore contention that in the case of an application by presentation of J form there was no necessity to comply with Section 72 F (1)