IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.BHAVADASAN WEDNESDAY, THE 20TH JULY 2011 / 29TH ASHADHA 1933 AS.No. 363 of 1995() -------------------- OS.256/1983 of PRL.S.C.,THALASSERY .................... APPELLANTS/THIRD DEFENDANT: ------------------------------------------------- 1. PONNARATH MATHU, VALIYANNUR AMSOM )(DIED & LEGAL HEIRS DESOM, PO VARAM, KANNUR DISTRICT )(IMPLEADED SUPPLEMENTAL APPELLANTS 2. PONNARATH SAROJINI, D/O.PONNARATH MATHU PARAKANDY HOUSE, VALIYANNOORE, PO VARAM PIN 670 594, KANNUR DISTRICT 3. PONNARATH BHASKARAN, S/O.LATE PONNARATH MATHU -DO- 4. PONNARATH SOUDAMINI, D/O. -DO- -DO- 5. PONNARATH RAVEENDRAN, S/O.-DO- -DO- 6. PONNARATH SURENDEREN, S/O.-DO- -DO- 7. PONNARATH BALAN (DIED) VALIYANNUR AMSOM, PO VARAM KANNUR DISTRICT 8. DEVAKI P, W/O,PONNARATH BALAN, AGED 50 YEARS VALIYANNUR AMSOM PO VARAM, KANNUR DISTRICT 9. HYMAVATHI P, D/O.PONNARATH BALAN, AGED 36 YEARS-DO- 10. MALATHY P, D/O. - DO – AGED 33 YEARS 11. HARIDASAN P, S/O.-DO- AGED 31 YEARS 12. RATNAKARAN P, S/O.-DO- AGED 28 YEARS 13. MANJULA P, D/O.-DO-. AGED 26 YEARS (R8 TO R13 TRANSPOSED AS APPELLANTS 2 TO 7 AND THE LEGAL HEIRS OF DESEASED 7TH RESPONDENT ARE IMPLEADED AS ADDL.APPELLANTS 8 TO 13 AS PER ORDER DT.24.10.08 ON IA NO.4421/08. IT IS ALSO RECORDED THAT THE ORIGINAL FIRST APPELLANT DIED AND HER LEGAL HEIRS ARE IMPLEADED AS THE ADDITIONAL APPELLANTS 2 TO 13 VIDE ORDER DT.24.10.08 ON IA 4421/08) BY ADV. SRI.K.V.SOHAN RESPONDENT(S)/PLAINTIFFS & 2ND DEFENDANT AND LEGAL REPRESENTATIVES OF THE 1ST DEFENDANT: ---------------------------------------------------------------------------------- 1. MANNAMBRATH NARAYANI, IRIVERI AMSOM )(DIED & LEGAL MUTHUKUTTY DESOM, KANNUR DISTRICT )(HEIRS IMPLEADED 2. MANNAMBRATH DAVARI KANDY LEELA @ VASANTHA, -DO- 3. MANNAMBRATH DAVARI KANDY PADMANABHAN -DO- 4. SOUDAMINI @ SOBHANA, DO - 5. CHERIKIRAM @ ASOKAN -DO- 6. ENATT NARAYANAN, CHELORA AMSON, DESOM, KANNUR DISTRICT 7. PONNARATH BALAN VALIYANNUR AMSOM, DESOM )( DIED & LEGAL PO VARAM, KANNUR DISTRICT )(HEIRS IMPLEADED 8. PONNARATH SAROJINI, -DO- )( 9. PONNARATH BHASKARAN, -DO- )( Transposed as 10. . PONNARATH SOUDAMINI, -DO- )( Additional 11. PONNARATH RAVEENDRAN,-DO- )( Appellants 2 to 7 12. PONNARATH SURENDRAN, -DO- )( (R8 TO R13 TRANSPOSED AS APPELLANTS 2 TO 7 AND THE LEGAL HEIRS OF DESEASED 7TH RESPONDENT ARE IMPLEADED AS ADDL.APPELLANTS 8 TO 13 AS PER ORDER DT.24.10.08 ON IA NO.4421/08). ADV. SMT.VIDHYA. A.C FOR R6 SRI.P.N.KRISHNANKUTTY ACHAN, SENIOR ADVOCATE FOR R2 TO R5 THIS APPEAL SUITS HAVING BEEN FINALLY HEARD ON 20.07.2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: P.BHAVADASAN, J. ------------------------------------- AS No.363 of 1995-D ------------------------------------- Dated this the 20th day of July 2011 Judgment The third defendant in OS No.256/83 before the Sub Court, Thalassery, is the appellant. It seems that during the pendency of the appeal, she died and her legal heirs were impleaded as additional appellants 2 to 13. The first respondent also died and respondents 2 to 6 have been recorded as her legal heirs. The seventh respondent died and legal heirs were also brought on the party array as additional respondents 8 to 12. This is the second round of litigation before this court. Fortunately, the necessary facts are stated in the earlier order of remand in AS No.90/89. I take the liberty of borrowing the statement of facts made mention of in the said remand order. 2. The suit was one for redemption and also for partition. The plaintiffs and the defendants are members of a thavazhy consisting of defendants 1 and 2 and late AS 363/95 2 Chirukandan. Chirukandan had three children. He was in Malaysia and he died on 03.01.1960. His wife and children are the plaintiffs. The third defendant is the wife of the first defendant. The first defendant admittedly was the Karanavan of the family. He, in his capacity as the Karanavan, executed a simple mortgage on 18.07.1946 in favour of one Appa. Appa gifted his rights in favour of his daughter – the third defendant in the suit, who is, as already stated, is the wife of the first defendant. The claim was that in 1954, the first defendant, as Karanavan of the thavazhy had executed a lease deed in favour of the third defendant styling it as kanam kuzhikanam. The consideration for the document was a mortgage covered by Ext.A3. 3. The plaintiffs had instituted OS No.6/61 before the Sub Court, Thalassery against the present defendants 1 and 2 and some others for partition of the share of Chirukandan over the property. The preliminary as well as the final decree were passed in that suit. It appears that in AS 363/95 3 the meanwhile, the third defendant filed OS No.293/71 before the Munsiff's Court, Kannur for a declaration that she is in absolute possession and enjoyment of the suit property on tenancy rights and for other consequential reliefs. The trial court decreed the suit. In appeal, the appellate court held that the first defendant could not claim the status of a tenant, however, finding that she is in possession of property, an injunction was granted. 4. In the present suit, it is contended that Ext.B1 is a sham transaction and that is created with the intention of defeating the rights of the members of the thavazhy. The first defendant contended that Exts.A3 and B1 were executed for family necessity and the third defendant was put in possession of the property. 5. Based on the pleadings, necessary issues were raised by the trial court. The issue regarding tenancy was remanded to the Land Tribunal and on the basis of the finding entered by the tribunal, the suit was decreed. The third defendant came up in appeal before this court in AS AS 363/95 4 No.90/89. This court found that the claim of the third defendant based on the provisions of S.7B of the Kerala Land Reforms Act had not been considered by the Land Tribunal and that question did arise for consideration on the facts of the case. This court remanded the matter with the observation that if it is found that Ext.B1 is not a collusive document, intended to defeat the rights of members of the thavazhy, then, probably, the third defendant may be entitled to fixity of tenure. Exts.A1 to A3 and Exts.B1 to B36 are marked and DWs 1 and 2 are examined. 6. On a consideration of the materials before it, the lower court came to the conclusion that Ext.B1 is vitiated by collusion and it is not a genuine document created with the intention of defeating the interest of the members of the thavazhy and accordingly, a preliminary decree was passed which reads as follows : 1.The plaintiffs will deposit the mortgage amount of Rs.500/- due to the third defendant in the court within AS 363/95 5 one month. 2.Out of which defendants 1 and 2 are liable to pay 1/3rd each to the plaintiffs . 3.After getting redemption, the plaint schedule properties will be divided into three equal shares. The plaintiffs are entitled to get one share and defendants 1 (41st page begins) and 2 are entitled to get 1 share each. 4.The share of the fits defendant can be allotted to the third defendant, who is his own wife. The first and third defendants who is his own wife. The first and third defendants have to give future mesne profits to the plaintiffs and the second defendant in the ratio of allotment of the shares. 5.The costs of the suit can be met from the estate. 6.Any one of the parties who have paid court fee can apply or passing final decree.” The above decree is assailed in this appeal. The only question that arises for consideration in this appeal is whether the claim of the third defendant in the suit based AS 363/95 6 on Section 7B of the Kerala Land Reforms Act is sustainable. 7. The learned counsel for the appellant pointed out that the court below was not justified in coming to the conclusion that Ext.B1 was a collusive transaction intended to defeat the interest of the members of the thavazhy. At the relevant time, the first defendant was admittedly the Karanavan of the thavazhy and he has clearly stated that Ext.B1 lease was executed for family necessity. Therefore, it is contended that the judgment and decree of the lower court are unsustainable. 8. One needs to notice that Ext.B1 is dated 03.02.1971 which is styled as a kanam kuzhikanam deed. It is executed by the first defendant who is none other than the husband of the third defendant while he was the Karanavan of the thavazhy. As rightly noticed by the trial court, even assuming that the Karanavan was competent to execute the lease deed, it must be for family necessity. When an issue is raised regarding collusion, the burden is AS 363/95 7 on the person who claims that it was for family necessity that the document was executed, to establish the said fact. In this context, it will be profitable to refer to the Full Bench decision of this court in Mohammed v. Devaki Amma (1995(2) KLT 155), wherein it was held as follows : “A person claiming benefit under S.7B has necessarily to satisfy his bona fides in the claim. On the basis of a registered deed purporting to be lease deed, a person cannot claim benefit under S.7B if he fails to establish bona fides of the transaction. Contention of the 6th defendant that S.7B does not even remotely make mention of bona fide nature of occupation unlike S.7 and so the occupation of the land whether it is bona fide or not does not matter, cannot be countenanced.” 9. There is absolutely no evidence to show the existence of family necessity which compelled the first AS 363/95 8 defendant to execute a lease in favour of the third defendant. It also needs to be noticed that the third defendant had instituted OS No.299/71 wherein she had claimed fixity of tenure and consequential injunction. The court, after considering the merits of her claim, found that she is not entitled to claim tenancy rights, but granted a decree on the sole ground that she was found in possession of the property. 10. It is seen from the records that there were several litigations between the parties and this is only item of property involved in the suit. There is nothing to show that Ext.B1 is a bona fide one. In fact, from the available evidence, one can come to the conclusion that it was with the intention of defeating the rights of other members of the family. 11. As regards the pleading based on adverse possession and limitation, there was no contention in that regard in the written statement and so, it does not arise for consideration. Even otherwise, the claim of the third AS 363/95 9 defendant is as a lessee and unless she sheds that character and holds the property adverse to the right of the owners, she cannot succeed in her plea. The result is that there is nothing to show that the lower court has erred in coming to the conclusion that the third defendant is not entitled to the benefit of the provisions of the Land Reforms Act since there is nothing to show that the creation of the lease in favour of the third defendant was done for family necessity. There is no merit in this appeal and it is accordingly dismissed. No costs. P.Bhavadasan, Judge sta AS 363/95 10