IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE HARUN-UL-RASHID FRIDAY, THE 8TH AUGUST 2008 / 17TH SRAVANA 1930 CRP.No. 463 of 2001(B) ---------------------- TLB.877/1973 of TALUK LAND BOARD, THALASSERY .................... REVN. PETITIONERS/DECLARANT: ---------------------------------------------------- 1. C.A. MARY, W/O. JOSE PAUL AGED 59 YRS., RESIDING AT THOTTUVELIL HOUSE AARALAM AMSOM AND DESOM PAYAM P.O., IRITTY 2. JOSE PAUL, S/O. JOSE PAUL, RESIDING -DO- 3. BOBBY PAUL, S/O. JOSE PAUL, RESIDING -DO- BY ADV. SRI.T.A.RAMADASAN SMT.S.ANITHA RESPONDENTS/OPPOSITE PARTY AND STATE ------------------------------------------------------------------------ 1. THE TALUK LAND BOARD, THALASSERY 2. THOTTUVELIL JOSEPH CHANDY THOTTUVELIL HOUSE, NUCHIYAD AMSOM MANIKADAVU P.O., TALIPARAMBA 3. THODUVELIL MARY JOSEPH, D/O. K. MATHEW KADAYIKKAL HOUSE, CHOTTANIKKARA 4. THOTTUVELIL JOSEPH CHANDY ALAKKOD SERVICE CO-OP. BANK, ALAKKOD POST 5. THOTTUVELIL ANNAMMA JOSEPH IYYANKUNNU COMPANY ROAD MUNDAYAMPARAMBU, IRITTY 6. THOTTUVELIL THRESSIA JOSEPH C.O. T.V. THOMAS, CRS PULP DIVISION QUARTERS BLOCK NO: 1611, MAVOOR, KOZHIKODE 7. THOTTUVELIL MATHEW JOSEPH IYYANKUNNU VILLAGE, MUNDAMYAMPRAMBA 8. THOTTUVELIL ROSAMMA JOSEPH, -DO- 9. THOTTUVELIL ELIAMMA JOSEPH, -DO- 10. THOTTUVELIL GEORGE JOSEPH, -DO- 11. PRIMA PAUL, KUNNUMPARATH HOUSE KANICHAL POST 12. PRIYA PAUL, KALUPURAYIL HOUSE EZHUMUTTAM, THODUPUZHA 13. STATE OF KERALA, REP. BY CHIEF SECRETARY SECRETARIAT, TRIVANDRUM. R13 BY GOVERNMENT PLEADER SHRI. SHYSON P. MANGUZHA R4 BY ADV SRI.R.SURENDRAN THIS CIVIL REVISION PETITION HAVING BEEN FINALLY HEARD ON 8/8/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ORDER ON C.M.P. NOS: 972/01 & 1191/02 IN C.R.P. NO: 463 OF 2001 DISMISSED: 8/8/2008 SD/- HARUN-UL-RASHID, JUDGE jj /TRUE COPY/ P.A. TO JUDGE HARUN-UL-RASHID, J. -------------------------- C.R.P. No. 463 OF 2001 -------------------------- Dated this the 8th August, 2008. O R D E R This revision petition is filed by the legal heirs of one of the sons of the declarant Shri. Chandy Joseph challenging the order in TLB 877/73 dated 11.7.2000 of the Taluk Land Board, Telicherry. By the impugned order the Taluk Land Board held that the declarant as head of tthe statutory family owned a total extent of 97.85 acres, that an extent of 0.60 acres is liable to be exempted as house site, that out of the remaining extent the family is entitled to retain 20 acres and is liable to surrender 78.87 acres. Out of the extent so found as excess land, 27.37 acres was taken over as surplus land as per the order dated 22.9.1976. The Taluk Land Board held that the balance extent to be surrendered is 47.90 acres and that the legal heirs of the late declarant has the right to retain a total extent of 20.60 acres only. 2. The statutory family consists of the declarant Shri. Chandy Joseph (now died), his wife Mary and four minor children as on 1.1.1970. Besides the four minor children there are other major C.R.P.NO: 463/01 2 children. This revision petition is filed by the legal heirs of one major son Shri. Jose Paul, died pending proceedings. Respondents 2 to 10 are the other children of the declarant. 3. Legal heirs of the declarant contended before the Taluk Land Board that 60 acres of land which stands in the name of the declarant-wife Mary was purchased as per document No: 333/63 dated 13.2.1963. According to the declarant the purchase was made in the name of Mary with the sums contributed by major earning children and amount received from the sale of ancestral properties. It is also stated by them that in order to avoid any dispute between the family members it was decided to purchase the property in the mother's name and they have agreed to divide it in between them later. It is also submitted by the revision petitioners that the declarant and his family belonged to Elanji in Central Travancore. They have properties in Elanji and Vazhakkulam villages in the name of the declarant and those properties are ancestral in nature. The said items of properties are sold and they have shifted their residence and avocation to Aralam in Telicherry taluk. With the consideration they received by sale of those properties and the dowry amount obtained by the daughter- C.R.P.NO: 463/01 3 in-law who married the eldest son of the declarant were utilised for the purchase of 60 acres of land by document No: 333/63 in the name of the declarant's wife. The declarant also purchased another item of property having an extent of 6.23 acres purchased in the name of the declarant. According to the declarant 17 ½ acres of land from the southern side of the property was measured, located boundaries and demarcated by putting up boundaries and that the property was set apart for the share of the daughter-in-law. The balance property was divided into 13 shares allotting equal shares to the members of the family which includes declarant, his wife and 11 children. It is also submitted that the partition was effected and an agreement was executed, signed by all the sharers and witnesses evidencing partition of the property. According to the declarant, the Taluk Land Board went wrong in taking into account the entire properties covered by the said sales as properties belonging to the statutory family. It is submitted that the statutory family consists of the declarant, his wife and five minor children and only 7/13 share of the total extent excluding 17 ½ acres allotted to the daughter-in-law shall be accounted in the ceiling case. 4. It is also contended that the Taluk Land Board by order C.R.P.NO: 463/01 4 dated 22.9.1976 decided the ceiling case and passed an order directing the declarant to surrender 27.37 acres which was set aside in the judgment passed by this Court in C.R.P.1583/78 filed by the Government and remanded for fresh consideration. After remand the Land Board examined the witnesses. The witnesses include the declarant, his wife, two witnesses of the partition agreement dated 20.3.1963. The witnesses testified before the Taluk Land Board that they have got direct knowledge about the partition effected in the family of the declarant, that they were present at the time of execution of the properties happened to be purchased in the name of the declarant's wife. All of them acknowledged the fact that the properties belonged to all members of the family jointly and that is the reason why they have decided to partition the property. The Taluk Land Board passed orders holding that the property belonged to the members of the family. Again the State filed C.R.P.479/85 and by judgment dated 27.6.1989 this Court remanded the matter for de novo consideration. Subsequently, while the matter was pending before the Taluk Land Board declarant died in the year 1991. 5. An extent of 60 acres of land was purchased in the name of C.R.P.NO: 463/01 5 the declarant's wife Mary in the year 1963. The parties are natives of Elanji Village in Moovattupuzha Taluk, Ernakulam district. The declarant and his wife along with their 11 children shifted their residence and activities to a place in Alaram Village in Telicherry Taluk and they have settled there. The properties which stood in the name of the declarant in Elanji Village and Vazhakulam Village are sold and sale proceeds along with the dowry amount received by the elder son Jose Paul are utilised for purchase of the properties in the year 1963. The properties include 60 acres in the name of declarant's wife and 6.23 acres in the name of the declarant. The declarant, his wife and two witnesses were also examined in this case. They have testified before the Taluk Land Board that the properties are sold and purchased on an understanding that the entire property shall be divided between all the members of the family equally. So, the version of the declarant, his wife and the witnesses that the properties were partitioned among the members of the family equally on 20.3.1963 and an agreement was executed on the said date is worthy to rely upon. It is also explained by the parties that the original of the agreement has been lost and, therefore, they have produced copy of the agreement and cited two C.R.P.NO: 463/01 6 witnesses, who are parties to the agreement. On the basis of the explanation offered by the parties, copy of the agreement has to be acted upon, the facts and circumstances explained and narrated by the parties probablises the case that the properties purchased in the name of the declarant and wife is intended to benefit all the members of the family. The shifting of the entire family to Malabar, possibility of the document executed in the name of the mother and execution of agreement are more probable. Therefore, I accept the contention of the revision petitioners that the properties purchased in the year 1963 in the name of the declarant and his wife belongs to the entire members of the family and that the statutory family is only entitled to 7/13 share. 6. Another contention was also raised by the revision petitioners stating that the first petitioner's husband is in possession and owner in respect of 17 ½ acres of land out of 60 acres in the name of the mother. The contention raised is that so much of extent is set apart to the share of the first petitioner and her husband since a portion of the property was purchased utilising the streedhana amount obtained by the first petitioner's husband Shri. Jose Paul. To prove the said transaction he has examined the C.R.P.NO: 463/01 7 mother as a witness. She stated that portion of the amount for the purchase of 60 acres of land was contributed by Shri. Jose Paul, that till his death he was in possession of 17 ½ acres and he and his family are residing in the house constructed by him in the property. According to the revision petitioners, this contention was not considered by the Taluk Land Board and that no finding was entered. 7. For the reasons stated above, the order under challenge is set aside. The Taluk Land Board is directed to pass fresh orders in the light of the findings and observations made above. The Taluk Land Board also is directed to reconsider the arguments advanced before this Court regarding 17 ½ acres of land allegedly belonged to the first petitioner and her husband. Revision petition is allowed. The case is remanded for fresh consideration. The Taluk Land Board shall dispose of the matter within a period of six months on receipt of a copy of the order. HARUN-UL-RASHID, JUDGE jj