IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MRS.JUSTICE K.HEMA TUESDAY, THE 13TH DAY OF DECEMBER 2011/22ND AGRAHAYANA 1933 SA.No. 4 of 2002 (A) -------------------- AGAINST THE ORDER/JUDGMENT IN OS.474/1995 of MUNSIFF COURT,ALAPPUZHA DATED 28-11-1996 AGAINST THE ORDER/JUDGMENT IN AS.91/2000 of PRL SUB COURT, ALAPPUZHA DATED 24-07-2001 APPELLANT(S)/APPELLANTS/DEFENDANTS 5 & 6:: ---------------------------------------------------- 1. DEVAKI W/O. NARAYANAN, JNANODAYAM VELI, VALAVANAD, KALAVOOR ALAPPUZHA (3RD DEFENDANT). 2. PRAKASHAN S/O. NARAYANAN OF DO. DO. (6TH DEFENDANT). BY ADVS.SRI.K.S.HARIHARAPUTHRAN SRI.M.D.SASIKUMARAN SRI.P.J.JOSEPH SRI.GEORGE MATHEW RESPONDENTS/RESPONDENTS/PLAINTIFF AND DEFENDANTS 1,2,4 &5 AND 7 TO 10 -------------------------------------------------------------------------------------------- 1. RAJAPPAN S/O. KESAVAN, KANDATHIL PARAMBU, VALAVANAD, MANNANCHERRY KALAVOOR P.O., ALAPPUZHA (PLAINTIFF). 2. MEENAKSHI D/O. MADHAVI, THAKIDIVELI, KALAVOOR P.O. ALAPPUZHA. 3. SADANANDAN S/O. KESAVAN, VATTAPARAMBATHU CHIRA, KALAVOOR P.O., ALAPPUZHA. 4. SARALA D/O. DEVAKI OF DO. DO. 5. MOHANAN, S/O. NARAYANAN OF DO. DO. 6. KOMALA D/O. DEVAKI OF DO. DO. 7. BABU S/O. NARAYANAN OF DO. DO. SA.No. 4 of 2002 -2- 8. THILAKAN, PADMAVILASOM, VALAVANAD, KALAVOOR P.O., ALAPPUZHA. 9. GOPALAKRISHNAN, PADMAVILASOM, VALAVANAD, KALAVOOR P.O., ALAPPUZHA. R1 BY ADV. SRI.P.VIJAYARAGHAVAN R1 BY ADV. SRI.K.V.SADANANDA PRABHU R1 BY ADV. SRI.P.VIJAYARAGHAVAN THIS SECOND APPEAL HAVING BEEN FINALLY HEARD ON 13-12-2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K.HEMA ,J. ------------------------- S.A No.4 of 2002 -------------------------- Dated this the 13th December, 2011 J U D G M E N T A suit was filed for partition of plaint schedule properties item no.1 and 2. As per averments in the plaint, plaint item no.1 and 2 originally belonged to one Kutty Madhavi. item no.1 was purchased by her as per Ext.A1 sale deed No.957/1101 ME of S.R.O Mararikulam. In item no.2, she has lease hold right and the said property belonged to one Ramakurup who executed Ext.A2. 2. After death of Kutty Madhavi, property devolved upon her children who are first respondent herein (plaintiff), second and third respondents and deceased Narayanan and they were in joint possession of property. Each of them had 1/4th right over plaint schedule item no.1 properties. 3. Deceased Narayanan, S/o Kutty Madhavi died and her 1/4th right devolved upon appellant (D3) and the children (D4 to D8). During the life time of deceased Narayanan, he sold his right over plaint schedule item No.1 to his brother Sadanandan (D2). It is understood that third respondent (D2) sold his right over item no.1 to respondent S.A No.4 of 2002 2 8 and 9 (defendants 9 and 10). 4. Plaintiff-first respondent was informed that appellant (third defendant) who is the widow of deceased Narayanan has got assignment of landlord's right over plaint schedule property item no.2, as per order passed by Land Tribunal. The right, if any, purchased by appellant (D3) will enure to the benefit of all co-owners including (plaintiff-first respondent). All the respondents are in joint possession of plaint item No.1. First respondent, appellants (D3 and D6) and respondents 2 to 7 (defendants 1 to 8) are in joint possession of plaint schedule property item no.2. First respondent has thus 1/4th share over plaint schedule property and he is entitled to get partition of properties and hence the suit. 5. Appellants (defendant nos.3 and 6) filed joint written statement and contended thus: First respondent has no locus standi to file the suit and he has no enforceable right against defendants. Plaint schedule properties are not partible. It is admitted that plaint schedule property Item No.1 belonged originally to the mother of 1st respondent etc., and on her death, it devolved upon S.A No.4 of 2002 3 respondents 1 to 3 and deceased Narayanan whose wife and children are appellants and defendants 4 to 8. Respondents 1 and 2, who are the sharers alienated that share over plaint schedule property Item No.1 to their sister in law who is the 1st appellant (D3) by virtue of Ext.B1 sale deed. Ever since then, the 1st appellant is in exclusive possession of the same as absolute owner and as such plaintiff-1st respondent has no right over the said property. 6. First appellant has absolute ownership and possession over plaint schedule property Item No.2 and she is residing in the building situated therein with her family. She purchased jenmom right as well as leasehold right over the said property from competent persons and thereby she is the absolute owner in possession and enjoyment of the said property. It is not correct to say that she obtained purchase certificate in respect of the property since she is the absolute owner by virtue of purchase of jenmom right and leasehold right. Plaintiff-1st respondent is not at all a co-owner nor he is in possession of said property. First respondent has no right to get any share or for partition of plaint schedule property. There was no demand for S.A No.4 of 2002 4 partition and the suit is liable to be dismissed. 7. Respondent Nos.8 and 9 (Defendant No.9 and 10) filed a written statement and contended that Item No.1 belonged to deceased Kutty Madhavi and during her life time the property was divided into two and some transaction took place in between. After death of Kutty Madhavi, an oral partition was effected and the property lying on the southern side was allotted to the share of deceased Narayanan and 3rd respondent (D2). The property lying on the northern side was allotted to respondents 1 and 2 (plaintiff and 1st defendant) and they were in possession of the respective plots. 8. Deceased Narayanan assigned his rights over the property lying on the southern side as per registered sale deed and he was in exclusive possession of the said property and the whole property was allotted to the share of defendants 9 and 10. Respondents 8 and 9 are in exclusive possession of the same. They are also paying tax and other parties have no right over the said property. The said property is not partible. They have improved the property to the information of respondents 8 and 9. The right of the S.A No.4 of 2002 5 deceased Narayanan has been assigned to his wife and children but it has no legal validity. Only the property lying on the northern side is partible. The other defendants- respondents remained ex parte. The case was tried before the Munsiff Court. 9. Exts.A1 to A3 were marked on the side of the plaintiff-1st respondent. Exts.B1 to B22 were marked on the side of the appellants (contesting defendants). Documents were marked on consent. 9th defendant (R8) was examined as DW1.The following issues were framed by the Munsiff Court. 1. Whether plaintiff has any right or interest over plaint item No.1 and 2? 2. Whether plaint schedule properties are partible? 3. Whether plaintiff is entitled for ¼th right over the plaint items 1 and 2 as alleged? 4. Whether plaintiff is entitled to get his share if any through partition and separate possession? 10. The trial court found that both items of plaint schedule properties are partible. It is held that the transfer S.A No.4 of 2002 6 of the property by the de-facto guardian of the minor (1st respondent) as per Ext.B1 is invalid and not binding on the minor and the 1st respondent can ignore the transactions. It is held that respondents 8 and 9 cannot claim exclusive right over 25 cents of property but at the same time they can claim ½ share over plaint item No.1. The trial court also held that there is no merit in the contention that respondents 1 and 2 transferred the right over plaint item No.2 in favour of 1st defendant by virtue of Ext.B1, since Ext.B1 was executed by the 1st respondent's sister when the 1st respondent was a minor. 11. Second respondent had no right to transfer the right of the minor as per law and the transfer is void. Therefore, the claim made by the 1st appellant for exclusive right over plaint item No.2 property was rejected. It was also held that Ext.B2 will not create any exclusive right over the property. According to trial court, Ext.A2 will clearly show that Kutty Madhavi had leasehold right over the property and she was in possession of the same till her death and therefore the right over plaint schedule property Item No.2 devolved upon her children equally. S.A No.4 of 2002 7 12. The documents produced by the 1st appellant will not substantiate her case but at best, the 1st appellant can be considered as co-possessor of the property along with defendants 3 to 8 being the legal heir of deceased Narayanan, it is further held. A decree was passed that the 1st respondent is entitled to ¼ share over plaint schedule Item Nos.1 and 2 properties, allowing him to get separate possession of the same after partition. The property was ordered to be divided by metes and bounds through a commission. 13. Appellants filed an appeal before the Sub Court challenging the decree and judgment, but the appeal was dismissed confirming the decree. Almost all the findings of the trial court were confirmed by the lower appellate court. Hence the second appeal. 14. Heard both sides. Perused records. The following questions of law are involved in this appeal and those are formulated by this Court as follows: 1. Can a simple suit for partition be maintained without a prayer for recovery of possession if the entire property is purchased by a stranger and it is found to be in possession of such stranger? S.A No.4 of 2002 8 2. If a contention is raised by a party that he/she is the absolute owner in possession and enjoyment of the property by virtue of certain title deeds, can the court pass a decree for partition without considering the nature of the right if any obtained by the party by virtue of the documents? 15. Admittedly, there are two items of plaint schedule property. The nature of right over the property claimed by the parties is also different. There is no dispute that plaint Item No.1 belonged to late Kutty Madhavi by virtue of a sale deed Ext.A1 executed in 1121 ME and on death of deceased Kutty Madhavi, the right devolved upon her four children, who are respondents 1 to 3 and deceased Narayanan. 16. According to appellants, respondents 1 and 2 sold their right over the said property to the 1st appellant and she is in exclusive possession as an absolute owner of the property. Both the courts below found that 1st appellant cannot claim exclusive possession and ownership over plaint schedule property Item No.1. 17. On hearing both sides, I do not find any reason to interfere in the findings of fact entered into by the court below in respect of Item No.1, though various contentions S.A No.4 of 2002 9 are raised by learned counsel for appellants. Appellants have no case that the right of sharers of plaint schedule property Item No.1 other than respondents 1 and 2 were assigned to first appellant. 18. Ext.A3 is the sale deed executed in the year 1963 by Narayanan in favour of 3rd respondent herein over plaint schedule Item No.1 property. Therefore, 1st appellant cannot claim exclusive title and possession over plaint schedule Item No.1 property. She can only claim share in the property by virtue of Ext.B1. I also do not find any reason to interfere with the findings that by virtue of Ext.B1, the right of the plaintiff-1st respondent does not pass on to the 1st appellant. Therefore, 1st appellant will have only ¼ right in the property which is assigned as per Ext.B1 by the 1st defendant in favour of the 1st appellant. 19. In such circumstances, the finding that the 1st respondent has ¼ share in the property cannot be interfered with and the decree passed in respect of Item No.1 is only sustainable. However, on hearing both sides and on going through the various documents produced and the impugned judgment, I find that the courts below have S.A No.4 of 2002 10 not understood this pleading in respect of Item No.2 property and the right claimed by 1st appellant over the said property. 20. It is seen from the impugned judgment that the contentions raised by the 1st appellant are not considered in the proper perspective by both the courts below. The documents produced on behalf of the 1st appellant are not looked into nor considered to find out whether the plea raised by the 1st appellant that she is the absolute owner and also in possession of the plaint schedule property Item No.2 is correct or not. 21. Learned counsel for appellants vehementally contended that the case setup by the appellants is that the 1st appellant is the absolute owner of plaint schedule property Item No.2 by virtue of Exts.B1 and B2 and the various tax receipts Exts.B1 to B2 which show that the 1st appellant was paid tax for the property since 1965 onwards continuously. Learned counsel for appellants read out Ext.B1 and B2 to argue that the plaint schedule property Item No.2 belonged to mother Kutty Madhavi on lease. S.A No.4 of 2002 11 22. Though plaint schedule property Item No.1 was in possession of late Kutty Madhavi on leasehold right and that such right devolved upon her four children after her death, some other transaction intervened. A joint reading of Exts.B1 and B2, according to learned counsel for appellants, would clearly establish that the 1st appellant had absolute possession over the plaints schedule property Item No.2 by virtue of a mortgage deed executed in her favour by the competent persons and she was in possession of the same. It is pointed out that a reference is made to “nadappupanayadharam” (നടപപണയധര ) executed as per a registered document and she was put in possession of the property which is disclosed from Ext.B1 executed as early as in 1963. 23. It was also pointed out that the above document refers to the leasehold right which the 1st appellant obtained and thereafter as a sole lessee she also purchased the jenmom right from Janaki Amma as per Ext.B2. It was also submitted that the transactions are also covered by registered documents and a close reading of Exts.B1 and B2 will establish that the 1st appellant is in absolute S.A No.4 of 2002 12 possession of the property and she is the sole owner of the property. 24. It is also argued that a person cannot claim any leasehold right, unless he is in possession of the same as a cultivating tenant as per the definition in the Kerala Land Reforms Act. Exts.B1 and B2 clearly disclose that the 1st appellant alone was in exclusive possession of plaint schedule property Item No.2 and none of the children of late Kutty Madhavi can claim any leasehold right over the plaint schedule property Item No.2, it is submitted. Ext.B2 which is executed as early as in 1969 will clearly show that the 1st appellant was the only person who was in exclusive possession of the said property has purchased her jenmom right as per Ext.B2, it is further submitted. 25. Learned counsel for contesting respondent No.1 strenuously argued that even if the 1st appellant purchased jenmom right , it will enure to the benefit of all the co- owners as per the dictum laid down in Neelakanta Pillai Vs. Madhavan Nair [1965 KLJ 629]. Therefore, the purchase of jenmom right, if any, as per Ext.B2 will not in any way affects the rights of the sharers who obtained leasehold S.A No.4 of 2002 13 right on the death of late Kutty Madhavi, it is submitted. In the decision reported in Neelakanta Pillai Vs. Madhavan Nair [1965 KLJ 629] it is held with reference to Section 90 of the India Trusts Act as follows: “We are therefore of the opinion that both on principle and on authority, the doctrine of constructive trust or the principle underlying Section 90 of the Indian Trusts Act is applicable to grant of patta in respect of kandukrishi lands in the present case. So applying the principles to the facts of this case we entertain no doubt that the grant of patta evidenced by Ext. XIX ought to enure in favour of the plaintiff.” 26. On hearing both sides and on going through the records, I have no doubt that both the courts below have overlooked the nature of the contentions raised by the appellants as per the written statement. They have failed to consider the recitals in the document which are admitted in evidence on consent, to find out whether the 1st appellant was in possession of property, on the basis of a mortgage and whether she has obtained leasehold right from the children of deceased Kutty Madhavi and thereafter, purchased Jenmom right over the said property and thereby S.A No.4 of 2002 14 the 1st appellant is the absolute owner or in possession of the plaint schedule property Item No.2. 27. To find out question whether the decisions cited by learned counsel for the contesting respondent, apply or not, it has to be decided first whether the right claimed by the 1st appellant is established or not and whether 1st appellant is the absolute owner who is in possession of the plaint schedule property Item No.2. It is a question of fact and it has to be decided on the basis of evidence as well as pleadings. This court cannot for the first time enter into any findings of fact. The question has to be resolved in the light of the evidence and documents produced in respect of the alleged claim made by the 1st appellant. 28. It is relevant to note in this context that in paragraph 9 of the written statement, appellants have specifically contended that the plaintiff-1st respondent is not a minor and that 1st appellant is the absolute owner having purchased “the jenmom right as well as leasehold right over item No.2 property from the competent persons” and therefore there is no question of moving the Land Tribunal for obtaining purchase certificate as contended by the S.A No.4 of 2002 15 plaintiff-1st respondent. The contentions raised by the appellants are not understood by the courts below nor it is considered in the proper perspective, with reference to the evidence adduced in this case. 29. In such circumstances, I find that the decree and judgment passed in respect of plaint schedule property Item No.2 are liable to be set aside. Considering the nature of the dispute to be resolved, I find that an opportunity can be given to both sides to adduce such evidence, as it may be necessary, as the trial court deem it fit and proper, if such request is made. The matter is to be remanded to the trial court for fresh consideration and disposal, in accordance with law. Appropriate issues shall be framed and decided by the trial court. 30. Though an issue is seen framed whether the plaint schedule properties item no.2 are partible, both the courts below failed to consider the contentions raised by the 1st appellant in respect of said property in the light of the evidence and documents. Appellants have a definite case that the jenmom right as well as leasehold right over plaint schedule property Item No.2 were purchased from the S.A No.4 of 2002 16 competent persons and thereby the 1st appellant has become the absolute owner of the property. 31. By reading out certain documents, learned counsel for the appellant vehementally argued that the 1st appellant purchased the lease hold right and she was in possession of the said property and she alone can claim leasehold right, since the person in possession of the property can be treated as a cultivating tenant as per the provisions of the Kerala Land Reforms Act. It is for the said reason that the jenmom right is sold as per Ext.B2 to the 1st appellant, it is argued. These aspects are not considered by the courts below. Taking all these facts into consideration, I find that the decree has to be set aside in respect of item no.2 of the plaint schedule. The decree in respect of other item is confirmed. In the result, the following order is passed: (1). The decree and judgment in respect of Item No.2 plaint schedule property are set aside. (2) The case is remanded to the trial court for fresh consideration and disposal, in accordance with law as indicated in this judgment, untrammelled by any S.A No.4 of 2002 17 of the observations, if any, made on the merit of the case. (3) Parties shall appear before the trial court on receipt of notice to their respective counsel from the trial court. (4) It is made clear that the decree in respect of plaint schedule item no.1 is not interfered with. This appeal is allowed. Sd/- K.HEMA, JUDGE sou/ma /True copy/ P.A to Judge