IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.BHAVADASAN MONDAY, THE 27TH JUNE 2011 / 6TH ASHADHA 1933 SA.No. 697 of 1997() ------------------------------ AS.133/1996 & CROSS OBJECTION of DISTRICT COURT, KASARAGOD OS.45/1988 of SUB COURT, HOSDRUG .................... APPELLANT/ DEFENDANTS 2 TO 7,9,10 11 & 13/ RESPONDENTS 1 TO 6,8 TO 10 & 12. ----------------------------------------------------------------------------------------------------------------------- *1 MOOTHEDATH CHITTAI KUNNON PUTHIYAVEETTIL KUNHIKRISHNAN NAIR, KANHANGAD SOUTH, KANHANGAD VILLAGE & POST, HOSDRUG TALUK, KASARAGOD DT. (DIED) 2. DO. NALINI AMMA, DO. DO. 3. DO. JANAKI AMMA, DO. DO. 4. DO. KARUNAKARAN NAIR, DO. DO. 5. DO. SUDHAKARAN NAIR, DO. DO. 6. DO. RAJEEVI AMMA, DO. DO. 7. DO. UNNIKRISHNAN NAIR, DO. DO. 8. PATEN VEETTIL KUNHAMMAR AMMA NILESHWAR, NILESHWAR VILLAGE AND POST, HOSDRUG TALUK, KASARAGOD DT. 9. DO. RUGMINI AMMA, DO. DO. 10. DO. GOPALAKRISHNAN NAIR, DO. DO. *ADDL. 11 TO 18 IMPLEADED. 11. V.P.DAKSHAYANI AMMA, E/O. LATE KUNHIKRISHNAN NAIR, KANHANGAD, PUTHIYA VEEDU, KANHANGAD SOUTH POST, KASARAGOD DT. SA. NO.697/97 12. V.P.RAJAMOHANAN, S/O. LATE KUNHIKRISHNAN NAIR, DO. DO. 13. K.P.RAJEEVAN NAIR, S/O. DO. DO. 14. V.P.GOPALAKRISHNAN, S/O. DO. DO. 15. V.P.KUNHIKRISHNAN, S/O. DO. 16. V.P.UNNIKRISHNAN, S/O. DO. DO. 17. V.P.MADHUSUDANAN, S/O. DO. DO. 18. V.P.UMADEVI, D/O. DO. DO. *THE LEGAL REPRESENTATIVES OF DECEASED IST APPELLANT ARE IMPLEADED AS ADDITIONAL APPELLANTS 11 TO 18 AS PER ORDER DT. 22.9.2006 IN IA. 2024/06. BY SRI.V.R.VENKATAKRISHNAN, SENIOR ADVOCATE BY ADVS. SRI.S.ANANTHAKRISHNAN SRI.N.K.SUBRAMANIAN RESPONDENT(S): ------------------------- *1. PERIYAL THAMBAYI AMMA, KOVVAL, KANHANGAD VILLAGE AND POST HOSDRUG TALUK, KASARAGOD DT. (DIED). *THE LEGAL REPRESENTATIVES OF DECEASED IST RESPONDENT RECORDED. THE LEGAL REPRESENTATIVE SOF THE DECEASED IST RESPONDENT IS RECORDED AS RESPONDENTS 2 TO 9 AS PER ORDER DT.D 4.4.11 IN MEMO CF. 7749/02 DTD. 29.11.2002. 2. DO. NARAYANI AMM,A, DO. DO. 3. DO. KUNHINARAYANAN, DO. DO. 4. DO. JANAKI AMMA, DO. DO. 5. DO. BHASKARAN, DO. DO. 6. DO. BHAVANI, DO. DO. tss S.A. NO.697/1997 7. DO. PRABHAKARAN, DO. DO. 8. DO. MADHAVI, DO. DO. 9. DO. BHARGAVI, DO. DO. 10. MOOTHEDATH CHITTAI KUNNON PUTHIYAVEETTIL MRINALINI AMMA, KANHANGAD SOUTH, KANHANGAD VILLAGE AND POST HOSDRUG TALUK, KASARAGOD DT. 11. PATEN VEETTIL NARAYANAN NAIR, NILESHWAR, NILESHWAR VILLAGE & POST HOSDRUG TALUK, KASARAGOD DT. 12. MUTTIL CHANDU, S/O. MADIYAN AMBUNHI, KANHANGAD VILLAGE AND POST, HOSDRUG TALUK, KASARAGOD DT. 13. THALAPPAN KANNAN NAIR, S/O. AIKODAN AMBU NAIR, DO. DO. 14. ACHA, KALLORAVI, KANHANGAD VILLAGE & POST, HOSDRUG TALUK, KASARAGOD. 15. UMBICHI, DO. DO. 16. KUNHIKANNAN, DO. DO. 17. KUMARAN, DO. DO. 18. KUNHAMBU, DO. DO. 19. NARAYANAN, DOP. DO. 20. NARAYANI, DO. DO. 21. MADHAVI, DO. DO. 22. KINATTUPURAYIL BHASKARAN ADIYODI, BIRIKULAM, PARAPPA VILLAGE & POST, HOSDRUG TALUK, KASARAGOD DT. 23. DO. SHYAMALA, DO. DO. 24. DO. RADHAMANI, DO. DO. 25. DO. AJITHAKUMARI, DO. DO. 26. DO. SATHI DEVI, DO. DO. tss S.A. NO.697/1997 27. DO. RAJESHKUMAR, DO. DO. 28. VIJAYALAKSHMI, D/O. AMBUNHI NAIR, WIDOW OF NARAMTHATTA KRISHNAN NAIR, KODAVALAM, PULLUR VILLAGE & POST HOSDRUG TALUK, KASARAGOD DT. 29. PEETHAMBARAN, (MINOR) 30. CHAKRAPANI (MINOR) 31. SREERANJINI (MINOR) 32. PADMAJA (MINOR) BY GUARDIAN MOTHER R.28. R1 TO R9 BY BY ADV. SRI.A.DINESH RAO R1 TO R9 BY ADV. SRI.L.GOPALAKRISHNAN POTTI THIS SECOND APPEAL HAVING BEEN FINALLY HEARD ON 15/06/2011, THE COURT ON 27/06/2011 DELIVERED THE FOLLOWING: tss ORDER ON CMP. NOS. 1808/97 & IA. 32/2010 IN SA. NO.697/1997 DISMISSED 27/06/2011 SD/- P.BHAVADASAN, JUDGE TRUE COPY P.A. TO JUDGE tss P. BHAVADASAN, J. - - - - - - - - - - - - - - - - - - - - - - - - - - - S.A. No. 697 of 1997 - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 27th day of June, 2011. JUDGMENT Defendants 2 to 7, 9, 10, 11 and 13 in O.S. 45 of 1988 before the Sub Court, Hosdurg are the appellants. 2. A very short question arises for consideration in this appeal. Hence facts absolutely necessary alone are being referred to. 3. The suit property belonged to Bhavani Amma, the mother of defendants 1 to 4. She died on 26.3.1997. As per Ext.A1 dated 6.6.1962, items 1 to 6 were set apart to Bhavani Amma, items 7 to 17 to Raghavan Nair, which is shown as G schedule to the deed, and items 18 to 25 to Sukumaran Nair which is shown as H schedule. As far as items 26 to 30 are concerned, they are the self acquisitions of Bhavani Amma. Whereabouts of Raghavan Nair was unknown. S.A.697/1997. 2 Sukumaran Nair died in 1964. Since Sukumaran Nair and Raghavan Nair died as bachelors, their share devolved on Bhavani Amma. On the death of Bhavani Amma, the properties devolved on defendants 1 to 4 and Chathukutty Nair, each were entitled to 1/5th share. Chathukutty Nair died in 1979 leaving behind the plaintiffs as the legal heirs. The allegation in the plaint was that the first defendant had fabricated certain documents which are not binding on the plaintiffs. Since they did not wish to continue joint possession, they filed the suit for partition. 4. The first defendant died during the pendency of the suit and her legal heirs were brought on the party array as defendants 10 to 13. in the written statement filed by defendants 2 to 4 they denied that the first plaintiff was the wife and the other plaintiffs are the children of Chathukutty Nair. According to them, there is no legal marriage between the first plaintiff and Chathukutty Nair. Suffice to say, they contended that the plaintiffs are not entitled to any reliefs. The written statement contains several other contentions, S.A.697/1997. 3 which are not very relevant. They prayed for a dismissal of the suit. 5. In the joint written statement filed by defendants 5, 6 and 9 it is contended that items 26, 27, 29 and 30 were not acquisitions of Bhavani Amma and it belonged exclusively to the first defendant. They therefore contended that those items were not available for partition. Defendants 10 to 13 filed a written statement containing similar contentions as that of defendants 5, 6 and 9. The other defendants also filed written statements, some supporting the defendants and some supporting the plaintiffs. 6. Since this appeal is concerned only with items 26 and 27, the other details are not being referred to. During the pendency of the appeal before this court, the first appellant and the first respondent passed away, and their legal heirs have been brought on the party array. 7. Based on the pleadings, the trial court raised necessary issues for consideration. The evidence consists of S.A.697/1997. 4 the testimony of P.Ws. 1 to 3 and documents marked as Exts.A1 to A26 from the side of the plaintiffs. The defendants examined D.Ws.1 to 5 and had Exts.B1 to B13 series marked. Exts.X1, X1(a) and X2 are third party exhibits. 8. On an appreciation of the evidence, the court below found certain items to be partible and passed a preliminary decree. However the trial court found that items 6, 21, 25, 26, 27, 29 and 30 are not available for partition. 9. The plaintiff carried the matter in appeal as A.S.133 of 1996 before the District Court, Kasaragod. The defendants filed a cross-objection also. The lower appellate court found that items 26 and 27 are available for partition and partly allowed the appeal and rejected the cross objection. The aggrieved defendants had come up in appeal. 10. Notice is seen issued on the following questions of law: S.A.697/1997. 5 “A. Was the court below justified in not accepting Exts.B1 and B2 the purchase orders obtained by the 1st defendant in his individual capacity when there was no evidence of co-ownership property or the existence of co-owners? B. Was the court below justified in acting upon Exts. A2 and A3 when there was not even formal proof of the same and nobody connected with the same was examined. C. In view of the admission of P.W.1 that there was no transfer of possession following Exts.A2 and A3, does it not follow that Exts.A2 and A3 were not acted upon apart from the fact that they were not genuine or true. D. Does not the payment of revenue by the 1st defendant even during the life time of Bhavani Amma show that the 1st defendant was the owner and the person in possession. E. Do not the dealings with the property by the 1st defendant indicate that the 1st defendant was the owner in his individual capacity and therefore his self acquisition. F. Since there is nothing to show that Bhavani Amma can make these acquisitions on S.A.697/1997. 6 her own, can it be said, without anything ore that they are her self acquisition. G. is not the putting up of a substantial building by the 6th defendant clearly indicative of the bonafides and truth of the case of the appellants. H. Are the reasons given by the lower appellate court for reversing the findings of the court below proper and acceptable?” 11. Learned counsel appearing for the appellants contended that the findings of the lower appellate court solely based on Exts.A2 and A3 regarding the partibility of items 26 and 27 are clearly unsustainable. Those documents, by themselves, according to him, are insufficient to hold that items 26 and 27 belonged to Bhavani Amma. Except for those documents, which are suspicious in nature, there is absolutely no evidence to show that Bhavani Amma had any manner of right over those items of properties. The lease made mention of in Exts.A2 and A3 had no supporting evidence and there is nothing to show that Bhavani Amma S.A.697/1997. 7 or Kunhambu Nair had exercised any manner of right over the property covered by Exts.A2 and A3. According to learned counsel, Exts.A2 and A3 had been created for the purpose of defeating the rights of the first defendant. Learned counsel went on to point out that a mere reading of Exts.A2 and A3 is sufficient to show that they are documents created for the purpose of denying the right of the first defendant. In fact Ext.A3 refers to a proceeding for fixation of fair rent. It will be only appropriate on the part of the plaintiffs to have the records in that case produced so as to establish that items 26 and 27 infact belonged to Bhavani Amma. Learned counsel pointed out that the purchase certificate in respect of the property covered by Exts.A2 and A3 stood in the name of the first defendant and that was sufficient to show that he is exclusively entitled to those items going by the decisions reported in Lakshmi v. Viswanathan (1999(2) K.L.T. 621) and Muhammed Basheer v. State of Kerala (2002(1) K.L.T. SN 4). According to learned counsel, the trial court had considered S.A.697/1997. 8 the matter in considerable detail and the lower appellate court has fallen into a patent error in holding that items 26 and 27 are also available for partition. The lower appellate court, according to learned counsel, makes mention of a categoric implied admission regarding the execution of Exts.A2 and A3, which according to learned counsel is incorrect. There is no such admission as observed by the lower appellate court and that has resulted in an erroneous decree being passed by the lower appellate court with regard to items 26 and 27. 12. Learned counsel appearing for the respondents pointed out that Exts.A2 and A3 had come into existence at a point of time when there was no dispute or difference of opinion between the parties. Bhavani Amma is none other than the mother of the first defendant. According to learned counsel, it is extremely difficult to believe that the mother would have conspired with her brother to defeat the rights of the first defendant. The defendants have not been able to produce any document to S.A.697/1997. 9 show that the first defendant had a lease of items 26 and 27 as claimed by them. No documents whatsoever have been produced by the contesting defendants to show that the first defendant had exercised any independent right over items 26 and 27 prior to the death of Bhavani Amma. Learned counsel also pointed out that the first defendant very cleverly assigned a good portion of items 26 and 27 and retained only a very small extent. Once it is shown that Bhavani Amma was the owner of the property, then the mere fact that the first defendant had obtained purchase certificate cannot clothe in that exclusive right. He being a co-owner, purchase certificate will be deemed to have been obtained on behalf of all the co-owners. The fact that after the death of Bhavani Amma, the first defendant exercised acts of possession and paid tax will not advance the case of the contesting defendants. According to learned counsel, the lower appellate court was perfectly justified in its approach in finding that items 26 and 27 are not available for partition. No grounds are made out to interfere with the S.A.697/1997. 10 said finding of the lower appellate court. 13. It is evident that the dispute in this appeal is confined to items 26 and 27 of the plaint schedule. They are covered by Exts.A2 and A3 documents. Ext.A2 is for 41 ½ cents and Ext.A3 is for 1.20 acres. Exts.A2 and A3 make mention of oral leases, the details of which are conspicuously absent. Ext.A2 is seen executed by Kunhambu Nair in favour of Bhavani Amma. A reading of Ext.A2 would indicate that both Bhavani Amma and Kunhambu Nair had jointly obtained lease of the property and by Ext.A2 Kunhambu Nair had released his share in favour of Bhavani Amma. Ext.A3 is also a document executed by Kunhambu Nair in favour of Bhavani Amma. A reading of Ext.A3 would indicate that it was Kunhambu Nair, who was the lessee of the property and he had assigned his leasehold right in favour of Bhavani Amma. 14. The contention of the contesting defendants is that Exts.A2 and A3 have been executed to deny the first defendant of his rights over items 26 and 27. There is S.A.697/1997. 11 absolutely no evidence to show that properties covered by Exts.A2 and A3 were outstanding on lease either with Kunhambu Nair or Bhavani Amma. There is nothing to show that rent has been paid to the jenmi nor is there anything to show that tax has been paid for the property. On the other hand, the first defendant has procured a purchase certificate in respect of these items of property and he has assigned portions of items 26 and 27 in favour of others and there is also a building put up in item No.26. 15. It is true that Exts.A2 and A3 were executed at a point of time when there were no disputes between the parties regarding the property. But however, one cannot omit to note that neither of these documents contain the details of the oral lease said to have been obtained by Kunhambu Nair and Bhavani Amma. Ext.A3 refers to a proceeding before the Land Tribunal for fixation of fair rent filed by Kunhambu Nair. The easiest method by which the respondents could have called for the records of that proceeding and they could have established that the claims S.A.697/1997. 12 of Kunhambu Nair and Bhavani Amma regarding the lease covered by Exts.A2 and A3 were genuine. But for reasons best known to them, they chose not to take steps in that regard. No rent receipts are produced nor there is anything to show that they have paid tax for the property. In fact there is absolutely no evidence to show that the oral lease made mention of in Exts.A2 and A3 is true. Atleast a member of the jenmi family could have been examined to establish that the alleged oral lease is true. The contesting defendants before the trial court have a case that Exts.A2 and A3 have been executed with the intention of defeating the rights of the first defendant. 16. The lower appellate court viewed it from a different angle. The lower appellate court was of the opinion that the defendants were not able to produce any document, which would show that the first defendant had exercised independent rights over items 26 and 27 prior to the death of Bhavani Amma. The lower appellate court also found fault with the contesting defendants for not having S.A.697/1997. 13 called for the proceedings before the Land Tribunal which culminated in the issuance of Exts.B1 and B2 purchase certificates. It was also observed by the lower appellate court that the first defendant had executed assignment deeds in a haste in order to establish as if his claim was genuine. 17. Exts.B1 and B2 are the purchase certificates obtained by the first defendant. If as a matter of fact, it is found that the lease set up by Kunhambu Nair and Bhavani Amma covered by Exts.A2 and A3 is true, then, obviously Exts.B1 and B2 will enure to the benefit of all the co-owners. The first defendant had executed four sale deeds namely, Exts.B3 to B6 all of which are dated 29.9.1981. Ext.B3 is in favour of the second defendant, Ext.B4 in favour of the fourth defendant, Ext.B5 in favour of the sixth defendant. Ext.B6 is in favour of defendants 5, 7, 8 and 9. It has come out in evidence that there is a building situate in item No.26, which was put up by the sixth defendant. He has produced necessary documents to establish that it is he who had put S.A.697/1997. 14 up the building. It is to be noted that the building was put up at a time when there was no dispute. The plaintiffs stood by and watched the building being put up in the property. It is true that the contesting defendants, who claimed that items 26 and 27 are outside the purview of the partition suit have not produced any document to show that the first defendant had exercised any manner of right over the suit property prior to the death of Bhavani Amma. However, as already noticed, Exts.A2 and A3 are of little help to the plaintiffs. At the risk of repetition, one may notice that except for the mentioning of oral lease in Exts.A2 and A3, no documents whatsoever are produced to show that Bhavani Amma and Kunhambu Nair did have leasehold right as claimed by the plaintiffs. 18. The plaint also does not contain the details of the oral lease mentioned in Exts.A2 and A3. One may now have a look at the evidence adduced by P.W.1 in this regard. As regards items 26 and 27, his statement is that except Exts.A2 and A3 there are no other documents to S.A.697/1997. 15 show that the lease set up under those documents is genuine. He is not able to say whether any rent has been paid to the jenmi. He has also admitted that no steps were taken either to call for the records from the Land Tribunal regarding the fixation of fair rent nor the documents summoned from the jenmi to show that the oral lease made mention of in Exts.A2 and A3 are true. He is fully aware of the fact that in 1975 the first defendant had applied for purchase certificate in respect of these two items and had obtained the same. However, he chose to maintain the stand that that was for and on behalf of all the co-owners. He says that Bhavani Amma got assignment of the lease in 1965 and he had no documents to show that Bhavani Amma had paid any tax for the property. He in no less terms admits that even prior to and after 1965 it was the first defendant who had remitted rent for the property, but he at once said that it was for and on behalf of the persons, who are interested in the lease. He also admits that in a portion of item No.26 the sixth defendant had put up a building S.A.697/1997. 16 spending his own money. He is unable to give any sort of details regarding the lease covered by Exts.A2 and A3 and he had stated that he has only hearsay knowledge about the same. He has also stated that neither Kunhambu Nair nor Bhavani Amma had ever been in possession of the property covered by Exts.A2 and A3. 19. One may again notice that the plaint is totally silent regarding the oral lease covered by Exts.A2 and A3. There is also no mention in the plaint regarding the claim of the plaintiffs that Exts.B1 and B2 were obtained on behalf of all the co-owners. Further, the statements of P.W.1, referred to above, would also show that he had no knowledge about the lease covered by Exts.A2 and A3. He has no evidence to show that Bhavani Amma, who is the lessee under the said documents was ever in possession of the property. 20. In this context one may refer to the decisions relied on by the learned counsel for the appellants for the proposition that the possession of purchase certificate is prima facie evidence of the title and possession of the S.A.697/1997. 17 property by the person concerned. In the decision reported in Lakshmi's case (supra) it was held as follows: “A cultivating tenant is a person always in possession of the property concerned. Such a certificate is issued by a competent Land Tribunal after finding that he was in possession of the scheduled properties as a cultivating tenant. S.72K(2) says that such a certificate when issued shall be conclusive proof of the assignment to the tenant of right, title and interest of the landowner and the intermediaries if any over the holding or portion thereof to which assignment relates. Tenant means a cultivating tenant always in possession of the proceedings. Therefore, such certificate is the conclusive proof of possession as well. Unless that certificate is set aside by a competent authority or in a court of law, the statutory enforcement in terms of S.72K(2) has to be honoured and a person claiming on the basis of such purchase certificate has to be taken as in possession of the properties. No document is produced of a date later than that of the certificate namely Ext.A5 to show that the possession had passed on to any other person. Therefore, the S.A.697/1997. 18 possession on the strength of Ext.A5 still subsists in favour of the plaintiff.” 21. In the decision reported in Muhammed Basheer's case (supra) it was held as follows: “Purchase certificate is issued under S.72K of the Kerala Land Reforms Act. It is attributed with statutorily conclusiveness as regards title and possession. Therefore, Ext.A1 creates a title in respect of the holding covered by the said certificate with statutory conclusiveness. Therefore, such certificate is the conclusive proof of possession as well. Unless that certificate is set aside by a competent authority or in a court of law, the statutory conclusiveness in terms of S.72K (2) has to be honoured and a person claiming on the basis of such purchase certificate has to be taken as in possession of the properties. In such circumstances, as a result of Ext.A1 it is conclusively proved that the appellant was in possession of the property as cultivating tenant from a date prior to 1.4.1964. In such circumstances, it cannot vest in Government under S.3 of the Act.” S.A.697/1997. 19 22. Thus it could be seen that prima facie the holder of a purchase certificate will be deemed to be the title holder of the property and so also he will be deemed to be in possession of the property. In the case on hand, admittedly the first defendant had obtained purchase certificate in respect of items 26 and 27. There is nothing to show that he had obtained the purchase certificate for and on behalf of all the co-owners especially when there is nothing to show that those items exclusively