IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE A.K.BASHEER & THE HONOURABLE MR. JUSTICE M.L.JOSEPH FRANCIS TUESDAY, THE 9TH FEBRUARY 2010 / 20TH MAGHA 1931 AFA.No. 15 of 2002() -------------------- AGAINST THE JUDGEMENT/ORDER IN AS.101/1990 OS.131/1985 of PRINCIPAL SUB COURT, PALAKKAD .................... APPELLANT: APPELLANT/PLAINTIFF --------------------------------- ANTONY FERNANDEZ, S/O.ANTHONYSWAMY, RESIDING AT VADAKARAPATHY VILLAGE, CHITTUR TALUK, PALAKKAD DISTRICT. BY ADV. SRI.K.MOHANAKANNAN RESPONDENTS: RESPONDENTS 2 & 3 AND ADDL. RESPONDENTS 4 TO 8 ------------------------------------------------------------- 1. AMALDA ANTONY, S/O.ANTHONYSWAMY, VADAKARAPATHY VILLAGE, CHITTUR TALUK, PALAKKAD. 2. SUBRAMONIAN, S/O.SUNDARARAJ ACHAN, DO. 3. ADDL: ANNA MARY JAYASEELI, W/O.LATE ANTHONYSWAMY,15 SWAMIYAR NEW STREET NO.1, FORT COIMBATORE, TAMILNADU. 4. ADDL: THIRUMATHI JAMA SHANTHI 119, CHRISTIAN ANNUPER STREET, DHARARMAPURAM, PERIYAR DISTRICT, TAMILNADU. 5. ADDL:SR. SUGHANDHI ANTONY, SALESSION SISTERS ARUNODAYA PULIYADI THAMMAM P.O., PTT DISTRICT, TAMILNADU. 6. ADDL:THIRUMATHI SALIN VASANTHI 49, VINAYAKARKOIL STREET,OPP: VIJAYALAKSHMI MILLS KANNIAMUTHUR P.O., TAMILNADU. 7. ADDL:THIRUMATHI SAGAYA JAYANTHI 15-SWAMIYAR NEW STREET NO.1, FORT COIMBATORE, TAMILNADU. BY ADV. SRI.D.KRISHNA PRASAD SRI.T. SETHUMADHAVAN SMT.K.R.DEEPA FOR ADDL.R3 TO R7 SRI.D.KRISHNA PRASAD FOR R8 SRI.M.HARISHARMA FOR R2 & R8 SRI.BINOY VASUDEVAN FOR R2 SRI.R.MANIKANTAN FOR R2 THIS APPEAL FROM FIRST APPEAL HAVING BEEN FINALLY HEARD ON 18/01/2010, THE COURT ON 09/02/2010 DELIVERED THE FOLLOWING: ORDER ON I.A. NO. 1827/ 2003 ON AFA. NO. 15 OF 2002 DISMISSED. SD/- K.M.JOSEPH (JUDGE) SD/- M.L.JOSEPH FRANCIS (JUDGE) 9.2.2010 A. K. BASHEER & M.L.JOSEPH FRANCIS JJ., - - - - - - - - - - - - - - - - - - - - - - - - - - - - A. F.A. No: 15 of 2002 - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 9th day of February, 2010. JUDGMENT Joseph Francis J., This appeal is filed by the appellant in A.S. No. 101 of 1990 on the file of this court. Respondents herein are the respondents 2 and 3 and additional respondents 4 to 8 in that appeal. That appeal was filed by the plaintiff in O.S. No. 131 of 1985 on the file of Sub Court, Palakkad. Deceased first respondent/ first defendant is the father and second respondent/ second defendant is the brother of the appellant. The suit was filed for partition of the plaint schedule properties measuring about 18 acres. The first respondent died during the pendency of the appeal. The appellant, second respondent and respondents 4 to 8 have been recorded as the legal heirs of the deceased first respondent. A. F.A. No: 15 of 2002 :2: 2. The facts of the case are briefly as follows: The plaintiff is the son of the 1st defendant. Plaintiff and defendants 1 and 2 are Vanniya Christian governed by Hindu Mithakshara Law. They are members of an undivided family. The properties described by the plaint schedule were allotted to the 1st defendant's father as per the partition deed registered as document No.744/1111 of Chittur Sub Registrar's office entered into between the 1st defendant's father and others. After the death of the 1st defendant's father, the properties have devolved on the family consisting of the plaintiff and defendants 1 and 2. The 1st defendant is in possession and management of the properties on behalf of the family. 3. It is understood that the defendants 1 and 2 are attempting to alienate the properties in favour of the 3rd defendant and some documents have already been entered into between them in connection with the proposed sale. 2.97 acres of R.S. 660/1 and 2.37 acres of R.S. 670/5 included in the plaint schedule item No.1 are under stood to have been given possession of by defendants 1 A. F.A. No: 15 of 2002 :3: and 2 in favour of the 3rd defendant. It is also understood that the 3rd defendant has dug a well in the said portion of the properties. Defendants 1 and 2 are not entitled to alienate or give possession of the properties to third parties. There was also no necessity for assigning any portion of the properties. No benefit has been derived by the family on account of the sale of the properties. The act of defendants 1 and 2 in handing over possession of the properties to the 3rd defendant is not binding on the plaintiff or the family. In case defendants 1 and 2 are permitted to assign the properties as proposed by them, the plaintiff will be put to irreparable loss and injury. It has therefore become necessary that the plaintiff is given partition of his share in the properties. Since the 3rd defendant is in possession of the property referred to above he is also made a party to the suit. There are no debts binding on the family. 4. The plaint schedule properties will yield a net annual income of Rs.8,000/- The plaint schedule properties are in the joint possession of the plaintiff and defendants 1 and 2. This suit is therefore filed for partition of the plaintiffs 1/3rd share in the plaint A. F.A. No: 15 of 2002 :4: schedule properties with his share of future profits and cost of the suit. 5. Defendants 1 and 2 have filed a joint written statement raising the following contentions. These defendants have not raised any objection in partitioning the properties. These defendants have entered into an agreement with the 3rd defendant on 18.11.1977 for assignment of the properties shown below. Those properties were agreed to be sold for a consideration of Rs.15,000/- and a sum of Rs.3,000/- was paid as advance on the date of the agreement. The balance consideration was agreed to be paid by the 3rd defendant by discharging the loan taken by the defendants 1 and 2 from the Land Mortgage Bank, Palghat. According to the agreement, the sale was to be effected by 1153 Meenom 1st. But the 3rd defendant did not pay the balance purchase money within the time prescribed under the agreement. So the said agreement has become cancelled. Thereafter these defendants continued to be in possession of the properties agreed to be sold to the 3rd defendant. But the 3rd defendant trespassed into the properties in 1980 and reduced the A. F.A. No: 15 of 2002 :5: properties agreed to be sold him to his possession. Thereafter there was a mediation and as per the said mediation, the 3rd defendant was allowed to retain possession of the properties for a period of five years and during the said period, the 3rd defendant was authorised to discharge the full liability of the defendants 1 sand 2 in favour of the Land Mortgage Bank. 6. It was also agreed that only after the expiry of the said period of 5 years, the 3rd defendant would surrender possession of the properties in favour of defendants 1 and 2. According to the said meditation, the 3rd defendant had to surrender possession of the properties by 15.11.1985. The 3rd defendant has dug a well in the properties. He has also repaired an old well in the properties. Defendants 1 and 2 objected to the digging of the well by the 3rd defendant. But the 3rd defendant made defendants 1 and 2 believe that the well was being dug by him to see that more profits are derived from the properties and that the defendants 1 and 2 need pay a sum of Rs.2,000/- as the value of the well dug by the 3rd defendant at the time when he surrenders possession of the A. F.A. No: 15 of 2002 :6: properties. It was with this understanding that the 3rd defendant was allowed to retain possession of the properties. It was because the defendants 1 and 2 were not in a position to return the advance money received by them that the 3rd defendant was allowed to retain possession of the properties on the aforesaid conditions. 7. Even though the 3rd defendant had agreed to surrender possession of the properties by 1985 November, he did not surrender possession in spite of demand. Since the value of the property has increased, the 3rd defendant is trying to see whether he can retain possession of the properties and it is with this intention that he has raised untenable contentions in the suit. These defendants had not attempted to assign the properties. The defendants have no objection in partitioning the properties. But the value of the well payable to the 3rd defendant has to be divided as a debt binding on the estate. It is therefore prayed that a decree may be passed in accordance with the contentions raised by defendants 1 and 2. 8. The third respondent would contend that the appellant A. F.A. No: 15 of 2002 :7: (who was then a minor represented by his father) his father the first respondent and the second respondent entered into an agreement for a sale of 5.34 acres in item No.1 for a sale consideration of Rs.15,000/- under Ext.B1 dated 28.11.1977 and on the date of the agreement a sum of Rs.3,000/- was paid and the loan obtained by the first respondent from the Land Mortgage Bank, Palakkad for family necessity was also discharged by the third respondent by paying about Rs.14,000/- and in pursuance of Ext.B1 agreement on the next day, he was put in possession of the property. Therefore the property covered by Ext.B1 is not partible property and from the date of his possession, he has improved the property by spending a substantial amount of Rs.50,000/-. Therefore, he is entitled to protection under Section 53A of the Transfer of Property Act. 9. The alternative contention of the third respondent would be that in case of partition being allowed, the property covered by Ext.B1 can be set apart to the share of respondents 1 and 2 and in turn that can be allotted to him. Yet another submission of the third respondent would be in case Ext.B1 is found to be invalid, he is A. F.A. No: 15 of 2002 :8: entitled to a sum of Rs.3,000/- another sum of Rs.14,000/- and also the value of improvements effected by him in the suit property. 10. The Trial court on considering the evidence passed a decree for partition excluding the property covered by Ext.B1 in three equal shares. One share to plaintiff /appellant and two shares to the defendants 1 and 2. Against that judgment and decree the plaintiff filed A.S. No. 101 of 1990 before this court, contending that the property included in Ext.B1 is also liable to be partitioned and that the third defendant/ 3rd respondent has not taken possession of the property in pursuance of Ext.B1 and in fact third defendant has trespassed into the property. That appeal was dismissed by this court, confirming the judgment and decree of the trial court. Against that judgment the appellant/ plaintiff filed this appeal. 11. Heard the learned counsel for the appellant and learned counsel for the contesting respondents. 12. The learned counsel for the appellant submitted that Cochin Christian Succession Act makes it clear that, that Act is not applicable to Tamil Christian of Chittoor Taluk, who are followers A. F.A. No: 15 of 2002 :9: of Hindu Law. The learned counsel for the appellant further submitted that Tamil Vanniya Christian Community is governed by the Rule of Hindu Law in matters of inheritance and succession. The learned counsel for the appellant relied on decision of the Apex Court reported in Anthonyswamy v. M. R. Chinnaswamy Koundan and others (AIR 1970 (SC) 223) submitted that Vanniya Tamil Christians of Chittoor Taluk, Kerala are governed by the Mitakshara School of Hindu Law in regard to inheritance and succession. The son of a member of such community gets by birth an interest in ancestral property owned by the father. There is no dispute with regard to that proposition of law. Learned counsel for the appellant submitted that provisions of Kerala Joint Hindu Family System (Abolition) Act 1975 is applicable to the parties and by virtue of that Act, the joint family system stood abolished and the properties of joint family are held thereafter by the members of the joint family as tenants in common, as if there was a partition. But that argument cannot accepted in view of the fact that Act is applicable only to joint Hindu Family. A. F.A. No: 15 of 2002 :10: 13. The learned counsel appearing for the appellant would contend that the parties are governed by Hindu Mitakshara Law. When that be so, the appellant, his deceased father, and his brother second respondent are each entitled to one-third share in the property and his brother and father had no right to enter into an agreement to sell his one third share under Ext.B1 to the third respondent. Yet another submission of the learned counsel would be that for entering into such agreement (Ext.B1) previous permission of the court is necessary as provided in section 3 of the Hindu Minority and Guardianship Act, 1956. That argument of the learned counsel can be answered now itself by referring to Section 3 of the above said Act, which would go to show that the Hindu Minority and Guardianship Act, 1956 will not be applicable to Muslims, Christian, Parsies and Jews. Therefore, though the appellant, his father and brother are governed by the Hindu Mitaksharaw Law, the Hindu Minority and Guardianship Act, 1956 is not applicable to them. 14. Both the courts found on appreciating the evidence on A. F.A. No: 15 of 2002 :11: record that the property agreed to be sold as per Ext.B1 agreement for family necessity and that 3rd defendant is entitled to protection under Section 53A of the Transfer of Properties Act. The first appellate court has considered the evidence by applying its mind independently and considered the reasoning of the trial court and gave reasons for agreeing with the finding of the Trial court. Since that finding is sustainable from the reasoning given, that finding cannot be interfered with in this A.F.A. Therefore we are of the view that this appeal is without any merits and is liable to be dismissed. Accordingly this appeal is dismissed. There is no order as to cost. A. K. BASHEER, JUDGE M. L. JOSEPH FRANCIS, JUDGE dl/