IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOTTATHIL B.RADHAKRISHNAN & THE HONOURABLE MR. JUSTICE S.S.SATHEESACHANDRAN MONDAY, THE 30TH MAY 2011 / 9TH JYAISHTA 1933 AS.No. 917 of 1996() -------------------- OS.147/1993 of SUB COURT, KASARAGOD .................... APPELLANT(S)IN AS:DEFENDANTS 1 & 3 TO 7 IN SUIT: --------------------------------------------------------------------------------- *1. RAMAKKE, D/O. BIRMAGE, RESIDING AT CHEDIKAVU, KANCHIKKATTEE, KOIPADY VILLAGE, KASARAGOD TALUK & DISTRICT. ( D I E D) - LEGAL REPRESENTATIVES IMPLEADED: 2. PADMAVATHI, W/O.RAGHAVA ALIAS RAMANKUTTY, RESIDING AT NEKRAJE HOUSE, NEAR DEVI TALKIES, KOIPADY VILLAGE, KASARAGOD TALUK & DISTRICT. 3. DAKSHAYANI, D/O. ..DO... AND W/O.RAGHAVA GATTI, RESIDING AT KUNTANGARADKA, NEAR WELFARE SCHOOL, KOIPADY VILLAGE, KASARAGOD TALUK, P.O.KUMBLA. 4. JEEVANKUMAR, S/O..DO... RESIDING AT NEKRAJE HOUSE, NEAR DEVI TALKIES, KOIPADY VILLAGE, KASARAGOD TALUK AND DISTRICT. 5. JYOTHI, D/O..DO... IN ...DO...DO.... 6. JALAJAKSHI, D/O...DO... IN ...DO..DO...DO.... BY SRI.S.V.BALAKRISHNA IYER, SENIOR ADVOCATE, BY ADV. SMT.SUSHEELA R.BHAT, SRI.P.B.KRISHNAN. Kss ..2/- ..2.... AS.NO.917/1996 RESPONDENT(S) IN AS: PLAINTIFFS IN SUIT: ------------------------------------------------------------------ 1. GOPI, D/O. KORAPPALU, RESIDING AT MAVINAKKATTA OF KOIPADY VILLAGE, P.O.KUMBLA, KASARAGOD TALUK AND DISTRICT. 2. DEVAKI, D/O. ...DO... RESIDING AT CHOWKI, BALLUR, KUDLU VILLAGE, KASARAGOD TALUK AND DISTRICT, P.O. KUDLU. *ADDL.R3 TO R5 IMPLEADED: R3. GOPI, W/O. KORAGAPPA GATTI, RESIDING AT POIAKANDA HOUSE, NEAR CHEDIKAVU TEMPLE, POST KUMBLA, KASARAGOD DISTRICT. R4. DEVAKI, W/O. BATTYAPPA GATTI, RESIDING AT EDANADU HOSAMANE HOUSE, POST EDANADU, VIA.KUMBLA, KASARAGOD DISTRICT. R5. KAMALA, W/O. GOPALA GATTI, RESIDING AT AJJIGOLI HOUSE, NEAR CHEDIKAVU TEMPLE, POST KUMBLA, KASARAGOD DISTRICT. *ADDL.RESPONDENTS 3 TO 5 ARE IMPLEADED AS THE LEGAL REPRESENTATIVES OF DECEASED APPELLANT NO.1 AS PER ORDER DTD. 28/05/2009 IN CMP.NO.5999/99. R1,R2 & ADDL.R3 TO R5 BY ADV. DR.P.S.KRISHNA PILLAI THIS APPEAL SUITS HAVING BEEN FINALLY HEARD ON 30/05/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Kss Thottathil B.Radhakrishnan & S.S.Satheesachandran, JJ. = = = = = = = = = = = = = = = = = = = = = = = = A.S.No.917 of 1996-B = = = = = = = = = = = = = = = = = = = = = = = = Dated this the 30th day of May, 2011. Judgment “CR” Thottathil B.Radhakrishnan, J. 1.The surviving defendants in a suit for partition are the appellants. Mundappa Gatty had three children; a son Manju Gatty and daughters Birmage and Korappalu. Manju Gatty died issueless and intestate and his right also devolved on the sisters and the plaintiffs are the heirs of Korappalu. They accordingly sued for partition. 2.The defendants contended that Manju Gatty was himself the cultivating tenant of the property in question, he having obtained lease from Vakil Narasimha Naik and had, along with the heirs of AS917/96 -: 2 :- Narasimha Naik, filed J Form under the Kerala Land Reforms Act and obtained Ext.A8 order of assignment and certificate regarding the property in question and Manju Gatty who remained unmarried and issueless had executed Ext.B1 Will in favour of the 2nd defendant, who is the son of the 1st defendant. 3.The fact that Ext.A8 purchase certificate is issued by the Land Tribunal in favour of the 2nd defendant is admitted by the plaintiffs, even going by the plaint averments, in as much as, they plead the said fact; do not impeach it as a fraudulent action before the Land Tribunal; but contended that the benefit of Ext.A8 inured to the benefit of the three children of Mundappa Gatty since, according to them, it was Manju Gatty who had originally obtained the lease from the land owner Narasimha Naik. It was on that basis that they pleaded in the plaint that the action of Manju Gatty in obtaining Ext.A8 purchase certificate is one on behalf of all the AS917/96 -: 3 :- heirs of Mundappa Gatty and therefore, Ext.A8 inures to their benefit also. 4.The court below, on an appreciation of Ext.A8, took the view that the said order by the Land Tribunal and certification were not issued after looking into the lease, but only by acting on the J Form and that on the basis of the materials on record in the suit from which this appeal arises, the lease has to be held as one in favour of Mundappa Gatty and not Manju Gatty. It accordingly held that the benefit of Ext.A8 inures in favour of the children of Mundappa Gatty, though the order and certificate issued by the Land Tribunal stands in the name of Manju Gatty. It further upheld Ext.B1 Will by Manju Gatty containing the bequest in favour of the 2nd defendant. Accordingly, the impugned preliminary decree for partition was passed. 5.Heard. AS917/96 -: 4 :- 6.In our view, the learned counsel for the appellants appears to be justified in arguing that without impeaching Ext.A8, or in the alternative, without seeking a declaration that it inures to the benefit of the three children of Mundappa Gatty, it was impermissible to order partition merely on the assumption that Ext.A8 inured to the benefit of Manju Gatty, Birmage and Korappalu. The proceeding under the Land Reforms Act is a statutory proceeding. It gains finality by the issuance of the order and the consequential certificate of purchase. 7.Section 72K(2) of the Kerala Land Reforms Act provides that the certificate of purchase issued under sub-section (1) shall be conclusive proof of the assignment to the tenant of the right, title and interest of the land owner and the intermediaries, if any, over the holding, or portion thereof, to which the assignment relates. Once such a certificate is issued, the person in whose name it is issued is to be considered as AS917/96 -: 5 :- the person in possession of the property. As held in Cheeranthoodika Ahmmedkutty v. Parambur Mariakutty Umma[(2000) 2 SCC 417], such certificate of purchase is binding and when the enactment enjoins that any evidence could be treated as conclusive proof of a particular factual position or legal hypothesis, the law would forbid other evidence from being adduced for the purpose of contradicting or varying that conclusiveness. 8.In the absence of any plea that the aforesaid certificate has been obtained by fraud and without seeking any declaration as to title on the basis of the purchase certificate which stands in the name of Manju Gatty, the other children of Mundappa Gatty or their heirs cannot stake any claim to the property covered under Ext.A8. 9.The crucial element that surges from the totality of the evidence on record is the credibility of AS917/96 -: 6 :- the statement of Manju Gatty himself and the acceptability of that version, as available in his Will Ext.B1. The said Will is a registered one. Its execution has been duly proved by summoning and examining the attestors. The court below has also believed the attestors who gave evidence as D.W.2 and D.W.3. That Will having been thus proved, its contents become admissible in evidence. Ext.B1 Will is executed by Manju Gatty on 22.7.1974 when he was 56 years old. He remained issueless. His Will contains the recitals that he became a widower at a young age and was ever since living with Raghava Gatty, i.e., the 2nd defendant. In the first paragraph of that Will, he explicitly states that he obtained the lease from Vakil Narasinga Rao on chalageni lease in 1937. He recites about having filed the J Form along with the sons of Vakil Narasinga Rao before the Land Tribunal as O.A.306/1974. He also recites about the payment of rent by him to Narayana Nayak and Ganapathi Nayak, the sons of Vakil Narasinga Rao after the demise of Narasinga AS917/96 -: 7 :- Rao. We do not find any artificiality in the manner and contents of that Will that dissuades us from accepting the version of Manju Gatty in that testament regarding the genesis of the possession and other matters attendant to the property in question. He does not, in any manner, proceed under that Will to confer any benefit on any particular person to the exclusion of any other when he says that he had by himself obtained the lease and the consequential order of the Land Tribunal and had given the benefit thereunder to Raghava Gatty, the 2nd defendant. He reasons out that bequest to the fact that after the death of his wife, he had been living with the 2nd defendant, who is none other than his nephew's son. He has affection to him. The recitals in the Will show why he preferred to make the bequest in favour of Raghava Gatty. 10.In so far as the documentary evidence contained in Ext.B1 Will regarding the transaction with Vakil Narasinga Rao and his sons is concerned, AS917/96 -: 8 :- the same finds ample corroboration by the fact that a statutory Tribunal had issued Ext.A8, shown to be at the instance and application of Manju Gatty and the two sons of Vakil Narasinga Rao. As already noticed, there is no challenge to the sustainability of those proceedings. In this view of the matter also, we are satisfied that the court below acted correctly in holding that the benefit of Ext.B1 inures exclusively to the legatee under Ext.B1, that is, the 2nd defendant. 11.The findings in Ext.A8 and its operation in law have the effect of res judicata in so far as Issue No.6 is concerned. The question as to whether it was Manju Gatty who was the cultivating tenant and, therefore, the tenancy right to which he was entitled to certification under the Kerala Land Reforms Act, was an issue within the jurisdiction of the Land Tribunal. That jurisdiction was exercised and Ext.A8 was issued. Ext.A8 is a document on record. There was no challenge to its sustainability. As already AS917/96 -: 9 :- noted, no declaration is sought for that the benefit of Ext.A8 inures in favour of the other children or those down the line in favour of Mundappa Gatty is concerned. 12.For the aforesaid reasons, the findings of the court below under Issue No.6 are liable to be vacated and as a consequence, the preliminary decree passed by the court below is to be set aside. In the result, this appeal succeeds. The impugned decree is vacated and the suit is dismissed. The parties are directed to suffer their respective costs. Sd/- Thottathil B.Radhakrishnan, Judge. Sd/- S.S.Satheesachandran, Judge. Sha/02-1706 -true copy- P.S.to Judge. AS917/96 -: 10 :- Thottathil B.Radhakrishnan & S.S.Satheesachandran, JJ. = = = = = = = = = = = = = = = = = A.S.No.917 of 1996-B = = = = = = = = = = = = = = = = = Judgment 30th May, 2011