IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE PIUS C.KURIAKOSE THURSDAY, THE 24TH JULY 2008 / 2ND SRAVANA 1930 LA.App..No. 326 of 2001() ------------------------- LAR.14/1995 of ADDL.SUB COURT, PALAKKAD .................... APPELLANT/CLAIMANT NO.20: ----------- NARENDRAN, S/O BALAKRISHNA MENON, “ANAND” KANJIKODE WEST, PALAKKAD, PIN 678 623. BY ADV. SRI.O.RAMACHANDRAN NAMBIAR SRI.GEEN T.MATHEW RESPONDENTS/RESPONDENT/CLAIMANTS 1 TO 9: ------------- 1. THE SPECIAL TAHSILDAR, L.A.(G) NO.1, PALAKKAD 2. T.B.SANTHAKUMARAN S/O BALAKRISHNA MENON 9-27, DEVI VILAS, COLLEGE ROAD, PALAKKAD. 3. A.CHANDRIKA W/O T.B.SANTHAKUMARAN, 9/127, DEVI VILAS, COLLEGE ROAD, PALAKKAD. 4. SAYIKRISHNAN (MINOR) S/O SANTHAKUMARAN 9/127, DEVI VILAS, COLLEGE ROAD, PALAKKAD, REPRESENTED BY GUARDIAN AND FATHER T.B.SANTHAKUMARAN, 9/127, DEVI VILAS, COLLEGE ROAD, PALAKKAD. 5. ALAKRISHNA MENON (DIED) 6. SIDHARTHA MENON S/O SANKARA MENON, 9/127, DEVI VILAS, COLLEGE ROAD, PALAKKAD. 7. NITYANANDA MENON S/O SANKARA MENON, DEVI VILAS COLLEGE ROAD, PALAKKAD. 8. SUMANGALAD/O SANKARA MENON,DEVILAS, COLLEGE ROAD, PALAKKAD. 9. PARVATHY W/O BALAKRISHNAN, KURUNGADU HOUSE, MARUTHARODE, PALAKKAD. 10. LEELAVATHI W/O PAZHANAN, KURUNGADU HOUSE, MARUTHARODE, PALAKKAD. 11. AZHAKAN S/O KOMBI, KURUNGADU HOUSE, MARUTHARODE, PALAKKAD. 12. KAMALAKSHY D/O KOMBI, KURUNGADU HOUSE, MARUTHARODE, PALAKKAD. 13. PADMAVATHI, D/O KOMBI, KURUNGADU HOUSE, MARUTHARODE, PALAKKAD. 14. JANAKI D/O KOMBI, KURUNGADU HOUSE, MARUTHARODE, PALAKKAD. 15. STATE OF KERALA REPRESENTED BY THE DISTRICT COLLECTOR, PALAKKAD. 16. SARADHA ACHUTA MENON D/O LATE VESU AMMA, 9/127 DEVI VILAS, COLLEGE ROAD, PALAKKAD. 17. SANTHAKUMARAN S/O LATE VESU AMMA 9/127, DEVI VILAS, COLLEGE ROAD, PALAKKAD. 18. AMMU D/O LATE VESU AMMA 9/127, DEVI VILAS COLLEGE ROAD, PALAKKAD. 19. SHYAMALA D/O LATE VESU AMMA 9/127, DEVI VILAS C OLLEGE ROAD, PALAKKAD. 20. THANKAM B.MENON, W/O BALAKRISHNA MENON 'ANAND' KANJIKODE WEST, PALAKKAD. BY ADV. SRI.V.CHITAMBARESH (SR.) FOR R2 & R3 SRI.KRISHNA PRASAD. S FOR R2 & R3 R1 BY GOVT. PLEADER SMT. LATHA THANKAPPAN. THIS LAND ACQUISITION APPEAL HAVING BEEN FINALLY HEARD ON 24-7-2008 THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ORDER ON CMP.1681/01 IN LAA. NO. 326 OF 001 DISMISSED. 24-7-08 SD/- PIUS C.KURIAKOSE, JUDGE. PIUS C. KURIAKOSE, J. ----------------------------------------------- LAA. No. 326 OF 2001 ----------------------------------------------- Dated this the 24th day of July, 2008 J U D G M E N T Claimant No.20 in a reference under section 31(2) for settling the dispute regarding title to the acquired property and entitlement of the compensation under deposit has preferred this appeal being aggrieved by the award of the Reference Court holding that claimant Nos.1 to 3 (respondent Nos.2 to 4) are the owners of the acquired property and therefore entitled to the entire compensation. The acquired property consisted of 1.29 ares of land in survey No.367/11 of Marutharode Village of Palakkad Taluk and the acquisition was for construction of Microwave Station Tower and Staff Quarters for the Telecom Transmission Project. Before the Reference Court claimants 1 to 3 filed claim statement contending that they alone are entitled for getting the amount under deposit. Claimants 8 to 13 also raised a similar claim. Claimant 19 who is the mother of the appellant filed a claim statement submitting that her husband Balakrishna Menon had executed registered Will No.154/80 in favour of the appellant, their son and therefore the appellant alone is entitled for the compensation amount. The appellant also claimed the amount on the basis of registered Will No.154/80. The evidence before the Reference Court LAA. N0. 326/01 -2- consisted of the oral testimonies of Aws. 1 to 7 and documents Exts.A1 to A4 and Wills X-1 and X-2. The learned Subordinate Judge on appreciating the evidence found that Ext.X-1 and X-2 Wills were genuine registered Wills and that they were duly proved through attestors AW-2 and AW-3 respectively. It was noticed by the court that the acquired property was obtained jointly by Saraswathy Amma, Ammukutty Amma and Kallyanikutty Amma by virtue of Ext.A2 sale deed of 30-9-1947. It was further found that by operation of Exts.X-1 and X-2 the acquired property became devolved absolutely upon respondents 2 to 4 – claimants 1 to 3. The learned Judge repelled the claims of claimants 8 to 13 finding that no documents were produced by them to prove their alleged title over the property. As regards the appellant – claimant No.20, it was found that though on the terms of Ext.A1 Will executed by his father all the properties belonging to the father had been bequeathed in favour of the appellant, the acquired property was not the property of the appellant's father and therefore the bequest under the Will in favour of the appellant could not affect the acquired property. Ext.A4 unregistered Will typewritten on white paper was found to be a bogus document. 2. I have heard the submissions of Sri.O.Ramachandran LAA. N0. 326/01 -3- Nambiar, learned counsel for the appellant and also those of Sri.V.Chitambaresh, learned senior counsel for the contesting respondents 1 to 3. Mr.Nambiar would address me on all the grounds raised in the appeal memorandum. Learned counsel would submit that the conclusions of the learned Subordinate Judge regarding the genuineness of Ext.A4 is the result of misreading all evidence. In this context the learned counsel would read over to me the testimony of AW-6 Ramachandran attestor to A4 Will and it was submitted that the credit of Aw-6 has not been shaken by the cross examination. Mr.Nambiar submitted that the appellant is prepared to examine the second attesting witness to A4 and requested that an opportunity be given. Counsel would lastly submit that at any rate since it is conceded that Smt.Kallyanikutty Amma died intestate, Balakrishna Menon, the appellant's father became a legal heir to Kallyanikutty Amma's estate and therefore the appellant has a share de hors Ext.A4 to the acquired property. 3. Sri.Chitambaresh,learned senior counsel was able to meet the submissions of Mr.Nambiar. The senior counsel submitted that the acquired property was covered by Ext.A2 document and A1 and A4 Wills have nothing to do with the property covered by Ext.A2. Meeting LAA. N0. 326/01 -4- Mr.Nambiar's submission regarding succession to estate of Kallyanikutty Amma Mr.Chitambaresh would read over to me the claim statement which had been filed by the appellant before the Reference Court. It was submitted that even Ext.A4 Will was not founded on the claim statement. The present claim as a legal representative of Kallyanikutty Amma through Balakrishna Menon was never raised before the court below at all. The findings of the learned Subordinate Judge regarding Ext.A4 are based on evidence and probabilities, according to Mr.Chitambaresh. 4. I have considered the rival submissions addressed at the Bar. Though Sri.Nambiar was able to pick a hole or two on the judgment of the Reference Court I have no difficulty to sustain the judgment. The appellant traces his claim to the property under Ext.A1 Will executed by his father. Sri.Balakrishna Menon, the appellant's father was alive at the time of the award enquiry. The note to award will reveal that Sri.Balakrishna Menon appeared before the awarding officer and submitted very clearly that he does not have any right or interest over the acquired property and that it is respondents 2 to 4 who are the owners of the acquired property entitled for the entire compensation. This aspect of the matter was pointed out to Mr.Nambiar and his only LAA. N0. 326/01 -5- response was that this aspect had never come to his notice earlier. The above aspect in my opinion is fatal to the claims of the appellant. 5. I am therefore dismissing the appeal on the reason that Sri.Balakrishna Menon, the appellant's father under whom the appellant claims was admittedly not having any interest over the property. As regards the finding of the learned Judge regarding Ext.A4 it is clarified that those findings will be confined to the acquired property. The result is that the appeal stands dismissed, but in the circumstances, without any order as to costs. (PIUS C.KURIAKOSE, JUDGE) ksv/ LAA. N0. 326/01 -6- Pius C.Kuriakose, J. LAA. No. 326 of 2001 JUDGMENT 24th July, 2008