IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR MONDAY, THE 21ST FEBRUARY 2011 / 2ND PHALGUNA 1932 RSA.No. 38 of 2011 -------------------------------- OS.24/1995 of MUNSIFF COURT, PAYYANNUR AS.40/1998 of SUB COURT, PAYYANNUR .................... APPELLANT/APPELLANT/IST DEFENDANT: CHENICHERRY CHATHOTH VEETTIL GANGADHARAN NAMBIAR, AGED 62 YEARS, DESPATCHING SECTION, WESTERN INDIA PLYWOODS, VALAPATTANAM, AZHEEKODE AMSOM, VALAPATTANAM DESOM. BY ADV. SRI.K.P.DANDAPANI, SENIOR ADVOCATE RESPONDENTS.RESPONDENTS/PLAINTIFF & D2 TO D4: 1. P.M.GANGA ALIAS DEVAKI ANTHARJANAM, W/O.P.M.NARAYANAN NAMBOODIRI, AGED 62 YEARS, NO OCCUPATION, PALAKOCHI MARANGATTILLOM, KOROM AMSOM DESOM, P.O.CHALAKODE - 670 307 2. CHEERAKATTILLATH SAVITHRI ANTHARJANAM, AGED 87 YEARS, W/O.P.M.NARAYANAN NAMBOODIRI, CHERUTHAZHAM AMSOM DESOM, MANDOOR P.O. 670 501 3. KIZHAKKE PERKUNDI ILLATH SUVARNINI ANTHARJANAM, AGED 65 YEARS, S/O.K.P.VASUDEVAN NAMBOODIRI, QRS NO.W87/2, HMT COLONY, KALAMASSERY, P.O.ERNAKULAM DISTRICT - 683 104. 4. CHEERAKATTILLATH KESAVAN NAMBOODIRI, AGED 57 YEARS, S/O.LATE NARAYANAN NAMBOODIRI, VYDEEKAM, CHERUTHAZHAM AMSOM DESOM, P.O.MANDOOR - 670501. THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 21/02/2011 ALONG WITH RSA NO.41 OF 2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: M.Sasidharan Nambiar, J. ------------------------------------------ R.S.A.Nos.38 & 41 of 2011 ------------------------------------------ JUDGMENT First defendant in O.S.No.24/1995 on the file of Munsiff's Court Payyannur is the appellant in R.S.A.No.38/2011. 15th Defendant and legal heirs of 14th defendant in O.S.No.27/1995 on the file of Munsiff's Court, Payyannur are the appellants in R.S.A. No.41/2011. O.S.No.24/1995 was instituted seeking a decree for permanent prohibitory injunction and O.S.No.27/1995 for partition. plaint schedule properties in O.S.No.24/1995 is Item Nos.1 and 2 of plaint schedule properties in O.S.No.27/1995. 2. Plaint schedule properties in O.S.No.27/1995 originally belonged to Cheerakkattillath Narayanan Namboothiri and his brother Madhavan Namboothiri. Plaintiff and defendants 10 to 13 in O.S.No.27/1995 would claim that they are the children of Narayanan Namboothiri in his wife Sreedevi Amma. First defendant is the second wife of Narayanan Namboothiri and defendants 2 to 4 are her children in Narayanan Namboothiri. Plaintiff and defendants 10 to 13 are claiming shares in the plaint schedule properties being legal heirs of Narayanan RSA 38 & 41/2011 2 Namboothiri contending that though the properties were divided between Madhavan Namboothiri and defendants 1 to 4, it will not affect their right as they are not parties to the partition deed. There is no dispute with regard to the division claimed in respect of Item Nos.3 to 6 of plaint schedule properties. Dispute is only with regard to Item Nos.1 and 2 of plaint schedule properties. Under Exhibit B3 partition deed executed on 8.11.1958, A schedule property therein was allotted to Madhavan Namboothiri, the brother of Narayanan Namboothiri and B schedule property was allotted to defendants 2 to 4. Appellants are disputing the rights of the plaintiff and defendants 10 to 13, denying their claim that they are the children of Narayanan Namboothiri. Appellants are claiming the right contending that subsequent to Exhibit B3 partition deed, Exhibit A16 marupattam was executed by the first defendant for her children also in favour of her father, who subsequently, under Exhibits A17 and A18 assignment deeds transferred his rights, except in 1.05 acres, in favour of 14th defendant. It is contended that subsequently, 1.05 acres covered under Exhibit A16 marupattam was granted on oral least to 14th defendant. Later, first defendant, under Exhibit A19 assignment deed, assigned his RSA 38 & 41/2011 3 jenm right in favour of 14th defendant and hence, the property covered under Exhibit A16 marupattam is not available for partition. Appellants would also contend that out of the property obtained under Exhibit A16 marupattam, 80 cents was assigned in favour of fourth defendant and out of the balance 1.30 acres was gifted by the 14th defendant in favour of 15th defendant under Exhibit B13 gift deed and therefore, the properties are not available for partition. 3. Learned Munsiff, on the evidence of PW1, DWs 1 to 4 and Exhibits A1 to A21, B1 to B15 and C1 to C7, found that though defendants 14 and 15 contended that plaintiff and defendants 10 to 13 are not the children of Narayanan Namboothiri, defendants 2 to 4, the children and first defendant, the wife of Narayanan Namboothiri, admitted that they are the children of Narayanan Namboothiri and being the wife and children of Narayanan Namboothiri, they are the best persons to admit the relationship and in such circumstances, contention of the appellants that they are not the children of Narayanan Namboothiri was rejected. Learned Munsiff also found that in Exhibit B3 partition deed, plaintiff and defendants 10 to 13 are not parties and as provided under Section 8 of Hindu Succession RSA 38 & 41/2011 4 Act, 1956, as Narayanan Namboothiri died in 1958, after coming into force of Hindu Succession Act, his right would devolve upon his wife and children and therefore, plaintiff and defendants 10 to 13 are entitled to their shares along with defendants 1 to 4 and as they were not parties to Exhibit B3 partition deed, their rights will not be affected by Exhibit B3. Learned Munsiff also found that though Exhibit A16 marupattam was relied on by the contesting defendants, it was executed in 1959 and as provided under Section 8 of Hindu Minority and Guardianship Act, a natural guardian will not, without the previous permission of the court, lease any part of the property belonging to a minor and as provided under sub-section (3), any such transfer would be void at the option of the minor and Exhibits A17 and A18 assignment deeds were executed in favour of defendants 1 and 14 and evidence of DW4, Defendant No.15, establishes that father of the the first defendant, who executed Exhibit A16 marupattam, did not make any construction in the property as stated in Exhibit A16 before it was transferred under Exhibits A17 and A18 and therefore, the lease is not binding on the minors. It was also found that evidence of DW4 shows that he was not aware of the oral lease allegedly made and the assignment deed in favour of RSA 38 & 41/2011 5 the fourth defendant was not produced and the assignment of jenm right is hit by Section 74 of Kerala Land Reforms Act and in such circumstances, plaint schedule properties is available for partition. Therefore, a preliminary decree was passed in O.S.No. 27/1995 directing division of the plaint schedule properties into 270 equal shares and allottment of five such shares to the plaintiff, fifty such shares to defendants 1 to 4, nine such shares to defendants 5 to 9 and five such shares to defendants 10 to 13. O.S.No.24/1995 was decreed as it was found that first defendant, the appellant, is not entitled to trespass into the plaint schedule properties. 4. The judgment and decree were challenged before Sub Court, Payyannur in A.S.Nos.40/1998 and 41/1998. Learned Sub Judge, on re-appreciation of evidence, confirmed the finding of the learned Munsiff with regard to the right of the plaintiff as well as availability of plaint schedule properties for partition. Learned Sub Judge found that though Exhibit A16 marupattam is not binding on the minors, as provided under Section 43 of Transfer of Property Act, Exhibit A19 is binding on the first defendant and therefore, appellants are entitled to get 50/270 shares of first defendant in respect of 1.05 acres of property, RSA 38 & 41/2011 6 covered by Exhibit A19. In such circumstances, the preliminary decree was modified to that extent. The common judgment is challenged in these appeals. 5. Learned counsel appearing for the appellants were heard. 6. Argument of the learned counsel is that courts below failed to take note of the fact that defendants 1 to 4 did not admit that Sreedevi Amma was the wife or plaintiff and defendants 10 to 13 are the children of Narayanan Namboothiri and when the properties of Narayanan Namboothiri and Madhavan Namboothiri were divided under Exhibit B3 and defendants 1 to 4 did not admit the rights of the plaintiff and defendants 10 to 13 and only after alienation of the properties, they admitted that fact before the court and hence, based on that admission, courts below should not have found that plaintiff and defendants 10 to 13 are the children of Narayanan Namboothiri. Learned counsel argued that as Sreedevi Amma was not examined and Exhibits A15 and A22 (which were produced before the first appellate court) are not the extracts of the admission registers issued by a Government School, but by a private aided school, courts below should not have relied on the said admission registers and found RSA 38 & 41/2011 7 that plaintiff and defendants 10 to 13 are the children of deceased Narayanan Namboothiri. Reliance was placed on the decisions of this Court in Gopalan v. Kannan (1958 KLT 388) and Rajappan v. State of Kerala (1960 KLT 273) in support of the argument. Learned counsel also argued that if Sreedevi Amma was the first wife and plaintiff and defendants 10 to 13 are the children born to Narayanan Namboothiri, while dividing the properties under Exhibit B3, their shares would have been allotted to them and as no share was allotted, it is clear that they are not the children of Narayanan Namboothiri. It is also contended that courts below, in any case, should have found that rights of the plaintiff and defendants 10 to 13 were lost by adverse possession, as they have been excluded from possession from 1958 onwards. 7. Plaintiff and defendants 10 to 13 are admittedly the children of Sreedevi Amma. The only dispute is whether Sreedevi Amma was the wife of Narayanan Namboothiri and plaintiff and defendants 10 to 13 are the children born to Narayanan Namboothiri. Argument of the learned counsel is that as Sreedevi Amma was not examined and the school admission registers were issued from a private aided school and not by a RSA 38 & 41/2011 8 Government school, they should not have been relied on and if that be so, there is no evidence to prove that plaintiff and defendants 10 to 13 are the children of Sreedevi Amma in Narayanan Namboothiri. It is also argued that even if the school admission registers are relied on, it would only show that they are the children of Narayanan Namboothiri and will not show that they are the children of Cheerakkattillath Narayanan Namboothiri. 8. Learned Munsiff elaborately considered the contentions raised by the appellants based on the omission to implead them in Exhibit B3 partition deed and also regarding the objection on the allegation that school admission registers are issued from a private aided school. As rightly found by the courts below, when the question to be decided is whether plaintiff and defendants 10 to 13 are the children of Narayanan Namboothiri, as provided under Section 50 of Indian Evidence Act, the opinion expressed on the existence of relationship of a person, who, as a member of the family or otherwise, has special means of knowledge, is definitely a relevant fact. First defendant is the second wife of Narayanan Namboothiri and defendants 2 to 4 are their children. Defendants 1 to 4 admitted the relationship. It is the best RSA 38 & 41/2011 9 evidence which could be let in to establish the relationship between the plaintiff and defendants 10 to 13. True, they did not admit the relationship when the properties were divided under Exhibit B3 in 1958. Question is whether for that reason it could be found that plaintiff and defendants 10 to 13 are not the children of Narayanan Namboothiri. It is to be borne in mind that Exhibit B3 partition deed was effected among Madhavan Namboothiri, the brother of Narayanan Namboothiri, along with defendants 1 to 4. It is also to be borne in mind that Sreedevi Amma does not belong to Namboothiri family, but belongs to a different caste. In such circumstances, omission to make plaintiff and defendants 10 to 13 parties to Exhibit B3 or failure to allot their due shares cannot be taken as a ground for holding that they are not the children of Narayanan Namboothiri. On the evidence, courts below rightly found that plaintiff and defendants 10 to 13 are the children of deceased Narayanan Namboothiri. 9. When plaintiff and defendants 10 to 13 are also the children of Narayanan Namboothiri in his first wife, as they were not parties to Exhibit B3 partition deed, based on the division under Exhibit B3, their right cannot be negatived. In such RSA 38 & 41/2011 10 circumstances, the only question is whether appellants have perfected their title by adverse possession and whether appellants are entitled to more shares than what was allotted by the courts below on the admitted facts and evidence. 10. Subsequent to Exhibit B3 partition deed, first defendant executed Exhibit A16 marupattam in favour of her father in 1959. Father Easwaran Namtboothiri subsequently executed Exhibits A17 and A18 assignment deed, whereunder, portions of the property were assigned in favour of 14th defendant. Though appellants contended that with regard to the remaining 1.05 acres, there was an oral lease in favour of 14th defendant, no acceptable evidence was adduced to prove the oral lease. Though DW4, the 15th defendant, was examined, he has no case that he was present at the time of oral lease. In such circumstances, finding of the courts below, rejecting the oral lease, cannot be challenged. Though learned counsel appearing for the appellants argued that as Exhibit A16 marupattam is valid and under Exhibits A17 and A18 that right was assigned in favour of 14th defendant, who, subsequently, gifted it under Exhibit B13 in favour of 15th defendant and so the properties are not available for partition, when it is found that under Exhibit B3 RSA 38 & 41/2011 11 partition deed, defendants 1 to 4 cannot have exclusive right over the property, rights of the plaintiff and defendants 10 to 13 cannot be defeated. As all the legal heirs of Narayanan Namboothiri are not parties to Exhibit B3 partition deed, appellants are not entitled to claim right under Exhibit A16 marupattam. Moreover, as rightly found by the courts below, Exhibit A16 marupattam is void as far as the rights of defendants 1 to 4, the then minors are concerned, in view of Section 8 of Hindu Minority and Guardianship Act. Therefore, appellants are not entitled to claim any exclusive right based on Exhibit A16 and A19 or B13. First appellate court upheld the right of the appellants based on Exhibit A19 assignment deed executed by the first defendant, to the extent of her 50/270 share. It is also correct. Even though a defence was raised based on adverse possession, there is no plea of ouster which is mandatory when adverse possession is claimed against the co-owners. Appellants could, at best, step into the shoes of the first defendant in respect of the property covered under Exhibit A19 assignment deed and when there is no plea that there is ouster, even if there is evidence to prove that they have been in exclusive possession of the property for more than twelve years, right of the plaintiff RSA 38 & 41/2011 12 and defendants 10 to 13 or defendants 2 to 4 cannot be defeated. In such circumstances, I find no substantial question of law involved in the appeal. The question whether the property claimed by the appellants could be allotted to the 50/270 share of the first defendant, for which appellant is entitled to under Exhibit A19 assignment deed, is to be decided in the final decree proceedings. Appeals are dismissed. 21st February, 2011 (M.Sasidharan Nambiar, Judge) tkv