IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR TUESDAY, THE 17TH MARCH 2009 / 26TH PHALGUNA 1930 AS.No. 172 of 1995(C) ------------------------------- O.S. NO.122/1986 OF THE SUB COURT, KASARAGOD. .......... PLAINTIFF/ APPELLANT(S): ------------------ K.RAMANANDA MALLYA, S/O. PANDURANGA MALLYA, NO.29, 4TH MAIN, J.P.NAGAR 3RD PHASE, BANGALORE 78. BY MR.T.P.KELU NAMBIAR, SENIOR ADVOCATE BY ADVS. MR.P.G.RAJAGOPALAN MRS. NARAYANIKUTTY CHETTOOR MR.GOPIKRISHNAN NAMBIAR DEFENDANTS 1 TO 16 AND LEGAL HEIRS OF 17TH DEFENDANT/ RESPONDENT(S): --------------------- 1. K.ANASUYA BAI, W/O. PANDURANGA MALLYA, NO.473, EAST END ROAD, JAYA NAGAR 9TH BLOCK, BANGALORE 69. 2. K.SHESHAGIRI MALLYA, S/O. PANDURANGA MALLYA, FLAT NO.2, 47/41 WEST AVENUE, PUNJABI BHAG, NEW DELHI 110 026. 3. K.RADHAKRISHNA MALLYA, S/O. PANDURANGA MALLYA, NO.473, EAST END ROAD, JAYA NAGAR 9TH BLOCK, BANGALORE 69. 4. K.MANOHARA MALLYA S/O.PANDURANGA MALLYA, OF DO. DO. 5. K.RAMESHA MALLYA, S/O. PANDURANGA MALLYA OF DO. DO. A.S. NO.172/1995 6. K.SANDEEPA MALLYA, S/O. K.SHESHAGIRI MALLYA, FLAT NO.2, 47/41 WEST AVENUE, PUNJABI BHAG, NEW DELHI 110 026. 7. K.P.RAMAKRISHNA, S/O. PAKKIRA, RETIRED TAHSILDAR,, ANEBAGILU, KASARAGOD DISTRICT. 8. ABDUL RAHIMAN ALIAS HAIDAR HAJI, S/O. HASSAINAR MAMMUNHI, CHERUMBE, PANAYAL VILLAGE, HOSDRUG TALUK, P.O.PANAYAL, KASARAGOD DISTRICT. 9. FAIZAL, S/O. HAIDAR HAJI,OF DO. DO. 10. ABDUL RAHIMAN, S/O. T.K.ABDULLA HAJI, NUSRATH ROAD,TALANGARA VILLAGE, P.O.KASARAGOD, KASARAGOD DISTRICT. 11. S.H.NOORUNNISSA, W/O. ABDUL RAHIMAN OF DO. DO. 12. NOORISHA SHANAWAS (MINOR) REP.BY GUARDIAN, FATHER ABDUL RAHIMAN, 10TH RESPONDENT. 13. AYSHATH MUNEER (MINOR) REP.BY GUARDIAN FATHER ABDUL RAHIMAN, 10TH RESPONDENT. 14. T.H.MOHAMMED, S/O. IBRAINE HAJI, RESIDING AT KALLAMPADY, KASARAGOD KASBA VILLAGE, P.O. KASARAGOD. 15. K.M.ZAINUDDIN, S/O. T.P.MOHAMMED KUNHI, OF DO. DO. 16. M.ABBAS, S/O. ABDULLA, KUNNIL HOUSE, PALLIKARA VILLAGE, HOSDRUG TALUK P.O. PALLIKARA, KASARAGOD DISTRICT. 17. ZOHRA, W/O. T.HAMZA, RESIDING AT ITTAMMAL, KANHANGAD, P.O.KANHANGAD, KASARAGOD DISTRICT. 18. HAKKIM (MINOR) 19. MUNEER (MINOR) A.S. NO.172/1995 20. KHADIJA (MINOR) 21. RAZAK (MINOR) 22. REMLA (MINOR) 23. MARIYA (MINOR) (MINOR RESPONDENTS 18 TO 23 REP.BY GUARDIAN FATHER M.ABBAS, 16TH RESPONDENT. BY ADVS. MR.P.SHRIHARI, FOR R1 TO R6 MR.U.P.KUNIKULLAYA FOR R7 MR.D.KRISHNA PRASAD FOR R11 MR.K.G.GOWRISHANKAR RAI FOR R 16 BY ADV. MR.B.KRISHNAN FOR R12 & R13 MR.R.PARTHASARATHY FOR R12 & R 13 THIS APPEAL SUITS HAVING BEEN FINALLY HEARD ON 13/02/2009, THE COURT ON 17/03/2009 DELIVERED THE FOLLOWING: ORDER ON CMP. NO.1622/2000 IN AS. NO.172/1995 Dismissed 17.03.2009 SD/- M.SASIDHARAN NAMBIAR, JUDGE TRUE COPY P.S. TO JUDGE TSS M.SASIDHARAN NAMBIAR,J. =========================== A.S. NO. 172 OF 1995 =========================== Dated this the 17th day of March,2009 JUDGMENT Plaintiff in O.S.122/1986 on the file of Sub Court, Kasaragod is the appellant. Defendants are the respondents. Suit was filed for partition. Plaint schedule properties are 9 cents in R.S.No.89/4 and 52 cents R.S. No.94/4 of of Kasaragod Kasba Village. They admittedly originally belonged to Sheshu Mallya who died issueless in 1933. He had adopted Panduranga Mallya, who died in 1982, as his son. First respondent is the widow and appellant and respondents 2 to 5 are his sons. Sixth respondent is the son of second respondent. According to the appellant, appellant and respondents 1 to 6 are followers of Hindu Mithakswara law of and Sheshu Mallya was a member of the coparcenary and under A.S.172/1995 2 Ext.A1 partition deed dated 24.10.1921 joint family properties were divided and some properties were allotted to Sheshu Mallya. The properties so allotted were outstanding on anwar rights. Under Ext.A2 he assigned the anwar right and utilising the funds he purchased plaint A schedule properties under Ext.A3 sale deed dated 9.2.1928. When Panduranga Mallya was adopted, as his son, he became a member of the coparcenary. When respondents 2 to 5 and lat Ramnath Mallya were born to Panduranga Mallya and sixth respondent was born to the second respondent, they all became members of that coparcenary and each of them had one share. On the death of Panduranga Mallya, his rights vested with the other members of the coparcenary by survivorship. On the death of Ramanatha Mallya, the son of Panduranga Mallya, his rights devolved on the mother, the first respondent. It is contended that C.V.Kamath had filed O.S.8/1958 before Sub Court, Kasaragod A.S.172/1995 3 against Panduranga Mallya and another and obtained a money decree and in execution of that decree plaint A schedule properties were put up for sale in E.P.28/1966 and C.V. Kamath purchased the entire plaint A schedule property. According to the appellant Panduranga Mallya had only an undivided 1/7 share in the property and he was sued in O.S.8/1958 only in his individual capacity and so in the court auction sale C.V. Kamath obtained only the 1/7th right and title of K. Panduranga Mallya. Thereafter C.V. Kamath and the sons of Panduranga Mallya were in joint possession of the plaint A schedule properties. It is contended that appellant later realised that seventh respondent and one Muthappa had filed two separate applications for purchase of jenm right before Land Tribunal, Kasaragod and as per the orders passed by the Land Tribunal, purchase certificates were granted in their favour. It was contended that the orders passed and the purchase certificates so A.S.172/1995 4 issued are invalid and not binding on the plaint A schedule properties as it is not an agricultural lease and they were only building tenants in respect of two houses occupied by them and they played fraud on the Land Tribunal and obtained the orders. It was also contended that no individual notice was given to Panduranga Mallya and in any case respondents 1 to 6 were not impleaded in the applications before the Land Tribunal and therefore the orders are not binding on them and in any case the orders and the purchase certificates are sham and void.Contending that appellant and respondents 1 to 6 are in joint possession of the properties appellant sought division of the plaint A schedule properties and allotment of his 1/7 share. 2. Respondents 1 to 6 in their joint written statement admitted plaint allegations and claimed their 6/7 shares. 3. Seventh respondent filed a written statement A.S.172/1995 5 disputing the title of the appellant and respondents 1 to 6 contending that seventh respondent has been in possession of portion of plaint A schedule property shown in the written statement and he had sold portion of the property to respondents 8 and 9 and seventh respondent is now in possession of 14 cents and he has already purchased jenm right in respect of the property and after due enquiry purchase certificate was issued by the Land Tribunal and it is valid and binding on the appellant and respondents 1 to 6 and therefore they are not entitled to claim any share. 4. Respondents 8 and 9 filed a joint written statement adopting the contentions raised by the seventh respondent. 5. Respondents 10 to 13 filed a joint written statement denying the title of the appellant and respondents 1 to 7. It was contended that Panduranga Mallya was a total stranger to the property and the family of Panduranga Mallya had no A.S.172/1995 6 right in the property and plaint A schedule property which belonged to Panduranga Mallya was sold in court auction in E.P.28/1966 in execution of the decree in O.S.8/1958 and the decree and the court sale are binding on the plaint A schedule property as well as appellant and respondents 1 to 6 and it was not 1/7 share of Panduranga Mallya which was purchased by C.V. Kamath but the whole right and at the time of court auction sale, there was no joint family and in any case Panduranga Mallya could only be the Kartha of his joint family and in the suit and the execution proceedings, he represented the joint family. It was contended that respondents 10 to 13 are in possession and enjoyment of the four items of property comprising 15 cents and 12 ¼ cents, 12 ½ cents and 9 ½ cents shown in the written statement and even if appellant and others have any right, it is lost by adverse possession. It was also contended that the orders and the purchase A.S.172/1995 7 certificate issued in favour of Muthappa is valid and binding on the appellant and respondents 1 to 6 as well as the properties and they are not entitled to challenge the same and the suit is only to be dismissed. 6. 16th respondent in his written statement contended that plaint A schedule property did not belong to Panduranga Mallya or to his sons or to the joint family and the properties were sold in court auction in E.P.28/1966 and were purchased by C.V. Kamath and K.M.Zainuddin purchased 6 cents out of item No.1 of the plaint A schedule properties as per document No.146/1976 and thereafter transferred it in favour of 16th respondent as per document No.798/1977 and tranferor also gifted ½ cent of land in favour of Mariyumma his wife and later she sold the property to the 16th respondent as per document No.797/1977 and C.V. Kamath had sold 2 cents from item No.7 of plaint A schedule property to one K.M.Hameed who in turn sold it to the 17th A.S.172/1995 8 respondent and 17th respondent is in possession of 9 cents in R.S.89/4 and appellant or respondents 1 to 6 have no right over that property and the suit is only to be dismissed. 7. On the side of the appellant he was examined as PW1 and a witness was examined as PW2. Exts.A1 to A7 were marked. On the side of respondents, Exts.B1 to B20 were marked and DW1 was examined. Learned Sub Judge on the evidence found that plaint A schedule properties were the ancestral properties of the joint family in the hands of late Panduranga Mallya. It was further found that the properties of Panduranga Mallya were sold in court auction in execution of the decree and later Muthappa purchased jenm right from the Land Tribunal under Ext.B1 order and it is valid and binding on the appellant and respondents 1 to 6. Learned Sub Judge also found that the court auction sale evidenced by Ext.A7 sale certificate and Ext.B1 order of the Land Tribunal are binding A.S.172/1995 9 on the appellant and respondents 1 to 6 and they lost right in the plaint A schedule properties from 1973 onwards and appellant is not a co-owner of the plaint A schedule property thereafter and he is not in joint possession and as appellant has no title to the properties he or defendants 1 to 6 are not entitled to any share. The suit was dismissed. Challenging the decree and judgment plaintiff has filed this appeal. 8. Learned counsel appearing for the appellant and respondents were heard. 9. Learned counsel appearing for the appellant submitted that though in the plaint partition of 71 cents was sought, subsequent to a settlement of dispute with respondents 1 to 6 and 8 and 9, I.A.1392/1990 was filed for recording the compromise stating that appellant along with respondents 1 to 6 received Rs.65,000/- from respondents 8 and 9 and they thereby relinquished their right in respect of 13 cents in R.S.No.94/4 A.S.172/1995 10 in favour of respondents 8 and 9 and partition of only the remaining property was sought. Learned counsel argued that though under Ext.A3 the property was obtained by Sheshu Mallya, Ext.A1 shows that ancestral properties were obtained by Sheshu Mallya in the partition and they were sold under Ext.A2 and plaint schedule properties were thereafter purchased under Ext.A3 with the said funds and in any case when Sheshu Mallya adopted Panduranga Mallya as his son. Seshu Mallya and Panduranga Mallya constituted a coparcenary and on the death of Seshu Mallya, by survivorship, his rights also vested on Panduranga Mallya and when appellant and respondents 2 to 5 were born to Panduranga Mallya they also constituted members of the coparcenary and thereafter respondents 2 to 6 and appellant became members of the coparcenary and therefore Panduranga Mallya had only 1/7th right in the coparcenary properties at the time when in execution of the decree in O.S.8/1958 obtained by A.S.172/1995 11 Sulochana Bai, property of Panduranga Mallya was proceeded against and finally sold in court auction and purchased by the auction purchaser C.V. Kamath. It was argued that when the judgment debtor Panduranga Mallya had only 1/7th right in the properties, the auction purchaser could only claim that right and neither in O.S.8/1958 nor in the execution petition Panduranga Mallya was representing the coparcenary and therefore the court auction sale will affect only his 1/7th share. Learned counsel also argued that though Muthappa claiming to be a cultivating tenant approached the Land Tribunal and under Ext.B1 order in O.A.1186/1971 Muthappa was assigned the jenm right in respect of 49 cents of plaint A schedule properties which was later sold by him under Ext.B2 in favour of Sreedharan and Ravi which in turn are claimed by respondents 10 to 13 under Exts.B3 to B6, in the O.A only Panduranga Mallya was impleaded and as mandated under section 104 of the Kerala A.S.172/1995 12 Land Reforms Act, the senior-most male member of the coparcenary was not impleaded and therefore Ext.B1 order is null and void and not valid and binding on appellant and respondents 1 to 6 or the plaint A schedule properties. Learned counsel relying on the decision of this Court in Puthalathu Bava Muhammed v. Sankara Pillai Achuthan Pillai (1978 KLN 253) and Muhammad Haji v. Kunhunni Nair (1993(1) KLT 227(F.B)and in Parukutty v. Appukuttan (1978 KLT 162) argued that Ext.B1 order is not binding on the appellant or respondents 1 to 6 and Muthappa was only a building tenant under Ext.B2 and B3 to B6 they did not derive any right in the plaint schedule property and therefore the properties are to be divided as sought for in the plaint. Learned counsel relying on the decision of the Apex Court in Sheela Devi and others v. Lal Chand and another (2006) 8 SCC 581) argued that under section 6 of Hindu Succession Act the A.S.172/1995 13 coparcenary property can be inherited only by the remaining members of the coparcenary and therefore appellant and respondents 1 to 6 are entitled to get the property divided. 10. Learned counsel appearing for respondents argued that the coparcenary of Sheshu Mallya was divided under Ext.A1 partition deed of 1921 and thereafter Sheshu Mallya was not a member of any coparcenary and he died in 1933 and all his rights were inherited by Panduranga Mallya the adopted son and in O.S.8/1958 in execution of the money decree the rights of Panduranga Mallya was sold in court auction and purchased by C.V. Kamath and by the court sale, his entire rights were sold and thereafter no other right was left with Panduranga Mallya to be claimed by appellant or respondents 1 to 6 after his death and as Panduranga Mallya was the absolute owner of the properties appellant or respondents 1 to 6 cannot claim any right in the property before the death of Panduranga Mallya. It A.S.172/1995 14 was argued that before his death in 1982 the properties were sold in court auction and purchased by C.V. Kamath and therefore the claim for partition can only be rejected. Learned counsel also argued that in any case even Panduranga Mallya was a member of the coparcenary he would be its Kartha and when in execution of the decree passed against him the properties were sold, it is binding on the remaining members of the joint family and appellant and respondents 1 to 6 are not entitled to challenge the same. Learned counsel then argued that in any case Muthappa the cultivating tenant of 49 cents of the property filed O.A.1186/1971 for purchase of jenm right of the 49 cents and under Ext.B1 order, in the presence of Panduranga Mallya, Muthappa was allowed to purchase the jenm right and Ext.B1 order shows that notice was served on Panduranga Mallya and therefore Ext.B1 order is valid and binding on Panduranga Mallya and his widow and children and A.S.172/1995 15 they are not entitled to challenge the same as it has become final. Learned counsel relying on the Full Bench decision of the Madras High Court in Addl.Commissioner of Incometax v. P.L.Karuppan Chettiar (AIR 1979 Madras 1)pointed out that the legal position settled therein was followed by this court in Chittur Service Co-operative Bank Ltd v. Kumaran (1992(1) KLT 215) and it was approved by the Apex Court in P. Periasami v. P. Periathambi (1995(6)SCC 523 and only the ancestral property could be claimed by the members of the coparcenary by survivorship and the separate properties of Panduranga Mallya cannot be claimed by the other members of the coparcenary during his life time and when the property thus exclusively belonged to Panduranga was sold in court auction sale, appellant or respondents 1 to 6 cannot claim any right in the property as whatever right Panduranga Mallya had in the properties was lost by the court auction sale. Learned counsel relying on the A.S.172/1995 16 decision of this court in Ukkru Kutty v. Canara Bank, Trichur (AIR 1978 Kerala 32) and Section 44 of the Transfer Property Act and the decision in Krishnan Nair v. Abraham and others (1971 KLJ 162) argued that lease is also a substitute security as provided under section 44 of Transfer of Property Act and when the appellant and respondents 1 to 6 had given up the claim for division in respect of a portion of the plaint schedule property after settling the dispute in respect of the portion of that property with the persons in possession of the same and that settlement was accepted by the court it will prejudicially affect the contesting respondents and no equitable division is possible if ultimately the properties are found available for partition and if that be so, on that ground the suit can only be dismissed. Learned counsel therefore argued that there is no reason to interfere with the findings of the trial court. 11. The fact that Sheshu Mallya was a member A.S.172/1995 17 of a coparcenary was specifically pleaded in the plaint. It was also pleaded that Sheshu Mallya though died issueless, had adopted Panduranga Mallya as his son and first respondent is the widow and respondents 2 to 5 are the sons and sixth respondent is the son of a deceased son of Panduranga Mallya. It was also specifically pleaded in the plaint that they are followers of Hindu Mithakswara Law. This fact was not denied in the written statement. Even at the time of evidence, there was no case for the contesting defendants that they are not followers of the Hindu Mithakswara Law. Therefore it can only be found that Sheshu Mallya and his adopted son and his sons are all governed by Hindu Mithakswara Law. 12. The coparcenary of Sheshu Mallya was admittedly divided under Ext.A1 partition deed in 1921. Joint family properties were divided and the share due to Sheshu Mallya was allotted to him. Though Sheshu Mallya had no issues, when he adopted A.S.172/1995 18 Panduranga Mallya, Panduranga Mallya automatically became a member of the coparcenary consisting of Sheshu Mallya and Panduranga Mallya. When Sheshu Mallya died in 1933, the coparcenary consisted of Sheshu Mallya and his adopted son Panduranga Mallya. When Panduranga Mallya is a member of the coparcenary the moment a son was born to Panduranga Mallya that son automatically became a member of the coparcenary by birth. Therefore to that extent the rights of Panduranga Mallya stood modified. When another son was born, again that son also became a member of the coparcenary by birth and to that extent the rights of Panduranga Mallya and the other sons got modified. 13. A Hindu coparcenary is a much narrower body than a joint family. The coparcenary includes only those persons who acquire by birth, an interest in the coparcenary property. They are the sons, grandsons and great grandsons of the holder of the joint property for the time being. A A.S.172/1995 19 property inherited by a Hindu from his father, father's father or father's father's father is ancestral property. At the same time property inherited by him from other relations are his separate properties. The essential feature of the ancestral property is that, if the person inheriting the ancestral property has sons, grandsons or great grandsons, they become joint owner's or coparcenars along with him. They are entitled to the said right due to their birth. If a son is born subsequently or a grandson or a great grandson is born thereafter, the said son, or grandson or great grandson also became entitled to an equal right by their birth and all of them constitute the coparcenary. Similarly if the father acquires his own property or inherits property from other source which are not ancestral properties, the other members of the coparcenary family cannot claim any right in that property. On his death the said property would devolve on his A.S.172/1995 20 legal heirs. But it is not by survivorship but by succession. At the same time when the self acquired property of the father is devolved on his son or sons who are members of the coparcenary, it becomes the coparcenary property. In that event it could be claimed by his sons, son's sons and great grandsons due to their birth. If that be so it cannot be claimed by the son who inherited it that he alone has right over the property or that is his separate property. Prior to the coming into force of Hindu Succession Act, 1956, if A who had a son B inherited property from his father it became ancestral property in his hands and B became a coparcenar with his father. On the other hand if it was the separate property of A, he has absolute right over the property and it cannot be claimed by his son during his life time. But on his death his right passes on to the son, though not by survivorship but by succession. Thus even if A inherited the property from his brother and thereby A.S.172/1995 21 it was his separate property where he had independent absolute right of disposal and the son did not acquire any right by birth, and on his death that property descends to a male issue, then it becomes ancestral property in the hands of the male issue who inherited it. Thus if A who owned separate or self acquired property died, on his death it passes on to the son B as his heir and if B had a son C, C has an interest in that property by reason of his birth and he becomes a coparcenar in respect of the said property with his father B. At the same time, if the father died after coming into force of Hindu Succession Act, 1956, then the inheritance of the property of the father could only be as provided under section 8 of the Hindu Succession Act, 1956. 14. The law in this behalf is clearly stated in Mayne's Hindu Law and usage Twelth Edition at page 295 as follows:- “Where ancestral property has A.S.172/1995 22 been divided between several joint owners, there can be no doubt that if any of them have male issue living at the time of the partition, the share which falls to him will continue to be ancestral property in his hands, as regards his male issue, for their rights had already attached upon it, and the partition only cuts off the claims of the dividing members. The father and his male issue still remain joint. The same rule would apply even where the partition had been made before the birth of the male issue or before a son is A.S.172/1995 23 adopted, for the share which is taken at a partition, by one of the coparceners is taken by him as representing his branch.” The question whether under Hindu Law separate property/self acquired property of a father goes on his death to his sons in the absence of grandsons in a joint Hindu Family way, in joint tenancy, or does it descend by inheritance