A.S.No.894 of 1998 (C) & Cross Objection

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR. JUSTICE V.CHITAMBARESH & THE HONOURABLE MR. JUSTICE SATHISH NINAN FRIDAY, THE 14TH DAY OF JULY 2017/23RD ASHADHA, 1939 A.S.No.894 of 1998 (C) & CROSS OBJECTION ---------------------------------------- AGAINST THE JUDGMENT IN O.S.NO.670/1993 OF PRL.SUB COURT, KOZHIKODE DATED 31-03-1998 APPELLANTS/DEFENDANT 1 AND SUPPLEMENTAL DEFENDANTS 4 TO 10 & 12: --------------------------------------------------------------- 1. K.A.KAMAKSHI AMMA, D/O. MEENAKSHI AMMA, CHERUVANNUR AMSOM DESOM, KOZHIKODE TALUK. 2. K.A. SUDEENDRA KUMAR, S/O. VELAYUDHAN KUTTY NAIR, CHERUVANNUR AMSOM DESOM, KOZHIKODE TALUK (DIED) 3. K.A. RAJENDRAN -DO- -DO4. K.A. RAVEENDRAN -D0- -DO5. K.A. SUKUMARAN -DO- -DO6. K.A. VIJAYAN -DO- -DO7. K.A. PADMANABHAN -DO- -DO8. K.A. RAMACHANDRAN-DO- -DO- (DIED) 9. K.A. AJITH S/O. -DO- -DO- ADDITIONAL APPELLANTS: 10. E. SANIA, AGED 35 YEARS, W/O. LATE K.A.RAMACHANDRA MENOKY, MADATHUMKUTTIYIL HOUSE, CHERUVANNUR, KOLATHARA (P.O.), KOZHIKODE - 673 524. 11. ADVAID KRISHNA, AGED 9 YEARS (MINOR), S/O. LATE RAMACHANDRA MENOKY, REPRESENTED BY HIS MOTHER, NATURAL GUARDIAN AND NEXT FRIEND, E.SANIA, MADATHUM KUTTIYIL HOUSE, CHERUVANNUR, KOLATHARA (P.O.), KOZHIKODE DISTRICT. (LEGAL HEIRS OF DECEASED 8TH APPELLANT ARE IMPLEADED AS ADDITIONAL APPELLANTS 10 AND 11 AS PER ORDER DT.24.10.14 IN I.A.NO.2329/14.) BY ADVS.SRI.T.KRISHNANUNNI (SR.) SRI.T.R.RAVI - 2 - as894/1998 RESPONDENTS/PLAINTIFFS 2 TO 17 AND DEFENDANTS 2, 3 & 11: ------------------------------------------------------- 1. K.A. SETHUNATHAN S/O GOVINDA MENOKY, CHERUVANNUR AMSOM DESOM, KOZHIKODE TALUK. 2. BHARGAVA RAMAN -DO- -DO- 3. VIVEKANANDAN, -D0- -D0- 4. VIMALAKUMARI AMMA, WIDOW OF PADMANABHA MENOKY, -DO-DO- (DIED) 5. RAGHUNATHAN S/O VIMALAKUMARI AMMA -D0- -DO- 6. JAYALAKSHMY D/O VIMALAKUMARI AMMA -DO- -DO-. 7. LATHA, D/O VIMALAKUMARI AMMA -DO- D0-. 8. MEERA, D/O. VIMALAKUMARI AMMA, CHERUVANNUR AMSOM DESOM, KOZHIKODE TALUK. 9. GOPINATH, S/O KUNHILAKSHY AMMA, CHEROOPPA AMSOM, DESOM, KOZHIKODE. 10. SHYLAJA, D/O KUNHILAKSHMY AMMA, -DO- -DO- 11. SURESAN, THOTTAPPOYIL HOUSE, BEPPUR AMSOM AND DESOM, KOZHIKODE TALUK. 12. VILASINI -DO- -DO- 13. BALAN -DO- -DO14. GOPINATHAN -D0- -DO15. PADMAJA -DO- -DO16. ANILKUMAR -DO- -DO- 17. DAKSHAYANI AMMA, D/O PADMAVATHI AMMA, CHERUVANNUR AMSOM DESOM, KOZHIKODE TALUK. (DIED) 18. SAVITHRI AMMA, -DO- (DIED) 19. K.A. SATHYA, D/O PADMINI AMMA, CHERUVANNUR AMSOM DESOM, KOZHIKODE TALUK. ADDITIONAL RESPONDENTS: 20. AMBUJAKSHY K.A., C/O. SETHU MADHAVAN, THRIPTHI HOUSE, THAZHANGAD, PONNANI. 21. JAYASREE K.A., C/O. BHASKARAN NAIR, PARATHODI HOUSE, CHELAKKODE (P.O.), (VIA) CHELAKKARA. 22. USHADEVI K.A., C/O. SIVASANKARAN, SIVA HOUSE, NARUKARA (P.O.), UNITY COLLEGE ROAD, MANJERI. as894/1998 - 3 - 23. UMADEVI, PATTATHIL HOUSE, KOLATHARA (P.O.)-673655. 24. JAYAMOHAN, ACHARAMBATH HOUSE, KOLATHARA (P.O.) - 673 655. (DIED). 25. PADMAVATHI AMMA, D/O. DAKSHAYANI AMMA, VARIKKOLI POYIL HOUSE, KIZHAKKUMMURI (P.O.), (VIA) KAKKODI. 26. K.A. VISWANATHAN, AMBADI HOUSE, MANANKUNDI THAZHAM, PALLIPPOYIL, CHELANNUR, PALATH (P.O.). 27. PAFTHASARATHY, ACHARAMBATH HOUSE, KOLATHARA (P.O.)-673655. 28. N.P.PARVATHY, W/O. LATE SUDEENDRA KUMAR, RESIDING AT MADATHUMKUTTIYIL HOUSE, KOLATHARA (P.O.), FEROKE, KOZHIKODE (DT) - 673655. 29. MEENA S. KUMAR, D/O. LATE SUDEENDRA KUMAR, RESIDING AT MADATHUMKUTTIYIL HOUSE, KOLATHARA (P.O.), FEROKE, KOZHIKODE (DT)-673655. 30. MALINI, D/O. LATE SUDEENDRA KUMAR, RESIDING AT MADATHUMKUTTIYIL HOUSE, KOLATHARA (P.O.), FEROKE, KOZHIKODE DT.-673655. 31. MINI JAYAMOHAN, W/O. JAYAMOHAN, ADWAIDAM, NEAR VILLAGE OFFICE, THIRUVALI (P.O.)-679348. 32. MEGHA ANOOP, D/O. JAYAMOHAN, ADWAIDAM, NEAR VILLAGE OFFICE, THIRUVALI (P.O.)-679348. 33. VARSHA, D/O. JAYAMOHAN, ADWAIDAM, NEAR VILLAGE OFFICE, THIRUVALI (P.O.)-679348. (IT IS RECORDED THAT R5 TO R8 ARE THE LEGAL HEIRS OF DECEASED R4 AS PER ORDER DT.11.7.2017 IN CROSS OBJECTION IN A.S.NO.894 OF 1998) (LEGAL HEIRS OF DECEASED 18TH RESPONDENT ARE IMPLEADED AS ADDITIONAL RESPONDENTS 20 TO 24 AS PER ORDER DT.22.7.2013 IN I.A.NO.4281/2010) (LEGAL HEIRS OF DECEASED 17TH RESPONDENT ARE IMPLEADED AS ADDITIONAL RESPONDENTS 25 TO 27 AS PER ORDER DT.22.7.2013 IN I.A.NO.4283/2010) (LEGAL HEIRS OF DECEASED 2ND APPELLANT ARE IMPLEADED AS ADDITIONAL RESPONDENTS 28 TO 30 AS PER ORDER DT.22.7.2013 IN I.A.NO.603/2012) (LEGAL HEIRS OF DECEASED 24TH RESPONDENT ARE IMPLEADED AS ADDITIONAL RESPONDENTS 31 TO 33 AS PER ORDER DT.11.7.2013 IN I.A.NO.1076/2012) R1 TO R3, R10 to R13, R15 & R16 BY ADV. SRI.R.D.SHENOY (SR.) ADV. SRI.G.UNNIKRISHNAN ADV. SRI.G.P.SHINOD ADV. SRI.P.V.RAMESH SHANKAR as894/1998 - 4 - R4 TO R8 BY ADV. SRI.S.V.BALAKRISHNA IYER (SR.) ADV. SRI.P.B.KRISHNAN R5 TO R8 BY ADV. SRI.T.SETHUMADHAVAN (SR.) ADV. SRI.P.GOPINATHAN ADV. SMT.N.DEEPA ADV. SRI.R.SUDHISH R9 BY ADV. SRI.V.N.RAMESAN NAMBISAN R20 TO R24, R31 TO R33 BY ADV. SRI. K. SANEESH KUMAR R25 BY ADV. SRI.R.BINDU (SASTHAMANGALAM) R26 & R27 BY ADV. SRI.D.ANIL KUMAR THIS APPEAL SUITS & CROSS OBJECTION HAVING BEEN FINALLY HEARD ON 11.07.2017, ALONG WITH A.S.NO.924/1998 & A.S.NO.951/1998, THE OURT ON 14.07.2017 DELIVERED THE FOLLOWING: ## V.CHITAMBARESH & SATHISH NINAN, JJ. = = = = = = = = = = = = = = = = = = = = = = = = ## A.S.Nos.894 of 1998 & Cross Objection, ## 924 of 1998 & 951 of 1998 = = = = = = = = = = = = = = = = = = = = = = = = Dated this the 14[th] day of July, 2017 ## JUDGMENT ## Chitambaresh, J. 1.The appeal suits arise out of the common judgment in O.S.Nos.670/1993 and 223/1994 on the file of the Court of the Subordinate Judge of Kozhikode which are suits for partition and separate possession. Item No.1of the plaint schedule property in O.S.No.670/1993 is included in both the suits and O.S.No.223/1994 takes in the plaint C schedule property in addition. Item No.1 property stands in the name of Meenakshi Amma and Padmavathy Amma under Ext.A1 sale deed which reflects that the kanam tenancy right has been purchased thereunder. The plaintiffs in O.S.No.670/1993 assert that the kanam right in favour of AS894/1998 & con.cases -: 2 :- Meenakshi Amma and Padmavathy Amma has even been acknowledged in Ext.B1 partition deed. Moreover item No.1 property would have certainly found a place in Ext.B1 partition deed executed in the family if it really belongs to the thavazhy as contended. It is their case that the kanam tenancy right blossomed into an absolute right after the Kerala Land Reforms Act, 1964 and that they are entitled to their lawful share as claimed. 2.The plaintiffs in O.S.No.223/1994 contend that item No.1 property was acquired under Ext.B8 sale deed by two senior members of the thavazhy - Ammu Amma and Ammalu Amma. It is further contended that their branches resided separately later and Exts.A2, A3 and A4 sale deeds were executed amongst them for the convenient enjoyment of the property. It is the specific case of the plaintiffs in O.S.No.223/1994 that the property was dealt with as AS894/1998 & con.cases -: 3 :- belonging to the thavazhy only explicit from the recitals in the aforesaid sale deeds. The plaintiffs in O.S.No.670/1993 maintain that even Exts.A2, A3 and A4 sale deeds mention about the kanam tenancy right in favour of Meenakshi Amma and Padmavathy Amma. It is their further case that Exts.A2, A3 and A4 sale deeds can at best relate to the jenm right of the thavazhy and do not affect the kanam tenancy right of the two ladies. The plaintiffs in O.S.No.223/1994 clarify that the jenm right was assigned only to vest absolute ownership to the thavazhy of Meenakshi Amma and Padmavathy Amma who had tenancy rights. 3.We do feel that the impact of Ext.B8 sale deed as well as Exts.A2, A3 and A4 sale deeds have not been properly considered by the court below in deciding the partibility of item No.1 property. Whether item No.1 property belongs to the thavazhy or to Meenakshi Amma and Padmavathy Amma AS894/1998 & con.cases ## -: 4 :- exclusively has to be reconsidered in the light of Exts.A1, A2, A3, A4 and A68 sale deeds. The fact that the two ladies were capable of managing property independently in the light of Exts.B2 and B4 sale deeds, Ext.B3 release deed and Exts.B5 and B6 lease deeds shall also be taken note of. The shares to which the parties are entitled to would depend on the question as to whether item No.1 property belongs to the thavazhy or to the two ladies independently. 4.The plaintiffs in O.S.No.223/1994 have a case that item No.1 property was the nucleus with the aid of which item Nos.2 to 6 property were purchased and hence impregnated with the character of tharwad property. There is no presumption either way and the question has to be decided on the facts of each case under the Marumakkathayam Law unlike under the Hindu Law. [See: Achuthan Nair v. Chinnammu Amma and others (AIR 1966 SC 411) and AS894/1998 & con.cases -: 5 :- Echaran alias Kunhukuttan Nair v. Devaki Amma (1968 KLT 568)]. There is neither any pleading in the instant case nor is there any evidence that item No.1 property fetched surplus income with the aid of which item Nos.2 to 6 property could have been acquired. The recitals in Ext.B1 partition deed executed in the family on the other hand clearly reflect that item No.1 property was withering away and that the income therefrom was dwindling. We have therefore no hesitation to hold that item Nos.2 to 6 property was not acquired from out of the income of item No.1 property. 5.The court below has negatived the plea for partition by the plaintiffs in O.S.No.670/1993 on the ground that recovery of possession to bring item Nos.2 to 6 property into the common hotchpot was not sought before partition. This is on the premise that the property was outstanding on lease with the husband of the first defendant Velayudhankutty AS894/1998 & con.cases -: 6 :- Nair. The pleadings reveal that tenancy has been claimed only in respect of item Nos.2, 4 and 5 property and not in respect of item Nos.3 and 6 property under Ext.A8 order and Ext.9 purchase certificate of the Land Tribunal. It may at once be noticed that the plaintiffs are not parties to the proceedings of the Land Tribunal and hence Ext.A8 order or Ext.A9 purchase certificate is not binding on them. [See: Sree Karikad Devaswom v. Wandoor Jupiter Chits (P) Ltd. (1980 KLT 760) and Karicherry Charadan Nair v. Edayillam Kunhambu Nair and others (AIR 1982 Ker. 232)]. The proceedings of the Land Tribunal would operate as res judicata only if the plaintiffs in O.S.No.670/1993 were parties thereto. It now transpires that the alleged tenant Velayudhankutty Nair who was the husband of the first defendant is dead and his legal heirs are already on the party array in the suit. Suffice it to say that there is no necessity to seek recovery of possession of item Nos.2 to 6 AS894/1998 & con.cases -: 7 :- property and that the parties can work out their remedies in the present suits for partition itself. 6.The plaintiffs in O.S.No.670/1993 point out that one Kunhilakshmi Amma has been impleaded as the landlord in the proceedings before the Land Tribunal when the karnavar of the tharwad was another. Reliance is placed on Ext.B1 partition deed to contend that the karnavar of the tharwad was Govinda Menoky followed by Sukumara Menoky as per the recitals therein. The absence of rent receipts and the absence of survey numbers in the revenue receipts are highlighted to contend that Velayudhankutty Nair has not established his tenancy at all. The plaintiffs in O.S.No.223/1994 on the other hand submit that many of the revenue receipts bear the patta number and that survey numbers would not always be mentioned. The plaintiffs in O.S.No.670/1993 hasten to add that Velayudhankutty Nair AS894/1998 & con.cases -: 8 :- was after all the husband of the first defendant occupying the house therein and paying taxes. 7.There is a question of rival tenancy - claim of kanam tenancy by Meenakshi Amma and Padmavathy Amma on the one hand and oral tenancy of Velayudhankutty Nair under the first plaintiff on the other hand. The plaintiffs in O.S.No.670/1993 assert that the kanam tenancy has even been acknowledged in Ext.B1 partition deed and therefore beyond any pale of doubt. The plaintiffs in O.S.No.223/1994 maintain that the certificate of purchase issued by the Land Tribunal coupled with the revenue receipts are sufficient and more to establish tenancy in favour of Velayudhankutty Nair. It should be noticed that Ext.A9 purchase certificate was obtained with Kunhilakshmi Amma on the party array whereas the claim of tenancy is under the first plaintiff in the additional written statement. We do feel that the AS894/1998 & con.cases -: 9 :- question of tenancy needs a deeper probe particularly in the context of the documents relied on de hors the proceedings of the Land Tribunal. 8.The question of tenancy in respect of item Nos.2 to 6 property shall also be considered by the court below afresh for which a reference to the Land Tribunal under Section 125 (3) of the Kerala Land Reforms Act, 1964 is imminent. Section 125(3) reads thus: “If in any suit or other proceeding any question regarding rights of a tenant or of a kudikidappukaran (including a question as to whether a person is a tenant or a kudikidappukaran) arises, the civil court shall stay the suit or other proceeding and refer such question to the Land Tribunal having jurisdiction over the area in which the land or part thereof is situate together with the relevant records for the AS894/1998 & con.cases ## -: 10 :- ## decision of that question only.” We direct the court below to reconsider the rival claim of tenancy put in by either parties in relation to item Nos.2 to 6 property after making a reference to the Land Tribunal under Section 125(3) of the Kerala Land Reforms Act, 1964. 9.Nothing much was argued in respect of the plaint C schedule property in O.S.No.223/1994 which are business concerns and there is no evidence to hold that it was acquired from out of the income of item No.1 property. It necessarily follows that plaint C schedule property is not partible and the preliminary decree passed by the court below to that extent is hereby confirmed. But the preliminary decree in respect of item Nos.1 to 6 property is set aside and the suit remanded for consideration anew after affording to the parties further opportunity to adduce evidence. The parties AS894/1998 & con.cases -: 11 :- shall appear in the court below on 21.8.2017 and every endeavour shall be made to take the proceedings to a logical end within a period of six months. The appeal suits and the cross objection are disposed of. No costs. Sd/- V.CHITAMBARESH, JUDGE Sd/SATHISH NINAN, JUDGE Sha/110717 -true copy- PS to Judge