C. Madhavi and others v. Kannoth Madappurakkal Matha

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** ## **THE HONOURABLE MR. JUSTICE P.B.SURESH KUMAR** **WEDNESDAY, THE 9TH DAY OF MARCH 2016/19TH PHALGUNA, 1937** ## **AS.No. 548 of 1999 (B)** ## **--------------------------------** ## **JUDGMENT DATED 29-01-1999 IN OS 520/1995 OF ADDITIONAL SUB COURT, THALASSERY** **..........** ## **APPELLANT(S)/DEFENDANTS:** **--------------------------------------------** **1. C.MADHAVI, W/O.KUMARAN MADAYAN, MADAPPURAKKAL HOUSE, CHALA (P.O.), KANNUR DISTRICT.** **2. C.YESODA, D/O.KUMARAN MADAYAN, MADAPPURAKKAL HOUSE, CHALA (P.O.), KANNUR DISTRICT.** **3. C.LEELA, D/O.KUMARAN MADAYAN, MADAPPURAKKAL HOUSE, CHALA (P.O.), KANNUR DISTRICT.** **4. C.LAKSHMI, D/O.KUMARAN MADAYAN, MADAPPURAKKAL HOUSE, CHALA (P.O.), KANNUR DISTRICT.** **5. C.VIJAYAN, S/O.KUMARAN MADAYAN, MADAPPURAKKAL HOUSE, CHALA (P.O.), KANNUR DISTRICT.** - **BY ADVS.SRI.K.V.SOHAN SMT.SREEJA SOHAN.K.** ## **RESPONDENT(S)/PLAINTIFF:** **------------------------------------------** - ***1. KANNOTH MADAPPURAKKAL MATHA, W/O.KOTTAN, PADINHAREYIL HOUSE, ORIKARA, MAMMAKUNNU (P.O.), KANNUR DISTRICT. (EXPIRED)** - **SUPPLEMENTAL R2 TO R9 IMPLEADED** **2. PADINHARAYIL NANI, D/O.KOTTAN, PADINHAREYIL HOUSE, MAMMAKUNNU, KADAMBUR (P.O.), KANNUR DISTRICT.** **Msv/** **-2-** **-2-** ## **AS.No. 548 of 1999 (B)** ## **--------------------------------** **3. PADINHARAYIL BALAN, S/O.KOTTAN, PUTHIYAVEETTIL HOUSE, MAMMAKUNNU, KADAMBUR (P.O.), KANNUR DISTRICT.** **4. PADINHARAYIL JANAKI, D/O.KOTTAN, PUTHUKKUDI KUNNUMPRATH VEEDU, KADAMBUR P.O., KANNUR DISTRICT.** **5. PADINHARAYIL LAKSHMI, D/O.KOTTAN, -DO- -DO-** **6. PADINHARAYIL BHARATHAN, S/O.KOTTAN, 'THEJAS', MAMMAKUNNU, KADAMBUR P.O., KANNUR DISTRICT.** **7. PADINHARAYIL RAJAN, S/O.KOTTAN, MAMMAKUNNU, KADAMBUR P.O., KANNUR DISTRICT.** - **IT IS RECORDED THAT THE SOLE RESPONDENT DIED AND THE LEGAL HEIRS OF THE DECEASED SOLE RESPONDENT ARE IMPLEADED AS ADDL. R2 TO R7 VIDE ORDER DTD.10.8.2011 IN IA.459/2010.** **8. VALSALAN C.M., VIPINA NIVAS, THAVAKKARA, KANNUR - 2.** **9. C.M.BALAKRISHNAN, ASHA HOUSE, KOTTALI P.O., KANNUR - 670 016.** - **ARE IMPLEADED AS SUPPLEMENTAL RESPONDENTS 8 AND 9 VIDE ORDER DTD.10.8.2011 IN IA.3871/2010.** **R BY ADV. SRI.GRASHIOUS KURIAKOSE R2 TO R4 BY ADVS. SRI.K.C.SANTHOSHKUMAR** **SMT.K.K.CHANDRALEKHA SRI.GOPAKUMAR G. (ALUVA)** **THIS APPEAL SUITS HAVING BEEN FINALLY HEARD ON 15-02-2016 THE COURT ON 09-03-2016, DELIVERED THE FOLLOWING:** **msv/** ## **P.B.SURESH KUMAR, J.** **----------------------------------------------A.S. No.548 of 1999** ## **----------------------------------------------Dated 9[th] March, 2016.** ## **J U D G M E N T** The defeated defendants in a suit for declaration and recovery of possession are the appellants. The facts relevant for decision in the appeal are the following : 2. The suit property measuring 34 cents belongs to the Marumakkathayam Tharwad, 'Chala Kannoth Madappurakkal Tharwad', ('the Tharwad' for short). There exists a place of worship called “Madappura” in the suit property. According to the plaintiff, she is the Karanavathi of the Tharwad; that she is managing the suit property as also the Madappura; that there exists a building in the suit property called “Kazhakappura” which is being used from time to time by the priest of the Madappura called “Madayan” for his residence as also for keeping the pooja articles of the Madappura; that the defendants who are the wife and children A.S.No.548 of 1999 2 of one Kumaran who was a Madayan of the Madappura are not surrendering vacant possession of the Kazhakappura on the death of Kumaran. The suit, in the circumstances, was filed for a declaration that the suit property belongs to the Tharwad; that the plaintiff is the Karanavathi of the Tharwad, and for recovery of possession of the Kazhakappura from the defendants. The defendants resisted the suit by filing a written statement. According to them, the plaintiff is not the Karanavathi of the Tharwad and the suit instituted by the plaintiff on behalf of the Tharwad is therefore not maintainable. They also contended that Kumaran has obtained an oral lease in respect of the suit property during 1941 from the then Karanavan of the Tharwad, namely, Raman and that the building sought to be recovered was one constructed by Kumaran on the strength of the oral lease and therefore they are entitled to fixity of tenure in respect of the suit property under the Kerala Land Reforms Act. 3. On the side of the plaintiff, three witnesses were examined as PW1 to PW3. The documents produced on the A.S.No.548 of 1999 3 side of the plaintiffs are marked as Exts.A1 to A18. The plaintiff has also caused production of five documents and the same were marked as Exts.X1 to X5. On the side of the defendants, DW1 was examined and Exts.B1 to B11 were marked. 4. The trial court found that the plaint schedule property belongs to the Tharwad and that the building situated in the suit property is the Kazhakappura attached to the Madappura. The trial court also found that the plaintiff is the Karanavathi of the Tharwad. The trial court further found that the defendants are not in possession of the suit property and that they are only in permissive occupation of the Kazhakappura attached to the Madappura. Consequently, the suit was decreed as prayed for. The defendants who are aggrieved by the decision of the court below have thus come up in this appeal. 5. During the pendency of the appeal, the plaintiff died and consequently, her legal representatives were brought on record as respondents 2 to 9. After the death of the plaintiff, I.A.No.979 of 2012 was filed by one M.Govindan seeking orders A.S.No.548 of 1999 4 to implead him also in the appeal stating that he is the present Karanavan of the Tharwad. 6. Heard the learned counsel for the appellants as also the learned counsel for the respondents and the learned counsel appearing for the petitioner in I.A.No.979 of 2012. 7. The learned counsel for the appellants did not dispute the fact that the suit property belongs to the Tharwad. He also admitted that Kumaran was a Madayan of the Madappura situated in the suit property. But, the contention advanced by the learned counsel for the appellants was that after the introduction of the Joint Hindu Family System (Abolition) Act, 1976, a suit in the name of the Karanavathi of a Maramakkathayam Tharwad is not maintainable. He also contended that by virtue of the provisions contained in the said Act, the members of the Tharwad became the co-owners of the property and since Kumaran was also one of the co-owners of the property, being a member the family, his legal representatives cannot be evicted from the suit property by the Karanavathi who is only a co-owner of the property. The A.S.No.548 of 1999 5 learned counsel further contended that the building in the suit property is not the Kazhakappura attached to the Madappura as contended by the plaintiff and that the same is a building constructed by Kumaran and the said fact would indicate that Kumaran was in possession of the suit property on the strength of the oral lease granted by the Karanavan of the Tharwad. According to the learned counsel, the court below, in the circumstances, ought to have made a reference of the issue of tenancy raised by the defendants for decision by the Land Tribunal. 8. In the light of the contentions advanced by the learned counsel for the appellants, the issues required to be considered are whether the suit is maintainable and if so, what are the reliefs which the plaintiff is entitled to. 9. In **Krishnakumar and another v. Cochin Devaswom, Cochin Devaswom Board** (2012 KHC 2616), this Court found that though the preamble of the Joint Hindu Family System(Abolition) Act, 1976 indicates that the intention of the said legislation is to abolish joint family system among Hindus, A.S.No.548 of 1999 6 the effect of the said statute is only that right by birth in a property is not recognized thereafter and all the members of the undivided Hindu family on the date of the Act became tenants-in-common as if a partition had taken place. In the said case, it was also held that the joint family remain unaffected in all other respects though the right to succession was thereafter be governed by the Hindu Succession Act. A similar view has been taken by this Court in **Adot thaivalappu Tharwad Vaka Vayanattu, Kasaragod and others v. P.Balan and others** (2015(1) KHC 212). **Adot thaivalappu Tharwad Vaka Vayanattu, Kasaragod and others v. P.Balan and others** (supra) was a case where an appeal was preferred by the Karanavan of a Tharwad before the appellate authority constituted under the Land Reforms Act challenging a decision of the Land Tribunal under the said statute. The contention was that after the abolition of the joint Hindu family system in Kerala, by virtue of the Kerala Joint Hindu Family System (Abolition) Act, an appeal at the instance of the Karanavan was not maintainable. This Court noticed in the said case that A.S.No.548 of 1999 7 though one of the appellants in the said case was described as the Karanavan of the Tharwad, that does not mean that he is not competent to file appeal as he is also a member of the Tharwad holding an interest in the property which was the subject matter of that case. It was clarified that the mere misdescription as such would not make the appeal not maintainable. Coming to the facts of the present case, as noted above, there is no dispute to the fact that the suit property belongs to the Tharwad. As such, after the abolition of the joint Hindu family system, the members of the Tharwad became tenants-in-common as if a partition had taken place in the family prior to the commencement of the Act. There is no dispute to the fact that the plaintiff is a member of the family and thus having an interest in the suit property after the introduction of the Joint Hindu Family System (Abolition) Act. As such, I have no doubt in my mind that the suit instituted by the plaintiff for recovery of possession of the building in the suit property from the defendants is maintainable. 10. Though the defendants had raised a specific A.S.No.548 of 1999 8 contention that Kumaran had obtained an oral lease in respect of the suit property from the then Karanavan of the Tharwad during 1941, the court below found that Kumaran had not established the said right. In the matter of holding that the defendants have not established their case that Kumaran had oral lease in respect of the suit property, the trial court found that Kumaran, who was a Madayan of the Madappura was occupying the building in the plaint schedule property only in that capacity. In other words, according to the court below, Kumaran was only in permissive occupation of the building in the suit property and it is on the said basis that the trial court found that the building in the suit property is the Kazhakappura attached to the Madappura. True, the defendants have produced property tax receipts in respect of the building in the name of Kumaran. In so far as Kumaran was admittedly the Madayan of the Madappura situated in the suit property, merely for the reason that the building in the suit property has been assessed by the local authority in the name of Kumaran, it cannot be said that he is the owner of the building. I have A.S.No.548 of 1999 9 therefore, no hesitation to hold that the building in the suit property is the Kazhakappura attached to the Madappura. 11. There is no substance also in the contention advanced by the learned counsel for the appellants that Kumaran was a co-owner in respect of the suit property and as such, the suit, at any rate, is not maintainable as against the legal representatives of Kumaran. True, Kumaran also was a co-owner in respect of the suit property. From the materials on record, it is evident that Kumaran was permitted to occupy the building in the suit property in his capacity as the Madayan of the Madappura in the suit property. When Kumaran was permitted to occupy the building in the suit property by the members of the family in his capacity as the Madayan of the Madappura, he has to vacate the building once he ceased to be the Madayan of the Madappura. It is not a case where Kumaran was residing in the building in the suit property as a co-owner of the suit property. As such, it cannot be contended that the legal representatives of Kumaran are entitled to occupy the suit property or the building therein after the death of Kumaran. A.S.No.548 of 1999 10 The learned counsel for the appellants then contended that in so far as the defendants in the suit have raised a plea of tenancy based on an oral lease, the said issue should have been referred for decision by the court below, by the Land Tribunal, as provided for under Section 125(3) of the Kerala Land Reforms Act. It is trite that the court trying a suit is not bound to refer all issues of tenancies raised by the parties to the Land Tribunal for decision. Only if the court is satisfied that a question of tenancy arises for consideration in the suit, the court is obliged to make a reference under Section 125(3) of the Land Reforms Act, as otherwise, it will be easy for unscrupulous litigants to prolong the trial of a suit by raising questions of tenancies which does not arise for consideration in the suit. As far as the present case is concerned, there is nothing on record to indicate that there was a lease in favour of Kumaran by the then Karanavan of the Tharwad during 1941. O.S.No.793 of 1969 was a suit filed by the then Karanavan of the Tharwad against Kumaran for injunction. Ext.A2 written statement filed by Kumaran in the said suit indicates that A.S.No.548 of 1999 11 Kumaran had no such case. In Ext.A2, Kumaran had categorically admitted that the suit property belongs to the Tharwad and that he has no right in the suit property other than as the Madayan attached to the Madappura in the property. The relevant portion in the written statement reads thus : “Aj|Lp kŸ]Wp]Rs vñO WRºL¾V frvLŸV vW ^ÓvOU RoÕa] frvLŸ]¤ W}u]¤ Nkf]pORa WR¹L¾ obÕOq frvLŸ] Ss¨V WLeU WOu]WLeLvWLwoLp] AvWLwRÕŸfOU BReÐO Nkf] yÚf]¨OÐO. Nkf] Nkf]pORa frvLŸ]¤ KqO AjÍ]qv¢ oLNfoLeV. Nkf]pORa frvLŸV vñOv]¤ Nkf]¨V KLzq] AvWLwU DçfsæLRf frvLŸ vñO Nkf] ja¨OWSpL ja¾]¨OWSpL R\áOÐ]sæ. Aj|Lp kŸ]Wp]Rs vñO S\¡ÐV j]¤¨OÐ KŸkrÒ]¤ Nkf]pORa frvLŸ vW KqO obÕOq SƒNfU DºV, Nkf] RoÕa] SƒNf¾]Rs obpjLeV. SƒNf¾]¤ SvºOÐfO R\áOÐfsæLRf vñO yUmÌoLp pLRfLqO WLq|vOU CT Nkf]¨]sæ.” In the light of Ext.A2, I do not think that the question of tenancy arose for consideration in the suit. ## 12. In **Balakrishna Warriar v. Santha Varassiar** ( 1997 KHC 179), the Apex Court held that after the Joint Hindu Family System (Abolition) Act, since the Tharwad has become A.S.No.548 of 1999 12 extinct, no declaration can be given in favour of the nonexisting entity. In the light of the said decision, the learned counsel for the appellants is justified in contending that the court below went wrong in declaring that the plaintiff was the Karanavathi of the Tharwad. But, the decree is not liable to be set aside on that ground as the plaintiff is otherwise entitled to get the relief prayed for by her in the appeal. In the result, the appeal is allowed in part. The decree declaring the plaintiff as the Karanavathi of the Tharwad is vacated. The impugned decree is confirmed in all other respects. All the interlocutory applications in the appeal are closed. Sd/- ## **P.B.SURESH KUMAR, JUDGE.** tgs (true copy)