Chandran Ramachandran and others v. Chandran Raghavan and others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE P.SOMARAJAN** **WEDNESDAY,THE 20TH DAY OF MARCH 2019 / 29TH PHALGUNA, 1940** ## **RSA.No. 983 of 2004** **AGAINST THE JUDGMENT AND DECREE DATED 15-12-2003 IN AS 44/1996 of ADDITIONAL DISTRICT COURT-I, MAVELIKKARA** **AGAINST THE JUDGMENT AND DECREE DATED 19-12-1995 IN OS 304/1990 of MUNSIFF COURT,KAYAMKULAM** ## **APPELLANTS/APPELLANTS/PLAINTIFFS:** - **1 CHANDRAN RAMACHANDRAN, THODISSERIL VEEDU, KATTANAM MURI, KATTANAM VILLAGE.** - **2 CHAKKY AMMINI -DO- -DO-** - **3 CHAKKY RAJAMMA, MANKEETTATHIL VEEDU, PAZHAKUTHIRKONAM MURI, NOORANAD, THODISSERIL VEEDU, KATTANAM MURI, KATTANAM VILLAGE** - **4 CHAKKY THANKAMMA, LAKSHAM VEEDU, BHARANICKAVU NORTH MURI, BHARANICKAVU VILLAGE.** **BY ADVS. SRI.B.KRISHNAN SRI.R.PARTHASARATHY** ## **RESPONDENTS/RESPONDENTS/DEFENDANTS:** - **1 CHANDRAN RAGHAVAN, THODISSERIL VEEDU, KATTANAM MURI, KATTANAM VILLAGE.** - ***2 SANKARAN NARAYANAN** - **VALLUKAPPALILL THARAYIL VEEDU, PULLIKKANAKKU MURI, KAYAMKULAM VILLAGE.(DIED)** **LRS IMPLEADED AS ADDL.R23 TO 25** - **3 KOCHIKA OMANA -DO-** - ****4 ACHUTHAN, S/O. AYYAPPAN, THODISSERIL VEEDU KATTANAM MURI, KATTANAM VILLAGE, PANIKKASSERIL VEETTIL, KOTTACHIRA MURI, BHARANICKAVU VILLAGE. (DIED)** **ADDL.R26 IMPLEADED AS LEGAL HEIR** **[RSA 983/2004,RSA.818/2004] 2** ## **5 OMANA, W/O. ACHUTHAN -DO- -DO-** ******6 ACHAMMA KOTTAYIL VEEDU KATTANAM MURI, KATTANAM VILLAGE.(DIED) LRS IMPLEADED** ******6TH RESPONDENT DIED. RESPONDENTS 10 & 12 TO 15 ARE RECORDED AS THE LEGAL REPRESENTATIVES OF DECEASED 6TH RESPONDENT AS PER THE ORDER DATED 25/10/2017 ON VIDE MEMO OF 1305/2015 DATED 05/03/2015** ## *****7 THANKAMMA, EDAPPURAYIL VEEDU, KATTANAM MURI, KATTANAM VILLAGE. (DIED) RECORDED** ***** THE DEATH OF R7 RECORDED AS PER THE ORDER DTD.24/6/2011 VIDE MEMO C.F.3181/2011 DTD.13/06/2011** *****7TH RESPONDENT DIED. RESPONDENTS 16 TO 22 ARE RECORDED AS THE LEGAL REPRESENTATIVES OF DECEASED 7TH RESPONDENT AS PER THE ORDER DATED 07/11/2017 ON MEMO VIDE CF 6945/2017 DATED 01/11/2017** - **8 NARAYANI THODISSERIL VEEDU -DO-** ## *******9 AMMINI PALATHARAYIL KOTTAYIL -DO-** ## **10 KUNJAMMA KOTTAYIL VEEDU -DO-** - ******* LILLYKUTTY PALATHARAYIL KOTTAYIL -DO11 (DIED)RECORDED *REMOVED** **11TH RESPONDENT IS DELETED FROM THE PARTY ARRAY AT THE RISK OF THE APPELLANT AS PER ORDER DATED 06/06/2019 IN I.A.1/2019** ## **12 PONNAMMA KOTTAYIL VEEDU -DO-** - **13 SALENI -DO- -DO-** - **14 JOY -DO- -DO-** - **15 LISSY -DO- -DO-** - **16 MARIYAMMA ABRAHAM EDAPPURAYIL KATTANAM MURI, KATTANAM VILLAGE.** - **17 AMMINI THANKACHAN -DO18 PONNAMMA DANIAL -DO-** - **19 AELIYAMMA THOMAS -DO20 THOMAS JOHN -DO21 MOLLY THANKACHAN -DO-** **[RSA 983/2004,RSA.818/2004] 3** - **22 MINI JOHN -DO-** **(RESPONDENTS 9 TO 11 REPRESENTED BY POWER OF, ATTORNEY HOLDER BABYKUTTY, S/O. MATHAI,, PALATHARAYIL KOTTAYIL, KATTANAM MURI, KATTANAM VILLAGE).** - **ADDL.RESPONDENTS:** - **23 OMANA, D/O LATE SANKARAN NARAYANAN, VALLUKAPPALLIL THARAYIL VEEDU, PULLIKKANAKKU MURI, KAYAMKULAM VILLAGE.** - **24 BHARATHI, D/O LATE SANKARAN NARAYANAN, VALLUKAPPALLIL THARAYIL VEEDU, PULLIKKANAKKU MURI, KAYAMKULAM VILLAGE** - **25 ROHINI, D/O LATE SANKARA NARAYANAN, VALLUKAPPALLIL THARAYIL VEEDU, PULLIKKANAKKU MURI, KAYAMKULAM VILLAGE.** **LRS OF DECEASED 2ND RESPONDENT IMPLEADED AS ADDL.RESPONDENTS 23 TO 25 AS PER THE ORDER DATED 06/02/2013 IN I.A.2431/2011** - **** ADDL.RESPONDENT** - **26 ROHINI, D/O LATE ACHUTHAN, THODISSERIL, VEEDU, KATTANAM MURI, KATTANAM VILLAGE, PALLIKKAL PO** **LHR OF DECEASED 4TH RESPONDENT IMPLEADED AS ADDL.R26 AS PER THE ORDER DATED 06/02/2013 IN I.A.2417/2011** ## **SUPPLEMENTAL RESPONDENT** - **R.27 SIBY BABYKUTTY, PALATHARAYIL KOTTAYIL KATTANAM MURI, KATTANAM VILLAGE, ALAPPUZHA DISTRICT** **IS IMPLEADED AS SUPPLEMENTAL RESPONDENT NO.27, AS PER THE ORDER DATED 20/03/2019 IN I.A.969/2018 BY ADVS. SMT.ANUROOPA JAYADEVAN SMT.C.G.PREETHA SMT.NAVA VARGHESE SMT.SREELEKHA PUTHALATH SRI.A.R.DILEEP SRI.B.SURESH KUMAR - R20 SRI.GEORGE VARGHESE(PERUMPALLIKUTTIYIL) SRI.MANU SEBASTIAN SRI.S.KRISHNAN THAMPI-ADDL.R23,24,25** **THIS REGULAR SECOND APPEAL HAVING BEEN FINALLY HEARD ON 20.03.2019, ALONG WITH RSA.818/2004, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **[RSA 983/2004,RSA.818/2004] 4** ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE P.SOMARAJAN** **WEDNESDAY,THE 20TH DAY OF MARCH 2019 / 29TH PHALGUNA, 1940** ## **RSA.No. 818 of 2004** **AGAINST THE JUDGMENT AND DECREE DATED 15-12-2003 IN AS 43/1996 OF ADDITIONAL DISTRICT COURT-I, MAVELIKKARA** **AGAINST THE JUDGMENT AND DECREE DATED 19-12-1995 IN OS 304/1990 of MUNSIFF COURT,KAYAMKULAM** ## **APPELLANTS/APPELLANTS/DEFENDANTS:** - **1 CHANDRAN RAGHAVAN, THODISSERIL VEEDU, KATTANAM MURI, KATTANAM VILLAGE.** - **2 CHANDRAN RAMACHANDRAN, -DO-** **BY ADVS. SRI.B.KRISHNAN SRI.R.PARTHASARATHY** ## **RESPONDENT/RESPONDENT/PLAINTIFF:** - **BABYKUTTY, S/O MATHAI, PALATHARAYIL KOTTAYIL, KATTANAM MURI, KATTANAM VILLAGE.(DIED)** ## **LEGAL HEIRS IMPLEADED** ***THE DEATH OF 1ST RESPONDENT IS RECORDED AS PER ORDER DATED 10/01/2018 IN MEMO VIDE CF 7730/17 DATED 20/11/2017** ## ***ADDITIONAL RESPONDENTS:-** **ADDL. KUNJAMMA, W/O LATE BABYKUTTY, PALATHARAYIL, R2 KOTTAYIL, KOTTANAM MURI, KOTTANAM VILLAGE, ALAPUZHA DISTRICT.** **[RSA 983/2004,RSA.818/2004] 5** **ADDL. SIBY BABYKUTTY, S/O LATE BABYKUTTY, PALATHARAYIL, R3 KOTTAYIL, KOTTANAM MURI, KOTTANAM VILLAGE, ALAPUZHA DISTRICT.** **THE LEGAL HEIRS OF DECEASED R1 IS IMPLEADED AS ADDITIONAL RESPONDENTS 2 AND 3 AS PER ORDER DATED 23/05/2018 IN I.A.102/2018** **BY ADVS. SMT.ANUROOPA JAYADEVAN SRI.BASANT BALAJI SRI.B.SURESH KUMAR** **THIS REGULAR SECOND APPEAL HAVING BEEN FINALLY HEARD ON 20.03.2019, ALONG WITH RSA.983/2004, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **[RSA 983/2004,RSA.818/2004] 6** ## **JUDGMENT** A suit for partition ended in dismissal both in the Trial Court (Munsiff's Court, Kayamkulam) in O.S.Nos. 304/1990 and 371/1990 and the First Appellate Court (Addl.District Court-I, Mavelikara)in A.S.Nos.44/1996 and 43/1996. Aggrieved by the said decree and judgment, the defeated plaintiff came up with this appeal. 2. The subject matter of the suit comes to 59 cents of landed property and structures therein. It was originally belonged to Ayyappan, Adichan, Sankaran and Kurumba. Ayyappan and Sankaran passed away, thereby Adichan and Kuruba became the co-owners of the property. Kurumba has got a son by name Chandran. The plaintiffs and the first defendant claims to be the legal heirs of deceased Chandran and sought a partition of 1/2 right over the property, being the grandchildren of Kurumba. 3. Adichan had executed several document of alienation. Among them Ext.B2 was executed in **[RSA 983/2004,RSA.818/2004] 7** respect of 10 cents of property on 20/04/1964 in favour of 9[th] and 11[th] defendant. Ext.B3 is dated 23/2/1965 by which 4 cents of property was given to 11[th] defendant. Ext.B21 is another sale deed in respect of 10 cents of property in favour of the husband of 7[th] defendant dated 30/1/1958. Ext.B16 is the settlement deed executed in favour of 2[nd] defendant with respect to 35 cents of property and it is dated 22/10/1959. It is by virtue of Ext.B2,B3,B11 and B16 the entire extent of 59 cents of property given to various persons by Adichan. Whileso, on 6/2/1976 under Ext.B13 the second defendant had given the entire extent of 35 cents to 3[rd] defendant. There was some dispute with respect to the possession held by 4[th] defendant with the 3[rd] defendant and both of them applied for getting purchase certificate and ultimately they entered into an understanding based on which Ext.B15 Pattayam (Purchase Certificate) was granted in favour of 3[rd] defendant with respect to 22 cents. The balance 13 cents was given to the 4[th] defendant under **[RSA 983/2004,RSA.818/2004] 8** Ext.B20 purchase certificate. Based on which the defendant contended that the right, title and interest, if any, held by Kurumba over the said property lost by adverse possession and limitation and that the property hence not available for partition. The contention was upheld by the Trial Court and the First Appellate Court and dismissed the suit. Aggrieved by the said decree and judgment, the plaintiffs came up with this appeal. 4. The learned counsel for the appellant mainly relied on three points, firstly that as per Section 44 of Transfer of Property Act and by the application of doctrine of substituted security a transferee under a document of transfer would get only the fractional interest held by the transferer and he can claim partition of his share. He would stepped into the shoes of the original assignee/the co-parcener or the coowner, as the case may be. 5. There may not be any quarrel regarding the application of Section 44 of the Transfer of **[RSA 983/2004,RSA.818/2004] 9** Property Act, when there is a document of alienation the doctrine of substituted security would come into play bringing the beneficiary under the document in the place of the original executant. The beneficiary under the document would stepped into the shoes of co-owner or the co-parcener, as the case may be, but subject to the restriction imposed under the Hindu law regarding the family house, if any, situated in the property with respect to a claim for partition. The legal position was very much settled that by the execution of a document of transfer or alienation either by a co-owner or by a co-parcener, it will not create any new right but operate only with respect to the right held by the executant and the document would be valid in so far as the extent of right held by that person. But when there is an execution of a document asserting full right over the property the assertion itself is amounts to a declaration of his animus to hold the property in derogation of the right, title and interest of any of the person **[RSA 983/2004,RSA.818/2004] 10** affected by said document. In otherwise, when there is a registered document executed by a co-parcener or by a co-owner asserting full right, title and interest over the property in derogation of the original owner or as against the other coowners it would amounts to the assertion of animus to hold the property in derogation of the other co-owners or a rightful owner. Then comes the question of the classical requirement Nec vi, Nec Clam, Nec precario that the animus should be open capable of giving notice to all affected persons the other co-owners or the co-parceners as the case may be. It is well settled that there cannot be any adverse possession between the co-owners. But, when there is a document of alienation made by one of the co-owner asserting full right, title and interest over the property by a registered document, from that day onwards the assertion made by the co-owner would operate if it is capable of giving notice to all concerned. At this juncture, it is relevant to consider the definition given to the expression 'when a person said to have notice' **[RSA 983/2004,RSA.818/2004] 11** as defined under Section 3 of the Transfer of Property Act which stands for a notice by a person both directly or by constructively. A person is said to have notice when he actually knows the facts. Any abstention from making an enquiry or search which he ought to have been made or gross negligence would also amount to a deemed notice. 6. Yet another argument was also advanced by the learned counsel for the appellants that a mere registration or execution of a document between the co-owners not amounts to notice of factum of execution of the said document and relied on the decision rendered by a Division Bench of this court in _**Ramachandran Nair & Others v. Gouri Pillai & others (1975 KLT 269)**_ wherein it was held that “ The mere execution of documents by two of the co-owners on the footing that they are full owners of the property, cannot deprive the plaintiff co-owner of his rights so long as he was not party to the documents, and it had not been shown by other circumstances, that he had knowledge of these transactions, and hostile **[RSA 983/2004,RSA.818/2004] 12** assertion.” But the legal position cannot be extended when there is a document of alienation to a stranger and a stranger was inducted into possession of the property. The legal position summarized therein would be applicable in between the co-owners when there is a secret transaction between themselves. But the instant case really standing on a different footing as Ext.B2,B3,B21 and B16 were executed in respect of portions of property in the name of total strangers and they were inducted into possession of the property. Ext.B2 is related back to 20/04/1964, Ext.B3 is 23/02/1965 and Ext.B21 is related back to 30/01/1958 and Ext.B16 dated to 22/10/1959. All these are registered documents executed in favour of strangers by giving various portions of large extent of 59 cents of property held by Adichan along with Kurumba as their co-ownership property. All these documents were executed asserting full right, title and interest over the property by Adichan. The entire estate having an extent of 59 cents were sold and settled by virtue of **[RSA 983/2004,RSA.818/2004] 13** Ext.B2,B3,B21 and B16 documents. Since, these documents were executed in the name of strangers inducting the strangers into respective possession of property asserting full right,title and interest by one of the co-owner namely Adichan, it would be amounts to notice to all person litigating under other co-owner namely Kurumba. Necessarily they should come before the court within a period of 12 years so as to declare their title and interest over the property otherwise the hostile animus exercised would perfect into title on completion of 12 year from the date of assertion of animus as per Article 65 of the Limitation Act. No suit was brought into existence within a period of 12 years from the respective date of execution of Ext.B2,B3,B21 and B16. The finding rendered by both the Trial Court and the First Appellate Court regarding the bar under Section Article 65 of the Limitation Act and perfection of title by adverse possession and limitation thus deserves no interference by this Court. Necessarily, both the appeals deserve only **[RSA 983/2004,RSA.818/2004] 14** a dismissal by this Court. No other substantial question of law much less any question of law brought to the notice of this Court. Hence, both the appeals are dismissed, but without cost. ## **Sd/P.SOMARAJAN** **JUDGE** msp //TRUE COPY// P.A. TO JUDGE