Cheriya Chemmagath Cheriya Koya v. Cheriya Chemmagath Syed Mohammed Koya and others

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.BHAVADASAN MONDAY, THE 3RD OCTOBER 2011 / 11TH ASWINA 1933 AS.No. 281 of 1999(A) --------------------OS.13/1997 of DISTRICT COURT, LAKSHADWEEP .................... APPELLANT/(S)/PLAINTIFF -------------------------------------- 1. CHERIYA CHEMMAGATH CHERIYA KOYA S/O.PURAKKAD MUHAMMED KOYA )( Died and LRs impleaded NOW AGED 63 YEARS, KALPENI ADDL. APPELLANTS 2. C G BEEVI, RESIDING AT CHERIYA CHEMMAGATH HOUSE )( Died and LRs KALPENI ISLAND, UTO LAKSHADWEEP )( recorded 3. C G MUTHUKOYA -DO- 4. C G ABDULLA KOYA -DO- 5. C G BEEBATHUMMABI -DO- (APPELLANT DIED AND ADDITIONAL APPELLANTS 2 TO 5 ARE IMPLEADED AS LEGAL HEIRS OF DECEASED APPELLANT AS PER ORDER DT.1.12.2004 ON IA NO.4106/04) (THE ADDITIONAL SECOND APPELLANT DIED AND IT IS RECORDED THAT ADDITIONAL APPELLANTS 3 TO 5 ARE THE LEGAL REPRESENTATIVES OF THE DECEASED ADDL SECOND APPELLANT AS PER ORDER DT.2.8.2006 ON MEMO CF 2931/06 DT.28.07.2006) BY ADV. SRI M.P.RAMNATH SRI.M.C.SEN, SENIOR ADVOCATE SRI.M.P.SREEKRISHNAN SMT.SHAHNA KARTHIKEYAN AS 281/99 -2- RESPONDENTS/DEFENDANTS : -------------------------------------------- 1. CHERIYA CHEMMAGATH SYED MOHAMMED KOYA S/O.KUNHIPOOVAKADA POOKOYA, RESIDING NEAR PANDARAM MOSQUE, KAVARATTI PO LAKSHADWEEP PIN 682 555 2. CHERIYA CHEMMAGATH KUNHIBI D/O.KUNHI POOVAKADA POOKOYA, KALPENI PO PIN 682 558 3. CHERIYA CHEMMAGATH KOYA S/O. -DO- -DO- 4. CHERIYA CHEMMAGATH SUHARABI D/O. -DO- -DO- 5. CHERIYA CHEMMAGATH KASMIKOYA S/O.-DO- -DO- 6. CHERIYA CHEMMAGATH HAMSA KOYA S/O.SUHRABI, KALPENI PO, PIN 682 558 7. CHERIYA CHEMMAGATH HYDER S/O.SUHRABI -DO- -DO- 8. SMT. THAITHOTTAM NAFEESATH BEEVI D/O.SYED MOHAMMED KOYA, CLERK PWD DIVISIONAL OFFICE KALPENI PIN 682 558 9. NAJMUDHEEN AGED 19 YEARS S/O.THAITHOTTAM NAFEESATH BEEVI KALPENI P O, PIN 682 558. 10. NASIMUDHEEN AGED 18 YEARS(MINOR) S/O. -DO- -DO- 11. NASEELA BEEGUM, AGED 13 YEARS (MINOR), D/O. -DO- -DO- 12. SAMSHAD AGED 11 YEARS (MINOR) D/O. -DO-DO- (MINOR RESPONDENTS 10 TO 12 REPRESENTED BY GUARDIAN & MOTHER 8TH RESPONDENT) ADV. SRI.M.K.ABOOBACKER THIS APPEAL SUITS HAVING BEEN FINALLY HEARD ON 03.10.2011 THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## **P.BHAVADASAN, J.** ------------------------------------- AS No.281 of 1999 ------------------------------------Dated this the 3[rd] day of October 2011 ## Judgment Aggrieved by the judgment and decree dated 26.12.1998 in OS No.5/90 before the District Court, Lakshadweep, the plaintiff before the court below has come up in appeal. 2. The suit was one for setting aside Ext.A2 document which is an assignment deed executed by defendants 1 to 7 in favour of the 8[th] defendant. 3. The plaint averments are to the effect that the plaint schedule properties belonged to Cheriya Chemmagath tharwad and are jointly possessed by the members of the family. In the survey records, the plaint schedule properties stand in the name of Pookoya, Pathummabi and Kadeesomma, representing three thavazhies. The complaint was that in order to defeat the rights of some of the members of the tharwad, defendants AS 281/1999 2 1 to 7 fraudulently executed Ext.A2 document dated 24.05.1988 in favour of the 8[th] defendant. They have no right to do so. The plaintiff therefore, sought for a declaration that the suit document is liable to be set aside. 4. Defendants 5 to 8 entered appearance and resisted the suit. They pointed out that the claim of the plaintiff that it was a thavazhy property is not proved. Defendants were allotted the properties under a partition effected in the family and eversince the partition, they are entitled to deal with the property as they deem fit. Denying the plaint averments, they prayed for dismissal of the suit. 5. On the above pleadings, necessary issues were raised. Evidence consists of the testimony of PW1 and documents marked as Exts.A1 and A2 from the side of the plaintiff. The defendant had DW1 examined and Exts.B1 to B3 marked. Exts.C1 and C2 are the commissioner's report and plan. 6. The trial court, on an appreciation of the evidence, found that Ext.A2 document is ab initio void and AS 281/1999 3 cannot confer any right on the 8[th] defendant. Thereafter, holding that the suit is bad for non-joinder of necessary parties and also that no recovery of possession is sought for, the suit was dismissed. It is the said judgment and decree that are under challenge. 7. The learned counsel for the appellant pointed out that after having found that the document is void ab initio, the suit ought to have been decreed by the court below. The court below was not justified in holding that the suit is bad for non-joinder of necessary parties. At best, the learned counsel pointed out that if it was found that the suit was bad for non-joinder of parties, an opportunity ought to have been given to the plaintiff to implead the necessary parties. 8. The learned counsel for the respondents, on the other hand, pointed out that there was a partition in the family and the plaint schedule property was set apart to the share of defendants 1 to 7. The plaintiff was fully aware of the said fact and he has instituted the suit, conceding the AS 281/1999 4 true facts. The learned counsel for the respondents, therefore, contended that there are no grounds to interfere with the judgment and decree of the court below. 9. It is well settled that as long as all the members of the tharwad do not agree, a partition cannot be taken place. Until a partition is effected, no member has a right of alienation of his share in the property. In the case on hand, defendants 1 to 7 have assigned property to the 8[th] defendant, who is not a member of the thavazhy at all. The plaintiff as a reversionery, challenged the assignment. Even though the defendants set up a case that there was a partition in the family, they were unable to substantiate their claim. The result was that the property remained as 'velliazhcha property'. In this connection, it will be useful to refer to the decision reported in **Neelathupura Shaikoya v. Attakoya** (2003(2) KLT SN 41 (Case No.53), **Kunhipappada Beefathummabi v. Kunhipappada Kunhikoya** (2006(2) KLT 560) and **Mohammed v. Arif** AS 281/1999 5 (2002(1) KLT 908). In all these cases, it has been held that the law applicable in the Island is Marumakkathayam law and a member of the Marumakkathayam tharwad is not entitled to alienate the property without the consent of all the members of the tharwad. It was also held that the various enactments like Madras Marumakkathayam Act, are not applicable to the Islanders. Therefore, as rightly held by the lower court, Ext.A2 document has to be held ab initio void, having been executed by incompetent persons and also since the defendants have not been able to establish that there was a partition as contended by them. 10. As regards the finding regarding absence of prayer for recovery of possession, it has no legal basis. The plaintiff sued as reversionery and so he cannot seek immediate possession. In the facts and circumstances of the case, recovery of possession could not have been sought for. Such a relief was not included in the plaint also. There is nothing in the plaint to show that the plaintiff AS 281/1999 6 was claiming exclusive right to himself, on the other hand, he was claiming his rights as reversionery. One co-owner can sue on behalf of all the co-owners. It is not necessary to bring all the co-owners on the party array. The position would have been different, had the plaintiff was claiming exclusive right over the property to himself and to the detriment of other persons. The result is that the judgment and decree of the trial court are clearly unsustainable in law and on facts. Accordingly, this appeal is allowed and the judgment and decree of the trial court are set aside. It is declared that Ext.A2 dated 13.05.1987 is ab initio void and confers no right on the 8[th] defendant. The parties will suffer their respective costs. However, the observations made in this judgment will not stand in the way of the parties entering into any compromise if they so deem fit. ## **P.Bhavadasan, Judge** sta AS 281/1999 7 AS 281/1999 8