FAO (RO) No.101 of 2015

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR. JUSTICE A.HARIPRASAD THURSDAY, THE 26TH DAY OF JULY 2018 / 4TH SRAVANA, 1940 FAO (RO).No. 101 of 2015 AGAINST THE JUDGMENT DATED 06-03-2015 IN AS NO.44/2004 of SUB COURT, TIRUR AGAINST THE JUDGMENT AND DECREE DATED 10.03.2004 IN OS NO.63/2002 OF MUNSIFF-MAGISTRATE COURT, PONNANI. APPELLANTS/RESPONDENTS 3 TO 7, 11, 14, 16, 18, 19, 23, 25 AND 29 IN AS.44/04/DEFENDANTS 3 TO 17 IN OS.63/2002 - 1 IBRAYIN, S/O.MUNDEKATTIL ABDU, MARANCHERI AMSOM, PARICHAKAM DESOM IN PONNANI TALUK. - 2 MOOSA @ BAPPUTTY, S/O.MUNDEKATTIL ABDU, MARANCHERI AMSOM, PARICHAKAM DESOM IN PONNANI TALUK. - 3 ABU, S/O.MUNDEKATTIL ABDU, MARANCHERI AMSOM, PARICHAKAM DESOM IN PONNANI TALUK. 4 ALI, S/O.MUNDEKATTIL ABDU, MARANCHERI AMSOM, PARICHAKAM DESOM IN PONNANI TALUK. - 5 AYISUMMA, W/O.LATE MUNDEKATTIL UMMER, MARANCHERI AMSOM, PARICHAKAM DESOM IN PONNANI TALUK. - 6 KHALEEL, S/O.AYISUMMA, MARANCHERI AMSOM, PARICHAKAM DESOM IN PONNANI TALUK. - 7 SHAFEEQ, S/O.AYISUMMA, MARANCHERI AMSOM, PARICHAKAM DESOM IN PONNANI TALUK. - 8 FAISAL, S/O.LATE MUNDEKKATTIL EASSA, MARANCHERI AMSOM, PARICHAKAM DESOM IN PONNANI TALUK. - *(9 AZHEEKKALAYIL MUHAMMEDKUTTY, S/O.AYISHUMMA, MARANCHERI AMSOM, PARICHAKAM DESOM IN PONNANI TALUK.) DIED, LRS IMPLEADED. 10 AZHEEKKALAYIL YOUSAF, S/O.AYISHUMMA, MARANCHERI AMSOM, PARICHAKAM DESOM IN PONNANI TALUK. ## 11 KHADEEJA, W/O.ABDU, AZHEEKKALAYIL, MARANCHERI AMSOM, PARICHAKAM DESOM IN PONNANI TALUK. FAO(RO) NO.101 OF 2015 2 - 12 IRFAN, - S/O.ABDU, AZHEEKKALAYIL, MARANCHERI AMSOM, - PARICHAKAM DESOM IN PONNANI TALUK - 13 MAIMOONATH, - W/O.MUNDEKKATTIL MUHAMMED, MARANCHERI AMSOM, PARICHAKAM DESOM IN PONNANI TALUK, - *LRS OF 9TH APPELLANT:-(SUPPL.APPELLANTS 14, 15, 16 & 17) 14. SAFIYA, AGED 54 YEARS, W/O.LATE AZHEEKKALAYIL MUHAMMDKUTTY, AZHIKKALAYIL HOUSE, P.O.MARANCHERY, MALAPPURAM DT, PIN-679 581. 15. MOHAMMED SHANIR, AGED 30 YEARS,S/O.LATE AZHEEKKALAYIL MUHAMMDKUTTY, AZHIKKALAYIL HOUSE, P.O.MARANCHERY, MALAPPURAM DT, PIN-679 581. 16. NISHIDA, AGED 27 YEARS, D/O.LATE AZHEEKKALAYIL MUHAMMDKUTTY, AZHIKKALAYIL HOUSE, P.O.MARANCHERY, MALAPPURAM DT, PIN-679 581. 17. MUHAMMED JAMSHID, AGED 24 YEARS, S/O.LATE AZHEEKKALAYIL MUHAMMDKUTTY, AZHIKKALAYIL HOUSE, P.O.MARANCHERY, MALAPPURAM DT, PIN-679 581. SUPPLEMENTAL APPELLANTS 14 TO 17 ARE IMPLEADED BEING LRS OF DECEASED 9TH APPELLANT VIDE ORDER DTD.07.12.17 IN IA.614/17. BY ADVS.SRI.T.SETHUMADHAVAN (SENIOR ADVOCATE) SRI.KODOTH PUSHPARAJAN SRI.K.JAYESH MOHANKUMAR SMT.VANDANA MENON SMT.N.DEEPA RESPONDENTS:APPELLANTS/DEFENDANTS (1 TO 5 & 8 TO 10, 12 & 13, 15, 17, 20, 21, 24, 26 TO 28, 30 TO 32 IN OS.NO.63/2002)(1, 2 & 22 DIED) AS 44/04 IN OS 63/02 DEFENDANT. 1. THITHUMMU, D/O.KARIMBANAKKAL PATHUKUTTY, KUTTIPALA AMSOM, KALADITHARA DESOM IN PONNANI TALUK.679583 2. MOIDU, - S/O.KARIMBANAKKAL PATHUKUTTY, KUTTIPALA AMSOM, KALADITHARA DESOM IN PONNANI TALUK.679583 3. AMINAKUTTY, D/O.KARIMBANAKKAL PATHUKUTTY, EDAPPAL AMSOM DESOM IN PONNANI TALUK. 4. SUHARA, - D/O.LATE SAINABA, EDAPPAL AMSOM DESOM IN PONNANI TALUK. 5. NAFEESU, D/O.PILAKKAL MUHAMMAD, NANNAMMUCKU AMSOM - DESOM IN PONNANI TALUK 6. MUHAMMED ASHRAF, - S/O.LATE UMMER, MUNDEKKATTIL, MARANCHERI AMSOM, PARICHAKAM DESOM IN PONNANI TALUK. |FAO(RO) NO.101 OF 2015<br>3| |---| |7. SUHARA,| |D/O.LATE UMMER, MUNDEKKATTIL, MARANCHERI AMSOM,| |PARICHAKAM DESOM IN PONNANI TALUK.| |8. NASEEMA,| |D/O.LATE UMMER, MUNDEKKATTIL, MARANCHERI AMSOM,| |PARICHAKAM DESOM IN PONNANI TALUK.| |9. JASMIN,| |D/O.LATE UMMER, MUNDEKKATTIL, MARANCHERI AMSOM,| |PARICHAKAM DESOM IN PONNANI TALUK.| |10. SAJITHA,| |D/O.LATE UMMER, MUNDEKKATTIL, MARANCHERI AMSOM,| |PARICHAKAM DESOM, IN PONNANI TALUK.| |11. FOUSIA,| |D/O.LATE EASSA, MUNDEKKATTIL, MARANCHERI AMSOM,| |PARICHAKAM DESOM IN PONNANI TALUK.| |12. FAYISHA,| |D/O.LATE EASSA,MINOR OF GUARDIAN MUNDEKKATTIL MUHAMMED,| |MARANCHERI AMSOM, PARICHAKAM DESOM IN PONNANI TALUK.| |13. AZHEEKKALAYIL HASSAN,| |S/O.AYISHUMMA, MARANCHERI AMSOM, PARICHAKAM DESOM IN| |PONNANI TALUK.| |14. AZHEEKKALAYIL HUSSAIN,| |S/O.AYISHUMMA, MARANCHERI AMSOM, PARICHAKAM DESOM IN| |PONNANI TALUK.| |15. NADIYA,| |D/O.ABDU, AZHEEKKALAYIL,MARANCHERI AMSOM,| |PARICHAKAM DESOM IN PONNANI TALUK.| |16. NAFIDA,| |D/O.ABDU, AZHEEKKALAYIL,MARANCHERI AMSOM,| |PARICHAKAM DESOM IN PONNANI TALUK.| |17. NAVAF, (MINOR)| |D/O.ABDU, AZHEEKKALAYIL,BY GUARDIAN KHADEEJA,| |MARANCHERI AMSOM, PARICHAKAM DESOM IN PONNANI TALUK.| 18. NASREENA, (MINOR) D/O.ABDU, AZHEEKKALAYIL,BY GUARDIAN KHADEEJA, MARANCHERI AMSOM, PARICHAKAM DESOM IN PONNANI TALUK. 19. ABDULLAKUTTY, S/O.MAIMOONATH, RESIDING AT MARANCHERI AMSOM, PARICHAKAM DESOM, IN PONNANI TALUK. 20. MARIYU, D/O.MAIMOONATH, R/AT -DO- -DO21. MOIDUNNI, S/O.MAIMOONATH, R/AT -DO- -DOR1 TO R5 BY ADV. SRI.JAMSHEED HAFIZ THIS FIRST APPEAL FROM ORDER - REMAND ORDER HAVING BEEN FINALLY HEARD ON 26-07-2018, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## **A.HARIPRASAD, J.** ## **-------------------------------------F.A.O.(RO) No.101 of 2015 -------------------------------------Dated this the 26[th] day of July, 2018** ## **JUDGMENT** Aggrieved by the order of remand by the lower appellate court in a suit for partition, directing the court below to frame an additional issue as to whether the suit claim raised by the plaintiffs is barred by ouster, the contesting defendants in the suit have come up in appeal. 2. Heard the learned senior counsel appearing for the appellants and the learned counsel appearing for the respondents/plaintiffs. 3. For appreciation of the issues involved, I shall narrate facts in brief: Plaint schedule property originally belonged to one Pulakkel Hydruman. Upon the death of Hydruman, his rights in the property devolved on his wife Beerayumma and children, Pathukutty and Muhammed. They were enjoying the property in co-ownership. Thereafter, Beerayumma died. Later, on the death of Pathukutty and Muhammed, their rights in the property devolved upon the plaintiffs. Plaintiffs 1 to 3 are the children of deceased Pathukutty. 4[th] plaintiff is the granddaughter of Pathukutty, whose mother Sainaba was dead. 5[th] plaintiff is the daughter of Muhammed. 2 FAO (RO) No.101 of 2015 4. On enquiry made by the plaintiffs, it was revealed that after the death of Hydruman, his wife Beerayumma had executed a sale deed in respect of the plaint schedule property for herself and on behalf of her minor children Pathukutty and Muhammed in favour of Mundakkattil Abdu Rahiman. That document is Ext.A1. The sale was in the year 1922. It was known to the plaintiffs that said Abdu Rahiman assigned the property in favour of Abdu as per Ext.A2 in the year 1924. Contesting defendants are the children and grand children of deceased Abdu, the assignee in Ext.A2. 5. Plaintiffs contended that under the Mohammedan Law, Beerayumma was only a de facto guardian of minors Pathukutty and Muhammed. An assignment by the de facto guardian of a minor would be inoperative and void. So, the property is lying in co-ownership right between the plaintiffs and the contesting defendants. Despite making a claim for partition, it was denied. Hence, the suit. 6. Defendants opposed the suit by contending that the suit is a speculative action initiated at the instance of the defendants in O.S.No.131 of 1962 on the file of the Court of Munsiff, Ponnani. Property in dispute was possessed by the mortgagee as per Ext.B5 created in the year 1926. A suit was filed as O.S.No.131 of 1962 for redemption of mortgage. It was decreed. Execution petition was filed as E.P.No.106 of 1994 and the property was taken delivery of as per a delivery report (Ext.B6). Ext.B7 is 3 FAO (RO) No.101 of 2015 the certified copy of the delivery account in the above suit. 7. According to the defendants, a test suit has been filed at the instance of the defendants in O.S.No.131 of 1962 claiming a right over the property. Plaintiffs never enjoyed the property in ownership or possession. They are not entitled to get any relief claimed in the suit. They are not coowners with the defendants as contended in the plaint. Even though Beerayumma executed Ext.A1 sale deed in the year 1922 in favour of Abdu Rahiman, none of the quondam minors questioned the assignment after they became majors. Neither Pathukutty nor Muhammed made any claim over the property till their death. In fact, they had accepted the sale deed and never raised any objection. Since predecessors-in-interest of the plaintiffs themselves had no right over the property, the plaintiffs' claim for rights thereon is untenable. Their rights, if any, was lost by ouster, adverse possession and limitation. 8. Trial court raised the following issues: _“1) Whether the suit is barred by adverse possession and limitation?_ _2) Together the plaintiffs are co-owners in joint possession of the properties with the defendants?_ _3) What is the share, if any, the parties are_ 4 FAO (RO) No.101 of 2015 _entitled to in the event of partition?_ _4) Whether the defendants are entitled to_ _the compensatory cost?_ _5) What is the relief and cost?”_ 9. PW1 and DW1 testified and Exts.A1 to A3 and B1 to B10 are the documents marked. 10. Considering the entire matters, the trial court found that the plaintiffs were not co-owners in joint possession of the properties. Trial court also found that deceased Pathukutty and Muhammed had left no right in the property to be inherited by their legal heirs. On these scores, the suit was dismissed. 11. Plaintiffs approached the lower appellate court with a first appeal. After considering the rival contentions, learned Sub Judge found that partibility of the plaint schedule property depends as to whether the defendants succeeded in establishing a plea of ouster. Lower appellate court further observed that unfortunately an issue regarding ouster is not seen framed by the trial court, though a plea to that effect was taken by the defendants in paragraph 10 of the written statement. Without framing an issue to that effect, a fair disposal of the appeal was not possible. Therefore, an additional issue was framed. With these observations, the matter was remitted back to the trial court. 5 FAO (RO) No.101 of 2015 12. Learned senior counsel appearing for the appellants contended that a remand was an unnecessary exercise. It is trite that a remand should be done only in an inevitable and unavoidable situation. If the lower appellate court has sufficient materials before it for adjudicating the lis completely, a remand should be avoided. 13. It is contended by the learned senior counsel that a well reasoned judgment of the trial court was upset only on finding that there was no issue cast regarding ouster, though a plea is raised by the contesting defendants and parties adduced evidence elaborately. 14. It is true that Order XIV Rule 1 of the Code of Civil Procedure, 1908 (in short, “Code”) enjoins the trial court to frame the necessary issues on which the parties are called upon to adduce evidence. It is the bounden duty of the court to consider the pleadings and relevant materials to ascertain the material propositions of facts or law affirmed by one party and denied by the other so as to make it an issue. It is averred in the written statement that the suit is not allowable mainly for two reasons. Firstly, the plaintiffs have no right to file a suit as their predecessors-in-title themselves had lost their right. It is therefore contended that the suit is barred by law of limitation. Another plea is regarding ouster of rights of the plaintiffs, even if they had any co-ownership right over the property 15. It is seen from the trial court's judgment that the parties have 6 FAO (RO) No.101 of 2015 let in evidence fully understanding the contentions. The discussion made by the trial court would show that the question of ouster was also raised at the time of evidence as well as at the time of hearing. But, the trial court took a view that since the suit is barred by law of limitation, question of ouster does not arise for consideration. Correctness of this finding is seriously challenged by the learned counsel of the plaintiffs/respondents. 16. Admittedly the properties belonged to Beerayumma and her children Pathukutty and Muhammed were assigned in the year 1922 while they were minors. It was come out in evidence that Pathukutty and Muhammed died somewhere near 1970. Ext.A1 does not show their age in 1922. Even if we assume that they were only one day old children at that time, they would have attained majority in the year 1940. Trial court had found that till 1970 they did not choose to challenge Ext.A1. Trial court therefore placed reliance on Section 6 read with Section 8 of the Limitation Act, 1963 to enter a finding that the suit is barred by limitation. In support of this reasoning, reliance was placed on **Moidu Haji v. Kunhabdulla (1998 (2) KLT 681)** . 17. Learned counsel for the respondents contended that Ext.A1 is not a document void in its entirety. Admittedly, Beerayumma had a fractional right, which was capable of being assigned in the year 1922. Going by the principle in **Imambandi v. Mutsaddi (45 Ind. App.73)** and 7 FAO (RO) No.101 of 2015 **Mohd. Amin v. Vakil Ahmed (AIR 1952 SC 358)** , an assignment by a de facto guardian of a Muslim minor is void. Admittedly, mother of Pathukutty and Muhammed, viz., Beerayumma, was only a de facto guardian under Mohammedan Law. Therefore, the document could be treated as valid in respect of Beerayumma's right and void in respect of the minor's share. 18. This question can be viewed in two different ways. If the document was completely void, Sections 6 and 8 of the Limitation Act, 1963 could have straight away applied to that situation for finding that the suit should be instituted within a period of 12 years from the date of assignment or three years from the date of attainment of majority, whichever is longer. This principle has been recognized in **Moidu Haji** 's case. 19. Lower appellate court relied on paragraph 18 of the judgment in **Moidu Haji** 's case. It reads as follows: _“18. In the light of the discussion as above, I am inclined to hold that an alienation by a Muhammedan co-heir would be valid to the extent of the share of the co-heir who was competent to transfer his share even if the sale also purported to be on behalf of a minor represented by a defacto guardian. So viewed, it cannot be held in this case that the sale deed Ext. A2_ 8 FAO (RO) No.101 of 2015 _is wholly void. The said sale deed validly conveys to the purchaser, the shares of those heirs of Kunhahammed, who were sui juris, since they were capable of validily conveying their shares. It can therefore, be found that Moosa Haji, the assignee, had stepped into the shoes of the co-owners and his alienee and heir, the first defendant, has also only stepped into the shoes of a co-owner. In that situation,_ _it is necessary for the first defendant to establish a case of ouster as against the plaintiff."_ It is the submission by the learned senior counsel that other paragraphs which laid down the principles were not considered by the court below. The principle of law enumerated by the learned single Judge in paragraph 13 reads as follows: _“13. It is thus clear that if the property exclusively belonged to a Mohammedan minor and the same had been alienated by a person who was not his legal guardian, the said transaction would be void and applying Art. 65 of the Limitation Act and in the light of Ss. 6 and 8 of the Act the suit had to be instituted by the quondam minor within three years_ 9 FAO (RO) No.101 of 2015 _of his attaining majority or within 12 years of the transaction itself. The question is whether this would be the position in a case where the Mohammedan minor was only a co-owner of the property at the time of the impugned alienation. Law prefers to trace possession of any person to its lawful origin rather than considering it wrongful in the eye of law. Though in Joseph v. John (1959 KLT 630), later affirmed by a Division Bench in appeal, the learned Single Judge held that the possession of the alienee from a co-owner would become adverse from the moment the alienee enters possession of the property, a later Division Bench in Ramachandran Nair v. Gouri Pillai (1975 KLT 269) took the view that the possession of the alienee from a co-owner could_ _be traced to possession in his capacity as a coowner and it could be considered that the alienee had stepped into the shoes of the alienating coowner and consequently, unless after such alienation, a case of ouster is pleaded and proved, the rights of the non-alienating co-owner cannot be_ 10 FAO (RO) No.101 of 2015 _held to be barred. It is also clear from the decision of the Supreme Court in Laxmi Reddy v. Laxmi Reddy (AIR 1957 SC 314), that in the case of co-owners, possession becomes adverse only on ouster being established and this could be established by bringing home to the knowledge of the co-owner the fact that the person in possession was holding the property as his own and adverse to the other and not by mere proof of long or exclusive possession. Here the possession of Moosa Haji on the basis of Ext. A2 could be traced to a lawful origin, namely, an assignment from the Mohammedan co-owners wo were competent to convey their shares. Thus, the possession of Moosa Haji is traceable to a lawful origin, namely, the assignment of their shares by the other co-owners of the property. If that possession be accepted, the right of the plaintiff can be held to be barred only if the first defendant specifically pleads and proves ouster as known to law. It is clear that though a plea of adverse possession has been vaguely raised in paragraph 26 of the written_ 11 FAO (RO) No.101 of 2015 _statement, the first defendant had failed in this case to establish a case of ouster of the plaintiff, one of_ _the co-owners whose title has not come to him."_ 20. Learned Single Judge further considered the issue and found the principle in **Mohd. Amin** 's case that if a settlement deed is void, it could not be void only qua the minor, but could be void altogether cannot be accepted under all circumstances. I respectfully agree with the view. Vast distinction is there between a sale deed and a settlement deed. Though a settlement deed cannot stand or fall in part, a sale deed can be valid in respect of one portion and invalid in respect of the other portion. If that view is taken, the question of ouster may also assume importance. On going through the judgment of the trial court, I find that there are enough evidence adduced by the parties to show the elements of ouster, adverse possession and limitation. Only on the reason that a minor's right to file a suit as provided under Sections 6 and 8 of the Limitation Act was lost, the suit was dismissed without exploring the question of ouster, adverse possession and limitation. In the light of the facts and circumstances and availability of evidence in the records, I find that a remand of the case is an unnecessary exercise. Lower appellate court itself will have to consider the entire matter and decide the case on merit. In the result, the appeal is allowed, The order of remand is set FAO (RO) No.101 of 2015 12 aside. Lower appellate court shall dispose of the appeal on merits considering the question of ouster, adverse possession and limitation with a special thrust to Sections 6 and 8 of the Limitation Act. Parties shall appear before the court below on 03.09.2018. All pending interlocutory applications will stand closed. **A.HARIPRASAD, JUDGE.** **cks**