Govindan and Others v. Sarojini

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE S.S.SATHEESACHANDRAN MONDAY, THE 28TH DAY OF JANUARY 2013/8TH MAGHA 1934 SA.No. 20 of 2002 ( ) --------------------- - {IN AS.15/1998 OF THE ADDITIONAL DISTRICT COURT, PARAVUR IN OS.310/1994 OF THE MUNSIFF'S COURT, PARAVUR} APPELLANT(S): - ------------- 1. GOVINDAN, AGED 50, S/O.SRI.KRISHNAN, DEVASWAMPARAMBIL THEVARKAD, VARAPUZHA P.O. ERNAKULAM DISTRICT. 2. KESAVAN, AGED 48,S/O.SRI.KRISHNAN, DEVASWAMPARAMBIL,THEVARKAD, VARAPUZHA P.O. ERNAKULAM DISTRICT. 3. KAMALAM, AGED 54, W/O. SRI.RAJAN, VETTIPARAMBIL,PACHALAM,OCHI-12. 4. SULOCHANA, AGED 39, W/O.SRI.VELAYUDHAN, PLASUMPARAMBIL, KOTTUVALLY PAKUTHY, THATHAPILLY P.O 5. RAMAYI, AGED 74 W/O. SRI.KRISHNAN, DEVASWAMPARAMBIL,THEVARAKAD, VARAPUZHA P.O. ERNAKULAM DISTRICT. 6. YESODA, AGED 43, W/O. SRI.KESAVAN, DEVASWAMPARAMBIL,VARAPUZHA P.O., ERNAKULAM DISTRICT. BY ADV. SRI.T.K.RADHAKRISHNAN RESPONDENT(S): - --------------- SMT.SAROJINI, AGED 46, W/O.SRI.CHANDU, VADAKKEKARAN, THEVARKAD, VARAPUZHA P.O., ERNAKULAM DISTRICT. - BY ADV. SRI.JOHNSON ABRAHAM & SRI.VINCENT CHIRAYATH THIS SECOND APPEAL HAVING BEEN FINALLY HEARD ON 18-01-2013, THE COURT ON 28-01-2013 DELIVERED THE FOLLOWING: ## **S.S.SATHEESACHANDRAN, J.** ## **------------------------------S.A.NO.20 OF 2002 ----------------------------------Dated this the 28[th] day of January, 2013** ## **J U D G M E N T** The defendants in a Suit for Partition are the appellants. Concurrent decision rendered by the two courts below, by which, the preliminary decree and judgment passed by the learned Munsiff, Paravur holding that the suit property is partible and the respondent/plaintiff is entitled to[1] /6th share in the plaint property was affirmed by the lower appellate court dismissing the appeal preferred by the defendants, is challenged in the second appeal. Previously, the above appeal after being heard was disposed by this Court by judgment dated 22.06.2010 modifying the preliminary decree granted in favour of the plaintiff holding that the plaintiff is entitled to only[1] /6th share out of[1] /4th share in the plaint property. That judgment was assailed by the plaintiff filing an appeal with special leave petition before the Apex Court. Noticing that the appeal had been disposed without framing any substantial question of law, which is the **S.A.No.20/2002** **2** mandate for entertaining a second appeal under Section 100 (1) of the Code of Civil Procedure, for short, the 'Code' - setting aside the judgment, the Apex Court has remitted the case to this Court for fresh disposal to examine whether any substantial question of law is involved in the appeal for consideration, and if so, to frame such substantial question of law and hear the appeal. 2. After hearing the counsel on both sides and perusing the judgments rendered by the court, the substantial questions of law emerging for consideration in the appeal have been formulated thus: (i) Whether the courts below were right in interpreting Ext.A1 Settlement Deed without reading the entire document as a whole? (ii) When conclusiveness is attached to the purchase certificate issued by the Land Tribunal under Section 72K of the Land Reforms Act, whether Courts below were justified in ignoring the exclusive rights of the persons in whose favour it was granted? **S.A.No.20/2002** **3** 3. Plaint property has an extent of 88 cents of land in survey No.343/17A of Varappuzha Village in Paravur Taluk. Plaintiff is the sister of defendants 1 to 4, and 5[th] defendant is their mother. 6[th] defendant is the wife of the 2[nd] defendant. Case of the plaintiff in brief is that the plaint property enjoyed by her grandfather as a lessee had been gifted in favour of her father Krishnan under Ext.A1 registered gift deed in 1965. One among the children of the aforesaid Krishnan, namely, Balakrishnan left the residence 30 years back and his whereabouts eversince are not known, and as such, he is presumed to be dead. Krishnan is no more. The jenmom right over the plaint schedule property belonged to a Devaswam and Krishnan who enjoyed leasehold right subsequently got assignment of jenmom right. After his death, the plaintiff and other legal heirs of Krishnan, defendants 1 to 5, are in joint possession and enjoyment of the property, was the case of the plaintiff to seek partition of the plaint property and allotment of 1/6th share in her favour separately. Defendants 1 to 5, who alone were initially made parties to the suit, filed a joint written statement resisting the suit claim on various grounds. The main **S.A.No.20/2002** **4** thrust of their contention was that Ext.A1 gift deed executed by Govindan, grandfather of plaintiff and defendants 1 to 4, in favour of Krishnan, stipulated that the gift should enure to the male issues of Krishnan. After the death of Krishnan, the father, there was a partition of the property and from the share allotted to the 2[nd] defendant, a portion had been sold to his wife by him and as such, she is a necessary party to the suit was another contention to resist the suit. After Krishnan's death, the Land Tribunal had issued patta in favour of Govindan and male children of Krishnan, and the plaintiff has no partible interest over the plaint property, according to these defendants. 4. The wife of 2[nd] defendant was brought in as additional 6[th] defendant in the suit. That additional 6[th] defendant after entering appearance did not file any written statement. Defendants 1 to 5 filed an additional written statement, in which, they set forth a new challenge diametrically opposite to what was canvassed in the previous written statement contending that Ext.A1 gift deed has never come into effect. That gift deed was registered by their grandfather in favour of Krishnan only to **S.A.No.20/2002** **5** secure a loan for construction of a house and Krishnan never came into possession of the property was their new case. Govindan continued to be in possession of the property and later he moved an application for assignment of the landlord's rights over the property with his son Krishnan, defendants 1 and 2 and their brother Balakrishnan. The Land Tribunal issued a purchase certificate and later by virtue of a partition deed executed by Govindan with defendants 1 and 2 they have inherited absolute right over the plaint property was their case resisting the suit claim. 5. Before the two courts below parties joined issues over the true import and effect of Ext.A1 gift deed. Contesting defendants (defendants 1 to 5) had raised diametrically opposite contentions over Ext.A1 gift deed setting forth a case in the first written statement that the gift was in favour of Krishnan and his male issues but later in the additional written statement canvassing a different case that such gift never same into effect and it was registered only to secure a loan. The trial court and also the lower appellate court, both of them, examining Ext.A1 **S.A.No.20/2002** **6** gift deed had concluded that the gift executed in favour of Krishnan by his father Govindan came into effect and the donee got assignment of all rights of the donor over the property. Stipulation made in that gift deed that for transfer of the property the sons of donee - grand children of the donor - should also be joined was found by both the courts below as a permanent restraint on transfer not enforcible under law, and, therefore, liable to be treated as of no value. Krishnan, father of plaintiff and defendants 1 to 4, and husband of 5[th] defendant, under Ext.A1 gift deed executed by his father got assignment of the leasehold rights enjoyed by the donor over the property and it was later assigned in favour of the tenants by the Land Tribunal, according to both courts. Plaintiff - one of the children of Krishnan - is entitled to get equal share over the property with the other children of Krishnan and his wife, the 5[th] defendant, was the conclusion formed by both courts to pass a preliminary decree allotting the plaintiff[1] /6th share in the suit property. 6. Though one among the substantial questions of law formulated, the first of them, related to the construction to be **S.A.No.20/2002** **7** placed over Ext.A1 gift deed on a reading of the document as a whole whether it enured in favour of Krishnan alone, or to him with his male children also, at the time of hearing, learned counsel for appellants did not canvass arguments on such question to assail the finding of the courts below that Ext.A1 gift deed enured in favour of Krishnan only. Ext.A1 gift deed never came into effect and the purchase certificate issued after the death of Krishnan in favour of Govindan, the grandfather and defendants 1 and 2, two male children of Krishnan, is conclusive and they alone got assignment of title of the landlord vested with the Government, is the argument canvassed by learned counsel for appellants. Learned counsel for plaintiff placing reliance on **Ramakke and Others v. Gopi and Others (2011 (3) KHC 491 (DB))** , contended that where no declaration has been sought that Ext.B3 purchase certificate issued on the basis of Ext.B2 order of Land Tribunal enured in favour of plaintiff also as a co-owner, persons in whose favour such purchase certificate were issued alone could be treated as having obtained title over the plaint property. Learned counsel for plaintiff also banked upon Section 72K (2) of the Kerala Land Reforms Act, for short, **S.A.No.20/2002** **8** the 'Act', to contend that Ext.B3 purchase certificate issued by the Land Tribunal is conclusive and final that those named in that certificate alone have title over the property, and as such, the claim of plaintiff for partition of the suit property as if the purchase certificate enured in her favour also as a co-owner is unsustainable. Preliminary decree and judgment passed by the two courts below allotting her[1] /6th share in the plaint property, in such circumstances, is wrong, and, at best, she is entitled to get only the share due to her as a legal heir of Krishnan alone, as inherited from Govindan, one of the assignees in Ext.B3 certificate with his other legal heirs, defendants 1 to 5, his other children and wife, according to the counsel. 7. Learned counsel for plaintiff on the other hand contended that the appeal does not involve any substantial questions of law and the decision based on concurrent finding of facts rendered by the two courts below is not liable to be disturbed in the second appeal. Reliance is placed on **Guddappa Rai & Others v. Narayana Rai & Another (1999 (2) KLJ 787) and Sir Chunilal V. Mehta and sons Ltd. v.** **S.A.No.20/2002** **9** ## **Century Spinning and Manufacturing Co. Ltd. (AIR 1962** **SC 1314)** to contend that challenges canvassed by appellants could not be treated as substantial question of law in a second appeal. The appellants have given up the substantial question of law formulated over the construction to be placed on Ext.A1 gift deed and have now rested their challenge only over the conclusiveness to be attached to Ext.B3 purchase certificate issued in favour of the persons named in the certificate alone, is also canvassed by the counsel to urge that no disturbance with the finding of facts concurrently rendered by the courts below that the plaintiff has partible right as a co-owner and she is entitled to the decree granted is called for. Second appeal is devoid of any merit and it is liable to be dismissed, is the submission of the counsel. 8. True, the appellants who have raised diametrically opposite contentions over Ext.A1 gift deed in their two written statements have not pressed into service the challenge based over the construction of that document, on which the first substantial question of law was formulated in the second appeal. **S.A.No.20/2002** **10** They have now confined their challenge, at the time of arguments, with respect to the conclusiveness to be attached to Ext.B3 purchase certificate under Section 72K (2) of the Act that the property assigned under the certificate belong only to the persons it was issued. In suo motu proceedings initiated by the Land Tribunal, Govindan, the original lessee, his son Krishnan, and three of his grandchildren, the 1[st] and 2[nd] defendants and Balakrishnan, alone were parties apart from the landlord. Pending the proceedings, Krishnan passed away, and the whereabouts of Balakrishnan were not known for considerable period. Ext.B3 purchase certificate issued in the proceedings in favour of Govindan and 1[st] and 2[nd] defendants, would confer on them alone title over the property, is the case of the defendants. What Krishnan, son of Govindan, would have inherited in succession alone could be claimed by plaintiff with other legal heirs of Krishnan, is the further case of the appellants/contesting defendants. Both the courts below have concluded that Ext.A1 gift deed was an outright gift to Krishnan and the restrictive term imposed on the donee over the transfer of the property gifted that it could be effected only with his male children is a **S.A.No.20/2002** **11** permanent restraint on transfer, and as such, not enforcible. When that be so, where the challenges canvassed over Ext.A1 gift deed by the appellants had been given a goby it follows that the finding concurrently made by the courts that the donee got whatever right enjoyed over the leasehold by the donor under the gift is unimpeachable. When the donee Krishnan had passed away his wife and children - his legal heirs - are entitled to succeed whatever right he had over the property in equal shares. In the suo motu proceedings taken by the Land Tribunal purchase certificate was issued only in the names of the legal heirs of Krishnan is the challenge raised to non-suit the plaintiff. 9. I do not find any merit in the submissions made by the counsel for plaintiff that question posed for consideration, formulated under substantial question of law No.(2), does not arise for consideration in the second appeal. In fact that question in the given facts of the case and more so, in view of the statutory prescription under Section 72K (2) of the Act does emerge for consideration in the appeal. The decision rendered in Sir Chunilal V. Mehta's case, cited supra clearly spells out that **S.A.No.20/2002** **12** where the question raised substantially affects rights of the parties and it remains an open question in the sense not settled, then it is a substantial question of law. Learned counsel for appellants have also raised a challenge that without seeking declaration of her status as a co-owner where a purchase certificate had been issued in the names of some other persons alone, who, according to her, are also co-owners of the property, she cannot seek partition of her share placing reliance of Ramakke's case, the decision rendered by the Division Bench of this Court. That challenge also has to be examined in the backdrop of the statutory presumption over the conclusiveness of title on the persons to whom purchase certificate is issued in deciding the second appeal. 10. There is no merit in the challenge that the plaintiff has to seek declaration of her title as a co-owner in the suit property to seek partition where her claim is based on Ext.A1 gift deed executed by Govindan in favour of her father Krishnan. Where validity of such gift has been upheld and it is no longer assailable, in the suo motu proceedings some of the legal heirs of **S.A.No.20/2002** **13** Krishnan with their grandfather Govindan alone were parties and purchase certificate was issued in their names does not in any way indicate that rights of the plaintiff as a co-owner of the property have been impaired by issue of such purchase certificate. Where the recipients of the purchase certificate are shown to be co-owners only and the suit being one for partition the claim of the plaintiff as a co-owner based on Ext.A1 gift deed cannot be resisted banking upon the statutory presumption under Section 72K (2) of the Act. The decision rendered by the Division Bench of this Court in **Ramakke's case,** cited supra, has no application to the facts of the case. In that case, who was the cultivating tenant of the property in respect of which purchase certificate was issued was also a disputed question. In the present case, Govindan was the lessee of the property and it was assigned in favour of his son Krishnan under Ext.A1 gift deed. By virtue of that gift deed Krishnan got rights of a lessee entitling him to be treated as a tenant on the advent of the Land Reforms Act to seek assignment of such property. His father and some of his children were also made parties when suo motu proceedings were initiated by the Land Tribunal for assignment **S.A.No.20/2002** **14** of the land does not affect his status as the cultivating tenant over the property by virtue of Ext.A1 gift deed. So much so, even if purchase certificate was issued, after his death, in favour of his father and some of his sons alone, that would not confer on them exclusive title and possession, but, only to claim such rights as legal heirs of Krishnan if they are so placed. When that be the position, challenge against the concurrent decision of the courts below by the appellants to impeach the preliminary decree passed allotting[1] /6th share to the plaint property recognising her as a co-owner of the property with defendants 1 to 5 other legal heirs of Krishnan, is unimpeachable. Substantial questions of law formulated in the appeal are found against the appellants. Appeal is dismissed directing both sides to suffer their respective costs. ## **Sd/S.S.SATHEESACHANDRAN JUDGE** prp //true copy// ## **S.S.SATHEESACHANDRAN, J.** **-------------------------------** **S.A.NO.20 OF 2002** **-----------------------------------** **J U D G M E N T** **28[th] day of January, 2013**