Harees Vijayakumar v. Ajayamohanakumar and others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE P.SOMARAJAN** **THURSDAY, THE 06TH DAY OF JUNE 2019 / 16TH JYAISHTA, 1941** **SA.No. 896 of 2001** **AGAINST THE JUDGMENT AND DECREE IN AS 101/1996 of SUB COURT,NEYYATTINKARA** **AGAINST THE JUDGMENT AND DECREE IN OS 697/1994 of PRINCIPAL MUNSIFF COURT ,NEYYATTINKARA** ## **APPELLANT/APPELLANT: - (APPELLANT/PLAINTIFF):** **HAREES VIJAYAKUMAR S/O.HARIS, PARANATHUKARI VEEDU, MARUTHATHOOR DESOM, NEYYATTINKARA PAKUTHY.** ## **BY ADV. SRI.G.S.REGHUNATH** ## **RESPONDENT; - (RESPONDENTS/DEFENDANTS):** - **1 HAREES AJAYAMOHANAKUMAR THANNIKKAVILA KARIPARATHALA VEEDU, MARUTHATHOOR DESOM, NEYYATTINKARA.** - **2 RAMACHANDRAN SUKUMARAN, T.C.27/969, SMRITHI, VANCHIYOOR, THIRUVANANTHAPURAM.** - **3 KUTTAN NADAR THANKARAJAN, KUNNUMPURATHU VEEDU, KRISHNAPURAM, KADAVATTARAM DESOM, NEYYATTINKARA VILLAGE.** - **4 KUNJAMMA BABY, OF .DO. .DO. R1 BY ADVS. SMT.LIGEY ANTONY SRI.D.SAJEEV SRI.L.MOHANAN R2 BY ADV. SRI.S.MUHAMMED HANEEFF** **THIS SECOND APPEAL HAVING BEEN FINALLY HEARD ON 06.06.2019, ALONG WITH SA.35/2002, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** SA.Nos. 896/2001 & 35/2002 2 ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT** **THE HONOURABLE MR. JUSTICE P.SOMARAJAN** **THURSDAY, THE 06TH DAY OF JUNE 2019 / 16TH JYAISHTA, 1941** **SA.No. 35 of 2002** **AGAINST THE JUDGMENT AND DECREE IN AS 99/1996 of SUB COURT,NEYYATTINKARA** **AGAINST THE JUDGMENT AND DECREE IN OS 697/1994 of PRINCIPAL MUNSIFF COURT ,NEYYATTINKARA** **- APPELLANT/APPELLANT ; 1ST DEFENDANT:** **AJAYAMOHANAKUMAR, S/O. HARIS, PARANATHUKARI VEEDU, RAMESWARAM WARD,, MARUTHATHOOR, NEYYATTINKARA VILLAGE.** **BY ADV. SRI.L.MOHANAN** - - **RESPONDENTS/RESPONDENTS; PLAINTIFF AND DEFENDANTS 2 TO 4: 1 VIJAYAKUMAR, S/O. HARIS PARANATHUKARI VEEDU, RAMAESWARAM WARD,, MARUTHATHOOR DESOM, NEYYATTINKARA VILLAGE.** - **2 SUKUMARAN, S/O. RAMACHANDRAN, 'SMRITHI' T.C.27/069, OPPOSITE OF COLLECTORATE,, VANCHIYOOR, THIRUVANANTHAPURAM.** - **3 THANKARAJAN, S/O. KUTTAN NADAR KUNNUMPURATHU VEEDU, KRISHNAPURAM WARD,, KADAVATTARAM DESOM, NEYYATINKARA VILLAGE.** - **4 BABY, D/O. KUNJAMMA OF DO. DO.** **R1 BY ADV. SRI.G.S.REGHUNATH** **THIS SECOND APPEAL HAVING BEEN FINALLY HEARD ON 06.06.2019, ALONG WITH SA.896/2001, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** SA.Nos. 896/2001 & 35/2002 3 ## **JUDGMENT** These two appeals were preferred respectively by the plaintiff and the 1[st] defendant in a suit for partition wherein both the Trial Court and the First Appellate Court concurrently found that the property is partiable and that the plaintiff is entitled to 1/4[th] share over plaint B schedule property, excluding the special right over the building which was found to be owned by the 1[st] defendant. 2. The facts of the case is as follows:- A large extent of 36 cents of property originally owned and possessed by the vendor of Ext.A1, over which 3/4[th] share, which comes to 27 cents, was given to Anose and Chellayyan in the year 1119 (ME) under the said document. Both the plaintiff and the 1[st] defendant claiming ½ share over the 3/4[th] share, under Anose, the person who have obtained ½ share over the ¾[th] share covered under Ext.A1 document. Anose died unmarried and issueless in the year 1952, i.e, on 18.06.1952, after leaving his mother Maria, brother of Haris and sister Nahomi. Subsequently, the mother died intestate, leaving her children Haris and Nahomi as her legal heirs. As such, each are entitled to ½ share over the estate left out by SA.Nos. 896/2001 & 35/2002 4 her mother. It is the case of the plaintiff that the mother was having 1/3[rd] right over the estate left out by her son Anose who died intestate unmarried and issueless, besides the 1/3[rd] right, devolved upon his brother, Haris and his sister Nahomi. Haris executed Ext.B18 sale deed dated 06.07.1994 in favour of his son, the 1[st] defendant. Just after the said sale deed, the daughter of Nahomi, one Kunjamma executed Ext.A2 sale deed in the year 1994 (24.08.1994) in favour of the plaintiff. Based on which the plaintiff claims 1/4[th] right over the property. 3. The 1[st] defendant, on the other hand, in the written statement, denied and disputed the claim of the plaintiff under Ext.A2 stating that Nahomi is not at all the sister of deceased Anose. As such, she has no right, title or interest over the property and execution of Ext.A2 sale deed by her daughter in favour of the plaintiff is without any competency or interest over the property. It is also pleaded that, originally, there was only a thatched house with mud walls over the property. The brother of Anose, Haris constructed a terrus (RCC) building by utilising his own funds. SA.Nos. 896/2001 & 35/2002 5 4. Both the Trial Court and the First Appellate Court found that the property is partiable and there is no merits in the contention that Nahomi is not the sister of Anose. It is also found by the Courts below that the building was constructed by Haris, the brother of Anose, by utilising his own funds. As such, he is entitled to special right over the building. Accordingly, a preliminary decree was passed which is under challenge in these appeals respectively by the plaintiff and the 1[st] defendant 5. The plaintiff disputes special right granted under the concurrent decree and judgment by both the Courts below in his appeal and the defendant disputes the very factum of ownership over the property with the plaintiff and the finding that the property is partiable and the plaintiff is entitled to fractional interest over the property. The claim of adverse possession and limitation claimed by the defendant also found against. 6. The following questions were taken up for consideration at the time of admission of this appeal in S.A. No.896/2001:- _(1) When a building is constructed in a co-ownership property, should it not be presumed under law that it is_ SA.Nos. 896/2001 & 35/2002 6 _jointly constructed by both co-owners and the building is a co-ownership property?_ _(2) If the building is constructed in the ownership property, is not the co-owner entitled to partition of his share in the building?_ _(3) If the court finds that the other co-owner has not perfected title by adverse possession and limitation over the share of other co-owner, can the court deny relief regarding any portion of the co-ownership property?_ 7. The following two questions were raised at the time of admission of S.A. No.35/2002:- _(1) Is it not illegal to rely on the evidence of strangers to form an opinion as to the relationship of a person to another than relying on the evidence of member of family?_ _(2) When the court found that there is no direct evidence to prove the relationship as alleged by the plaintiff entitling the claim, is it not bound to dismiss the suit?_ 8. There is concurrent finding to the factual issue as to the status of the deceased sister of Anose , Nahomi by the Courts below. Ext.A2 document also supports her status as the sister of deceased Anose. Nothing was brought to the notice of this court, showing perversity to the finding SA.Nos. 896/2001 & 35/2002 7 rendered by the Trial Court or the First Appellate Court regarding the status of Nahomi. The execution of a sale deed in the year 1994 obtained by one of the son of Haris would certainly speaks volume, especially the first defendant is another son of the very same person, Haris. As such, unless there is perversity regarding the appreciation of factual issues involved in the case, it is not advisable or permissible to have interference by way of a Second Appeal. 9. If it was found that Nahomi was also a sister of the deceased Anose, there may not be a quarrel or dispute with respect to the estate entitled by the parties to the suit. Both the plaintiff and the 1[st] defendant claims their right, title and interest over the property under Anose who was having only ½ right over the 3/4[th] right of a large extent of 36 cents of property. The mother died intestate leaving her two children Haris and Nahomi, who are entitled to equal share over her estate, thereby the share entitled by Nahomi would comes to 3/16 equivalent to 1/4[th] share. That was actually granted by the Trial Court, upheld by the First Appellate Court by passing a preliminary decree and no interference is required on this finding. SA.Nos. 896/2001 & 35/2002 8 10. Regarding the special right, it was submitted by the learned counsel for the appellant in S.A. No.896/2001 that, special right was granted merely on a finding based on an alleged admission made by the plaintiff. But, in fact, there is no such admission made by the plaintiff either in the plaint or at the time of his examination as a witness to the case. On the other hand, the learned counsel for the respondent who is the appellant in the other appeal brought to the notice of this court Exts.B1 to B17. Ext.B1 is the payment receipts for the construction of a RCC building over the property wherein the name of Haris alone was mentioned and he had paid an amount of Rs.28.50 (Twenty eight rupees and fifty paise only) as the statutory fees to be remitted for getting permission for construction of a building. That itself _prima facie_ shows that he had applied for getting permission to construct an RCC building over the property in his own name and he had remitted the required licence fee. Ext.B2 further supports the case advanced by the 1[st] defendant that he had applied for getting extension of the period granted for construction of the building by remitting the required fees in his own name. Of course, it was brought to the notice of this SA.Nos. 896/2001 & 35/2002 9 court that 1[st] defendant as DW1 had admitted that all these were done by him in his capacity as a co-owner of the property. That is, he had remitted all the required fees under Exts.B1 to B17, in his capacity as a co-owner of the property. But that does not mean that he had constructed the building along with the co-owner sister, Nahomi, though the construction was in the status of a co-owner over the property. 11. The learned counsel for the appellant in S.A.No.896/2001 relied on three decisions of the Kerala High Court rendered in **Santhosh Kumar v. Baby and Others** (2007 (2) KLT 728=2007 KHC 3479); **Kassinkunju V. Velayudhan Pillai** (1972 KLT 861=1972 KHC 190); and also relied on **Mammathu and others V. Kathijumma Umma and others** (AIR 1965 Ker. 507) so as to advance an argument that there cannot be a special right over the property regarding any improvements or construction over it, unless the same was consented to by writing. I am not in a position to accept the contention raised by the learned counsel, simply because of the reason that the legal position was very much settled that when there is improvement with SA.Nos. 896/2001 & 35/2002 10 consent either express or implied, the party is entitled to special right over the same, especially when there is a construction of a residential house in the co-ownership property intended for the use of the person who had constructed it and when there is express consent or implied consent, he is entitled to special right over the property. Ofcourse, the decision rendered in **Santhosh Kumar's** (supra) case , this court has taken the view that there should be express consent otherwise there cannot be a special right over the property by relying on the decision rendered in **Kassinkunju's case** (supra). But the legal position settled in Kassinkunju's case (supra) is based on the improvement effected without consent. The consent may be either express or implied. That is well recognised by the provision of the Indian Contract Act,1872. There is no provision differentiating the consent either as express or implied. Both are standing on the same foot. So, there cannot be a mandate that the consent should be express and should be in writing. Even if it is assumed that there should be an express consent, it may not be mandate that it should be in writing, it can be by way of oral consent or by way of any SA.Nos. 896/2001 & 35/2002 11 definite action in that behalf. So the argument advanced by the learned counsel that there should be a written consent, cannot be sustained. 12. Yet another argument advanced by the learned counsel for the appellant, Sri.G.S.Raghunath in A.S.No.896/2001 that, since the plaintiff is residing along with the defendant in the residential house constructed by the defendant, she should be given an equity over the house. I am at a loss to understand under what provision such a claim was raised. He was residing in the building only being the son of one of the co-owner who was successfully acquired the co-ownership of the property from the sharers under a documentation. At the most, his residence can only be termed as residence of a co-owner over the building situated therein. At this juncture, it is worthful to consider Sec.44 of the Transfer of Property Act and Section 4 of the Partition Act wherein the right of residents of a dwelling house recognised only with respect to the dwelling house of undivided family, prior to the commencement of Joint Hindu Family (Abolition) Act, 1976. SA.Nos. 896/2001 & 35/2002 12 13. Both the appeals filed by the respective parties are liable to be dismissed, but without costs. Both the appeals are dismissed. No costs. **Sd/-** ajt **P.SOMARAJAN JUDGE**