Imbichekku and others v. Veerankutty and others

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE THOMAS P.JOSEPH MONDAY, THE 9TH DAY OF JULY 2012/18TH ASHADHA 1934 SA.No. 616 of 1997 (F) ---------------------AS.111/1986 of II ADDL.SUB COURT,KOZHIKODE OS.344/1981 of II ADDL.MUNSIFF COURT,KOZHIKODE APPELLANT(S)/RESPONDENTS/PLAINTIFFS: ------------ - (*)1. IMBICHEKKU, S/O.APPU @ KORU, AGED 53 YEARS, ARIYIL KOZHAKKAT HOUSE, OLAVANNA AMSOM, -DO- DESOM, KOZHIKODE TALUK. (DIED. LRS. IMPLEADED & RECORDED) 2. CHANDRAN, S/O.S/O.APPU @ KORU, AGED 50 YEARS, ARIYIL KOZHAKKAT HOUSE, OLAVANNA AMSOM, -DO- DESOM, KOZHIKODE TALUK. 3. YESODA, D/O.APPU @ KORU, AGED 46 YEARS, ARIYIL KOZHAKKAT HOUSE, OLAVANNA AMSOM, -DO- DESOM, KOZHIKODE TALUK. ADDL.A4. PRAKASAN, AGED 41, S/O.IMBICHEKKU, ARIYIL KOZHAKKATU HOUSE, OLAVANNA AMSOM, KOZHIKODE TALUK, KOZHIKODE DISTRICT. ADDL.A5. MEERA, AGED 37, D/O.IMBICHEKKU, -DO- -DOADDL.A6. DEEPA, AGED 34, S/O.IMBICHEKKU, -DO- -DO- (*)ADDL.A4 TO A6 ARE IMPLEADED AND THE 3RD APPELLANT (WIFE OF THE DECEASED) IS RECORDED AS THE LRS. OF THE 1ST APPELLANT VIDE TYPED ORDER DATED 4.10.2010 ION IA NO.2471/2010. BY ADVS.SRI.A.BALASUBRAMANIAN SMT.H.SUBHALEKSHMI- ADDL.A4 TO 6 SRI.S.SREEDEV-ADDL.A4 TO A6 RESPONDENT(S)/APPELLANTS/DEFENDANTS: -------------- 1. VEERANKUTTY (DIED), S/O.SEETHI, CHERAYAKKAT HOUSE, OLAVANNA AMSOM, -DO- DESOM, KOZHIKODE TALUK. - (*)2. IMBICHI BEEVI, W/O.VEERANKUTTY, AGED 79 YEARS, OLAVANNA AMSOM, -DO- DESOM, KOZHIKODE TALUK. (DIED) 3. C.SEETHI, S/O.VEERANKUTTY, AGED 59 YEARS, OLAVANNA AMSOM, -DO- DESOM, KOZHIKODE TALUK. SA NO.616/1997 2 4. MUHAMMAD ALI, S/O.VEERANKUTTY, AGED 53 YEARS, OLAVANNA AMSOM, -DO- DESOM, KOZHIKODE TALUK. 5. HAMEED, S/O.VEERANKUTTY, AGED 39 YEARS, OLAVANNA AMSOM, -DO- DESOM, KOZHIKODE TALUK. 6. P.P.AMINAKUTTY, D/O.VEERANKUTTY, OLAVANNA AMSOM, -DO- DESOM, KOZHIKODE TALUK. 7. ALINA, D/O.VEERANKUTTY, AGED 41 YEARS, OLAVANNA AMSOM, -DO- DESOM, KOZHIKODE TALUK. (*)THE SUBMISSION MADE BY THE LEARNED COUNSEL FOR RESPONDENTS THAT THE LRS. OF DECEASED R2 ARE ALREADY ON THE PARTY ARRAY AND IT IS UNNECESSARY TO IMPLEAD THEM, IS RECORDED VIDE ORDER DATED 28.02.2012. BY ADV. SRI.O.RAMACHANDRAN NAMBIAR - R2 TO R7 BY ADV. SMT.K.P.SANTHI - R2 TO R7 THIS SECOND APPEAL HAVING BEEN FINALLY HEARD ON 09-07-2012, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## **THOMAS P. JOSEPH, J.** **-------------------------------------S.A. No.616 of 1997 -------------------------------------Dated this the 9[th] day of July, 2012.** ## **JUDGMENT** The second appeal is brought from the judgment and decree of learned II Additional Sub Judge, Kozhikode in A.S.No.111 of 1986 reversing the decree for redemption granted by the learned II Additional Munsiff, Kozhikode in O.S.No.344 of 1981. 2. Appellants sought redemption of mortgage over the suit property, 1.49 acres in R.S.No.236/4. They claimed that the said property belonged to their parents, Appu @ Koru and Choyichi and while so, the parents executed Ext.A1, mortgage deed dated 13.08.1943 in favour of the original 1[st] defendant (who died pending the suit). 3. Respondents resisted the suit on various grounds including that the mother of appellants had no right over the property, that whatever right their father, the late Appu @ Koru had in the suit property was assigned in favour of Kalur Krishnan and hence the said Appu had no subsisting right on his death to be inherited by the appellants. Appellants therefore, have no right to seek redemption. 4. Trial court found against the said contentions and granted a decree in favour of the appellants. Trial court was of the view that there was nothing on record to show that the assignment made by Appu @ Koru in favour of Kalur Krishnan was of the suit property. 2 SA No.616/1997 5. Appellants challenged that judgment and decree before the learned Additional Sub Judge. Learned Additional Sub Judge held that Choyichi, the mother of appellants had no right in the suit property. A further finding the first appellate court entered is that since Choyi, father-in-law of Appu died in the year, 1933, no right was acquired by the females of that tarwad and hence also, Choyichi had no right in the property. Whatever the right their father Appu @ Koru had, was assigned to Kalur Krishnan as per Ext.B2 and hence Appu @ Koru had no right over the property at the time of his death to be inherited by the appellants. So holding, the judgment and decree of the trial court were reversed and the suit was dismissed. Hence the Second Appeal. 6. Following substantial questions of law are framed for a decision: i. Has not the lower appellate court misconstrued Exts.A1, A4, B1 and B4? ii. Has not the court below wrongly placed burden of proof on the appellants? iii. Whether the reasonings and findings of the court below for setting aside the judgment and decree of the learned Munsiff, are justifiable? iv. Was not the original defendant estopped from raising contentions against Ext.A1, mortgage deed, after having admitted in the written statement the genuineness of the same? v. Has not the court below erred in properly appreciating the oral and documentary evidence adduced in the case by the plaintiffs/appellants? vi. Did not the mother (late Choyichi) of the plaintiffs have right 3 SA No.616/1997 and title in respect of the plaint-schedule property since she died in the year, 1933, as observed in paragraph 6 of its judgment? vii. Is the finding of the court below, “so, even if any right is given as per Ext.A4, as per the provisions of law they cannot claim any right in the property”, is legal and justifiable? 7. Learned counsel for the appellants/plaintiffs contended that the findings entered by the courts below are erroneous. It is contended that the finding that Choyichi had no right over the property is not correct. Learned counsel has invited my attention to the description in the schedule to Ext.A4, partition deed to contend that the acquisition was made by Choyichi and others and hence, the said right devolved to the daughters of Choyichi, as well. It is further contended by the learned counsel that what is assigned to Kalur Krishnan as per Ext.B2 is only around 4 or 4 ½ cents of land (1 x 49 koles by six feet koles) in R.S.No.236/4 and hence at any rate, appellants being the legal heirs of the late Appu @ Koru are entitled to seek redemption of the rest of the suit property. 8. Learned counsel for the respondents contends that since Choyi died prior to 1933, the females of his family who followed the Mithakshara law of succession acquired no right over the property. It is also contended that even if it is assumed that the females had any right, by Ex.A4, partition no right was conferred on the females except that the daughters were given `125/- each charged over the property. That would not confer any right over the property. A further argument the learned counsel has advanced is that as the females had 4 SA No.616/1997 no pre-existing right, no right could be conferred on them by Ext.A4, partition deed. It is pointed out that a 'partition' is not a 'transfer' and it is only an adjustment of rights between persons having antecedent title. Reliance is placed on the decision in **Neelakantan Damodaran Namboori and another v. Velayudhan Pillai Narayana Pillai and another (AIR 1958 SC 832)** . The learned counsel has argued that merely because in Ext.A1, mortgage deed, Choyichi also has joined, it would not confer any right on her. Reliance is placed on the decision in **Sarojini v. Santha Trading Co. & others (1969 KLT 412)** . 9. Referring to the contention that at any rate, what is assigned to Kalur Krishnan by Appu @ Koru is only the land measuring 1x 49 koles by six feet koles, it is contended that the said argument is advanced by the appellants from a wrong description in Ext.B2. Learned counsel pointed out that in R.S.No.236/4 as revealed by Ext.B5, adangal receipt, the total extent of land available is only 1.49 acres which is covered by Ext.B1, preliminary decree and Ext.A5 and hence it is idle to contend that the assignment in favour of Kalur Krishnan is only 1x 49 koles by six feet koles. 10. Ext.B1 is the copy of preliminary decree in the suit filed by the members of the family of appellants. There was a partition in the family on 20.12.1933. Appu @ Koru obtained right over the suit property from the sharers of that partition. Choyi, the father-in-law of Appu who acquired the property died in the year, 1933. So, parties admittedly followed the mitakshara law of succession. So, the female members of the family acquired no right over the 5 SA No.616/1997 property. 11. Ext.A4, partition deed also shows that in that partition no share was allotted to Choyichi or her daughters. Shares were allotted to the sons of Choyi. The daughters were given a right to receive `125/- with a charge over the property. In the circumstances the contention that Choyichi or her daughters had acquired right in the property cannot be accepted. 12. If Choyichi or her daughters had no pre-existing right in the property, merely because of any recital in Ext.A4 or because Choyichi was also a party to Ext.A1, no right over the property could be conferred on them. 13. Then the next question is whether Appu @ Koru had any subsisting right in the suit property at the time of his death so that as his legal heirs appellants could seek redemption of the mortgage? The evidence on record would show that the tenancy right over the property was acquired by the late Appu @ Koru as per Ext.A5. By Ext.A4, partition deed, the suit property was allotted to the share of Unnirikutty and Maman (sons of Choyi) as B schedule therein. The said Unnirikutty and Maman represented by their mother as guardian assigned the tenancy right they had over the property to the late Appu @ Koru as per Ext.A5. Thus, Exts.A4 and A5 show that the tenancy right Unnirikutty and Maman had, was acquired by the late Appu @ Koru. 6 SA No.616/1997 14. The jenm right of the late Appu over the property was sold in auction as revealed by Ext.B2. Ext.B2 shows that the jenm right, kanam right and other rights were assigned to Kalur Krishnan. 15. In Ext.B1, preliminary decree, item No.6 is the suit property. The property is described as Vadakkoth Parambu in R.S.No.236/4 (old survey No.156/2). In Ext.B1, the east-west measurement of the property is stated as '1', while the north-south measurement is stated as '49', according to the learned counsel for appellants. But, it is seen from Ext.B1 that the east-west measurement (in six feet koles) is given only for item Nos.1 to 4 and item No.7 onwards. For item Nos.5 and 6, the measurement is given in acre - cents. Therefore, contention of the learned counsel for the appellants that item No.6 of Ext.B1 is only 4 or 4 ½ cents (1x 49 koles by six feet koles) cannot be accepted. Extent of item No.6 in Ext.B1 (the suit property) is 1.49 acres. 16. True that in Ext.B2, assignment deed executed by the late Appu @ Koru in favour of Kalur Krishnan, the extent of property in R.S.No.236/4 is mentioned as 1 x 49 koles by six feet koles. It is relevant to note that the late Appu had title as per Ext.B1, preliminary decree as well and obliges Kalur Krishnan to get impleaded in the final decree proceedings (pursuant to Ext.B1, preliminary decree). Ext.B3 is the application for final decree preferred by Kalur Krishnan (obviously pursuant to Ext.B2). There, in page 8, the measurement of the property is given as 1 x 49 koles by six feet koles (as stated in Ext.B2). 7 SA No.616/1997 Ext.B4 is the delivery note pursuant to the final decree passed in the suit on the application preferred by Kalur Krishnan. It is seen from Ext.B4 that though, at first measurement of the property is given as east-west and north-south, further down the measurement is given in acre/cent and the extent of property in R.S.No.236/4 is stated as 1 acre, 49 cents. Thus it is clear that what was delivered as per Ext.B4 to Kalur Krishnan was 1.49 acres referred to in Ext.B1, preliminary decree. 17. I must also notice the boundary descriptions in Exts.B1, B2, B4 and A5. The same boundary descriptions are given in Ext.A5 and the extent of property is given as 55 x 34 for six feet koles (ie., 1.49 acres) in R.S.No.236/4. It is seen from Ext.B5, adangal extract that the total extent of property available in R.S.No.236/4 is 1.49 acres. In otherwords, by the description of the extent and boundaries in Exts.B1, B2, B4 and A5 it is clear that Kalur Krishnan got absolute right over the entire 1.49 acres in R.S.No.236/4. If that be so, the measurement given in Ext.B2 as east-west - 1 kole and north-south - 49 koles can only be understood as a mistake. A further fact I must notice is that in Ext.B2, there is no mention that Appu @ Koru, the vendor had retained the rest of property. The boundary descriptions do not say that any property was retained by Appu @ Koru in R.S.No.236/4. In these circumstances the only inference possible is that the entire extent within the boundaries mentioned in Ext.B2 was assigned to Kalur Krishnan. 8 SA No.616/1997 18. It follows that at the time of death of Appu @ Koru he had no subsisting right either by way of jenm or tenancy over the suit property so that the appellants could seek redemption of the mortgage. 19. Though the learned counsel for the respondents has raised a contention that the suit for redemption is barred by limitation, it is seen that the first appellate court has not adverted to that question for the reason that on other points claim of the appellants was found against. In the light of my above finding it is not necessary to go into that contention of the learned counsel for respondents. 20. The substantial questions of law are answered accordingly. Resultantly the Second Appeal fails. It is accordingly dismissed. No cost. All pending interlocutory applications will stand dismissed. **THOMAS P.JOSEPH, Judge.** **cks** 9 SA No.616/1997 ## **THOMAS P.JOSEPH, J.** **S.A.No.616 of 1997** ## **JUDGMENT** **9[th] July, 2012**