Khaderkutty v. Abdul Latheef and others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** **THE HONOURABLE MR. JUSTICE B.KEMAL PASHA** **FRIDAY, THE 6TH DAY OF JANUARY 2017/16TH POUSHA, 1938** **RSA.No. 586 of 2014 () -----------------------** **AS 27/2010 of SUB COURT, TIRUR DATED 15-03-2014** **OS 274/2005 of MUNSIFF COURT, TIRUR DATED 30-10-2009** **APPELLANT IN R.S.A./APPELLANT NO.2 IN AS /DEFENDANT NO.10 IN SUIT:** **------------------------------------------------------------** **KHADERKUTTY** **S/O.MOHAMED HAJI, AGED 58, RESIDING AT THALAKKAD AMSOM AND DESOM, P.O. B.P. ANGADI, TIRUR-676102.** **BY ADVS.SRI.S.V.BALAKRISHNA IYER (SR) SRI.P.B.KRISHNAN SRI.P.M.NEELAKANDAN SRI.P.B.SUBRAMANYAN SRI.SABU GEORGE** **RESPONDENTS IN R.S.A./RESPONDENTS 1 TO 10 AND APPELLANT NO.1 IN AS, PLAINTIFF AND DEFENDANTS 2 TO 9, 11 AND 1 IN SUIT.: ------------------------------------------------------------** **1. ABDUL LATHEEF, AGED 57 YEARS, S/O.HAMZA @ KOYAMU HAJI, PUTHUKAYIL PUTHIYA MALIYEKKAL HOUSE, THALAKKAD AMSOM DESOM, P.O. B.P.ANGADI, TIRUR-676102.** **2. BEEMAKUTTY, AGED 52 YEARS, D/O.ALIKUTTY HAJI, RESIDING AT THALAKKAD AMSOM DESOM, P.O. B.P.ANGADI, TIRUR-676102.** **3. NAZAR KHAN, AGED 52 YEARS, S/O.ALIKUTTY HAJI, RESIDING AT THALAKKAD AMSOM DESOM, P.O. B.P.ANGADI, TIRUR-676102.** ## **RSA.No. 586 of 2014 ()** ## **-----------------------** **4. AAZIYA, AGED 49 YEARS, D/O.ALIKUTTY HAJI, RESIDING AT THALAKKAD AMSOM DESOM, P.O. B.P.ANGADI, TIRUR-676102.** **5. SALIM, AGED 47 YEARS, S/O.ALIKUTTY HAJI, RESIDING AT THALAKKAD AMSOM DESOM, P.O. B.P.ANGADI, TIRUR-676102.** **6. AYISHAKUTTY, AGED 69 YEARS, W/O.ALIKUTTY HAJI, RESIDING AT THALAKKAD AMSOM DESOM, P.O. B.P.ANGADI, TIRUR-676102.** **7. BASHEER AHAMED, AGED 55 YEARS,** - **S/O.HAMZA @ KOYAMU HAJI, RESIDING AT THALAKKAD AMSOM DESOM, P.O. B.P.ANGADI, TIRUR-676102.** **8. MOHAMED @ IMBICHI, AGED 42 YEARS, S/O.HAMZA @ KOYAMU HAJI, RESIDING AT THALAKKAD AMSOM DESOM, P.O. B.P.ANGADI, TIRUR-676102.** **9. AYISHAKUTTY, AGED 69 YEARS, W/O.HAMZA @ KOYAMU HAJI, RESIDING AT THALAKKAD AMSOM DESOM, P.O. B.P.ANGADI, TIRUR-676102.** **10. PUTHUKAYIL PUTHIYAMALIYEKKAL KOYAKUTTY, S/O.MOHAMMED HAJI, AGED 41 YEARS, RESIDING AT THALAKKAD AMSOM DESOM, P.O. B.P.ANGADI, TIRUR-676102.** **11. PUTHUKAYIL MOHAMMED HAJI, AGED 84 YEARS, S/O.KHADERKUTTY, RESIDING AT THALAKKAD AMSOM DESOM, P.O. B.P.ANGADI, TIRUR-676102.** **R2,R5,R6 & R9 BY ADV. SRI.JAMSHEED HAFIZ** **THIS REGULAR SECOND APPEAL HAVING BEEN FINALLY HEARD ON 06-01-2017, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **DSV/9/1/17** ## B. KEMAL PASHA, J ## ================= R.S.A.No.586 of 2014 ================= Dated this the 6[th] day of January, 2017 ## J U D G M E N T The 10[th] defendant in O.S.No.274 of 2005 of the Munsiff’s Court, Tirur, in a suit for partition, has come up by challenging the preliminary judgment and decree passed by the trial court and also the preliminary judgment and decree passed by the Subordinate Judge’s Court, Tirur, in A.S.No.27 of 2010. The appeal was filed before the first appellate court by the defendants 1 and 10. The present second appeal has been preferred by the 10[th] defendant alone. 2. Late Mohamed @ Imbichi was the son of late Ishakutty Umma. Mohamed had one son named Khaderkutty and two daughters. Daughters of Mohamed predeceased him. The property in question R.S.A.No.586/2014 : 2 : known as Puthukayil Vadakkekandamparamba, which consisted of one house, well, cattle shed and three ponds, originally belonged to Mohamed, by virtue of Exhibit-A1 partition deed of the year 1947. On the death of Mohamed @ Imbichi, all the said properties devolved on his only son Puthukayil Khaderkutty. Puthukayil Khaderkutty executed Exhibit-B1 gift deed No.2677 of 1979 in respect of the properties, in favour of his grandson named Maliyekkal Khaderkutty. While executing Exhibit-B1, he had specifically exempted the house, well and pond in the property from the subject matter of the gift. At the same time, an extent of 1 Acre and 38 Cents of property was gifted to Maliyekkal Khaderkutty. No doubt, the said house, well and pond are also situated in the said landed property. 3. The aforesaid Maliyekkal Khaderkutty is none other than the son of Mohamed Haji, who is the elder R.S.A.No.586/2014 : 3 : son of late Puthukayil Khaderkutty. Subsequently, Maliyekkal Khaderkutty conveyed some of the said properties in favour of his father Mohamed Haji, who is the 1[st] defendant. Maliyekkal Khaderkutty, who is the 10[th] defendant, assigned 60 Cents of property to his brother 11[th] defendant. Therefore, the said property, which is the subject matter of Exhibit-B1, except the house, well and the pond, vested with the 1[st] defendant, 10[th] defendant and the 11[th] defendant. 4. The plaintiff is the son of Hamza @ Koyamu Haji, who is the third son of Puthukayil Khaderkutty. The plaintiff has claimed share over the house, well and pond, which were not conveyed by Puthukayil Khaderkutty through Exhibit-B1. Consequently, the said suit for partition was filed. 5. Defendants 1 and 10 filed a joint written statement and thereafter, the 11[th] defendant filed a separate written statement. In the written statement R.S.A.No.586/2014 : 4 : filed by defendants 1 and 10, they conceded that the house building and pond in the property are the only properties partible. It was further conceded that the pond in the property is situated in Survey No.143/12 and a portion of the said property was acquired by the Government. The balance extent of the said pond is only 6 Cents and the same is also partible. It has been further admitted that the house and well situated in Re-Survey No.143/7 is situated in 5 Cents of property and the same is also partible. Finally, defendants 1 and 10 have sought for a relief that in case of partition, those shares of other sharers should be allotted to the 1[st] defendant on payment of its value. 6. The 11[th] defendant filed a separate written statement, in which, he contended that apart from the building marked as H1 and the well marked as W1 in Exhibit-C2 plan, the other portions of the R.S.A.No.586/2014 : 5 : building marked as H2, H3 and also the well marked as W2 were constructed by him by spending his own money and therefore, apart from the said 5 Cents, wherein H1 building is situated, the other portions are not partible. 7. On the side of the plaintiff, Exhibit-A1 was marked. No oral evidence was adduced. On the side of the defendants, the 5[th] defendant was examined as DW1 and the 1[st] defendant was examined as DW2. Exhibits-B1 to B5 were marked. The commissioner’s report and plan were marked as Exhibits-C1 and C2. The trial court decreed the suit and passed preliminary judgment and decree, whereby granting the relief sought for. The same was taken up in appeal by defendants 1 and 10 and the appeal also failed. 8. Heard the learned Senior Counsel Sri.S.V.Balakrishna Iyer for the appellant and the R.S.A.No.586/2014 : 6 : learned counsel Adv.Sri.Jamsheed Hafiz for the respondents. 9. The present second appeal has been preferred by the 10[th] defendant alone. There is no challenge or dispute regarding the shares or number of shares and the division allotted by the trial court. At the same time, the serious contention advanced at present is that the said properties are not at all partible. It has to be noted that the 11[th] defendant had not even chosen to file the first appeal. He has not approached this court also. 10. The learned Senior Counsel has argued that through mere admission, one cannot confer the title of a property on any person and therefore, the judgments passed by the trial court as well as the lower appellate court based on the mere admissions in the written statements of defendants 1, 10 and 11 are not legally sustainable. It has been argued that R.S.A.No.586/2014 : 7 : the land, in which the said structures are situated, became the absolute property of the 10[th] defendant through the execution of Exhibit-B1 and, what was reserved was only the house, well and pond. 11. Per contra, the learned counsel for the plaintiff has argued that what has been admitted through written statements, is not the title; whereas the admission was confined to the right to have a partition of those properties. 12. In the written statements filed by defendants 1 and 10 as well as defendant 11, it has been clearly admitted that the building marked as H1 in Exhibit-C2 is situated in 5 Cents of land and the same is partible. They have never admitted that they have no title over the property or the plaintiff and the other defendants have any title over the said property. Similar is the case with the pond also. Their contention is limited to the fact that the R.S.A.No.586/2014 : 8 : available extent of property, wherein the pond is situated at present, is only 6 Cents and the same is partible. Apart form the same, the admission does not relate to the title over the property. 13. Over and above the written statements, in the affidavit in lieu of chief examination filed by DW2 also, it has been specifically admitted that the property, wherein the house, well and pond are situated, alone is partible. It has been further admitted in paragraph 3 of the affidavit that it is agreeable to defendants 1, 10 and 11 for having a partition of the said portions of the property. 14. Even though the 11[th] defendant contended in the written statement that the building marked as H2 and H3 in Exhibit-C2 plan was constructed by him by spending his own money, he has not cared to mount the Box and to adduce any oral evidence, in support of his claim. The 1[st] defendant alone was R.S.A.No.586/2014 : 9 : examined as DW2. Even the 1[st] defendant has no case that the said portions of the building were put up by the 11[th] defendant. 15. The learned Senior Counsel has placed reliance on the decisions in Chellappan Nadar v. Krishnan Nair [1963 KLT 750] as well as Narayan Das Khettry v. Jatindra Nath Roy Chowdhry and others [AIR 1927 Privy Council 135] and argued that in India, unlike in England, persons can have separate possession of the land as well as building put up in the land and therefore, at the most, the reservation in Exhibit-B1 could have been only for the personal use of the donor over the house, well and pond and not for any other purpose and therefore, the same is not partible. The said argument presently does not hold good in terms of the clear admissions in the written statement of defendants 1 and 10 as well as in the affidavit in lieu of chief examination filed by R.S.A.No.586/2014 : 10 : DW2 for him as well as for and on behalf of defendants 10 and 11. 16. The learned Senior Counsel has pointed out that even though the first appellate court has observed that the trial court has granted a decree to have a division by means and bounds and to allot the shares of the other persons also to the 1[st] defendant, on payment of its value, in case, the property is found partible, no such decree has been granted by the trial court. In equity, defendants 1, 10 and 11 or any of them, according to their entitlement, are entitled to get such a reservation. The said question can well be considered at the time of passing the final decree. In the result, this second appeal is allowed in part to the above extent of granting a reservation for allotment of the shares of the plaintiff and supporting defendants to the share of defendants 1, 10 and 11 R.S.A.No.586/2014 : 11 : or any of them, as the case may be, on the payment of its value, at the time of passing the final decree. The judgment and decree passed by the trial court as well as the appellate court are modified to the above extent. Sd/- B. KEMAL PASHA, JUDGE. DSV/7/1/17 **// True Copy //** **P.A. To Judge**