Krishnan Gomati v. Raghavan Pillai Rajendran Nair and others

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE THOMAS P.JOSEPH FRIDAY, THE 16TH DAY OF NOVEMBER 2012/25TH KARTHIKA 1934 RSA.No. 451 of 2004 (D) ----------------------AS.18/1996 of SUB COURT,ATTINGAL OS.232/1993 of MUNSIFF COURT,ATTINGAL APPELLANT(S)/APPELLANT/1ST DEFENDANT: ----------------------------------------------- KRISHNAN GOMATI, VILAYILKUNNUMPURATHU VEEDU, VELARKUDI, ATTINGAL FROM MANJAVILA VEEDU, CHITTATTINKARA DESOM ATTINGAL VILLAGE (DIED. LRS. IMPLEADED). ## (*)ADDL.A2: MEENAKSHY, D/O.GOMATI, AGED ABOUT 55 YEARS, RESIDING AT VILAYILKUNNUMPURATHU VEEDU, VELARKUDI, ATTINGAL FROM MANJAVILA VEEDU, CHITTATTINKARA DESOM, ATTINGAL VILLAGE. BY ADV. SRI.R.S.KALKURA ADV. SRI M.S.KALESH ADV.HARISH GOPINATH ADV. VINAY MENON ADV. M.AJAY RESPONDENT(S)/RESPONDENTS/PLAINTIFFS & DEFENDANTS 3 TO 8 : ------------------------------------------------------- 1. RAGHAVAN PILLAI RAJENDRAN NAIR, PONNARAPUTHEN VEEDU, KUNNUVARAM, ATTINGAL DESOM ATTINGAL VILLAGE. 2. RAGHAVAN PILLAI KARUNAKARAN NAIR, PONNARAPUTHEN VEEDU, KUNNUVARAM, ATTINGAL DESOM ATTINGAL VILLAGE, REPRESENTED BY POWER OF ATTORNEY HOLDER P.SYAMALAKUMARI, PONNARAPUTHEN VEEDU, KUNNUVARAM, FROM KUNJU VEEDU, ELAMKULAM, SREEKARYAM, THRUVANANTHAPURAM. 3. KRISHNAN SADASIVAN, VILAYIL KUNNUMPURATHU VEEDU, VELARKUDI, ATTINGAL FROM MANJAVILA VEEDU, CHITTATTINKARA DESOM ATTINGAL VILLAGE. 4. KRISHNAN THANKAPPAN, KEEZHA VEEDU, AVANEESWARAM, CHITTATTINKARA DESOM ATTINGAL VILLAGE. Rsa no.451/2004 2 5. KRISHNAN MANIYAN, AYIRAVALLI KUNNUMPURATHU CHARUVILA VEEDU, PAKALKURI PALLIKKAL. 6. KRISHNAN MEENAKSHI, - VILAYIL KUNNUMPURATHU VEEDU, VALARKUDI, ATTINGAL. 7. SYAMALA, D/O. KRISHNAN, - VILAYIL KUNNUMPURATHU VEEDU, VALARKUDI, ATTINGAL. 8. KRISHNAN RAJAN, VILAYIL KUNNUMPURATHU VEEDU, VALARKUDI, ATTINGAL. ## (*)ADDL.RESPONDENTS IMPLEADED: 9. MEENAKSHI, VILAYILKUNNUMPURATHU VEEDU, VELARKUDI, ATTINGAL FROM MANJAVILA VEEDU, CHITTATTINKARA - 695 101. 10. SYAMALA, VILAYILKUNNUMPURATHU VEEDU, VELARKUDI, ATTINGAL FROM MANJAVILA VEEDU, CHITTATTINKARA DESOM, ATTINGAL VILLAGE - 695 101. 11. THANKAPPAN, VILAYILKUNNUMPURATHU VEEDU, VELARKUDI, ATTINGAL FROM MANJAVILA VEEDU, CHITTATTINKARA DESOM, ATTINGAL VILLAGE - 695 101. 12. RAJAN, VILAYILKUNNUMPURATHU VEEDU, VELARKUDI, ATTINGAL FROM MANJAVILA VEEDU, CHITTATTINKARA DESOM, ATTINGAL VILLAGE - 695 101. (*)THE LRS OF THE DECEASED SOLE APPELLANT ARE IMPLEADED AS ADDITIONAL 2ND APPELLANT AND RESPONDENTS 9 TO 12 AS PER ORDER DATED 16.11.2012 IN I.A NO.1212 OF 2011 ADV. SRI.M.R.RAJESH - FOR R1 ADV. SRI.G.HARIKRISHNAN (TRIPUNITHURA) - FOR R6 THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 16-11-2012, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## **THOMAS P. JOSEPH, J.** **-------------------------------------R.S.A. No.451 of 2004 -------------------------------------Dated this the 16[th] day of November, 2012.** ## **JUDGMENT** The second appeal arises from the judgment and decree of the Sub Court, Attingal in A.S.No.18 of 1996 confirming the decree for redemption of the suit property in O.S.No.232 of 1993 of the Munsiff's Court, Attingal. 2. Respondents 1 and 2/plaintiffs sued the appellant (appellant died and one of her legal representatives is prosecuting the second appeal) and the 2[nd] defendant (her legal representatives are respondents 3 to 8) for a decree for redemption and for mesne profits. They claimed that the suit property - 12 and odd cents with building thereon belonged to Saraswathy Amma who created a usufructuary mortgage in favour of the appellant and one Ayyappan Krishnan as per document No.1111 of 1977 (a copy of which is marked as Ext.A3) for `5,000/-. On 08.05.1980, the said Saraswathy Amma executed an agreement for sale in favour of respondents 1 and 2 agreeing to sell the suit property to them for `29,000/- and received `8,000/- by way of advance. Since Saraswathy Amma did not comply with the terms of that contract, respondents 1 and 2 filed O.S.No.16 of 1981 in the Sub Court, Attingal for specific performance of the agreement for sale impleading the said Saraswathy Amma and the mortgagees, appellant and Ayyappan Krishnan as defendants. That suit was decreed (Ext.A4 is the copy of judgment). Saraswathy Amma filed A.S.No.146 2 RSA No.451/2004 of 1986. But, that appeal was dismissed by Ext.A5, judgment. In execution of that decree, there was a settlement between Saraswathy Amma and respondents 1 and 2 and accordingly, Saraswathy Amma executed Ext.A2, assignment deed in favour of respondents 1 and 2. Thus respondents 1 and 2 claimed title over the property and the right to redeem the mortgage. Based on that claim respondents 1 and 2 filed O.S.No.232 of 1993 for redemption of mortgage and for mesne profit. 3. The appellant contended that as per Ext.B1, agreement for sale dated 10.11.1980 executed by Saraswathy Amma, she is in possession and enjoyment of the property. She claimed that of the sale consideration of `35,500/-, she paid `12,500/- by way of advance. Hence she is entitled to the protection of Sec.53 of the Transfer of Property Act (for short, “the Act”). The appellant further claimed that she has renovated the building spending about `10,000/- and that the decree in O.S.No.16 of 1981 is obtained by fraud and collusion between respondents 1 and 2 and Saraswathy Amma. Hence Ext.A2, sale deed executed by her is not binding on the appellant. She claimed that she is in occupation of the suit property and the building thereon from the year, 1958 onwards and hence is entitled to kudikidappu over the building and the land appurtenant to it. 3 RSA No.451/2004 4. The trial court found against the contentions raised by the appellant. So far as the plea of kudikidappu is concerned, the trial court observed that the question whether the issue relating to kudikidappu has to be referred to the Land Tribunal need be considered only later. Respondents 1 and 2 were given a decree for redemption. 5. The appellant challenged that judgment in A.S.No.18 of 1996. The first appellate court answered all the issues against the appellant. So far as the plea of limitation is concerned, the first appellate court held in paragraph 15 of its judgment that though the appellant claimed that she got possession of the suit property and building in the year, 1958, that plea cannot be accepted and that the evidence would show that she got possession of the suit property and the building only as per Ext.A3 of the year, 1977. The first appellate court was of the view that the contention raised by the appellant regarding kudikidappu is only a pretext to protract the proceedings and held that the question of kudikidappu does not arise for a decision in the case. 6. The learned counsel for the appellant contends that respondents 1 and 2 had no right to seek redemption of the property. It is further contended that the finding of the courts below regarding claim of kudikidappu raised by the appellant is erroneous. The learned counsel submits that even after 01.01.1970 it is possible that a kudikidappu could spring up. Reliance is placed on the decision in **Vidhyadharan v. Sivadas (2001(2) KLT 605)** . According to the 4 RSA No.451/2004 learned counsel, the issue regarding kudikidappu ought to have been referred to the Land Tribunal for a decision as provided under Sec.125(3) of the Kerala Land Reforms Act (for short, “the KLR Act”). 7. The learned counsel for respondents 1 and 2 contend that all the pleas except the plea of kudikidappu were raised by the appellant as defendant in O.S.No.16 of 1981 and found against. Hence those questions do not arise for a decision in this case. So far as the plea of kudikidappu is concerned, the learned counsel has placed reliance on the decision in **Victoria v. K.V.Naik and others ((1997) 6 SCC 23)** . It is contended that since the appellant is admittedly a mortgagee, she cannot claim to be a kudikidappukari in the building in the suit property. It is the further contention of the learned counsel that though in paragraph 15 of the written statement the appellant has vaguely pleaded that she has no other property or building, when examined as PW1 she has not whispered anything about that. Hence the plea of kudikidappu does not arise for a decision. It is argued by the learned counsel that all along, the appellant was claiming right to be in possession of the suit property and the building as per Ext.B1, agreement dated 10.11.1980 allegedly executed by Saraswathy Amma in her favour. That agreement was found to be concocted in Ext.A4, judgment. In such a situation, the attempt of the appellant to further protract the proceeding may not be entertained, it is argued. 5 RSA No.451/2004 8. So far as the right of respondents 1 and 2 to seek redemption of mortgage is concerned, Ext.A2 shows that Saraswathy Amma, the original owner of the property and who had executed an agreement for sale in favour of respondents 1 and 2 had, obviously in view of Exts.A4 and A5, judgments, executed Ext.A2, assignment deed in favour of respondents 1 and 2. Therefore, respondents 1 and 2 acquired not only title to the property but also right to redeem the mortgage. 9. So far as the claim based on Ext.B1, agreement dated 10.11.198 allegedly executed by Saraswathy Amma in favour of the appellant is concerned, it is seen that the same contention was raised by the appellant as defendant in O.S.No.16 of 1981 where the agreement was marked as Ext.B2. The trial court in Ext.A4, judgment found that Ext.B2, agreement in that case (Ext.B1 in the present case) is the result of concoction. Accordingly, the contention of the appellant based on Ext.B1 (ie. Ext.B2 in O.S.No.16 of 1981) was found against in the said case. Hence the appellant cannot again re-agitate that question in this proceeding. 10. What remains for decision is whether the finding of the first appellate court that the appellant is not entitled to claim kudikidappu involves any substantial question of law so that this Court is required to admit the second appeal. It is true that the trial court, referring to the issue of kudikidappu observed that the said question is to be decided at a later stage obviously referring to the stage of execution. But, the first appellate court has considered 6 RSA No.451/2004 that question in paragraph 15 of the its judgment and stated that since the evidence revealed that the appellant came into possession of the suit property and the building only as per Ext.A3 of the year, 1977, the claim of kudikidappu cannot be accepted. 11. In **Vidhyadharan v. Sivadas** (supra), following the decision of the Division Bench in **Maniyan v. Ramachandran (1999 (3) KLT 86)** it is held that the a kudikidappu can spring up even after 01.01.1970. Therefore, the first appellate court is not right in observing that no claim of kudikidappu could have arisen after 01.01.1970. But it was within the power of the first appellate court to decide whether any claim of kudikidappu 'arose' for a decision so that, the question was required to be referred to the Land Tribunal. 12. Though in paragraph 15 of the written statement the appellant has vaguely contended that she has no other property or building, when examined as DW1 she has not even whispered about that. I am given a copy of deposition of DW1. On going through the said deposition I find that the appellant never stated that she is entitled to a right of kudikidappu over the building in the suit property or that she has no other homestead or property where a homestead could be raised. On the otherhand, the appellant was banking upon Ext.B1, agreement for sale and other contentions she raised including that she is entitled to the value of improvements since she has improved the property and renovated the building by spending about `45,000/- 7 RSA No.451/2004 for which no evidence was also let in. Even as per the version of the appellant, the building is valued around `45,000/-. Hence prima facie, no question of kudikidappu 'arises' for a decision. 13. That apart, I must also notice that the Supreme Court, in **Victoria v. K.V.Naik and others** (supra) has pointed out that (the claim of kudikidappu) “in equity, justice and good conscience, it must not be extended to the mortgagee. After all, the mortgagee-money lender comes into possession of the property as mortgagee and always remains as mortgagee unless limitation snaps off the link. He receives interest on the amount advanced. He cannot be permitted in good sense of law to eat away the cake as kudikidappu. It would be abhorrent to good conscience and playing upon the property of indigent mortgagor's own property.” 14. The learned counsel for the appellant has submitted that the above said observations are only obiter and that the subsequent observation in the same judgment that “certainly, that is a matter gone into at the time of execution” would show that at the time of execution it is to the mortgagee to raise a claim of kudikidappu. 15. The obiter of the Apex Court is binding on this Court. This Court cannot say that the above said observations were made by the Supreme Court without reference to Explanation IV to Sec.2(25) of the KLR Act. 8 RSA No.451/2004 16. In a situation where the claim of kudikidappu was relegated to be decided in the execution proceeding and, where the question arose whether it was within the power of the executing court to decide that question, this Court in O.P.(C) No.2742 of 2011 and C.R.P.Nos.248 and 249 of 2011, by judgment dated 11.11.2011 (the decision is unreported) after referring to all the relevant decisions on the point including the decision of the Division Bench of this Court which took the view that the stage of raising the plea of kudikidappu under Explanation IV to Sec.2(25) of the KLR Act is when the mortgagee-mortgagor relationship is snapped by the deposit of mortgage money, held that the contention that the plea could be raised in execution even when it is left open cannot be accepted in the light of the decision of the Supreme court in **Victoria** **v. K.V.Naik and others** (supra). The said judgment of this Court was challenged in the Supreme Court in Petitions for Special Leave to Appeal (Civil) Nos.3735-3737 of 2012. The Supreme Court by order dated 04.07.2012 dismissed the Special Leave Petitions as it involved no merit. 17. In the light of that pronouncement also I find myself unable to accept the contention of the appellant that the observations in **Victoria v. K.V.Naik and others** referred to above should be taken as obiter and not binding on this Court. 18. Moreover, I also stated that the plea of kudikidappu does not 'arise' for a decision since the appellant when examined as DW1 has not even adverted to her claim that except the suit property and the building thereon, she 9 RSA No.451/2004 has no other homestead or place to erect a homestead. I must also notice that the appellant was continuing as a mortgagee under Ext.A3, usufructuory mortgage created in favour of herself and the late Ayyappan Krishnan. In otherwords, she was enjoying the property in her capacity as mortgagee. Therefore, she cannot turn around and claim to be a kudikidappukari in the light of the observations made by the Apex court referred to above. In the light of the above I do not find any substantial question of law involved in the second appeal requiring its admission. Second Appeal is dismissed. All pending interlocutory applications will stand dismissed. **THOMAS P.JOSEPH, Judge.** **cks**