K.SAINABA v. K.P.ABOOBACKERKOYA and others

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: ## THE HONOURABLE MR. JUSTICE A.HARIPRASAD FRIDAY, THE 25TH DAY OF NOVEMBER 2016/4TH AGRAHAYANA, 1938 AS.No. 314 of 2000 (C) ----------------------AGAINST THE JUDGMENT AND DECREE DATED 27.02.1998 IN OS NO. 590/1995 of I ADDITIONAL SUB COURT, KOZHIKODE APPELLANT/PLAINTIFF: ------------ K.SAINABA, AGED 44 YEARS, D/O.ALAVI, THOTTOLIPADAM, FRANCIS ROAD, NAGARAM AMSOM DESOM OF KOZHIKODE TALUK. BY ADVS.SRI.V.V.SURENDRAN SRI.P.A.HARISH RESPONDENTS/DEFENDANTS: -------------- *1. K.P.ABOOBACKERKOYA, AGED 54 YEARS, S/O.ALAVI, THOTTOLIPADAM, H.NO.14/614, NAGARAM AMSOM DESOM OF KOZHIKODE TALUK. DIED. ( L.RS.IMPLEADED) **2. K.KOYAKUTTY, AGED 43 YEARS, S/O.ALAVI, P.B.NO.193, JALAN, SULTHANATE OF OMAN (A.G.) RESIDING AT KALOOR ROAD, VALAYANAD AMSOM DESOM OF KOZHIKODE TALUK. DIED. 3. MAMMATHUTTY, AGED 67 YEARS, W/O.ALAVI, THOTTOLIPADAM PARAMBA, NAGARAM AMSOM DESOM, KOZHIKODE TALUK. 4. C.S.SARADA, AGED 69 YEARS, W/O.RAVUNNI, SARADA NILAYAM, NADUVATTOM AMSOM DESOM OF KOZHIKODE. ADDL.R5 TO R9 IMPLEADED: ADDL.R5. V.SAINABA, W/O.K.P.ABOOBACKERKOYA, RESIDING AT STADIUM EAST RESIDENTS ASSOCIATION NO.16, K.S.E.B. POST NO.4, SREEKALOOR DEVI TEMPLE ROAD, PUTHIYARA, KOZHIKODE-673004. ADDL.R6. K.P.ABDUL GAFOOR, S/O.K.P.ABOOBACKERKOYA, RESIDING AT STADIUM EAST RESIDENTS ASSOCIATION NO.16, K.S.E.B. POST NO.4, SREEKALOOR DEVI TEMPLE ROAD, PUTHIYARA, KOZHIKODE-673004. ADDL.R7. K.P.RAMEEJA, D/O.K.P.ABOOBACKERKOYA, RESIDING AT STADIUM EAST RESIDENTS ASSOCIATION NO.16, K.S.E.B. POST NO.4, SREEKALOOR DEVI TEMPLE ROAD, PUTHIYARA, KOZHIKODE-673004. AS NO.314/2000 2 ADDL.R8. K.P.SHUIB, S/O.K.P.ABOOBACKERKOYA, RESIDING AT STADIUM EAST RESIDENTS ASSOCIATION NO.16, K.S.E.B. POST NO.4, SREEKALOOR DEVI TEMPLE ROAD, PUTHIYARA, KOZHIKODE-673004. ADDL.R9. K.P.SABITHA, D/O.K.P.ABOOBACKERKOYA, RESIDING AT STADIUM EAST RESIDENTS ASSOCIATION NO.16, K.S.E.B. POST NO.4, SREEKALOOR DEVI TEMPLE ROAD, PUTHIYARA, KOZHIKODE-673004. *THE LEGAL HEIRS OF DECEASED 1ST RESPONDENT ARE IMPLEADED AS ADDL.RESPONDENTS 5 TO 9, VIDE ORDER DT.17.8.16 IN I.A.787/16. **IT IS RECORDED THAT THE 2ND RESPONDENT IN THE APPEAL DIED ON 28.10.15 VIDE AFFIDAVIT IN I.A.787/16 AND THAT HIS LEGAL HEIRS SOUGHT TO BE IMPLEADED ARE DELETED FROM THE PARTY ARRAY VIDE ORDER DT.5.10.16 IN I.A.2203/16. ADDL.R5 TO R9 BY ADVS. SRI.M.P.SREEKRISHNAN SRI.A.MUHAMMED MUSTHAFA THIS APPEAL SUITS HAVING BEEN FINALLY HEARD ON 25-11-2016, ALONG WITH RFA. 431/2003, RFA. 432/2003, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## **A.HARIPRASAD, J.** **--------------------------------------** ## **A.S. No.314 of 2000 & R.F.A.Nos.431 & 432 of 2003 -------------------------------------Dated this the 25[th] day of November, 2016** ## **COMMON JUDGMENT** Three suits were jointly tried by the learned Subordinate Judge, Kozhikode and they were disposed by a common judgment. O.S.No.590 of 1995 is a suit for declaration and partition filed by the appellant in A.S.No.314 of 2000. 1[st] defendant in that suit is the plaintiff in O.S.No. 249 of 1997, which is a suit for prohibitory injunction filed against the appellant in A.S.No.314 of 2000 and her husband. In O.S.No.590 of 1995, apart from the appellant in R.F.A.No.432 of 2003, there are three other defendants. O.S.No.353 of 1996 is yet another suit filed by the 1[st] defendant in O.S.No.590 of 1995 (1[st] respondent in A.S.No.314 of 2000 and appellant in R.F.A.No.432 of 2003) seeking injunction against the defendants. Defendants 1 and 2 in O.S.No.353 of 1996 are the defendants in O.S.No.249 of 1997. There are two more defendants in O.S.No.353 of 1996. They are the 2[nd] defendant in O.S.No.590 of 1995 and his wife. 2. The parties are hereinafter referred to in the rank in O.S.No.590 of 1995. 3. Short facts in each case are as follows:O.S.No.590 of 1995 is a suit for partition of two items of properties described as A and B A.S. No.314 of 2000 & R.F.A.Nos.431 & 432 of 2003 2 schedules in the plaint. Plaint A schedule was a “karaima” holding belonged to deceased Alavi, who was the father of the plaintiff and defendants 1 and 2 and the husband of 3[rd] defendant. Ext.A1 is the karaima right assignment in favour of Alavi. Plaint B schedule is a land appurtenant to plaint A schedule house. It is used for the convenient enjoyment of plaint A schedule house. It is alleged in the plaint that both the properties were in the possession of deceased Alavi and after his death, the properties devolved on the plaintiff and defendants 1 to 3. Ext.B29 is a “kanam theeradharam” executed by the 4[th] defendant in favour of the 1[st] defendant in respect of the properties surrounding the house in plaint A schedule. That property is described in plaint B schedule. According to the plaintiff, Ext.B29 assignment was taken by the 1[st] defendant as a co-owner and as the head of family for and on behalf of other co-owners. It is the case in the plaint that she came to know of Ext.B29 assignment in favour of the 1[st] defendant only when he filed O.S.No.353 of 1996. The plaintiff and defendants 2 and 3 are also equally entitled to get share in plaint B schedule property along with the 1[st] defendant. As he was not amenable for an amicable partition, the suit for the above said reliefs was filed. 4. 2[nd] defendant filed a written statement supporting the claims raised by the plaintiff. Defendants 1 and 3 filed a separate written statement disputing the plaint averments. According to the contentions of A.S. No.314 of 2000 & R.F.A.Nos.431 & 432 of 2003 3 the said defendants, the description of property in A schedule is incorrect. Measurement of A schedule property is only 21x9 and 2x14 “asarikole” (carpenter kole) and the extent of the property is only 2.71 cents. Alavi obtained Ext.B2 purchase certificate for 2.71 cents through a Land Tribunal in the year 1971. Plaint B schedule property exclusively belongs to the 1[st] defendant. Plaintiff and other defendants have no right over plaint B schedule property. He purchased the property from the 4[th] defendant through Ext.B29 document by paying consideration out of his own funds. The 1[st] defendant is in exclusive possession of the plaint B schedule property. Contention of the plaintiff that plaint B schedule property was purchased by the 1[st] defendant for and on her behalf and also on behalf of other defendants is incorrect. 3[rd] defendant, mother of the 1[st] defendant is residing with him. He has spent money to renovate the house. The 1[st] defendant is entitled to a reservation to that effect. Plaint B schedule property is not partible. 5. Averments in O.S.No.353 of 1996 are as follows:The 1[st] defendant in O.S.No.590 of 1995 is the plaintiff in the suit. He contended that the defendants (plaintiff, her husband, 2[nd] defendant in O.S.No.590 of 1995 and his wife) attempted to trespass into plaint B schedule property over which they have no manner of right or possession. Hence he sought a permanent prohibitory injunction against them. A.S. No.314 of 2000 & R.F.A.Nos.431 & 432 of 2003 4 6. The defendants in the suit contended that the property described in plaint B schedule belonged to Alavi and that is a co-ownership property liable for partition. Therefore, they contended that the suit for injunction is not maintainable. 7. O.S.No.249 of 1997 is a suit filed by the 1[st] defendant in O.S.No.590 of 1995 (who is the plaintiff in O.S.No.353 of 1996), seeking injunction against the plaintiff in O.S.No.590 of 1995 and her husband from entering the plaint A schedule property in O.S.No.590 of 1995 and committing waste therein. In this suit, the defendants contended that though plaint A and B schedules are co-ownership properties and the plaintiff in O.S.No.590 of 1995 has been provided with an 'ara' (customary room for a lady following mappila marumakkathayam) and as such the defendants 1 and 2 in the suit are entitled to enter the building and reside therein. 8. Court below framed pertinent issues in all the suits. It is very important to note that none of the parties adduced oral evidence. Exts.A1 and A2 and Exts.B1 to B42 are the documents marked. Ext.C1 is the commissioner's report. 9. Learned counsel for the plaintiff in O.S.No.590 of 1995, who is the appellant in A.S.No.314 of 2000, contended that the court below should have found that plaint B schedule property is also a co-ownership property A.S. No.314 of 2000 & R.F.A.Nos.431 & 432 of 2003 5 liable to be partitioned. Learned counsel contended that the plaintiff has specifically pleaded that Alavi was in possession of plaint B schedule property and the land was purchased through Ext.B29 in the name of the 1[st] defendant as a co-owner and that too for the beneficial enjoyment of the plaint A schedule property, which is admittedly a co-ownership property. Relevant fact to be noted is that the 1[st] defendant has no case that plaint A schedule property is not a co-ownership property. His only contention is that he had effected improvements to the house spending money and therefore, he is entitled to claim a reservation in respect of the amounts spent. 10. Learned counsel for the appellant further contended that on a reading of Ext.B29, it can be seen that the property was assigned by the 4[th] defendant in favour of the 1[st] defendant not in his individual name, but as a co-owner in respect of plaint A schedule property. I have been taken through the recitals in Ext.B29. Ext.B29 is a document dated 17.12.1993. It is ostensibly executed in the name of the 1[st] defendant by the 4[th] defendant. Learned counsel contended that the following recital will show that the assignment was not in his individual right, but as a co-owner. “...............മ�പട� സബ മ��ടത� വ�ധ� പ���ര� തന� വസത� നടത� മ��ടത� ആ��ന ��ഖ�നര� ഇ.��.212/84-ആ� ന�ബറ�ല 6-9-89 ത�യത� എന�ക. A.S. No.314 of 2000 & R.F.A.Nos.431 & 432 of 2003 6 ക�വശ� ത�ത�� 30-9-89 ത�യത� മ�പട� ന3ല�വറ� മ��ടത� റ�ക�ര6 ന7യതത�� അത� പ���ര� ത�ന: �ട�� വഹ�ള മവനറയ�� വഹ�ള സഹ�ത� ��ണ� ��:�ക?റ�. നടപവ��ശ��യ� എന�യകവ��ശനപടത�� ത�ന: �ട��യ�ല �റയ�� സല� ന�ങളCനട വ�ട�ന� 7�റC��യ� ��ടക��ത�� ന�ങള ഉ�മയ�ഗ�ചC വര��ത�������” It is vehementally argued that the expression “ന�ങളCനട വ�ട�ന� 7�റC��യ� ��ടക��ത�� ന�ങള ഉ�മയ�ഗ�ചC വര��ത�������” is indicative of the fact that the 1[st] defendant was possessing the property in co-ownership right only. The question is whether the expression “ന�ങള” could be taken as an indication of a co-ownership? It is relevant to look into the disposition clause also, where also it is mentioned as follows: “............മ�ല�റഞ ത�ര�നK പ�ത�ഫല� ഇര��ത�ന�യ�ര� ഉറ�പ��യ�� ന�ങമള�ട എന�യക. നറ�ക� ��ട� മബ�ദO� വര��യ�� �ട��യ�നല വഹ�ള എമപരനപട ��ണ���:�ക?റ നടപ. ��തല�യ സ�സത�വ��ശങമള�ട� �?ട� ന�ങളക. ത�ര�യ� വ�റ. �ട��യ�നല വഹ�ള�മQല എന�ക�ള സരS അവ��ശങളC� ത�ര�� മ��വ��യ�� ആയത ന�ങളക. സ�ദ�ക��യ�� �ട��യ�നല വഹ�ള ന�ങളക. യഥ�രV ക�വശ� തര��യ�� ന7യത�ര�കന��ണ. ഇ����തല �?രX ഉട�യ�യ� �ട��യ�നല വഹ�ള എമപരനപട ��ണ� ��:�ക?റ നടപവ��ശങമള�ട� A.S. No.314 of 2000 & R.F.A.Nos.431 & 432 of 2003 7 �?ട� ന�ങള സYന��യ� ക�വശ� നവച. മ�ല�ല ന�യ��ന�സരണ� ജQ� �ത�ചC വ�ങ� സരക�ര ന���ത� ന��ട�ത. എന���� ജQ��യ� അടക� അന�ഭവ�ക��ത�ന�� �റC ന�ങളCനട യമഥഷ� പ�യവ�പ�യ� ��തല�യനതന�� ന7യC�ത�ന�� മ�ല�ല �ട��യ�നല വഹ�ള�മQല ന�ങളക� ��പത� അധ���ര�വ��ശ��ളതല^�നത എന�യക. യ�നത�രധ���ര�വ��ശമ��,ക�വശമ��, മ7�ദOമ��, മതരചമയ�, ബ�ദOതമയ� ഇല^�തത�� ആ����.”. On a reading of the above clause, it is clear that the expression “ന�ങള” used in the document is indicative of describing the 1[st] defendant in second person. It is a personal right to the 1[st] defendant and does not indicate that the appurtenant land was assigned in favour of the 1[st] defendant as a coowner of plaint A schedule property. It is all the more important to note that none of the parties testified as to the intention of the parties or the circumstances under which Ext.B29 happened to be executed. In the absence of any oral evidence, the court can only look into the document to interpret the terms and conditions. 11. Another important aspect to be noted here is that the court below rightly held that Alavi had not possessed plaint B schedule property at any point of time either by virtue of Ext.A1 or under any other right. The court below relying on **Damayanthi v. Karthiayani (ILR 1997 (2) Kerala 428)** held that Alavi having obtained purchase certificate in respect of plaint A.S. No.314 of 2000 & R.F.A.Nos.431 & 432 of 2003 8 A schedule could not have applied again under the amended provisions of the Kerala Land Reforms Act claiming to be a tenant. This principle of law is unchallengeable. Therefore, without any iota of evidence to hold that plaint B schedule property was in the possession of Alavi or it was purchased by the 1[st] defendant with an intention to benefit other co-owners, the contention of the plaintiff in respect of plaint B schedule property has to fail. 12. Learned counsel for the plaintiff raised a contention on the basis of Section 7 of the Mappilla Marumakkathayam Act, which reads as follows: _“_ _**Investment of surplus income** .-Any surplus left out of the income of a tarwad after providing for the customary or legitimate expenses of the tarwad including charges pertaining to the education, marriage or death of the members of the tarwad, and the charges necessary for zakat and the proper maintenance or keep of the tarwad properties, shall be applied by the Karanavan in the purchase of immovable property for the tarwad or otherwise invested to the beast advantage of the tarwad.”_ In this case, as I mentioned earlier, there is no oral evidence to hold that the 1[st] defendant derived any profit from plaint A schedule property, leave A.S. No.314 of 2000 & R.F.A.Nos.431 & 432 of 2003 9 alone the surplus profit, as required in the Section. Therefore, this provision of law has no application to the facts in this case. 13. Learned counsel for the plaintiff/appellant placed reliance on **Aminaddin v. Tajaddin (AIR 1932 Calcutta 538)** and **C.K.Setty v. Abdul Khadar (AIR 1956 Mysore 14)** to raise a contention that there could be a joint family property in respect of Muslims. This proposition is indubitable. Learned counsel placed reliance on the observation in the ' **Principles of Mahomedan Law** ' by **Mulla** (19[th] Edition). The relevant provision reads as follows: _“_ _**Joint family and joint family business** .- (1) When the members of a Mahomedan family live in commensality, they do not form a joint family in the sense in which that expression is used in the Hindu Law. Further, in the Mahomedan law, there is not, as in the Hindu law, any presumption that the acquisitions of the several members of a family living and messing together are for the benefit of the family. But if during the continuance of the family properties are acquired in the name of the managing member of the family, and it is proved that they are possessed by all the members jointly, the presumption is that they are the properties of the family, and not the separate properties of the member in whose name they stand.”_ A.S. No.314 of 2000 & R.F.A.Nos.431 & 432 of 2003 10 14. All these points could have been raised properly and there should have been evidence to support the contentions. In the written statement filed by the 1[st] defendant, he had specifically denied the right of a co-ownership, set up by the plaintiff. Without proving a denied fact, the plaintiff cannot claim any relief. Going by the principles in Section 101 of the Evidence Act, 1872, the burden of proof was squarely on the plaintiff to establish that plaint B schedule is a co-ownership property. Therefore, the court below for valid reasons found that plaint B schedule is not partible. I do not find any legal reason to interfere with that finding. 15. Learned counsel for the appellant contended that plaint A schedule property is a co-ownership property, which is liable to be partitioned. There cannot be any dispute to that proposition. It is also contended that plaint B schedule property is lying around the plaint A schedule property. It is therefore, submitted by the learned counsel for the plaintiff that all the easementary rights for the convenient enjoyment of the house should be recognized and reserved. No doubt, the plaintiff is entitled to get all the easementary rights for the convenient enjoyment of the share interest of all co-owners and it cannot be obstructed. 16. Another submission made by the learned counsel is regarding identity of the property covered by Ext.A1. There is some discrepancy between the extent shown in Exts.A1 and B2. The location of a wash room A.S. No.314 of 2000 & R.F.A.Nos.431 & 432 of 2003 11 and bathroom attached to the house is not clear from the description. The question regarding determination of identity can be safely relegated to the proceedings in the final decree. 17. The contention raised by the 1[st] defendant regarding reservation of the house in his favour cannot be allowed for the reason that he has not adduced any evidence to show that he had spent money for its renovation. That apart, the 1[st] defendant has not preferred an appeal against the denial of reservation. Therefore, he is precluded from claiming any reservation in respect of plaint A schedule house. 18. It is the definite case of the 1[st] defendant that he, along with his family members, is residing in plaint A schedule house and the plaintiff and other defendants are residing away, in separate houses. Therefore, the plea of 1[st] defendant for equity for getting allotment of the house has to be considered in the final decree proceedings and to the extent possible, without causing any prejudice to other sharers. 19. Court below correctly decreed O.S.No.353 of 1996. The legal logic adopted by the court below that plaint B schedule property belonged to the 1[st] defendant in O.S.No.590 of 1995 is the basis for granting the decree in O.S.No.353 of 1996. In the light of the above aspects, I find no reason to take a different view in O.S.No.353 of 1996. 20. O.S.No.249 of 1997, a suit for injunction filed by the 1[st] A.S. No.314 of 2000 & R.F.A.Nos.431 & 432 of 2003 12 defendant against the plaintiff and her husband, was rightly dismissed for the reason that admittedly the plaintiff has a co-ownership right in respect of plaint A schedule house. It is the definite case of the 1[st] defendant that he along with his family and mother is residing in the house and has effected improvements. Notwithstanding that, the right of plaintiff in respect of the house cannot be denied. Therefore, the court below rightly disallowed the injunction claimed by the the 1[st] defendant against a coowner and her husband. I find no reason to interfere with this finding also. Court below on the evidence available decreed the suits in respect of plaint A schedule and rightly repelled the contentions in respect of plaint B schedule. The appeals are devoid of any merit and all of them are dismissed. ## **A. HARIPRASAD, JUDGE.** ## **cks** A.S. No.314 of 2000 & R.F.A.Nos.431 & 432 of 2003 13 **A.Hariprasad, J.** **A.S.No.314 of 2000 & R.F.A.Nos.431 & 432 of 2003** **COMMON JUDGMENT** **25[th] November, 2016**