Merly Thomas KuriaKose v. Dr. George KuriaKose

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** # **PRESENT** **THE HONOURABLE MR. JUSTICE SATHISH NINAN** **TUESDAY, THE 19[TH] DAY OF MARCH 2024 / 29TH PHALGUNA, 1945** **RFA NO. 638 OF 2012** **AGAINST THE DECREE AND JUDGMENT DATED 22.02.2012 IN OS NO.2 OF 2008 OF SUB COURT, PAYYANNUR** **-----** ## **APPELLANT/PLAINTIFF:** **MERLY THOMAS KURIAKOSE, W/O.MAJOR THOMAS KURIAKOSE, PERUMPALLIL, MANIMALA HOUSE, NELLIMATTOM, OONNUKKAL P.O. 686 693, KOTHAMANGALAM TALUK, ERNAKULAM DISTRICT.** **BY ADVS. MANU VYASAN PETER P.B.SUBRAMANYAN P.B.KRISHNAN SABU GEORGE B.ANUSREE MEERA P. S.V.BALAKRISHNA IYER (SR.)** ## **RESPONDENT/DEFENDANT:** **DR.GEORGE KURIAKOSE, S/O.MANIMALA THOMAS KURIAKOSE, PALLIKKUNNU AMSOM AND DESOM, P.O PALLIKKUNNU - 670 004, KANNUR DISTRICT.** **BY ADVS. SRI.V.A.SATHEESH SRI.V.T.MADHAVANUNNI** **THIS REGULAR FIRST APPEAL HAVING COME UP FOR HEARING ON 19.03.2024, ALONG WITH RFA.803/2012, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** # **IN THE HIGH COURT OF KERALA AT ERNAKULAM** # **PRESENT** **THE HONOURABLE MR. JUSTICE SATHISH NINAN TUESDAY, THE 19[TH] DAY OF MARCH 2024 / 29TH PHALGUNA, 1945** **RFA NO. 803 OF 2012** **AGAINST THE DECREE AND JUDGMENT DATED 22.02.2012 IN OS NO.2 OF 2008 OF SUB COURT, PAYYANNUR** **-----** ## **APPELLANT/DEFENDANT:** **DR.GEORGE KURIAKOSE, S/O.MANIMALA THOMAS KURIAKOSE, AGED 58 YEARS, PALLIKKUNNU P.O., PALLIKKUNNU AMSOM DESOM, KANNUR TALUK, KANNUR DISTRICT.** **BY ADVS. SRI.V.T.MADHAVANUNNI THANKACHAN MATHEW SRI.J.ABHILASH SRI.V.A.SATHEESH** ## **RESPONDENT/PLAINTIFF:** **MERLI THOMAS KURIAKOSE, W/O.MAJOR THOMAS KURIAKOSE, AGED 59 YEARS, PERUMPALLIL, MANIMALA HOUSE, NELLIMATTAM, ONNUKKAL P.O., KOTHAMANGALAM TALUK, ERNAKULAM DISTRICT.** **BY ADVS. P.B.SUBRAMANYAN S.V.BALAKRISHNA IYER (SR.) P.B.KRISHNAN SABU GEORGE MANU VYASAN PETER** **THIS REGULAR FIRST APPEAL HAVING COME UP FOR HEARING ON 19.03.2024, ALONG WITH RFA.638/2012, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ## **SATHISH NINAN, J.** **= = = = = = = = = = = = = = = = = = R.F.A. Nos.638 & 803 of 2012 = = = = = = = = = = = = = = = = = = Dated this the 19[th] day of March, 2024** ## **J U D G M E N T** The suit for recovery of possession on the strength of title was dismissed by the trial court. The plaintiff is in appeal in RFA 638/2012. The defendant has filed RFA 803/2012 challenging the findings of the trial court negativing his claim of rival title and his plea of adverse possession. 2. The defendant is, the plaintiff's husband's brother. According to the plaintiff, the plaint schedule property belonged to her husband as per Ext.A1 Sale Deed dated 01.04.1975, and Ext.B3 certificate of purchase of Land Tribunal dated 09.02.1977. Her husband had executed Ext.A5 Will dated 01.04.1979 bequeathing the property to her. Thus she obtained title over the property. 3. The defendant disputed the title of the plaintiff and her husband. It was contended that the RFA Nos.638 & 803 of 2012 **==> picture [34 x 9] intentionally omitted <==** property belonged to the father under Ext.B3 purchase certificate. The father had executed Ext.B5 Will dated 28.09.1985 bequeathing the property to the defendant. The father died on 24.12.2004. Thus the property vests absolutely with the defendant. He has also raised an alternate plea of adverse possession. 4. The trial court negatived the defendant's contention that the property belonged to the father. The plaintiff's claim regarding title of her husband was upheld. The plea of adverse possession was negatived. However, the court held that Ext.B5 Will has not been proved and accordingly dismissed the suit. 5. I have heard Sri.S.V.Balakrishna Iyer, the learned Senior Counsel and Sri.V.T.Madhavanunni, the learned counsel on behalf of the respective parties. 6. The points that arise for determination are :- - _(i) Is the finding of the trial court upholding the title of_ - _the plaintiff, based on materials ?_ RFA Nos.638 & 803 of 2012 -: 3 :- _(ii) Was the trial court right in having negatived the plea of adverse possession and limitation ?_ _(iii) Having found the title of the plaintiff's husband, is the plaintiff entitled for a decree for recovery of possession dehors Ext.A5 Will?_ 7. The challenge on the title of the plaintiff's husband over the property, and also the rival claim of title with the father is founded upon the confusion in the interchanged usage of names of the plaintiff's husband and of the father. According to the plaintiff, her husband's name is Major Thomas Kuriakose and his father's name is Kuriakose Thomas. However, the father is often addressed as Thomas Kuriakose. This discrepancy is attempted to be taken advantage of by the defendants, is the substance of the plaintiff's case. The defendant would on the other hand contend that, the father's name is Thomas Kuriakose and that the plaintiff's husband is Kuriakose Thomas. RFA Nos.638 & 803 of 2012 -: 4 :- 8. I do not think that the confusion attempted to be created by the defendant with regard to the name of the father and the son (plaintiff's husband) has any substance. The documentary evidence leaves no room for doubt that the name of the father is 'Kuriakose' and the name of the son i.e. plaintiff's husband is 'Thomas'. Ext.A1 is the Sale Deed in favour of the plaintiff's husband. Therein his name is shown as Manimala Thomas Kuriakose, son of Manimala Kuriakose. Ext.B5 is the Will executed by the father and relied on by the defendant to claim title. Therein the father has described himself as Manimala Kuriakose, son of Thomas. It shows that his name is Kuriakose. Ext.B14 is a document of the year 1979 executed by the father in favour of the plaintiff's husband regarding some other property. Therein the executant father is described as, Manimala Kuriakose, son of Thomas and the donee thereunder who is the plaintiff's husband is described as Manimala Thomas, the RFA Nos.638 & 803 of 2012 -: 5 :- son of Manimala Kuriakose. Therefore, it is evident that, the name of the father is ‘Kuriakose’, and the name of the son who is the plaintiff's husband and the brother of the defendant is ‘Thomas’. Though the learned counsel Sri.Madhavanunni would, relying on Ext.A5 Will executed by the plaintiff's husband submit that, in Ext.A5 Will the plaintiff's husband is described as Kuriakose Thomas, and therefore his name is Kuriakose, it has no force. Ext.A6 communication from the Army Headquarters to the Group Commander at Kottayam with a copy marked to the plaintiff describes the plaintiff as Smt.Merly Thomas Kuriakose, W/o late Major Thomas Kuriakose. Therefore, as contended by the plaintiff the defendant is attempting to take advantage of the interchanged usage of the names of the father and son on certain occasions. The Evidence on record is overwhelming to find that the name of the father is ‘Kuriakose Thomas’ and the name of the son who is the RFA Nos.638 & 803 of 2012 -: 6 :- plaintiff's father is ‘Thomas Kuriakose’. 9. With regard to the title over the property, the plaintiff's claim title as per Ext.A1 Sale Deed of the year 1975 and Ext.B3 purchase certificate of the year 1977. Both are in the names of the plaintiff's husband. With regard to the title, the contention of the defendant is twofold; firstly, that Ext.A1 Sale Deed is a sham document. Secondly, that Ext.B3 purchase certificate was issued in favour of the father and not in favour of the plaintiff's husband. 10. As regards the contention that Ext.A1 is a sham document, there is absolutely no evidence to find the same. The sale deed was executed by a stranger to the family viz. one Philipose. No such circumstances are brought out or suggested as to why the parties should have entered into a sham transaction. Exts.A2 to A4 are the prior title deeds relating to the property. The property has been mutated pursuant to the sale. There is RFA Nos.638 & 803 of 2012 -: 7 :- no reason to hold that Ext.A1 is a sham document. The plea was rightly negatived by the trial court. 11. Coming to the plea of the rival title claimed by the defendant, the case set up is that the plaintiff's father had taken the property on oral lease from the jenmi in the year 1970, pursuant to which Ext.B3 purchase certificate was issued in his favour. As found by the trial court, after the year 1964 there could have been a lease in the light of Section 74 of the Kerala Land Reforms Act. Ext.B3 purchase certificate is seen issued in the name of Thomas Kuriakose. As held earlier, Thomas is the plaintiff's husband and not his father. Ext.B3 is issued in favour of plaintiffs husband. Therefore, Exts.A1, A2 to A4 and Ext.B3 purchase certificate establishes the title of the plaintiff's husband over the property. 12. Now coming to the plea of adverse possession, while considering the said plea and appreciating the RFA Nos.638 & 803 of 2012 -: 8 :- evidence, the near relationship of the parties is a significant factor to be taken into account. The plaintiff's husband was a Major in the Indian Army. The father was very much alive while the son was in the army. In the circumstances, the contention of the plaintiff that the father was looking after the property is only probable. He was residing in the house situated in the property. The father died only on 24.12.2004. PW1 has deposed that, in the year 1980 though she made a request to the father to hand over the title deed of the property, it was refused. However, that by itself is not sufficient to constitute adverse possession. There is no evidence of any overt acts having been done in derogation of the title of the plaintiff. The tax receipts produced by the defendant evidence payment of tax in the name of the plaintiff's husband Manimala Thomas. It only shows that the title of the plaintiff's husband was acknowledged and was not refuted. It is in RFA Nos.638 & 803 of 2012 -: 9 :- the said background that the trial court held that the defendant has failed to prove the plea of adverse possession. The said finding warrants no interference. 13. The trial court refused to grant decree to the plaintiff for the reason that the plaintiff failed to prove Ext.A5 Will executed by her husband. Two children, viz. Tess Thomas and Liz Renu were born to the plaintiff and her husband. In the absence of the Will, the plaintiff and the two children are the legal heirs. Before this Court an application has been filed by the plaintiff as IA No.1/2023, seeking leave to amend the plaint to incorporate averments and relief for granting decree to the plaintiff as a legal heir and on behalf of the other legal heirs viz. Liz Renu and Tess Thomas also. Along with the application, the affidavits of Tess Thomas and Liz Renu have been produced. 14. The plaintiff is a legal heir of Major Thomas and one of the legal heirs and co-owners. Even if the RFA Nos.638 & 803 of 2012 -: 10 :- plaintiff is only a co-owner, as against the third party the plaintiff is entitled for a decree for recovery of possession on the strength of title as a co-owner. The court while passing the decree only need to clarify that the decree is granted in the capacity as co-owner and will not entitle the plaintiff to claim title in derogation to the title of the other co-owners.[ _**See Karunakara Pisharady v. Raman 1992 (2) KLT 785**_ ]. In the case at hand, the other co-owners have filed affidavits consenting for decree to the plaintiff as co-owner. In the circumstances, I do not think that an amendment of the plaint as such would be necessary. A decree could be granted to the plaintiff clarifying that the decree is granted in the capacity as co-owner and that it would enure to the benefit of other co-owners also. In the result, RFA 638/2012 is allowed. The decree and judgment of the trial court are set aside and the plaintiff is granted a decree for recovery of possession RFA Nos.638 & 803 of 2012 -: 11 :- of the plaint scheduled property from the defendant on the strength of title. It is clarified that the decree granted enures to the benefit of other co-owners of the property also. RFA 803/2012 is dismissed. No costs. Sd/- **SATHISH NINAN JUDGE** kns/- //True Copy// P.S. to Judge ## **APPENDIX OF RFA 638/2012** ## **PETITIONER ANNEXURES** |**Annexure A**|**NOTARISED **|**AFFIDAVIT **|**OF **|**LIZ **|**RENU **|**DATED,**| |---|---|---|---|---|---|---| ||**27-11-2023**|||||| |**Annexure B**|**NOTARISED**|**AFFIDAVIT**|**OF**|**TESS**|**THOMAS,**|**DATED**| ||**27-11-2023**|||||| -----