Mohanan v. Balan and Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MRS. JUSTICE M.R.ANITHA** **THURSDAY, THE 15[TH] DAY OF DECEMBER 2022/24TH AGRAHAYANA, 1944 RSA NO. 994 OF 2013** **AGAINST THE JUDGMENT AND DECREE IN A.S. No.56/2009 OF ADDITIONAL SUB COURT, IRINJALAKUDA DATED 19.03.2013 AGAINST THE JUDGMENT AND DECREE IN O.S. No.1197/2007 OF PRINCIPAL MUNSIFF COURT, IRINJALAKUDA DATED 23.01.2009** ## **APPELLANT/1ST RESPONDENT/1ST DEFENDANT:** MOHANAN, AGED 55, S/O.PERAMANGALATH RAMAN, KALLOOR VILLAGE DESOM, MUKUNDAPURAM TALUK. BY ADV SRI.G.SREEKUMAR (CHELUR) ## **RESPONDENTS/APPELLANTS 1 TO 4 AND RESPONDENTS 2 TO** ## **4/PLAINTIFFS 1 TO 4 AND DEFENDANTS 2 TO 4:** 1 BALAN, AGED 67, S/O.PERAMANGALATH RAMAN, KALLOOR VILLAGE DESOM, MUKUNDAPURAM TALUK, PIN 680 317. 2 GIRIJA, AGED 52 D/O.PERAMANGALATH RAMAN, KALOOR VILLAGE DESOM, MUKLUNDAPURAM TALUK, PIN 680 317. 3 SARASWATHY, AGED 50, D/O.PERAMANGALATH RAMAN, KALLOOR VILLAGE DESOM, MUKUNDAPURAM TALUK, PIN 680 317. 4 LALITHA, AGED 46, PERAMANGALATH RAMAN, KALLOOR VILLAGE DESOM, MUKUNDAPURAM TALUK, PIN 680 317. RSA No.994 of 2013 2 5 JALAJA, AGED 54, W/O.LATE.PERAMANGALATH MADHAVAN, KALLOOR VILLAGE DESOM, MUKUNDAPURAM TALUK, PIN 680 317. 6 DHANYA, AGED 28, D/O.LATE PERAMANGALATH MADHAVAN, KALLOOR VILLAGE DESOM, MUKUNDAPURAM TALUK, PIN 680 317. 7 RAJESH, AGED 25, S/O.LATE PERAMANGALATH MADHAVAN, KALLOOR VILLAGE DESOM, MUKUNDAPURAM TALUK, PIN 680 317. BY ADVS. SRI.DEEPU LAL MOHAN- R2 TO R7 SRI.T.N.MANOJ -R1 **THIS REGULAR SECOND APPEAL HAVING FINALLY HEARD ON** **01.12.2022, THE COURT ON 15.12.2022 DELIVERED THE FOLLOWING:** RSA No.994 of 2013 3 ## **JUDGMENT** Dated this the 15[th] day of December, 2022 This appeal has been directed against the judgment and decree in A.S.No.56/2009 on the file of Additional Sub Court, Irinjalakuda which in turn arise out of the judgment and decree in O.S.No.1197/2007 on the file of Munsiff's Court, Irinjalakkuda. The suit is one for partition. (Parties would hereafter be referred as per their status before the trial court). Plaintiff, first defendant and the husband of the second defendant are the children of late Peramangalam Raman. Defendants 3 and 4 are the children of deceased Madhavan, the deceased son of late Raman. Late Raman and the mother of the plaintiff and first defendant are no more. Father was in possession of 15 ¼ cents and 58 cents of property in Survey No.27/8/15 and 27/8/16 respectively. After the death of father, RSA No.994 of 2013 4 the property was devolved upon the legal heirs of late Raman and the property is in the joint possession of plaintiffs and defendants. Patta with respect to scheduled property was granted in favour of the first defendant and he has possessed the plaint schedule property for and on behalf of the plaintiff and the other legal heirs of late father. Plaintiffs have 4/6 shares out of the plaint schedule properties and first defendant has 1/6 share over the properties. Annual income from the scheduled properties is Rs.12,000/-. Even though first defendant was repeatedly demanded for partition of the properties, he was not willing for the same. Hence the suit. 2. Defendants 2 to 4 remained ex-parte. First defendant filed written statement denying that the plaint schedule property belonged to deceased father and the plaintiff and other defendants have right over the scheduled property. Plaint schedule property is under his ownership and possession. Patta was issued in favour of the first defendant. Plaintiff and other defendants have no right over the scheduled property and the plaint schedule property is not liable to be RSA No.994 of 2013 5 partitioned. 3. PW1 was examined and Ext.A1 was marked from the side of the plaintiff. DW1 and DW2 were examined and Exts.B1 to B4 were marked from the side of the defendants. 4. The learned Munsiff, on evaluating the facts and circumstances and evidence, dismissed the suit finding that the plaint schedule property is not partible, against which the plaintiffs filed appeal and the first appellate court on reappreciating the facts and circumstances and evidence, reversed the judgment and decree passed by the trial court and found that the 1[st] defendant in his capacity as co-owner acted as constructive trustee of the plaintiffs and other defendants when he obtained patta with respect to plaint schedule property and hence it was found that the plaint schedule property is partible and thereby reversed the judgment and decree passed by the trial court and ordered partition of the plaint schedule property declaring the 4/6 shares of the plaintiffs over the schedule property. 5. Aggrieved by the judgment and decree passed by RSA No.994 of 2013 6 the first appellate court, the contesting first defendant approaches this Court in second appeal. 6. Notice was issued to the respondents/plaintiffs and lower court records were called for and both sides were heard. At the time of admission substantial question of law is framed as in the appeal memorandum which reads thus: _i. Is it not a case where, in view of the fact that Ext.B1 is one issued under the provisions of the Land Assignment Act and Rules, the argument that the patta in the name of one person would ensure to the benefit of all, is not an argument available at all?_ _ii. Is it not a case where only in the case of cultivating tenant or a Kudikidapukaram, under the provisions of the K L R Act, that an argument that the certificate is for and on behalf of all would lie and not in a case of registry on assignment where the primary aspect is the entitlement of the patta holder which gives the patta?_ _iii. Is it not a case where in view of Ext A1 the suit itself is not maintainable?_ _iv. Is it not a case where there is material irregularity in the lower appellate court reversing the judgment of_ RSA No.994 of 2013 7 _the trial court when the circumstances would justify that the trial court was correct and there was nothing of the lower appellate court to interfere with?_ 7. The 1[st] defendant claims absolute right over the plaint schedule property by virtue of Ext.B1 patta issued in his favour. 8. According to the learned counsel for the appellant/1[st] defendant, the property covered by Ext.B1 was exclusively in his possession and unlike a purchase certificate issued under Section 72K of the Kerala Land Reforms Act, 1963, co-owners cannot claim any right with respect to patta issued under Rule 8(2) of Kerala Land Assignment Act. He would also contend that since the patta has been issued in his favour the suit filed without a prayer for declaration is also not maintainable. It is also contended that the plaintiffs are only entitled to receive the amounts as per Ext.A1 if at all it is accepted and hence a suit filed for partition is not maintainable. 9. The learned counsel for the respondents/plaintiffs on the other hand would vehemently contend that the plaint RSA No.994 of 2013 8 schedule property was actually in the possession and enjoyment of father of the plaintiffs and 1[st] defendant. After the death of the father the 1[st] defendant obtained patta in his own name and it would only enure to the benefit of other coowners. 10. The learned counsel in this context relies on **Viswambaran P.N. v. T.P.Sanu and Others [2018(3) KHC 73]** and **Gauri v. Balakrishnan [2011 (4) KLT SN 12 (C.No.12)].** 11. The learned counsel for the 1[st] defendant/appellant would vehemently contend that the decision reported in **Viswambaran P.N. v. T.P.Sanu and Others** has no application in the present case, because in that case the question came up for consideration is with regard to the purchase certificate issued under Section 72K(1) of Kerala Land Reforms Act, 1963 and it is the settled position that the purchase certificate issued to one of the co-owners will enure to the benefit of all. Whereas in the present case, Ext.B1 is the patta issued to the 1[st] defendant under Land Assignment Act RSA No.994 of 2013 9 Rule 9(2) to the person in actual possession irrespective of the fact that he is the cultivating tenant or a lessee of the property. 12. According to the learned counsel, a patta is issued under the Land Assignment Act exclusively to the person in possession of the property on being satisfied of the conditions prescribed under the Act and Rules. So issue of patta, Ext.B1 in the name of the 1[st] defendant itself would prove his exclusive right, title and interest over the property covered by it and it will not in any way enure to the benefit of the other co-owners as in the case of purchase certificate issued under Section 72 K(1). 13. The learned counsel for the plaintiffs would seek in aid of Section 90 of the Indian Trust Act, 1882 and would contend that first defendant obtained patta in his capacity as co-owner and must be taken for the benefit of all the coowners. Section 90 of the Indian Trust Act, 1882, reads as follows: _“Advantage gained by qualified owner.— where a tenant for life, co-owner, mortgagee, or other qualified owner of any property, by availing himself of his_ RSA No.994 of 2013 10 _position as such, gains an advantage in derogation of the rights of the other persons interested in the property, or where any such owner as representing all persons interested in such property, gains any advantage, he must hold, for the benefit of all persons interested, the advantage so gained, but subject to repayment by such persons of their due share of the expenses properly incurred, and to an indemnify by the same persons against liabilities properly contracted, in gaining such advantage.”_ ## 14. Para No.39 of **Viswambaran P.N.** is relevant in this context to be extracted which reads thus: _”39. Section 90 of the Indian Trusts Act, 1882 embodies a well-known principle of equity, justice and good conscience. It incorporates a wholesome doctrine of trust. Section 90 of the Trusts Act is based on the equitable principle that no person in a fiduciary capacity or position can make a profit out of that capacity or position to the detriment of other persons who are beneficially interested in the property. He shall not utilise his position to obtain an advantage to himself. The following conditions are requisite for the application of Section 90 of the Trusts Act. (1) A tenant for life, co-owner, mortgagee or other qualified owner of any property gains an advantage (2) such an advantage is gained by availing himself of his position_ RSA No.994 of 2013 11 _as such and (3) it is in derogation of the rights of other persons interested in the property. It must be shown (1) that the party against whom relief is sought, availed himself of his position; (2) that he gained an advantage by doing so and (3) that the advantage was gained in derogation of the right of the person interested in the property. In other words, a person who is a limited owner by reason of his position must not utilise that position to obtain an advantage to the detriment of his co-owners. It is not necessary that the other persons should prove that the advantage was obtained fraudulently or by misrepresentation or by suppression of true facts. All that the section says is that if there is a person in a fiduciary relation to another, he cannot take advantage of his position so as to gain something exclusively for himself which otherwise he would not have obtained but for the position which he held.”_ _The dictum laid down in_ _**Babani Soiroo Patel v.**_ _**Dulba Govind Bhandari, AIR 1932 Bom.240** was quoted in that case. In that case “the Government acquired land in the year 1865 and forty seven years later, the Government decided that the land should be restored to the persons whom it was acquired. The land was returned to defendant No.1 alone on his repaying the compensation money. Two nephews of_ RSA No.994 of 2013 12 _defendant No.1, who had interest in the property, then sold their two-third share to the plaintiff and he filed a suit for partition and recovery of his share of property from defendant No.1. The question raised was whether, in so far as the transfer to the first defendant is concerned, the land was held by the first defendant himself, for his own benefit or under the principle of Section 90 of the Indian Trusts Act, it was held by him also for the benefit of his two nephews from whom the plaintiff derived his title. It was held that the principle of Section 90 of the Indian Trusts Act applied to the facts of the case and defendant No.1 was directed to restore the two-third share to the plaintiff on payment of proportional part of the compensation money. It was held that where the acquisition of a benefit depends upon the holding of a certain position, and that position is in reality held not by one but by several persons, and yet only one of the several persons acquires that benefit by holding that position, the person acquiring the benefit is a constructive trustee for those several persons.”_ 15. In **Gouri v. Balakrishnan** while dealing with the rights of co-owner a learned Single Judge held that in law possession of a co-owner could only be treated as possession for and on behalf of non-possessing co-owners also unless RSA No.994 of 2013 13 there was an ouster. Hence, possession by one of the coowners for any number of years by itself will not constitute adverse possession unless there was ouster of non-possessing co-owner to his knowledge. 16. **M.Jayanthi v. Surendra Manjeswar 2007** [ **3 KLT 538]** a learned Single Judge of this Court had occasion to consider Sections 3 and 4 of the Land Assignment Act, 1960 (Kerala), Para 15, 18 and 19 are relevant in this context to be extracted which reads thus: _“15. If an item of property was in the possession of Panchi and his legal representatives much before the Assignment Act and the Assignment Rules came into force and if the property is in possession on the basis of the possession of the predecessors, priority might be given to the legal representatives of Panchi, in assigning the land in view of the Rules, as right held by this Court in Ext. P8 judgment. Therefore, the assignment could be made only to inure in favour of all persons entitled to be treated as part of "family" for the purpose of Assignment Rules, or their successors without ignoring the concept of "family" as conceived in the Assignment Rules._ RSA No.994 of 2013 14 _18. During Ext. P8 proceedings, it was noticed by this Court that the availability of assets in excess of the bench marks under the Assignment Rules was also a moot point between the rival parties. The bench mark as to income fixed by the Assignment Rules is clearly indicative of the legislative intention not to assign Government lands to those who do not satisfy such bench marks and the primary intention is that Government lands, which are assignable in terms of those Rules, should be available as national wealth and the Government and the Officers are obliged in terms of the Conservancy Act and the Conservancy Rules to conserve and preserve the Government lands as part of national wealth. Therefore, any decision to assign Government land without specifically concluding in the proceedings that the applicant satisfies the bench marks prescribed by the Assignment Act and Assignment Rules, is against public interest and does not withstand the tests on the basis of the statutory rules and therefore, the Rule of law._ _19. As already noticed, the impugned orders have been passed merely by making reference to Ext. P8 judgment by this Court which, in terms, was essentially intended to guide the exercise of statutory power and not issued after concluding issues on facts; This means that the statutory authorities under the Assignment Act and the Assignment Rules were obliged to adjudicate_ RSA No.994 of 2013 15 _on the rival applications and to consider the entire case as a whole by also viewing it from the conspectus of the claims to possession being referable to Panchi and Korapaly. Bereft of a proper adjudication of those issues on facts, the assignment orders would be baseless.”_ 17. In the present case, the specific case of the plaintiffs is that the plaint schedule property has been in the possession and enjoyment of their father and the father has cleared the forest and planted yielding trees and was in enjoyment. After the death of the father in the year 1978 the 1[st] defendant obtained patta with respect to the property and that can only be taken for the benefit of all the legal heirs of the father as per Section 90 of the Trust Act. To ascertain the real facts it would be necessary to discuss the facts of this case. In the plaint, the plaintiffs has clearly pleaded that the plaint schedule property was owned by their father and after his death it was devolved upon his legal heirs and plaint schedule property is in the joint possession and enjoyment of the plaintiffs and the defendants. RSA No.994 of 2013 16 18. The defendants on the other hand in the written statement denied the averments in the plaint but did not make a specific plea as to when actually he came into possession of this property. During his evidence what he stated is only that he has obtained patta with respect to the property and now it is in his possession and enjoyment. During his evidence, on one occasion he stated that for 30 years he had been in possession of the plaint schedule property and it was a forest land. But on further cross examination he would state that it is in the year 1978 that he took possession of the plaint schedule property. He also could not say as to how long after the application for issue of patta that the patta was obtained. He would also depose that nobody who knew his taking possession of the property is alive in the locality. So also when a specific question was put to him as to how long before the death of the father that he cleared the forest land and taken possession of the property he pleaded lack of memory. 19. A witness DW2 was also examined from the side of the defendants and his evidence is that he had been tapping RSA No.994 of 2013 17 the rubber trees for and on behalf of the defendant for the last three years. But in the written statement or during the evidence of defendant he had no specific case about the planting of rubber trees by him in the schedule property. The 1[st] Appellate Court also relied on the evidence of the PW2. Ext.A1 is photocopy of agreement, the 1[st] defendant did not admit his signature on it or its execution. So being a photocopy and since the signature is not admitted by the defendant , legally it cannot be acted upon. However, PW2 the scribe of Ext.A1 was examined from the side of the plaintiffs. PW2 would depose that at the request of the parties to the suit he prepared the agreement and read over to the parties and all the parties had put the signatures 20. During cross examination, he would depose that the copy of the patta of the property referred in the agreement was produced at the time of the preparation of the agreement. The 1[st] Appellate Court seems to have acted upon the evidence of PW2 and it is also found that Ext.A1 document could be proved through the examination of the PW2. Even if, the RSA No.994 of 2013 18 evidence of PW2 and Ext.A1 is left out, during the examination of the DW1, plaintiff could bring out circumstances to infer that the property was in the possession of the father originally and after the death of the father the 1[st] defendant obtained patta with respect to the plaint schedule property. 21. So evidence of DW1 coupled with the evidence of PW2 and that of PW1 it can reasonably be concluded that Ext.B1 patta was obtained by the 1[st] defendant as a co-owner and hence he can said to be holding the same for benefit of all the co-owners. 22. It has also come out in evidence that the plaint schedule property was mortgaged by the 1[st] defendant for raising fund for the marriage of the daughter of deceased Madhavan. The learned counsel for the 1[st] defendant would content if at all Ext.A1 is taken as proved, the suit ought to have been for specific performance of that agreement. But with the available evidence as rightly found by the trial court, it cannot be found that Ext.A1 has been proved. Moreover, even if it is taken as proved, the same was not worked out . RSA No.994 of 2013 19 So, it will not preclude the plaintiffs from claiming partition of the plaint schedule properties. 23. Hence, on a total evaluation of the facts and circumstances, it can safely be concluded that Ext.B1 patta was obtained by the 1[st] defendant as a co-owner and hence it can only be held that he was holding the property covered by it for the benefit of all the co-owners. 24. So, I am of the considered view that the 1[st] Appellate Court rightly found that the plaint schedule property is partible and allotted 4/6 shares to the plaintiffs. So, I do not find any reason what so ever to interfere with the judgment and decree passed by the 1[st] Appellate Court and hence it is hereby confirmed and appeal dismissed. Considering the relationship between the parties and facts and circumstances, there is no order as to costs. ## **Sd/-** **M.R.ANITHA JUDGE** jsr/SMF //TRUE COPY// PA TO JUDGE