Nani w/o Deceased Raman & others v. Narayanan & others

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN FRIDAY, THE 28TH MAY 2010 / 7TH JYAISHTA 1932 RFA.No. 207 of 2003(C) --------------------OS.434/1995 of SUB COURT, OTTAPPALAM DATED 13/02/2003 .................... ## APPELLANTS/DEFENDANTS 10 TO 14 - LRS OF D1): --------------------------------------------------------- 1. NANI W/O. DECEASED RAMAN. 2. NIRMALA D/O. DECEASED RAMAN. 3. GOPALAKRISHNAN D/O. DECEASED RAMAN. 4. VIJAYAKUMARI D/O. DECEASED RAMAN. 5. CHANDRIKA D/O. DECEASED RAMAN. ALL ARE RESIDING AT PANTHALINGAL HOUSE, KALLUVAZHI DESOM, MOOTHEDATH MADAMBA AMSOM IN OTTAPALAM TALUK. BY ADV. SRI.T.SETHUMADHAVAN SRI.PUSHPARAJAN KODOTH SRI.K.JAYESH MOHANKUMAR ## RESPONDENTS/PLAINTIFFS & DEFENDANTS 2 TO 9): ---------------------------------------------------------- 1. NARAYANAN S/O. DECEASED KELU AND VALLI, PANTHALINGAL HOUSE. 2. YASHODA D/O. DECEASED AYYAPPAN. 3. UNNIKRISHNAN, S/O. DO. 4. SUJATHA, D/O. DO. 5. MANGALAM, D/O. DO. 6. VATSALA, D/O. DO. 7. DEVAKI, AGED 71 YEARS W/O. DO. - (RESPONDENTS 2 TO 6 ARE THE CHILDREN OF AND 7 IS THE WIFE OF 1ST PLAINTIFF'S BROTHER AYYAPPAN) RFA.No. 207 of 2003(C) 8. KELU S/O. DECEASED RAMAN. 9. CHINNU D/O. DO. 10. KUNJIMALU, D/O. DO. DO. 11. NARAYANI D/O. DO. DO. (RESPONDENTS 8 TO 11 ARE THE CHILDREN OF DECEASED RAMAN) 12. LEELA W/O. DECEASED HARIDASAN. 13. MOHANKUMAR S/O. DECEASED HARIDASAN. 14. ANILKUMAR, S/O. DECEASED HARIDASAN. 15. SREEJA, D/O. DO. DO. (ALL ARE RESIDING AT PANTHALINGAL HOUSE, KALLUVAZHI DESOM MOOTHEDATH MADAMBA AMSOM IN OTTAPALAM TALUK) R1 TO R7 BY ADV. SRI.SANTHEEP ANKARATH THIS REGULAR FIRST APPEAL HAVING BEEN FINALLY HEARD ON 28/05/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: RFA.No. 207 of 2003(C) ORDER ON IA NO.1219/2003 IN RFA.No. 207 of 2003 DISMISSED 28/05/2010 SD/- M.N. KRISHNAN, JUDGE ## **M.N.Krishnan, J.** ------------------------------------------ ## **R.F.A.No. 207 of 2003** -----------------------------------------Dated this the 28[th ] day of May, 2010 ## **JUDGMENT** This is an appeal preferred against the judgment and decree of the Subordinate Judge's Court, Ottapalam in O.S.No.434 of 1995. The suit is one for partition. It is the case of the plaintiffs that the property described in the plaint schedule belonged to one Parackal Valli by virtue of a document dated 12.12.1931 (Ext.A1). She had three children, namely, Narayanan, Ayyappan and Raman. Narayanan is the first plaintiff. Ayyappan died and his legal representatives are Plaintiffs 2 to 7. Raman died and his legal representatives are the defendants in the suit including the supplemental defendants. The plaintiffs want partition of their 2/3 share over the property. 2. The defendants would contend that the property never belonged to Parackal Valli, whereas it was obtained by Raman from Koyamangalathu House through an oral lease in 1959 and thereafter R.F..A.No.207 of 2003 - 2 - he had improved the house. So the plaint schedule property is not available for partition. It is also contended that the suit is bad for partial partition. On consideration of the entire materials, the court below granted a decree in favour of the plaintiffs declaring their 2/3 shares over the property and also _mesne_ profits. The court below also left the equity of reservation to be considered in the final decree proceedings. It is against the said decision, defendants 10 to 14 have come up in appeal. 3. Heard learned counsel for the appellants as well as the respondents. 4. It is the case of the plaintiffs that the property belonged to one Parackal Valli by virtue of a document dated 12.12.1931. According to them, th said Valli has three children, namely, Narayanan, Ayyappan and Raman. Narayanan is the first plaintiff and the legal representatives of Ayyappan are plaintiffs 2 to 7 and defendants are the legal representatives of Raman. But, Raman's legal representatives would contend that R.F..A.No.207 of 2003 - 3 - the property did not belong + to Parackal Valli and it was taken on lease by Raman in the year 1959 and thereafter he has effected improvements in the property and so the plaint schedule item is not partible and further that the suit is bad for partial partition for non-inclusion of certain other items of properties. 5. Learned counsel for the appellants contends before me that since the legal representatives of Raman had raised a question regarding tenancy, the matter should have been referred to the Land Tribunal. Admittedly, the defendants are not claiming any tenancy under the plaintiffs. They are claiming tenancy as a separate independent right. Or in other words, they are setting up an independent title. In such a case, the question of tenancy does not arise for determination between the parties to the suit and so a reference under Section 125(3) of the Kerala Land Reforms Act is not necessary. 6. The next contention is regarding the exclusive title of the defendants over the property. The lease set up itself is an oral one. Of course, it is not prohibited by law. But, there R.F..A.No.207 of 2003 - 4 - are absolutely nothing to prove that the said Raman had taken the property on lease, whereas there is a registered document standing in the name of Parackal Valli, the predecessor in interest of the plaintiffs and the defendants. Further, after the death of Parackal Valli, the first plaintiff had obtained the certificate of purchase to the property. He had also been paying tax to the property. When one of the co-owners obtained a certificate of purchase to the property, it will enure to the benefit of the other co-owners as well and, therefore, the certificate of purchase obtained by the first plaintiff will enure to the benefit of all. Therefore, in the light of the materials available on record, I have no hesitation to hold that the property belonged to Parackal Valli and on her death it was devolved upon the persons stated above. Therefore, that finding also does not require any consideration. 7. Learned counsel for the appellants then would contend that the suit is bad for partial partition. The suit has to be thrown out for the defect of partial partition only when the R.F..A.No.207 of 2003 - 5 - court is convinced that without the junction of that item it may not be possible to divide the property. Here the property sought to be partitioned by the defendants is a property which comes through the paternal line and not as through the maternal line and, therefore, the non-inclusion of that property will not hit the suit for partition. Therefore, I find that the suit is not bad for partial partition. This Court in the decision reported in _Gopalan_ v. _Vasu_ (1986 KLT 1100) has also taken a view that a suit for partial partition of co-ownership properties is maintainable. 8. It is submitted by the learned counsel for the appellants that the claim of the plaintiffs is lost by adverse possession and limitation on account of the continuous possession of Raman and his members of family. It is a well settled principle that when a joint family property is held by one of the co-owners, that possession is only for and on behalf of all the co-owners. It will not give any exclusive title to the person holding the same. The fundamental principle is that it must be _nec vi, nec clam, nec precario_ and this has also been held by R.F..A.No.207 of 2003 - 6 - this Court in _Krishnan_ v. _Raman_ (1986 KLT SN 104 Page 63) wherein this Court held that it may not be always possible for each and every co-owner to be in physical possession of a coownership property. Some of them or one of them alone may be in actual physical possession and others may be sharing rents and profits from him or them. Sometimes sharing of rents and profits itself may not be there and some of them or one of them alone may be appropriating the income without sharing the same with others. In all these cases law presumes that the co-owner or co-owners in actual possession is or are so in possession not for himself or themselves alone but on behalf of other co-owners also. So in the light of this decision it has to be stated that when a plea of adverse possession is set up, the party has to plead the date from which his possession has become adverse. Since the contesting defendants are not even admitting the title of the plaintiffs, it is all the more important to assert the hostile title. The fundamental ingredient, namely the hostile animous is to be there and then only it can mature into adverse possession. R.F..A.No.207 of 2003 - 7 - Since the defendants are not seeking any right under the plaintiffs or admitting any right of the plaintiffs, they cannot have any intention to possess the property against them. Therefore, the hostile animous falls and, hence the question of adverse possession and limitation also does not arise for consideration. 9. Lastly, the pleading is related to reservation. I don't want to say anything on it at this stage for the reason that the trial court has relegated that issue to be decided in the final decree proceedings. 10. It is submitted that the first respondent in the appeal is dead and an Interim Application is filed to record the third appellant and the 8[th] respondent as the legal heirs of the deceased first respondent. This is a matter which cannot be adjudicated at this stage and, therefore, the question that who are the legal representatives of Narayanan is to be decided in the final decree proceedings. R.F..A.No.207 of 2003 - 8 - For the above reasons, I do not find any merit in this appeal. Therefore, the appeal lacks merit and the same is dismissed, but under the circumstances without any order as to costs. **M.N.Krishnan, Judge** vns