P.N. VISWAMBARAN v. T.P. SANU and others (RSA.No. 708 of 2015)

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE P.SOMARAJAN** **TUESDAY ,THE 12TH DAY OF FEBRUARY 2019 / 23RD MAGHA, 1940** ## **RSA.No. 708 of 2015** **AGAINST THE ORDER/JUDGMENT IN AS 38/2011 of PRINCIPAL SUB COURT,ERNAKULAM DATED 28-02-2015** **AGAINST THE ORDER/JUDGMENT IN OS 1901/2004 of PRINCIPAL MUNSIFF COURT,ERNAKULAM DATED 30-06-2010** ## **APPELLANT:** **P.N.VISWAMBARAN, AGED 79 YEARS, S/O.LATE NARAYANAN, H.NO.296, THRIVENI HOUSE, MUTHEDATHUKAVU, T.V PURAM, VAIKOM TALUK, PIN 686606** **BY ADVS. SRI.ABRAHAM P.GEORGE SMT.M.SANTHY SRI.M.RAJENDRAN NAIR SRI. K.VINOD KUMAR** ## **RESPONDENTS:** **1 T.P.SANU, AGED 45 YEARS, S/O.LATE PRABHAKARAN, H.NO.IV/265, THARAYATH HOUSE, MARADU PO, POONITHURA 6820304 2 T.P.AJANTHA, AGED 44 YEARS, D/O.LATE PRABHAKARAN AND W/O.GOPU, KUTTIYATTIL HOUSE, POONITHURA PO, TRIPUNITHURA 682301 3 T.P.VASANTHA, AGED 43 YEARS, D/O.LATE PRABHAKARAN AND W/O.SUDHEER, NANNAMPILLY NIVAS, TRIPUNITHURA PO 682301 4 T.P.PRASANTHA, AGED 42 YEARS, D/O.LATE PRABHAKARAN AND W/O.SANTHOSH, THARAYATH HOUSE, MARADU PO, TRIPUNITHURA 682301** **RSA.No. 708 of 2015 2** **5 T.P.VRINDA, AGED 40 YEARS, D/O.LATE PRABHAKARAN AND W/O.T.R.SATHYAN, EDOOR HOUSE, VELORE PO, KOTTAYAM 670307** **6 AMBIKA PRABHAKRAN DIED (RESPONDENTS 1 TO 5 AND HER LEGAL HEIRS) 7 KANAKAMMA KUMARAN, AGED 85 YEARS, D/O.LATE LAKSHMI, NADUVATHAZATH VEEDU, MARADU PO, 682304 8 T.V.SIVAJI, AGED 54 YEARS, S/O.LATE VELAYUDHAN, THARAYATH HOUSE, POONITHURA PO, 682301 9 T.V.JAWAHAR, AGED 60 YEARS, S/O.LATE VELAYUDHAN, THARAYATH HOUSE, POONITHURA PO, 682301** **10 T.V.SOBHA, AGED 60 YEARS, D/O.LATE VELAYUDHAN, THARAYATH HOUSE, POONITHURA PO, 682301 11 C.K.JAYAMMA, AGED 54 YEARS, D/O.LATE PADMAKSHI, PRABHA BHAVAN, AUTOMOBILE ROAD, MAMANGALAM PO, PALARIVATTOM 682025** **12 C.K.JAYAN, AGED 50 YEARS, S/O.LATE PADMAKSHI, KAYYATH VEEDU, MAMANGALAM PO, PALARIVATTOM 682025** - **13 SUMATHY SISUPALAN, AGED 80 YEARS, THARAYATH HOUSE, CHAMBAKKARA PO, POONITHURA 682020** - **14 INDIRA SISUPALAN, AGED 80 YEARS,** ## **RSA.No. 708 of 2015 3** **THARAYATH HOUSE, CHAMBAKKARA PO, POONITHURA 682020** **15 SONU SISUPALAN, AGED 48 YEARS, THARAYATH HOUSE, CHAMBAKKARA PO, POONITHURA 682020** **BY ADV. SRI.P.B.PRADEEP** **THIS REGULAR SECOND APPEAL HAVING BEEN FINALLY HEARD ON 12.02.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ## **RSA.No. 708 of 2015 4** ## **JUDGMENT** In a suit for partition the plaintiff who succeeded in the trial court, but failed in the first appellate court, came up with this appeal aggrieved by the verdict given by the first appellate court. 2. The subject matter of the suit comes to 40 cents of property which was originally belonged to Modokkadi Nair Family. It was taken on lease by Cheera in the year 1080 ME, while so one of her son obtained a new lease over the property in the year 1102 ME. His name is Tharayath Raman. The plaintiffs and the defendants are the children born to him in his first wife Kali and second wife Kalyani. In the first wedlock with Kali he was having two children by name Kanakamma and Velayudhan and in the second wedlock with Kalyani ## **RSA.No. 708 of 2015 5** four children, Karthiyani, Padmakshy, Prabhakaran and Damodaran. Damodaran died unmarried and issue less. The defendant Nos. 1, 2 and 9 to 12 are the children of Prabhakaran. The 7[th] defendant and 8[th] defendant are the children of Padmakshy. The third defendant is the son of Kanakamma. The defendant Nos.4 to 6 are the children of Velayudhan. One son Sisupalan pre-deceased him and his legal heirs were impleaded as D13 to D15. The plaintiffs herein is the son of Karthiyani. 3. There is no much dispute with respect to the relationship between the parties being the legal heirs and successors in interest of Tharayath Raman. The dispute is with respect to the grant of Ext. B2 purchase certificate. It was obtained by D1 and D2 and D9 to D12, the children of Prabhakaran in the year 1983. The trial court decreed the suit granting a preliminary decree in ## **RSA.No. 708 of 2015 6** favour of the plaintiff for separation of 1/5[th] share by metes and bounds, being the only legal heir of Karthiyani, one of the daughter of Tharayath Raman born in the second wedlock with Kalyani. The Purchase Certificate is seen obtained by her brother Prabhakaran and his children, the defendant Nos. 1 and 2 and 9 to 12 based on which claimed exclusive right and title over the property. In appeal, the first appellate court reversed the judgment of the trial court and dismissed the suit holding that the Purchase Certificate would not enure to the benefit of all legal heirs which was assailed before this court by way of second appeal. 4. During the pendency of this appeal, this court on taking note of two conflicting decisions rendered in _**Paul V. State of Kerala and another (1981 KLT 721)**_ and the decision drawn in _**Ramakee**_ ## **RSA.No. 708 of 2015 7** _**and others v. Gopi and others (2011 3 KHC 491),**_ referred the issue to a larger Bench. A Full Bench of this court taken up the issue and answered the reference by virtue of the decision reported in ## _**Viswambaran v. Sanu (2018 (2) KLT 947).**_ 5. There is no much dispute with respect to the status of the plaintiff and defendants being the legal heirs and successors in interest of Tharayath Raman. Ext.B2 Purchase Certificate was obtained by Prabhakaran, who is the brother of plaintiff herein. Admittedly they are the children born to Kalyani in the second wedlock of Tharayath Raman. 6. The following substantial questions were taken up by this court at the time of admission. _“a. When a purchase certificate is obtained by a co sharer under the provisions of the KLR Act, in respect of a property, will it not_ ## **RSA.No. 708 of 2015 8** _enure to the benefit of all cosharers ?_ _b. Is it necessary to seek for_ _a declaration or to set aside the purchase certificate so obtained by a co-sharer when the law presumes that the purchase certificate is for the benefit of all co-sharers ?_ _c. Will the finding in Ext.B1 judgment not operate as estoppel against the contesting defendant 1,_ _2 and 9 to 12 to contended that they have exclusive title to the property ?”_ The contention raised by the respondents is that though there is no dispute with respect to the status of plaintiff and defendants being the legal heirs of deceased Tharayth Raman and that Prabhakaran had obtained Purchase Certificate over the property by virtue of the possession held by him over the property in continuation of his predecessor in interest Tharayath Raman, in the **RSA.No. 708 of 2015 9** plaint there is no pleading to the effect that the purchase certificate or any benefit there under would enure to the benefit of all legal heirs. A Full Bench of this Court under reference have summarised the legal position in paragraph 77, in which the summary No.4 demands pleading and proof regarding the acquisition of right by virtue of the Purchase Certificate issued. The legal position was very much settled by the Apex Court in _**Bhagavati Prasad v**_ . _**Shri Chandramaul (1966 KLT Online 1210(SC) = AIR 1966 SC 735)**_ by a Four Judge Bench of the Apex Court. The relevant portion of the judgment extracted below: “If a plea is not specifically made and yet it is covered by an issue by implication, and the parties knew that the said plea was involved in the trial, then the mere fact that the plea was not expressly taken in the pleadings would not necessarily dis entitle a party from ## **RSA.No. 708 of 2015 10** relying upon if it is satisfactorily proved by evidence. The general rule no doubt is that the relief should be founded on pleadings made by thew parties. But where the substantial matters relating to the title of both parties to the suit are touched, though indirectly or even obscurely in the issues, and evidence has been led about them, then the argument that a particular matter was not expressly taken in the pleadings would be purely formal and technical and cannot succeed in every case. What the Court has to consider in dealing with such an objection is: did the parties know that the matter in question was involved in the trial, and did they lead evidence about it ? If it appears that the parties did not know that the matter was in issue at the trial and one of them has had no opportunity to lead evidence in respect of it, that undoubtedly would be a different matter. To allow one party to rely upon a matter in respect of which the other party did not lead evidence and has had no opportunity to lead evidence, would ## **RSA.No. 708 of 2015 11** introduce considerations of prejudice, and in doing justice to one party, the Court cannot do justice to one part, the Court cannot do injustice to another.” Summary No.4 is really subject to the legal position settled by the Apex Court in Bhagavati Prasad's case. In fact, the parties are governed by the legal position settled by the Apex Court in Bhagavati Prasad's case. At this juncture, it is to be borne in mind that there cannot be any pleading and no one can insist for any pleading by the plaintiff at the time of institution of suit when the factum of issuance of a Purchase Certificate not within their knowledge and it was raised only by way of defence by the defendants. There cannot be any pleading in anticipation with respect to any document or issuance of any Purchase Certificate or deed which was not within the ## **RSA.No. 708 of 2015 12** knowledge of the plaintiff at the time of institution of the suit. 7. The legal position was very much covered in Bhagavati Prasad's case. When the party opted to proceed with the suit fully knowing the contention and dispute involved, they cannot on a subsequent stage turned down and advance lack of pleading. In the present case, admittedly a larger interest is held by the predecessor in interest of both the plaintiff and the defendants Tharayath Raman namely lease hold right over the property. By the commencement of Kerala Land Reforms Act, the jenmom right for the purpose of provisions contained in that Act would stand as vested with the government. It is by virtue of that vesting the brother of plaintiffs applied for getting Purchase Certificate. It is really a limited right held by the jenmy and by virtue of vesting of the same ## **RSA.No. 708 of 2015 13** with the government, a power is vested with the government to assign the jenmom right to the person, who is holding the larger interest over the property. The person who was holding larger interest over the property is none else Tharayath Raman. The beneficiary under the Purchase Certificate, Prabhakaran is really claiming under him and litigating under him with respect to the larger interest held by him in the proceeding for getting purchase certificate. If that be so, there need not be specific pleading with respect to the limited right, a nominal right which would enure to the benefit of all the legal heirs, when Purchase Certificate was issued assigning the limited right namely, the jenmom right. The legal position was very much settled by a Division Bench of this court in the earlier decision in Paul's case (supra). The legal position laid down in ## **RSA.No. 708 of 2015 14** Ramakke and others case (supra) is by another coequal Bench of the same High Court. If that be so, the earlier one will prevailed over the latter one, if there is any conflict in the legal proposition laid down. The legal position was also settled by a five Judge Bench of the Apex Court in _**Central**_ _**Board of Dawoodi Bohra Community and another v. State of Maharashtra and another (AIR 2005 Supreme Court 752)**_ and it was subsequently followed by a three Judge Bench in _**New India Assurance Company Ltd., v. Multipurpose Cold Storage Pvt. Ltd. (AIR**_ _**2016 SC 86).**_ So there may not be any quarrel with respect to the legal position that the earlier position rendered by co-equel Bench would prevail over the latter one. So there cannot be any further discussion to hold that whatever the right and benefit obtained under a Purchase Certificate by one of the co-owner would enure to the benefit ## **RSA.No. 708 of 2015 15** of all co-owners and the question of pleading depends upon the nature and character of each and every case and when the parties proceeded fully understanding the dispute and the right if any, claimed or disputed, they cannot turned down on a subsequent stage, after adducing evidence in support of their respective contention. So the reversal of the decree and judgment by the first appellate court is really unwarranted. The first appellate court failed to appreciate the legal position settled in Bhagavati's case (supra) and it has resulted in miscarriage of justice. 8. There is no much dispute with respect to the rate of entitlement by the respective parties. Hence, the plaintiff is entitled to 1/5[th] share over the property and the decree of the trial court granting preliminary decree has to be restored. In the result, this appeal is allowed. The **RSA.No. 708 of 2015 16** decree and judgment of the first appellate court is hereby set aside. The preliminary decree granting partition granted by the trial court is hereby restored. Considering the nature of dispute, the parties are directed to suffer their respective costs of the Second Appeal. Sd/- **P.SOMARAJAN, JUDGE** pm ## **// TRUE COPY // PA TO JUDGE**