Prakasan v. Lenin and Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN** **THURSDAY, THE 18TH DAY OF OCTOBER 2012/26TH ASWINA 1934** **SA.No.323 of 2003 (E) ---------------------AGAINST THE DECREE AND JUDGMENT IN AS.34/1999 of PRINCIPAL SUB COURT,N.PARAVUR IN OS.298/1990 of MUNSIFF COURT, PARAVUR** **APPELLANT/APPELLANT/PLAINTIFF: -----------------------------** **PRAKASAN, S/O. PADMANABHAN, KANDATHIL, PARAVUL TALUK, MOOTHAKUNNAM VILLAGE THURUTHIPPURAM KARA.** **BY ADV. SRI.CIBI THOMAS** **RESPONDENTS/RESPONDENTS/DEFENDANTS: ----------------------------------** **1. LENIN, S/O. SANKARAN, ANATTU VADAKKEKARA VILLAGE, NEENDOOR MURI, NORTH PARAVOOR** **2. ISHA, D/O. SANKARAN, DO** ***3. SUMATHI, W/O. SANKARAN, DO (DIED)** **(IT IS RECORDED THAT 3RD RESPONDENT DIED AND THAT R1 AND R2 ARE THE LEGAL HEIRS OF THE DECEASED R3, WITHOUT PREJUDICE TO THE CONTENTIONS OF THE RESPONDENTS AS PER ORDER DT. 6.11.2003 ON MEMO DT. 15.10.2003 BEARING CF 5544/03)** **R1 & R2 BY ADVS. SRI.K.RAMACHANDRAN SRI.P.RAMACHANDRAN** **THIS SECOND APPEAL HAVING BEEN FINALLY HEARD ON 18-10-2012 ALONG WITH CROSS OBJECTION NO. 20 OF 2003, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ## **K. VINOD CHANDRAN, J - - - - - - - - - - - - -- - - - - - - - - - - - - - - - S.A No. 323 of 2003 & Cross Objection No. 20 of 2003** **- - - - - - - - - - - - - - - - - - - - - - - - - - - -** ## **Dated this the 18[th] day of October, 2012** ## **J U D G M E N T** The plaintiff claiming to be the 'karanavar' of 'Anattu' family, following the 'marumakkathayam' system, is before this Court against the concurrent judgments rejecting the claim for recovery of possession of plaint schedule properties. The defendants were before the first appellate court as also this Court with Cross Objections against the invalidation of Exts.B1 and B2 assignment deeds. Though the Cross Objection before this Court numbered as 20 of 2003 is not posted in the Board, both counsel agree that the Cross objection can also be heard along with the appeal. 2. 'Anattu' family in the year 1056 M.E entered into a partition by which, shares were set apart for various branches. 71 cents of land, situated in R.S No.280/33 A and B of Vadakkekkara Village, was not partitioned and specifically set apart for the “bharadeivam”(Family deity), which was the “Kalari” itself. One Sankaran, stated to be the uncle of the S.A 323/2003& CO 20/2003 . : 2 : plaintiff was managing the properties and the 'kalari' as per the plaint averments. Sankaran was in management and possession only by virtue of the specific clause in Ext.A1 which conferred such authority on the eldest member of the family(karanavar). The karanavar's right, by Ext.A1; to take the usufructs and income from the property, was only to maintain the 'kalari' and conduct religious rituals therein. 3. Sankaran, had not been, it is alleged, even in his life time maintaining the 'kalari' properly. Exts.B1 and B2 dated 24.11.1982 was executed by the said Sankaran dividing the plaint schedule property equally among his two sons first defendant and second defendant. Sankaran passed away in the year 1990. It was immediately after that the plaintiff approached the Court for recovery of possession, as also the invalidation of Exts.B1 and B2. The trial court and the first appellate court found that Sankaran had no assignable interest in the property and held that both Exts.B1 and B2 are void. With respect to the claim that the plaintiff was the karanavar it was held that the plaintiff had failed miserably to establish his status. S.A 323/2003& CO 20/2003 . : 3 : 4. I have heard the learned counsel for the plaintiff Sri. Cibi Thomas and learned counsel for the respondent Sri. K. Ramachandran. The counsel for the plaintiff would urge that he had pleaded specifically that he was the eldest member of the 'Anattu' family and that he has deposed in consonance with his pleadings. Both the courts below took the statements made by him, in the box, out of context and found the issue against him, is the argument. The learned counsel also would specifically point out that the defendants have not denied his claim to the status of 'karanavar' of the family. He seeks reversal of the judgments rendered by the courts below to the extent the relief of recovery of possession, was declined. 5. The learned counsel for the respondent, however, would contend that the suit itself, as framed, is not maintainable. Though the plaintiff claims to have filed the suit in a representative capacity, in the cause title he is shown in his individual capacity and the relief also seeks recovery in his individual capacity. The learned counsel for the appellant counters that, then, there would have been no requirement for taking out notice under Order 1Rule 8. He also points out that S.A 323/2003& CO 20/2003 . : 4 : it is pertinent that despite the publication none objected to his status as 'karanavar' 6. At the outset, this Court does not think that the claim of the plaintiff being the senior most member of the family can be found on the strength of the publication under Order 1 Rule 8. The publication effected is for suing in a representative capacity. The fact that none objected also cannot lead to a definite conclusion that the plaintiff is the 'karanavar' of the 'Anattu' family. No objections were invited on his claim as a 'karanavar' by the said publication. Order 1 Rule 8 publication is intended to alert any person belonging to a particular group and has an interest in the proceedings initiated in a representative capacity. It does not clothe plaintiff with absolute representative capacity and does not lead to the reliefs being granted if none objects. In fact, sub rule(4) mandates that no part of the claim shall be abandoned or withdrawn; compromised or so on and so forth without further notice under sub-rule(2). This Court is of the opinion that the factum of publication under Order 1 Rule 8 is of no consequence in deciding the claim of the plaintiff as the senior S.A 323/2003& CO 20/2003 . : 5 : most member of the family. The evidence available has to establish the status. 7. The substantial questions of law that would arise on the basis of the appeal memorandum as also the Cross Objection are as follows:- i. Has the courts below erred in finding that the plaintiff has failed to establish himself as the senior most member of the family entitled to manage the affairs of the plaint schedule property as per Ext.A1; when the defendants have not denied the same? ii.Would not the pleadings as well as the oral evidence establish that the plaintiff is the senior most member of 'Anaattu' family and were not the courts below wrong in not having ordered recovery of possession of the plaint property ? iii.Has not the courts below erred in invalidating Exts B1 and B2 since the S.A 323/2003& CO 20/2003 . : 6 : recitals in Ext.A1 would only show that the plaint schedule properties were kept as joint and common property for the family members and has not the defendants by their enjoyment of the property as also the enjoyment of the property by the predecessors-ininterest; in exclusion to all other family members, perfected the title by adverse possession? iv.Is not the findings of the court below that there is a dedication as per the recitals of Ext.A1 clearly erroneous and perverse since the evidence would clearly show that there had been no worship carried on in the property for the last more than 50 years? 8. The evidence before the trial court, for the plaintiff, consisted of the evidence of PW1, the plaintiff, PW2 a neighbour, PW3 an alleged member of the family and PW4 a S.A 323/2003& CO 20/2003 . : 7 : person of the locality. PW1, gave evidence that he is the senior most member of the family. As pointed out by the learned counsel for the respondent, though the claim is said to be made by the plaintiff in his status as 'karanavar' of the family and publication under Order 1 Rule 8, was also taken out the pleadings would show that he claimed the suit properties in his individual capacity. The plaintiff did not at all plead that the prayer for recovery was sought for the benefit of the family or for the purpose for which dedication was made. There is also discrepancy in his oral evidence wherein he had deposed that none of the 'Thavazhies' have persons younger to him. The learned counsel would submit that the first appellate court's judgment would proceed on this obvious mistake alone. On a reading of the first appellate court's judgment it cannot be said that it is on this statement of PW1 alone that the first appellate court rejected the claim of the plaintiff that he is the senior most member. The first appellate court extracted the statement of PW1 only to show that this was contradictory to the version given by PW1 that he is the senior most member. S.A 323/2003& CO 20/2003 . : 8 : 9. In any event, the glaring discrepancies in PW1's evidence cannot be wished away. He claims that Sankaran had two elder brothers. He does not however, say as to whether the brothers of Sankaran are still alive. Even according to him, Sankaran was in possession of the properties and it was on his death, that the plaintiff was elevated to the status of karanavar. The plaintiff claims to be the son of the daughter of Sankaran's sister. More pertinent is that none of the family members have been examined in the case. DW1 in his evidence denied even the status of PW1 as a member of the family. PW3 is the wife of Sankaran's nephew. If we go by the claim of 'marumakkathayees', then, she is not a member of the plaintiff's family. In any event, she does not give evidence as to the status of the plaintiff as the senior most member of the family. Her evidence is to the effect that Sankaran had forcefully evicted all other members of the family from the property and had been holding the same in exclusion to others. She would also contend that there was no 'kalari' being carried on in the said property for the last many years. PW4, an aged person of the locality, who was examined S.A 323/2003& CO 20/2003 . : 9 : on behalf of the plaintiff would also depose that the 'kalari' had not been functioning for the last more than 20 to 30 years. He, however, states that there was such a 'kalari' which was venerated by the predecessors-in-interest of the defendants and still, the persons of the locality occasionally light a lamp in venerance at the place where the 'kalari' was situated. 10. The plaintiff, but, for his plaint assertion that he is the senior most member and his deposition to that end has not attempted to establish his claim. The contention that the absence of a denial would relieve him of the burden to establish his case cannot at all be accepted. For one, the defendants have in their written statement itself denied the claim set up by the plaintiff. They contended that he could not on the strength of the pleadings in the plaint; establish a case for recovery of plaint schedule property or seek setting aside of Exts.B1 and B2 documents. It is also trite that the plaintiff has to stand on his own feet and establish his claim and cannot depend on the weakness of the defendants case to claim the relief prayed for. In the present case, going by the evidence on record, there is absolutely nothing to find that the S.A 323/2003& CO 20/2003 . : 10 : plaintiff is even a member of 'Anattu' family let alone prove his claim that he is the senior most member of such family. The findings arrived at by the lower courts on this aspect based on the materials or lack of it is one on facts and cannot at all be assailed in the instant second appeal. 11. The next question will be with respect to the claim that the plaint schedule properties were held in common by the members of 'Anattu' family. The contention of the learned counsel for the respondent/cross objector is that even going by the pleadings of the plaintiff and the defendants being Marumakkathayees, a joint family as contemplated in that branch of law would stand extinguished on 1.12.1976 after the enactment of the Kerala Joint Hindu Family System (Abolition) Act, 1975. The recitals in Ext.A1 document would at best lead to creation of a charge on the said property for carrying out maintenance of the 'kalari'. 'Kalari' itself as has been evidenced is not in existence for the last more than 50 years. No family member has raised a little finger to carry out the purposes of the alleged dedication. There being no dedication and only creation of a charge; it is contended that the S.A 323/2003& CO 20/2003 . : 11 : properties are in the common ownership of the family members of 'Aanattu'. The defendants even if, held to be not having perfected their title by adverse possession, is entitled to a share in the same as on 1.12.1976, is the contention. 12. The trial court in fact had extracted the recitals with respect to the plaint schedule property in the judgment. It specifically says that the plaint schedule property and the 'pura' thereon as also the 'ara', 'pathayam' together with the 'kalarippura' was not to be subjected to any independent alienations by the executants and beneficiaries of Exts.A1 document and specifically invalidated any such transaction if at all conducted. It was also specified that any debts created by any of the members will not be a charge on the said property. Income of the property was to be taken by the 'karanavar' for the maintenance and upkeep of the 'kalarippura' as also the conduct of religious rituals in the 'kalari' which is considered as the seat of the family deity (bharadeivam). For such conduct of rituals upkeep and maintenance, the said plaint schedule property was kept in common. That is in exclusion and in contrast to any individual S.A 323/2003& CO 20/2003 . : 12 : rights. The recitals would clearly indicate a dedication in favour of the family deity. Merely because, the scheduled properties were kept in common that cannot by itself indicate that the property held jointly by all the members is liable for partition or that the title of which could be perfected by adverse possession. The dedication is very clear from the words used in the document. The evidence would also indicate that for a period of time continuously, and even now, intermittently, there is veneration of the deity by the lighting of the lamp. The mere fact that a person of the family in possession, as the 'karanavar', failed to conduct the rituals and demolished the buildings referred to in Ext.A1 deed would not by itself create an extinguishment of the dedication. The dedication made definitely cannot be resiled from by the dedicator or by any of his descendants. 13. The learned counsel for the respondent has placed reliance on **Sreepadom v. Commissioner of Income Tax (1984 KLT 685), Chellamma Kamalamma v. Narayana Pillai(1993(1) KLT 1740 and Krishnan Nambiar v. Sankara Kurup(1997(1) KLT 310)** to contend that the S.A 323/2003& CO 20/2003 . : 13 : family property in existence before the introduction of the abolition Act would be deemed to be partitioned between the members living and entitled to succeed as on 1.12.1976. No reference to the said decisions are called for in view of the fact that this Court finds that there is a dedication in favour of the family deity going by the recitals of Ext.A1 deed. This finding is in conformity with of the findings entered into by the trial courts. That again is based on the construction of Ext.A1 deed and the specific recitals therein. There is absolutely no ambiguity in the recitals and the said finding also does not give rise to a question of law. In such circumstances, the judgment of the courts below are not liable to be interfered with and the second appeal as well as the cross objection are dismissed. Sd/- ## **(K. VINOD CHANDRAN, JUDGE)** jma //true copy// P.A to Judge