Regular Second Appeal (RSA) No. 734 of 2012, High Court of Kerala at Ernakulam

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE P.SOMARAJAN** **MONDAY, THE 08TH DAY OF JULY 2019 / 17TH ASHADHA, 1941** ## **RSA.No.734 of 2012** **AGAINST THE DECREE AND JUDGMENT IN AS 156/1998 OF DISTRICT COURT, KASARAGOD DATED 16-02-2012** **AGAINST THE DECREE AND JUDGMENT IN OS 34/1997 OF SUBORDINATE JUDGE COURT, KASARAGOD DATED 27-10-1998** **APPELLANTS/APPELLANTS 1 TO 6, 8 TO 11 AND 13 TO 18/ DEFENDANTS 1 TO 12 AND LEGAL REPRESENTATIVES OF D7:** - **1 SMT.KAMALA W/O.LATE KOCHANNA RAI, RESIDING AT UDYAVARA VILLAGE, KASARAGOD TALUK, P.O MANJESHWAR.** - **2 SMT.JAYASHANTHI W/O.BALAKRISHNA SHETTY, RESIDING AT MITTABETTU HOUSE, ULEPADY VILLAGE, MANGALORE TALUK, P.O YILLINJE, KARNATAKA STATE.** - **3 SMT.ARUNDATHI ALIAS BABY W/O.VISHWANATHA SHETTY, RESIDING AT KADENJE, MAINBETTU, MANGALORE TALUK, P.O HAREKALA, MANGALORE TALUK.** - **4 U.CHANDRAHASA RAI S/O.KOCHANNA RAI, R/AT AANWAIKAS, 45 VRI VINAYAKA LAYOUT, IST STAGE MAGADI MAIN ROAD, BANGALORE 560 079.** - **5 SMT.SUJATHA W/O.KISHORE KUMAR HEGDE, RESIDING AT C/O.SMT.M.KAMALA, W/O.KOCHANNA RAI, UDYAVAR VILLAGE, KASARAGOD TALUK, P.O MANJESHWAR.** - **6 SMT.JYOTHI** - **W/O.JAGADEESHA SHETTY, C/O.M.KAMALA,, W/O. LATE KOCHANNA RAI, UDYAVAR VILLAGE, KASARAGOD TALUK, P.O MANJESHWAR.** - **7 LOKAYA** - **S/O.MARU MOOLYA, R/AT NEAR VILLAGE OFFICE, UDYAVAR VILLAGE, KASARAGOD TALUK, P.O MANJESHWAR.** RSA.No.734 of 2012 2 - ***8 MANJAPPA, (DIED) L.R'S IMPLEADED S/O.PONNAKKU, CARPENTER, R/AT KUNJATHUR HIGH SCHOOL, KUNJATHUR VILLAGE, P.O MANJESHWAR.** - ***9 LINGAPPA,(DIED) L.R'S IMPLEADED S/O.PONNAKKU,BEEDI ROLLER, R/AT VORKADY NEAR BAKKERY VORKADY VILLAGE AND POST, KASARAGOD TALUK.** - ***10 KORAGAPPA,(DIED) L.R'S IMPLEADED S/O.PONNAKKU, MERCHANT, R/AT NEAR VILLAGE OFFICE, UDYAVAR VILLAGE, KASARAGOD TALUK, P.O MANJESHWAR.** - **11 ISHWARA A** - **12 VAMANA A** - **13 CHANDRAVATHI A W/O.JAYARAMA** - **14 VARIJA W/O.KORAGAPPA.** - **15 SEETHARAMA** - **16 INDIRA W/O.SUBBAS.** **APPELLANTS 11 TO 16 ARE CHILDREN OF LOKAYYA, APPELLANTS 11, 12 AND 15 ARE RESIDING AT NEAR VILLAGE OFFICE, UDYAVAR VILLAGE, KASARAGOD TALUK, P.O.MANJESHWAR.** **APPELLANT NO.13 IS RESIDING AT PACHALIKE HOUSE NEAR MAHALINGESHWAR TEMPLE, KUNJATHUR, KUNJATHUR VILLAGE AND POST, KASARAGOD TALUK.** **APPELLANT NO.14 IS RESIDING AT CHAKRKODI, KALIYOOR VILLAGE, KASARAGOD TALUK, P.O.SUNKATHAKATTE.** - **SUPPLIMENTAL APPELLANTS 17 TO 19** - **17 PUSHPAVATHI, W/O. MANJAPPA, UDYAVAR VILLAGE KASARGOD, P.O.MANJESHWARA – 671 323** - **18 YAMUNA, W/O LINGAPPA UDYAVAR VILLAGE, KASARGOD, P.O.MANJESHWARA 671 323** RSA.No.734 of 2012 3 - **19 SAROJINI, W/O. KORAGAPPA, S/O. PONNAKKU R/AT NEAR VILLAGE OFFICE, UDYAVAR VILLAGE KASARGOD P.O., MANJESHWARA 671323** **THE LEGAL REPRESENTATIVES OF DECEASED APPELLANT 8,9 AND 10 ARE IMPLEADED AS SUPPL. APPELLANTS 17, 18 AND 19 RESPECTIVELY AS PER ORDER DATED 08.07.2019 IN I.A. NO. 7/2019** ## **BY ADV. SRI.K.G.GOURI SANKAR RAI** ## **RESPONDENTS/RESPONDENTS 1-4,6 & 7, PLAINTIFFS 1-4,6 & 7:** - **1 LAKSHMI (STRUCK OFF)** **THE NAME OF THE 1ST RESPONDENT IS STRUCK OFF AND RESPONDENTS 2 TO 6 ARRAYED AS RESPONDENTS 1 TO 5.** - **1(2) SUKUMARA SHETTY** ## **2(3) SHASHIKALA ALIAS SHASHILATHA,** - **3(4) PRAKASHA SHETTY,** - **4(5) NIMMI ALIAS VANITHA,** ## **5(6) SUDHISH ALIAS SUDHEER SHETTY,** - **NO.1 IS WIDOW AND NOS.2 TO 6 ARE CHILDREN OF LATE RAMANNA SHETTY, RESIDING AT UDYAVAR GATHUD HOUSE, UDYAVAR VILLAGE, KASARAGOD TALUK, P.O.MANJESHWAR.** - **THE WORDS 'NO.1 IS THE WIDOW AND NOS.2 TO 6' OCCURRING IN THE ADDRESS OF THE RESPONDENTS ARE DELETED AND THE WORDS 'NOS.1 TO 5' SUBSTITUTED AT THE RISK OF THE APPELLANTS AS PER ORDER DATED 28.2.13 IN IA.639/2013.** ## **BY ADVS. SRI.D.KRISHNA PRASAD SRI.G.SREEKUMAR (CHELUR)** **THIS REGULAR SECOND APPEAL HAVING BEEN FINALLY HEARD ON 08.07.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** RSA.No.734 of 2012 4 ## **JUDGMENT** The defendants came up with this appeal aggrieved by the concurrent finding rendered by the trial court and the First Appellate Court in a suit for recovery of possession. By virtue of the suit, the plaintiffs claimed recovery of seven items of property based on Ext.A1 partition deed, dated 24.11.1965. Both the courts below found that the plaintiffs, who are party nos. 2 to 8 in Ext.A1 partition deed are entitled to recover possession of the property based on a covenant incorporated in Ext.A1 partition deed. Aggrieved by the said decree and judgment, the defendants came up with this appeal. 2. The following questions were raised at the time of admission:- - i) Have not courts below committed an error of law in the construction of Ext.A1, partition deed ? - ii) If there is conflict between the recitals in a partition deed and the statutory provisions regarding succession relating to the RSA.No.734 of 2012 5 properties alloted to the sharer which should prevail ? - iii) Can the provisions in Sec. 36(5) of the Madras Aliyasanthana Act have relevance after the coming into force of Indian Succession Act? If not, is not the decision of lower appellate court bad under law? - iv) Is not the decision of courts below contrary to law laid down in A.I.R. 1980 SC 198 holding that Sec. 36(5) of the Aliyasanthana Act should give way to the provisions of the Hindu Succession Act. 3. Yet another question also came up for consideration in addition to the above said question, that whether it is permissible to grant recovery of possession with respect to a property, wherein the title is under the shadow of doubt and when it is disputed by the defendants and a mere suit for recovery of possession without a substantial prayer for declaration of title would be maintainable. 4. The substantial questions which were framed at the time of admission are pertaining to the construction of Ext.A1 partition deed of the year 1965 and also the question whether it is permissible to the RSA.No.734 of 2012 6 parties to enter into a partition or division in contravention of provision contained in Aliyasanthana Act, 1949(TN) ? 5. The learned counsel for the appellants relied on the decision rendered by the Apex Court in **Sundari and Others v. Laxmi and Others [AIR 1980 SC 198]** and Section 7(2) and Section 8 of the Hindu Succession Act, 1956 and Section 36(5) of the Aliyasanthana Act, 1949(TN). What is discussed by the Apex Court in that decision is the effect of Section 36(5) of the Aliyasanthana Act, 1949(TN) and the change in the legal status by the commencement of the Hindu Succession Act, 1956. A detailed discussion was made by the Apex Court with respect to the application of Sections 7(2) and 8 of the Hindu Succession Act, after its commencement in relation to the earlier Act, Aliyasanthana Act, 1949(TN). But the legal position settled in that decision will not give any assistance to the case advanced by the appellants/defendants on the reason that the predecessor in interest of the defendants, their father along with the plaintiffs earlier RSA.No.734 of 2012 7 entered into Ext.A1 partition deed with respect to the property held by the family. It is true that in Ext.A1, only a life interest alone was seen given/allotted to the share of the father of the defendants, might be on the reason that at that time he was not having any lineal descendants. So a clause was incorporated in Ext.A1 partition deed, by which it is agreed upon by the parties that after the death of the father of the defendants, the first party to the document, whatever right and title and interest allotted to his share over the immovable properties will go to the party Nos. 2 to 8 in the document. It is also made mentioned in the document that the party No. 1 shall not have any right to either encumber or to alienate the property allotted to his share, the A schedule in the document. This clause was incorporated by taking advantage of provisions contained in the Madras Aliyasanthana Act, 1949 and it is also referred in Ext.A1 document in the place wherein the above said clause was incorporated, based on which, it is argued that the said clause was not in accordance with the provisions contained in the Madras RSA.No.734 of 2012 8 Aliyasanthana Act, 1949 and that what is entered into, and the covenants agreed upon reduced into writing in a registered document when found to be not in accordance with the Madras Aliyasanthana Act, 1949, it will not bind upon the parties. But there is no provision anywhere in the statute limiting the liberty of a particular person either to give up the entire property right or title over immovable property or in part or to reserve some limited right over the property, which he is entitled as per the provisions of law. It is solely vested with the person. When a person opted to receive only a life interest of a part of property in a partition deed and a clause was incorporated in that document to that effect and when it was found to be executed with free consent and volition, it will operate against him and there cannot be any provision limiting or debarring a particular person to exercise his proprietary right over the immovable property in accordance with his whims and fancies, wherein there is no role to be played either by the Aliyasanthana Act, 1949 or provisions contained in the Hindu Succession Act, 1956. As such the decision RSA.No.734 of 2012 9 rendered by the Apex Court really standing on a different footing, the appellants/defendants cannot take any advantage from that decision as the predecessor in interest had opted to reserve only a life interest over the property by the above said covenant incorporated in the document of partition. 6. But the above said clause was incorporated after getting a partition dividing the property into two by considering its value, nature and the usage of the property. It was categorically agreed into by the parties that in future they will not raise any claim for repartition or claim over the property allotted to the respective shares. It is thereafter, another paragraph was incorporated that the first party in the document will get only a life interest over the property and he will not have any alienable right over the property. But, that clause was incorporated in view of provisions contained in the Aliyasanthana Law and specified accordingly in the said clause itself. So, in order to have a proper interpretation of the abovesaid clause and what actually intended by the parties it has to be RSA.No.734 of 2012 10 gathered in relation to the reference made therein regarding Aliyasanthana Law. Admittedly, at that time the first party was not having any lineal descendants, that might be the reason such a clause was incorporated by maintaining the property as such though allotted to the share of first party in the document, subject to the provisions of Aliyasanthana Law with a rider that the property will go back to the party No. 2 to 8 after the death of first party, it was argued by the learned counsel for the appellant. There is much weight in the argument since there is a reference to the provision contained in the Aliyasanthana Law by incorporating such a clause which is really just opposite to what actually agreed into by the parties in the previous paragraphs of Ext.A1. Though the document is styled as partition, the clauses contained in earlier paragraph of Ext.A1 are in conflict with the clause incorporated in the last paragraph by allotting the property of party No.1 to party Nos.2 to 8 after his death with a rider that the party No.1 will not have any right of alienation and to create any RSA.No.734 of 2012 11 encumbrance over the property. But, in the earlier paragraph the properties were divided into two and one part given to party No.1 and the other part given to party Nos.2 to 8 by effecting partition. Needless to say that there is something fishy in the last paragraph which would take away even the purpose in which a partition was effected under Ext.A1. 7. The properties were in the possession of defendants and they had obtained purchase certificates (Exts.B10 and B15). The present suit is one for recovery of possession without a substantial relief of declaration of title in spite of grant of Exts.B10 and B15 purchase certificates in favour of the defendants. There is no prayer to set aside those documents or to declare the title of plaintiffs over the property. The defendants claim acquisition of title over the property both under Exts.B10 and B15 purchase certificates besides the claim under Ext.A1. In short, the instant suit involves disputed question of title. But, there is no relief to adjudicate the disputed question of title and a simple suit for partition would not stand. The decree and RSA.No.734 of 2012 12 judgment of both the Trial Court and the First Appellate Court hence set aside. The matter is remanded back to the Trial Court so as to enable the plaintiffs to incorporate substantial relief in the suit. The parties may be permitted to adduce additional evidence and to amend their respective pleadings, if it is found necessary. The Trial Court shall dispose of the matter within six months untramelled by any of the observations made in this judgment. The parties shall appear before the Trial Court on 13.08.2019. Appeal is allowed in part accordingly. No costs. **SD/-** **P.SOMARAJAN** **JUDGE** DCS