RFA No. 77 of 2004 (Stephen s/o Late Jacob v. Thresia and others)

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MRS. JUSTICE SHIRCY V.** **WEDNESDAY, THE 21ST DAY OF AUGUST 2019 / 30TH SRAVANA, 1941** **RFA.No.77 OF 2004** **AGAINST THE JUDGMENT & DECREE IN OS 335/2000 DATED 08-08-2003 OF FIRST ADDITIONAL SUB COURT, ERNAKULAM** ## **APPELLANT/1ST DEFENDANT IN THE SUIT:** **STEPHEN, S/O. LATE JACOB, AGED 51 YEARS, VALIKKATHUSSERY HOUSE, KOPPARAMBIL, GANDHI JAYANTHI ROAD, THAMMANOM, POONITHURA VILLAGE, KANAYANNUR TALUK.** **BY ADVS. SRI.T.MADHU SRI.A.SAIN PAUL** ## **RESPONDENTS/PLAINTIFFS 1 & 2 AND DEFENDNATS 2, 3 & 4 IN THE SUIT:** - **1 THRESIA, W/O. LATE JACOB, AGED 71 YEARS, VALIKKATHUSSERY HOUSE, KOPPARAMBIL, GANDHI JAYANTHI ROAD, THAMMANAM, POONITHURA VILLAGE, KANAYANNUR TALUK.** - **2 NISHA, D/O. LATE JACOB, AGED 36 YEARS, VAIKKATHUSSERY HOSUE, THAMMANAM, KOCHI-32.** - **3 PREMA, D/O LATE JACOB, AGED 44 YEARS, THARAYIL HOUSE, CHALIKKAVATTOM, VENNALA, EDAPPALLY SOUTH VILLAGE, KANAYANNUR TALUK, KOCHI-28.** - **4 BEENA, D/O. LATE JACOB, AGED 37 YEARS, RESIDING AT THATTASSERY HOUSE, PERUMANOOR, KANAYANNUR TALUK.** - **5 JANCY, DO.LATE JACOB, AGED 32 YEARS, RESIDING AT KOODARIPPILLY HOUSE, THAIKOODAM, VYTTILA, KANAYANNUR TALUK.** **R1 BY ADV. SRI.P.K.RAVISANKAR** **THIS REGULAR FIRST APPEAL HAVING BEEN FINALLY HEARD ON 28.03.2019, THE COURT ON 21.08.2019 DELIVERED THE FOLLOWING:** RFA.77/2004 2 ## **JUDGMENT** **Dated this the 21st day of August 2019** First defendant in O.S. No. 335 of 2000 on the file of the First Additional Sub Court, Ernakulam is before this Court as the appellant aggrieved and dissatisfied with the judgment and decree dated 8[th] August, 2003 passed against him in a suit for partition. 2. For the sake of convenience, the parties are referred to as per their status before the court below. 3. The 1[st] plaintiff is the widow of one Jacob who is no more. The 2[nd] plaintiff and the defendants 1 to 4 are the children of the 1[st] plaintiff and late Jacob. The plaint schedule property having an extent of 4.150 cents originally belonged to one P.T. Xavier. In the year 1967 Xavier permitted the 1[st] plaintiff and her husband Jacob to put up a hut in the said property and thereafter they started to reside in the hut. The Cochin Corporation has assessed it RFA.77/2004 3 in the name of Jacob and while so, in the year 1983 Xavier, the landlord, expressed his willingness to assign his rights in the property and in the hut in favour of the 1[st] plaintiff and her husband, and thus the 1[st] plaintiff got kudikidappu right over the property. The 1[st] defendant is the eldest son of the 1[st] plaintiff and Jacob, and so the property was assigned in his name by virtue of document No.4633/83 of SRO Thripunithura on behalf of the family. Jacob died on 3.5.1996 and thus the parties have become co-owners of the property, entitled to get 1/6[th] share over the same. The 1[st] defendant availed a loan of Rs.30,000 from Thammanam Co-operative Society by depositing the title deed in respect of the plaint schedule property. But he did not repay the loan amount and so, the 2[nd] plaintiff had re-paid in total an amount of Rs.46,000/- on various occasions and the balance to be paid was only Rs.355/-. The plaintiffs in fact requested the 1[st] defendant to partition the property but, he evaded the same .The RFA.77/2004 4 plaintiffs, therefore, claiming 1/6[th] share each over the plaint schedule property, filed the suit partition. 4. The 1[st] defendant filed written statement inter alia contending that the plaint schedule property is not liable to be partitioned among the parties as alleged. The 1[st] defendant is aged 52 years and from his 7[th] standard onwards he used to assist Xavier, the landlord, and in the year 1973 as the family was residing in a rented building, he requested Xavier to permit him to put up a hut in the property and he permitted the same and thus a hut was put up in 2½ cents of property in the year 1975. Thereafter, the hut was removed and a residential house was constructed with the help of his friends. The document executed by the landlord is a recognition to the permission granted to the 1[st] defendant to put up a building. The allegation that the 1[st] defendant is holding the property as a trustee is not correct. The 1[st] defendant had given his sisters in marriage except the 2[nd] plaintiff, as she was not eager RFA.77/2004 5 to get married. The family of the 1[st] defendant had no kudikidappu right as alleged and in fact the plaintiffs and the other defendants are not entitled to get any right over the property. The 2[nd] plaintiff used to create nuisance in the house of the 1[st] defendant. Therefore, the counter claim is to remove the 2[nd] plaintiff from the plaint schedule building and the property. 5. On the other hand the defendants 2 to 4 contended that they acquired right of kudikidappu over the property and the landlord had assigned the right on their behalf in favour of the 1[st] defendant. 6. The 2[nd] plaintiff thereafter filed replication raising various contentions. The hut was put up in 1967 by the 1[st] plaintiff and her husband who obtained permission from the original landlord. They started to reside in the hut along with the 1[st] defendant, who is their eldest son, and as entrusted by Jacob the father, Xavier had executed the assignment deed in favour of the 1[st] RFA.77/2004 6 defendant. The claim of the 1[st] defendant that he had given his sisters in marriage is absolutely false and that at the time of their marriage the expenses were met by the 2[nd] plaintiff who was working in a private firm, with the assistance of relatives and charity received from Churches and that the 1[st] defendant did not spent any amount towards marriage expenses. The 1[st] defendant though availed loan did not repay the same and hence the 2[nd] plaintiff had repaid and settled the accounts with the Bank. The 1[st] defendant manhandled the 2[nd] plaintiff on various occasions and she had been hospitalized for the same and she had also lodged complaints before the Police. The residence of the 2[nd] plaintiff in the building in the plaint schedule property was not as permitted by the 1[st] defendant and the allegation levelled by him is absolutely false. In fact, the 1[st] defendant shifted his residence in the year 1991 to another house at Chalikkavattom with his family and he has not done anything to get the document of the plaint schedule property RFA.77/2004 7 in his name. So, in short she has claimed 1/6[th] share and denied the contention raised by the 1[st] defendant that her residence in the building in the plaint schedule property was with his permission . 7. Before the court below, to prove the case of the plaintiffs, they were examined as PW1 and PW2 and Exts. A1 to A6 were marked. On the side of the defendants, DW1 was examined. 8. The court below, after evaluation and appreciation of the evidence on record, concluded that the plaint schedule property is liable to be partitioned among the plaintiffs and the defendants and that they are entitled to get 1/6[th] share each over the property. The counter claim raised by the 1[st] defendant was dismissed. 9. Heard the learned counsel for the appellant/1[st] defendant Sri. T. Madhu and Sri. P.K. Ravishankar, the learned counsel for the respondents/plaintiffs 1 and 2 and the defendants 2 to 4. 10. The plaint schedule property is an extent of 4.150 RFA.77/2004 8 cents of land comprised in survey No.243/3 of Poonithura village. It belonged to one Pallath Xavier. The 2[nd] plaintiff and the defendants 1 to 4 are the children of late Jacob and the 1[st] plaintiff Thresia. The 1[st] defendant is the only male child of Jacob and Thresia. Jacob died on 3.5.1996. The suit was filed claiming share as the legal heirs of late Jacob. PW1is the first plaintiff. According to her, the plaint schedule property was owned by Xavier and while so, Jacob her husband had sought permission to put up a hut in the property and as permitted by him, a hut was put up in the year 1967 and they started to reside in the hut. The property was assessed in his name and according to PW1 as per the Kerala Land Reforms Act he was the kudikidappukaran of the said property and hence, as the children and the wife of Jacob, all the parties are entitled to get share in the property. Section 2(25) of the The Land Reforms Act defines a Kudikidappukaran as follows:(relevant portion alone is extracted for RFA.77/2004 9 ## the sake of convenience). “2(25) “Kudikidappukaran” means a person who has neither a homestead nor any land exceeding in extent three cents in any city or major municipality or five cents in any other municipality or ten cents in anypanchayat area or township, in possession either as owner or as tenant, on which he could erect a homestead and- (a) Who has been permitted with or without an obligation to pay rent by a person in lawful possession of any land to have the use and occupation of a portion of such land for the purpose of erecting a homestead; or (b) who has been permitted by a person in lawful possession of any land to occupy, with or without an obligation to pay rent, a hut belonging to such person and situate in the said land; and “kudikidappu” means the land and the homestead or the hut so permitted to be erected or occupied together with the easements attached thereto: Explanation I ,- In calculating the total extent of the land of a kudikidappukaran for the purposes of this clause, three cents in a city or major municipality, shall be deemed to be equivalent to five cents in any other municipality, and three cents in a city or major municipality or five cents in any other municipality shall RFA.77/2004 10 be deemed to be equivalent to ten cents in a Panchayat area or township. ## Explanation 11 -For the purpose of this clause- - “(a) “hut” means any dwelling house constructed by a person other than the person permitted to occupy it- 1. at a cost, at the time of construction, not exceeding seven hundred and fifty rupees; or 2. which could have at the time of construction, yielded a monthly rent not exceeding five rupees, and includes any such dwelling house reconstructed by the kudikidappukaran in accordance with the provisions of Section 79;” ## Homestead is defined as “homestead” means, unless the context otherwise requires, any dwelling house erected by the person permitted to have the use and occupation of any land for the purpose of such erection, and includes any such dwelling house reconstructed by the kudikidappukaran in accordance with the provisions of Section 79. Explanation 11A- to V11..............'' 11. The 1[st] defendant is resisting the suit on the basis of Ext.A1, copy of a deed executed by Xavier in favour of the 1[st] RFA.77/2004 11 defendant. According to the plaintiffs the document was executed to ensure the benefits of all the legal heirs of deceased Jacob and not to give an exclusive right to the 1[st] defendant. So in short, the plaintiffs' case is that Ext.A1 was executed in favour of the 1st defendant as a member of the family for the benefit of the whole family and that too as permitted by Jacob. But learned counsel for the 1[st] defendant would point out that a reading of the document of the year 1983 would show that it is a gift deed executed by Xavier out of his love and affection towards him as he was working with him from the age of 17 years and now attained the age of 45 years and the building in the property was constructed by him 12. Gift is defined in Section 122 of the Transfer of Property Act (T.P. Act for short) as follows; “Gift is the transfer of certain existing moveable or immoveable property made voluntarily and without consideration, by one person, called the donor, to another, called the donee, and accepted by or on behalf of the donee.” RFA.77/2004 12 13. On going through Ext A1, it is revealed that there is nothing to show that the ingredients of Section 122 of the T.P. Act are available in the deed. The recitals in the document would show that the property scheduled in the document was transferred in the name of the 1[st] defendant and the owner had received an amount of Rs.100/- as the purchase price of the property. The recitals will not show that it was without any consideration and made voluntarily by Xavier, the owner to the 1[st] defendant. The main ingredient that the gift was accepted by the donee is conspicuously absent in the document. The recitals would further reveal that it is also not a sale deed as defined under Section 54 of the T.P. Act. But on the other hand it would show that considering the right of the Kudikidappukaran over the property and also on receipt of the purchase price, the transfer of the property had been effected by Xavier. So it is not a document which was executed without RFA.77/2004 13 consideration so as to give the colour of a gift .Like that it is not a sale deed also. 14. Therefore, the moot question for consideration is whether the status of the 1[st] defendant was as of a Kudikidappukaran as per Ext.A1 and his Kudikidappu right was for the benefit of all the family members as alleged by the plaintiffs. It has come out in evidence that PW1 was married to Jacob in the year 1931 and they were residing at Ponnurunni and when that property was acquired by Railway they were compelled to shift their residence to rental buildings. She had deposed that they had resided in the house owned by one Bhaskaran, and also in the buildings owned by one Pathrose, Mohammed and Pacco for quite sometime as they were not having a house of their own and thereafter they put up a hut in the plaint schedule property with the permission of Xavier, the original owner. So the definite case put forth by the plaintiffs is that the hut was put up by Jacob with the RFA.77/2004 14 permission of Xavier in the year 1967 and at that time the first defendant was a minor and Jacob was the kudikidappukaran of the said property and the 1[st] defendant was residing along with the other children of Jacob and 1[st] plaintiff. The evidence was so clear that initially the hut was put up in the year 1967 by Jacob with the permission of Xavier. No contra evidence is forthcoming to discard the evidence on record. According to PW1, the mother of the 1[st] defendant in the year 1967 the 1[st] defendant was a minor and he attained the age of 17 only in the year 1973. Ext.A2 the ration card of the family from the year 1980-81 to 1984-85 would establish a fact that the family of late Jacob was residing in the hut in the property and Jacob was the head of the family. Ext.A3 is a notice issued by Cochin Corporation to Jacob dated 28.9.1978 and Ext. A4 is a bill issued by Cochin Corporation to late Jacob in the address pertaining to the very same property. Ext. A6 is the copy of electoral card issued to Jacob assessing him as an voter in the very RFA.77/2004 15 same address. In fact there is no challenge to these documents. All these documents would unerringly establish the fact that initially Jacob was residing in the hut in the property with his family including the 1[st] defendant and other defendants and the hut was subsequently converted as a homestead. Ext A1 which stands in favour of the 1[st] defendant is not of much significance and it does not assist the 1[st] defendant or would acquire a different character, as the right considered by Xavier for execution of it was the kudikidappu right of Jacob. Therefore, the document has to be treated as one obtained for the benefit of all the members of the family in favour of the 1[st] defendant and same will not confer any exclusive right on him. A perusal of the records would show that on the death of Jacob his Kudikidappu right devolved upon all his heirs in equal shares. The said finding cannot be disturbed. 15. In V iswambaran P.N. v. T.P. Sanu & Others (2018(2) KLT 947) a Division Bench of this Court while answering a RFA.77/2004 16 reference has observed that the finding in Ramakke v. Gopi (2011(3) KHC 491) that the certificate of purchase in whose name it is issued is to be considered as the person in possession of the property is not correct. It is clarified that when a certificate of purchase is issued in the name of one of the co-heirs of the deceased cultivating tenant or one of the co-owners of the property, he cannot be held to be in exclusive possession of the property, and he is to be considered in possession of the property along with the other co-heirs of the cultivating tenant or the other co-owners of the property” . 16. Hence, no doubt the plaint schedule property is liable to be partitioned among the plaintiffs and the defendants. No evidence was produced to substantiate that hut was constructed exclusively by the 1[st] defendant at his expense. On the other hand that the evidence would substantiate the fact the 2[nd] plaintiff was earning to look after the members of the family and so the 1[st] RFA.77/2004 17 defendant cannot claim exclusive right over the building. Hence, his contention is only to be rejected in toto. In short, I find absolutely no justifiable reason to interfere with the finding of the court below decreeing the suit for partition and allotting 1/6[th] share each to the plaintiffs. Hence, I have no hesitation to hold that the appeal is filed without any merits and it is liable to be dismissed and I do so. Accordingly, the appeal stands dismissed confirming the Judgment and decree under challenge. Considering the relationship between the parties, I direct the parties to bear their respective costs. **Sd/-** **SHIRCY V.** **JUDGE** **sb**