S.A. No. 122 of 2000 (F)

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** **THE HONOURABLE MR. JUSTICE A.V.RAMAKRISHNA PILLAI** ## **FRIDAY, THE 12TH DAY OF DECEMBER 2014/21ST AGRAHAYANA, 1936** ## **SA.No. 122 of 2000 (F)** **----------------------AGAINST THE JUDGMENT IN AS NO.337/1994 OF THE SUB COURT, NEYYATTINKARA DATED 24-06-1999** **AGAINST THE JUDGMENT IN OS NO.210/1991 OF THE 1ST ADDITIONAL MUNSIFF COURT, NEYYATTINKARA DATED 23-07-1992** **APPELLANTS/APPELLANTS/DEFENDANTS 1-4 & 7: -----------------------------------------** |**1.**|**JACOB THEPPILOSS, KIZHANGUVILA VEEDU,**|| |---|---|---| ||**KOVIL NEDUMGODE DESOM, ANAVOOR VILLAGE**<br>|**(DIED)**| ||**_(LRs ARE RECORDED)_**|| |**2.**|**DASAMMA, W/O THEPPILOS OF KIZHANGUVILA VEEDU,**|| ||**KOVIL NEDUMGODE DESOM, ANAVOOR VILLAGE.**|| |**3.**|**THEPPILOSS GNANASEELAN, PAMMAMTHALA VEEDU,**|| ||**KOVIL NEDUMGODE DESOM, ANAVOOR VILLAGE.**|| |**4.**|**SUMANGALA, PAMMAMTHALA VEEDU**|| ||**KOVIL NEDUMGODE DESOM, ANAVOOR VILLAGE.**|| |**5.**|**DASAMMA SELVI, PAMMAMTHALA VEEDU,**|| ||**KOVIL NEDUMGODE DESOM, ANAVOOR VILLAGE, MINOR,**|| ||**AGED 15 YEARS, REPRESENTED BY GUARDIAN - 1ST APPELLANT.**|| ||**BY ADV. SRI.L.MOHANAN**|| |**RESPONDENTS/RESPONDENTS/PLAINTIFFS & DEFENDANTS 5 & 6:**||| |**------------------------------------------------------**||| |**1.**|**RASEENA DEVAMMA, MOOVAMCODE, KIZHAKKUMKARA VEEDU,**|| ||**KOVIL NEDUMGODE DESOM, ANAVOOR VILLAGE.**|| |**2.**|**RASEENA SEELAMMA, MOOVAMCODE, KIZHAKKUMKARA VEEDU,**|| ||**KOVIL NEDUMGODE DESOM, ANAVOOR VILLAGE.**<br>|**(DIED)**| ||**_(LH RECORDED)_**|| |**3.**|**DASAN BENGAMIN, MOOVANCODE, KIZHAKKUMKARA VEEDU,**|| ||**ANAVOOR VILLAGE.**|| |**4.**|**DASAMMA EALI, KIZHANGUVILA VEEDU, KOVIL**|| ||**NEDUMGODE DESOM, ANAVOOR VILLAGE.**|| *** THE 1ST APPELLANT IS NO MORE AND APPELLANTS 2, 3 and 5 ARE HIS LEGAL HEIRS AND THEY ARE ALLOWED TO CONDUCT THE APPEAL ON BEHALF OF THE DECEASED 1ST APPELLANT AS PER ORDER DATED 18.09.2014.** *** THE 2ND RESPONDENT IS NO MORE AND HER SOLE LEGAL HEIR, WHO IS THE 1ST RESPONDENT, IS ON THE PARTY ARRAY, AS PER ORDER DATED 18.09.2014.** **BY ADV. SRI.R.T.PRADEEP BY ADV. SRI.I.M.MANOJ** **THIS SECOND APPEAL HAVING BEEN FINALLY HEARD 26.09.2014, THE COURT ON 12.12.2014 DELIVERED THE FOLLOWING:** **bka/-** ## **A.V. RAMAKRISHNA PILLAI, J. --------------------------------------------------** ## **S.A. No. 122 of 2000** **-------------------------------------------------Dated this the 12[th] day of December, 2014** ## **J U D G M E N T** The defendants are in appeal. 2. Respondents 1 and 2 approached the trial court with the suit for partition of the plaint schedule property, which, according to them, belonged to one Arulanandan Yacobe as per sale deed of 1957. He died prior to the institution proceedings. He was survived by his daughter, Rejinal, and his son, who is the 1[st] defendant/1[st] appellant. Rejinal also died in 1989. The plaintiffs and the 5[th] defendant are the children of Rejinal. The plaintiffs allege that they as well the defendants belonged to Hindu Ayyanavar Community. According to them, one half right over the plaint schedule property belongs to the 1[st] defendant and the other half to Rejinal, which, according to the plaintiffs, was inherited by them and the 5[th] defendant on the death of Rejinal. Therefore, they claim 2/3[rd] right over ½ of the property. They allege that the S.A. No. 122 of 2000 ..2.. property is in joint possession of the respondents/plaintiffs and the appellants/defendants. The 2[nd] appellant/2[nd] defendant is the wife of the 1[st] appellant/1[st] defendant; and the 3[rd] & 4[th] appellants/defendants have some right under the 1[st] appellant/1[st] defendant. Though the respondents/plaintiffs requested for partition, the request was turned down by the appellants/defendants. Hence, the suit was filed. 3. Defendants 1 to 4 contended that Arulanandan Yacobe was a Christian. His daughter Rejinal was married off while Yacobe was alive after giving 'sthreedhana' according to the system and law existed at that time. She was given gold ornaments and amount. They further contended that Rejinal has no right to inherit from her father. After the death of Arulanandan Yacobe, the entire property was inherited by the 1[st] defendant and from that date onwards, he was dealing with the property as absolute owner to the exclusion of all others including Rejinal and to their knowledge. They further contended that the 1[st] defendant had executed so many documents since 1968 S.A. No. 122 of 2000 **==> picture [20 x 9] intentionally omitted <==** onwards in favour of others asserting his exclusive right over the property. According to the defendants, the 1[st] defendant has perfected title by adverse possession. The property, at present, is in the possession of transferees from the 1[st] defendant. None of them are made parties to the suit; and therefore, the suit is bad for non-joinder of necessary parties. The plaintiffs have no right over the property and they are not entitled to partition; and hence, defendants 1 to 4 prayed for a dismissal of the suit. 4. The trial court, after raising proper issues for trial, permitted both sides to adduce evidence. At the trial, on the side of plaintiffs, PWs1 and 2 were examined and Ext.A1 was marked. On the side of defendants, DWs 1 and 2 were examined and Exts.B1 to B11 were marked. 5. The trial court, after considering evidence, found that the plaintiffs are entitled to partition. The claim of adverse possession of the defendants was also found against. Thus, the suit was decreed. Though the defendants took the matter in appeal before the first appellate court, the first appellate court also upheld the S.A. No. 122 of 2000 **==> picture [20 x 9] intentionally omitted <==** decree; and it is with this background, the appellants have come up before this Court. 6. During the pendency of the appeal, the 1[st] appellant/1[st] defendant expired; and appellants 2, 3 and 5, who are his only legal heirs, were allowed to proceed with the appeal on behalf of the deceased 1[st] appellant. The 2[nd] respondent/2[nd] plaintiff also expired during the pendency of the appeal; and hence, her sole legal heir, the 1[st] respondent, who is on the party array, was allowed to contest the appeal. 7. Arguments have been heard. 8. Though it was alleged in the plaint that the parties are Hindus, Ext.B1 document executed by the deceased Yacobe reveals that the parties are Christians and they are governed by Christian Succession Act. The stand taken by the appellants is that Rejinal was married off by giving 'sthreedhana' as evidenced by Ext.B1 and as per the system of law then existing, Rejinal had no right to inherit from her father. The learned counsel for the appellants points out that it was only subsequent to the S.A. No. 122 of 2000 ..5.. pronouncement of the law by the apex court in **Mary Roy & Others** v. **State of Kerala & Others** [1986 KLT 508 SC], that the plaintiffs have put forward the claim for the first time though their rights have already been extinguished. 9. It is an admitted fact that Rejinal did not claim any right over the property till her death in 1989. The learned counsel for the appellants would argue that the courts below omitted to note the fact that unless and until Rejinal had inherited the right from her father, the respondents/plaintiffs are not entitled to partition. I see force in the said submission. Without ascertaining the pre-existing rights of the plaintiffs, a decree for partition in their favour is illegal. 10. It is in evidence that as early as in 1965, the 1[st] defendant had asserted his exclusive right over the property. Ext.B2 is a copy of 'purakkadam' deed of 1971 executed by the 1[st] defendant, which makes mention of an early mortgage deed executed in the year 1965. Ext.B3 is another 'purakkadam' deed of 1975, which again makes S.A. No. 122 of 2000 **==> picture [20 x 9] intentionally omitted <==** mention of the mortgage in 1965 as well as Ext.B2 document. Ext.B4 is an assignment deed executed by a mortgagee, who obtained a mortgage with respect to a portion of the suit property in the year 1968 executed by the 6[th] defendant. The assignment is in favour of two sons of the 1[st] defendant. 11. The proposition made by the courts below is that the documents executed within the family circle of the 1[st] defendant will not make possession adverse. The said observation is incorrect, because, Ext.B3 is in the name of a third person. 12. It was strenuously argued by the learned counsel for the respondents that the redemption of mortgage will enure to the benefit of the family even if the property was outstanding in mortgage. It was pointed out that even if the property is outstanding in mortgage, it will not dis-entitle the parties from claiming partition. The learned counsel for the respondents would point out that Rejinal had two unmarried daughters and one son; and the son was in a position to dominate the will of his sisters. However, it S.A. No. 122 of 2000 **==> picture [20 x 9] intentionally omitted <==** is crucial to note that the hostile animus shown and the ouster of Rejinal is itself adverse possession. It is also relevant to note that at no point of time, Rejinal was considered as a co-owner. The respondents, who are the plaintiffs, have no case that Rejinal was unaware of the documents executed by the 1[st] defendant. When joint possession pleaded by the respondents/plaintiffs found to be false, the same should have been considered as ouster of possession. I see valid force in the submission made by the learned counsel for the appellants that the plaintiffs claimed right over the property only on the basis of a decision of the apex court in **Mary Roy** 's case (cited supra). 13. The fact situation of this case is similar to that of **Ammini Tharakan** v. **Lilly Jacob** [2014 (2) KLT 187], where, the state of mind, intention and conduct of the parties were so apparent that it could not be assumed that the plaintiffs had ever thought of any right until the pronouncement of the apex court in **Mary Roy** 's case (cited supra). 14. Though the learned counsel for the respondents S.A. No. 122 of 2000 ..8.. strenuously argued that possession cannot be held to be adverse if it is not referred to a lawful title, the fact situation in the present case reveals that there is clear ouster. May be true that persons holding under the rightful owner's title, such as, trustees, guardians, bailiffs or agents, cannot set up adverse possession against the true owner. Here, in the present case, even Rejinal, of whom the plaintiffs claim to be the legal representatives, was aware that the 1[st] defendant was holding the suit properties with hostile animus to the exclusion of all others. Under such a circumstance, it was not just and proper to grant a decree to the plaintiffs as prayed for. In the result, the appeal is allowed. The judgment and decree of the trial court, which is confirmed by the lower appellate court is set aside. Resultantly, the original suit shall stand dismissed. Parties shall suffer their costs. ## Sd/- **A.V. RAMAKRISHNA PILLAI, JUDGE** bka/- //True copy// PA to Judge