Sundarikutty and others v. K. Raman and others

**IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR.JUSTICE K.HARILAL** **TUESDAY, THE 1ST DAY OF JULY 2014/10TH ASHADHA, 1936** ## **CRP.No. 376 of 2009 (A)** **------------------------** **AA 14/2002 of APPELLATE AUTHORITY (LR), ALAPPUZHA SM 205/1999 OF LAND TRIBUNAL, KOTTAYAM** ## **REVISION PETITIONER(S)/RESPONDENTS 2 TO 5/RESPONDENTS 3 TO 6:** **-------------------------------------------------------------------------------------------------** ## **1. SUNDARIKUTTY** - **THAZHAPPALLY KAROTTU, MALLOOSSERRY KARA, PERUMBAIKADU, KOTTAYAM.** ## **2. SIVA PRASAD,** **THAZHAPPALLY KAROTTU, MALLOOSSERRY KARA, PERUMBAIKADU, KOTTAYAM(REP.BY HIS POWER OF ATTORNEY HOLDER THE 1ST PETITIONER SUNDARIKUTTY)** ## **3. PRABHAKARA MENON,** **THAZHAPPALLY KAROTTU, MALLOOSSERRY KARA, PERUMBAIKADU KOTTAYAM(REP.BY HIS POWER OF ATTORNEY HOLDER THE 1ST PETITIONER SUNDARIKUTTY)** ## **4. HARIKUTTAN,** **THAZHAPPALLY KAROTTU, MALLOOSSERRY KARA, PERUMBAIKADU KOTTAYAM (REP BY HIS POWER OF ATTORNEY HOLDER THE 1ST PETITIONER SUNDARIKUTTY)** **BY ADVS.SRI.M.P.MADHAVANKUTTY SRI.GOKUL DAS V.V.H.** ## **RESPONDENTS/APPELLANTS & R1/APPLICANTS &R2/ADDL.R7:** **--------------------------------------------------------------------------------------** ## **1. K.I.RAMAN** **KANJIRATHIL HOUSE, KUDAMALOOR, AYMANAM VILLAGE, KOTTAYAM.** ## **2. ITTIRAH MADHAVAN,** **KANJIRATHIL HOUSE, KUDAMALOOR, AYMANAM VILLAGE, KOTTAYAM.** **3. ITTIRAH RAGHAVAN, KANJIRATHIL HOUSE, KUDAMALOOR, AYMANAM VILLAGE, KOTTAYAM.** **(...2)** **CRP.No. 376 of 2009 (A)** **-:(2):-** **4. ITTIRAH GOPALAN, KANJIRATHIL HOUSE, KUDAMALOOR, AYMANAM VILLAGE, KOTTAYAM.** **5. GOURI, KANJIRATHIL HOUSE, KUDAMALOOR, AYMANAM VILLAGE, KOTTAYAM.** **6. SUBHADRAKUTTY, MINI SADANAM HOUSE, KAVIYOOR P.O., THIRUVALLA.** ## ***ADDL.R7:-** **STATE OF KERALA, REPRESENTED BY GOVT. PLEADER, HIGH COURT OF KERALA, ERNAKULAM. (*ADDL.R7 IMPLEADED VIDE ORDER DT.10-9-09 IN IA 1779/09)** **R7 BY SR. GOVERNMENT PLEADER SMT.SUSHEELA R. BHAT R1 TO 3 BY ADVS. SRI.V.M.KURIAN** **SRI.MATHEW B. KURIAN SRI.K.T.THOMAS** **THIS CIVIL REVISION PETITION HAVING BEEN FINALLY HEARD ON 01-072014, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** **okb** ## **K.HARILAL, J.** **_ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _** ## **C.R.P. No.376 of 2009** **_ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _** Dated this the 1[st] day of July, 2014 ## **ORDER** The revision petitioners are the respondents 3 to 6 in S.M. No.205/99 on the files of the Land Tribunal, Kottayam, as well as the respondents 2 to 5 in A.A. No.14/02 on the files of the Land Reforms Appellate Authority, Alappuzha. The 6[th] respondent herein is the 2[nd] respondent before the Land Tribunal as well as the 1[st] respondent before the Land Reforms Appellate Authority. Suo moto proceedings had been initiated on the report of the Revenue Inspector. But the respondents herein submitted an application for issuance of Purchase Certificate in their favour. In that application, the respondents 1 to 5 stated that their father Ittirah took possession of 82 cents of wet land in Sy. No.69/2 of Kottayam Village from one Narayana Moosath of Chengazhassery Illam, Karapuzha Kara, Kottayam, on lease for the purpose of cultivation. According to them, they were paying Pattam and were enjoying property in _**CRP.376/ 09**_ **:2:** succession of their father Ittirah. While so, the Land Reforms Act has come into force with effect from 1-1-1970 and thereafter they had been in possession and enjoyment of the property though the property had been vested in Government on 1-1-1970. Therefore, they are entitled to get Purchase Certificate under Section 72(c) of the Kerala Land Reforms Act. 2. In the above application, the respondents 1 to 5 arrayed Smt.Subhadrakutty, the sole issue of the deceased landlord Narayana Moosath, as the sole respondent. Subhadrakutty filed objection and contested the matter. After taking evidence, the Purchase Certificate had been issued in favour of the respondents 1 to 5 under Section 72(c) of the Kerala Land Reforms Act. The revision petitioners herein challenged the said order before the Appellate Authority as L.R.A.S. No.48/91 contending that the said Subhadrakutty alone was not the legal heir of the deceased Narayana Moosath and they are also the children born to Narayana Moosath in the wedlock with Ammini Amma. Therefore, the proceedings initiated under the Land Reforms Act without making them also as parties, are unsustainable and thereby the Purchase Certificate issued under the said proceedings is also liable to be set aside. After _**CRP.376/ 09**_ **:3:** hearing both parties, the said appeal was allowed and the matter was remitted back to the Land Tribunal for fresh consideration, after affording an opportunity to contest the proceedings on merits to the revision petitioners. 3. Pursuantly, suo moto proceedings had been re-numbered as S.M.No.205/99 and both parties were given sufficient opportunities to adduce evidence. The respondents 1 to 5 herein produced Exts.A1 to A7 and A.W.1 to A.W.3 were examined for them. The first petitioner was examined as R.W.1 and Exts.B1 to B10 documents were marked for them. After considering the evidence on record, the Land Tribunal passed an order rejecting the claim of tenancy of the respondents and directed the respondents to surrender the Purchase Certificate issued in S.M.No.64/83 to the Tribunal. Feeling aggrieved, the respondents 1 to 5 preferred an appeal before the Appellate Authority as A.A. No.14/02 and after considering the rival claims, the Appellate Authority set aside the impugned order passed by the Tribunal and, thereafter, restored the earlier decision of the lower Tribunal in S.M.No.64/83. The legality and propriety of this order are under challenge in this Revision Petition. _**CRP.376/ 09**_ **:4:** 4. Heard both sides. The learned counsel for the revision petitioners advanced arguments challenging the findings of the Appellate Authority. According to the learned counsel, the Appellate Authority went wrong by making an enquiry as to the genuineness of Ext.B2 Will produced by the revision petitioners. The court below erroneously observed that the bone of contentions in the appeal is genuineness of the Will, whereas the respondents miserably failed to prove that either respondents 1 to 5 or their predecessors-in-interest were in possession and enjoyment of the property as cultivating tenants as on 1-4-1964. According to the revision petitioners, absolutely there is no evidence to show that they were in possession of the property as cultivating tenants before 1983. Similarly, the Appellate Authority, failed to appreciate the report filed by the Revenue Inspector in its correct perspective. The sum and substance of the argument is that even if the entire evidence adduced by the respondents 1 to 5 are taken at its face value, that evidence would not prove their claim that their predecessors in interest were in possession of the property as cultivating tenants as on 1-4-1964. 5. Per contra, the learned counsel for the respondents _**CRP.376/ 09**_ **:5:** advanced arguments justifying the impugned order passed by the Appellate Authority. According to him, the genuineness of the Will is the bone of contention of the dispute. The revision petitioners cannot claim any right over the disputed property unless the genuineness of Ext.B3 Will is proved as required under Section 63 of the Indian Succession Act and Section 68 of the Indian Evidence Act. Further, the learned counsel drew my attention to the oral evidence adduced by A.W.1 to A.W.3 and submits that their evidence is sufficient to prove that the respondents' father Ittirah was in possession and enjoyment of the property before and after 1-4-1964. Further, the learned counsel advanced arguments relying on Exts.A1 to A7 and contended that those documents will support the other evidence adduced by the 1[st] respondent as A.W.1. To fortify the arguments advanced by the respondents, the learned counsel cited **Joseph v. Ippunny (2007 (4) KLT 853)** , **Bharpur Singh and Others Vs. Shamsher Singh (2009 KHC 4239)** and **Ramesh M.B. (D) by Lrs. Vs. K.M. Veeraje Urs (D) by LRs and Others (2013 KHC 4372)** and submitted that the proposition laid down in these decisions unequivocally shows that unless one of the attesting witnesses is called for if he is _**CRP.376/ 09**_ **:6:** alive, a Will shall not be admitted in evidence. 6. In view of the rival submissions, the question to be considered is, whether the Appellate Authority has rendered the decision erroneously or has failed to consider any question of law? Though the respondents 1 to 5 have filed an application claiming their right of tenancy under Section 72(c) of the Land Reforms Act, apparently the proceedings had been initiated as suo moto and the entire proceedings commenced on the report of the Revenue Inspector. As far as the claim of tenancy under Section 72 of the Land Reforms Act is concerned, the point to be considered is, whether the tenants have succeeded in proving that either they or their predecessors in interest were in possession and enjoyment of the property as cultivating tenants as on 1-4-1964. Indisputably, the burden of proof is on the tenants who claim right of tenancy. The above view is supported by **Mayan Vs. Ramanathan (1992 KHC 361)** . In the above decision, this Court held as follows:- “On the crucial date (1-1-1964) the revision petitioner should have been a cultivating tenant. The burden of proof is on him. He did not discharge the said 'burden'. Ext.P1, water tax receipt, was irrelevant to prove possession. In the absence of any material, oral or _**CRP.376/ 09**_ **:7:** documentary, to substantiate the plea that the revision petitioner was a cultivating tenant on the crucial date, the authorities below were justified in dropping the S.M. proceedings and declining to assign the land to the revision petitioner. The order passed by the Appellate Authority, dated 13-11-1984 does not suffer from any error of law or error of jurisdiction. The Appellate Authority has not failed to decide any question of law.” 7. Let us examine the above point on the basis of the evidence available on record. Before that, another point to be considered is, whether the genuineness of the Will was the bone of contention, as observed by the Appellate Authority in this dispute. The arguments advanced by the learned counsel for the respondents is that as rightly held by the Appellate Authority, the genuineness of the Will is the bone of contentions in this dispute. The learned counsel further canvassed the point that one of the requirement of due execution of a Will is its attestation by two or more witnesses, which is mandatory. If a document is required by law to be attested, it shall not be used in evidence until one attesting witness at least has been called for the purpose of proving its execution, if there be an attesting witness alive. Going by the order passed by the Land Tribunal, it is seen that the Will has been produced as Ext.B3 and the _**CRP.376/ 09**_ **:8:** Land Tribunal placed reliance on the Will to show that the disputed property was not in possession of the respondents 1 to 5 at the time when the said Will was executed by Narayana Moosath. Admittedly, Exts.B3 Will is a registered Will. What is indicated in the order passed by the Tribunal is that, had the property been in the possession of the respondents 1 to 5, certainly, that would have found a place in the said Will. The Land Tribunal arrived at a finding that the respondents 1 to 5 miserably failed to prove their possession over the property as cultivating tenants on the crucial date, ie. 1-4-1964. The Land Tribunal further found that the tax receipts produced by the respondents prove their possession from 1976-1977 only. The Authorised Officer in his report reported that no documents had been produced to show the commencement of tenancy from 1952-1953 as alleged by the respondents. The Land Tribunal has placed reliance on Ext.B2 partition deed of 1970 also wherein there was no reference as to the alleged tenancy of the respondents 1 to 5. 8. It is true that according to Section 68 of the Indian Evidence Act, a Will shall not be used as evidence until one attesting witness at least had been called for the purpose of _**CRP.376/ 09**_ **:9:** proving the same. The above provision of the Evidence Act is not intended to mean that a Will is an invalid document, wherever it comes into application, unless one of the attesting witnesses is called for and examined. The Indian Evidence Act is an enactment relating to evidence on which Courts could come to some conclusion about the facts of the case and then to pronounce judgment thereupon. If the proposition argued by the learned counsel for the respondents is accepted, that would make all Wills invariably invalid unless and until one of the attesting witnesses is examined. A registered Will is presumed to be having registered in due compliance with the Registration Act and Rules made thereunder unless any circumstances contrary to the said presumption is brought in pleadings or evidence and proved accordingly. Here, there is no material to rebut the said legal presumption. A third party cannot discard the validity of a registered Will merely by saying that it is not valid unless one of the attesting witnesses is examined. Here, the respondents had not raised any valid challenge or at least a suspicious circumstance against the Will. In such a circumstance, the Appellate Authority exceeded its jurisdiction by discarding the validity of the Will. In short, Section 68 is _**CRP.376/ 09**_ **:10:** applicable to Courts while determining the question of the genuineness of the Will and it cannot be interpreted to mean that a Will is an invalid document unless one of the attesting witnesses is examined. 9. In the instance case, admittedly, the respondents are not parties to the Will and the parties to the Will are the revision petitioners herein and the 6[th] respondent alone. The 6[th] respondent was a party to the entire proceedings from initiation of the earlier suo moto proceedings up to this Revision Petition. The 6[th] respondent has no case that the revision petitioners will not get any right under the Will or that the Will is not genuine. Therefore, in my view, the Appellate Authority went wrong by making an unnecessary enquiry as to the genuineness of the Will and left out the actual issue required to be considered in a claim under Section 72 of the Land Reforms Act. As I held above, the burden is on the respondents 1 to 5 to prove their right of tenancy as on the crucial date, ie 1-4-1964. Instead of it, the Appellate Authority focussed on the validity of the Will unnecessarily. 10. Coming to the evidence on record, going by the revenue report, the crucial document prepared by the _**CRP.376/ 09**_ **:11:** Authorised Officer invoking power under Section 105 of the Land Reforms Act, it could be seen that the Authorised Officer has specifically stated that, in his enquiry, it is revealed that the respondents 1 to 5 had been in possession of the property since the last 15 years only. It is pertinent to note that the above report was filed in the year 1983. If that be so, as per the report of the Authorised Officer, the respondents 1 to 5 had been in possession of the property only from 1968 onwards. The above finding is supported by the documents produced by the respondents 1 to 5. Exts.A1 to A7 series of documents produced by the respondents show the remittance of tax by them from 1976-1977 onwards only. The tax receipts show the possession of land from 1976-1977 onwards and not prior to 1976. They have no other documents to prove the alleged tenancy. It is the specific case of the respondents that the tenancy commenced from 1952-1953. But the Revenue Inspector's report does not admit the respondents' alleged tenancy from 1952-1953 onwards. The Revenue Inspector's report shows payment of tax from 1976-1977. As rightly found by the Land Tribunal, mere possession of the land does not confer right of tenancy to the respondents unless it is proved _**CRP.376/ 09**_ **:12:** that that tenancy commenced from 1-4-1964. The respondents miserably failed to show that the respondents' predecessor in interest was in possession of the property under the alleged lease as on the date of commencement of Land Reforms Act. 11. Consequently, the judgment passed by the Appellate Authority, Alappuzha, will stand set aside and the order passed by the Land Tribunal, Kottayam, in S.M. No.205/99 will stand restored. This Revision Petition is allowed. Sd/- **(** _**K.HARILAL, JUDGE)**_ _okb._