VELAYUDHAN and OTHERS v. GANGAN and OTHERS

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE P.B.SURESH KUMAR** **TUESDAY ,THE 05TH DAY OF FEBRUARY 2019 / 16TH MAGHA, 1940** ## **RSA.No. 97 of 2019** **AGAINST THE JUDGMENT & DECREE IN AS 309/2014 of ADDITIONAL DISTRICT COURT, IRINJALAKUDA DATED 08-08-2018** **AGAINST THE JUDGMENT & DECREE IN OS 735/2012 of PRINCIPAL SUB COURT,IRINJALAKUDA DATED 30-10-2014** ## **APPELLANTS/RESPONDENTS AND DEFENDANTS 1 TO 6 & 8:** **1 VELAYUDHAN, AGED 71 YEARS S/O.CHENGATHATTA KUNJAYYAPPAN, KUNDOOR DESOM, THIRUMUKKULAM VILLAGE, PRESENTLY CHALAKUDY TALUK.** - **2 CHANDRAN, AGED 57 YEARS S/O.CHENGATHATTA KUNJAYYAPPAN, KUNDOOR DESOM, THIRUMUKKULAM VILLAGE, PRESENTLY CHALAKUDY TALUK.** **3 RAMAN, AGED 57 YEARS S/O.CHENGATHATTA KUNJAYYAPPAN, KUNDOOR DESOM, THIRUMUKKULAM VILLAGE, PRESENTLY CHALAKUDY TALUK.** **4 RAVI, AGED 55 YEARS S/O.CHENGATHATTA KUNJAYYAPPAN, KUNDOOR DESOM, THIRUMUKKULAM VILLAGE, PRESENTLY CHALAKUDY TALUK.** **5 THANKAPPAN, AGED 52 YEARS S/O.CHENGATHATTA KUNJAYYAPPAN, KUNDOOR DESOM, THIRUMUKKULAM VILLAGE, PRESENTLY CHALAKUDY TALUK.** - **6 SAROJINI, AGED 51 YEARS** **W/O.LATE RAJU (S/O.LATE CHENGATHATTA KUNJAYYAPPAN), CHENGATHATTA HOUSE, KUNDOOR DESOM, THIRUMUKKULAM VILLAGE, PRESENTLY CHALAKUDY TALUK.** **7 SAJITH, AGED 29 YEARS** RSA.No. 97 of 2019 2 **S/O.LATE RAJU, CHENGATHATTA HOUSE, KUNDOOR DESOM, THIRUMUKKULAM VILLAGE, PRESENTLY AND CHALAKUDY TALUK.** **BY ADV. SRI.T.N.MANOJ** |**RESPONDENTS 1 TO 6 (APPELLANTS 1, 3, 4, 5, 6/PLAINTIFFS**|**RESPONDENTS 1 TO 6 (APPELLANTS 1, 3, 4, 5, 6/PLAINTIFFS**| |---|---| |**2,4,5,6,7), RESPONDENTS 7 TO 9 (ADDITIONAL APPELLANTS 7 TO 9)**|| |**RESPONDENTS 9 TO 12 (ADDITIONAL RESPONDENTS 9 TO 12),- AND 7TH**|| |**DEFENDANT/7TH RESPONDENT**<br>**:**|| |**1**|**GANGAN,**| ||**AGED 70 YEARS**| ||**S/O.CHENGATHARA MANIYAN AND VELLOTHY, THIRUMUKKULAM**| ||**VILLAGE, PRESENTLY AND CHALAKUDY TALUK- 680734.**| |**2**|**LEELA,**| ||**D/O.PALLIKOOTTATHIL MANIYAN, KUZHOOR DESOM,**| ||**THIRUMUKKULAM VILLAGE, PRESENTLY AND CHALAKUDY**| ||**TALUK- 680734.**| |**3**|**BALAKRISHNAN,**| ||**AGED 55 YEARS**| ||**S/O.PALLIKOOTTATHIL MANIYAN, ALAMATTOM DESOM,**| ||**THIRUMUKKULAM VILLAGE, PRESENTLY AND CHALAKUDY**| ||**TALUK- 680734.**| |**4**|**SHEEBA,**| ||**AGED 58 YEARS**| ||**D/O.PALLIKOOTTATHIL MANIYAN, ALAMATTOM DESOM,**| ||**THIRUMUKKULAM VILLAGE, PRESENTLY AND CHALAKUDY**| ||**TALUK- 680734.**| |**5**|**MALLIKA,**| ||**AGED 58 YEARS**| ||**D/O.KUTTILAPARAMBIL SWAMIKUTTY, KUNDOOR DESOM,**| ||**THIRUMUKULAM VILLAGE, PRESENTLY CHALAKUDY TALUK-**| ||**680734.**| |**6**|**KARTHU,**| ||**AGED 79 YEARS**| ||**W/O.LATE KUNJAPPAN, CHENGATHARA HOUSE, KUNDOORMUZHI**| ||**DESOM, THIRUMUKULAM VILLAGE, AND CHALAKUDY TALUK-**| ||**680734.**| |**7**|**SHEELA,**| ||**AGED 46 YEARS**| ||**D/O.LATE KUNJAPPAN, CHENGATHARA HOUSE, KUNDOORMUZHI**| RSA.No. 97 of 2019 3 **DESOM, THIRUMUKULAM VILLAGE, AND CHALAKUDY TALUK680734.** - **8 SHAILA,** **AGED 44 YEARS** **D/O.LATE KUNJAPPAN, CHENGATHARA HOUSE, KUNDOORMUZHI DESOM, THIRUMUKULAM VILLAGE, AND CHALAKUDY TALUK680734.** ## **9 MANOHARAN,** **AGED 57 YEARS** **S/O.KUNJAPPAN, CHENGATHARA HOUSE, KUNDOORMUZHI DESOM, THIRUMUKULAM VILLAGE, AND CHALAKUDY TALUK680734.** - **10 SIVAN, AGED 54 YEARS** **S/O.KUNJAPPAN, CHENGATHARA HOUSE, KUNDOORMUZHI DESOM, THIRUMUKULAM VILLAGE, AND CHALAKUDY TALUK690734.** ## **11 SUGU, AGED 51 YEARS** **S/O.KUNJAPPAN, CHENGATHARA HOUSE, KUNDOORMUZHI DESOM, THIRUMUKULAM VILLAGE, AND CHALAKUDY TALUK680734.** ## **12 VINOJ, AGED 48 YEARS** **S/O.KUNJAPPAN, CHENGATHATTA HOUSE, KUNDOORMOOZHI DESOM, THIRUMUKULAM VILLAGE, AND CHALAKUDY TALUK680734.** ## **13 SAJAN, AGED 33 YEARS** - **S/O.SAROJINI, CHENGATHATTA HOUSE, KUNDOOR DESOM, THIRUMUKULAM VILLAGE, MUKUNDAPURAM TALUK- 680734.** **BY ADV. SRI.G.SREEKUMAR (CHELUR)FOR R1** **THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 05.02.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** RSA.No. 97 of 2019 4 ## **JUDGMENT** Defendants 1 to 6 and 8 in a suit for partition are the appellants. The property sought to be partitioned is an item measuring 10 cents. The suit property was a portion of a larger extent of 16 cents held by one Onjadan and his brother Vallon on lease. Onjadan and Vallon later partitioned the property orally and were holding their respective shares separately. While so, Kunjayyappan, one of the sons of Onjadan obtained Ext.B1 purchase Certificate in respect of the property held by Onjadan on the premise that he is in possession of the property as its lessee. The plaintiffs are some of the grandchildren of Onjadan and the defendants are the remaining grandchildren of Onjadan who are the successors of Kunjayyappan who obtained Ext.B1 purchase certificate. The case set out by the plaintiffs in the plaint is that the suit property devolved on both plaintiffs as also the defendants on the death of Onjadan and his children and that therefore, the property is to be partitioned among them. It is pleaded by the plaintiffs in the plaint that Ext.B1 purchase certificate would inure to the benefit of the plaintiffs also. The suit was resisted by the defendants contending that in so far as Ext.B1 purchase Certificate has been obtained in respect of the property by their predecessor, the RSA.No. 97 of 2019 5 plaintiffs cannot claim rights over the suit property any more. They also contended that the property held by Onjadan was outstanding on a mortgage and it is their predecessor who has redeemed the said mortgage and therefore, the plaintiffs are not entitled to claim partition on that ground as well. They further contended that in terms of the oral partition effected between Onjadan and Vallon, Onjadan obtained only 8 cents of property and the plaintiffs therefore, cannot claim partition of the 10 cents of property in respect of which Ext.B1 purchase Certificate has been issued. The trial court dismissed the suit. The appellate court, however, reversed the decision of the trial court and decreed the suit declaring the 5/6[th] share of the plaintiffs over the suit property. The defendants are aggrieved by the said decision of the appellate court. 2. Heard the learned counsel for the appellants as also the learned counsel for the respondents. 3. The learned counsel for the appellants contended, placing reliance on the Full Bench decision of this court in **Viswambaran** vs **. Sanu** [2018 (2) KLT 947 (FB)] that the plaintiffs have to plead and prove in a case of this nature that the purchase certificate obtained by the predecessor of the defendants would inure to their benefit also. According to the learned counsel, the plaintiffs have not established that the purchase Certificate would inure to the RSA.No. 97 of 2019 6 benefit of the plaintiffs also. It was also contended by the learned counsel that in so far as the predecessor of the defendants has redeemed Ext.A2 mortgage created in respect of the property by Onjadan, the plaintiffs cannot seek partition of the property. It was further contended by the learned counsel that at any rate, in so far as Onjadan had only 8 cents of property, the plaintiffs cannot claim partition of 10 cents of property covered by the purchase certificate. 4. As noted, Exhibit A2 is the mortgage created in respect of the property by Onjadan. While the plaintiffs contend that the said mortgage was redeemed by them, the defendants would contend that the same was redeemed by their predecessor, Kunjayyappan. The appellate Court, on facts, found that the defendants have not established that the mortgage was redeemed by Kunjayyappan as claimed by the defendants. The issue as to whether the stand taken by the defendants that it is Kunjayyappan who has redeemed the mortgage being a pure question of fact, the correctness of the finding rendered in this connection by the appellate court cannot be interfered with by this court in this proceedings under Section 100 of the code of Civil Procedure. If that be so, the finding rendered in this connection by the appellate court has to be accepted as correct. The following are therefore, the questions arising for consideration in the second appeal: RSA.No. 97 of 2019 7 - (I) Is the finding that the plaintiffs are entitled on the facts of the present case, to contend that Ext.B1 purchase certificate is one that would inure to their benefit sustainable in law? - (II)In so far as it is claimed that the leasehold measuring 16 cents was divided orally between Onjadan and Vallon, are the plaintiffs entitled to a decree for partition of the 10 cents of property covered by Exhibit B1 purchase Certificate? 5. Question (1) : The fact that the plaintiffs have pleaded in the plaint that the purchase certificate obtained by the predecessor of the defendants Kunjayyappan would inure to their benefit also is not disputed by the defendants. The argument is only that the said fact has not been established. As noted, there is no dispute to the fact that the suit property was one held jointly by Onjadan and Vallon originally. The predecessor in interest of the defendants Kunjayyappan had no independent leasehold interest in the property. If that be so, the purchase certificate obtained by Kunjayyappan on the basis of the leasehold interest Onjadan had over the property would certainly inure to the benefit of the plaintiffs as well who are the grandchildren of RSA.No. 97 of 2019 8 Onjadan like the defendants. In other words, in so far as there is no dispute to the fact that leasehold interest in the property was one in favour of Onjadan, it is unnecessary for the plaintiffs to prove further that the purchase certificate obtained by the predecessor of the defendants was not one obtained by him in his individual capacity. I do not find anything contrary to this view in the decision of the Full Bench in **Viswambaran** vs. **Sanu** (supra). Question (I) is, therefore, answered in favour of the plaintiffs. 6. Question (II): True, even while admitting that 16 cents of property was orally partitioned between Onjadan and Vallon, the plaintiffs claimed partition in respect of the 10 cents of property over which purchase certificate was obtained by the predecessor of the defendants. It is seen that the defendants have not set up any independent right over any portion of property. Ext.A2 mortgage deed would indicate that the extent of property shown therein as 8 cents is only the approximate extent of the property. It is, therefore, clear that the oral partition effected between Onjadan and Vallon was not based on actual measurement, but on the basis of possession. In the absence of any case for the defendants that they have obtained 2 cents of property independently from any other source, it can, therefore, be presumed that Onjadan might have been in possession of 10 cents of property in terms of the oral partition. If that be so, as RSA.No. 97 of 2019 9 successors of Onjadan, the plaintiffs are entitled to claim partition in respect of the said 10 cents of property. Question (II) is also thus answered in favour of the plaintiffs. In the result, the second appeal is devoid of merits and the same is, accordingly, dismissed. **Sd/-** **P.B.SURESH KUMAR** Mn **JUDGE**