Kerala High Court
Saradha vs Narayani on 10 December, 2008
Author: V.Ramkumar
Bench: V.Ramkumar
IN THE HIGH COURT OF KERALA AT ERNAKULAM
RSA.No. 927 of 2008()
1. SARADHA, W/O.P.G.RAMACHANDRAN,
... Petitioner
Vs
1. NARAYANI, W/O.KORU, PARAPPANTHUKALIL,
... Respondent
2. SANTHA VIJAYAN, W/O.VIJAYAN, MUNDAN
3. SREEDHARAN, S/O.LATE KALIKUTTY,
4. VIJAYAN, S/O.VELAYUDHAN,
For Petitioner :SRI.K.JAYAKUMAR
For Respondent : No Appearance
The Hon'ble MR. Justice V.RAMKUMAR
Dated :10/12/2008
O R D E R
V.RAMKUMAR,J.
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R.S.A. No. 927 of 2008
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DATED: 10-12-2008
JUDGMENT
The 4th defendant in O.S. 37/1998 on the file of the Munsiff's Court, Aluva is the appellant in this Second Appeal. The said suit was filed by three plaintiffs for partition and separate possession of their share over the plaint schedule properties admeasuring 1.25 acres. Plaintiffs 1 and 3 claimed 3/18 shares each and the 2nd plaintiff claimed 1/18 share.
2. The findings as concurrently recorded by the courts below are to the following effect:-
The plaint schedule properties belonged on tenancy right to one Kandamkoru @ Koru. He had four daughters and two sons. The first plaintiff, deceased Kalikutty and defendants 9 and 10 are the four daughters and deceased Velayudhan and deceased Kumaran are the two sons. The 3rd plaintiff is the son of deceased kalikutty. The wife of Velayudhan was one R.S.A. No. 927 of 2008 -:2:- Karthiyayini. 7th defendant is the widow of deceased Kumaran. Defendants 1 to 6 are the children of Velayudhan who died in the year 1968. 2nd plaintiff and the 8th defendant are the children of late Kumaran. As mentioned earlier the plaint schedule properties belonged on lease hold rights to Kandamkoru @ Koru as per a registered deed of 1092 M.E corresponding to the year 1917. O.S. 192 of 1123 was a suit filed before the Munsiff's Court, North Paravur by the legal heirs of the jenmi for arrears of rent against the legal heirs of Kandamkoru @ Koru. The said suit was decreed for realisation of the arrears of rent by sale of the holdings. While so, the right under the decree and also the reversionary rights of the landlord were purchased by Velayudhan as per Ext.B1 sale deed of the year 1124 M.E. corresponding to the year 1949. After the death of Velayudhan his widow Karhiyayini obtained Ext.B2 certificate of purchase dated 30-7-1981 over the property from the competent Land Tribunal. Ext.B3 is a release deed dated 23-4-1970 executed by the first plaintiff in favour of defendants 1 to 6 and Karthiyayini releasing her right over the plaint schedule property. Similarly, Ext.B4 is a release deed dated executed by the 9th defendant in favour of Velayudhan. Likewise, Ext.B5 is a R.S.A. No. 927 of 2008 -:3:- release deed dated 16-3-1959 executed by the 10th defendant in favour of Velayudhan relinquishing her right over the plaint schedule property. Ext.B6 is a registered relinquishment dated 4-9-1964 executed by Kalikutty in favour of Velayudhan for having surrendered her rights over the plaint schedule property after receiving a consideration of Rs. 100/-.
3. The suit was resisted by defendants 1 to 6 contending inter alia that the plaint schedule property was the exclusive property of Velayudhan who obtained the same under Ext.B1 sale deed and that the rights if any of the plaintiffs and others over the same were lost by adverse possession and limitation and ouster.
4. The trial court found that the plaint schedule properties belonged to Kandamkoru @ Koru, that Velayudhan did not get possession of the property from the other tenants in common, that defendants 1 to 6 have not succeeded in proving adverse possession and limitation that since first plaintiff Kalikutty and defendants 9 and 10 had released their rights in favour of the other co-owners, they including the 3rd plaintiff could not get a share over the properties. Accordingly, a preliminary decree was passed allotting 1/18 shares to 2nd R.S.A. No. 927 of 2008 -:4:- plaintiff and defendants 7 and 8 each and 15/18 shares to defendants 1 to 6 jointly. On appeal preferred by the appellant/4th defendant, the lower appellate court has confirmed the preliminary decree passed by the trial court. Hence, this Second Appeal.
5. The following are the questions of law formulated in the memorandum of Second Appeal:-
A) would not a purchase of a decree for money for arrears of pattom by sale of the leasehold interest of the legal representatives of the lessee, as also the right of reversion of the lessor, by one of the legal heirs of the original lessee, terminate or extinguish the fractional leasehold interest of the other legal heirs of the original lessee ?
B) When such legal heir of the original lessee at the time of such purchase was in exclusive possession, should be take delivery in execution of the decree after such purchase, actual or symbolical, before he can be said to have exclusive rights in the property ?
C) Does the termination of the fractional leasehold right of Kumaran, the predecessor of plaintiff No.2, has anything to do with the taking or not taking delivery of property by Velayudhan ?
D) Would the releases by the sisters of Velayudhan import the continuation of the fractional leasehold interest in the R.S.A. No. 927 of 2008 -:5:- hands of Kumaran's legal representatives on the facts and in the circumstances of the case ?
6. The learned counsel appearing for the appellants assailed the preliminary decree passed by the courts below by making the following submissions :-
With the purchase of the decree for arrears of rent together with the right of reversion of the lessor by Velayudhan, one of the legal heirs of the original lessee, it would extinguish the fractional lease hold interest of the other legal heirs. It was not necessary for Velayudhan to execute the decree for getting exclusive possession. The appellant is also relying on the question of law formulated in the memorandum of appeal.
7. I am afraid that I cannot agree with the above submissions. The recitals in Ext.B1 are very clear to the effect that the properties were obtained on leasehold rights by Kandamkoru @ Koru as per the registered lease deed of the year 1092 M.E. And that after the death of Koru the executee (Velayudhan) and others are holding the properties and that the rights under the decree including the rights of the executants are being assigned to Velayudhan, the executee. When the R.S.A. No. 927 of 2008 -:6:- recitals in Ext.B1 themselves clearly indicate that the leasehold rights of Koru had devolved on all his legal heirs merely because one of the tenants in common had purchased the rights under the decree for arrears of rent together with the jenmi's right cannot in any way affect the rights of the other tenants in common. Of course, with regard to plaintiffs 1 and 3 and defendants 9 and 10 they are bound by Exts.B3, B6, B4 and B5 release deeds. But there is no such release in fraovur of the original lessee's legal heirs by defendants 1 to 6 who are the legal heirs of Velayudhan. Hence, the courts below were fully justified in passing the preliminary decree as above.
No question of law, much less, any substantial question of law arises for consideration in this Second Appeal. The questions of law formulated in the memorandum of appeal also do not arise for consideration in this Second Appeal which is accordingly dismissed in limine.
Dated this the 10th day of December 2008.
Sd/-V.RAMKUMAR, JUDGE /true copy/ R.S.A. No. 927 of 2008 -:7:-