Kerala High Court
P.M. Parthakumar vs Ajith Viswanath on 14 January, 2022
Author: P.Somarajan
Bench: P.Somarajan
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE P.SOMARAJAN
FRIDAY, THE 14TH DAY OF JANUARY 2022 / 24TH POUSHA, 1943
RFA NO. 466 OF 2014
AGAINST THE JUDGMENT & DECREE DATED 22/1/2014 IN OS 651/2010 OF
SUBORDINATE JUDGE OF KOZHIKODE (SECOND ADDITIONAL),KOZHIKODE
APPELLANT/1ST DEFENDANT:
1 P.M. PARTHAKUMAR
AGED 65 YEARS
S/O.LATE P.M.KUTTY, KACHERY AMSOM, DESOM, KOZHIKODE
TALUK. (DIED)
ADDL.A2 P.M.NALINI PARTHAN
W/O LATE P.M.PARTHAKUMAR, AGED 68, RESIDING AT
SOWPARNIKA, EAST NADAKAVU, P.O.ERANHIPALAM,
KOZHIKODE-673 006, KERALA
ADDL.3 P.M.SAJNA SUBASH, D/O LATE P.M.PARTHAKUMAR, AGED 49
YEARS, RESIDING AT SOWPARNIKA, EAST NADAKAVU,
P.O.ERANHIPALAM, KOZHIKODE-673 006, KERALA
ADDL.4 SANATH, S/O LATE P.M.PARTHAKUMAR, AGED 48 YEARS, RESIDING
AT SOWPARNIKA, EAST NADAKAVU, P.O.ERANHIPALAM,
KOZHIKODE-673 006, KERALA
Additional appellants 2 to 4 are impleaded being the
legal heirs of deceased sole appellant vide order dated
11/10/2021 in I.A.No.1/2021.
BY ADVS.
SMT.SUMATHY DANDAPANI (SR.)
MILLU DANDAPANI
SRI.PREMCHAND R.NAIR
RESPONDENTS/PLAINTIFFS -2ND DEFENDANT:
1 SHRI AJITH VISWANATH, AGED 41 YEARS
S/O.LATE VISWANATHAN, "DEEPTHI", 27/805, KUTHIRAVATTOM,
KOZHIKODE - 673 016.
RFA No.466 of 2014 2
2 SHRI.ABDUL JALEEL
AGED 43 YEARS
S/O.LATE K.P.ABU, DEEPTHI APARTMENT, KUTHIRAVATTOM,
KOZHIKODE - 673 016.(DIED)
3 SHRI.K.T.ABDURAHIMAN
AGED 63 YEARS
S/O.T.ALI, MUBINA MANZIL, PUTHIYOTTIL KADAVU,
THALAKKULATHUR P.O. & AMSOM DESOM, KOZHIKODE TALUK,
KOZHIKODE 673 317.
4 SHRI.K.P.VENUGOPALAN
PARAMBATHPARAMBIL, S/O.VELU, NAGARAM AMSOM DESOM,
KOZHIKODE TALUK, KOZHIKODE 673 002.
ADDL.R5 AYISHABI, W/O LATE K.P.ABU AND MOTHER OF DECEASED ABDUL
JALEEL, AGED 69 YEARS, DEEPTHI APARTMENT, KUTHIRAVATTOM,
KOZHIKODE - 673 016
ADDL.R6 NUSAIBA, W/O ABDUL JALEEL, AGED 41 YEARS, DEEPTHI
APARTMENT, KUTHIRAVATTOM, KOZHIKODE - 673 016
ADDL.R7 THAMJITHA, D/O ABDUL JALEEL, AGED 23 YEARS,DEEPTHI
APARTMENT, KUTHIRAVATTOM, KOZHIKODE - 673 016
ADDL.R8 OMARMUKTHAR, S/O ABDUL JALEEL, AGED 21 YEARS,DEEPTHI
APARTMENT,KUTHIRAVATTOM,KOZHIKODE - 673 016
ADDL.R9 SENIN ABDUL JALEEL (MINOR), AGED 15 YEARS,S/O ABDUL
JALEEL, DEEPTHI APARTMENT, KUTHIRAVATTOM,
KOZHIKODE - 673 016 REP. BY HIS MOTHER AND GUARDIAN
SUPPL.6TH RESPONDENT HEREIN.
Legal heirs of deceased 2nd respondent are impleaded as
additional respondents 5 to 9 vide order dated 8/11/2017
in I.A.No.81/2017
BY ADVS.
SRI.R..RAMADAS (CAVEATOR)FOR R1 TO R3 & R5 TO R9
SRI.ATHUL K.P. FOR R4
SRI.SRINATH GIRISH FOR R4
THIS REGULAR FIRST APPEAL HAVING COME UP FOR HEARING ON
14.01.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
RFA No.466 of 2014 3
CR
JUDGMENT
The first defendant came up in appeal against the decree of declaration of title and recovery of possession in O.S.No.651/2010 of Sub Court, Kozhikode. The dispute is pertaining to a portion of property obtained by Sivanathan under Ext.A1 assignment deed dated 03/06/1954. At that time, he was a minor. His father P.M.Kutty died on 13.10.1987 and mother Devayani on 21.07.1986. During the life time of father, they were doing a partnership business in the name and style of 'P.M KUTTY AND SONS' based on Ext.A9 partnership deed dated 01.04.1971 including the business by name 'VICTORY AUTOMOBILES AND SERVICE STATION' in Kozhikode town. The plaint 'A' schedule having an extent of 71 cents was purchased in the name of Sivanathan represented through his mother Devayani under Ext.A1 assignment deed dated 03.06.1954. Various other items were also purchased in the name of his siblings, who were minors at that time. On the death of father, the partnership was RFA No.466 of 2014 4 dissolved under Ext.A11 on 31.03.1988. On the very same day, they made an internal arrangement, Ext.A12, by which the various business conducted by the partnership firm were separated. The business by name 'P.M.Kutty Stationery Merchant' in building No.13/813 of Kozhikode Corporation was exclusively given to Sivanathan. The ownership of business run in the plaint 'B' and 'C' schedule properties, which are part of 71 cents obtained by Sivanathan was exclusively allotted to the first defendant. While so, the plaint 'B' schedule property having an extent of 6.75 cents was purchased by the second defendant Venugopalan from the abovesaid Sivanathan under Ext.A18 registered assignment deed dated 20.01.1995. According to the second defendant, after the assignment the rent portion was divided proportionately at Rs.2,000/- per month and a demand notice was also issued to the first defendant on 01.04.1995 calling upon him to pay the monthly rent at the said rate. Since it was not paid, a rent control proceeding in RCP No.67/1995 was initiated by the second defendant against the first defendant before the Rent Control Court, Kozhikode for an order of eviction on the ground of arrears RFA No.466 of 2014 5 of rent under Section 11(2)(b) of the Kerala Buildings (Lease and Rent Control) Act, 1965. Subsequently, the 'C' schedule property having an extent of 13.75 cents was assigned by Sivanathan to the plaintiffs under Ext.A22 registered assignment deed, dated 26.03.1996 and claimed rent against the first defendant at the rate of Rs.6,000/- by issuing a lawyer notice which has also resulted in the initiation of yet another rent control proceedings- RCP No.166/1996 before the very same Rent Control Court on the ground of arrears of rent. While so, the abovesaid Venugopalan, second defendant, assigned his right over the 'B' schedule property to the plaintiffs under Ext.A29 assignment deed, dated 04.03.1997, based on which, it is contended that the plaintiffs became the absolute owners in de jure possession of plaint 'B' and 'C' schedule properties.
2. In the rent control proceedings, the respondent, who is the first defendant in the suit, denied landlord/tenant relationship as well as the title of plaintiffs over the property. The Rent Control Court, after hearing both the parties, found the denial of title RFA No.466 of 2014 6 bonafide and recorded a finding to that effect and dismissed the rent control proceedings. Two appeals - RCA No.25/1998 and 26/1998 were preferred against the said order, wherein a remand was ordered for consideration of additional documents, against which two revisions - C.R.P.Nos.651/2001 and 673/2001 were filed by the first defendant. The issue ultimately came before a Full Bench of this court in Parthakumar vs. Ajith Viswanathan [2006 (2) KLT 250] regarding the jurisdiction available under Section 11(1) of the Kerala Buildings (Lease and Rent Control) Act. It is after the conclusion of the revisions, the plaintiffs, the purchaser of the property, filed a suit - O.S.No.651/2010 for declaration of title and for recovery of possession. The trial court, after a prolonged trial, ultimately decreed the suit declaring the title of plaintiffs over the property and passed a decree for recovery of possession with mesne profit, against which the first defendant came up in appeal.
3. The right, title and interest claimed by the plaintiffs over the property are put under challenge mainly on the ground that Sivanathan who had executed the deed of RFA No.466 of 2014 7 transfer was not having any subsisting right over the property and claimed that the sale deed executed is only a sham document on the allegation that the property was acquired by the father of Sivanathan while he was a minor represented through his mother and that the minor is only a binamidar and will not get any right, title or interest over the property, for which relied on the decision of the Apex Court in Controller of Estate Duty, Lucknow v. Aloke Mitra [1981 KHC 536]. Further, it is submitted that the buildings situated in the property was not constructed by Sivanathan and that the maxim quid quid inaedificatur solo solo cedit (the building on a land belongs to the owner of the land)is not applicable in India and there is failure on the part of the trial court to appreciate the said legal position and hence the declaration of title over the immovable property inclusive of the structures therein cannot be sustained. The tenancy claimed by the plaintiffs was also brought under challenge on the ground that the properties - "B and C schedule", wherein the first defendant was conducting his business was the part and stock of partnership business earlier conducted by their RFA No.466 of 2014 8 father along with his children and after dissolution of partnership and by way of a family settlement, the said property was given to the first defendant. Hence, on that ground also, the title claimed by the plaintiffs over the property is disputed. The decree of recovery of possession granted by the trial court is also challenged on the ground of lack of jurisdiction.
4. It is contended that Ext.A1 assignment deed is a binami transaction and the property would go to the father and the minor will not get any right, title or interest over it. The legal position settled by the Apex Court in Controller of Estate Duty, Lucknow v. Aloke Mitra [1981 KHC 536] cannot be applied in the instant case simply on the reason that in Ext.A1, there is nothing to show that the consideration was from the funds of the father of the minor. During the life time of father, no such case or claim was raised either by the father or any other person competent in that behalf and no declaratory suit was also brought up within the period of limitation. But the document was allowed to be continued for a longer period of more than 30 years even after the attainment of majority by RFA No.466 of 2014 9 the minor. In order to bring a case of binami transaction or binamidar, there should be something to show the identity of the person, who contributed the amount for the purchase of the property or who had actually paid the sale consideration. Unless there is something in the document or from the attending circumstance showing the identity of the person, who had actually contributed the amount, it cannot be brought under the purview of a binami transaction. There is no legal embargo in acquiring immovable property by utilizing the fund of a minor represented by a legal guardian. Unless there is something in the document or an indication that the consideration was not from the fund of minor, but from his father or some other person, the normal presumption would be in favour of the minor that the property was purchased out of his own funds. Then the question of rebutting the presumption would arise. Further, when the property was purchased in the name of minor either by the father or by the mother or by a near relative and if it is allowed to continue during the life time of the donor, it would normally satisfy an implied gift in favour of the minor. In the instant suit, RFA No.466 of 2014 10 the said question is not available for consideration in the absence of a properly instituted suit for that purpose within the period of limitation. The document of the year 1954, an assignment deed was allowed to be continued for a long period of more than 50 years without any challenge by a properly instituted suit presumably on the reason that it will constitute a gift as well by the person who had contributed the amount/fund. At this juncture, it is relevant to notice the admitted fact that several other properties were also acquired in the name of other children on various occasions, which were also not brought under challenge. Hence there is no merit in the argument and the decision relied on by the learned counsel will not give any assistance to the case advanced by the appellant.
5. On coming into the alleged family settlement, firstly it must be shown that the property involved is a family property or mixing up of property owned by one of the members with the family property. Ext.B15, affidavit sworn by all the brothers and sisters of Sivanathan, is relied on by the first defendant in support of the alleged family settlement. Ext.B15 affidavit cannot be relied on in RFA No.466 of 2014 11 order to prove any family settlement with respect to the property in question. The affidavit is for the purpose of getting statutory licence and other permission for various business exclusively allotted to various partners on dissolution of partnership. Necessarily, it should be understood in relation to the dissolution of partnership business and division of the same and exclusive allotment of each business to the various partners after the death of their father. That does not mean that the immovable properties held respectively by the partners were made as stock of partnership and was distributed among the partners on its dissolution and there is nothing to show in Ext.B15 in support of the case advanced by the appellant. In fact, there is no division of any immovable property or any acknowledgment in that behalf in Ext.B15 document. Hence, the contention that the plaint schedule property was also included in the family settlement and divided thereof as if it is a family property cannot be sustained. The mere fact that the business conducted in that property was exclusively allotted to the first defendant at the time of dissolution of partnership will not make the immovable RFA No.466 of 2014 12 property as part of partnership asset, especially when there is no mentioning about the immovable properties in the alleged dissolution deed, if any.
6. The admission made by Sivanathan that he was not having any income prior to 1966 and the case advanced by the first defendant that the building was erected over the property prior to that will not improve the case advanced by him, especially when there is no satisfactory evidence to show that it was erected by the first defendant. If it was actually erected by the father, necessarily it would have been agitated by him during his life time. No such case was advanced by him till his death in the year 1987. By that time around 30 years have elapsed.
7. It seems to be so strange that the first defendant had gone up to the extent of advancing a case of sham document against the sale deeds which were executed by the rightful owner, Sivanathan, with respect to plaint 'B' and 'C' schedule properties on the abovesaid allegation of binami transaction and also the alleged partnership. Ext.A18 is the sale deed executed by Sivanathan with respect to 'B' schedule property in favour of second RFA No.466 of 2014 13 defendant as early as on 20.01.1995. Ext.A22 is the registered sale deed executed by the second defendant with respect to the very same property in favour of the plaintiffs on 26.03.1996. These two sale deeds were executed by the respective rightful owners by receiving sale consideration in accordance with the mandate under Section 54 of the Transfer of Property Act in compliance with the requirements under Section 17 of the Registration Act.
8. Ext.A39 is the undertaking to pay rent. The signature found affixed as that of the executant was brought under challenge, but nothing has come out to discredit it. On the other hand, it would lend support to the case advanced by the plaintiffs regarding the existing tenancy arrangement.
9. In the former rent control proceedings, the respondents/defendants denied and disputed landlord-tenant relationship and also disputed the title of plaintiffs over the property. The rent control court recorded and found that such denial is bonafide. It is thereafter the civil suit was filed for declaration of title and for recovery of RFA No.466 of 2014 14 possession/eviction. Thereon the civil court will get the jurisdiction to adjudicate the disputed title or the claim of permanent tenancy and can pass a decree by virtue of the second proviso to Section 11(1) of the Kerala Buildings (Lease and Rent Control) Act, irrespective of the non- obstante clause incorporated under that sub-Section. On rendering an adjudication on the disputed title or claim of permanent tenancy in favour of the plaintiff, the civil court has to exercise the jurisdiction of a rent control court by virtue of the second proviso to Section 11(1) of the Act so as to pass an order of eviction under the various sub-sections i.e. on any of the grounds made mentioned under Section 11 of the Kerala Buildings (Lease and Rent Control) Act. The non-obstante clause incorporated in the main section 11 must be understood in relation to the exception carved out under the second proviso of that section and as such, the bar under Section 9 of C.P.C. will not come into play in maintaining a suit for declaration of title or rejecting the claim of permanent tenancy. But as discussed earlier, after adjudicating the disputed question of title or claim of permanent tenancy in favour of the RFA No.466 of 2014 15 plaintiff/landlord, the civil court has to exercise the jurisdiction of a rent control court and has to pass a decree of eviction on any of the grounds made mentioned in Section 11 of the Act, but a decree of eviction has to be passed instead of passing an order of eviction, which would be the only difference in the exercise of jurisdiction by a civil court under the second proviso to Section 11(1) of the Act. In other words, it is not permissible for the civil court to pass a decree for recovery of possession as in the case of a normal civil suit based on lease arrangement. Hence, the decree for recovery of possession cannot be sustained. The decree of the trial court to that extent will stand set aside.
10. It is submitted that the plaintiffs cannot claim prior arrears of rent unless the sale deed or the deed of transfer provides for it. It is a question to be adjudicated at the time of passing a decree of eviction under Section 11(2)(b) of the Kerala Buildings (Lease and Rent Control) Act, 1965.
11. Necessarily, a remand of the matter for exercising the jurisdiction under Section 11 of the Kerala RFA No.466 of 2014 16 Buildings (Lease and Rent Control) Act cannot be avoided. Hence, the decree and judgment of the trial court granting recovery of possession is hereby set aside while confirming the decree of declaration of the title of the plaintiffs over the property. The matter is remanded back to the trial court for considering the ground of eviction under Section 11 of the Kerala Buildings (Lease and Rent Control) Act. The parties shall appear before the trial court on 10/02/2022.
The appeal is allowed in part accordingly. No cost.
Sd/-
P.SOMARAJAN JUDGE sv