Kerala High Court
Sree Chamundi Temple Trust vs Oormila Devi P.R. Alias Geeva
Bench: V.Chitambaresh, K.Harilal
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE V.CHITAMBARESH
&
THE HONOURABLE MR.JUSTICE K.HARILAL
FRIDAY, THE 9TH DAY OF SEPTEMBER 2016/18TH BHADRA, 1938
AS.No. 682 of 1999 (A)
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AGAINST THE DECREE AND JUDGMENT DATED 03.07.1999 IN OS 1381/1995
OF THE PRINCIPAL SUB COURT,THIRUVANANTHAPURAM
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APPELLANT/DEFENDANT NO. 5:
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SREE CHAMUNDI TEMPLE TRUST,
KARIKKAKAM,
THIRUVANANTHAPURAM,
REPRESENTED BY ITS SECRETARY
BY ADV.SRI.VPK.PANICKER
RESPONDENTS/PLAINTIFF AND DEFENDANTS 1 TO 4:
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1. OORMILA DEVI P.R. ALIAS GEEVA,
W/O. S. ANIL KUMAR
RESIDING AT PARAMBIL VEEDU
VENPALAVATTAM, ANAYARA P.O.
THIRUVANANTHAPURAM
2. PADMAKUMARI AMMA,
W/O. LATE RADHADKRISHNAN NAIR
KOLLAMVILAKATHU VEEDU
KARIKKAKAM BEACH P.O.,
THIRUVANANTHAPURAM - 7
3. UDAYAKUMARI, D/O. PADMAKUMARI AMMA
DO. DO.
4. UMAKUMARI, D/O. PADMAKUMARI AMMA,
DO. DO.
5. USHA DEVI, D/O. PADMAKUMARI AMMA,
DO.
R1 BY ADV. SRI.P.R.VENKETESH
THIS APPEAL SUITS HAVING BEEN FINALLY HEARD ON 07-09-2016, THE
COURT ON 09.09.2016 DELIVERED THE FOLLOWING:
DCS
V.CHITAMBARESH & K.HARILAL, JJ.
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A.S. NO. 682 OF 1999
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Dated this the 09th day of September, 2016
JUDGMENT
Chitambaresh, J.
The fifth defendant trust challenges the preliminary decree for partition passed by the court below granting 1/5 share to the plaintiff over the plaint schedule property. The plaint schedule property had been set apart to the share of the plaintiff and defendants 1 to 4 as 'C' Schedule to Ext. A2 partition deed dated 10.10.1980. Defendants 1 to 4 subsequently executed a sale deed in favour of the fifth defendant allegedly including the rights of the plaintiff who was then admittedly a minor. No permission was obtained from court under Section 8(2) of the Hindu Minority and Guardianship Act in order to alienate the share of the minor as is required. It appears that a sum of ` 30,000/- was deposited in the South Indian Bank purporting to be the share of the minor which is said to have been withdrawn on maturity. The plaintiff ignores the sale deed as not binding on her interest in the plaint schedule property and seeks for partition by A.S. NO. 682 OF 1999 2 metes and bounds.
2. The fifth defendant who alone contests the suit does not dispute the execution of the sale deed wherein the share of the minor as well as the earlier partition deed is conceded. The prior partition deed (Document No. 2060/1957, SRO, Thiruvananthapuram) has been specifically mentioned in the sale deed executed in favour of the fifth defendant. However the fifth defendant has put forward a new case that the family head (Karanavar) had even earlier gifted the property in favour of the deity. Ext. B1 gift deed dated 10.12.1082 ME in favour of the deity managed by the fifth defendant trust is relied on to show that the plaintiff has no pre-existing title. Such a contention does not lie in the mouth of the fifth defendant since the very sale deed in its favour is conceding the earlier partition deed and the share of the plaintiff. Neither the sale deed (Document No. 1668/1992) nor its content relied on by the plaintiff is disputed by the fifth defendant and the same operates as an estoppel by conduct against it. Not a scrap of paper has been produced to show that Ext. B1 gift deed was acted upon by asserting possession over the property or paying tax A.S. NO. 682 OF 1999 3 in respect thereof.
3. The following observations in the judgment of the court below are apposite:
"It is important to note that Ext. B1 document is of the year 1082 ME. Till the filing of the suit in 1995, they admitted the title of the plaintiffs and defendants 1 to 4. They obtained sale deed in their favour and acting upon the sale deed, mutation has been effected. As per Ext. B1, they admitted the possession of plaintiff and defendants 1 to 4. No revenue tax has been paid till 1992 except the registration copy of Document No. 4990/1082 ME. There is no scrap of paper to prove title, possession or management of the property. Being a temple trust, there cannot be any difficulty to produce documentary evidence to prove the possession and management. There must be registers showing the immovable properties of the temple. If the temple has been in possession, revenue tax must be paid for the idol. If the property is capable of income it must find a place in the income and expenditure register."
The appreciation of the evidence on record by the court below to hold that Ext. B1 gift deed has not been acted upon does not suffer from any irregularity or illegality as to warrant interference. A.S. NO. 682 OF 1999 4
4. The suit for partition has been filed within three years of the plaintiff attaining majority and all that is prayed for is division of her pre- existing right by metes and bounds. There is no necessity to seek a declaration that the sale deed in favour of the fifth defendant to which she is not a party is bad or not binding. This specific averment in the plaint is that the plaintiff is entitled to ignore the sale deed as not binding on her share for want of permission to alienate from court. The Supreme Court has gone to the extent of holding that such an alienation is void in Kalathil Sreedharan v. Komath Pandyala Prasanna [(1996) 6 SCC 218]. It should be borne in mind that the suit is not for recovery of possession after annulling the sale deed but to effect partition of the pre-existing right. The principles of estoppel in view of the recitals in the sale deed in favour of the fifth defendant debars it from putting forth any contention contrary. It was after conceding the title of the plaintiff and defendants 1 to 4 did the fifth defendant purchase the property by sale deed by also providing a share to the minor plaintiff. A.S. NO. 682 OF 1999 5
5. The plaintiff has categorically relinquished her share over the two cents of property occupied by Anganwadi and hence no question of non- joinder of the state arises. The discrepancy if any in the plaint schedule property can as well be sorted out in the final decree proceedings where the property would be identified with exactitude. The fifth defendant has also been given liberty to recover the sum of ` 30,000/- paid to the plaintiff as well as defendants 1 to 4 under the sale deed. Such adjustments can be made in the final decree proceedings wherein the question of payment of owelty for equalisation of shares also are involved. We do not find any error warranting interference in the preliminary decree for partition passed by the court below whereunder the plaintiff has been given her lawful and legitimate share.
The appeal suit is dismissed. No costs.
V.CHITAMBARESH, Judge.
K.HARILAL, Judge.
DCS