Kerala High Court
Anil Kumar vs Kundan on 11 September, 2012
Author: P.N.Ravindran
Bench: P.N.Ravindran
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE P.N.RAVINDRAN
TUESDAY, THE 11TH DAY OF SEPTEMBER 2012/20TH BHADRA 1934
AS.No. 339 of 1995 ( )
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OS.45/1993 of SUB COURT, VADAKARA
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5TH DEFENDANT/APPELLANT :
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ANIL KUMAR, KUNNUMMAL AMSOM,
PATHIRIPPATTA DESOM,
KUNHIPILAKKANDI ONNA THARAVATTAM
PARAMB. (*DIED, LR'S IMPLEADED)
*ADDL. A2 TO A5 IMPLEADED
*2. SHEEJA M.N.,
W/O. LATE ANIL KUMAR,
PUTHENPURAYIL HOUSE, PATHIRIPPATTA ,
KUNNUMMALVILLAGE.
*3. ANAVADYA S. ANIL,
D/O. LATE ANIL KUMAR,
PUTHENPURAYIL HOUSE, PATHIRIPPATTA ,
KUNNUMMALVILLAGE.
*4. ANANYA S. ANIL,
S/O. LATE ANIL KUMAR,
PUTHENPURAYIL HOUSE, PATHIRIPPATTA ,
KUNNUMMALVILLAGE.
*5. JANU V.P.,
PUTHENPURAYIL HOUSE, PATHIRIPPATTA ,
KUNNUMMALVILLAGE.
*LEGAL HEIRS OF THE DECEASED SOLE APPELLANT ARE IMPLEADED AS
ADDITIONAL APPELLANTS A2 TO A5 VIDE ORDER DT. 17-6-10 IN IA
NO. 5192/2008.
BY ADVS.SRI.R.K.MURALEEDHARAN
SRI.R.PARTHASARATHY
...2/-
AS.No. 339 of 1995 ( ) -2-
PLAINTIFFS AND DEFENDANTS 1 TO 4, 6 TO 8 AND 10 TO 16 / RESPONDENTS :
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1. KUNDAN, CHEMBODATH HOUSE,
VALAYAM DESOM, AMSOM,
VADAKARA TALUK (**DIED, LR'S IMPLEADED).
2. DEVI, ALAKKAL,
VALAYAM AMSOM, DESOM,
VADAKARA.
3. ASHOKAN OF -DO-
4. LEELA OF -DO-
5. THARAVATTAM PARAMBIL RAMAKRISHNAN,
KUNNUMMAL AMSOM, PATHIRIPPATTA DESOM
KAPPAMCHALIL HOUSE, VADAKARA.
6. KANDIYIL SYAMALA,
KUNNUMMAL AMSOM, PATHIRIPPATTA DESOM.
THAZHE THAYYIL HOUSE, VADAKARA TALUK.
7. VATHUKKAL PARAMBATH JANU,
KUNNUMMAL AMSOM, PATHIRIPPATTA DESOM,
KUNHIPILAKKANDI ENNA THARAVATTAM
PARAMB, VADAKARA.
8. BEENA,
KUNNUMMAL AMSOM, PATHIRIPPATTA DESOM,
KUNHIPILAKKANDI ENNA THARAVATTAM
PARAMBATH, VADAKARA.
9. SUNITHA OF -DO-
10. KUMARAN, VATHUKKAL PARAMBATH HOUSE,
VALAYAM AMSOM, DESOM,
VADAKARA. (****DIED, LR'S IMPLEADED)
11. KUNHIKANNAN,
KALLUMPURATH HOUSE,
VALAYAM AMSOM, DESOM,
VADAKARA.
12. DEVI, PUTHAN PEEDIKAYIL HOUSE,
KUNNUMMAL AMSOM, PATHIRIPPATTA DESOM,
VADAKARA TALUK.
...3/-
AS.No. 339 of 1995 ( ) -3-
13. KUNHIKANARAN,
KATANDAPARAMBATH VALAYAM AMSOM, DESOM,
VADAKARA.
14. MADHAVI, VATHUKKAL PARAMBATH HOUSE,
VALAYAM AMSOM, DESOM, VADAKARA.
15. LEELA,
PUTHUPPANAM AMSOM, DESOM,
VADAKARA TALUK.
16. KAMALA, KANNANGATT HOUSE,
KAKKATTIL AMSOM, DESOM,
VADAKARA TALUK.
17. BALAKRISHNAN,
VATHUKKAL PARAMBATH,
VALAYAM AMSOM, DESOM,
VADAKARA TALUK
18. VATHUKKAL PARAMBATH CHIRUTHA OF -DO-
(***DIED, LR'S RECORDED)
**ADDL. R19 TO R25 IMPLEADED :
**19. MATHU,
W/O. KANARAN MASTER,
THEKKAYIL HOUSE, P.O. KAKKATTIL,
D/O. LATE KUNDAN.
**20. ASOKAN,
S/O. LATE KUNDAN,
CHEMBODATH HOUSE, VALAYAM AMSOM, DESOM
VADAKARA.
**21. RAJU, S/O. LATE KUNDAN,
CHEMBODATH HOUSE, VALAYAM AMSOM, DESOM
VADAKARA.
**22. KUNHIKANNAN, S/O. LATE KUNDAN,
CHEMBODATH HOUSE, VALAYAM AMSOM, DESOM
VADAKARA.
**23. SUKU, ALAKKAL HOUSE,
P.O. VALAYAM, (VIA) KALLACHI,
VADAKARA.
**24. SUMA, ALAKKAL HOUSE,
P.O. VALAYAM, (VIA) KALLACHI,
VADAKARA.
...4/-
AS.No. 339 of 1995 ( ) -4-
**25. SUDHA, ALAKKAL HOUSE,
P.O. VALAYAM, (VIA) KALLACHI,
VADAKARA.
**LEGAL REPRESENTATIVES OF THE DECEASED 1ST RESPONDENT
IMPLEADED AS ADDITIONAL RESPONDENTS R19 - R25 VIDE ORDER DT.
11/08/2010 ON I.A. NO. 270/2003.
*** IT IS RECORDED THAT R18 DIED AND RESPONDENTS 7, 10, 11, 12, 13, 14,
15, 16, 17 (ALREADY IN THE PARTY ARRAY) ARE HER LEGAL
REPRESENTATIVES AS PER ORDER DT. 19.10.2011 IN MEMO DT. 10.3.2011,
CF. NO. 1686/2011.
****ADDL. R26 IMPLEADED
****26. RAJI,
D/O. LATE KUMARAN,
VATHUKKAL PARAMBATH HOUSE,
VALAYAM AMSOM, DESOM, VADAKARA.
****LEGAL HEIR OF DECEASED 10TH RESPONDENT IS IMPLEADED AS
ADDL. 26TH RESPONDENT AS PER ORDER DT. 19.10.2011 IN I.A.
NO. 3963/2010.
R1 TO R4 BY ADV. SRI.C.VALSALAN
R19 TO 25 BY ADVS. SRI.K.RAKESH ROSHAN
SMT.THUSHARA.V
THIS APPEAL SUITS HAVING BEEN FINALLY HEARD ON 11-09-2012,
THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
P.N.RAVINDRAN, J.
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A.S. No. 339 of 1995
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Dated this the 11th day of September , 2012
J U D G M E N T
The fifth defendant in O.S.No.45 of 1993 on the file of the Court of the Subordinate Judge of Vadakara is the appellant in this appeal which was presented way back on 4.7.1995. He passed away on 28.7.2008 long after the appeal was filed and thereupon, his legal heirs were impleaded as additional appellants 2 to 5 as per order dated 17.6.2010 on I.A.No.5192 of 2008. Respondents 1 to 4 herein are the plaintiffs in the suit and respondents 5 to 18 are defendants 1 to 4, 6 to 8 and 10 to 16 respectively therein. The 9th defendant died during the pendency of the suit in the trial court and thereupon her mother was impleaded as the additional 16th defendant. After the appeal was instituted, the first respondent herein (the first plaintiff) passed away on 6.2.2003 and thereupon his legal heirs were impleaded as additional respondents 19 to 25 as per order dated 11.8.2010 on I.A.No.270 of 2000. The tenth respondent (seventh defendant in the suit) A.S.No.339 of 1995 -:2:- passed away on 13.11.1997 and thereupon his daughter was impleaded as the additional 26th respondent in the appeal, as per order dated 19.10.2011 on I.A.No.3963 of 2010. Later, the eighteenth respondent (16th defendant in the suit) passed away and thereupon respondents 7 and 10 to 17 in this appeal were recorded as her legal heirs as per order dated 19.10.2011.
2. The suit instituted by respondents 1 to 4 is for recovery of possession of the plaint schedule properties ignoring and setting aside the partition karar dated 10.10.1988 executed by and between defendants 1 to 6, marked as Ext.A2 and for partition of the plaint schedule property into two equal shares and allotment of one such share to them. The plaintiffs also prayed for a decree directing payment of future mesne profits by defendants 1 to 15. In the plaint it was contended that the plaint schedule property originally belonged to late Kanaran, husband of Matha, that Kanaran passed away on 10.3.1951 and on his death, the plaint schedule property devolved on his wife Matha as per the decree in O.S.No.100 of 1952 on the file of the Court of the Subordinate Judge of Thalassery and the decree in O.S.No.1012 of 1960 on the file of the Court of the Munsiff, Nadapuram, that Matha died issueless in the year 1982, that on her death the plaint schedule property devolved on the legal heirs of her husband A.S.No.339 of 1995 -:3:- Kanaran, namely, the first plaintiff and his brother Gopalan, another brother Kadungon the predecessor-in-interest of defendants 7 to 15 and the 3rd defendant that the first plaintiff and Gopalan are entitled to = share and defendants 3 and 7 to 15 to the remaining = share and that defendants 1 to 6 who are the legal heirs of late Matha's sister Manni have after the death of Matha executed Ext.A2 partition karar dated 10.10.1998 in respect of the suit property as well and are in unauthorised possession theref. It was alleged that as the plaint schedule property devolved on the plaintiffs in their capacity as legal heirs of late Kanaran, the plaintiffs are entitled to partition and separate possession of 1/2 share in the suit property ignoring and setting aside Ext.A2 partition karar.
3. The fifth defendant filed a written statement resisting the suit. He contended inter alia that Kanaran, the original owner of the property died on 12.4.1951 leaving behind Matha his wife and their son Kunjikkoran, as his legal heirs, that the suit property devolved on them in equal shares, that on the death of Kunjikkoran on 23.4.1951 his share in the suit property devolved on Matha and that on her death in the year 1984, the suit property devolved on defendants 1 to 6 in accordance with the provisions contained in section 17(ii) of the Hindu Succession Act, A.S.No.339 of 1995 -:4:- 1956. He contended that on the death of Matha no right in respect of the plaint schedule property devolved on either the plaintiffs or defendants 7 to 15. The fifth defendant further contended that late Matha had during her lifetime orally leased out the properties to the first defendant and late Damodaran, husband of the third defendant and father of defendants 2 and 4 to 7 and that defendants 1 to 6 are thus in possession and enjoyment of the plaint schedule property under a tenancy arrangement. They also contended that the issue regarding tenancy is liable to be referred to the Land Tribunal for adjudication. The fifth defendant further contended that besides the first plaintiff and Gopalan, Matha, had yet another son by name Kunjikannan, that the ninth defendant in the suit is the wife of Kunjikkannan and daughter of Kadungon, brother of Kanaran and that in that capacity she is entitled to shares in the suit property. He contended that in the event of the suit being decreed, the ninth defendant is entitled to shares in the property in her capacity as the daughter of Kadungon one of the brothers of Kanaran and as the wife of Kunjikkannan one among the legal heirs of Matha. Defendants 7 to 15 filed a written statement supporting the fifth defendant. In the court below, the parties did not adduce oral evidence. On the side of the plaintiffs Exts.A1 to A3 were marked and on the side of the defendants A.S.No.339 of 1995 -:5:- Ext.B1 was marked. Based on the pleadings, the trial court framed the following issues for trial:-
1) Whether the suit is properly valued for the purpose of court fee and jurisdiction?
2) Whether the plaint schedule property devolved upon Matha as sole heir of Kanaran alone?
3) Whether the question of tenancy right arises for consideration in this case and whether the matter is to be referred to the Land Tribunal for deciding this question?
4) Whether the tenancy pleaded by D1 to 6 is true and valid?
5) Whether the suit for recovery of possession from D1 to 6 is maintainable?
6) What are the correct shares due to plaintiffs and defendants 7 to 15 in case of partition?
7) What is the proper order as to costs and mesne profits?
4. Issue No.3, namely, the question whether the question of tenancy arises for consideration in the case and whether the said question is liable to be referred to the Land Tribunal and issue No.4, namely, the question whether the tenancy pleaded by defendants 1 to 6 is true and valid was considered as a preliminary issue. Having regard to the recitals in Ext.A2 partition karar wherein it is stated that the plaint schedule properties devolved on the executants thereto, namely defendants 1 to 6, as A.S.No.339 of 1995 -:6:- legal heirs of late Matha, the trial court held that the case put forward by the 5th defendant that Matha had orally leased the property to the first defendant and late Damodaran in 1962 cannot be believed. The court below accordingly held that the question of tenancy does not arise for consideration. The trial court thereafter proceeded to consider the remaining issues. It was held that on the death of Kanaran his right devolved on his wife Matha and his son Kunhikoran and on the death of Kunhikoran his half right in the property also devolved on Matha and that on the death of Matha in the year 1984, only the half right which devolved on her as the legal heir of her husband Kanaran, will devolve on the personal heirs of Kanaran, namely, the plaintiffs, defendants 3 and 7 to 15 and that the right in respect of the other half right, which she obtained on the death of her son Kunhikoran on 23.4.1951, will devolve on her personal heirs itself, namely, defendants 1 to 6. A preliminary decree was accordingly passed directing division of the plaint schedule property into 360 equal shares and allotment of 60/360 shares to the plaintiffs, 189/360 shares to defendants 1 to 6 and 9/360 shares each to defendants 7, 8 and 10 to 15 and 33/360 shares to the 9th defendant. The 5th defendant has, aggrieved by the said decree and judgment filed this appeal.
A.S.No.339 of 1995 -:7:-
5. I heard Sri.R.Parthasarathy, learned counsel appearing for the appellants, Sri.C.Valsalan, learned counsel appearing for respondents 1 to 4 and Sri.Rakesh Roshan, learned counsel appearing for respondents 19 to 25. Sri.R.Parthasarathy, learned counsel appearing for the appellants contended relying on section 17(ii) of the Hindu Succession Act that on the death of Matha in the year 1984 the plaint schedule property, which belonged to Matha's husband Kanaran, devolved in terms of clause (c) thereof on defendants 1 to 6, who are the legal heirs of Matha's sister Manni and therefore, the court below erred in holding that on the death of Matha, the suit properties devolved on the legal heirs of Kanaran, namely, plaintiffs and defendants 3 and 7 to 15. The learned counsel also canvassed the correctness of the finding entered by the court below on issue No.3 and contended that having regard to the specific plea put forward by the 5th defendant in paragraph 4 of the written statement, the court below ought to have referred the issue regarding the tenancy pleaded by the 5th defendant to the Land Tribunal for determination. Per contra, learned counsel appearing for the respondents contended that in view of the recitals in Ext.A2 partition karar itself, the plea of tenancy cannot be sustained and was rightly repelled by the court below. Relying on section 15(2) of the Hindu Succession Act, the A.S.No.339 of 1995 -:8:- learned counsel for the contesting respondents contended that by virtue of section 17(iii) of the Hindu Succession Act only clause (a) of sub-section (2) of section 15 is omitted in relation to persons who would have been governed by the marumakkattayam law or aliyasanthana law if the Hindu Succession Act had not been passed and that in view of clause (b) of sub-section (2) of section 15 of the Hindu Succession Act, the application of which has not been excluded, the finding of the court below that the property inherited by Matha from her husband will devolve on her death, in the absence of a son, on the heirs of her husband, does not merit interference.
6. I have considered the submissions made at the Bar by the learned counsel appearing on either side. I have also gone through the pleadings and the materials on record. It is not in dispute that the plaint schedule properties are items 2 to 5 in E schedule to Ext.A2 partition karar. Ext.A2 partition karar recites in express terms that on the death of Matha the properties devolved on executant No.1 and the children of his brother Damodaran and that Matha had gifted the properties to executants 1 to 6. The recitals in the partition karar cut at the root of the plea of tenancy put forward by the contesting defendants. The court below was therefore, perfectly right in A.S.No.339 of 1995 -:9:- holding that the question of tenancy does not arise for consideration in the instant case.
7. That takes me to the question whether the finding entered by the court below regarding the devolution of rights on the death of Kanaran is sustainable in law. It is not in dispute that the plaint schedule property originally belonged to late Kanaran. Kanaran passed away on 12.4.1951 leaving behind his wife Matha and his son Kunhikoran as his legal heirs. Kunhikoran died on 23.4.1951. On the death of Kanaran on 12.4.1951 the plaint schedule properties devolved in equal shares on his wife Matha and his son Kunhikoran. On the death of Kunhikoran, his share also devolved on his mother Matha. As rightly held by the court below, the suit property did not devolve on Matha on the death of Kanaran. On the death of Kanaran only a half share in the suit property devolved on her and the other half devolved on her only on 23.4.1951 when her son Kunhikoran passed away. Section 17 of the Hindu Succession Act stipulates that clauses (a) to (e) of sub-section (1) of section 15 shall, in relation to persons who would have been governed by the marumakkattayam law or aliyasantana law if this Act had not been passed, be substituted as indicated in clause (ii) of section 17. It is relying on clause (c) of section 17(ii) of the Hindu Succession Act, that the appellant A.S.No.339 of 1995 -:10:- contends that on the death of Matha her rights devolved on the heirs of her sister, namely, the predecessor-in-interest of defendants 1 to 6. As held by the court court below even if clause
(c) of section 17(ii) were to operate, the devolution in terms thereof will be only in respect of the half share over the immovable property, which Matha inherited from her husband on his death on 12.4.1951 and can have no application in respect of the half share of her son Kunhikoran, which devolved on her later on 23.4.1951 consequent on his death. The court below was therefore, perfectly right in holding that on the death of Matha, the property devolved on the plaintiffs and defendants 3 and 7 to
15. The finding entered by the court below in paragraph 12 of the impugned judgment does not therefore, merit interference.
For the reasons stated above, I hold that there is no merit in the appeal. The appeal fails and is dismissed. The parties shall bear their respective costs.
P.N.RAVINDRAN, Judge.
rkc/ahg.
P.N.RAVINDRAN, J.
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A.S.No.339 of 1995
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JUDGMENT 11th September, 2012