Kerala High Court
John vs Meenkamma on 2 March, 2022
Author: K. Babu
Bench: K. Babu
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE K. BABU
WEDNESDAY, THE 2ND DAY OF MARCH 2022 / 11TH PHALGUNA,
1943
RSA NO. 919 OF 2009
AGAINST THE JUDGMENT AND DECREE IN AS NO. 105/2008 OF
PRINCIPAL SUB COURT,KOCHI
OS 412/2007 OF ADDITIONAL MUNSIFF COURT,KOCHI
APPELLANTS/APPELLANTS/PLAINTIFFS:
1 JOHN,
S/O. CHORI,
KOCHERI HOUSE, KUMBALANGHI VILLAGE, KOCHI
TALUK. (DIED)
2 ADDL.A2 MARIA JACINTHA,
D/O. LATE JOHN,
CHEMBOLIPARAMBU, VADUTHALA, ERNAKULAM.
3 ADDL.A3 SYBLE MARIA,
D/O. LATE JOHN,
VADAKKATTUSSERRY, THYKKATTUSSERI, THURAVOOR.
4 ADDL.A4 ALICE MARGRET,
D/O. LATE JOHN,
KALLUMADATHIL , NARAKKAL, ERNAKULAM DISTRICT.
5 ADDL.A5 ELIZABETH,
D/O. LATE JOHN,
CHERUVALATHARA, KUMBLANGI, ERNAKULAM DISTRICT,
6 ADDL. A6 MARY,
D/O. LATE JOHN,
VATHAPPILLY, PALLIPPURAM, ERNAKULAM DISTRICT.
7 ADDL.A7 MARY TAJAN,
D/O. LATE JOHN, KANATTU, THEVARA, ERNAKULAM.
8 ADDL. A8 GEORGE BABU,
S/O. LATE JOHN,
KOCHERI HOUSE, KUMBLANGHI , ERNAKULAM DISTRICT.
9 ADDL.A9 GEORGE JOSEPH,
S/O. LATE JOHN,
KOCHERI HOUSE, KUMBLANGHI, ERNAKULAM DISTRICT.
10 ADDL. A10 GEORGE SEBASTIAN,
RSA NO. 919 OF 2009
..2..
S/O. LATE JOHN,
KOCHERI HOUSE, KUMBLANGHI, ERNAKULAM DISTRICT.
LEGAL HEIRS OF DECEASED SOLE APPELLANT ARE
IMPLEADED AS ADDL APPELLANTS 2 T 10 AS PER THE
ORDER DATED 22/9/2014 IN IA 2358/2014.
BY ADVS.
A.ANTONY
LEELAMMA ANTONY
T.P.DEYANANTHAN
N.DHARMADAN (SR.)
RESPONDENTS/RESPONDENTS/RESPONDENTS:
1 MEENKAMMA,
W/O. LATE JACOB,
RESIDENT OF KOCHERI HOUSE, KUMBALANGHI VILLAGE,
KOCHI TALUK.
2 THANKAPPAN @ GEORGE,
S/O. LATE JACOB,
RESIDENT OF KOCHERI HOUSE, KUMBALANGHI VILLAGE,
KOCHI TALUK.
3 JESTIN,
S/O. LATE JACOB,
RESIDENT OF KOCHERI HOUSE, KUMBALANGHI VILLAGE,
KOCHI TALUK.
4 ANTONY,
S/O. LATE JACOB,
RESIDENT OF KOCHERI HOUSE, KUMBALANGHI VILLAGE,
KOCHI TALUK.
5 JOSHI,
S/O. LATE JACOB,
RESIDENT OF KOCHERI HOUSE, KUMBALANGHI VILLAGE,
KOCHI TALUK.
6 SHAJU @ FRANCIS,
S/O. LATE JACOB,
RESIDENT OF KOCHERI HOUSE, KUMBALANGHI VILLAGE,
KOCHI TALUK.
7 JOSE MATHEW,
S/O. LATE JACOB,
RESIDENT OF KOCHERI HOUSE, KUMBALANGHI VILLAGE,
KOCHI TALUK.
RSA NO. 919 OF 2009
..3..
8 ALICE,
W/O. LATE LAWRENCE,
RESIDENT OF KOCHERI HOUSE, KUMBALANGHI VILLAGE,
KOCHI TALUK.
9 DEEPU @ DEEPAK,
S/O. LATE LAWRENCE,
RESIDENT OF KOCHERI HOUSE, KUMBALANGHI VILLAGE,
KOCHI TALUK.
10 RAJU @ ARUN,
S/O. LATE LAWRENCE,
RESIDENT OF KOCHERI HOUSE, KUMBALANGHI VILLAGE,
KOCHI TALUK.
11 BABY JOSE,
S/O. JOSEPH,
RESIDENT OF KOCHERI HOUSE, KUMBALANGHI VILLAGE,
KOCHI TALUK.
BY ADVS.
S.SUJIN
RASHMI RAVINDRAN
N.N.SUGUNAPALAN (SR.)
THIS REGULAR SECOND APPEAL HAVING COME UP FOR
ADMISSION ON 02.03.2022, THE COURT ON THE SAME DAY
DELIVERED THE FOLLOWING:
RSA NO. 919 OF 2009
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JUDGMENT
Challenge in this Regular Second Appeal is to the judgment and decree dated 12.03.2009 in A.S.No.105 of 2008 passed by the Subordinate Judge's Court, Kochi, which arose from the judgment and decree dated 13.08.2008 of the Munsiff's Court, Fort Kochi. The plaintiff is the appellant. The defendants are the respondents.
2. Materials facts relevant for the adjudication of the appeal are as follows:-
2.1 The plaintiff instituted the original suit for declaring that defendants 1 to 10 have no manner of right, title or possession over the plaint schedule property, fixing the boundaries of the property and for consequential injunction.
2.2 Late Kocheri Chori, the father of the plaintiff had executed Will No.18/1955 bequeathing 64 cents of land among his three sons, Shri. John, Shri.Jacob and RSA NO. 919 OF 2009 ..5..
Shri.Joseph. John is the plaintiff in the suit. Defendants 1 to 10 are the legal heirs of late Jacob. Defendant No.11 is the son of late Joseph. A schedule item No.6 of the Will, having an extent of 22 cents on the southern portion, was set apart to Joseph. B schedule item No.6, having an extent of 22 cents in the middle portion, was set apart to late Jacob. C schedule item No.5, having an extent of 20 cents on the northern portion was set apart to the plaintiff. After the death of the father, late Jacob requested the plaintiff for exchanging C schedule item No.5 with B schedule item No.6. The plaintiff agreed for the same. Late Jacob gave permission to one Shri. Mathai to construct a shed in the property. After the commencement of the Kerala Land Reforms Act, 1963, Shri. Mathai applied for kudikidappu showing Jacob as the landlord. The Land Tribunal ordered Jacob to divide 50 cents of land among his kudikidappukars. According to the plaintiff, he has been collecting usufructs from the middle portion of 64 cents of land [Item No.6 of the B schedule of the Will]. RSA NO. 919 OF 2009 ..6..
The defendants have no right, title or possession over the property. As the entire 64 cents of land is lying contiguous, it is necessary to fix the boundaries.
3. Defendants 1 to 8 resisted the suit denying the alleged exchange in respect of the properties. These defendants also denied the acquisition of kudikidappu right by Shri Mathai. According to the defendants, the plaintiff had at no point of time been collecting usufrtucts from the plaint schedule property.
4. The Trial Court raised the preliminary issue as to whether the suit as framed is maintainable in law.
5. After hearing both sides, the Trial Court held that as the relief of declaration and fixation of boundary depended upon the proof of exchange as pleaded by the plaintiff, the suit is not maintainable as oral exchange is impermissible in law. The Trial Court held that transfer of property in completion of an exchange can be made only in the manner provided for the transfer of such property by sale which that is, only by way of a registered RSA NO. 919 OF 2009 ..7..
instrument.
6. The plaintiff challenged the decree and judgment of the Trial Court before the Subordinate Judge's Court, Kochi by filing A.S.No.105/2008. The First Appellate Court confirmed the judgment and decree of the Trial Court. The plaintiff is in appeal before this Court invoking Section 100 of the Code of Civil Procedure.
7. On 26.08.2009, this Court admitted the appeal on the following substantial questions of law.
"(1)Whether the courts below acted contrary to law in not considering the case of the appellant that the oral exchange put up in the plaint is only a family arrangement which is not compulsorily regitrable.
(2) Whether the courts below acted erroneous under law to find in the facts and circumstances of the case that the suit is not maintainable."
8. Heard Shri A. Antony, the learned counsel appearing for the appellant/plaintiff and Shri. S. Sujith, the learned counsel appearing for the respondents.
9. The learned counsel for the appellant/plaintiff contended that the 'exchange' pleaded in the plaint is a RSA NO. 919 OF 2009 ..8..
family arrangement which need not be by way of a registered instrument. The learned counsel relied on the decisions reported in Kale v. Deputy Director of Consolidation [1976 KHC 809], Subraya M.N. Vittala M.N. [2016 KHC 6454], Tek Bahadur Bhujil v. Debi Singh Bhujil [1966 KHC 417] to substantiate his contentions.
10. The case of the appellant/plaintiff is that as per Will No.18/1955 executed by his father Shri. Kocheri Chori, 64 cents of property in Survey No.1605/1-2 of Kumbalangi Village devolved upon the plaintiff and the other issues of Shri. Kocheri Chori. As per the Will, the plaintiff acquired 20 cents of land [C schedule item No.5]. His brother Shri. Jacob acquired 22 cents of land, being the middle portion [B schedule item No.6]. Shri.Joseph, another brother of the plaintiff, got 22 cents of land [A schedule item No.6]. The further case of the plaintiff is that after the death of Chori, Shri. Jacob requested the plaintiff for exchange of C schedule item No.5 with B RSA NO. 919 OF 2009 ..9..
schedule item No.6. The plaintiff agreed for the same and the exchange came into effect.
11. Relying on the oral exchange, the plaintiff is claiming title and possession over the plaint schedule property.
12. Section 118 of the Transfer of Property Act, 1882, defines 'exchange'. Section 118 of the Transfer of Property Act reads thus:-
"118. "Exchange" defined .-- When two persons mutually transfer the ownership of one thing for the ownership of another, neither thing or both things being money only, the transaction is called an "exchange".
A transfer of property in completion of an exchange can be made only in manner provided for the transfer of such property by sale".
13. Section 118 makes it clear that a transfer of property in completion of an exchange can be made only in manner provided for the transfer of such property by sale.
14. Section 54 of the Transfer of Property Act defines Sale. Section 54 reads thus:
RSA NO. 919 OF 2009 ..10..
"54. "Sale" defined.-- "Sale" is a transfer of ownership in exchange for a price paid or promised or part-paid and part-promised."
Sale how made.-- Such transfer, in the case of tangible immovable property of the value of one hundred rupees and upwards, or in the case of a reversion or other intangible thing, can be made only by a registered instrument.
In the case of tangible immovable property of a value less than one hundred rupees, such transfer may be made either by a registered instrument or by delivery of the property.
Delivery of tangible immovable property takes place when the seller places the buyer, or such person as he directs, in possession of the property.
Contract for sale.-- A contract for the sale of immovable property is a contract that a sale of such property shall take place on terms settled between the parties.
It does not, of itself, create any interest in or charge on such property."
15. As per Section 54, in the case of tangible immovable property of the value of one hundred rupees and upwards, transfer can be made only by a registered instrument. The plaintiff has no case that the value of the RSA NO. 919 OF 2009 ..11..
subject matter is less than one hundred rupees at the time of the alleged exchange.
16. As per Section 17(1)(b) of the Registration Act, 1908, non-testamentory instruments which purport or operate to create, declare, assign, limit or extinguish, whether in present or in future, any right, title or interest, whether vested or contingent, of the value of one hundred rupees and upwards, to or in immovable property are compulsorily registrable. As per Section 49 of the Registration Act, no document required by Section 17 or by any provision of the Transfer of Property Act, 1882 to be registered shall - (a) affect any immovable property comprised therein, or (b) confer any power to adopt, or (c) be received as evidence of any transaction affecting such property or conferring such power, unless it has been registered.
17. In Ram Kristo Mandal v. Dhankristo Mandal [AIR 1969 SC 204], while considering the scope of Section 118 of the TP Act, the Apex Court held that a RSA NO. 919 OF 2009 ..12..
transfer of property in completion of an exchange can be made only in the manner provided for the transfer of such property by sale. In Satyawan and others v. Raghbir [AIR 2002 Punjab and Haryana 290], the Punjab and Haryana High Court held that oral exchange was not permissible in view of amendment of Section 49 of the Registration Act.
18. Coming to the contention of the learned counsel for the appellant that the alleged oral exchange was a family arrangement, the first thing to be noted is that the appellant/plaintiff has not set up the pleading that there was a family arrangement. In the case on hand, admittedly, the properties were vested with the respective allottees after the death of the father of the plaintiff Shri. Kocheri Chori. The plaintiff has no case that at the time of alleged exchange, the properties remained in common. Going by the pleadings in the plaint, it is candid that the exchange pleaded, has taken place after the properties were vested with the parties separately. So the alleged RSA NO. 919 OF 2009 ..13..
exchange would not come under any family arrangement or family settlement, as contended. What is pleaded is an outright exchange which can only be done by way of a registered instrument as discussed above.
18. The reliefs sought for in the plaint entirely depended upon the proof of exchange. The Trial Court as well as the First Appellate Court held that as the proof of any exchange as pleaded is impossible, no triable issue survived. The suit was, therefore, dismissed on the preliminary issue as not maintainable. This Court finds no reason to interfere with the judgment and decree impugned. The Regulars Second Appeal fails and is dismissed. The parties are directed to bear their respective costs.
Pending interlocutory applications, if any, stand closed.
Sd/-
K. BABU, JUDGE kkj