Kerala High Court
Edwin Ignatious vs Patric Ignatious on 4 December, 2024
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE A. BADHARUDEEN
WEDNESDAY, THE 4TH DAY OF DECEMBER 2024 / 13TH AGRAHAYANA, 1946
RFA NO. 611 OF 2014
AGAINST THE DECREE AND JUDGMENT DATED 31.03.2014 IN O.S. NO.216 OF 2010
ON THE FILES OF THE SUBORDINATE JUDGE'S COURT, KOCHI
APPELLANT/DEFENDANT NO.3:
EDWIN IGNATIOUS
S/O.SANJOHN IGNATIOUS, AGED 65, THUNDIPARAMBIL HOUSE,
VYPEEN, AZHEEKKAL, COCHIN - 10.
BY ADVS.
SRI.C.X.ANTONY BENEDICT
SRI.G.GOPALAKRISHNA PILLAI
SRI.V.M.JACOB
SRI.M.SALIM
SRI.R.SRINATH
SRI.B.RAGHUNATHAN
RESPONDENTS/PLAINTIFF AND DEFENDANTS 2, 4, 5 & 6:
1 PATRIC IGNATIOUS
S/O.SANJOHN IGNATIOUS, AGED 54, THUNDIPARAMBIL HOUSE,
PUTHUVYPE VILLAGE, VYPEEN, AZHEEKKAL, COCHIN - 10.
2 ANTONY IGNATIOUS
S/O.SANJOHN IGNATIOUS, AGED 68, THUNDIPARAMBIL HOUSE,
PUTHUVYPE VILLAGE, VYPEEN, AZHEEKKAL, COCHIN - 10.
3 BONIFUS IGNATIOUS
S/O.SANJOHN IGNATIOUS, AGED 59, THUNDIPARAMBIL HOUSE,
PUTHUVYPE VILLAGE, VYPEEN, AZHEEKKAL, COCHIN - 10.
4 MENET AUSTIN
S/O.SANJOHN IGNATIOUS, AGED 61, THUNDIPARAMBIL HOUSE,
PUTHUVYPE VILLAGE, VYPEEN, AZHEEKKAL, COCHIN - 10.
5 SATHIKUNJAMMA
AGED 86,
D/O. GANGA @ AMMINI KUNJAMMA, KAIRALI HOUSE, KARAKAMURI,
KANAYANNUR TALUK, ERNAKULAM, KOCHI - 682 011.
R.F.A. No. 611 of 2014 & C.O. NO.167 of 2014
2
R1 BY ADVS.
AADITHYAN S.MANNALI
SAJAN MANNALI(S-55)
V.N.SHASHIKALA(S-373)
M.P.JAYAKUMAR(J-498)
HARITHA K.T.(K/001234/2023)
SANTHI K.PAI(K/86/1998)
SRI.P.V.GEORGE(PUTHIYIDAM)
R2 AND R3 BY ADVS
SRI.JIMMY JOHN VELLANIKARAN
SRI.V.L.THOMAS
R5 BY ADV
SRI.P.PRASANTH
THIS REGULAR FIRST APPEAL HAVING BEEN FINALLY HEARD ON
04.12.2024, ALONG WITH CO.167/2014, THE COURT ON THE SAME DAY
DELIVERED THE FOLLOWING:
R.F.A. No. 611 of 2014 & C.O. NO.167 of 2014
3
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE A. BADHARUDEEN
WEDNESDAY, THE 4TH DAY OF DECEMBER 2024 / 13TH AGRAHAYANA, 1946
CO NO. 167 OF 2014
AGAINST THE DECREE AND JUDGMENT DATED 31.03.2014 IN O.S. NO.216/2010
ON THE FILES OF THE SUBORDINATE JUDGE'S COURT, KOCHI
CROSS OBJECTORS/RESPONDENTS 2 & 3 IN THE APPEAL:
1 ANTONY IGNATIOUS
S/O. SANJOHN IGNASIUS, THUNDIPARAMBIL HOUSE, VYPEEN,
COCHIN - 10
2 BONIFUS IGNATIOUS
S/O. SANJOHN IGNASIUS, THUNDIPARAMBIL HOUSE, PUTHUVIPE,
VYPEEN, COCHIN - 10
BY ADV SRI.JIMMY JOHN VELLANIKARAN
RESPONDENTS/APPELLANT AND RESPONDENTS 1, 4 AND 5 IN THE APPEAL:
1 EDWIN IGNATIOUS
S/O. SANJOHN IGNATIOUS, THUNDIPARAMBIL HOUSE, VYPEEN,
COCHIN - 10
2 PATRIC IGNATIOUS
S/O. SANJOHN IGNATIOUS, THUNDIPARAMBIL HOUSE, VYPEEN,
COCHIN - 10
3 MENET AUSTIN
D/O. SANJOHN IGNATIOUS, THUNDIPARAMBIL HOUSE, VYPEEN,
COCHIN - 10.
4 SATHIKUNJAMMA
D/O. GANGA @ AMMINI KUNJAMMA, KAIRALI HOUSE, ERNAKULAM,
KOCHI-682 011.
THIS CROSS OBJECTION/CROSS APPEAL HAVING BEEN FINALLY HEARD ON
04.12.2024, ALONG WITH RFA.611/2014, THE COURT ON THE SAME DAY
DELIVERED THE FOLLOWING:
R.F.A. No. 611 of 2014 & C.O. NO.167 of 2014
4
"C.R"
COMMON JUDGMENT
Dated this the 4th day of December, 2024 This regular first appeal has been filed under Section 96 read with Order XLI Rule 1 of the Code of Civil Procedure, 1908, by the 3 rd defendant in O.S. No.216 of 2010 on the files of the Court of the Subordinate Judge, Kochi, challenging the decree and judgment in the above case dated 31.03.2014, where by the learned Subordinate Judge decreed the suit allowing preliminary decree of partition of the plaint schedule property as under:
1. It is hereby declared that Ext.Al document No.2005/1999 will not affect the rights of the plaintiffs and defendants over the plaint schedule property.
2. The plaint schedule property shall be divided into five equal shares and plaintiff is entitled to get one such share.
3. The tharavadu house and the shop buildings in the plaint schedule property shall be valued and the plaintiff is entitled to get 7/15 shares in the value of the building and the other defendants will be entitled to get 2/5 shares R.F.A. No. 611 of 2014 & C.O. NO.167 of 2014 5 each.
4. The house constructed by the 3 rd defendant in the plaint schedule property is excluded from partition.
5. The property wherein the building constructed by the third defendant is situated shall be set apart to the share of the third defendant.
6. The costs of the suit shall come out of the estate and the parties are at liberty to file application for passing final decree in terms of preliminary decree.
7. The plaintiff and the defendants other than the third defendant are entitled to share of profit from the date of suit, till they are put in possession of the property, quantum of which is to be fixed in the final decree proceedings.
2. The appellant is the 3 rd defendant and respondents are the plaintiff and defendant Nos.2, 4, 5 and 6 in the above suit. Cross Objection No.164/2014 is at the instance of defendants 2 and 4/respondents 2 and 3 herein.
3. Heard the learned counsel for the appellant/3 rd defendant and the learned counsel appearing for the respondents 2 and 3/defendants 2 and 4, in detail. Perused the verdict under challenge.
R.F.A. No. 611 of 2014 & C.O. NO.167 of 2014 6
4. Parties in this appeal shall be referred as "plaintiff" and "defendants" with reference to their status before the trial court.
5. In this matter, the plaintiff, who is the grandson of late Eleeswa and the son of late Sanjohn Ignatious, filed a suit seeking partition of the plaint schedule property contending that, late Eleeswa owned 19 cents of land as per kanam arrangement of the year 1046 ME as per kanacheettu No.126 under the kanamdar Sathikunjamma. After the death of Eleeswa in the year 1963, her right devolved upon her son Sanjohn Ignatious, who also died on 28.03.1978. Thereafter, the right of Sanjohn Ignatious over the property devolved upon the plaintiff and defendants, who are his wife and children. According to the plaintiff, when kanam arrangement was ceased to exist after 1958, all the legal heirs became owners of the property from 1976 by settling the kanam. Further, the building in the said property was assessed in the name of the first defendant Annie Ignatious from 1968 by the Elamkunnapuzha Grama Panchayat. In the year 2008, the first defendant has executed a settlement deed transferring the ownership of the shop building and the R.F.A. No. 611 of 2014 & C.O. NO.167 of 2014 7 dwelling house in favour of the plaintiff. Accordingly, the plaintiff has filed the suit seeking partition and separate possession of his share in the plaint schedule property and allotment of the share of the 1st defendant in favour of the plaintiff in the light of the settlement deed. The plaintiff also sought for a permanent prohibitory injunction against the 2 nd defendant from alienating or committing waste in the plaint schedule property.
6. The defendants 2, 4 and 5 filed joint written statement contending that the plaint schedule property to be equally divided among the parties.
7. The 3rd defendant filed separate written statement and the contentions raised by the 3 rd defendant as extracted in paragraph No.4 of the trial court judgment is as under:
The suit is not maintainable either in law or on facts. The plaintiff or the other defendants are not entitled to get any relief in the suit and they are not entitled to get any relief in the suit and they are estopped from claiming any relief due to long silence and acquiescence. For the past two decades the 3 rd defendant is the absolute owner and in exclusive possession and enjoyment of the properties. The plaintiff's and other defendants' conduct clearly raises an inference of atonement by the plaintiff and other R.F.A. No. 611 of 2014 & C.O. NO.167 of 2014 8 defendants in favour of the 3rd defendant. The 3rd defendant being the owner of the property is in the enjoyment of the same from the year 1999 after he obtained the document from the owner of the property. The suit is barred by limitation and it is to be dismissed Smt.Sathi Kunjamma is a necessary party to the suit and hence the suit is barred by non-jointer of necessary parties. The 3rd defendant is in possession and ownership of 19 cents of land in Survey 1096/5 of Puthuvyppu Village as per sale deed No.2005/1999. Except the 3rd defendant, none of the parties to the suit got any right in the plaint schedule property. After acquiring the exclusive possession the 3rd defendant has constructed a two storied residential building, after obtaining sanction from the Elamkunnapuzha Grama Panchayath as per building permit No.325/2001 dated 30.3.2001, having a plinth area of 119.95 sq.m. in the ground floor and 62.02 sq.mtrs. in the first floor. The 3rd defendant is residing in that building. The 3 rd defendant has developed the property around the house and the fact that the 3rd defendant was constructing the building was fully known to the plaintiff and other defendants and they never objected or interfered in the work at any point of time. The panchayath assessment of tharavadu house bearing No.1/227 and shop Nos.1/228, 229 and 230 originally belonged to Eleeswa in the year 1950 and after her death the assessment of the building was changed in the name of her son Sanjohn Ignatious. After his death the panchayath assessment of the building was R.F.A. No. 611 of 2014 & C.O. NO.167 of 2014 9 changed to the name of defendant No.1 representing all the legal heirs. The first defendant has no exclusive right over the property and she cannot assign the same. Being the widow of Sanjohn Ignatious, she is entitled only to 1/3 right in the building and the property under the Succession Act. The plaintiffs and other defendants have equal shares over the reminder 2/3rd and the first defendant has no authority to transfer the ownership of the house and building therein. So the plaintiff will not get any right on the basis of document No.2845/2008 and the same is to be set aside as null and void. It is a sham document registered in favour of the plaintiff which came to the knowledge of the defendant only upon receipt of the summons and copies of the plaint and petitions in the above case. The relationship shown in the plaint is admitted. The existence of kanacheettu No.126/1046 in the name of the Eleeswa is admitted. Kanaavakasam devolved upon Sanjohn Ignatious, who is the son of Eleeswa and after his death in the year 1978 the right devolved upon his legal heirs. Thereafter all the legal heirs, except the 3rd defendant abandoned their right in the property by efflux of time and acquiescence. The parties to the suit, except the 3rd defendant were never interested in the property for more than 20 years. So the 3 rd defendant attorned with the original owner and obtained document No.2005/1999. Thereafter the 3rd defendant is in exclusive ownership and possession of the property and the other children of Sanjohn Ignatious have no R.F.A. No. 611 of 2014 & C.O. NO.167 of 2014 10 right in the property. The property is not standing in the joint name and the plaintiff and other defendants are not entitled to get any share in the property. Document No.2845/2008 is a result of the plaintiff's money power and collusion and connivance with the other defendants, behind the back of the 3rd defendant. The plaintiff is not entitled to any relief and the suit is only to be dismissed.
8. The trial court raised necessary issues and tried the matter. PW1 examined and Exts.A1 to A12 marked on the side of the plaintiff. DW1 examined and Exts.B1 to B4 marked on the side of the defendants.
9. Finally, the trial court granted preliminary decree, negating the contentions raised by the 3 rd defendant, claiming absolute title over the plaint schedule property on the strength of Ext.A1 document No.2005/1999 and also raising contention that, even otherwise 8 cent of land form part of the plaint schedule property is in exclusive possession and enjoyment of the 3rd defendant and therefore, the said extent of property is not partible.
10. The trial court addressed the matter in issue and found that, originally the plaint schedule property was held R.F.A. No. 611 of 2014 & C.O. NO.167 of 2014 11 as kanam by Eleeswa and on the death of Eleeswa, the right over the plaint schedule property devolved upon her son, Sanjohn Ignatious and on the death of Sanjohn Ignatious, his right devolved upon the plaintiff and defendants, who are his wife and children, negating the contention raised by the 3rd defendant, on the strength of Ext.A1.
11. While assailing the judgment of the trial court, learned counsel for the petitioner/3 rd defendant, initially given much emphasis to Ext.A1 to assert his title over the entire property. Another contention raised by the learned counsel for the appellant/3 rd defendant is that, in so far as the 8 cents of property form part of the plaint schedule property, he has exclusive possession and he had constructed a building therein and the same was not opposed by the plaintiff or other defendants. Therefore, the said 8 cent of land should go out of partition.
12. The learned counsel for respondents 2 and 3/defendants 2 and 4 pointed out that, Eleeswa obtained 19 cent of land as per kanam arrangement of the year 1046 R.F.A. No. 611 of 2014 & C.O. NO.167 of 2014 12 ME and after 1976 all the kanam holders became joint owners of the property. Therefore, a document of purchase executed after getting common ownership right by the plaintiff and defendants over the plaint schedule property from the earlier landlord, Smt. Sathikunjamma, on the strength of Ext.A1, would not confer title upon the 3 rd defendant. Therefore, as rightly found by the trial court, Ext.A1 would not confer any absolute title on the 3 rd defendant.
13. This contention raised by the 3rd defendant that, 8 cents of property form part of the plaint schedule property, in which the 3rd defendant had constructed a building should go out of partition, was negatived by the trial court for the reason that the improvements made by a co-owner without the consent of other co-owners would not give any independent right. Therefore, the entire property held in common by all the co-owners, is partible.
14. In this connection, the learned counsel for respondents 2 and 3/defendants 2 and 4 pointed out that, no independent right on the strength of possession would R.F.A. No. 611 of 2014 & C.O. NO.167 of 2014 13 succeed at the instance of the 3rd defendant in this case, since the possession, if any, as contended, is after the execution of Ext.A1 in the year 1999 and the suit has been filed in the year 2010. Therefore, the required ingredients to perfect title by adverse possession and ouster, not either pleaded or proved.
15. The legal questions arise for consideration are:
1) What is the drastic change introduced by Section 3 of the Kanam Tenancy Act, 1955? and
2) What is the legal effect of the Kanam Tenancy Abolition Act, 1976, came into force with effect from 01.01.1970?
16. The Kanam Tenancy Act, 1955 was enacted to confer full proprietory rights on kanam tenants in the Cochin area, subject to payment of 'jenmikaram' and to provide for the settlement, collection and payment of jenmikaram and for matters incidental thereto. Section 3 of the Kanam Tenancy Act, 1955, provides that, kanam-tenent is the owner of land subject only to payment of jenmikaram. Thus, as per Section 3(1) of the Kanam Tenancy Act, 1955, from and after the commencement of R.F.A. No. 611 of 2014 & C.O. NO.167 of 2014 14 this Act, the jenmi shall not have any right, claim or interest in any land in a holding, except the right to receive the jenmikaram thereon and the kanam-tenent shall be deemed to be the owner of the land subject only to the payment of the jenmikaram. Explanations 1 to 3 to Section 3(1) also to be read along with Section 3(1) of the Kanam Tenency Act. As per Section 3(2) of the Kanam Tenancy Act, 1955, the jenmi's right as well as the kanam-tenant's right is heritable as well as transferable by sale, gift or otherwise.
17. While the Kanam Tenancy Act, 1955, was in force, the Kanam Tenancy Abolition Act, 1976, came into force with effect from 01.01.1970. The preamble of the Kanam Tenancy Abolition Act, 1976, provides that:
WHEREAS under the kanam tenancy act, 1955 the kanam tenents in the cochin area of the state of kerala are liable for the recurring and periodical payment of jenmikaram to their jenmies;
AND WHEREAS such jenmies are intermediaries between the state and cultivators and their right to receive R.F.A. No. 611 of 2014 & C.O. NO.167 of 2014 15 jenmikaram is a right in land;
AND WHEREAS it is considered necessary to abolish such intermediary right and to confer on the kanam tenents full proprietary rights over their holdings.
18. As per Section 3 of the Kanam Tenancy Abolition Act, 1976, it has been provided as under:
3. Jenmikaram to be abolished.- (1) Notwithstanding anything contained in any law or in any contract, with effect on and from the appointed day, the jenmi shall not have the right to receive payment of jenmikaram and the kanam tenant shall have no liability to pay any jenmikaram to the jenmi - and the right to receive payment of, and the liability to pay, jenmikaram shall stand extinguished.
(2) Every jenmi whose right to receive payment of jenmikaram has been extinguished under sub-section (1) shall be entitled to receive and be paid by the Government the amount or annuity specified in section 4.
19. As per Section 4, the amount payable for extinguishment of right to receive jenmikaram is dealt under Section 4(1) to 4(4) and as per which, the R.F.A. No. 611 of 2014 & C.O. NO.167 of 2014 16 Government shall pay to every jenmi, other than a religious or charitable institution of a public nature, whose right to receive payment of jenmikaram has been extinguished, an amount equal to eight and one-third times the aggregate of the annual amount of jenmikaram payable to him immediately before the appointed day, after deducting a sum equal to five per cent of the said aggregate on account of collection charges.
20. Thus, in view of Section 3 of the Kanam Tenancy Act, 1955, kanam-tenants in the Cochin area became owners of kanam tenancy land, subject to payment of jenmikaram. By the introduction of the Kanam Tenancy Abolition Act, 1976, kanam-tenants in Cochin area became the absolute owners of the property from 01.01.1970, where kanam tenancy existed, even without paying jenmikaram.
21. In this case, admittedly late Eleeswa originally obtained kanam right over 19 cent of property (plaint schedule herein) in the year 1046 ME as per kanacheettu No.126 under the kanamdar Sathikunjamma. After the R.F.A. No. 611 of 2014 & C.O. NO.167 of 2014 17 death of Eleeswa in the year 1963, her right devolved upon her son Sanjohn Ignatious, who is none other than the husband and father of the parties to the suit. Thus, as on 01.01.1970 the plaintiff and defendants became joint owners of the plaint schedule property. If so, Ext.A1 executed in the year 1999 is a sham document, since Sathikunjamma has no right or interest in the plaint schedule property after 01.01.1970.
22. On perusal of the verdict under challenge, the contention raised by the learned counsel for respondents 2 and 3/defendants 2 and 4 in this background is having substance. In the instant case, in continuation of the kanam right obtained by Eleeswa in the year 1046 ME, devolved upon her son Sanjohn Ingnatious on her death and on the death of Sanjohn Ignatious, the same devolved upon the plaintiff and defendants, who are the wife and children of Sanjohn Ingnatious. That apart as on 01.01.1970, they became absolute co-owners of the plaint schedule property and therefore Ext.A1 would not confer any right on the 3 rd defendant. The claim raised by the 3rd defendant over 8 R.F.A. No. 611 of 2014 & C.O. NO.167 of 2014 18 cent of property, where a building was constructed also could not yield for want of pleadings and evidence.
23. Thus, the status of plaintiff and defendants is as that of co-owners with effect from 01.01.1970. Therefore, the partition of the plaint schedule property in between co-owners allowed by the trial court is perfectly justifiable and the same does not require any interference.
24. The learned counsel for defendants 2 and 3/defendants 2 and 4 filed cross-objection to delete the word 'as far as possible' in paragraph No.12 of the judgment of the trial court, ordering to exclude the house of the 3rd defendant from partition and the property in which the house is situated to be allowed to his share as far as possible. According to the learned counsel for defendants 2 and 4, since the extent of property is only 21 cents, it is difficult to allow the entire property, where the house is situated in favour of the 3 rd defendant, by metes and bounds.
25. In this regard, it is necessary to mention that, in a suit for partition, while passing preliminary decree, in R.F.A. No. 611 of 2014 & C.O. NO.167 of 2014 19 fact, the Court shall address the right of the parties and declare the same. The feasibility of partition and the mode in which shares are to be allowed are matters to be considered at the final decree stage. Therefore, even though I am not inclined to allow the cross-objection as prayed for, it is made specifically clear that, partition of the property shall be in accordance with metes and bounds and allotment of the house towards the share of the 3 rd defendant shall be subject to feasibility and not otherwise.
26. Holding so, the regular first appeal and the cross- objection stand dismissed.
All interlocutory applications pending in this regular first appeal stand dismissed.
Sd/-
A. BADHARUDEEN SK JUDGE