Kerala High Court
Abdul Khader vs Usmankutty on 15 December, 2000
Author: D. Sreedevi
Bench: D. Sreedevi
JUDGMENT D. Sreedevi, J.
1. This appeal is directed against the decree and judgment in A.S. No. 105 of 1987 of the District Court, Alleppey, which was filed against the decree and judgment in O.S, No. 413 of 1983 of the Munsiff's Court, Alleppey. The 1st defendant before the trial court is the appellant and the plaintiff and 2nd defendant are the respondents. The 1st respondent/plaintiff filed the above suit for partition and recovery of possession. The plaintiff's case in brief is this: The plaint schedule property and the building standing thereon were purchased by one Sulekha Umma and her brother Azeez. Sulekha Umma passed away. Her legal representatives are her three children, Rehma Beevi, Latheefa Beeyi and Abdu Rehman. Azeez has transferred all his rights in favour of the children of Sulekha Umma and thus the children of Sulekha Umma have become the absolute owners of the plaint schedule property. The plaintiff is the husband of Rehma Beevj. The 2nd defendant is the son of the plaintiff. Rehma Beevi died in 1957. Her right devolved on her legal heirs, the plaintiff and the 2nd defendant. The plaintiff is entitled to 1/4th share and the 2nd defendant is entitled to 3/4th share over 7/24 share due to Rehma Beevi. Rehma Beevi, Latheefa Beevi and other brother Abdu Rehiman executed a mortgage in the year 1956 in respect of the plaint schedule property in favour of Abdul Razak. Thereafter Latheefa Beevi and Abdu Rehman and Koya Kunju represented by his grand father assigned their right over the plaint schedule property to one Kassim Bava by a registered document of 1964. Kassim Bava redeemed the mortgage and transferred the plaint schedule property in favour of the 1st defendant in this case. The 1st defendant thus claims absolute right and possession over the property. But actually he has no right over the shares of the plaintiff and 2nd defendant except as a mortgagee. The 2nd defendant then filed O.S. No. 46 of 1979 for partition. The plaintiff came to know about the redemption of mortgage by Kassim Bava and about the assignment of the property in favour of the 1st defendant only when he received a reply notice from the 1st defendant only. As the 1st defendant was not amenable for partition and recovery of property the plaintiff has filed the above suit for partition.
2. The 1st defendant filed written statement contending that the suit is barred by limitation, that the plaintiff is not the husband of Rehma Beevi and the 2nd defendant is not the son born to the plaintiff through Rehma Beevi, that they are not the legal heirs of Rehma Beevi, that on 24.11.1956 Sulekha Beevi, Rehma Beevi and other sharers of the property mortgaged the property to one Abdu Razack, that subsequently Sulekha Beevi, Latheefa Beevi and others sold the property to one Kassim Bava in 1964, that Kassim Bava redeemed the mortgage and thereafter he had sold away the property to the 1st defendant, that the 1st defendant constructed a building spending Rs. 50,000/- and effected improvements in the property, that even if the plaintiff had any right, over the property that has been lost by adverse possession and limitation and that the plaintiff is not entitled to any relief in the suit. The 2nd defendant had filed another suit O.S. No. 46 of 1979 for partition and recovery of possession. That was dismissed.
3. The trial court after taking evidence in this case passed a preliminary decree for partition and recovery of the plaintiff's share after paying off the proportionate mortgage amount. Aggrieved by the said decree and judgment, the 1st defendant filed A.S. No. 105 of 1987, before the District Court, Alleppey. The learned District Judge dismissed the appeal confirming the decree and judgment of the trial court. Aggrieved by the said decree and judgment the 1st defendant filed this second appeal.
4. The learned senior counsel Mr. S. Venkitasubramonya Ayyar challenged the decree and judgment of the court below on various grounds. According to him, the courts below ought to have found that the plaintiff has not established a valid marriage between himself and Rehma Beevi, that by Ext. A4 the equity of redemption over the entire property devolved on Kassim Bava, and that he had assigned the right in favour of the 1st defendant. It is also urged that the suit is barred by limitation. According to him, the question of law involved in this appeal for interference by this Court are the following:
"i. Is a certificate issued by a muthavally- evidence of marriage of 2 persons named therein, ii. Can the certificate issued by a person who became a muthavally several years after the date of marriage be relied upon to find the marriage. Is it admissible in evidence, iii. When a part owner of the equitable redemption redeems the mortgage, will the mortgage subsist thereafter.
iv. What is the relationship between a redeeming co-mortgagor and a non-redeeming co-mortgagor and what is the right available to a non-redeeming co-mortgagor as against a redeeming co-mortgagor.
v. When a person who stands in the position of a mortgagee assigns the right in the property claiming to be the full owner,- when does the period of limitation for recovery of possession start at the hands of the alleged mortgagor or co-mortgagor.
vi. When a co-mortgagor who has redeemed the mortgage conveys the entire rights over the property to another and the said assignee holds the property as full owner, will not the assignee get an indefeasible title on account of ouster and adverse possession and limitation".
Points 1 and 2 :
5. Admittedly, the plaint schedule property and the building standing thereon originally belonged to Sulekha Umma and her brother Azeez. Sulekha Umma passed away. Her right devolved on her daughters Rehma Beevi, Latheefa Beevi and Abdu Rehman. Azeez assigned his right in favour of the children of Sulekha Beevi. Thus, the children of Sulekha Beevi became the absolute owner of the entire property. The plaintiff claims to be the husband of Rehma Beevi and 2nd defendant the son of the plaintiff through Rehma Beevi. Rehma Beevi also died in 1957. Her rights, according to the plaintiff, devolved on the plaintiff and 2nd defendant. After her death the plaintiff is entitled to 1/4th share and the 2nd defendant 3/4th share over the shares of Rehma Beevi. Latheefa Beevi, Abdu Rehman and the 2nd defendant execute a sale deed in favour of Kasim Bava. The 2nd defendant was a minor at that time. His grandfather represented him to execute the sale deed. After getting the sale deed Kasim Bava redeemed the mortgage and was in possession. He then transferred his property to the 1st defendant and thus the 1st defendant claims exclusive possession. In the written statement the 1st defendant denied the status of the plaintiff, as the husband and the 2nd defendant as the son of deceased Rehma Beevi. The plaintiff relied on Ext. Al marriage certificate issued by Muthavally of Muslim Jumayth certifying that the plaintiff married Rehma Beevi, the daughter of Kunjutheen on 8.12.1955. Ext. A3 is the mortgage deed executed by Rehma Beevi, her sister Latheefa Beevi and brother Abdu Rehman, who was represented by his grandfather. The plaintiff was a witness to that document. DW. 1 stated that he does not know Rehma Beevi or who is the wife of the plaintiff. Such a person is really incompetent to speak about the question whether Rehma Beevi was married to the plaintiff or not. It is also contended by the 1st defendant that Rehma Beevi is the daughter of one Kunju Moideen and not Kunjutheen. In Ext. A1 and A3 she is described as the daughter of Kunjutheen and not Kunju Moideen. To show that Kunjutheen and Kunju Moideen are one and the same person PW. 1 Muthavally of Muslim Jumayath was examined. He has stated that these two names represent one and the same person. These points are therefore found against the appellant. It is also argued that a person who became Muthavally several years after the date of marriage is not competent to issue a marriage certificate and hence the marriage certificate is inadmissible in evidence. Muthavally being an officer of the Jumayath is competent to issue a marriage certificate relying on the documents kept in the Jumayeth. Therefore, the argument that a person who has become Muthavally several years after the date of marriage is not competent to issue a marriage certificate has no basis and as such it is repelled. Ext. B1 is the judgment in O.S. No. 46 of 1979 filed by the 2nd defendant for partition and redemption against the 1st defendant. In that case the 2nd defendant alleged that Rehma Beevi is his mother and that she is the wife of Usmankutty. These allegations were not denied by the 1st defendant. Hence I can only find that the plaintiff is the husband of Rehma Beevi and that the 2nd defendant is their son.
6. Points 3 to 6 :
It is an admitted fact that the sale deed was executed in favour of Kasim Bava by Latheefa Beevi, Abdu Rehman and the 2nd defendant. The 2nd defendant was represented by his grandfather as he was a minor on that day. Under the Mohammedan Law and when the father is alive he is the legal guardian and hence the grandfather cannot act as the guardian of the minor. Since the plaintiff is the husband of Rehma Beevi he is not one of the sharers. He has not joined in the sale deed. Therefore, the sale deed is not valid so as his share is concerned as it is not binding on the plaintiff and 2nd defendant. The 1st defendant thus cannot claim to be the absolute owner of the plaint schedule property. He can only be a redeeming co-mortgagor as he has purchased equity of redemption in respect of a portion of the property. Therefore, the plaintiff is entitled to partition and recovery of his share. At the time of hearing the learned counsel for the 1st defendant submitted that the suit itself is barred by limitation. According to him, possession of the property by the plaintiff was in denial of the title of the 1st defendant and hence the 1st defendant perfected title by adverse possession and limitation. Art. 61(a) of the Limitation Act provides the period of limitation of redemption of mortgage and recovery of possession of the mortgaged property. The period of limitation prescribed is thirty years from the date on which the right to redeem or to recover possession accrues. Art. 61 (a) applies only when the suit is for redemption of the mortgage. The above suit is filed for recovery of possession. Therefore, the article applicable is Art. 6 l(b) of the Limitation Act. As per the above article the suit has to be brought within 12 years from the date when the transfer become known to the plaintiff. The plaintiff has alleged that he came to know of the transfer in favour of the 1st defendant only when he received Ext. A6 reply notice. In the reply notice the 1st defendant has stated that he is the absolute owner of the property. Both the Courts below have concurrently held that there is no other evidence available in this case to show that the plaintiff has knowledge about the transfer in favour of the 1st defendant before Ext. A6 notice. Therefore the suit is within time. The learned counsel for the appellant relied on the decision of the Apex Court in Dilbop v. Dhanraji ((2000) 7 SCC 702} to find that the suit is beyond time. In that case the court held as follows:
"In the absence of any averment or proof, to show that the suit is with in time, it is the plaintiff who would fail. Whenever a document is registered the date of registration becomes the date of deemed knowledge. In other cases where a fact could be discovered by due diligence then deemed knowledge would be attributed to the plaintiff because a party cannot be allowed !o extend the period of limitation by merely claiming that he had no knowledge."
It is always for the party who files the suit to show that the suit is within time. Thus in cases where the suit is filed beyond the period of 12 years the plaintiffs have to aver and then prove that the suit is within 12 years of his knowledge. In this case the plaintiff has alleged that he came to know of the date of suit only when he received the reply notice. So the burden is on the defendant to establish that the plaintiff has knowledge long prior to the reply notice. Therefore, the decision of the Apex Court is not applicable to the present case. Both the courts below have held that the suit is within time. The findings of the Courts below are correct. The question of adverse possession does not at all arise for consideration in this case. Points are answered accordingly.
In the result, this Second Appeal is dismissed.