Kerala High Court
Upendran vs Indira Kumari on 31 July, 2007
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE A.M.SHAFFIQUE
&
THE HONOURABLE MRS. JUSTICE ANU SIVARAMAN
MONDAY, THE 9TH DAY OF OCTOBER 2017/17TH ASWINA, 1939
RFA.No. 151 of 2008 (D)
------------------------
AGAINST THE ORDER/JUDGMENT IN OS 209/1996 of II ADDL.SUB
COURT,THIRUVANANTHAPUPRAM DATED 31-07-2007
APPELLANT(S)/DEFENDANTS 10 AND 11:
---------------------------------
1. UPENDRAN, S/O.BHARGAVAN
SUBHADRA NIVAS, THOZHICHAL,
THIRUVALLAN, KOVALAM-P.O., THIRUVANANTHAPURAM.
2. SOBHANA, W/O.UPENDRAN OF DO.. DO..
BY ADVS.SRI.RAM MOHAN.G.FOR 2ND APPELLANT
SRI.MANU V.
SRI.G.P.SHINOD
RESPONDENT(S)/PLAINTIFF:
------------------------
INDIRA KUMARI, D/O.VANAJAKSHI
SREE LAKSHMI COLOUR PRINTERS,
NEDUMON, KOVALAM, THIRUVANANTHAPURAM.
R1 BY ADV. SRI.G.S.REGHUNATH
THIS REGULAR FIRST APPEAL HAVING BEEN FINALLY HEARD ON 04-
8-2017, ALONG WITH RFA. 372/2008 & CONN.CASES, THE COURT ON
9/10/2017 DELIVERED THE FOLLOWING:
"C.R."
A.M. SHAFFIQUE & ANU SIVARAMAN, JJ.
===========================
RFA Nos. 151 ,372, 373 of 2008 & LAA No.48/2012
===============================
Dated this, the 9th day of October, 2017
J U D G M E N T
Shaffique, J.
Since common questions arise for consideration in the above Regular First Appeals (RFAs), they are heard and decided together. The judgment in the RFAs has a bearing to the judgment which is impugned in LAA No.48/2012 and hence the said appeal is also heard and decided along with the RFAs.
2. RFA Nos.151/08 and 372/08 have arisen from the common judgment in OS No.209/1996 and RFA No.373/2008 had arisen from the very same common judgment relating to OS No.614/95. LAA No. 48/12 has arisen from the judgment in LAR No.188/1998 which was decided separately.
3. RFA No.372/2008 has been filed by defendants 1 to 4 and 8 in OS No.209/1996 and RFA No.151/2008 has been filed by the defendants 10 and 11 in the same suit. RFA No.373/2008 has been RFA No.151/08 & conn.cases -:2:- filed by the plaintiff in OS No. 614/1995.
4. The suit, O.S.No.209/1996 was filed by Indira Kumari as plaintiff seeking for partition of the plaint schedule properties. It was contended that the plaint schedule properties were obtained by the plaintiff and defendants as per partition deed No.3275 dated 30/6/1958 wherein the property was described as D schedule. Since the plaintiffs and defendants 2 to 6 were minors, the plaint schedule property was taken possession by the first defendant, their mother, on their behalf. According to her, she was in joint possession of the property along with defendants 1 to 6 and therefore she was entitled to 1/7 share in respect of the plaint schedule properties. It is further contended that, plaintiff and her husband were conducting a printing press in a building situated in plaint schedule item No.2 under the name and style Sreelekshmi Colour Printers. It is alleged that first defendant has executed various gift deeds in favour of defendants 3 to 5 and 7 to 11 which are void and cannot affect the rights of the plaintiff in any manner. Defendants 1 to 4 and 6 filed a joint written statement. Separate written statements were filed by defendants RFA No.151/08 & conn.cases -:3:- 5, 7, 9, 10, 11, 12, 13 and 14. They denied the claim of the plaintiff. It is alleged that item Nos. 1 and 3 in the plaint schedule are the properties which were acquired by 1st defendant's father and the said property was allotted to the 1st defendant alone, she being one of the heirs. 1st defendant's children have no right over the said properties. It is further contended that first defendant had every right to deal with the properties as absolute owner. The defendants also denied that the plaintiff was having possession over the properties. It is also contended that 1st defendant had gifted 20 cents from item No.2 to the 3rd defendant in 1967 and the balance property is in the possession of the 2nd defendant. The 2nd defendant had constructed buildings and is residing in one such building. 1st defendant had executed a gift deed in favour of the 2nd defendant in 1992. The plaintiff having known about the same did not raise any objection. She had taken the building from the 2nd defendant on rent and is in possession as a tenant. Hence, she is estopped from claiming any right over item No.2. Defendants contended that the documents executed by the first defendant in favour of other defendants are valid and there is no RFA No.151/08 & conn.cases -:4:- cause of action for filing the suit. Portion of the plaint schedule item No.3 was acquired by the Government and possession was taken from defendants 4, 5 and 7. It is also contended that right, if any, of the plaintiff has been lost by open hostile declaration by 1st defendant and her successor in interest. The 5th defendant obtained 27= cents of land as per a gift deed of the year 1974 and thereafter she claimed absolute possession over the properties. She constructed a building along with her husband and they were residing in the said property for the last 25 years, until it was acquired by the Government under the Land Acquisition Act, 1894. The first defendant gifted 3= cents of property to 7th defendant in the year 1992. 7th defendant is the daughter of the 5th defendant. Defendants 5 and 7 together sold 7= cents of property to defendants 10 and 11 and thereafter they are in absolute possession of the property.
5. In the written statement filed by the 9th defendant, it was contended that she purchased 7 cents of property as per sale deed No. 1599/1990 from the 3rd defendant and she had constructed a building in the property and is residing there. She RFA No.151/08 & conn.cases -:5:- claimed absolute right and possession over the said property. Defendants 10 and 11 are purchasers of 7= cents of property from defendants 5 and 7. They also claim to be bonafide purchasers for value. The 13th defendant purchased 5.280 cents from the first defendant as per document No.1076/1983. He had also availed a loan by deposit of title deeds and had constructed a building in the year 1985.
6. The 12th defendant and her husband purchased 5 cents in Sy.No.203/2 of Thiruvallom village in the year 1983 as per sale deed No.1077/1983 from the first defendant. Additional 14th defendant purchased 3.100 cents in Re.Sy.No.306/2010 as per sale deed No.13/1996. All the defendants claimed exclusive title and possession over the property held by them.
7. OS No.614/1995 is another suit filed by Raveendran, who is the 2nd defendant in OS No. 209/1996. He sought for declaration of title and recovery of possession in respect of the building with arrears of rent, damages etc. According to him, the plaint schedule shop room and shed bearing No.VRP X1/442 is in the absolute possession and ownership of the plaintiff. He contended RFA No.151/08 & conn.cases -:6:- that the building was constructed in the year 1973. On 5/1/1988, he entered into a lease agreement with the first defendant. A rent deed was executed and first defendant agreed to pay `300/- per month for a period of 10 years. First defendant is conducting printing press from 5/1/1988. Alleging that first defendant had sublet the shop room to 2nd defendant, her husband, without the consent of the plaintiff and that she had not complied with the terms of lease, plaintiff sought for vacant possession with arrears of rent. Lease agreement was terminated on 4/8/1994. First defendant filed written statement contending that plaintiff has no right over the plaint schedule shop room. It is contended that as per partition deed No.3275/1958, 94.5 cents of property comprised in Sy.No.98/2 of Venganoor Village was allotted to the share of Vanajakshy and her minor children which form part of D schedule. Vanajakshy had 6 children including plaintiff and first defendant and each of them got 1/7 share in the said property. In so far as first defendant is a co-owner, the contrary allegations were baseless. She also contended that document No.2560/1992 executed by Vanajakshy is sham and fraudulent. Hence, she RFA No.151/08 & conn.cases -:7:- sought for dismissal of the suit.
8. Before the Court below, the case was jointly tried along with three other cases, OS No.35/1999, LAR Nos.171/1998 and 172/1998. OS No.35/99 was filed by Indirakumari and her husband seeking for an injunction to restrain the defendants by a permanent prohibitory injunction from trespassing into or obstructing the smooth conduct of the Press that they were conducting in the plaint schedule property. LAR No.171/98 was a reference under Section 31(2) of the Land Acquisition Act, 1894 (hereinafter referred to as the LA Act) wherein the question was regarding apportionment of the compensation in respect of 7 Ares of land in Sy.No.250/24 of Venganoor Village which was acquired for the construction of Kazhakoottam-Kovalam Bypass. The claimants were Valsala Kumari and Indira Kumari. LAR No.172/98 related to apportionment of compensation under Section 31(2) of the LA Act which involved 1.15 Ares in Sy.No.249/7 of Venganoor Village acquired for the very same purpose wherein the claimants were Ragapriya and Indira Kumari.
9. Before the Trial Court, OS No. 209/96 was taken as the RFA No.151/08 & conn.cases -:8:- leading case and evidence was adduced in the said suit. Plaintiff was examined as PW1 and she relied upon Exts.A1 to A17. Defendants relied upon oral testimony of DW1 to DW3 and Exts.B1 to B32. Exts.C1 and C2 were marked as Court exhibits. The Court below passed a preliminary decree in OS No.209/96 declaring that plaintiff is entitled to get 1/7 share over the plaint schedule properties and that Exts.A3 to A14 executed by the 1st and 2nd defendant are not binding on the plaintiff. OS No.614/95 was dismissed observing that the plaintiff and first defendant being co-owners, first defendant cannot be evicted from the plaint schedule property nor can she be compelled to pay any rent. OS No.35/1999 was decreed in favour of the plaintiffs and in LAR Nos. 171 and 172/98, it was declared that the plaintiff was having 1/7th share each of the amount under deposit.
10. While arriving at the above finding, the Court below observed that since the plaintiff claims to be a co-owner of the property in terms of Ext.A1 partition deed, the court fee paid under Section 37(2) was sufficient. Further, on merits, it was found that all the minors under the first defendant were entitled RFA No.151/08 & conn.cases -:9:- to get 1/7 share in D schedule properties as mentioned in the partition deed which was marked as Ext.A1. The contention of the defendants that item Nos. 1 and 3 properties belonged to the father of the first defendant and therefore she alone has absolute right over the said properties was found to be without any basis. The contention regarding adverse possession and ouster was rejected by the Court below, finding that no evidence was adduced to prove the said allegation. It is observed that by executing Ext.A1, all the properties are pooled together and divided among five groups A to E, each group taking property allotted to them in separate schedule with absolute right to effect mutation in their name and to enjoy the property as absolute owners. It was therefore held that the properties became the joint property of plaintiffs and defendants 1 to 6, each of them entitled for undivided 1/7 share. It was therefore held that the plaintiff was entitled for a preliminary decree for partition and Exts.A3 to A14 documents will not take away the right of the plaintiff.
11. LAR No. 188/98 is also a reference under Section 31(2) RFA No.151/08 & conn.cases -:10:- of the LA Act wherein the claimants are Vasantha Kumari and Indira Kumari. The claim is in respect of 11.35 Ares in Sy.No.249/6 of Venganoor Village acquired for the purpose of Kazhakoottam Kovalam Bypass. The reference was answered taking into consideration the judgment in OS No.209/96 and connected cases. Hence, it was held that the 2nd claimant was entitled for 1/7 share from the deposited amount. The entire issue in these appeals relates to the rights which have devolved on the parties to the lis as per partition deed Ext.A1.
12. Learned counsel for the appellant raised the following contentions: (i) That the suit was not properly valued and the court fee was not paid in terms of Article 37 of the Kerala Court Fees and Suits Valuation Act. Plaintiff, Indira Kumari cannot claim joint possession. Hence, court fee ought to have been paid taking into account the market value of land which was sought to be partitioned. (ii) The suit was barred by limitation. Suit by a minor ought to have been filed within three years from the date of attaining majority, and, that apart, right to claim partition is lost by adverse possession and ouster. (iii) Plaintiff did not seek to RFA No.151/08 & conn.cases -:11:- declare Exts.A3 to A14 documents as void. It is not open for the plaintiff to ignore the said registered documents and claim partition. (iv) That item Nos.1 and 3 of the plaint schedule solely devolved on the 1st defendant and she alone had right to transfer the property, which fact is clear from Clauses 2 and 3 of the partition deed Ext.A1.
13. On the other hand, learned counsel for the respondents supported the judgment of the Trial Court. It is contended that the plaintiff being a co-owner is presumed to be in joint possession of the property in question, and, that apart, she was totally unaware of the documents executed by the defendants in favour of third parties and among other heirs. Her right as a co-owner will not be lost by execution of any such documents and she is entitled to ignore those documents and seek partition, as her title to the property will not be lost. A case of ouster or adverse possession had not been properly pleaded or proved in the case and in the absence of any such material, Court below was justified in granting a decree as sought for. It is also contended that the right of plaintiff to have 1/7 share in the property was found in her RFA No.151/08 & conn.cases -:12:- favour in LAR Nos.171/1998 and 172/1998. Further, against the judgment in OS No.35/1999, which is also a common judgment, no appeal had been filed and therefore, the present appeals are not maintainable on the principle of res judicata.
14. The learned counsel appearing on either side had placed reliance upon various judgments, which we shall consider in due course.
15. First contention is that the suit was not properly valued and the court fee was not paid in terms of Article 37 of the Kerala Court Fees and Suits Valuation Act. It is contended that the plaintiff, was not in possession of any portion of the plaint schedule property, whereas they were excluded from possession. She and her husband were conducting a Press in a building given on rent. But it seems that no specific ground had been raised in the memorandum of appeal challenging the finding of the Court below with reference to the adequacy of valuation and court fee. Even otherwise, the averments in the plaint alone would be determinative in the matter of payment of court fee and the contentions urged in the written statement, it's truth or otherwise RFA No.151/08 & conn.cases -:13:- are not the guiding factors to decide the question of court fee. This position of law has been well settled in Neelavathi & Ors. v. N.Natarajan & Ors. (AIR 1980 SC 691), Janaki v. Chandran (2012 (1) KLT 481), Hameed v. Abdulla Haji (2007 (3) KLT
840) and Abdul Razack v. Anjaneyan (2002 (2) KLT 670).
16. Section 37(1) and (2) of Kerala Court Fees and Suits Valuation, Act reads as under:-
"37. Partition suits :- (1) In a suit for partition and separate possession of a share of joint family property or of property owned, jointly or in common, by a plaintiff who has been excluded from possession of such property, fee shall be computed on the market value of the plaintiffs share. (2) In a suit for partition and separate possession of joint family property or property owned, jointly or in common, by a plaintiff who is in joint possession of such property, fee shall be paid at the following rates :-
When the plaint is presented to -
(i) a Munsiff's Court Rupees fifty
(ii)a Sub Court or a District Court Rupees three
hundred."
Therefore unless the averments in plaint read as a whole gives an indication that the plaintiff had been excluded from possession, RFA No.151/08 & conn.cases -:14:- Section 37(1) would apply, whereas when plaint clearly avers joint possession as a co-owner, Section 37(2) applies. In Thankamma v. Unniamma Antharjanam (1964 KLT 529), it was held that exclusion from enjoyment of receipt of income is totally different from exclusion from possession. Mere appropriation of profits of the property or even exclusive use or possession of the property by one co-sharer, does not amount in law to 'exclusion' of the other co-sharers from possession. Possession by some of the co-owners and enjoyment of the property by them alone is not sufficient to constitute exclusion from possession of the remaining co-owners. Joint possession within the meaning of Section 37(2) does not necessarily mean joint physical possession for all practical purposes. The Court below was therefore justified in rejecting the said plea.
17. The next two contentions being interlinked can be considered together. It is urged that the suit was barred by limitation. When a minor's property is sold by the guardian, the minor ought to file a suit challenging such sale within three years from the date of attaining majority. Further, the right to claim RFA No.151/08 & conn.cases -:15:- partition is lost by adverse possession and ouster. That apart, plaintiff did not seek to declare Exts.A3 to A14 documents as void. It is not open for the plaintiff to ignore the said registered documents and claim partition.
18. Learned counsel for the appellant placed reliance upon Section 8 of the Hindu Minority and Guardianship Act, 1956 (hereinafter referred to as HMG Act), in order to contend that natural guardian of a Hindu minor has the power subject to the provisions of the Section to do all acts which are necessary or reasonable and proper for the benefit of the minor or for the realisation, protection or benefit of the minor's estate though the guardian cannot bind the minor by a personal covenant. It is argued that when mother of the minor had executed the documents as guardian, the documents are voidable in the light of Section 8(3) of the HMG Act. Section 8 reads as under:-
"8. Powers of natural guardian.--(1) The natural guardian of a Hindu minor has power, subject to the provisions of this section, to do all acts which are necessary or reasonable and proper for the benefit of the minor or for the RFA No.151/08 & conn.cases -:16:- realisation, protection or benefit of the minor's estate; but the guardian can in no case bind the minor by a personal covenant.
(2) The natural guardian shall not, without the previous permission of the court--
(a) mortgage or charge, or transfer by sale, gift, exchange or otherwise, any part of the immovable property of the minor, or
(b) lease any part of such property for a term exceeding five years or for a term extending more than one year beyond the date on which the minor will attain majority.
(3) Any disposal of immovable property by a natural guardian, in contravention of sub-section (1) or sub-section (2), is voidable at the instance of the minor or any person claiming under him. (4)No court shall grant permission to the natural guardian to do any of the acts mentioned in sub-
section (2) except in case of necessity or for an evidence advantage to the minor."
19. Learned counsel for appellant relied upon the judgment in Vishwambhar v. Laxminarayan [(2001) 6 SCC 163]. In this judgment, Apex Court held that in the light of Section 8(3) of the HMG Act, any disposal of immovable property by a natural guardian, in contravention of sub-section (2) is voidable at RFA No.151/08 & conn.cases -:17:- the instance of the minor or any person claiming under him.
"There is, therefore, little scope for doubt that the alienations made by Laxmibai which are under challenge in the suit were voidable at the instance of the plaintiffs and the plaintiffs were required to get the alienations set aside if they wanted to avoid the transfers and regain the properties from the purchasers." ..............."Since the claim for recovery of possession of the properties alienated could not have been made without setting aside the sale deeds the suit as initially filed was not maintainable. By the date the defect was rectified (December 1985) by introducing such a prayer by amendment of the plaint the prescribed period of limitation for seeking such a relief had elapsed. In the circumstances, the amendment of the plaint could not come to the rescue of the plaintiff."
He also relied upon the judgment of Apex Court in Nagappan v. Ammasai Gounder [(2004) 13 SCC 480], wherein it was held as under:-
"10. Under Section 8 of the Hindu Minority and Guardianship Act, 1956 the natural guardian of a Hindu minor has the power, subject to the provisions of the section, to do all acts which are necessary or reasonable and proper for the benefit of the minor or for the realisation, protection or benefit of the minor's RFA No.151/08 & conn.cases -:18:- estate but the natural guardian cannot without taking previous permission of the court mortgage or charge or transfer by sale, gift, exchange or otherwise any part of the immovable property of the minor or lease any part of such property for a term exceeding five years or for a term extending more than one year beyond the date on which the minor shall attain majority. Under sub-section (3) disposal of immovable property by a natural guardian in contravention of sub-section (1) or sub-
section (2) of Section 8 is made voidable at the instance of the minor or any other person claiming under him. Reading of the section itself shows that the sale made by the natural guardian in contravention of sub-sections (1) and (2) is voidable at the instance of the minor. If the requirement of law is to have the alienation set aside before making any claim in respect of the property sold then a suit without such a prayer would be of no avail. We respectfully agree with the view taken by this Court in Vishwambhar. We need not dilate on this point any more as the same is squarely covered by the aforesaid judgment of this Court. We do not find any merit in the appeal and dismiss the same. However, in the circumstances of the case, there shall be no order as to costs."
Reference was also placed to the judgment in Illathkandy Deepak v. Illathkandy Viswanathan (2002 KHC 329) in which a Division Bench of this Court held at paragraphs 4 and 5 as under:
RFA No.151/08 & conn.cases -:19:- "4. The logical consequence of the finding as above is to hold that the assignment deed Exhibit B-1 executed by the legal guardian of the minor, namely, his father, is voidable and not void. It would have been open to the minor plaintiff to establish that the sale was not binding on him by establishing the elements required in that behalf.
But the substantial question of law No.2, in the circumstances only to be answered against the plaintiff to the effect that the deed Exhibit B-1 is only voidable and not void.
5. This takes to substantial question of law No.6 formulated. That question relates to whether the suit is maintainable without a prayer for setting aside the assignment deed. The plaintiff has proceeded on the basis that a prayer for setting aside the transaction is not necessary. Since we have held that the transaction is only voidable, the lower appellate court has, in our rightly relied on the Full Bench decision in Sankaranarayana Pillai v. Kandasaia Pillai (Air 1956 Mad. 674) and the decisions of this Court in Beeyyathumma v.
Moideen Haji (1958 KLT 602) and Mathew v.
Ayyappankutty (1962 KLT 61) in support of his conclusion as above. The recent decision of the Supreme court in Viswambar v. Laxminarayan [(2001) 6 SCC 163] also supports this position. In the light of the position that the transaction is only voidable and it is open to the plaintiff to show that RFA No.151/08 & conn.cases -:20:- it is not binding to him and have it set aside, we find that the legal position adopted by the lower appellate court is the correct one. This question is answered against the appellant."
The argument is that the plaintiff attained majority in 1975 and the suit is filed only in the year 1996. There is no prayer to set aside the documents which ought to have been done within three years from the date of attaining majority in terms of Article 60(A) of the Limitation Act. Even as per Article 59, limitation is 3 years from the date of knowledge. It is argued that, in Ext.B5, which is copy of the plaint in OS No.576/1994, there is a mention regarding creation of rent deed in favour of Vanajakshi during 1983 and 1989. Further, the suit is also barred in terms of Article 65 of the Limitation Act, if the contention of adverse possession is found in favour of the appellants.
20. On the other hand, learned counsel for the respondent/plaintiff submitted that mother is not the natural guardian and the assignments/transfers were not done as if it is minor's property. After the Hindu Joint Family Abolition Act had come into force, there is a deemed partition among the sharers RFA No.151/08 & conn.cases -:21:- and hence the share of the plaintiff could not have been assigned or transferred. He also placed reliance on the following judgments:
(i) Madhegowda(Dead) by LR's v. Ankegowda (Dead) by LR's [(2002) 1 SCC 178]. In this judgment it is held by the Apex Court that transfer of minor's interest by a defacto guardian is void, in terms of Section 11 of the HMG Act, and such an invalid transfer is not required to be set aside. The minor on attaining majority can repudiate the transfer, as and when occasion arises.
(ii) Sreedharan v. Prasanna [1996 (2) KLT 784 (SC)]. In this case, it was held that a contract for sale entered into in respect of the minor's share is void and does not bind the minor, as no sanction was obtained from court as provided under Section 8 of the HMG Act.
(iii) Kunjiraman v. Vanaja (1997 (2) KLT 5). A Division Bench of this Court held that a transaction in violation of Section 8 (2) of the HMG Act has necessarily to be treated as a transaction in violation of a statute and consequently void and Section 8(3) of the Act in any manner whittles down the scope or operation of S.8 RFA No.151/08 & conn.cases -:22:- (2) of the Act.
(iv) Moidu v. Santha (1999 (2) KLT 413). In this case, this Court held that it is not necessary to set aside a document executed in violation of Section 8(2) of the HMG Act.
(v) Augustine v. Thankamma Thomas (2005 (4) KLT
653). In this judgment, a Division Bench of this Court reiterated the principles under which a claim for adverse possession can be established against co-owners. Referring to the Full Bench judgment in Cicily v. Sulaikha Beevi (1968 KLT 779) it is held that, open assertion of hostile title coupled with exclusive possession by one co-owner to the knowledge of the other is required to establish ouster and adverse possession in the case of co-owners.
(vi) Kunhunni v. Kesavan Namboodiri (1990 (2) KLT 854). In this case, it was held that non participation in the income by a co-owner, for a fairly long period, by itself, in the absence of any other circumstance, may not be sufficient to infer ouster.
(vii) Unneenkutty v. Taluk Land Board (1988 (1) KLT 574). This judgment is relied upon to emphasise that sale by a co-owner RFA No.151/08 & conn.cases -:23:- of anything more than his share will not bind the other sharers.
(viii) Gopalakrishnan v. Rajamma (2006 (4) KLT 377). In this case it was held that alienation of minor's property either by mother, when the natural gaurdian is alive and not incapacitated or by a de facto guardian in contravention of Section 11 of the HMG Act, will have to be treated as void whereas alienation by the natural gaurdian is only voidable at the option of the minor. The minor can avoid such transfer only by a regular suit within the period of limitation, within three years from the date of attaining majority as per Article 60 of the Limitation Act, 1963.
21. Alienation of minor's property by natural guardian in terms of Section 8(2) of HMG Act and the consequences thereof is no longer res integra. The controversy which had arisen on account of the judgment in Kunjiraman (supra) and Moidu (supra) was set at rest by the Full Bench in Ramadas Menon v. Sreedevi (2004 (1) KLT 323), wherein this Court relying upon Madhukar Viswanath v. Madhao & Ors., [(1999) 9 SCC 446] held as under:
"In view of the above decision, it is now clear that RFA No.151/08 & conn.cases -:24:- the alienations have to be challenged and without setting aside the alienation, no relief can be obtained."
The propostion has been further made clear in Vishwambhar (supra), Nagappan (supra) and Illathkandy Deepak (supra).
22. In the present case, it is evident that only 3 documents were executed while the plaintiff was a minor, i.e., Exts.A3 to A5. The said documents were executed by the mother and the eldest son. Ext.A3 is dated 2/1/1967 by virtue of which Vanajakshi and Raveendran together executed a gift deed in favour of Vimala, the 3rd defendant in the suit. The gift is in respect of assignment of 12.15 Ares in Sy.No.203/1 which forms part of document No.1721/1110 M.E. and 8.1 Ares in Sy.No.98/2 forming part of a larger extent of 11 Acres 29 cents and 16 cents in Sy.No.97/3. Ext.A4 is a gift deed dated 25/7/1974 executed by Vanajakshi and Raveendran in favour of Vasantha Kumari, the 4th defendant. The property gifted is 12.4 Ares in Sy.No.98/2/1 which also forms part of the 11 Acres 29 cents. By Ext.A5 gift deed executed by Vanajakshi and Raveendran in favour of Valsala Kumari, the 5th RFA No.151/08 & conn.cases -:25:- defendant, she was assigned 11.1 Ares in Sy.No.98/2, which forms part of 11 Acre 29 cents. Ext.A10 is document No.2232/1995 by which Vimala (3rd defendant) executed a gift deed in favour of her son Veera Chandran. In the recital to the deed, it is stated that she obtained title to the property as per gift deed No.10/1967 (Ext.A3). The property scheduled is an extent of 5.265 Ares in Sy.No.98/2 which forms part of 11 Acre 29 cents in Sy.No.98/2 and 16 cents in Sy.No.97/3.
23. Of course as held by the the Apex Court in Saroj v. Sunder Singh [(2013) 15 SCC 727], Section 8 of the HMG Act, deals with the powers of natural guardian of a Hindu minor. Where the father dies leaving behind only minor daughters and their mother as natural guardian, the share of the daughters becomes definite; the question of family partition retaining the character of joint Hindu family property does not exist. The mother sold the property without previous permission of the Court. It was held that, both the sale deeds executed by the second respondent in favour of the first respondent shall become voidable at the instance of the minors. In Gopalakrishnan RFA No.151/08 & conn.cases -:26:- (supra), a learned Judge of this Court held that alienation of minor's property by mother, when the natural gaurdian is alive and not incapacitated is in contravention of Section 11 of the HMG Act, and will have to be treated as void.
24. In Exts.A3 to A5, there is no stipulation that the documents were executed on behalf of the minor and for the welfare of the minor. In Panni Lal v. Rajinder Singh [(1993) 4 SCC 38], the Apex Court considered a similar issue. It is held as under:
"5. In the instant case, there is, as found by the trial court and affirmed in appeal, no evidence beyond the bare word of the appellant that the sale deed had been made for the benefit of the minor respondents and his evidence had been eroded in cross-examination so that there was no "reliable evidence on record to show that the alienation in dispute had been made for the legal necessity or for the benefit of the plaintiffs". That the sale was effected without the permission of the court is not in dispute. The sale is, therefore, in any event, voidable.
6. The question is whether, in the circumstances of the case, it may be said that the sale was effected by the father and natural guardian of the RFA No.151/08 & conn.cases -:27:- respondents because he had attested the sale deed executed by the mother of the respondents. In this behalf our attention was invited to this Court's judgment in Jijabai Vithalrao Gajre v. Pathankhan. This was a case in which it was held that the position in Hindu law was that when the father was alive he was the natural guardian and it was only after him that the mother became the natural guardian. Where the father was alive but had fallen out with the mother of the minor child and was living separately for several years without taking any interest in the affairs of the minor, who was in the keeping and care of the mother, it was held that, in the peculiar circumstances, the father should be treated as if non-existent and, therefore, the mother could be considered as the natural guardian of the minor's person as well as property, having power to bind the minor by dealing with her immovable property.
7. In the present case, there is no evidence to show that the father of the respondents was not taking any interest in their affairs or that they were in keeping and care of the mother to the exclusion of the father. In fact, his attestation of the sale deed shows that he was very much existent and in the picture. If he was, then the sale by the mother, notwithstanding the fact that the father attested it, cannot be held to be a sale by the father and natural guardian satisfying the requirements of RFA No.151/08 & conn.cases -:28:- Section 8.
8. The provisions of Section 8 are devised to fully protect the property of a minor, even from the depredations of his parents. Section 8 empowers only the legal guardian to alienate a minor's immovable property provided it is for the necessity or benefit of the minor or his estate and it further requires that such alienation shall be effected after the permission of the court has been obtained. It is difficult, therefore, to hold that the sale was voidable, not void, by reason of the fact that the mother of the minor respondents signed the sale deed and the father attested it."
25. In the present appeal, the facts disclose that Exts.A2, A3 and A4 were executed not on behalf of the minors whereas it was executed as if the assignors were the absolute owners of the property. Further, there is no mention in those documents to indicate that the deeds were executed for the necessity of the minors. In such circumstances, it cannot be contended that the assignments were voidable. If any portion of the minor's property is sold without complying with Section 8, it would only come under Section 11 of the HMG Act and will become void.
26. Having found so, the question is whether the defendants RFA No.151/08 & conn.cases -:29:- have proved adverse possession and ouster as against the plaintiff. As held in Augustine v. Thankamma Thomas (2005 (4) KLT 653), a claim for adverse possession can be established against co-owners only on proof of open assertion of hostile title coupled with exclusive possession by one co-owner to the knowledge of the other. The document that had been relied upon to prove ouster is Ext.B5, the pleading in OS No.576/1994. The only contention urged is that in Ext.B5, the plaintiff had admitted that Vanajakshi, her mother, is the landlord in respect of the property in her possession. That apart, there is a mention for creation of a rent deed in favour of Vanajakshi during 1983 and 1989. It is evident from the facts of this case that several items of properties were involved and the plaintiff herself and her husband were in possession of an item of property wherein they were conducting a printing press. When large extent of property is involved, it might be an instance where the plaintiff was not aware of her rights as far as a particular item of property was concerned. In the said circumstances, it cannot be concluded that she was aware of the transactions that had taken place behind RFA No.151/08 & conn.cases -:30:- her back. At the time when Ext.A1 partition deed was executed, the plaintiff had a right by birth in respect of the ancestral properties. The said right will not be lost unless there is an assignment on behalf of the minor for the benefit of the minor. In this case, the documents were executed as if defendants 1 and 2 were absolute owners of the property. That apart, there is nothing to indicate that the plaintiff was aware of execution of any of these documents. According to the plaintiff, she had come to know about the execution of document only at a later stage when there was an attempt to evict her from the property and thereafter on enquiry it was understood that certain documents were created behind her back. A claim for adverse possession and limitation can arise against a co-owner only if there is enough proof of ouster. Even according to the appellant, the plaintiff is in possession of certain item of property on the basis of a lease arrangement with the 2nd defendant. In order to prove ouster, sufficient evidence has to be adduced. No evidence of adverse possession or ouster as against a co-owner has been adduced to arrive at such a conclusion. Therefore, the contention that the RFA No.151/08 & conn.cases -:31:- right of plaintiff has been lost by adverse possession and limitation is not sustainable.
27. Finally it is argued that item Nos.1 and 3 of the plaint schedule solely devolved on the 1st defendant and she alone had right to transfer the property. If at all plaintiff has any right, she can claim only in respect of item No.2 property, which alone was ancestral property.
28. Answer to this question depends on the interpretation of Ext.A1 document. Kochu Gowri is the main protagonist who masterminded the execution of the partition deed. The partition deed consists of two sets of properties. One item of property is the self acquired property of Kunjan, late husband of Kochu Gowri. The other set of property is the ancestral property of Kochu Gowri and her children. Clause 2 of Ext.A1 partition deed relates to the property obtained by Kochu Gowri as ancestral property and described as G schedule in the partition deed of the year 1105 M.E. Clause 3 of the partition deed deals with the self acquired property of Kunjan (husband of Kochu Gowri). The property mentioned in Clause 2 was divided into 17 shares, i.e., RFA No.151/08 & conn.cases -:32:- children and grand children of Kochu Gowri and deceased Kunjan. The self acquired property of Kunjan as mentioned in Clause 3 has been divided into five equal shares. The branch of Vanajakshi, one of the daughters of Kochu Gowri has been allotted D schedule. D schedule item No.1 consists of 25> cents in Sy.No.203/2. Item No.2 concerns 33 cents in Sy.No.98/2 and item No.3 concerns 61.5 cents in Sy.No.98/2. The contention is that the ancestral property is only in terms of 33 cents coming under Sy.No.98/2 which is item No.2 and the other two items of property were the self acquired property of Kunjan. The self acquired property of Kunjan has been divided only into five equal shares among the children of Kochu Gowri and Kunjan, whereas, item No.2 has been divided into 17 equal shares which clearly indicates that even at the time of partition, item No.2 alone has been considered as joint family property and item Nos.1 and 3 as the separate property of Kunjan which is a self acquired property and is divided only into 5 shares, with respect of which the minor children had no right by birth. Learned counsel submits that it is clear from the recitals of Ext.A1 partition deed that the self RFA No.151/08 & conn.cases -:33:- acquired property of Late Kunjan has been divided in accordance with the Hindu Succession Act, 1956 whereas the ancestral property of Kochu Gowri was divided in accordance with the Ezhava Act 1100 (Travancore). It is therefore contended that entire D schedule property is not allotted to the common pool. Only item No.2 can at best form a common pool which property is in the possession of defendants 2, 4 and 8 covered by Exts.A2, A3 and A10. Learned counsel also took us to the various provisions of the Ezhava Act, 1100 (Travancore) as well as the Hindu Succession Act, 1956. We do not think it necessary for us to consider the said provisions in its entirety before considering the recitals of Ext.A1 partition deed.
29. As rightly contended by the learned counsel for the appellant, there are 17 persons in the partition deed which includes minors as well. The document refers to the earlier partition deed No.1259/1105 M.E. The ancestral property described is 26 cents of land with a building in Sy.No.91, 29 cents in Sy.No.96/2 and 82 cents in Sy.No.98/2, which is divided among all the 5 groups consisting of 17 persons, including the minors. RFA No.151/08 & conn.cases -:34:-
30. Clause 3 recites that 1 Acre 55 cents and 27 cents in Sy.No.98/2, 30< cents in Sy.No.91/1D, 27 cents in Sy.No.93/2 and 25> cents in Sy.No.203/2 absolutely belonged to late Ayyappan Kunjan which he obtained by separate sale deeds, that the said property was absolutely belonging to him as title holder and he was in possession, that he had constructed a building in 25> cents, that he expired in September, 1956 and his rights devolved on parties 1, 2, 3, 6 and 7 in equal shares and they were in joint possession of the said property including the mortgaged property. It is further recited that:--
"U5aMa5{_W U_Ux_AaKDHaXx_:m:aU UXqaU55Z gNWM?_ %U5^VBZ %HaXx_:m:a 5bG^O_ h5UV"
U:m:HaMU_:m:a UxaKDa H_N_J" UXqaAf{ gUI U_G"
gFYm_:m:M_Uci_fM?aJaKD_Ha" 3gx^xaJxag?Oa"
dIgDc5 Xb^DdLcJ_Ha" Nxa" '?O_\oo^fD D`VK_x_AaKDa"
DWIx_Y^x^Vi" UXqaAf{ %U5^Vd5NNHaXx_:m:m M^7_:nHaMU_AaKD^O^W HNaf? f.5cDAa" UXqaA{af? %M_Uci_Aa" HNaf? M^U_gdVOT_Ha" H\oD^fCKaU HNaf?Oa" LtaA{af?Oa" %M_dI^OdI5^xUa" HNaf? IbVH RFA No.151/08 & conn.cases -:35:- XNDJ_zHUa" N^Hcz^x^O NGcXmEz^V Na6^L_x"
UXqaAf{ %{Ka" DWIa H_WIa gH^A_ U_\O_Ga" xI^NDm U5aM_W U_Ux_AaK 5a?a"LU5 UXqaU55f{ ID_gH]a Da\c 3Yx_5{^Oa" NbK^NDa U5aM_W U_Ux_AaK UXqaU55f{e%Fa Da\c 3Yx_5{^Oa" U`D_:m:a" / NaDW ( Ufx %Fa IG_55{^O_ D_x_:m:a"".
31. D schedule is allotted to the Group headed by Vanajakshi. As already stated, D schedule consists of 3 items. Item No.1 is in Sy.No.203/2 having an extent of 25> cents which forms part of partition Deed No.1721/1110 M.E. Item No.2 is in Sy.No.98/2, having an extent of 33 cents and item No.3 is in Sy.No.98/2 having an extent of 61= cents. It is therefore clear from the recitals of the document itself that item Nos.1 and 3 were the self acquired property of Kunjan and it was partitioned among the five children of Kunjan, whereas, item No.2 property was the ancestral property of Kochu Gowri, which was divided among all the surviving members of the family including minors. The schedule which forms part of Ext.A1 only indicates that the entire property has been allotted to the branch of Vanajakshi. In RFA No.151/08 & conn.cases -:36:- other words, the right of the minors including the plaintiff was confined to the ancestral property and cannot be treated as property which had been partitioned among all the surviving members of the family including the plaintiff. Section 15(1) and (2) of the Ezhava Act 1100 (Travancore) along with the illustration reads as under:-
"15(1) Where intestate Ezhava male has left widow, mother, children or lineal descendants:
On the death of an Ezhava male leaving him surviving a widow or mother or both and also children or the lineal descendants of deceased children or both, they shall take the whole of the self acquired and separate property left undisposed of by him at his death. In the absence of the mother and the widow, the children and the lineal descendants of deceased children shall take the whole, and in the absence of the mother, widow and children, the lineal descendants of deceased children shall take the whole.
15(2) Rules of distribution of estate:- The distribution of the estate under Sub-section (1) shall be according to the following Rules:-
(i) The widow or widows, if there are more than one, and the mother shall each be entitled to a share equal to that of a son or daughter.
RFA No.151/08 & conn.cases -:37:-
(ii) Sons and daughters shall take the property in equal shares:
Provided that, if a son or daughter shall have predeceased the interstate, the lineal descendants of such child shall take the share which such child would have taken had it survived the intestate.
(iii) Grand children shall take in equal shares what their father or mother would have taken had he or she survived the intestate. In like manner, the property shall go to the surviving lineal descendants of the intestate, where they are all in the degree of great grand-children to him or in a more remote degree.
Illustration (a)
(a) Z dies intestate leaving A and B two widows, C his mother, D a son, E a daughter, and the lineal descendants of a deceased son F, A, B, C, D and E each gets one-sixth of the estate and the lineal descendants of F together get one-sixth of the estate.
(b) Z dies leaving him surviving A a son, B a daughter, two grand children by a deceased daughter C, and two grand-children and one great- grand-child by a deceased son D, A and B shall each be entitled to one-fourth of Z's estate, each of the grand children by C shall be entitled to one-eighth; each of the grand-children by D shall be entitled to one-twelfth of Z's estate."
RFA No.151/08 & conn.cases -:38:- It is therefore apparent that when Kunjan died, the self acquired property have to be partitioned among the children and the legal descendants. In other words, widow, sons and daughters will take equal shares and the grand children will not have any separate right. Therefore, when the document is read without any additions, plaintiff cannot claim any right by birth with reference to items 1 and 3 of the plaint schedule.
32. The Court below however had proceeded on the basis that there is a blending of properties which jointly belonged to plaintiff and defendants 1 to 6 and it has been partitioned and alloted jointly to plaintiffs and defendants 1 to 6. This finding, according to us, is based on a wrong interpretation of the recitals of the deed. Clause 2 of the partition deed clearly referred to the ancestral property to be divided among all the 17 members whereas the self acquired properties of Kunjan were to be divided only among the five sharers. The finding that there is blending of the properties among the sharers is not a proposition which could be accepted in the facts and circumstances, especially in the light of the recitals in Ext.A1 deed. In order to constitute blending i.e RFA No.151/08 & conn.cases -:39:- throwing the self acquired property into the common hotch pot, the recital in the deed should be specific, or there should be proof of such blending prior to the partition. In Madanlal Phulchand Jain v. State of Maharashtra, [(1992) 2 SCC 717], Apex Court held at paragraph 3 as under:-
"3. But the appellant contends that his separate property got blended with his ancestral property and thereby acquired the character of ancestral property in which his major son became entitled to one-fifth share on notional partition. It is true that under the Mitakshara Law each son upon his birth takes an interest equal to that of his father in ancestral property, both movable and immovable. This right is independent of his father. Therefore, if the appellant is able to establish blending of his separate property with ancestral property, the plea of deduction of one-fifth share of his son on notional partition may perhaps be well founded. It must, therefore, be shown that he had thrown his separate property into the common stock with the intention of abandoning his separate claim thereon. Evidence must be led to show a clear intention on his part to give up his separate rights and allow the separate property to be treated as an ancestral property and be enjoyed by the coparceners. Such an intention has to be proved by tendering RFA No.151/08 & conn.cases -:40:- evidence, since no such inference can be drawn even from the fact that he had permitted his family members to use it along with him nor can it be proved from the mere fact that the income of the separate property was used for supporting his son or from the fact that he had failed to maintain separate accounts of the yield of both sets of properties. In the present case no such evidence had been adduced before the authorities below. Counsel for the appellant was unable to invite our attention to the factual material evidencing such merger or blending. Therefore, the submission based on the doctrine of merger cannot come to the rescue of the appellant."
It would also be apposite to refer to the three Judge Bench judgment of the Apex Court in CIT v. M.K. Stremann, (AIR 1965 SC 1494). Paragraphs 10 and 11 are relevant, which reads as under:-
"10. The second point depends on the interpretation of the partition deed dated December 19, 1952. This deed was executed between the assessee, his two minor sons and minor daughter, the latter three being represented by their mother. It recites that the father of the assessee died on July 27, 1938, leaving a house and other movable investment and cash and that RFA No.151/08 & conn.cases -:41:- the assessee succeeded to the said property and the agency of Messrs. Muller and Phipps. Then follow two clauses which are important and they are:
"Whereas the party of the first part has been earning commission and acquiring properties and blending his money with the assets inherited from his father and treating the entire properties extant before and after the birth of the parties of the second and third parts till this date as joint family property without making any discrimination or distinction;
Whereas the party of the first part is desirous of making the legal character of the assets that exist now and the legal relationship between the parties definite and to make an arrangement of partition of the parties of the first, second and third parts and also to provide for making jewels, maintenance and marriage for the party of the fourth part, in exercise of his powers as a Hindu father, in order to ensure peaceful enjoyment and friendly relationship between the parties and to keep his own future earnings separate with powers to deal with them in any manner he liked."
11. Mr Sastri contends that as the recital in the first clause reproduced above has been found to be false, there is no antecedent blending of the self- acquired property with ancestral property before it is partitioned among the parties. He says that all RFA No.151/08 & conn.cases -:42:- the clauses took effect on the signature of the deed, and no moment of time elapsed between the alleged blending and partition. We are unable to accede to this contention. In the first clause above, it is recited that the assessee has been blending his money who inherited assets till this date. In other words, it asserts a continuous course of conduct ending with the day when the deed was executed. The deed seems to be carefully drafted and the assessee must have given instructions as to the contents of the draft. When instructions are given that the self-acquired property is to be treated as joint family property, in our opinion, at that moment the property assumes the character of joint family property On execution, the deed becomes evidence of a pre-existing fact i.e. of throwing the self-acquired property into the hotch- potch. The words "till this date" are significant and must be given effect to. The High Court, in our opinion, was right in observing that "the partition proceeded on the basis that the self-acquired properties were made available for partition alongwith the only item of joint family property. That itself constituted proof that antecedent to the partition, however short the interval, there was blending of the self-acquired properties of the assessee with his ancestral joint family property". We agree with the High Court that "whether the averment in relation to the past was supported by RFA No.151/08 & conn.cases -:43:- other evidence or not, it certainly was unequivocal that the properties dealt with at the partition were treated by the volition of the assessee as the properties available for partition between the members of the joint family. It was certainly an unequivocal declaration that all the properties dealt with under that partition had been impressed with the character of joint family properties, properties belonging to the joint family of the assessee and his sons. The genuineness of the transaction itself was never in issue. The result was that at least on 19th December, 1952, antecedent to the partition, the properties became impressed with the character of joint family property. There was a partition on 19th December, 1952.
Thereafter, the properties allotted to the shares of the assessee and his divided sons were held by them in severalty."
In Stremann (supra), Apex Court was dealing with a converse situation. The partition deed in the said case reflected a clear clause indicating blending of self acquired property. The argument that there was no antecedent blending was rejected. In the present case, there is no clause indicating blending of self acquired properties, whereas both the properties are dealt RFA No.151/08 & conn.cases -:44:- separately.
33. There is no dispute about the fact that item Nos.1 and 3 of plaint schedule are the self acquired properties of Kunjan and item No.2 was the ancestral property. Therefore, as far as properties covered by items 1 and 3 of the plaint schedule are concerned, plaintiff cannot be treated as a co-owner.
34. There is no dispute about the fact that on the Hindu Joint Family Abolition Act, 1976 coming into force, there is a deemed partition among the members of the family as far as item No.2 is concerned. Any conveyance/transfer made by the other co-owners with reference to item No.2 property is not binding on the plaintiff to the extent of her share in the property. In other words, no co-owner can assign the right of another co-owner unless the right stands extinguished under any procedure prescribed by law. In this case, we have already found that the contention of the defendants with reference to a claim for adverse possession and ouster of the co-owner is not sustainable. It is also evident that certain third party rights have been created by the members of the family on the basis of the assignments already RFA No.151/08 & conn.cases -:45:- done in the matter. An Advocate Commissioner was deputed to identify the properties. Ext.C2 is the report prepared by the Advocate Commissioner wherein all the three items of property had been clearly described. It is pointed out that item No.2 property is having an extent of 33 cents in Sy.No.98/2 and according to the plaintiff and defendants, the extent of the property is only 28 cents. Item No.3 property which is also in Sy.No.98/2 is situated 50 metres away from item No.2 property. A sketch of item No.2 property is also annexed and it is reported that plot A is in the possession of second defendant wherein he has a building bearing No.XI/555 in which he is residing. Shop rooms are situated in the property bearing Nos.XI/574, 575 and 576 and a hall XI/577. The building is about 30 years old. Building No.XI/576 is being used as the office of Sreelakshmi Colour Printers. Building No.XI/577 is the work area of Sreelakshmi Colour Printers. The defendant is residing 1 metre east of Building No.X1/555, which is about 15 years old. Plot B is in the possession of Santhakumari which consists of a basement. Plot C having an extent of 11 cents is in the possession of 8th defendant, Veera RFA No.151/08 & conn.cases -:46:- Chandran. Plot B is having an extent of 7 cents and the total extent is 28 cents which according to the Advocate Commissioner is known from the parties.
35. In the light of our finding that the plaintiff is only entitled for a share in respect of item No. 2 property, any documents executed by any other parties with reference to Item Nos.1 and 3 cannot be treated as void and will be binding on the parties to the said documents. However, in respect of item No.2 of the plaint schedule, the plaintiff has 1/7 right which she is entitled to. But her entitlement shall be without affecting third party rights in any manner. If any of the properties had been assigned to third parties, who were not successors of the parties to Ext.A1 document, the partition shall be effected only after providing necessary adjustments to ensure that the third party rights are not affected in any manner, which of course has to be considered during final decree proceedings. It is therefore made clear that the plaintiff shall be entitled for 1/7 share of property in respect of item No.2 of the plaint schedule and any documents executed by other sharers affecting her 1/7 share can be treated RFA No.151/08 & conn.cases -:47:- as invalid.
36. Yet another aspect that requires consideration is the argument of the respondent that the appeals are barred by principle of res judicata. It is stated that there is no challenge to judgment in OS No.35/1999 which is filed for an injunction to restrain the defendants from trespassing into the plaint schedule property. Counsel for respondent relied upon the judgment in Janardhanan Pillai v. Kochunarayani Amma (1976 KLT 279). There cannot be any quarrel with regard to the proposition of law. The suit OS No.35/1999, for injunction simplicitor is filed on the basis of possession alone. Though such suit was jointly tried along with the suit for partition, the findings in the said suit by the Court below are only to the extent as mentioned in the operative portion, which reads as under:-
"Regarding OS No.35/1999 it has come out in evidence that plaintiff and her husband are running a printing press in item No.2 property and she is in exclusive possession and enjoyment of printing press and its premises. Act of the defendants have compelled her to believe that she is devoid of any right over the properties. Her rights were realized RFA No.151/08 & conn.cases -:48:- only at a belated time on 21.09.1995. Other co- owners have no right to disturb her and her right to run the business of conducting a printing press. The nature of the contention raised by the defendants and the filing of various suits positives probability on the part of the defendants to interfere with her peaceful possession over the building situated in item No.2 property. She has every right to restrain the defendants from interfering with conducting of printing press. Hence OS No.35/1999 is decreed. Defendants are restrained by a permanent prohibitory injunction order from causing any kind of obstruction to the smooth conduct of printing press."
37. The plaint schedule in OS No.35/99 is a printing press in Item No.2 property. In respect of item No.2 property, we have already held that the plaintiff will have a right to claim partition. Under such circumstances, merely for the reason that no appeal is filed against OS No.35/1999 does not preclude the appellant from challenging the decree as far as item Nos.1 and 3 are concerned. Even in respect of suits which had been decided by a common judgment, if the cause of action for the suits are substantially different, principle of res judicata cannot be imported to reject an RFA No.151/08 & conn.cases -:49:- appeal which was filed against a suit decided on a different cause of action. The principle of res judicata will apply in instances where there are cross suits, case and counter claim and the subject matter in issue is closely interlinked so that the decree cannot be separately construed and the finding in one suit may amount to res judicata as far as the other suit is concerned. In the case on hand, OS No.209/1996 is only for partition and the subject matter involved is whether the properties involved are partible or not. In OS No.35/1999, the issue involved is whether plaintiff can be forcibly thrown out from the plaint schedule item on the basis of their claim for possession on the basis that the plaintiffs are in exclusive possession and enjoyment of the printing press and its premises. The subject matter is totally different and the issues have been separately considered by the Court below and the finding in the partition suit has no bearing to the findings in the injunction suit. Hence, non filing of appeal against the said suit by itself is not a reason for coming to a conclusion that the present appeals are barred by principles of res judicata.
RFA No.151/08 & conn.cases -:50:-
38. Now coming to the judgment in LARs, which has been decided based on the decree in OS No.209/1996, the land acquisition case is only for apportion of compensation wherein the appellants are not parties to the proceedings. The appeal has been filed by the defendants 1 to 4 and 8 whereas in LAR No.171/98, 5th defendant is one of the claimant and in LAR No. 172/98, 7th defendant is one of the claimant. They have not chosen to prefer any appeal. They are virtually strangers to the lis for partition and therefore the said judgment based on the decree passed will not affect the interest of the appellants in any way to prosecute the appeals.
In the light of the above discussion, we are of the view that the appeals are to be allowed as under:-
(i) The preliminary decree passed by the Court below in OS No.209/96 is set aside.
(ii) A preliminary decree is passed in OS No.209/96 declaring that the plaintiff is entitled for 1/7th share in respect of item No.2 property alone.
(iii) The document executed by the Smt.Vanajakshi or the RFA No.151/08 & conn.cases -:51:- defendants with reference to item No.2 property shall not be binding on the plaintiff.
(iv) The decree in OS No.614/95 is confirmed and the parties shall be bound by the decree in OS No.209/1996. It shall be open for the plaintiff to take appropriate proceedings in accordance with law after final decree proceedings are completed and the property is divided by metes and bounds.
(v) LAA No. 48/12 is allowed and it is declared that the right of the parties shall be in terms with the judgment in OS No.209/1996.
Sd/-
A.M. SHAFFIQUE, JUDGE Sd/-
ANU SIVARAMAN, JUDGE Rp //True Copy// PS to Judge