Vadakkedath Kannan Vs Nambiathre Sivakshethram Trustee

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT :

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THE HONOURABLE MR. JUSTICE K.T.SANKARAN

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FRIDAY, THE 8TH FEBRUARY 2008 / 19TH MAGHA 1929

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CRP.No. 811 of 2001

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AA.111/1993 of APPELLATE AUTHORITY (LAND REFORMS), KANNUR S.M.234/91, LAND TRIBUNAL, II, PAYYANNUR.

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REVN. PETITIONER: 2ND RESPONDENT:

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VADAKKEDATH KANNAN, S/O.CHINDEN, TRADER, EMBETTE, PARIYARAM AMSOM DESOM.

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BY ADV. SRI.KALEESWARAM RAJ

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RESPONDENTS: APPELLANT & 1ST RESPONDENT:

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NAMBIATHRE SIVAKSHETHRAM TRUSTEE, B.M.UNNIKRISHNAN THIRUMUMBU, PUTHIYANKAVU, KARAM.

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POKKALASSERI JAYASREE, D/O.HARIDASAN NAYANAR, THERUVAYAL, NILESWAR.

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STATE OF KERALA, REPRESENTED BY CHIEF SECRETARY TO GOVERNMENT, SECRETARIAT, THIRUVANANTHAPURAM.

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R3 BY GOVERNMENT PLEADER SRI.S.DILEEP

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THIS CIVIL REVISION PETITION HAVING BEEN FINALLY HEARD ON 08/02/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:

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K.T.SANKARAN, J.

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-------------------------------------------C.R.P. NO. 811 OF 2001 A

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Dated this the 8^th February, 2008

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O R D E R

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Suo motu proceedings were initiated in favour of Jayasree, shown as 'A' party in SM.No.234 of 1991, on the file of the Land Tribunal III, Payyannur, under Section 72C of the Kerala Land Reforms Act. Jayasree claimed tenancy right in respect of an extent of 35 cents of land in R.S.No.96/14 of Payyannur amsom. Jayasree got rights in the property as per Ext.A1 gift deed dated 27.7.1991, executed by her father Haridasan Nayanar. In the gift deed in favour of Jayasree, it is recited that the property belonged in jenm to Nambiyathoor Devaswom and it was outstanding on Kuzhikanam in favour of Narayanan Thirumumbu, as per registered document No.2192 of 1934 and that Narayanan Thirumumbu was in possession of the property. It is also recited in the document that Narayanan Thirumumbu entrusted the property to his son Haridasan Nayanar. The further recital is that Narayanan Thirumumbu died and his rights vested in Haridasan Nayanar. Before the Land Tribunal, the 'B' party, who had jenm right over the properties, did not dispute that the property was outstanding on Kuzhikanam in favour of Narayanan Thirumumbu as per document No.2192 of 1934. But, the 'B' party Devaswom produced Ext.B1 assignment deed, registered document

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C.R.P. NO.811 OF 2001

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No.1094 of 1958, and contended that what is stated in the gift deed executed by Haridasan Nayanar in favour of Jayasree is not correct. As per document No.1094 of 1958, three children of Sahasranama Iyer assigned their fractional rights in the property in favour of Haridasan Nayanar. In document No.1094 of 1958 it is recited that the property was outstanding in the possession of Narayanan Thirumumbu and that he had assigned the Kuzhikanam rights in favour of Sahasranama Iyer as per document No.697 of 1942. Sahasranama Iyer died and his rights devolved on T.S.Ramakrishnan, T.S.Raman, T.S.Venkiteshan, T.S.Subramaniam and T.S.Krishnan. Three of them executed Ext.B1 assignment deed in favour of Haridasan Nayanar. It is also stated in Ext.B1 that the two other non-assigning legal heirs of Sahasranama Iyer had also agreed to the possession of Haridasan Nayanar in respect of the property.

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The Land Tribunal allowed the suo motu case and ordered to issue purchase certificate in favour of Jayasree. Jayasree assigned the property in favour of the revision petitioner. The 'B' party in the suo motu proceedings challenged the order of the Land Tribunal in A.A.No.111 of 1993, on the file of the Appellate Authority (Land Reforms), Kannur. The revision petitioner was impleaded in the appeal as second respondent. The Appellate Authority set aside the order of the Land Tribunal and

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C.R.P. NO.811 OF 2001

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remanded the case to the Land Tribunal for fresh disposal. The said judgment of the Appellate Authority is under challenge in this Revision.

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The reasons for remand of the case as stated in the judgment of the Appellate Authority are the following: (1) The 'B' party alleged that if Ext.B1 is correct, what is stated in Ext.A1 that Haridasan Nayanar got the property as per oral lease from his father would not be correct. (2) If that is so, Jayasree, the donee of Haridasan Nayanar, is not entitled to claim tenancy right. (3) The Appellate Authority stated in the judgment thus:

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“It could be possible that the document No.697/42 was created during the course of some business just for the sake of security and actual possession might not have been passed over to the donee.”

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(4) The Land Tribunal did not make any attempt to verify the facts relating to document No.697 of 1942 and find out whether the remaining legal heirs of Sahasranama Iyer had released their right in favour of Haridasan Nayanar.

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The 'B' party in the suo motu proceedings has admitted that the property was outstanding on Kuzhikanam lease in favour of Narayanan Thirumumbu. Exts.A1 and B1 would show that Narayanan Thirumumbu was having Kuzhikanam right as per document No.2192 of 1934. Ext.B1 shows that Narayanan Thirumumbu assigned the Kuzhikanam rights in

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C.R.P. NO.811 OF 2001

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favour of Sahasranama Iyer as per document No.697 of 1942. The 'B' party has not challenged the correctness or otherwise of document No.697 of 1942. There is no dispute regarding the title of Sahasranama Iyer by the 'B' party. It is also not disputed that three of the legal heirs of Sahasranama Iyer executed Ext.B1 document in favour of Haridasan Nayanar. It is true that the recitals in Exts.A1 and B1 would not go together. If Ext.B1 is true, it cannot be said that Narayanan Thirumumbu had orally entrusted the property to his son Haridasan Nayanar. But, Ext.B1 registered document executed in the year 1958 shows that the tenancy right came to vest in Sahasranama Iyer and that three of his legal heirs assigned their fractional right in favour of Haridasan Nayanar. If that is so, Haridasan Nayanar could execute Ext.A1 settlement deed in favour of his daughter Jayasree at least in respect of the fractional right which he got under Ext.B1. The only aggrieved party in granting the purchase certificate in favour of Haridasan Nayanar would be T.S.Subramaniam and T.S.Krishnan, children of Sahasranama Iyer or their assignees or successors, if any. None of them has filed any Appeal against the order of the Land Tribunal. It is well settled that one co-owner is entitled to get purchase certificate in respect of a property held by him along with the other co-owners. So, granting of purchase certificate in favour of one such co-owner would not destroy the rights of the other co-owners. Therefore, it could safely be held that Jayasree, 'A' party, was entitled to

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C.R.P. NO.811 OF 2001

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get purchase certificate in her favour at least as a co-owner in respect of the 3/5 share of the rights which Sahasranama Iyer had in the property. At the same time, it is to be made clear that issue of purchase certificate in favour of Jayasree would not affect the rights of the other legal heirs of Sahasranama Iyer who did not assign their rights in favour of Haridasan Nayanar, or their assignees or successors, if any. For that purpose, the case need not be remanded to the Land Tribunal.

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For the aforesaid reasons, the judgment passed by the Appellate Authority is set aside and the order of the Land Tribunal is restored, subject, however, to the observations made above. No order as to costs.

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(K.T.SANKARAN) Judge

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ahz/

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K.T.SANKARAN, J.

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C.R.P.NO. 811 OF 2001 A

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O R D E R

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8^th February, 2008 -------------------------------------------

Vadakkedath Kannan v. Nambiathre Sivakshethram Trustee

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Vadakkedath Kannan v. Nambiathre Sivakshethram Trustee

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