Dismissed

Mariakkutty Mathew and Others v. Aleykkutty Devasia and Others

Kerala HC9 Feb 2017RSA/17/2010

Case brief

AI extract

What is this about?

The High Court of Kerala dismissed this second appeal challenging concurrent findings that a purchase certificate obtained by one legal heir of deceased tenants benefits all co-heirs. The court held that since all families continued joint possession via inheritance, the certificate is valid for all.

What did the court decide?

Second appeal dismissed. Parties bear respective costs. Interlocutory applications closed.

Mariakkutty Mathew and Others Vs Aleykkutty Devasia and Others — Partition | Kerala HC (2017)

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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 B.KEMAL PASHA

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THURSDAY, THE 9TH DAY OF FEBRUARY 2017/20TH MAGHA 1938

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RSA.No. 17 of 2010 (B)

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AGAINST JUDGMENT DATED 14-08-2009 IN AS 168/2005 of ADDL.DISTRICT COURT (ADHOC)-I, KOTTAYAM

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AGAINST THE JUDGMENT DATED 25-02-2005 IN OS 406/2000 of ADDL.SUB COURT,KOTTAYAM

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APPELLANTS/APPELLANTS/DEFENDANTS:

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1. MARIAKKUTTY MATHEW, AGED 60 YEARS,

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D/O.ISSAC, RESIDING AT KADALIKKATTIL, VALAYAMTHODU KARA AND P.O., KAPPUMTHALA, KOTAYAM TALUK.

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2. SOSAMMA KUTTAPPAN, AGED 57 YEARS, D/O.ISSAC, RESIDING AT THATTUMPURAM HOUSE, VELOOR KARA AND PO, VELOOR VILLAGE, KOTAYAM TALUK.

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3. SARAMMA JOY, AGED 54 YEARS, D/O.ISSAC, ATTUCHIRAYIL HOUSE, KAVANATTINKARA, KUMARAKOM KARA AND VILLAGE, KOTAYAM TALUK.

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4. ISSAC ISSAC @ JOY, AGED 51 YEARS,

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S/O.ISSAC, RESIDING AT KUNNELCHERUVIL HOUSE, VETTIMUKAL KARA, AND P.O., ETTUMANOOR VILLAGE,, KOTTAYAM TALUK.

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5. LUKOSE ISSAC @ BABY, AGED 49 YEARS, S/O.ISSAC, RESIDING AT KUNNELCHERUVIL HOUSE, VETTIMUKAL KARA, AND P.O., ETTUMANOOR VILLAGE, KOTTAYAM TALUK.

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6. SELIN JOHNY, AGED 44 YEARS, D/O.ISSAC, RESIDING AT KANAKAKKOTTAYIL HOUSE, VETTIMUKAL KARA, AND P.O., ETTUMANOOR VILLAGE,, KOTTAYAM TALUK.

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7. SHAJI P ISSAC, AGED 41 YEARS, S/O.ISSAC RESIDING AT KUNNELCHERUVIL HOUSE, VETTIMUKAL KARA, AND P.O., ETTUMANOOR VILLAGE, KOTTAYAM TALUK.

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RSA.No. 17 of 2010 (B)

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8. LEELA AGED 45 YEARS, W/O.LUKOSE ISSAC, RESIDING AT KUNNELCHERUVIL HOUSE, VETTIMUKAL KARA, AND P.O., ETTUMANOOR VILLAGE, KOTTAYAM TALUK.

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BY ADVS.SRI.K.RAMACHANDRAN SRI.V.B.NARAYANAN SRI.M.P.KRISHNAN NAIR SRI.JOSEPH THEKKEKURUVANAL

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RESPONDENT(S)/RESPONDENTS/PLAINTIFFS.:

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1. ALEYKKUTTY DEVASIA, AGED ABOUT 71 YEARS, D/O.DEVASIA ISAC, RESIDING AT KUNNELCHERUVIL HOUSE, VETTIMUKAL KARA, ETTUMANOOR VILLAGE, KOTTAYAM TALUK.

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2. ALEYKKUTTY, W/O.ISSAC, RESIDING AT KUNNELCHERUVIL HOUSE,VETTIMUKAL KARA, ETTUMANOOR, VILLAGE, KOTTAYAM TALUK.

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3. SANTHAMMA SUNNY, AGED 45 YEARS, RESIDING AT VATTAKKUNNEL HOUSE, KUTHUMKAL, RAJAKKADU P.O.

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4. PASTER V.P.VARGHESE, PRESIDENT IPC, SEON PRAYER HALL, PUNATHURA LOCAL CHURCH, VETTIMUKAL P.O.,ETTUMANOOR VILLAGE,KOTTAYAM TALUK, (PERSON DIES AND IS REPRESENTED BY THE, PRESENT PRESIDENT).

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5. V.M.JOSEPH, AGED ABOUT 50 YEARS, S/O.MATHEW, RESIDING AT BETHEL HOUSE, SREEKANTAMANGALAM P.O., ATHIRAMPUZHA VILLAGE, KOTTAYAM TALUK.

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6. ADDL.R6. MARY K.J., AGED 55 YEARS, RESIDING AT KUNNELCHERUVIL HOUSE, VETTIMUKAL KARA AND P.O, ETTUMANOOR VILLAGE, KOTTAYAM.

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7. ADDL.R7.THANKAMMA K.D., AGED 45 YEARS, RESIDING AT KUNNELCHERUVIL HOUSE,, VETTIMUKAL KARA AND P.O, ETTUMANOOR VILLAGE, KOTTAYAM.

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8. ADDL.R8. REJI, AGED 35 YEARS, RESIDING AT KUNNELCHERUVIL HOUSE, VETTIMUKAL KARA AND P.O, ETTUMANOOR VILLAGE, KOTTAYAM.

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R BY ADV. SRI.MATHEW JOHN

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THIS REGULAR SECOND APPEAL HAVING BEEN FINALLY HEARD ON 09-02-2017, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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[CR]

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B. KEMAL PASHA, J.

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................................................................ R.S.A. No. 17 of 2010

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............................................................... Dated this the 9^th day of February, 2017

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J U D G M E N T

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Challenging the concurrent findings entered by the Subordinate Judge's Court, Kottayam in O.S.No.406/2000 followed by those of the District Court, Kottayam in A.S.Nos.168/2005, the defendants in O.S.No.406/2000

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have come up with this second appeal.

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The suit is one for partition and separate possession of half share of the plaintiff over the plaint schedule property. The plaint schedule property is having an extent of 51.30 Ares in Sy.No.421/2 of the Ettumanoor Village. According to the plaintiff, the plaint schedule properties originally belonged to late Ithack Issac and that

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R.S.A. No. 17 of 2010

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-: 2 :-

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he was enjoying that property as a tenant under the CSI Church. The said Ithack died in the year 1951. According to the plaintiff, Ithack died intestate, leaving his only two sons namely Devasia Issac and Issac Issac as his legal heirs. After the death of the father, the brothers were jointly possessing and enjoying the properties. While so, Ext.B1 purchase certificate was issued by the Kottayam Land Tribunal in respect of the said property to Issac on 16.12.1975 through O.A.No.118/1972, as purchase certificate No. O.A.No.367/1975.

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The plaintiff is the only daughter of Devasia Issac who died in the year 1986. Issac Issac died in the year 1987 leaving the first defendant, his wife, and defendants 2 to 9 who are their children, as his legal heirs. The plaintiff is the sole legal heir of deceased Devasia. It is the case of the plaintiff that both Issac Issac and Devasia Issac were in joint possession and enjoyment of the properties, in continuation of the possession and

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R.S.A. No. 17 of 2010

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-: 3 :-

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enjoyment of Ithack Issac as a tenant under the CSI Church. Therefore, according to the plaintiff, she is entitled to half share in the plaint schedule properties. The legal heirs of late Issac Issac transferred 6 cents of property from the plaint schedule properties to the 10^th defendant in the year 1994, and thereafter they transferred three more cents of property out of the plaint schedule property to the 11^th defendant in the year 1997.

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According to the plaintiff, a building was constructed by late Issac Issac in the scheduled property and the said building is numbered as 168/IV of Ettumanoor Panchayat, where the first defendant and the 9^th defendant are residing. The plaintiff is residing in the plaint schedule property in building No.197/IV with her daughters. The plaintiff's son Rejimon constructed another building in the plaint schedule property with his own funds and he has been residing there with his wife and children.

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Defendants 1 to 6, 8, 9 and 11 filed a joint

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R.S.A. No. 17 of 2010

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written statement by denying the plaint claims. According to them, the scheduled property exclusively belong to Issac Issac and that the same had been acquired by him through Ext.B1 purchase certificate. It is contended that late Ithack had not acquired properties and his children has not succeeded to any property. The fact that the plaintiff is the sole legal heir of deceased Devasia Issac is admitted. The plaintiff or her predecessors had not challenged the purchase certificate in the name of Issac Issac and thereby they acquiesced the purchase certificate and therefore, they are estopped from filing the suit. The residence and possession of the plaintiff in the building in the plaint schedule properties is only permissive and in accordance with the licence given by late Issac Issac. According to the said defendants, the plaintiff is not entitled to any share in the plaint schedule properties. The 12^th defendant has also filed a separate written statement and he has also admitted the very same contentions of the

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R.S.A. No. 17 of 2010

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other contesting defendants. The averment that the son of the plaintiff Rejimon has constructed a building in the plaint schedule properties is denied.

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After recording the evidence and hearing either side, the trial court decreed the suit in terms of the plaint. Aggrieved by the said preliminary judgment and decree, defendants 2 to 6, 8, 9 and 11 filed A.S.No.168/2005 before the District Court, Kottayam. By the time the matter reached the first appellate court, the plaintiff died and consequently, her legal representatives were impleaded. Presently, the legal representatives of the first respondent are additional respondents 6 to 8. The learned Addl. District Judge, concurred with the findings entered by the trial court and dismissed the appeal with costs.

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This second appeal has been admitted on the following substantial questions of law:

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(i) Whether the courts below were justified in finding that Ext.B1 purchase

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R.S.A. No. 17 of 2010

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-: 6 :-

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certificate is obtained by Issac as a coowner?

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(ii) Whether the burden of proof has been correctly decided by the courts below? (iii) Whether a mere suit will lie in the matter?

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(iv) Whether Ext.A4 Thandaper account and the remark regarding the devolution of property shown in Ext.A2 can be relied on to enter a finding in favour of the plaintiff?

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Heard the learned counsel for the appellants Sri. K. Ramachandran and the learned counsel Sri. Mathew John for the additional 6^th respondent.

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According to the learned counsel for the appellants, the plaint schedule properties exclusively belonged to late Issac Issac as a tenant under the CSI church, and he alone was paying rent to the CSI church. It has been further argued that the name Ithack Issac shown in the tax receipts can only be construed as Issac son of

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R.S.A. No. 17 of 2010

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Ithack. It has been further argued that the purchase certificate issued under Section 72 of the Kerala Land Reforms Act conclusively proves even the possession of the party in favour of whom the same has been issued and therefore, a mere suit for partition without seeking a relief of declaration of title or challenging the validity of the purchase certificate, is not maintainable.

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10 . Per contra, the learned counsel for the sixth respondent has argued that Ext.B1 purchase certificate issued in favour of Issac will enure to the benefit of Devasia Issac also. It has been argued that the properties originally belonged to Ithack in his capacity as a tenant and he was enjoying the properties and was residing with his family in the building put up by him in the property. After his death, both his sons and families have been residing in the property and while so, both the sons also died. It has been argued that still the legal representatives of Devasia Issac are residing in the building situated in the

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R.S.A. No. 17 of 2010

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property and therefore, Ext.B1 could be construed as a purchase certificate obtained by one of the co-owners for the benefit of both the co-owners.

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It is the admitted case of the contesting defendants that the plaintiff is residing with her family in the building situated in the plaint schedule property. According to the defendants, such residence is on account of the mere licence granted by Issac Issac.

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Ext.B1 is the purchase certificate. The same was issued as per Ext.A3 order dated 13.11.1973 passed by the Kottayam Land Tribunal. Ext.A1 was an application filed by Issac for obtaining such purchase certificate. Ext.A2 is the enquiry report of the Revenue Inspector prepared under Section 72 of the KLR Act. Column No.5 in Ext.A2 is meant for “name & residential address of the cultivating tenant of the holding and how he obtained the tenancy right.” The following entries are made against Column No.5 “Issack. Kunnacheruvil Kizhakkumbhagam,

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R.S.A. No. 17 of 2010

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-: 9 :-

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Ettumanoor. He obtained the tenancy right by hereditary. ” The extent of land is shown in column No.1 of Ext.A2 as one acre and 12½ cents. The land owner is shown as the Treasurer, CSI Dioceses, Kottayam. Through Ext.A3 order the Land Tribunal has accepted Ext.A2 report and it was on that basis, Ext.B1 was issued. When Ext.A2 was accepted by the Land Tribunal as is evident from Ext.A3, it is evident that the applicant obtained the property through intestate succession.

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Ext.A4 is the Thandaper account and register of the said property. The name of the Thandaper holder is shown as Ithack Issac. It does not show that the name of the Thandaper holder is Issac son of Ithack. The property was mutated through PV64/1995 dated 25.2.1995. In this context, the evidence of the parties have also to be looked into. DW1 is one of the sons of deceased Issac. In crossexamination, DW1 has clearly admitted that the name of plaintiff's father is Devasia Issac and the name of his

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R.S.A. No. 17 of 2010

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father is Issac Issac. He admitted that the name of his grandfather is Ithack. Matters being so, the name of the Thandaper holder noted in Ext.A4 can only be construed as that of the father of Devasia Issac and Issac Issac.

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Regarding the devolution of the property, DW1 has clearly admitted that he is residing in the building situated in the plaint schedule property. According to him, he is residing in the building put up by his father in the property. Thereafter, he clearly admits that his father was born in the house wherein he (DW1) is residing. Therefore, it is evident that the said family building was not constructed by the father of DW1, whereas it was put up by his grandfather Ithack.

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Ext.B2 is the certificate obtained by the contesting defendants from the CSI Ettumanoor Pastorate on 6.9.2002. The said certificate shows that as per the pattom accounts register kept in the church, the rent of one acre and 12½ cents of property was being paid to the

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R.S.A. No. 17 of 2010

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church by Issac Kunnacheruvil for the period from 1952. Nobody has been examined in the suit to prove the authenticity of Ext.B2. Over and above it, had there been any such payments, the defendants could have compelled the church through court to produce the original pattom account register. No such attempt was made and the said original register was not produced. The fact as to how the defendants could procure Ext.B2 has also come to light through the examination of DW1. According to DW1, he was one of the committee members of the said CSI church. Further, according to DW1, receipts were there evidencing payment of rent to the CSI church. Even a single receipt has not been produced.

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Regarding the possession also, it has clearly come out that the plaintiff and her family members have been residing in the plaint schedule property. Similarly, the widow and children of Issac were also residing in the property. Therefore, it is evident that in spite of Ext.B1

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R.S.A. No. 17 of 2010

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purchase certificate, all the legal heirs of both Devasia Issac and Issac Issac continued to reside in the property and still they are residing in the property. It was in this context, the effect of Ext.B1 has to be construed.

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The learned counsel for additional 6^th respondent has relied on the decision in Vannathi Valappil Janaki and others v. Puthiya Purayil Paru and

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others [AIR 1986 Kerala 110] wherein it was held as follows:

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“Where the leasehold property belongs to all the co-owners and some of the coowners obtain purchase certificates under S.72(K) in regard to the leasehold property in their favour, the rights obtained by the co-owners under the purchase certificates would enure to the benefit of the other co-owners as well because a co-owner in possession acts as a trustee of the other co-owners and the purchasing co-owners cannot have

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R.S.A. No. 17 of 2010

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any special right derogative of the rights of the other co-owners by virtue of the purchase certificates. Accordingly, the other co-owners would not be debarred from recovering their share in the leasehold property because of the purchase certificate obtained by the other co-owners under S.72(K). AIR 1981 SC 77 and AIR 1985 NOC 23(Ker) and 1981 KLT 639 Rel. on.”

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According to the learned counsel for the appellants, the aforesaid decision is no longer good law in view of the decision in Ramakke and others v. Gopi and others [2011 (3) KHC 491(DB)] wherein it was held that once purchase certificate is issued, the person in whose name it is issued has to be considered as the person in possession of the property and such certificate produced is conclusive proof that the recipient is the cultivating tenant of the property. It was further held therein that in the absence of challenge against the purchase certificate, and

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R.S.A. No. 17 of 2010

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a prayer for declaration that its benefit extends to others

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also, no presumption of benefit can be drawn in favour of others.

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I have gone through the decision in Ramakke and others(supra) in its entirety. The facts in that case in respect of the possession do not coincide with the facts of the present case. In the case in the decision noted supra , there was no evidence to show that the original tenant was Mundappa Ghatti as claimed by the plaintiffs. Documents clearly show that Manju Ghatti was the cultivating tenant in respect of the property and he was in exclusive possession and enjoyment of the properties. Apart from that, the said person Manju Ghatti, during his life time executed a Will by reciting in the Will that he was the cultivating tenant in respect of the property and rent was being paid by him etc.

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In this particular case, the clear admissions of DW1 as well as the contents of Ext.A2 clearly show that

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R.S.A. No. 17 of 2010

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the properties originally belonged to Ithack Issac. It has clearly come out in evidence that the legal heirs of both the sons of Ithack Issac have been residing in the buildings situated in the plaint schedule property. Therefore, it is evident that the legal heirs of both the sons of Ithack are in the position of tenants in common in respect of the property. There are only two branches since Ithack had only two sons. The plaintiff is the only legal heir of deceased Devasia Issac. The other contesting defendants D1 to D9 are legal heirs of Issac Issac. Matters being so, Ext.B1 purchase certificate cannot alter the position. It is evident that Ext.B1 purchase certificate will enure to the benefit of deceased Devasia Issac also. Ext.B1 purchase certificate can be construed as one issued in favour of Issac Issac as well as Devasia Issac, when it was issued on the basis of Ext.A2 enquiry report which clearly shows that the property had devolved on the applicant through inheritance.

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R.S.A. No. 17 of 2010

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From all the above, it has clearly come out that the concurrent findings entered by both the courts below do not call for any interference at all. Therefore, the same

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are not liable to be interfered with and hence this second appeal fails and is only to be dismissed, and I do so.

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In the result, this Second Appeal is dismissed. In the nature of this appeal, the parties shall bear their respective costs. All the interlocutory applications in this appeal are closed.

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Sd/- B. KEMAL PASHA, JUDGE.

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ul/-

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// true copy //

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P.S. to Judge.

Mariakkutty Mathew and Others v. Aleykkutty Devasia and Others

Case brief

What is this about?

What did the court decide?

Mariakkutty Mathew and Others v. Aleykkutty Devasia and Others

Case brief

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