Dismissed

Govindan Lalitha v. Vairavan Saraswathy

Kerala HC19 Jul 2018AS/181/2002

Case brief

AI extract

What is this about?

The Kerala High Court dismissed an appeal challenging a lower court's decision in a property suit. The HC affirmed that the plaintiff lacked title due to ineffective transfers and an invalid purchase certificate obtained without impleading interested parties. The court also barressed the claim via res judicata.

What did the court decide?

Judgment and decree of the court below confirmed; pending interlocutory applications dismissed.

Govindan Lalitha Vs Vairavan Saraswathy — Succession and Inheritance | Kerala HC (2018)

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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 A.HARIPRASAD

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THURSDAY, THE 19TH DAY OF JULY 2018 / 28TH ASHADHA, 1940

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AS.No. 181 of 2002

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AGAINST THE JUDGMENT AND DECREE DATED 30-11-2001 IN OS 88/1995 of SUB COURT, ATTINGAL.

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APPELLANT/PLAINTIFF :

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***** 1.	GOVINDAN LALITHA, AGED 52, KEEZHMANNADI PURAYIDATHIL, EDAPPAZHANADU DESOM, KILIMANOOR VILLAGE.(DIED) (ADDL.APPELLANTS IMPLEADED)
ADDL.A2.	RANJITH.S, S/O LALITHA, R.S MANDIRAM, ERUNOOTTY, VATTATHAMARA P.O., PIN 691 536, KOLLAM DISTRICT.
ADDL.A3.	SANJEEV.S, S/O LALITHA, KEEZHAMANNADI KATTAKKALIL VEEDU, PUTHIYAKAVU, KILIMANOOR P.O., PIN 695 601, THIRUVANANTHAPURAM DISTRICT.
ADDL.A4.	RAJEEV S, S/O LALITHA, KEEZHAMANNADI KATTAKKALIL VEEDU, PUTHIYAKAVU, KILIMANOOR P.O., PIN 695 601, THIRUVANANTHAPURAM DISTRICT.
ADDL.A5.	ANEESH KUMAR S, S/O LALITHA, KEEZHAMANNADI KATTAKKALIL VEEDU, PUTHIYAKAVU, KILIMANOOR P.O., PIN 695 601, THIRUVANANTHAPURAM DISTRICT.
*****	(LEGAL HEIRS OF THE DECEASED APPELLANT ARE IMPLEADED AS ADDL.APPELLANTS 2 TO 5 VIDE ORDER DATED 08-03-1017 ON I.A NO.846/07)
	ADDL.A2 TO A5 BY ADV.SRI.PIRAPPACODE V.S.SUDHEER.

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AS.No. 181 of 2002 -2-

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RESPONDENT/DEFENDANTS :

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1. VAIRAVAN SARASWATHY, AGED 75, KIZHAKKE VARATHOOR VEEDU, EDAPPAZHANADU DESOM, KILIMANOOR VILLAGE.

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2. PAPPUKUTTY PRABHAKARAN AGED 53, MADAPATTU THOTTUVILA VEEDU, VELLALLOOR VILLAGE.

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3. PAPPUKUTTY BAHULEYAN, AGED 52, MADAPATTU THOTTUVILA VEEDU, VELLALLOOR VILLAGE.

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4. PAPPUKUTTY RAJAN, AGED 49, MADAPATTU THOTTUVILA VEEDU, VELLALLOORR VILLAGE.

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5. BHAVANI SAROJINI, AGED 47, MADAPPATTU THOTTUVILA VEEDU, VELLALLOORR VILLAGE.

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6. PAPPUKUTTY BALAN, AGED 45, MADAPATTU THOTTUVILA VEEDU, VELLALLOORR VILLAGE.

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7. BHAVANI LEELA, AGED 42, MADAPATTU THOTTUVILA VEEDU, VELLALLOORR VILLAGE.

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8. BHAVANI KRISHNAMMA, AGED 40, MADAPATTU THOTTUVILA VEEDU, VELLALLOOR VILLAGE.

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9. PAPPUKUTTY PUSHPANGADAN, AGED 37, MADAPATTU THOTTUVILA VEEDU, VELLALLOORR VILLAGE.

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R3 BY ADV. SRI.J.JAYAKUMAR.

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THIS APPEAL SUITS HAVING BEEN FINALLY HEARD ON 19-07-2018, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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A.HARIPRASAD, J.

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A.S No.181 of 2002

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Dated this the 19th day of July, 2018

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Heard the learned counsel for the appellant.

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Appellant is the plaintiff in O.S No.88 of 1995 before the Court

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of Subordinate Judge, Attingal. The suit is one for declaration and

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injunction. Plaint averments, in short, are as follows :

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Plaint schedule properties originally belonged to Raman Velayudhan.

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He had been in exclusive possession and enjoyment of the properties on the

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basis of a Pattayam issued in his name. In 1082 M.E, Raman Velayudhan

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mortgaged the properties to Chinnan Raman for an amount of 2,500

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panam. The property was given in possession to Chinnan Raman. Since

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then, Chinnan Raman had been in possession and enjoyment of the

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A.S No.181 of 2002 2

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properties. On 10.09.1090 M.E, Chinnan Raman transferred the properties

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orally to his elder son Raman Govindan. While so, Raman Govindan constructed a building thereon and he started residing with his family. On 25.06.1110 M.E, he made an oral transfer of the properties in favour of his

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wife Narayanan Lakshmi and since then she was in possession and enjoyment of the same. During the life time of Narayanan Lakshmi, she transferred the properties to the appellant with the consent of other

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children. Thereafter, the appellant is in possession and enjoyment of the properties. She obtained purchase certificate in respect of the properties. That document is produced as Ext.A3. On 21-11-1994, the third defendant

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came to the property with the help of police and the appellant and her family were evicted forcibly from the properties and the building thereon. Thereafter, the building was demolished. They also caused obstruction in

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the appellant's enjoyment of the property. On enquiry, it was revealed that

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A.S No.181 of 2002 3

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the first defendant one Kalyani, Narayanan Raghavan and deceased

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Bhavani, who is the mother of defendants 2 to 9, had filed a suit, viz; O.S No.90 of 1954 in the Court of Sub Judge, Attingal and obtained a decree.

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On the strength of that decree, they created documents to show that the properties had been delivered to them. In O.S No.90 of 1954, neither the plaintiff nor her mother was impleaded. But her father Raman Govindan

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had been impleaded in the suit. The plaint schedule property was also included in the suit and other proceedings. According to the plaintiff, in 1101 M.E itself, Raman Govindan had transferred his mortgage right in the

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properties to the plaintiff's mother. There was no prayer in the said suit to redeem the mortgage created in 1082 M.E. According to the plaintiff, the

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decree in O.S No.90 of 1954 could not be executed and that will not affect

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the right of Narayanan Lakshmi in the property. Therefore, the plaintiff prayed for declaration and injunction.

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A.S No.181 of 2002 4

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Third defendant opposed the suit by contending that the

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property originally belonged to Raman Sankaran, who was the karanavan

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of the defendants' tarwad. It is admitted that Raman Velayudhan had

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mortgaged the properties to Chinnan Raman. Chinnan Raman was a junior member of the tarwad and he became karanavan later. Prior mortgage created over the property was redeemed by Raman Velayudhan in 1079 M.E and at that time, he was a junior member of the tarwad. The mortgage

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created by Raman Velayudhan in favour of Chinnan Raman was only for

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the amount spent by Raman Velayudhan for redeeming the prior mortgage.

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It is therefore contended that the said mortgage did not affect the tarwad. It

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could be treated only as a mortgage in respect of the special right of Raman

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Velayudhan. It is a false case that Chinnan Raman had orally transferred

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the properties to Raman Govindan. Since value of the property exceeded Rs.100/-, it could not have been transferred without a registered document.

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A.S No.181 of 2002 5

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Will executed by Chinnan Raman was set aside in O.S No.90 of 1954 and

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therefore it was revealed that he had not transferred the mortgage right in

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the properties to Raman Govindan. In O.S No.90 of 1954, all the legal heirs

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of Chinnan Raman were impleaded as defendants 1 to 19. That suit was one for recovery of possession of the properties. Raman Govindan was the

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first defendant in the said suit. If he had any right over the properties, he

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would had raised a claim in the said suit. The suit was decreed and the decree has become final. Present plaint schedule property is a part of the plaint schedule item No.1 in O.S No.90 of 1954. Therefore, the claim put

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forward by the plaintiff that Raman Govindan had mortgaged right in the

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properties is barred by res judicata and estoppel.

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It is untrue to contend that Raman Govindan had constructed a

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building in the plaint schedule properties and resided therein. Case of the

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plaintiff that the right of Raman Govindan was orally transferred to his

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A.S No.181 of 2002 6

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wife Narayanan Lakshmi is also wrong. Raman Govindan had no

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transferable right in the properties. Since Narayanan Lakshmi had not obtained any right in the properties, it cannot be transferred to the plaintiff

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as alleged. Suo motu proceedings initiated by the Land Tribunal was a collusive proceedings and the respondents shown in the proceedings were the close relatives of the plaintiff. Since notional partition had been effected in the tarwad by the commencement of the Kerala Hindu (Joint Family Abolition Act), 1976, the plaintiff should have impleaded all the persons having a right in the property. Plaintiff obtained a purchase certificate by committing fraud and collusion and that will not affect the rights of the defendants. Purchase certificate was issued during the execution proceedings in O.S No.90 of 1954, wherein the plaintiff was the 44th defendant and thus the proceedings is hit by lis pendens. At the time of

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delivery of property, the plaintiff was not in possession of the property. She

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A.S No.181 of 2002 7

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had not raised any objection against the delivery proceedings. Therefore,

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the present claim of the plaintiff is barred by Order XXI Rule 101 C.P.C.

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Apart from seeking dismissal of the suit, the defendants have

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made a counter claim to set aside the Patta issued in the name of the

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plaintiff.

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The court below raised the following issues for decision :

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Whether plaintiff has got title to and possession of the plaint schedule properties ?

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Whether the plaintiff is entitled to a declaration as prayed for ?

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Whether plaintiff is entitled to an injunction as prayed for ?

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Whether plaintiff is entitled to damages as claimed ?

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Whether the plaintiff is entitled to recovery of possession of any portion of the plaint schedule

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A.S No.181 of 2002 8

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property ?

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Whether the purchase certificate issued in the name of plaintiff in respect of the plaint schedule property is valid ?

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Whether the claim of plaintiff is barred by resjudicata or estoppel ?

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Reliefs and costs ?

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Evidence in this case consists of oral testimony of PW's 1 and 2 and DW1.

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Exts.A1 to A8 and Exts.B1 to B10 are marked.

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Learned counsel for the appellant contended that the court

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below should have considered the claim of the appellants. On a perusal of

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the evidence - both oral and documentary - produced in this case, I find no

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reason to take a different view in this case. According to me, the court

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below has correctly appreciated the evidence on both sides.

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Plaintiff's case is that the plaint schedule properties originally

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belonged to one Raman Velayudhan. He was karanavan of the tarwad and

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A.S No.181 of 2002 9

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he obtained patta in his name. He mortgaged the properties in 1082 M.E

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in favour of Chinnan Raman, who was the grandfather of the plaintiff.

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While he was in possession and enjoyment of the properties, he died and

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the mortgage right devolved upon his son Raman Govindan. Raman

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Govindan orally transferred his right to his wife Narayanan Lakshmi and

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then an assignment deed was also executed. Narayanan Lakshmi made an oral transfer in favour of the plaintiff with the consent of other children. It

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is her case that she obtained purchase certificate in respect of the properties. Ext.A3 is the order passed by the Land Tribunal concern. Ext.A4 is the certificate of purchase.

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The defendants were trying to evict the plaintiff on the

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strength of decree in O.S No.90 of 1954 is the contention.

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Per contra, it is contended by the respondents that the plaintiff

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has no right over the properties and the purchase certificate relied on by

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A.S No.181 of 2002 10

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her was obtained by fraud and collusion.

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The court below on the basis of the relevant evidence made the

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following observations :

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“7. From the pleadings it is seen that the real controversy between the parties is centered on the mortgage right said to have been obtained by plaintiffs grand-father Chinnan Raman. Admittedly the properties originally belonged to Keezhmannadi tarwad in which Raman Velayudhan, Chinnan Raman and Raman Govindan were members. Admittedly these properties were the possession of the previous Karanavan named Raman Sankaran. This property had been under mortgage. This mortgage was released by Raman Velayudhan in 1079 of Malayalam Era as per Ext.B4 release deed. Then Raman Velayudhan executed a mortgage deed in respect of the plaint schedule properties in 1082 Malayalam Era as per Ext.A1

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A.S No.181 of 2002 11

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mortgage deed in favour of Chinnan Raman. Admittedly at one point of time Raman Velayudhan was karanavan of the tarwad and he was in possession and enjoyment of the properties. After his death, according to plaintiff the property devolved upon Chinnan Raman and their on Raman Govindan who was the son of Chinnan Raman and he transferred his right in the property in the name of his wife Lakshmi. So the question to be decided is whether Raman Velayudhan had obtained any mortgage right by Ext.B4 and whether Chinnan Raman had obtained any mortgage right by Ext.A1. According to plaintiffs at the time of the execution of Exts.B4 and A1 assignment Velayudhan was karanavan of the tarwad and thus Chinnan Raman will get a valid mortgage right by Ext.A1. It is true that during the evidence DW1, the third defendant admitted that after Raman Sankaran, Raman Velayudhan was the karanavan. But the evidence revealed that at the time of

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A.S No.181 of 2002 12

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execution of Ext.B4 and A1 Raman Velayudhan was a junior member of the tarwad. Either Exts.A1 or B4 does not describe Raman Velayudhan as karanavan of the tarwad. When one Govindan Kunchu was the karanavan of the tarwad he executed a Will bequeathing the plaint schedule properties and some other properties belonging to tarwad to his wife and children and for setting aside this Will Chinnan Raman filed a suit as O.S.18/1954 copy of the judgment of which is marked as Ext.B2. A number of documents are seen produced in Ext.B2 suit for proving the right of tarwad. A detailed discussion of the court in Ext.B2 judgment reveals the condition of the tarwad during the relevant period. The records in O.S.41/1076, O.S.642/1076, O.S.770/1077, O.S.233/1081, O.S.548/1088, O.S.530/1086, O.S.164/1090 and 548/1989 were produced in the above suit and the verdict passed in those suits were also examined by the

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A.S No.181 of 2002 13

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court in Ext.B2 suit. From the discussion it is seen that in all the above suits one of the important question mooted was whether Bhagavathy Velayudhan who was party in all these suits was the karanavan of the tarwad. It is categorically revealed in those suits that Bhagavathy Velayudhan was the karanavan of the Keezhmannadi tarawad during that period. In O.S.642/1076 and 548/1989 and A.S.164/1090 the various courts held that Bhagavathy Velayudhan was the karanavan and in these suits Raman Velayudhan was also a party. From these facts it is clear that after Raman Sankaran Bhagavathy Velayudhan was the karanavan of the tarwad and he continued as karanavan atleast till 1090. Therefore, a mere admission of DW1 in this case that after the death of Raman Sankaran Raman Velayudhan was the karanavan will not change the position. The finding that Bhagavathy Velayudhan was the karanavan of the property atleast up to 1090 was made in Ext.B2

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A.S No.181 of 2002 14

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suit wherein Chinnan Raman was the plaintiff. So the fact that at the time of Exts.B4 and A1 Raman Velayudhan was not the karanavan of the tarwad is established.”

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Specific case of the appellant/plaintiff is that her father orally

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transferred the plaint schedule properties to her mother Narayanan

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Lakshmi. Ext.A2 is the assignment deed said to have been executed by the

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father in favour of her mother. It is seen that Ext.A2 was executed immediately after the decree in O.S No.90 of 1954, which is produced as

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Ext.B3. In Ext.A2, it is contended that the assignor derived title to the

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property through a Will executed by his father in 1951. That Will was a

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subject matter in Ext.B3 suit. The Will was set aside as per the judgment

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and decree in Ext.B3 suit. It is therefore correctly decided by the court

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below that assignor in Ext.A2 did not obtain any right to assign the

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property as per the document. It was also noticed that in Ext.B3 suit, the

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A.S No.181 of 2002 15

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assignor in Ext.A2, father of the present plaintiff, was arrayed as the first

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defendant. Therefore, he or anyone claiming under him could not have

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contended that he derived right over the property.

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It is also found by the court below correctly that the purchase

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certificate relied on by the plaintiff was obtained without impleading the

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persons interested in the property. No notice was issued to interested

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persons. The purchase certificate was subsequent to the decree in Ext.B3

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suit.

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Having regard to the facts and circumstances, the court below

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correctly found that the plaintiff did not get any title by virtue of the

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purchase certificate relied on by her.

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The suit was dismissed and the counter claim was allowed by

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the court below. The purchase certificate issued to the plaintiff (Ext.A4)

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was found to be legally invalid and it was set aside. No appeal has been

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A.S No.181 of 2002 16

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preferred against the decree in the counter claim, nor even grounds have

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been taken in the appeal memorandum challenging the decree in the

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counter claim. No separate court fee has also paid. Hence the contentions of

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the appellant are barred by res judicata.

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Having regard to the entire facts and circumstances, I find that the

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appeal is devoid of any merit. Hence it is liable to be dismissed.

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In the result, the appeal is dismissed. The judgment and decree

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passed by the court below is hereby confirmed.

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All pending interlocutory applications will stand dismissed.

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A. HARIPRASAD, JUDGE.

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amk

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A.S No.181 of 2002 17

A.HARIPRASAD, J.

A.S No.181 of 2002

J U D G M E N T

Dated 19-07-2018

Govindan Lalitha v. Vairavan Saraswathy

Case brief

What is this about?

What did the court decide?

Govindan Lalitha v. Vairavan Saraswathy

Case brief

What is this about?

What did the court decide?

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