The High Court of Kerala held that the parties are governed by Makkathayam law. It ruled that the plaintiff's right title and interest were lost due to adverse possession and limitation arising from alienation documents executed more than 12 years prior without challenge.
Suit dismissed; appeal fails; no costs.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE P.SOMARAJAN
THURSDAY, THE 2ND DAY OF MARCH 2023 / 11TH PHALGUNA, 1944
AS NO. 634 OF 1996
AGAINST THE JUDGMENT AND DECREE DATED 29-07-1995 IN O.S.NO.44/1993 OF SUB COURT, QUILANDY
PLAINTIFF/APPELLANT:
1THAIKANDY KALLIANI(DIED),
PUTHIYEDATH PALLIKKARA AMSOM DESOM,
QUILANDY TALUK
ADDLN.A2MOHANAN CHETTIYERI
S/O KANARAN, AGED 47 YEARS,
BUSINESS, PALLIKKARA AMSOM,
MELADI VILLEGE, KOYILANDY TALUK
ADDITIONAL APPELLANT NO.2 IS IMPLEADED AS THE LEGAL HEIR
OF THE DECEASED SOLE APPELLANT VIDE ORDER DATED
01/02/2022 IN IA 1/2022.
BY ADVS.
R.PARTHASARATHY
RESPONDENTS/RESPONDENTS:
1THIKKANDI KANARAN,
VENNADI THAZHEKUNIYIL,
PALLIKKARA AMSOM, DESOM,
QUILANDY TALUK
2CHANDUKUTTY (DIED),
KIZHAKKE THAIKKANDI KEEZHOOR DESOM,
MELADI AMSOM QUILANDY TALUK
3 NARAYANI, KIZHAKKE THAIKKANDI KEEZHOOR DESOM, MELADI AMSOM QUILANDY TALUK4 CHATHOTHE MARIUM(DELETED), NADUVELERI, MELEDI AMSOM, KEZHUR DESOM, QUILANDY TALUK THE NAME OF 4TH RESPONDENT DELETED FROM THE PARTY ARRAY OF THE APPEAL AT THE RISK OF THE APPELLANT VIDE ORDER DATE 7/11/14 IN IA 2377/145 PATINHARAYIL KELAPPAN (DIED), KIZHAKKETHAIKKANDIM, KEEZHUR DESOM, MELADI AMSOM, QUILANDYAS NO. 634 OF 1996
2
ADDLN.R6GIRISHAN,
S/O.LATE CHATHUKUTTY,
AGED 36 YEARS,
RESIDING AT KIZHAKKE THAIKKANDI, KIZHOOR P.O.,
PAYYOLI(VIA) PIN-673 522. KOZHIKODE DISTRICT.
ADDLN.R7GEETHA
D/O.CHAHTUKUTTY, AGED 40 YEARS,
RESIDING AT KIZHAKKE THAIKKANDI,
KIZHOOR P.O., PAYYOLI(VIA) PIN-673 522.
KOZHIKODE DISTRICT.
ADDITIONAL RESPONDENTS R6 AND R7 ARE IMPLEADED AS THE
LEGAL HEIRS OF DECEASED 2ND RESPONDENT VIDE ORDER DATED
01/02/2022 IN I.A.2102/2013(IA 6/13)
ADDLN.R8RADHA,
W/O. LATE KELAPPAN,
AGED 55 YEARS,
RESIDING AT PATINHARAYIL VEEDU,
KIZOOR P.O., PAYYOLI (VIA) PIN- 673 522,
KOZHIKODE DISTRICT.
ADDLN.R9UNNIKRISHNAN,
S/O.LATE KELAPPAN,
AGED 26 YEARS,
RESIDING AT PATINHARAYIL VEEDU,
KIZOOR P.O., PAYYOLI (VIA) PIN- 673 522,
KOZHIKODE DISTRICT.
ADDLN.R10MANJUSHA,
D/O.LATE KELAPPAN,
AGED 30 YEARAS,
RESIDING AT PATINHARAYIL VEEDU, KIZOOR P.O.,
PAYYOLI (VIA) PIN- 673 522 KOZHIKODE DISTRICT.
ADDITIONAL RESPONDENTS R8 TO R10 ARE IMPLEADED AS THE
LEGAL HEIRS OF DECEASED 5TH RESPONDENT VIDE ORDER DATED
01/02/2022 IN IA2121/2013(IA 8/13)
BY ADVS.
M.PROMODH KUMAR - FOR R3,R6,R7
SRI.S.ANANTHAKRISHNAN - FOR R3,R6,R7
SRI.K.I.MAYANKUTTY MATHER- FOR R8 TO R10
SRI.N.K.SUBRAMANIAN - FOR R6 & R7
MAYA CHANDRAN – FOR R3,R6,R7
THIS APPEAL SUITS HAVING COME UP FOR HEARING ON 02.03.2023,
THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
AS NO. 634 OF 1996
3
JUDGMENT
Several questions came up for consideration
as to the sustainability of the decree and judgment
of the trial court, firstly, whether the trial court
is justified in dismissing the suit on the ground
that the plaintiff is not entitled to any share,
whether the parties are governed by Makkathayam law
or Marumakkathayam law, what would be the effect of
alienation under Exts.B1, B2 and B3 of the year 1970
and 1976 with respect to any right either fractional
or otherwise if any, held by the plaintiff over the
property and whether the defendants have perfected
title over the property by adverse possession and
limitation.
2. Regarding the question whether the parties
are governed by Marumakkathayam or Makkathayam
law of succession, the defendants mainly relied on
Ext.B10 and B11 decree and judgment in an earlier
suit in O.S.No.10/1967 in which their mother
4
AS NO. 634 OF 1996
Thirumala was the 9th defendant. In that suit,
there is a finding to the effect that the parties
therein belonged to Makkathayam law of succession.
But in that suit, the plaintiff is not a party and
nobody even represented for and on behalf of the
plaintiff in that suit. The corollary is that the
decree and judgment rendered in that suit will not
operate against the plaintiff or her right of
succession, if any, though it is a factor to be
taken into account in deciding the law of
succession as far as the plaintiff is concerned. In
fact, in that suit, no such contention was raised
by the mother. On the other hand, it is an
admitted case of both the parties that they are
Thiyyas among Hindus in north Malabar settled in
northern side of Korappuzha, hence, the normal
presumption that they are governed by Makkathayam
law of succession would come into play, unless the
contrary is proved. There may not be any binding
precedent regarding the decree and judgment
5
AS NO. 634 OF 1996
rendered in an earlier suit of the year 1967 on
the right, title and interest of the plaintiff over
the property or right of succession and as such,
in the absence of evidence to prove the contrary,
it can be safely concluded that the parties are
governed by Makkathayam law.
Regarding the question of adverse possession
and limitation, the earlier document of
alienation, Exts.B1, B2 and B3 of the year 1970
and 1976 was not challenged within the period of
twelve years or within the period of three years
after attaining majority by the plaintiff, though
the said documents were executed with respect to
the entire right, title and interest over the
total extent of 38 cents, which was left out.
Hence, the argument based on Section 44 of the
Transfer of Property Act that the document would
operate only with respect to the due share of the
executant cannot be accepted, since the document
was executed in derogation of right, title and
6
AS NO. 634 OF 1996
interest of all others with respect to the entire
property asserting that the assignor has got every
right, title and interest over the property to
alienate and transfer the same and delivery was
also effected with respect to the entire property.
It would give rise to an actual notice to all
interested especially in view of the definition
given under Section 3 of the Transfer of Property
Act to the expression “when a person is said to
have notice”. There may not be any application of
Section 45 of the Transfer of Property Act when
there is assertion of full right, title and
interest in derogation of rights of others in the
document having the effect of “ouster”. After the
execution of Exts.B1, B2 and B3 documents, a
period of more than 12 years have elapsed. Till
that time, the assignees under the document were
holding the property as that of them with the
necessary animus to hold the same as owned by
them. Necessarily, the suit would stand hopelessly
AS NO. 634 OF 1996
barred by limitation and the right, title and
interest, if any held by the plaintiff would stand
lost by adverse possession and limitation. Hence,
the appeal fails, dismissed. No costs.
Sd/-
P.SOMARAJAN
JUDGE
rkr-02/03/23
3 issues framed by the court
Whether the parties are governed by Makkathayam law of succession in the absence of contrary proof.
Whether the right, title and interest of the plaintiff over the property was lost due to adverse possession and limitation.
Whether the alienation documents operated in derogation of the rights of all interested parties.
3 provisions across 1 enactments
PUTHIYEDATH PALLIKKARA AMSOM DESOM
NARAYANI
P.SOMARAJAN
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court