Second appeal in a partition suit concerning whether a purchase certificate obtained by two defendants in their names under the Kerala Land Reforms Act benefits all co-owners. The court held that once prior co-ownership is proved by evidence, no specific challenge or declaration is needed; dismissed the appeal.
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 A. BADHARUDEEN
FRIDAY, THE 1ST DAY OF MARCH 2024 / 11TH PHALGUNA, 1945
RSA NO. 457 OF 2019
AGAINST THE DECREE & JUDGMENT DATED 19.01.2019 IN AS NO.19 OF 2016
OF ASSISTANT SESSIONS COURT/SUB COURT, MANJERI ARISING OUT OF THE
DECREE AND JUDGMENT DATED 16.06.2014 IN OS NO.123 OF 2012 OF
MUNSIFF COURT, MANJERI
APPELLANTS/APPELLANTS 2 TO 6/DEFENDANTS 2 TO 4, 6 AND 7 AND LEGAL
HEIRS OF 1ST DEFENDANT:
1 SIVASANKARAN, AGED 63 YEARS
S/O.IRAKKUTH KRISHNAN, PULAMANTHOL AMSOM AND DESOM,
PERINTHALMANNA TALUK, MALAPPURAM - 679 323.
2 RADHA, AGED 61 YEARS
D/O.IRAKKUTH KRISHNAN, PULAMANTHOL AMSOM AND DESOM,
PERINTHALMANNA TALUK, MALAPPURAM, PIN - 679 323.
3BHASKARAN,
AGED 55 YEARS
S/O.IRAKKUTH KRISHNAN, PULAMANTHOL AMSOM AND DESOM,
PERINTHALMANNA TALUK, MALAPPURAM DISTRICT,
PIN - 679 323.
4NIRMALA,
AGED 53 YEARS
W/O.PULLITHODI APPU, KURUVA AMSOM, PANG DESOM,
PERINTHALMANNA TALUK, MALAPPURAM, PIN - 679 322.
5 VALSALA, AGED 50 YEARS
W/O.PALATHINGAL VASUDEVAN, VALAMBUR AMSOM, ARIPRA
DESOM, PERINTHALMANNA TALUK, MALAPPURAM, PIN - 679 325.
6 YASHODA,AGED 60 YEARS
D/O.IRAKUTH SUBRAMANIAN’S WIFE MOOCHIKOOTATHIL
KARTHIYAYINI, PULAMANTHOL AMSOM AND DESOM,
PERINTHALMANNA TALUK, MALAPPURAM DISTRICT, PIN - 679
323.
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7SUDHEESH,
AGED 27 YEARS
S/O.IRAKUTH SUBRAMANIAN,
PULAMANTHOL AMSOM AND DESOM,
PERINTHALMANNA TALUK,
MALALPPURAM DISTRICT, PIN - 679 323.
BY ADVS.
T.KRISHNANUNNI (SR.)
SRI.VINOD RAVINDRANATH
SMT.MEENA.A.
SMT.M.R.MINI
SRI.ASHWIN SATHYANATH
SRI.ROHIT NANDAKUMAR
RESPONDENTS/RESPONDENTS/PLAINTIFF AND 5TH DEFENDANT:
1UNNIKRISHNAN,
AGED 57, S/O.IRAKUTH KRISHNAN, PULAMANTHOL AMSOM AND
DESOM, PERINTHALMANNA TALUK, MALAPPURAM DISTRICT, PIN -
679 323.
2PADMINI,
AGED 59, W/O.NECHIYIL VEETTIL KUTTAN, VILAYOOR AMSOM,
KARINGANAD DESOM, OTTAPALAM, PALAKKAD DISTRICT,
PIN - 679 309.
BY ADV SRI.R.RAJESH KORMATH
THIS REGULAR SECOND APPEAL HAVING BEEN FINALLY HEARD ON
14.02.2024, THE COURT ON 01.03.2024 DELIVERED THE FOLLOWING:
R.S.A.No.457/2019
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'C.R'
A. BADHARUDEEN, J.
================================
R.S.A No.457 of 2019
================================
Dated this the 1 st day of March, 2024
J U D G M E N T
This appeal arises out of decree and judgment dated 19.01.2019
in A.S.No.19 of 2016 on the files of Sub Court, Manjeri, whereby the
verdict rendered by the Munsiff Court, Perinthalmanna in O.S.No. 123/2012 dated 16.06.2014 was confirmed. Defendants 2 to 4, 6 and 7 and legal heirs of deceased 1st defendant are the appellants herein. The respondents are the original plaintiff as well as 5th defendant.
raised the following substantial question of law and admitted this appeal.
“Are the courts below justified in finding that the purchase certificate issued in favour of defendants 1 and 2 with respect to item No.2 of plaint B schedule enures to the benefit of plaintiff in the absence of specific challenge against the same and also without any prayer for declaration to that extent?”
the learned counsel appearing for the contesting respondents in detail.
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Perused the trial court as well as the appellate court records and the
relevant decisions placed by the parties.
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Pulamanthol Mana by late Krishnan and therefore plaintiff has no right as a co-owner in item No.2 to plaint B schedule. The specific contention was that defendants 1 and 2 together directly obtained leasehold right and they jointly obtained purchase certificate No.302/2009 from the Land Tribunal, Manjeri in relation to item No.2 to plaint B schedule. Thereafter the 2nd defendant conveyed his half undivided right over the same as per document No.4475/2009. Thus absolute right over 13 cents of item No.2 to plaint B schedule vested with 1st defendant and 12 cents vested with defendant No.2.
“1. Item No.1 to the plaint B schedule property consist of partiable interest between the plaintiff and the 4 th defendant and therefore ordered to be partitioned into 8 shares and the plaintiff is entitled to 1/8 share and the 4 th defendant is entitled to 7/8 shares in the item No.1 to the plaint B scheduled
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property.
2. Item No.2 in the plaint B schedule property consists of partiable interest among the plaintiff and defendants No.1 to 7 and therefore ordered to be divided into 8 shares and plaintiff is entitled to 1/8 share and each defendant is entitled to 1/8 share in the Item No.2 to plaint B schedule property.
3. Cost will come out of the estate.
4. Any of the party is at liberty to file final decree
application and seek allotment of their share by metes and bounds.
5. Subject to payment of Court fee, defendants shall be allotted their respective share.”
the appellate court confirmed the finding of the trial court and dismissed the appeal.
convince this Court that since Ext.B1 purchase certificate was obtained by defendants 1 and 2 in continuation of leasehold right, they independently obtained, the same would not enure to the benefit of the plaintiff and other children of Krishnan and the trial court as well as the appellate court went wrong in holding otherwise. The learned counsel placed 2 decisions of this Court in this regard. First decision is [2011 (3) KLJ 514], Ramakke
& Ors. v. Gopi & Ors. , wherein this Court held that Kerala Land Reforms
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Act, 1963 Sections 72(1) & 72K(2) – Purchase Certificate issued in the name of a person is a conclusive proof of the assignment of rights of the landowner and intermediaries over the property in favour of that person and he should be considered as the person in possession of the property. Contra evidence cannot be adduced to contradict the said fact without impeaching the validity of the purchase certificate. In the absence of a plea that the purchase certificate was obtained by fraud and without seeking a declaration as to title on its basis, no other person can stake claim to the property covered by the certificate.
“ 13. The impact of Section 72K of the Act is subject matter of discussion by this Court as well as the Hon’ble Apex Court, since its introduction in the statute book. In this connection, I am inclined to
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refer one decision Chandran Nair v. Kunhambu Nair , reported in [1981 KHC 262] : [1981 KLT SN 150] :: 1981 ICO 1603, where a learned single Judge of this Court while considering a case where purchase certificate was issued without the presence and without notice to the opposite party, behind his back, and held that the purchase certificate issued without notice to the other side and one obtained behind his back has no evidentiary value.
14. In the decision of the Apex Court in Mathew v. Taluk Land Board , reported in [1979 KLT 601 :: 1979 ICO 948], where the Apex Court stated that the evidentiary value of certificate of purchase could not be disregarded except where it was inaccurate on its face or obtained by fraud. The Apex Court in the decision, observed as under:
"It would thus appear that even though the certificate of purchase issued under sub-s. (1) of S.72K is conclusive proof of the assignment of the right, title and interest of the landowner in favour of the holder in respect of the holding concerned under sub-s.(2), that only means that no contrary evidence shall be effective to displace it, unless the so-called conclusive effective proof is inaccurate on its face. or fraud can be shown (Halsbury's Laws of England, fourth edition, Vol. 17, page 22 Para.28). It may be stated that 'inaccuracy on the face' of the certificate is not as wide in its connotation as an 'error apparent on the face of the record'. It will not therefore be permissible for the Board to disregard the evidentiary value of the certificate of purchase merely on the ground that it has not been issued on a proper appreciation or consideration of the evidence on record, or that the Tribunal's finding suffers from any procedural error. What sub-s.(2) of S.72K provides is an irrebuttable presumption of law, and it may well be regarded as a rule of substantive law. But even so, for reasons already
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stated, it does not thereby take away the jurisdiction of the Taluk Land Board to make an order under S.85(5) after taking into consideration the 'conclusive' evidentiary value of the certificate of purchase according to S.72K(2) as far as it goes." The ratio in Mathew's case (supra) is reiterated in Lakshmi Bai v. Taluk Land Board reported in [1986 KHC 86] [1986 KLT 332] :: 1986 ICO 1022.
15. In another decision in Mohammed Koya v. Bichikoya , reported in [2004 KHC 812] : [2004 (2) KLT SN 76], [ILR 2004 (2) Ker. 223 :: 2003 ICO 7172], a learned single Judge of this Court held that, certificate of purchase issued by the Land Tribunal during pendency of the suit without the landlord being a party is not conclusive evidence of possession in a suit for injunction.
16. In the decision in Hamza Haji v. State of Kerala and Another , reported in [2006 KHC 1248] : [2006 (3) KLT 941 : 2006 ICO 4385], the Apex Court considered claim of exemption under Section 3(2) and 3(3) of the Kerala Private Forests (Vesting and Assignment) Act, 1971, where the Tribunal upheld the claim under Section 3(3), which was interfered by the High Court for the reason that the appellant obtained the decision from the Tribunal in his favour by playing fraud on the Tribunal and the Apex Court confirmed the finding of the High Court.
17. In the decision in Chinnayya Mudaliyar and Others v. Vasudevan reported in [2010 (3) KHC 200] : [2010 (3) KLT SN 30] :: 2010 ICO 820, this Court considered the same issue in the light of the decision in Patinhare Purayil Nabeesumma v. Miniyatan Zacharias , reported in [2008 KHC 6089] [2008 (2) KLT SN 12] :: 2008 ICO 642 rendered by the Apex Court, where the Apex Court considered a situation when two purchase certificates were issued in favour of different persons and it was held by this Court that the purchase
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certificate issued prior in point of time prevails over the purchase certificate issued thereafter and it binds on including the Land Tribunal and therefore, subsequent purchase certificate had no legal effect. It was also held in the decision that, if a tenant constructs a building immediately after lease of property and puts it for commercial use, he is not a 'cultivating tenant'.
18. In the decision in Mathilakath Skaria and Another v. Mathilakath Joseph and Another reported in [2013 (1) KHC 293] : [2013 (1) KLT SN 28], [2013 (1) KLJ 410] :: 2012 ICO 1715, this Court held that, Civil courts cannot be mute spectators to such material alterations made; without power or authority and with abject impunity. The corrected Purchase Certificates are inaccurate on its face and are issued in violation of the provisions of the Act and Rules. With respect to the question as to whether a challenge on the validity of the Purchase Certificates could be maintained in a Civil Court under S.72K, this Court has no hesitation to find that S.72K applies only to valid Purchase Certificates issued by the Land Tribunals, respectfully following the Full Bench cited supra. Material irregularities have been found in the Purchase Certificates. Corrections have been made thereon without the seal of authority conferred under the KLR Act and the Rules framed thereunder; and substantially altering the boundaries, which, forms the essence of identification of the 'holding' as specified under the Act.
19. In the decision in Viswambaran P.N. v. T.P. Sanu and Others , reported in [2018 (3) KHC 73] : [2018 (2) KLT 947] : [2018 (3) KLJ 227] :: 2018 ICO 599, a Full Bench of this Court considered the impact of Section 72K(1) of the Act and held that, benefit obtained by one of the co-sharers in the form of certificate of purchase shall be held by him also for the advantage of the other co-owners and
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certificate of purchase obtained by him shall enure to the benefit of the other co-owners also. In the said decision, it was also held as under:
"The principle of res judicata would apply only when the matter directly and substantially in issue in a suit has been directly and substantially in issue in a former suit or proceedings between the same parties, or between parties under whom they or any of them claim litigating under the same title. When the Land Tribunal decides the question of tenancy and passes an order in favour of one of the co heirs of cultivating tenant, it does not decide whether the certificate of purchase to be issued pursuant to such order would enure to other co heirs. The Division Bench in Paul's case (supra) has held that for the issue of the purchase certificate the inter se rights of the co tenants need not be gone into by the Land Tribunal and how far the benefit of such certificate of purchase will devolve on the other co heirs is not a matter to be gone into by the Land Tribunal. Another Division Bench of this Court has concurred with this view in Balakrishnan Nair v. Radha Amma (1987 KHC 74: 1987 (1) KET 195: 1987 KLN 117 :: 1987 ICO 1310). We agree with the aforesaid view taken by the two Division Benches of this Court. It then follows that when the Land Tribunal decides the question of tenancy and passes an order in favour of one of the co heirs of a cultivating tenant for issuing certificate of purchase, no finding is entered by it with regard to the inter se rights of the co heirs / co tenants or whether the certificate of purchase enures to the other co heirs / co tenants. If that be so, the principle of res judicata does not apply and the Civil Court is not precluded from trying and deciding such issue."
20. In the decision in State of Kerala and Another v. Mohammed Basheer , reported in [2019 (1) KHC 750] : [2019 (1) KLT 386] : [2019 (2) KLJ 60] :: 2019 ICO 112, the Apex Court also
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considered the impact of Section 72K. In the said decision, it was held as under:
"Certificate of purchase was issued by the Land Tribunal, under sub section (1) of S.72K. Sub section (2) of S.72K of the Land Reforms Act clearly states that the certificate of purchase issued under sub section (1) shall be a conclusive proof of the assignment to the tenant of the right, title and interest of the landlord and the intermediaries, if any, over the holding or portion thereof to which the assignment relates. Thus whatever right, title and interest, the landlord had in the land, has been assigned in favour of the respondent under the certificate of purchase. Therefore, it can safely be concluded that the respondent is the owner of the land as he has legal title to hold the said land. As noticed above, the certificate is also a conclusive proof of the fact that the respondent has been in possession of the land as a cultivating tenant right from the date of vesting of the land under the Kerala Land Reforms Act. In our view, the land in question is exempted from vesting in the State under sub section (2) of S.3 of the KPF Act."
21. Thus, the legal position is that certificate of purchase shall be conclusive proof of the assignment to the tenant of the right, title and interest of the landlord and the intermediaries, if any, over the holding or portion thereof to which the assignment relates, subject to condition that the order led to issuance of the purchase certificate is one passed with notice to the land owner, with opportunity of hearing and the same is not the outcome of fraud or inaccurate. The remedy of the aggrieved person when the certificate of purchase is issued in a proceedings without notice to the landlord or by fraud or the same is inaccurate, the aggrieved can file an appeal before the appellate Tribunal, as provided under the Kerala Land Reforms Act, 1963. It is true that when the purchase certificate is inaccurate on its face, or
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obtained by fraud, the evidentiary value of the purchase certificate could not be disregarded. Doubtlessly, a purchase certificate shall not bind a party. who is not party to the proceedings before the Land Tribunal, having better title over the property covered by the purchase certificate.”
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over the same. Therefore, though defendants 1 and 2, being co-owners
along with plaintiff and other defendants, as successors of Krishnan, obtained Ext.B1 purchase certificate in their names for the benefit of all and the same would enure to the benefit of all the co-owners.
this Court in the decision reported in [2018 (3) KHC 73], Viswambharan v. T.P.Sanu & Ors. held that the benefit obtained by one of the co-owners in the form of certificate of purchase shall be held by him also for the advantage of the other co-owners and thus it shall enure to the benefit of the other co-owners also. They also stated that in Viswambharan v. T.P.Sanu & Ors ' case ( supra ), the decision in Ramakke & Ors. v. Gopi & Ors. 's case ( supra ) also was considered while holding so.
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Pulamanthole Mana and while holding the said right and residing in the building situated therein, he died. Therefore, the plaintiffs and defendants became co-owners of the said Krishnan's property. As such Ext.B1 certificate obtained by defendants 1 and 2 would enure to the benefit of the plaintiff and the defendants. Thus, it is held that when a certificate of purchase obtained by one among the co-owners, the benefit automatically
would enure to the benefit of others once it is established by the evidence that the same was one obtained by one among the co-owners and for which no specific challenge against the purchase certificate and no prayer for declaration to that extent are either mandatory or obligatory. Once the coownership prior to issue of purchase certificate is proved by evidence, the purchase certificate would enure to the benefit of all co-owners. Therefore, item No.2 to plaint B schedule is liable to be partitioned as rightly found by the trial court and confirmed by the appellate court.
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Registry shall forward a copy of this judgment to Sub Court, Manjeri and Munsiff Court, Perinthalmanna, for information and
compliance.
Sd/-
(A.BADHARUDEEN, JUDGE)
rtr/
1 issue framed by the court
Whether a purchase certificate issued in favour of defendants 1 and 2 over item No.2 of plaint B schedule enures to the benefit of the plaintiff co-owner absent specific challenge or declaration.
Colour shows how this judgement treated each authority
Ramakke & Ors. v. Gopi & Ors.Relied on¶9
[2011 (3) KLJ 514]
Thayukutty & Ors. v. Manikandan & Ors.Relied on¶10
[2023 ICO 2019]
Viswambharan v. T.P.Sanu & Ors.Relied on¶13
[2018 (3) KHC 73]
2 provisions across 1 enactments
Sivasankaran
Radha
Bhaskaran
Nirmala
Valsala
Yashoda
A. Badharudeen
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court