Ludina Pavanakumari
Vs Thankamma John (Dead) by LRS. & Ors.
JUDGEMENT
This appeals directed
against the judgment of the learned Single Judge of the Kerala High Court, who
allowed the second appeal preferred by the respondents, reversed the decree passed
by the lower appellate Court and restored the preliminary decree passed by the
trial Court for partition of the plaint schedule property. George Puthukkery
was granted Kuthakapattam right in respect of the suit property (land measuring
5.125 cents) comprised in survey Nos.8328 and 8329 situated in Quilon for a
fixed period of 12 years commencing from 20.10.1949. He is said to have made
some construction and lived with his two daughters, namely, Mariamma John and
Thankamma John (respondents herein) and son, Stephan George Puthukkery. George
Puthukkery died in 1958/1959 (in the judgment of the trial Court, the year of
death has been shown as1959 whereas in the judgment of the lower appellate
Court, the year of death has been shown as 1958). During his life time, George
Puthukkery married both the daughters. After the death of George Puthukkery,
the land remained in possession of his son, Stephan George Puthukkery, whose
daughter is the appellant. He paid tax and also raised construction after
obtaining permission from the municipality vide memo Ex.B-8 dated 11.12.1963 and
started residing in the building.
He also set up Marama
Chikitsalayam in the same year. Kuthakapattam right is said to have been given
to Stephan George Puthukkery over 22.875 cents land comprised in survey
Nos.8328 and 8329 including 5.125 cents in respect of which Kuthakapattam right
was given to his father in 1949. After 14years, the land was assigned to
Stephan George Puthukkery vide G.O.R t. No.853/77/RD dated 2.6.1977 issued by
the State Government under Rule 9(2) of the Kerala Government Land Assignment
Rules,1964. The respondents filed suit in the Court of Principal Munsiff, Quilon
(trial Court) for partition of 5.125 cents land by asserting that the plaint
schedule property belong to their father and after his death, they are entitled
to get1/3rdshareeach in accordance with the provisions of the Travancore Christian
Succession Act 1092. The respondents claimed that they had asked their brother
Stephan George Puthukkery, who was imploded as sole defendant in the suit to
effect partition but he declined to do so. They further prayed for restraining
the defendant from wasting or alienating the plaint schedule property. In the written
statement filed by him, the defendant disputed the claim of the respondents and
pleaded that he was in exclusive possession of 22.875 cents land including the
plaint schedule land, raised construction and was living with his family and also
running Marama Chikitsalayam. He further pleaded that both the respondents were
married 40/30 years ago and they were living with their husbands and that he
had got Kuthakapattam right over the property from the Government. During the
pendency of the suit, Stephan George Puthukkery executed settlement dated
30.5.1983 (Ex.B-12) in favour of the appellant.
The trial Court vide
its judgment dated 21.1.1984 decreed the suit and declared that the respondents
are entitled to 2/3rd share in the plaint schedule property. The trial Court
also restrained the defendant from committing any waste or obstructing the respondents
from enjoying the properties till the partition was effected. After the judgment
of the trial Court, Stephan George Puthukkery appears to have died and,
therefore, the appellant filed an appeal questioning the legality and
correctness of the judgment and decree of the trial Court. Along with the
appeal, she produced documents evidencing grant of Kuthakapattam right to her
father, Stephan George Puthukkery over 22.875 cents land. She also produced
patta issued by the Government and the settlement deed executed in her favour. The
respondents opposed the marking of the documents produced by the appellant by
contending that the same were neither referred to in the written statement nor produced
before the trial Court. Thereupon, the counsel for the appellant made a prayer
that the case be remanded to the trial Court for fresh disposal. The lower
appellate Court accepted his prayer, allowed the appeal, set aside the judgment
and decree of the trial Court and remanded the case for fresh disposal of the suit
filed by the respondents. In furtherance of the direction given by the lower
appellate Court, the trial Court re-evaluated the evidence produced by the parties,
referred to the assignment of 22.875 cents land to Stephen George Puthukkery and
held that the buildings were constructed on the plaint schedule property by the
defendant himself with his own funds and the respondents do not have any right
over the same.
Notwithstanding this,
the trial Court held that the plaint schedule property is identifiable as part of22.875
cents land covered by Ex.B-6 and the respondents are entitled to get 2/3rd
share in it. The trial Court also referred to the judgment of this Court in
Mary Roy v. State of Kerala 1986KLT 508= (1986)2 SCC209whereinit was held that Travancore
Christian Succession Act 1092 stood repealed with the extension of Indian Succession
Act, 1925 to the State of Travancore-Cochin by virtue of Section 3 of the Part
B States(Laws) Act, 1951 and proceeded to observe that the respondents are entitled
to share in the property of their father. The appellant challenged the judgment
and decree in AS No.87of 1989, which was allowed by the lower appellate Court
vide its judgment dated 27.11.1989. The lower appellate Court noted that tenure
of Kuthakapattam right given to George Puthukkery had come to an end on the
expiry of 12 years and as such the respondents were not entitled to their so
called share in the plaint schedule property. The lower appellate Court also referred
to the assignment of 22.875 cents land in favour of the defendant videEx.B-6 and
held that the respondents have no right to seek partition of the plaint schedule
property.
The High Court noted
that the question of law raised in thesecondappealcenteredaroundSection90 of the
Indian Trust Act, referred to the documents market Exts. A1, B6, B7 and held
that the trial Court was justified in decreeing the suit because in spite of
the permission granted by the lower appellate Court, the defendant Stephen
George Puthukkery did not amend the written statement to raise contentions
based on Exts.B6 and B7. However, the learned Single Judge did not frame any
specific substantial question of law as per the mandate of Section 100 of the Code
of Civil Procedure and allowed the second appeal by assuming that being the heirs
of George Puthukery, the respondents have a right to seek partition of the
property which was granted to their father as Kuthakapattam. We have heard
learned counsel for the parties and carefully scrutinised the records. In our
view, the impugned judgment is liable to be set aside only on the ground that
the learned Single Judge failed to notice that the tenure of Kuthakapattam
right given to George Puthukkery in 1949 had come to an end sometime in 1961
and as on the date of filing the suit the respondents did not have any tangible
right in the plaint schedule property.
The learned Single
Judge also did not pay due attention to the facts that after 1961 the land remained
in possession of Stephan George Puthukkery, who paid tax and constructed
building after obtaining permission from the municipality; that Kuthakapattam
right was given to Stephan George Puthukkery in respect of 22.875 cents land including
the plaint schedule property and in 1977 the same was assigned to him under
Rule 9(2) of the Kerala Government Land Assignment Rules, 1964 and thereby he
had become absolute owner of the entire property, which was transferred to the
appellant in1983. Admittedly, the respondents had not challenged the assignment
of land in favour of Stephen George Puthukkery. Therefore, they had no right to
claim partition of the plaint schedule property and the trial Court and the
High Court gravely erred in passing a decree in their favour. In the result, the
appeal is allowed, the impugned judgment is set aside and the one passed by the
lower appellate Court is restored. As a sequel to this, the suit filed by the
respondents is dismissed. The parties are left to bear their own costs.
...........................J.(
G.S.SINGHVI )
............................J.
( ASOK KUMAR GANGULY )
NEW
DELHI;
NOVEMBER
18, 2010.
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