Damodara Nayak v. Vatsala Nayak — 1990 DIGILAW 236 (KER)

Judgment :- The defendant in O.S.No.34 of 1981 on the file of the Sub Court, Kasaragod is the appellant. The suit was for recovery of a sum of Rs. 40, 652.42 due to the plaintiffs by way of owelty charged on the plaint schedule property. 2. Vamana Naik, the husband of 1st plaintiff and father of plaintiffs 2 to 5 was one of the parties to a family partition ExtA1 dated 17-3-1961. Defendant was also a party to the partition. The plaint A schedule properties were B schedule properties in the said partition and they were allotted to the share of the defendant. C schedule properties in the partition were allotted to the plaintiffs' predecessor Vamana Naik, who died subsequently. The partition deed contained a stipulation that the defendant would pay two candies of areca by the Vishu of each year as owelty to the share of deceased Vamana Naik and a charge was created therefor on the plaint A schedule properties. Interest at 5 % per annum on the vahieof the defaulted supply of the areca is also provided for, in the partition deed. One Gowri Amma, paternal aunt of deceased Vamana Naik filed O.S.No.8 of 1965 challenging the partition of 1961 and claiming a share for herself. Vamana Naik and defendant were parties to the suit. Ext.B1 is the plaint in that suit and Ext. B2 is the written statement filed by defendants 4 and 6. A receiver was appointed as per the order dated 7-10-1972. A preliminary decree was passed. Ext.B4 is the preliminary decree and Ext.BS is the judgment. The court ordered fresh partition awarding a share to Gowri Amma. On appeal to this court, in A.S.No.647 of 1972, this court by its judgment Ext.B6 dated 10-3-1976 modified the preliminary decree passed by the trial court, holding that only items 1,7,31,32,36 to 38 and 47 to 49 of plaint B schedule were available for partition. Ext.B7 is the decree of this court. According to plaintiff, though this court confirmed the share awarded to Gowri Amma in the items, which were found to be partible, partition of 1961 was not otherwise disturbed. Defendant continued to be in possession of the plaint A schedule properties allotted to him and in the circumstances, the defendant was liable to pay owelty stipulated in the partition. According to plaintiff, though this court confirmed the share awarded to Gowri Amma in the items, which were found to be partible, partition of 1961 was not otherwise disturbed. Defendant continued to be in possession of the plaint A schedule properties allotted to him and in the circumstances, the defendant was liable to pay owelty stipulated in the partition. A receiver was appointed in O.S.No. 8 of 1965 and he was in management of the property from 21-9-1974 to 13-10-1978. No claim for owelty was claimed for the above period. After the discharge of the Receiver, defendant got possession of A schedule property and continued to be in possession and therefore he was bound to pay owelty claimed. There is also an alternative prayer in the plaint that if by any chance the court is of the view that the partition deed of 1961 is not in force, plaintiffs may be allowed proportionate share of profits from the defendant who is in possession. 3. In the written statement filed by the defendant, it was contended that the partition of 1961 was set aside by the decree in O.S.No.8 of 1965 which was confirmed by this court in A.S.No.647 of 1972 and therefore, plaintiffs cannot invoke the stipulation to pay owelty to Vamana Naik provided in the partition deed evidenced by Ext.A1. He also averred that some of the properties allotted to the defendant under the partition were lost on account of the Kerala Land Reforms Act and therefore he had no obligation to pay the owelty, as he had no income from the properties assigned to the tenants. 4. On a consideration of the evidence in the case, the court below found that shares allotted to the defendant had not been affected by the decree in O.S.No.8 of 1965 as modified by the High Court and that therefore the obligation to deliver two candies of areca every year by way of owelty did not cease to operate. The court below also found that the receiver was in possession only from 21-8-1974 to 13-10-1978 and not from 7-10-1972 as contended by the defendant. 5. In this appeal, learned counsel for the appellant has challenged the findings of the court below. The court below also found that the receiver was in possession only from 21-8-1974 to 13-10-1978 and not from 7-10-1972 as contended by the defendant. 5. In this appeal, learned counsel for the appellant has challenged the findings of the court below. He contended that some of the properties allotted to him were assigned to tenants under S.72 B of Kerala Land Reforms Act, that he was not in possession of the entire lands allotted to him, that owelty was provided for on the basis that income from the en tire properties allotted to him would be available to him, but the legislature intervened and he ceased to receive income from the properties assigned to tenants and that this circumstance has to be taken into account in determining the question whether he was liable to pay owelty or to what extent, if any, is his liability in regard to owelty. The lower court took the view that it was the position on the date of partition evidenced by Ext.A1 that had to be looked into, in considering the question of liability. It held that the fact that subsequently legislature intervened and some of the properties were purchased by tenants would not affect his liability to pay the owelty fixed. 6. I shall first deal with the contention raised by the learned counsel for the appellant that since certain properties included in his share were purchased by the cultivating tenants, the other sharers are liable to compensate him and that therefore he was not liable to pay the amount stipulated by way of owelty in Ext.A1 partition. In support of his contention that some properties allotted to the defendant in partition were lost, learned counsel for the appellant relied on Ext.B14. It is seen from Ext.B14 that a total extent of 5 acres and 5 cents in R.S.Nos. 736/1,736/2,736/5,741/3,741/4 and 736/3 was ordered to be assigned to a tenant by name Chanda Patalia under Ext.B14 by the Land Tribunal as per its order dated 17-12-1973. 7. Learned counsel for the appellant heavily relied on the decision of the Calcutta High Court in Debabrate Ghose v. Jnanendra N. Ghose and others (AIR 1960 Cal. 381). 736/1,736/2,736/5,741/3,741/4 and 736/3 was ordered to be assigned to a tenant by name Chanda Patalia under Ext.B14 by the Land Tribunal as per its order dated 17-12-1973. 7. Learned counsel for the appellant heavily relied on the decision of the Calcutta High Court in Debabrate Ghose v. Jnanendra N. Ghose and others (AIR 1960 Cal. 381). In that case, the Calcutta High Court held that in all cases of partition, there is an implied indemnity given by each co-sharer to the others, that law implies that the parties while effecting the partition had in contemplation the fact that the title in some of them might not be perfect and a co-sharer to whom such a property is allotted may subsequently suffer loss by reason of his title being displaced by one having a superior title and that if the possibility of the title in the property being defective was within the Contemplation of the parties there is no mistake as to title so as to nullify partition, but the same is liable to be reopened on equitable consideration and a co-sharer whose title to the property allotted in partition has been displaced by the superior title has still a claim to be reimbursed for the loss of the property allotted to him against the other co-sharers. Similarly in Maruti v. Rama (ILR 21 Bombay 333), the Bombay High Court took the view that in a case where the parties to a partition under a bona fide mistake included in the division certain property which did not belong to the family, but was held in mortgage from a third person who subsequently brought a suit for redemption and recovered it from the party to whom it had beeiMillotted at the partition, the party who had lost his share was entitled to claim a re-partition. In Ganeshi Lai v. Babu Lai (ILR 40 All. In Ganeshi Lai v. Babu Lai (ILR 40 All. 374), the Allahabad High Court also held that in a case where one of the two brothers sued the other for partition of what they alleged to be the joint family property and the suit was compromised and a partition was effected which was embodied in a decree, but subsequently a cousin of the parties established by suit his title to one half of* the family property which had been already divided between the two brothers, it was open to the two brothers at any rate to ask the court to adjust as between them the loss occasioned by the success of their cousin's suit. In Balaji Ganoba and another v. Annapurnabai (AIR 1952 Nagpur 2), it was held that though a partition once made cannot be reopened except on the ground of fraud, if a property is wrongly included and subsequently passes out of the possession of a sharer, he is entitled to compensation out of the shares of the other parties and the partition may, if necessary, be reopened for readjustment of shares, and the parties having divided the property under a mistake of their rights to it are bound to bear the loss proportionately and such a claim is based on equitable principles. In Medam Seshanna Chetty v. Medam Sankaranarayana Chetty (AIR 1958 AP 695), Andhra Pradesh High Court held that apart from the principle of Hindu Law, equity also requires that all the parties to the partition should bear equally the loss arising from certain debts being found irrecoverable and where all the parties to the partition, believing that certain debts due would not be met with the plea of limitation by the debtor, allotted them to one of themselves, but later on the debtors refused to pay pleading that the debts were time-barred, the party to whom the debts were allotted could either demand that the other parties to the partition should reimburse him the proportionate amount of the loss because there was an implied contract to have the partition re-opened on the ground of mutual mistake. 8. 8. The principle enunciated in all these decisions is that if any property which is not partible is included in the partition deed and any of the allot tees sustains loss of any of the properties allotted to him by reason of the fact that they were not partible or the properties allotted to any sharer are lost to him by reason of a claim of a superior title holder, the other parties are bound to compensate such allottees, who suffered loss and to that extent the partition can be reopened. This is based on equitable principle and an implied indemnity to compensate the person who suffers and is certainly a sound principle. The question that has to be considered is how far this principle is applicable to the facts of the case. 9. Learned counsel for the plaintiffs/respondents, contended that there was no tenancy in respect of 5 acres and 5 cents as alleged and no loss was sustained by the defendant. He invited my attention to para 42 of Ext.BS, the judgment in O.S. No. 8 of 1965, which was the suit filed by GowriAmma for re-partition. The defendant herein was the 3rd defendant in that suit. The defendant set up a plea of tenancy in favour of Chanda Patalia in that suit. It was found that the tenancy set up in favour of Chanda Patalia was not true. As a matter of fact, the defendant as DW1 stated in that suit that it was only in 1965 that he granted a lease in favour of Chanda Patalia. It is the same Chanda Patalia who filed application for purchase before the Land Tribunal and obtained Ext.B 14 order. It is interesting to note that it was the defendant himself who raised the plea of tenancy in favour of Chanda Patalia in the partition suit filed by Gowri Amma, which was found against. Therefore, it is not a case, where the defendant was not aware of the claim of alleged tenancy which he himself set up in favour of Chanda patalia in the suit filed by Gowri Amma. From Ext.A1 partition, it is found that the plaintiff was allotted 42 acres and 41 cents of property and each one of the other sharers were allotted only 6 acres 14 cents, 9 acres 79 cents, 11 acres 31 cents, 7 acres 52 cents and 2 acres and "42 cents, respectively. From Ext.A1 partition, it is found that the plaintiff was allotted 42 acres and 41 cents of property and each one of the other sharers were allotted only 6 acres 14 cents, 9 acres 79 cents, 11 acres 31 cents, 7 acres 52 cents and 2 acres and "42 cents, respectively. Vamana Naik, husband of 1st plaintiff and father of plaintiffs 2 to 5 was allotted C schedule property with an extent of 9 acres 79 cents. It is only reasonable to think that the allotment was made taking into account the relative value, advantages, disadvantages and the tenancies outstanding on properties and that disproportionately large extent was allotted to the defendant taking into account all these aspects. 10. Learned counsel for the appellant contended that in the application for assignment of the rights of landlord and intermediary filed by Chanda Patalia, the other members also were parties. But it cannot be forgotten that the property was allotted only to the defendant in the partition and others cannot be expected to defend or oppose the application filed by Chanda Patalia. Whatever that be, having regard to the disproportionately large extent of properties allotted to the share of the defendant, one cannot escape from the conclusion that the parties have taken into account all aspects when allotment was made. The counsel for the appellant was not able to offer any explanation for allotment of disproportionately larger area to the defendant. In the circumstances, I do not think that the appellant can successfully oppose the claim of the plaintiffs on the ground that out of 42 acres and 41 cents, plaintiffs lost 5 acres and Scents of land. Defendant will be en titled to the purchase price of this item. In any event, even assuming without conceding that the defendant is entitled to be compensated, he should be compensated by all sharers and not the plaintiffs alone. In the circumstances, it is not open to the appellant to defend the suit on the ground that one item of the property was purchased by a tenant and there should be a consequent reduction in his liability to pay the owelty to the plaintiffs. His remedy, if any, is only to file a suit for reopening the partition or readjustment imp leading all the sharers and not to refuse to pay the owelty, which he is bound to pay under the partition Ext. A1. His remedy, if any, is only to file a suit for reopening the partition or readjustment imp leading all the sharers and not to refuse to pay the owelty, which he is bound to pay under the partition Ext. A1. 11. Another contention raised by the learned counsel for the appellant is that after Ext.A1 partition, Gowri Amma filed a suit O.S. No. 8 of 1965 and it was held therein that she is entitled to share in items 1,7,31,32,36, to 38,47 and 49 of plaint B schedule in that suit and since Ext.A1 proceeded on the basis that she had no right in the above items, the entire partition has to be reopened. In the first place, this is not a suit filed by the defendant for reopening the partition. None of the properties allotted to the defendant was allotted to the plaintiff in O.S. No. 8 of 1965. In the final decree, only item 313/1A was allotted to Gowri Amma. That property has not been allotted to the defendant. Therefore, the defendant has not suffered any loss on account of the final decree passed in O.S. No. 8 of 1965. That final decree allotting only item 313/ 1A to Gowri Amma was upheld by me in A.S. Nos. 118 & 198 of 1981. The defendant is in possession of all the items allotted to him. In the circumstances, there is no substance in the contention of the learned counsel that because of the subsequent partition in O.S. No. 8 of 1965, there is a reduction in his share. It is only the sharer to whom item No. 313/1A was allotted who is really aggrieved. Neither the defendant, nor any other sharer has filed a suit for reopening the partition. In these circumstances, in a suit filed by the plaintiffs for realisation of owelty, due from the defendant by reason of adjustment of rights, between the parties in the partition, it is not open to the defendant to raise a contention that he is not bound to pay owelty by reason of the judgment and final decree passed in O.S. No. 8 of 1965, for the obvious reason, plaintiff has not suffered any loss on that score. I do not find any substance in the contention of learned counsel for the appellant on this aspect. 12. I do not find any substance in the contention of learned counsel for the appellant on this aspect. 12. Learned counsel for the appellant next contented that the liability to pay owelty is opposed to rule against perpetuity and therefore such a liability cannot be enforced. Here also, it has to be mentioned that it is in contemplation of continuous liability to pay owelty, larger extent was allotted to the defendant. The defendant wanted to enjoy the large extent allotted to him and at the same time to contend that this obligation will be opposed to rule against perpetuity. Here also, the remedy of the defendant, if any, is to seek for a reopening of the partition and not to ask for reduction in the liability to pay the owelty due to plaintiffs. 13. It was finally contended that the decree provided payment of owelty even during the period when receiver appointed in O.S. No. 8 of 1965 was in possession. Plaintiffs have not claimed any owelty during the period when receiver was in possession. However, there is dispute as to when exactly the receiver took possession. The appellant contended that the receiver took possession as per Ext.B8 order, which is dated 7-10-72. In para 7 of the plaint, plaintiffs averred that the receiver was in possession only during the period from 21-8-1974 to 13-10-1978 and this statement was not denied or controverter in the written statement. No other evidence has been adduced by the defendant to show that really the receiver took possession prior to 21-8-1974. In the circumstances, the court below was justified in holding that the period during which the receiver was in possession was from 21-8-1974 to 13-10-1978. The lower court has exempted the defendant from the liability of payment of owelty for the above period. In the result, there is no merit in the appeal and it is accordingly dismissed. However, there will be no order as to costs.