Achamma v. Ummaya — 1998 DIGILAW 554 (KER)

Judgment :- P.K. Balasubramanyan, J. These two Second Appeals arise from the final decree passed in O.S.742 of 1968 on the file of the Munsiff s Court of Tellicherry. Defendants 25 to 40 are the appellants in S. A. 216 of 1990 and respondent No. 49 in the application for the passing of the final decree claiming under or through defendant No. 27 in the suit is the appellant in S. A. 748 of 1992. By the preliminary decree passed two items of properties that were scheduled to the plaint were directed to be into 50 shares. The plaintiff was allotted 8 shares. One share to defendant No. 1, 24 shares to defendants 2 to 23 and 41 and 42 in a group. 14 shares to defendants 27 to 40 in a group were allotted. One share each was allotted to defendants 25 and 26. The one share due to defendant No. 24 was allotted to the legal heirs of defendant No. 24. During the course of the proceedings for the passing of the final decree there was a dispute about the allotment of the house in which the family was residing. Defendants 27 to 40 claimed allotment on the ground that defendant No. 27 was residing in that building. Of course it is pointed out on behalf of the contesting respondents that in the objection to the application for the final decree there was no such claim for allotment of the house by defendants 27 to 40. The Commissioner proposed an allotment of the house shown as plot B in Ms plan to the share of defendants 2 to 23 and 41 and 42 on the basis that they were the major sharers. Defendants 2 to 23, 41 and 42 appeared to have been unwilling to have the building allotted to their share and they wanted the building be sold. An application I. A. 1296 of 1976 was filed by defendants 2 to 23 and 41 and 42 seeking a review of that order. Ultimately what we find is that during the course of the final decree the building was allotted to the share of defendants 2 to 23 and 41 and 42. The appeal filed by defendants 27 to 40 challenging the said allotment of the house to defendants 2 to 23 and 41 and 42 was dismissed by the lower appellate court. Ultimately what we find is that during the course of the final decree the building was allotted to the share of defendants 2 to 23 and 41 and 42. The appeal filed by defendants 27 to 40 challenging the said allotment of the house to defendants 2 to 23 and 41 and 42 was dismissed by the lower appellate court. It is feeling aggrieved by that dismissal that defendants 27 to 40 have tiled this Second Appeal. It is contended on their behalf that the building ought to have been allotted to their share especially in the light of the view adopted by defendants 2 to 23 and 41 and 42 that they did not want an allotment of the building to them. It appears that at a later stage defendants 25 and 26 also supported the claim of defendants 27 to 40 and sought a joint allotment of the house to them as well along with defendants 27 to 40. 2. Learned counsel for the appellants in S. A. 216 of 1990 pointed out that in support of her claim for allotment defendant No. 27 had got herself examined as RW1 and it was admitted on all hands that she was residing in the building along with her children. The courts below did not accept that part of the case of defendant No. 27 since in her cross-examination she stated that her sons were residing in the houses of her respective daughters-in-law and her daughters were also residing with their husbands. The courts below inferred from those answers that defendant No. 27 alone was residing in the building belonging to the family and not all her children as claimed by her. Taking note of her status as a senior female member of the family, the courts below even while allotting the building to the major sharers, defendants 2 to 23 and 41 and 42 conferred a right on defendant No. 27 to reside in the building for her life. Defendants 2 to 23 and 41 and 42 did not object to that right given to defendant No. 27 and even before me, their counsel submitted that they had no objection to defendant No. 27 residing in the house during her lifetime. 3. Defendants 2 to 23 and 41 and 42 did not object to that right given to defendant No. 27 and even before me, their counsel submitted that they had no objection to defendant No. 27 residing in the house during her lifetime. 3. Learned counsel for the appellants in S. A. 216 of 1990 contended that even if defendants 2 to 23 and 41 and 42 are the major sharers, in view of the residence of defendant No. 27 in the family house along with her children, defendant No. 27 was entitled to preference in the matter of allotment. Counsel relied on the decision of the Supreme Court in Badri Narain v. Nil Rauin (AIR 1978 SC 845) in support of his contention. Counsel further pointed out that defendants 2 to 23 and 41 and 42 intact wanted the house sold in public auction and did not want its allotment and hence this was a case in which it would be just and proper to allot the building in question to the share of defendant No. 27 and her children. Learned counsel for the contesting respondents submitted that as the major share holders, they were entitled to seek an allotment of the building. Even though they might have claimed that the building must be sold in auction and the proceeds divided, that would not disable them from claiming the allotment of the building in case the court decided that the building had to be allotted to one such sharer or the other. Counsel pointed out that there was a direction in the preliminary decree to allot item No. 3 as far as possible to the share of defendant No. 27 since she had granted a lease of that item to the appellant in S. A. 748 of 1992 and in the light of that direction in the preliminary decree which was binding on defendant No. 27, the building in the property cannot be allotted to the share of defendant No. 27 without going against the equity in favour of the transferee directed in the preliminary decree. Counsel also pointed out that it cannot be said that the courts below have committed any substantial error of law in accepting the proposal of the Commissioner to allot the building to the major set of sharers so as to warrant interference under S.100 of the Code of Civil Procedure. 4. Counsel also pointed out that it cannot be said that the courts below have committed any substantial error of law in accepting the proposal of the Commissioner to allot the building to the major set of sharers so as to warrant interference under S.100 of the Code of Civil Procedure. 4. Before answering the aspects projected in this Second Appeal finally, I think that it would be appropriate to first consider S. A. 748 of 1992 filed by respondent No. 49 in the application for the final decree, the transferee from defendant No. 27. 5. In his appeal, respondent No. 49 in the application for the passing of the final decree has put forward a claim for value of improvements. His claim is based on lease said to have been granted in his favour by defendant No. 27 in the suit. The appellant is the son-in-law of defendant No. 27. The lease related to plaint schedule item No. 3. The lease is said to have been granted under Ext. B22 dated 15.6.1958. At the stage of the preliminary decree in the suit defendant No. 27 raised a contention that the appellant was a necessary party to the suit since he was a person who was holding plaint schedule item No. 3 on the terms of a registered lease deed as granted by her. The case of defendant No. 27 was that she was the exclusive owner of plaint schedule item No. 3 since it was a Sreedhanam grant to her and the said item was not avai liable for partition. The court held that defendant No. 27 was only a limited interest holder and hence was not entitled to claim that the property was not available for partition. The court held that the moment the properties are ordered to be partitioned, the limited interest of defendant No. 27 will come to an end. The court further held that the present appellant being only a person who claims to be a lessee under a limited interest holder was not entitled to any right to hold onto the property since the lease granted by defendant No. 27 was not binding on the other members of the family. The court therefore, held that plaint schedule item No. 3 had to be partitioned as if the property were in the direct possession of the family. The court therefore, held that plaint schedule item No. 3 had to be partitioned as if the property were in the direct possession of the family. But a direction was made that since defendant No. 27 had leased out the property to a stranger to the suit, at the time of division by metes and bounds, that item will be allotted to the share of defendant No. 27 as far as possible. 6. During the course of the final decree, the appellant filed I. A. 1008 of 1981 for getting himself impleaded in the proceedings for the passing of the final decree. That application was allowed and the appellant was impleaded as respondent No. 49 in the final decree application. The appellant then filed I.A. 150 of 1983 praying for the reopening of the preliminary decree. The trial court dismissed that application filed by the appellant. The appellant challenged that order in C.R.P. 2494 of 1985 before this court. By order dated. 3,2.1986, this Court dismissed that revision petition. This Court affirmed the order of the trial court but directed that the question regarding the entitlement of the appellant to claim value of improvements should be considered in the proceedings for the passing of the final decree. This Court therefore, directed the trial court that while passing the final decree that court should consider the question of entitlement of the appellant to claim value of improvements and if the appellant is found entitled to value of improvements, the quantum thereof. It appears that the claim put forward by the appellant for getting the decree re-opened before the court below and in challenging that order before this court was that he was entitled to fixity of tenure in respect of plaint schedule item No. 3. That claim stood negatived by the dismissal of I A. 150 of 1983 and C.R.P. 2494 of 1985. The appellant challenged the order of this Court in the Supreme Court by way of Petition for Special Leave (Civil) No, 7773 of 1986. That petition for Special Leave was dismissed observing that the appellant was at liberty to raise such objections as may be permitted under law, before the court dealing with the application for the passing of the final decree. That petition for Special Leave was dismissed observing that the appellant was at liberty to raise such objections as may be permitted under law, before the court dealing with the application for the passing of the final decree. Pursuant to this order, the appellant raised only the question of his ri ght to get value of improvements alleged to have been effected by him in plaint schedule item No. 3. He sought and obtained an order appointing a Commissioner to assess the value of improvements and the Commissioner filed a report stating that the value would come to Rs. 75,973/-. Before the trial court, the question that was agitated on behalf of the appellant was that he was a tenant within the meaning of the Kerala Compensation for Tenants Improvements Act, 1958. This claim of the appellant was opposed by the contesting parties by pointing out that the appellant. was only a tenant under a limited interest holder and consequently, could not be considered to be a tenant within the meaning of that Act. A decision of the Division Bench of this Court in Ammukutty Atnma v. Viswanatha Iyer (1986 KLT 905) was relied on. In that decision, a Division Bench of this Court held that a transferee from a life tenant is not a tenant within the meaning of the Kerala Compensation for Tenants Improvements Act and is not entitled to value of improvements. Under general law also such a plea cannot be put forward by persons claim in] value of improvements against the paramount title holder. The trial court in the light c this and in the light of the finding in the preliminary decree that defendant No. 2 was only a limited interest holder came to the conclusion that the appellant was not tenant within the meaning of the Kerala Compensation for Tenants Improvements A and was hence not entitled to value of improvements under that Act. The trial coi further held that the appellant could not be awarded any compensation for t improvements effected by him subsequent to the suit for partition. The trial col therefore, held that the appellant would be entitled on equitable principle to value improvements of Rs. 4,450/- being the value of improvements effected prior to institution of the suit and awarded that sum as compensation for improvements. This adjudication by the trial court was affirmed by the lower appellate court. The trial col therefore, held that the appellant would be entitled on equitable principle to value improvements of Rs. 4,450/- being the value of improvements effected prior to institution of the suit and awarded that sum as compensation for improvements. This adjudication by the trial court was affirmed by the lower appellate court. I may notice here that before the lower appellate court the finding by the trial court that the appellant was not entitled to value of improvements in terms of the Kerala Compensation for Tenants Improvements Act was not questioned. This is what the lower appellate court has observed in its judgment. "So it was held by the lower court that the appellant being not a tenant is not entitled to claim the value of improvements against the paramount title holders. The learned counsel for the appellant has not challenged the said finding of the lower court before this Court. No argument also has been advanced by the learned counsel for the appellant regarding this fact inspite of the contentions raised in the appeal memorandum." 7. The decision in Ammukutty Amma v. Viswanatha Iyer (1986 KLT 905) relied on by the courts below to hold that the appellant is not entitled to value of improvements in terms of the Kerala Compensation for Tenants Improvements Act and under general law was challenged before the Supreme Court by way of Petition for Special Leave to Appeal (Civil) No. 1678 of 1987. The Petition for Special Leave was dismissed after healing both sides by the Supreme Court. This is clear from the decision of the Division Bench in Varadaraja Iyer v. Ammiikutty Amma (1997 (2) KLT 145). The ratio of the decision relied on by the courts below thus stands affirmed by the Supreme Court. In the decision in Ammukutty Amma v. Viswanatha Iyer (1986 KLT 905) a Division Bench of this Court referred to the earlier decisions of this Court in Abdul Rahiman v. Kiinhan (1963 KLT 567), Narayana Filial v. Gomathy Amma (1965 KLT 612), Kochunni Kartha v. Balaraman (1966 KLT 719 (DB)) and Vareed v. P.C. George (AIR 1971 Kerala 31 (DB)) and following the said decision took the view that the transferee from a life tenant was not a tenant within the meaning of the Kerala Compensation for Tenants Improvements Act. Thus as far as this Court is concerned, it has to be held on the authority of the decisions above referred to that the appellant is not a tenant within the meaning of the Kerala Compensation for Tenants Improvements Act. 8. Learned counsel for the appellant relied on the decision in Angusty Devasia v. Haridasan Nair (1998 (2) KLT 6 (FB) = ILR 1998 (3) Kerala 129 (FB)) to contend mat the ratio of the decision in Ammukutty Amma v. Viswanatha Iyer (1986 KLT 905) cannot be accepted. According to counsel, me Full Bench has held that any person who has effected improvements in the property of another would come within the definition of a tenant under the Compensation for Tenants Improvements Act. But on going through the decision in Augusty Devasia v. Haridasan Nair (1998 (2) KLT 6 (FB) = ILR 1998 (3) Kerala 129 (FB)) I am not in a position to agree. That was a case where the question whether a life tenant or a transferee from a life tenant would come within the definition of a tenant under the Kerala Compensation for Tenants Improvements Act, was not involved. That was a case where the question was whether a transferee from the mother of the minors acting on her own behalf and on behalf of the minors, which is found to be voidable at the instance of the minors, would be entitled to value of improvements under the Kerala Compensation for Tenants Improvements Act. The contention that was raised was that since the transaction by the mother was void and not merely voidable, the transferee would not be entitled to value of improvements in the light of the decision in Moideenkutty v. Subhadra (1966 KLT 1125). What was projected before the Full Bench was the conceived divergence of views in an earlier decision of the Division Bench in Veerasikku Gowider v. Korah Kurian (1960 KLT 213) and the decision in Moideenkutty. The Full Bench referring to the decision in Moideenkutty stated that the facts of that case were entirely different. What was projected before the Full Bench was the conceived divergence of views in an earlier decision of the Division Bench in Veerasikku Gowider v. Korah Kurian (1960 KLT 213) and the decision in Moideenkutty. The Full Bench referring to the decision in Moideenkutty stated that the facts of that case were entirely different. After referring to the said facts, the court noticed that that was a case where the assignee assumed for himself that the property was assigned to him by the father 11 who was the owner of the property whereas the owner was the daughter and under such circumstances, the Division Bench took the view that when a person like the transferee chooses to take a transaction from a person who has no title to it whatsoever' he cannot be considered to be a person who has made any purchase whatsoever and therefore, he would not come within the definition of the expression 'tenant' under S.2(d)(iii) of the Kerala Compensation for Tenants Improvements Act, Thereafter, the Full Bench stated that the Full Bench was in respectful agreement with the view in Veerasikku Gounder's case. The Full Bench stated that whatever be the reason for avoiding a sale deed, whether as a document which is voidable at the instance of one of the parties or as a document which was inherently void due to any defect in the title or lack of title at all of the transferror or due to any other vitiating factor like the one that was present in that case, the transferee would be a person who had come into possession of the land belonging to another pursuant to the transaction. While making improvements thereon whether he was labouring under a bonafide belief that he is entitled to do so, is a matter to be decided on the facts of each case. While deciding that issue, the reasons for avoiding the sale deed either as a void one or as a voidable one may be relevant. But it cannot be held that in all cases where a transferee who finds out later that the transferor had no title whatsoever to pass on to him under the document will not be entitled to claim compensation for value of improvements as a tenant coming under clause (iii). But it cannot be held that in all cases where a transferee who finds out later that the transferor had no title whatsoever to pass on to him under the document will not be entitled to claim compensation for value of improvements as a tenant coming under clause (iii). With respect, it appears to me that the Full Bench has only stated that there is no absolute rule that a transferee under a void document would not be entitled to value of improvements under the Compensation for Tenants Improvements Act whatever be the circumstances under which he took the assignment. It is not necessary to consider whether this view requires reconsideration as canvassed for by counsel for the respondents in view of the fact that the question involved in this case is not one that was decided by the Full Bench or dealt with by the Full Bench. The consistent decision of this Court that a life tenant or a transferee from a life tenant would not be a tenant within the meaning of the Kerala Compensation for Tenants Improvements Act and would not be entitled to value of improvements under that Act is in no way affected or intended to be affected by the decision of the Full Bench. The argument based on the decision of the Full Bench in Angusty Devasia v. Haridasan Nair (1998 (2) KLT 6 (FB) = ILR 1998 (3) Kerala 129 (FB)) has therefore, to be rejected. I may with respect point out that the said Full Bench has also not decided that in every case a transferee under a void document is automatically entitled to claim the status of a tenant under the Compensation for Tenants Improvements Act. The Full Bench has clearly laid down that it will depend upon the facts of the case and the voidness of the transaction is a relevant aspect to be considered. 9. In the case on hand therefore the courts below were right in holding that in the light of the adjudication in the preliminary decree and the ratio of the decision in Ammukutty Amma v. Viswanatha Iyer (1986 KLT 905), the appellant is not a tenant entitled to value of improvements under the Compensation for Tenants Improvements Act. The finding in that behalf cannot be said to suffer from any substantial error of law warranting interference by this Court. 10. The finding in that behalf cannot be said to suffer from any substantial error of law warranting interference by this Court. 10. In equity, the court which passed the final decree has directed that compensation for improvements effected prior to the date of the filing of the suit may be paid to the appellant even though the Kerala Compensation for Tenants Improvements Act has no application. The direction in the preliminary decree that as far as possible item No. 3 claimed by the appellant should be allotted to the share of defendant No. 27 his transferror has also been carried out in the final decree. Though counsel for the respondents attempted to argue that even the award of value of improvements now done by the courts below suffers from an illegality and could be corrected by this Court, in exercise of power under O. XLIR. 3 3 of the Code of Civil Procedure by holding that the appellant is not entitled to any value of improvements at all. I am not inclined to accept that plea. Though there might be some force in that contention raised on behalf of the respondents, considering the circumstances as a whole, I do not think it necessary to interfere with that part of the decree passed by the courts below especially taking note of the fact that the contesting defendants did not challenge that part of the decree passed by the trial court before the lower appellate court or before this court by way of Memorandum of Cross-Objections. Possibly, that award can be justified on the basis of incontrovertible benefit. The appeal filed by respondent No. 49 in the application for the passing of the final decree, has therefore, only to be dismissed. 11. I have also a doubt whether the appeal A.S.25 of 1990 subsequently filed by respondent No. 49 could have been entertained on merits by the lower appellate court. Respondent No. 49 was a party to the appeal A.S.141 of 1987 filed by defendants 27 to 40 before the lower appellate court. By dismissing that appeal, the lower appellate court had confirmed the final decree passed by the trial court which included the confirmation of the value of improvements to be awarded to respondent No. 49 in the application for the final decree. By dismissing that appeal, the lower appellate court had confirmed the final decree passed by the trial court which included the confirmation of the value of improvements to be awarded to respondent No. 49 in the application for the final decree. It is after permitting the decree in O.S.742 of 1968 to become final, that respondent No. 49 had chosen to represent and pursue his appeal A.S.25 of 1990 before the lower appellate court. How far at that stage the lower appellate court could have upheld his contention in the face of confirming the final decree passed by the trial court by the dismissal of A.S.141 of 1987 is a moot question. But in the view I have taken 1 do not think that it is necessary to pronounce on that aspect finally. 12. Now comingbacktoS.A.216ofl990,ithasto be noted that the equity provided for in the preliminary decree regarding the allotment of item No. 3 to the share of defendant No. 27 as far as possible has to be worked out. It has been found that the transferee from defendant No. 27 is not entitled to anything other than the compensation for improvements effected by him prior to the suit as quantified by the trial court. Under such circumstances to interfere with the allotment of the residential building now made and to direct its allotment to the share of defendant No. 27 and her children would work considerable hardship on the appellant in S. A. 748 of 1992 since in that circumstance, he would also be deprived of the benefit of the direction in the preliminary decree to allot as far as possible, plaint schedule item No. 3 to the share of defendant No. 27. As pointed out by learned counsel for the contesting respondents, the appellants in S.A, 748 of 1992 had not claimed an allotment of the building as such in their objection) to the application for the final decree. Of course, that does not preclude them from making such a claim at a later stage. As pointed out by learned counsel for the contesting respondents, the appellants in S.A, 748 of 1992 had not claimed an allotment of the building as such in their objection) to the application for the final decree. Of course, that does not preclude them from making such a claim at a later stage. But the courts below have thought that in the light of the equitable direction in the preliminary decree to find the share of defendant No. 27 from item No. 3 so as to protect the rights of the appellant in S.A. 748 of 1992 as far as possible, it would be appropriate to allot the building to the set of sharers who hold the largest share among the various groups. It cannot be said that in so doing the courts below have gone against the terms of the preliminary decree. It cannot also be said that they have committed a substantial error of law warranting interference by this Court in Second Appeal. In fact, the circumstances taken as a whole, would show that the allotment made now would be just and equitable. It cannot also be forgotten that the suit commenced in the year 1968 and thirty years have elapsed since then. A direction to reconsider the question of allotment at this distance of time can only work injustice to the various sharers. This aspect also cannot be lost sight of while considering the claims of the appellants in S.A. 216 of 1990 for disturbing the allotments now made. Thus, I am satisfied that no interference is called for in S.A. 216 of 1990. In the light of the conclusions arrived at, the judgments and decrees of the lower appellate court have only to be confirmed. I therefore, confirm the judgments and decrees of the lower appellate court and dismiss these Second Appeals. In the circumstances of the case I make no order as to costs.