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2003 DIGILAW 677 (KER)

Annamkutty v. Raphel

2003-10-30

A.LEKSHMIKUTTY

body2003
Judgment :- Against the judgement and decree in O.S. No. 517 of 1989 on the file of the principal sub court , Ernakkulam , this appeal is filed by the plaintiffs. The plaintiffs and defendants 1 and 2 are the children of late ouseph and his wife Rosa. The first defendant passed away and his legal representatives were impleaded as additional defendants 4 to 9. The suit is filed for partition and separate possession of the plaint schedule property. The case of the plaintiffs is that late Ouseph , the father of the plaintiffs and defendants 1 and 2 was the varamdar of the plaint schedule property . Their father Ouseph died on 21. 10. 1960 and on his death, his wife Rosa was cultivating the paddy field as legal representative of the deceased. After the commencement of the Land Reforms act the right , title and interest over the property was purchased by the mother in her name as per order in O.A. No.801 of 1970 of the Land Tribunal. The purchase certificate was obtained by the mother for and on behalf of the plaintiffs and defendants. Since the brothers are not amenable for the partition of property. The plaintiffs filed the suit. 2. The second defendant resisted the claim of the plaintiffs and contended that the plaintiffs have no right, title of interest over the property. As per the sale deed dated 19.3.1983 executed by Balakrishna Menon and Sankara Menon and the release deed dated 23.3.1983 executed by Thankam alias Narayani Amma, the 2nd defendant became the absolute owner of the property and it is in his possession and enjoyment. The plaintiff did not inherit any right in the schedule property. The purchase certificate obtained by the mother and first defendant will not affect the right of the second defendant. The suit is liable to be dismissed. 3. The first defendant filled a written statement contending that the plaintiffs are not entitled to get any share in the plaint schedule property. The plaintiffs are given away in marriage on payment of Sthreedhanam and ornaments. In 1960, they were governed by the Cochin Christian Succession Act. The plaintiffs who are married daughters are not entitled to get any share. In 1960 varam right was not heritable. Varamder had no possession of the land. So, on the death of Ouseph, plaintiffs did not inherit any property. In 1960, they were governed by the Cochin Christian Succession Act. The plaintiffs who are married daughters are not entitled to get any share. In 1960 varam right was not heritable. Varamder had no possession of the land. So, on the death of Ouseph, plaintiffs did not inherit any property. The first defendant was the varamdar of the plaint schedule property. He purvhased the jenm right through the Land Tribunal. In order to please his aged mother, her name was also included in the purchase certificate. She did not cultivate on varam. The plaintiffs have no right in the property and they have no possession also. Even if it is found that the plaintiffs have any right over the property is lost by adverse possession. The suit is liable to be dismissed. 4. Additional defendants 4, 8 and 9 filled a separate written statement raising similar contention as that of the first defendant. On the basis of the pleadings, the trial court framed 5 issues. On the side of the plaintiffs PWs. 1 to 3 were examined and Exts. A1 and A2 were marked. On the side of the defendants no evidence was adduced. The court below after trial dismissed the suit against which the plaintiffs filed this appeal. 5. During the pendency of the appeal, the first appellant died and his legal representative was impleaded as additional appellants 4 to 10. The second respondent also died and his legal representative was impleaded as additional respondent No.10. 6. The question to be considered is whether there is any reason to set aside the judgment and decree passed by the trial court. The case of the plaintiff is that the plaint schedule property originally belonged to their father late Ouseph as a varamdar. He died in 1960 and after his death the property devolved on his wife Rosa and children, the plaintiffs and defendants. After the death of Ouseph, their mother Rosa was cultivating the land on behalf of other legal heirs of deceased Ouseph. As per the plaintiff, they are entitled to get 3/6 shares over the plaint schedule property. The claim of the plaintiffs is denied by the contesting defendants. As per the contesting defendants, at the time of death, Ouseph had no partible or heritable right over the property. Ouseph was only a licensee and on his death, varam right came to an end. The claim of the plaintiffs is denied by the contesting defendants. As per the contesting defendants, at the time of death, Ouseph had no partible or heritable right over the property. Ouseph was only a licensee and on his death, varam right came to an end. Thereafter, the first defendant took the plaint schedule property on Varam arrangement and cultivated the Land. Subsequent to the coming into force of the Land Reforms Act, he had applied for assignment of land lord’s right and for pleasing his mother, her name was also included in the application filled for assignment. Thus patta was happened to be issued in the name of the mother Rosa and the first defendant. Therefore, neither the plaintiffs nor the other defendants have any right over the plaint schedule property, 7. Before commencement of the Kerala Land Reforms Act 1 of 1964, a Varamdar is only a licensee and had no possession of the land But after the commencement of the Kerala Land Reforms Act, a Varamdar is deemed to be a tenant and he cannot be evicted from the land. Admittedly, the original varamdar, Ouseph died in 1960. Hence, at the time of his death, the legal heirs have no heritable right over the property. If that be so, plaintiffs are not entitled to any right over the property. 8. As per Section 8 of the Kerala Land Reforms Act any person by virtue of the provisions of Section 6 of the Kerala Stay of Eviction Proceedings Act, 1957 was entitled to cultivate any nilam after the 11th day of April. 1957 and was cultivating the nilam at the commencement of this Act (that is; Act 1 of 1964) shall be deemed to be a tenant notwithstanding the expiry of the term fixed under the varam arrangement. Admittedly, on the date of commencement of Act 1 of 1964 Ouseph was no more and hence there is no question of any deemed tenancy in respect of the plaint schedule property to Ouseph in 1960. Plaintiffs’ case is that after that death of Ouseph, Rosa was cultivating the land on behalf of the plaintiffs and defendants. The first defendant denied the same. But patta was obtained in the joint name of late Rosa and late first defendant. Plaintiffs’ case is that after that death of Ouseph, Rosa was cultivating the land on behalf of the plaintiffs and defendants. The first defendant denied the same. But patta was obtained in the joint name of late Rosa and late first defendant. So, the contention that the first defendant alone was cultivating the land and the name of Rosa was included in the application to please her also cannot be accepted. Further, there is no evidence to show that the first defendant alone was cultivating the plaint schedule property as a varamdar. 9. Even though, the second defendant claimed absolute right over the property, he has not tendered any evidence. So, the court below has rightly found that the second defendant is not the absolute owner of the property. The plaintiffs gave oral evidence to the effect that late Ouseph was cultivating paddy field on varam arrangement till his death in 1960. As stated earlier, on the death of Ouseph, there was no heritable or partible right to plaintiffs and defendants. Plaintiffs and defendants 1 and 2 are the children of Ouseph and Rosa. The patta stands in the name of Rosa and first defendant. Since the patta is issued in the name of Rosa and first defendant each of them are entitled to ½ right over the property. The court below dismissed the suit only on the ground that the plaintiffs claim share as the legal heirs of Ouseph. But it is to be found that even if they are not entitled to get partition and separate possession as the legal heirs of late Ouseph, it cannot be forgotten that their mother was having one half right over the property. After her death, her one half right over the property devolved on her children including the plaintiffs and defendants 1 and 2 and the legal heirs of deceased sons who are defendants 4 to 9 in the plaint. So, plaintiffs are entitled to partition and separate possession of 3/5 shares over ½ right of their mother and the other half belonged to late first defendant. Third defendant is the son of the first defendant. Since he is no more, his legal representatives are entitled to half right over the plaint schedule besides ½ share of Rosa. So, plaintiffs are entitled to partition and separate possession of 3/5 shares over ½ right of their mother and the other half belonged to late first defendant. Third defendant is the son of the first defendant. Since he is no more, his legal representatives are entitled to half right over the plaint schedule besides ½ share of Rosa. Hence, the decree and judgment of the court below are set aside and a preliminary decree for partition is passed allowing the plaintiffs to partition and separate possession of their 3/5th share over ½ of the plaint schedule property by metes and bounds. The plaintiffs shall apply for passing of the final decree within three months. The appeal is partly allowed.