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2017 DIGILAW 643 (KER)

MUHAMMED HAMSATH v. MAHAMMED BASHEER

2017-04-03

B.KEMAL PASHA

body2017
JUDGMENT : Challenging the concurrent findings entered by the Munsiff's Court, Chengannur in O.S.No.250 of 1997, followed by those of the Subordinate Judge's Court, Chengannur in A.S.No.198 of 2008, the defendants have come up with this second appeal. 2. The suit is one for partition. The trial court decreed the suit in terms of the plaint and passed a preliminary decree and judgment, thereby declaring 64/72 shares to the plaintiff and 8/72 shares to the 1st defendant, from the plaint schedule property. Aggrieved by the said judgment and decree, the defendants preferred A.S.No.198 of 2008 before the lower appellate court. The lower appellate court concurred with the findings entered by the trial court and dismissed the appeal. 3. The plaintiff is none other than the younger brother of the 1st defendant. The plaintiff, the 1st defendant, Abdul Majeed, Isha Beevi, Pathumma Kunju and Sainaba Beevi are the children of late Moideen Muhammad and Kunjumma. Moideen Muhammad died in the year 1123 M.E. and Kunjumma died on 25.03.1980. Late Moideen Muhammad had a brother named Moideen Marackar. Moideen Marackar has a son named Kathirukunju. Both Moideen Muhammad and Moideen Marackar are the children of late Moideen. The 2nd defendant is the son of 1st defendant. 4. The case of the plaintiff in short is that the plaint schedule property having an extent of half cent and viruvu (excess land) belonged to late Moideen Muhammad, who died intestate, whereby his wife Kunjumma and his aforesaid children were his legal heirs, who were entitled to the said property. Subsequently, the 1st defendant along with Pathumma Kunju and Sainaba Beevi had executed Exhibit-A2 sale deed in favour of their mother Kunjumma on 22.03.1956, thereby selling their shares over the plaint schedule property to Kunjumma. Kunjumma died intestate with regard to the said property, whereby the property devolved on the 1st defendant, the plaintiff, Abdul Majeed, Isha Beevi, Pathumma Kunju and Sainaba Beevi. 5. It is the case of the plaintiff that through Exhibit-A3 sale deed dated 19.05.1997, Abdul Majeed, Isha Beevi, Pathumma Kunju and Sainaba Beevi sold their shares over the plaint schedule property to the plaintiff. The remaining co-sharer is the 1st defendant alone. According to the plaintiff, on account of the execution of Exhibit-A3, he became entitled to 64/72 shares over the plaint schedule property. The 1st defendant is entitled to the remaining 8/72 shares. The remaining co-sharer is the 1st defendant alone. According to the plaintiff, on account of the execution of Exhibit-A3, he became entitled to 64/72 shares over the plaint schedule property. The 1st defendant is entitled to the remaining 8/72 shares. The request of the plaintiff for a partition and separate possession fell in deaf ears, and hence the suit. 6. The defendant contended that the plaint schedule property was the subject matter of Exhibit-B1 and subsequently, Exhibit-B5, whereby it came into the possession of Kathirukunju, who is the son of Moideen Marackar. According to the 1st defendant, he trespassed into the plaint schedule property and reduced the plaint schedule property along with some other properties into his possession and enjoyment to the exclusion of others. It is further contended that on account of the ouster, he became entitled to the plaint schedule property exclusively. 7. The 1st defendant claims adverse possession also. In short, the claim of the 1st defendant is that he is a rank trespasser into the property and he perfected his possession through adverse possession and limitation and also ouster. This Court has admitted this second appeal on the following questions of law: "(i) Were not the courts below wrong in granting a decree without getting the property identified with reference to the extent of the properties involved in the suit on the basis of a comprehensive survey plan when the contesting parties seriously dispute the identity and extent of the properties in view of the ratio laid down by this Court in 1972 Kerala High Court Notes Page 263 and 2011 (4) KHC 847? (ii) Whether the courts below are justified in granting a decree on the basis of the suit documents relied on by the plaintiff (Exts.A1 to A3) wherein an "otty" transaction referred to in those documents de hors any evidence as to the particulars of the purported "otty" transaction? (iii) Whether there was a misconstruction of Exts.B1 to B5 and whether it led to a wrong conclusion? (iv) Whether the Agrarian Relations Act IV of 1961 which came into force on 15.2.1961 had any clout in relation to the title of the appellants regarding the subject matter on the basis of Exts.B1 to B5?" 8. Heard the learned counsel for the appellants and the learned counsel for the respondent. 9. (iv) Whether the Agrarian Relations Act IV of 1961 which came into force on 15.2.1961 had any clout in relation to the title of the appellants regarding the subject matter on the basis of Exts.B1 to B5?" 8. Heard the learned counsel for the appellants and the learned counsel for the respondent. 9. In fact, question No.(iv) does not arise at all in the suit and therefore, the same does not require consideration. The learned counsel for the appellant has argued that Exhibit-A1 as well as Exhibit-A2 were executed by the parties concerned by assuming that the plaint schedule property is the result of an anomalous mortgage. It has been argued that there is no evidence to show anything about the existence of such an anomalous mortgage and therefore, Exhibits-A1 and A2 cannot be relied on. It has been further argued that in the light of the total ouster, the plaintiff and other legal heirs of Kunjumma had lost their right and title over the property, even if they had any such rights. Some other arguments were also forwarded, which cannot be attracted to the facts and circumstances of this case. 10. Per contra the learned counsel for the respondent has argued that in the light of Exhibit-A2, the plaintiff cannot claim that the said property belongs to some other person or Kathirukunju, from whom, the 1st defendant allegedly came into possession. It has been argued that the suit is very simple and any such questions formulated as substantial questions of law in this matter do not arise for consideration at all. 11. If it is established that the plaint schedule property belonged to Moideen Muhammad and on his death, it devolved on his wife Kunjumma and his children namely the 1st defendant, the plaintiff, Abdul Majeed, Isha Beevi, Pathumma Kunju and Sainaba Beevi, it has to be noted that, they being the legal heirs of deceased Moideen Muhammad are entitled to shares in the property. Exhibit-A1 is the partition deed executed by Moideen Muhammad and Moideen Marackar, whereby the total extent of one cent of property and viruvu was divided into two equal shares, thereby allotting the northern half to Moideen Muhammad and the southern half to Moideen Marackar. 12. As far as the said share alloted to Moideen Marackar is concerned, the 1st defendant cannot forward any such contentions as resorted to in the written statement. 12. As far as the said share alloted to Moideen Marackar is concerned, the 1st defendant cannot forward any such contentions as resorted to in the written statement. It is a fact that presently the said half cent and half of the viruvu alloted to Moideen Marackar has been purchased by the 1st defendant. The 1st defendant cannot approbate and reprobate. When he has admitted the derivation of the title the said half cent and half of the viruvu alloted to Moideen Marackar through Exhibit-A1, he cannot challenge the derivation of the title of the plaint schedule property on Moideen Muhammad, through Exhibit-A1. 13. Apart from the above, it is the admitted case that Exhibit-A2 was executed by the 1st defendant along with his sisters Pathumma Kunju and Sainaba Beevi in favour of their mother. Through Exhibit-A2, they sold their rights over the property alloted to Moideen Mohammed through Exhibit-A1, to Kunjumma. It is a fact that Isha Beevi, Abdul Majeed and the plaintiff were not parties to Exhibit-A2. Therefore, through Exhibit-A2, Kunjumma got fractional shares over the property held by the 1st defendant, Pathumma Kunju and Sainaba Beevi over and above the 1/8th share to which Kunjumma was entitled. On account of the execution of Exhibit-A2, the 1st defendant cannot be heard to say that there is no such property covered by Exhibits-A1 and A2. If there is no such property, the 1st defendant could not have claimed title to the southern half cent and viruvu allotted to Moideen Marackar through Exhibit-A1. It is the admitted case of the 1st defendant that he is the title holder in respect of the southern half cent and viruvu allotted to Moideen Marackar as per Exhibit-A1, through a gift deed executed by Kathirukunju in favour of the 1st defendant. 14. Whether the anomalous mortgage noted in Exhibits-A1 and A2 was in existence or not is not at all a question to be considered at present in view of the execution of Exhibits-A1 and A2 as well as the gift deed in favour of the 1st defendant. Regarding the claim of adverse possession and ouster etc., it has to be noted that the 1st defendant is also one of the tenants in common in respect of the plaint schedule property, on account of the death of Kunjumma. Regarding the claim of adverse possession and ouster etc., it has to be noted that the 1st defendant is also one of the tenants in common in respect of the plaint schedule property, on account of the death of Kunjumma. Even though he had sold his rights over the property to Kunjumma, after the death of Kunjumma, all her legal heirs became entitled to shares in the property. 15. As per Hanafi Law of Succession, sons will take double the share of daughters. Through the execution of Exhibit-A3, the plaintiff purchased the shares of Abdul Majeed, Isha Beevi, Pathumma Kunju and Sainaba Beevi also. What remains is the share to be allotted to the 1st defendant. It is alleged that the 1st defendant had created some documents in favour of the 2nd defendant. Of course, much discussion is not required to conclude that such documents will not bind the plaint schedule property or the right of the plaintiff over the plaint schedule property. As rightly found by both the courts below, the plaintiff is entitled to 64/72 shares and the 1st defendant is entitled to 8/72 shares over the plaint schedule property. 16. The learned counsel for the appellants has argued that on account of the Principles of Equity, it has to be considered that the 1st defendant has title and possession over more extent of property than the shares to which the plaintiff is entitled to. His claim is that through a gift deed executed by Kathirukunju, he is in possession and enjoyment of the southern half cent and viruvu covered by Exhibit-A1 and therefore, he should be preferred in allotting the properties, even though he is entitled to 8/72 shares only in the plaint schedule property, when the plaint schedule property is lying adjacent to the said property. Those matters do not arise at all for consideration at present. Now, we are concerned about the plaint schedule property alone. The fact as to whether the 1st defendant has title, possession and enjoyment of the property, adjacent to the plaint schedule property, does not create any special entitlement to the 1st defendant in the plaint schedule property. Whatever it is, those matters have to be dealt with appropriately by the trial court at the stage of the passing of the final decree. This appeal is devoid of merits and is only to be dismissed and I do so. Whatever it is, those matters have to be dealt with appropriately by the trial court at the stage of the passing of the final decree. This appeal is devoid of merits and is only to be dismissed and I do so. In the result, this second appeal is dismissed. In the nature of this appeal, the parties shall bear their respective costs. Either the plaintiff or the 1st defendant can apply for the passing of the final decree before the court below. Till then, the suit shall remain sine a die. Equities and reservations shall be decided by the trial court at the stage of passing the final decree. As the litigation is very old and since the parties are fighting tooth and nail, the trial court shall dispose of the application for final decree, if any filed, as expeditiously as possible.