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2024 DIGILAW 1241 (KER)

Vadakkayil Balan v. Prabhakaran Nambiar

2024-09-27

M.A.ABDUL HAKHIM

body2024
JUDGMENT : 1. The Defendant Nos.2 and 3 in O.S.No.66/2005 on the files of the Sub Court Thalassery are the appellants. The suit was filed for declaration, recovery possession with profits. The suit was a representative suit filed under Order I Rule 8 CPC. The plaint schedule property has an extent of 1 acre 4 cents of land in Resurvey No.74/2A.1B in Kottayam village in Kannur Taluk forming the western part of ‘Poyillyath parambu’ and the house therein. 2. Plaintiffs filed the suit for declaring that Ext.A1 assignment deed of the year 1994 with respect to the plaint schedule property executed by the 1st defendant, who is a member of the Tharavad, in favour of the 2nd and 3rd defendants is not valid and binding on the plaintiffs and the members of the Tharavad, for recovery of the possession of the plaint schedule property for and on behalf of all members of the Tharavad with profits. An alternative prayer was made for recovery of the Tharavad House in the plaint schedule property for and on behalf of all members of the Tharavad in case it is found that Narayanan Nambiar, father of the 1st defendant, after his death, the 1st defendant had any special right in the plaint schedule property. 3. Since there are two persons having the same name –‘Narayanan Nambiar’ in these proceedings, the elder one is referred as Narayanan Nambiar (Senior) and the younger one is referred as Narayanan Nambiar (Junior) for clarity. Narayanan Nambiar (Junior) is the father of the 1st defendant. 4. As per Plaint averments, the 1st plaintiff is the senior most member of a Tharavad by name ‘Ammal Kaitheri Tharavad’ (‘the Tharavad’ for short) and the 2nd plaintiff is one of his nephews and the President of Kudumbakshema Samithi formed by the members of the Tharavad in a meeting dated 22.02.2003, for the welfare of the Tharavad members and also to maintain the Tharavad and conduct religious ceremonies and rituals connected with the Tharavad house and Sankalpams (beliefs) connected with the Tharavad. The plaintiffs are co-owners of the Tharavad properties after Act 30/1976. The plaintiffs are co-owners of the Tharavad properties after Act 30/1976. Though a larger extent of properties including the plaint schedule property belonging to the Tharavad was entrusted on lease with two of the members of the Tharavad, viz, Kunjappa Nambiar and his brother Narayanan Nambiar (Senior) as per Ext.A3/B2 registered Lease of the year 1930, the same was surrendered as per Ext.A2 Settlement Deed of the year 1942 in favour of the Tharavad. Ext.A3/B2 and Ext.A2 would show that Nararyanan Nambiar (Senior) was only a name lender in Ext.A3/B2. False documents are created by Kunjappa Nambiar who later became Karanavar of the Tharavad in favour of his nephew Narayanan Nambiar (Junior), collusively and fraudulently with respect to non existent tenancy. Those documents referred to in Ext.A1 are void in law. Tharavad house and another house, including the well, the tank, the burial ground, Nagasankalpam, Etc are specifically excluded from the lease in Ext.A3/B2. 5. The 1st defendant filed a Written Statement resisting the suit prayers, contending, inter alia, that the plaint schedule property is a separate acquisition of Narayanan Nambiar (Junior). Narayanan Nambiar (Junior) acquired the property as per Ext.B6 Compromise Decree; that as per the registered Will executed by Narayanan Nambiar, 1st defendant obtained the plaint schedule property with other properties; that the plaint schedule property is not a Tharavad property. The family members of the Tharavad did not have any right over the plaint schedule property. 6. Narayanan Nambiar (Junior) acquired the property as per Ext.B6 Compromise Decree; that as per the registered Will executed by Narayanan Nambiar, 1st defendant obtained the plaint schedule property with other properties; that the plaint schedule property is not a Tharavad property. The family members of the Tharavad did not have any right over the plaint schedule property. 6. The 2nd and 3rd defendants filed joint Written Statement resisting the suit prayers contending, inter alia, that Ammal Kaitheri Tharavad does not exist to their knowledge; that the Tharavad lost its right over the plaint schedule property for more than fifty years; that the averment that the Tharavad house and another house with well, tank, burial ground and Nagasthalam etc, were excluded from Ext.A3/B2 lease deed is incorrect; that the Tharavad House, burial ground, Nagasankalpam, well etc., are all situated on the north of the plaint schedule property; that the Ammal parambu is in possession of the third parties; that the present suit is filed on the basis of mistaken identity; that the plaintiffs knew very well that, from 1930 onwards the property has gone out of the Tharavad and they do not have any right over the plaint schedule property; that even if the Tharavad or its members have any right over the plaint schedule property that has been lost by adverse possession and limitation; that the property having an extent of 2.08 acres including the plaint schedule property, though originally belonged to the Tharavad, had been outstanding on lease in favour of two of the members of the Tharavad namely, Kunjappa Nambiar and his brother Narayanan Nambiar(Senior), which came in the hands of Narayanan Nambiar (Junior) who obtained Jenmam right as per Ext.B11 Purchase Certificate; that the 1st defendant obtained the property as per a registered Will executed by Narayanan Nambiar (Junior); that the 1st defendant sold the western part having 1.04 acres and building therein to the 2nd and 3rd defendants as per Ext.A1 Sale Deed. In sum and substance, the contention of the defendants is that the plaint schedule property is not the property of the Tharavad and it was the individual property of the Narayanan Nambiar (Junior). 7. During the suit's pendency, the first plaintiff died, and another member of the Tharavad was impleaded as a supplemental third plaintiff. 8. In sum and substance, the contention of the defendants is that the plaint schedule property is not the property of the Tharavad and it was the individual property of the Narayanan Nambiar (Junior). 7. During the suit's pendency, the first plaintiff died, and another member of the Tharavad was impleaded as a supplemental third plaintiff. 8. The Trial Court dismissed the suit with costs as per judgment dated 02.11.2012, finding that the plaintiffs failed to prove the identity of the plaint schedule property and failed to successfully challenge Ext.A1 and Ext.B11, which are the title documents of the 2nd and 3rd defendants. 9. The plaintiffs 2 and 3 filed A.S No. 69/2013 challenging the judgment and decree of the Trial Court before the First Appellate Court. During the hearing, the learned Counsel for the appellants submitted that he is pressing only the alternate relief for recovery of possession of the Tharavad House situated in the plaint schedule property. 10. The First Appellate Court allowed the Appeal decreeing the suit in part allowing recovery of possession of the house situated in the plaint schedule property. The First Appellate Court found that the house is excluded from Ext.A3/B2 Lease deed and it was kept for the common enjoyment of the members of the Tharavad and it came in the hands of Narayanan Nambiar (Junior) and that as per S.44 of the Transfer of Property Act, if the transferee is a stranger to the family, he is not entitled to keep possession of the property as a co-owner if the right obtained by him is a share in dwelling house of the family. It is found that defendants 2 and 3, who had purchased shares of the 1st defendant in the house situated in the plaint schedule property, cannot claim the right to possess the same as a co-owner. With respect to the remaining portion of the plaint schedule property, the First Appellate Court found that the documents produced by the defendants reveal that the predecessors of 1st defendant had obtained a valid lease from the Tharavad and the father of the 1st defendant obtained Jenmam as per Ext.B11 Purchase Certificate and that as per Ext.A1 document the 2nd and 3rd defendants have obtained valid right over the remaining portion of the plaint schedule property. 11. 11. The only question that arises for consideration in this Regular Second Appeal is whether the members of the Tharavad have got right over the house situated in the pliant schedule property, with respect to which recovery of possession is ordered by the First Appellate Court. 12. I heard the learned Counsel for the appellants, Mr. P. Vijayakumar, and the learned Counsel for respondents 1 and 2, Mr.B Kirishnan. 13. Learned Counsel for the appellants argued that admittedly, the plaint schedule property belonged to the Tharavad was outstanding on lease, and it came in the hands of Narayanan Nambiar (Junior), and he obtained Jenmam rights as per Ext.B11 Purchase Certificate. Though the right of residence in favour of Tharavad members was reserved in Ext.A3/B2 lease Deed, the same is absent in subsequent De-novo entrustment as per Ext.B4 by then Karanavar Kunjappa Nambiar in favour of Narayanan Nambiar (Junior). The rights of Narayanan Nambiar (Senior) were obtained by Narayanan Nambiar (Junior) as per Ext.B6 Compromise Decree in a suit for partition instituted by the legal heirs of Narayanan Nambiar(Senior). In subsequent Ext.B7 De-novo Lease & Ext.B8 Acknowledgement and Ext.B9 De-novo lease also, no reservation for the right of residence is shown. The building in the plaint schedule property is unfit for habitation as revealed from Ext.A1 of the year 1994, and hence, there could not be a right of residence. It is supported by the Commission Reports obtained by the Trial Court and this Court. In the Plaint, the claim for recovery of the Tharavad house is not for dwelling purpose. Necessary pleading with respect to the claim for reservation of the right of residence is absent in the Plaint. Section 44 of the Transfer of Property Act is not applicable to the facts and circumstances of the case. The claim is barred under section 65 of the Limitation Act. 14. On the other hand the Counsel for the 1st and 2nd respondents argued that since the house in the plaint schedule property is not included in Ext.A3/B2 Lease Deed, Narayanan Nambiar (junior) would not get any title with respect to the same, even if he has obtained Ext.B11 Purchase Certificate for property including the plaint schedule property. 14. On the other hand the Counsel for the 1st and 2nd respondents argued that since the house in the plaint schedule property is not included in Ext.A3/B2 Lease Deed, Narayanan Nambiar (junior) would not get any title with respect to the same, even if he has obtained Ext.B11 Purchase Certificate for property including the plaint schedule property. The rights of the members of the Tharavad over the house in the plaint schedule property are not affected by the documents executed after Ext.A3/B2 Lease Deed since the rights in those documents flowed from Ext.A3/B2 Lease Deed. The plaintiffs are entitled to succeed even without reference to Section 44 of the Transfer of Property Act. 15. This Court admitted this Regular Second Appeal on the following substantial questions of law. i. When it is established that the Appellant’s title traced back to a lease entrustment of 1957 under Exts.B7 & B9 and subsequent assignment in 1958 under Ext.B9, whether the Lower Appellate Court is correct in reading down into the documents the existence of any reservation in favour of the Tharawad members when no such reservation is spelt out? ii. In the light of Ext.B11 purchase certificate obtained in 1975 in favour of Narayanan Nambiar (Junior)/the predecessor in interest of 3rd respondent/assignor of the appellant, were not the appellants entitled to the benefit of the legal presumption under S.72 of KLR Act. iii. When the features of the dilapidated building would go to show that the same never constituted a dwelling house and on the other hand when the same was proved to be used for a purpose other than of a dwelling house over a long period from 1973 to 1994 under Ext.B10, if the Court below is justified in invoking the benefit under S.44 of the T.P Act. iv. Whether the judgment of the lower appellate court resulted in doing violence to the letter and spirit of S.44 of the T.P Act. 16. In view of the arguments raised by the Counsels on either sides, I formulate the following additional substantial questions of law. v. Whether there is perversity on the part of the First Appellate Court in granting a decree for recovery of possession in the light of the pleadings and evidence in the suit? Question of Law No.(i) 17. 16. In view of the arguments raised by the Counsels on either sides, I formulate the following additional substantial questions of law. v. Whether there is perversity on the part of the First Appellate Court in granting a decree for recovery of possession in the light of the pleadings and evidence in the suit? Question of Law No.(i) 17. Admittedly, a larger extent of property including the plaint schedule property belonging to the Tharavad was entrusted on lease with two of the members of the Tharavad, viz, Kunjappa Nambiar and his brother Narayanan Nambiar (Senior) as per Ext.B1 Lease deed of the year 1914 executed by the Karanavar of the Tharavadu. It was followed by Ext.A3/B2 Lease deed and Ext.B3 Lease Acknowledgement of the year 1930 between the very same persons. It is clear from Ext.A3/B2 Lease deed that there was a Nalukettu house (Rectangle House with Center Courtyard) in Item No.1 therein. Item No.1 is described as Poyillyath parambu. It is stated that the possession of the said house is not given to the Lessees and that the lessees shall not object to the residence of all the families in the Tharavad in the said house. Though it is averred in the Plaint that the lease of the year 1930 was surrendered in favour of the Tharavad as per a Settlement Deed of 1942, Ext.A2 Settlement Deed of the year 1942 does not reveal any such surrender It was executed by Kunjappa Nambiar alone. It appears that it is a confirmation for continuance of the lease. Subsequent Deeds also prove that the lease as per Ext.A3/B2 Lease deed continued. Ext.B4 is the Re-Entrustment Deed of 1954 executed by Karanavar of the Tharavadu in favour of Narayanan Nambiar(Junior). As per Ext.B6 Compromise Decree of the year 1956, Narayanan Nambiar (Junior) obtained rights of Narayanan Nambiar (Senior) from his legal heirs. In Ext.B6 it is stated that the rights which are surrendered to Narayanan Nambiar (Junior) are the rights which are derived as per Ext.A3/B2 Lease deed. Ext.B7 is a Re-Entrustment Deed of the year 1957 executed by Kunjappa Nambiar as Karanavar of the Tharavadu in favour of Narayanan Nambiar (Junior). Ext.B8 Lease Acknowledgement of the year 1957 was executed by Narayanan Nambiar (Junior) in favour of the Karanavar of the Tharavad for Ext.B7. Ext.B7 is a Re-Entrustment Deed of the year 1957 executed by Kunjappa Nambiar as Karanavar of the Tharavadu in favour of Narayanan Nambiar (Junior). Ext.B8 Lease Acknowledgement of the year 1957 was executed by Narayanan Nambiar (Junior) in favour of the Karanavar of the Tharavad for Ext.B7. In Exts.B7 and B8, there is a reference to Ext.A3/B2 Lease deed, but what is reserved in favour of the Thararvad are only four coconut trees, one tamarind tree, four ‘Eenth’ trees, two mango trees and one jack tree in the property specified therein namely, Poyillyath parambu. Ext.B9 of the year 1958 is the Assignment Deed executed by Kunjappa Nambiar transferring the right which he derived as per Ext.A3/B2 Lease deed to Narayanan Nambiar(Junior). Item No.1 in Ext.B9 is Poyillyath parambu. Ext.B6, Ext.B7, Ext.B8 & Ext.B9 Deeds and Ext.B11 Purchase Certificates are the prior deeds stated in Ext.A1 executed by the 1st defendant in favour of the 2nd and 3rd defendants. It indicates that Narayanan Nambiar(Junior) derived the rights as per the Ext.A3/B2 Lease deed. In other words, he derived property excluding the house. Hence, the First Appellate Court is right in holding that the defendants could claim only the property, excluding the house. The Substantial Question of Law No. (i) is answered in the affirmative and against the appellants. Question of Law No.(ii) 18. Narayanan Nambiar(Junior) obtained Ext.B11 Purchase Certificate of the year 1975 with respect to 2.08 acres including the Plaint schedule property. Admittedly, it is part of Item No.1 property of Ext.A3/B2 Lease Deed in favour of the predecessors-in-interest of Narayanan Nambiar(Junior). Thus, Narayanan Nambiar(Junior) had a leasehold right over the property in continuation of his predecessors-in-interest. He was entitled to get a fixity of tenure in respect of his holding in his status as a cultivating tenant under Section 13 of the Kerala Land Reforms Act, 1963. He was given Ext.B11 Purchase Certificate under Section 72K of the Kerala Land Reforms Act, 1963. The Jenmam right which he obtained as per Ext.B11 was not challenged by any of the members of the Tharavad. Section 72K of the Kerala Land Reforms Act, 1963 extracted hereunder. He was given Ext.B11 Purchase Certificate under Section 72K of the Kerala Land Reforms Act, 1963. The Jenmam right which he obtained as per Ext.B11 was not challenged by any of the members of the Tharavad. Section 72K of the Kerala Land Reforms Act, 1963 extracted hereunder. Section 72K: Issue of Certificate of Purchase-(1) As soon as may be after the determination of the purchase price under section 72F 36(or the passing of an order under sub-section (3) of section 72MM) the Land Tribunal shall issue a certificate of purchase to the cultivating tenant, and thereupon the right, title and interest of the landowner and the intermediaries, if any, in respect of the holding or part thereof to which the certificate relates, shall vest in the cultivating tenant free from all encumbrances created by the landowner or the intermediaries if any. Explanation.-- For the removal of doubts, it is hereby declared that on the issue of the certificate of purchase, the landowner or any intermediary shall have no right in the land comprised in the holding, and all his rights including rights, if any, in respect of trees reserved for his enjoyment shall stand extinguished. (2) The certificate of purchase issued under sub-section (1) shall be conclusive proof of the assignment to the tenant of the right, title and interest of the landowner and the intermediaries, if any, over the holding or portion thereof to which the assignment relates. (3) The purchase price payable by the cultivating tenant shall be a first charge on the land comprised in the holding or part thereof to which the assignment relates and shall be recoverable together with interest as provided in sub-section (3) of section 72M, under the provisions of the Revenue Recovery Act for the time being in force. 19. Explanation to Section 72K (1) of the Kerala Land Reforms Act, 1963 would make it abundantly clear that all his rights of the landowner or any intermediary over the leasehold land shall stand extinguished on issuance of Purchase Certificate. The claim of the plaintiffs/land owners is that the house situated in the leasehold plaint schedule property is reserved for the members of the Tharavad for their dwelling. The right of residence claimed by the landowners in the leasehold land would stand extinguished on the issuance of a Purchase Certificate in view of Explanation to Section 72K (1). The claim of the plaintiffs/land owners is that the house situated in the leasehold plaint schedule property is reserved for the members of the Tharavad for their dwelling. The right of residence claimed by the landowners in the leasehold land would stand extinguished on the issuance of a Purchase Certificate in view of Explanation to Section 72K (1). The Substantial Question of Law No.(ii) is answered in the affirmative and in favour of the appellants. Questions of Law Nos.(iii) & (iv) 20. In order to understand the claim of the plaintiffs on the basis of Section 44 of the Transfer of Property Act of 1882, it is useful to extract the said provision. Section 44:Transfer by one co-owner-Where one of two or more co-owners of immoveable property legally competent in that behalf transfers his share of such property or any interest therein, the transferee acquires as to such share or interest, and so far as is necessary to give, effect to the transfer, the transferor's right to joint possession or other common or part enjoyment of the property, and to enforce a partition of the same, but subject to the conditions and liabilities affecting at the date of the transfer, the share or interest so transferred. Where the transferee of a share of a dwelling-house belonging to an undivided family is not a member of the family, nothing in this section shall be deemed to entitle him to joint possession or other common or part enjoyment of the house. 21. The first and foremost thing for attracting the Second Paragraph of the said provision is that there should be a dwelling house. 22. In Dorab Cawasji Warden V.Coomi Sorab Warden (1990) 2 SCC 117 ), the Hon’ble Supreme Court held that in order to attract the Second Paragraph of Section 44, the subject matter of the transfer has to be a dwelling house belonging to an undivided family and the transfer is a share in the same to a person who is not a member of the family; and that therefore, in order to satisfy the first ingredient of clear existence of the right and its infringement, the plaintiff will have to show a probable case that the suit property is a dwelling house and it belonged to an undivided family. 23. 23. The Hon’ble Supreme Court had occasion to explain the expression ‘dwelling house’ in Narahimaha Murthy v. Susheelabai and others ((1960) 3 SCC 644) cited by the counsel for the appellants. It is useful to quote Paragraphs 27 and 28 in the decision: “27. The expression "dwelling house" has not been explained elsewhere than in the S.23 itself. There is no specific definition of the expression in the Act as such. Because of that, various commentators of the subject have foreseen that the courts were likely to face a problem in defining it. According to Webster Comprehensive Dictionary, the expression "dwelling house" means a house built for habitation, a domicile,. In law it may embrace the dwelling itself and such buildings as are used in connection with it. According to Black's Law Dictionary (sixth edition), under statute prohibiting breaking and entering a "dwelling house", the test for determining if a building is such a house is whether it is used regularly as a place to sleep. In Stroud's Judicial Dictionary (Fifth edition), the expression " dwelling house" has been described as a house with the super added requirement that it is dwelt in or the dwellers in which are absent only temporarily, having animus revertendi and the legal ability to return Ford v. Barnes, (1885) 55 LJQB 24 (34). It is described that the word "inhabitant" would seem to bring about more fully the meaning of the word " dwelling house". In Words and Phrases (Third Edition) a quotation is available from Lewin v. End 1906 AC 299 at 304 attributed to Lord Atkinson in whose words a "dwelling house" as understood by him was "a house in which people live or which is physically capable of being used for human habitation". Another quotation from R. v. Allison, (1843) 2 LTOS 288 at 289, is available of Maule, J. saying that a house, as soon as built and fitted for residence, does not become a dwelling house until some person dwells in it. In T. P. Mukherjee's The Law Lexicon (Volume I) 1989, it is stated at page 565 that a dwelling house, as the words imply, projects the meaning that the house or a portion thereof is an abode of his, available to him at all times without any let or hindrance by others. In T. P. Mukherjee's The Law Lexicon (Volume I) 1989, it is stated at page 565 that a dwelling house, as the words imply, projects the meaning that the house or a portion thereof is an abode of his, available to him at all times without any let or hindrance by others. Further thereat is stated that a dwelling place is one where a person inhabits and in law should be his domus mansionalis. In Aiyar's Judicial Dictionary (11th Edition), an old decision of the Allahabad High Court in Fatima Begum v. Sakina Begum (1875-77) ILR 1 All 52, has been mentioned in which it has been held that the words "dwelling" or "residence" are synonymous with domicile or home and mean that place where a person has his fixed permanent home to which whenever he is absent, he has the intention of returning. An extraction from Commr. of Income Tax v. K. S. Ratanaswamy (1980) 2 SCC 548 at 553 : ( AIR 1980 SC 525 at P. 529), is also quotable saying that primarily the expression "dwelling place" means "residence", "abode" or "home" where an individual is supposed usually to live and sleep and in the context of a taxing provision which lays down a technical test of territorial connection amounting to residence, the concept of an "abode" or "home" would be implicit in it. In other words, a dwelling place must be a house or portion thereof which could be regarded as an abode or home of the assessee in taxable territories. 28. From the aforequoted statements it is manifest that in the legal world the word "dwelling house" is neither a term of art nor just a word synonymous with a residential house, be it ancestral, joint family owned or self acquired, as understood in the law applicable to Hindus. In the context of S.23 therefore when the legislature has chosenly employed the word "dwelling house", it has done so with a purpose, which is to say that on the death of the intestate, a limited status quo should prevail as existing prior to his or her death. In the context of S.23 therefore when the legislature has chosenly employed the word "dwelling house", it has done so with a purpose, which is to say that on the death of the intestate, a limited status quo should prevail as existing prior to his or her death. His or her abode, shared by him or her, with members of his or her family, identifiable from Class I Heirs of the Schedule, should continue to be in enjoyment thereof, not partible at the instance of the female heirs till the male heirs choose to effect partition thereof.” 24. In the case on hand, even assuming that the house situated in the plaint schedule property is the one referred to in Ext.A3/B2, it is not in habitable condition. The plaintiffs have no case that they require the house for dwelling purposes. It is not disclosed the date up to which the house was used for dwelling purposes of the members of the Tharavad. As revealed by the Plaint, their requirement of the house is for conducting religious ceremonies and rituals connected with the Tharavad house and the beliefs connected with the Tharavad. 25. Ext.B10 Rent Deed of the year 1973 and the evidence of DW1 would show that the house in the plaint schedule property was used for keeping coconut from the year 1973 to 1994. It is stated in Ext.A1 that most part of the house is collapsed, and it is excluded from payment of Panchayat tax. It is reported by the Advocate Commissioner in Ext.X(1) Commission Report that the house is in a dilapidated condition. 26. This Court had appointed an Advocate Commissioner as per Order dated 03.08.2016 and the Advocate Commissioner has filed his Report dated 31.08.2016 producing six photographs of the house situated in the Plaint Schedule property. The said Commission Report and six Photographs are marked and accepted in evidence as Exts.X(2) and X(2) (a) to (f) respectively. 27. It is reported by the Advocate Commissioner in Ext.X(2) Commission Report that the house is in a dilapidated condition and that it is not fit for habitation. The Advocate Commissioner has reported the pathetic condition of the house. Exts.X (2)(a) to (e) which were taken in the year 2016 would show that the house may fall down at any time and it is beyond repairs. It could not be used for any purpose including dwelling purpose. The Advocate Commissioner has reported the pathetic condition of the house. Exts.X (2)(a) to (e) which were taken in the year 2016 would show that the house may fall down at any time and it is beyond repairs. It could not be used for any purpose including dwelling purpose. Section 44 of the TP Act is applicable only in case the house suitable for dwelling is available. 28. The Second Paragraph of Section 44 provides that where a transferee of a share of a dwelling-house belonging to an undivided family is a stranger, he is not entitled to joint possession or other common or part enjoyment of the house. The object of the provision is obvious. It is intended to protect the peaceful living of the joint family members in their common house without any interference from strangers. 29. Section 44 of the TP Act is not applicable in case none of the joint family members are residing or intend to reside in the common house. It is apposite to extract relevant portion of Paragraph 10 of the decision of the Hon’ble Supreme Court in Ghantesher gosh v. Madan Mohan Gosh and Others ( (1996) 11 SCC 446 ) cited by the Counsel for the appellants. “10. We have also to keep in view the avowed beneficial object underlying the said provision. S.4 of the Partition Act read with S.44 of the T.P. Act represents a well knit legislative scheme for insulating the domestic peace of members of undivided family occupying a common dwelling house from the encroachment of a stranger transferee of the share of one undivided coowner as the remaining coowners are presumed to follow similar traditions and mode of life and to be accustomed to identical likes and dislikes and identical family traditions. This legislative scheme seeks to protect them from the onslaught on their peaceful joint family life by stranger outsider to the family who may obviously be having different outlook and mode of life including food habits and other social and religious customs. Entry of such outsider in the joint family dwelling house is likely to create unnecessary disturbances not germane to the peace and tranquillity not only of the occupants of the dwelling house but also of neighbours residing in the locality and in the near vicinity. Entry of such outsider in the joint family dwelling house is likely to create unnecessary disturbances not germane to the peace and tranquillity not only of the occupants of the dwelling house but also of neighbours residing in the locality and in the near vicinity. With a view to seeing that such homogenous life of coowners belonging to the same joint family and residing in the joint family dwelling house is not adversely affected by the entry of a stranger to the family, this statutory right or preemption is made available to the coowners who undertake to buy out such undivided share of the stranger coowners………..” 30. In the case on hand, none of the members of the Tharavad has been residing in the house in the Plaint schedule property. They have no intention to reside also going by the pleadings and evidence in the case. On account of the dilapidated condition of the house, they could not reside therein even if they intended to reside. Hence Section 44 of the TP Act is not applicable to the facts and circumstances of the case. The First Appellate Court acted illegally in relying on Section 44 of the TP Act to grant a decree in favour of the plaintiffs. The Substantial Question of Law No.(iii) is answered in the negative & the Substantial Question of Law No. (iv) is answered in the affirmative and both in favour of the appellants. Addl.Question of Law No.(v) 31. Narayanan Nambiar (Junior) executed Will No.27/1990 in favour of the 1st defendant. The 1st defendant executed Ext.A1 Sale Deed of the year 1994 in favour of the 2nd and 3rd defendants with respect to the plaint schedule property and the plaint schedule property is admittedly in the possession of the 2nd and 3rd defendants. Admittedly, a Padinhatta (House facing west) is situated in the Plaint Schedule property. It is reported by the Advocate Commissioner in Ext.X(1) Commission Report also. Item No.1 in Ext.A3 covers more than 2.5 acres. What is stated in Ext.A3/B2 is a Nalukettu. The Plaint Schedule property has only 1.04 acres. It is not clear from the pleadings and evidence whether these two houses are one and the same. There is no pleading in the Plaint that the original Nalukettu was converted into a Padinhatta. Plaintiffs have no case that the original Nalukettu is converted into a Padinhatta. The Plaint Schedule property has only 1.04 acres. It is not clear from the pleadings and evidence whether these two houses are one and the same. There is no pleading in the Plaint that the original Nalukettu was converted into a Padinhatta. Plaintiffs have no case that the original Nalukettu is converted into a Padinhatta. No attempt was made by the plaintiff to identify the plaint schedule property with reference to the title documents. It is not clear whether the Nalukettu referred in Ext.A3/B2 was situated in the remaining extent of Ext.A3/B2 after excluding the plaint schedule property. There is no pleading or evidence with respect to the date up to which the family members resided in the Nalukettu and as to how the Tharavad lost possession of the Nalukettu. The house which is claimed by the plaintiff is not separately scheduled in the Plaint giving details of the same. It is practically impossible to grant a decree for recovery of possession of the house alone situated in the Plaint schedule property without providing access to the house through the plaint schedule property. The plaintiffs ought to have included a proper schedule in the Plaint to allow the Court to pass an enforceable decree. Even though the house was excluded in Ext.A3/B2 for protecting the right of residence of the members of the Tharavad in the house, there is not even a whisper in the Plaint that the house is required for residence. The First Appellate Court wrongly shifted the burden to the defendants to prove that Nalukettu referred in Ext.A3/B2 was situated in the remaining extent of Ext.A3/B2 after excluding the plaint schedule property. I am of the view that the plaintiffs failed to incorporate material pleadings in the Plaint with respect to their claim over the house situated in the plaint schedule property. The Plaintiffs failed to adduce sufficient evidence to prove that the house situated in the plaint schedule property is the same Nalukettu referred in Ext.A3/B2. The First Appellate Court ought not to have granted a decree for recovery of possession of the house situated in the plaint schedule property on the basis of vague pleadings without material details in the Plaint. The First Appellate Court is not justified in holding that the house situated in the plaint schedule property is the house referred to in Ext.A3/B2. The First Appellate Court is not justified in holding that the house situated in the plaint schedule property is the house referred to in Ext.A3/B2. The Additional Substantial Question of Law No.(v) is answered in the affirmative and in favour of the appellants. 32. In view of the aforesaid discussion, the Regular Second Appeal is allowed without costs setting aside the judgment and decree of the First Appellate Court and dismissing the suit.