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High Court Of Kerala
THE HONOURABLE MR. JUSTICE K.T. SANKARAN
Chalil Kalliani - Appellant
Versus
Kizhakke Vattakandiyil Madhavan - Respondents
S.A.NO. 653 of 1996 (C)
Decided On : 18 January 2008
Property Rights - Partition - Indian Evidence Act, Section 90 - Hindu Women's Right to Property Act, 1937 - Hindu Widows Re-marriage Act, 1856 - Possession and Adverse Possession - [PROPERTY RIGHTS] - [PARTITION] - [Indian Evidence Act, Section 90, Hindu Women's Right to Property Act, 1937, Hindu Widows Re-marriage Act, 1856] - The court discussed the validity of documents (Exts.A1, A2, A20, and B1) and their impact on the property rights of the parties. The court also considered the application of Section 90 of the Indian Evidence Act, the rights of widows under the Hindu Women's Right to Property Act, 1937, and the impact of the Hindu Widows Re-marriage Act, 1856 on property rights. The court analyzed the concept of possession and adverse possession in the context of co-ownership and highlighted the requirements for establishing adverse possession. The court's decision was influenced by the interpretation of the documents, the legal principles governing property rights, and the lack of evidence to support the defendants' claims.
Fact of the Case:
The plaintiff filed a suit for partition, claiming a share in the property acquired by the deceased Sankaran and his mother Chirutheyi. The defendants contested the claim, arguing that the property belonged to the deceased Madhavan and had devolved solely to Sankaran. The trial court ruled in favor of the plaintiff, but the appellate court reversed the decision. The Second Appeal was filed by the plaintiff challenging the appellate court's decision.
Finding of the Court:
The court found that the appellate court had erred in its interpretation of the documents and in dismissing the plaintiff's claim. The court also noted several factual mistakes in the appellate court's judgment, which had influenced its decision. The court emphasized that the defendants had failed to provide evidence to support their contentions, and their claims of ouster and adverse possession were unsubstantiated. As a result, the court allowed the Second Appeal, set aside the appellate court's judgment, and restored the trial court's decision in favor of the plaintiff.
Issues: The substantial questions of law considered by the court included the genuineness of the transactions covered by Exts.A1 and A20, the interpretation of the documents, the applicability of Section 90 of the Indian Evidence Act, the defendants' right to challenge the validity of the transactions, and the justification for upholding the plea of ouster and adverse possession without supporting evidence.
Ratio Decidendi: The court's decision was based on the lack of evidence to support the defendants' contentions, the erroneous interpretation of the documents by the appellate court, and the failure of the defendants to challenge the validity of the transactions in a properly constituted suit. The court also emphasized the requirements for establishing adverse possession and the absence of evidence to prove ouster and adverse possession.
Final Decision: The Second Appeal was allowed, the appellate court's judgment was set aside, and the trial court's decision in favor of the plaintiff was restored. No costs were awarded.
The legal representatives of the plaintiff in O.S.No.157 of 1987 on the file of the Court of the Munsiff-Magistrate of Perambra, whose suit for partition was decreed by the trial court, but, which was reversed by the appellate court in AS No.35 of 1993, Sub Court, Quilandy, have filed this Second Appeal.
2. For a better understanding of the facts of the case, the genealogy of the parties is relevant. Nangeli had a son by name Madhavan. Madhavan married Chirutheyi. On that wed lock, son Sankaran was born. Madhavan predeceased Nangeli. After the death of Madhavan, Cherutheyi got re- married to Neelakantan. Chandu, the plaintiff is the son born in the wed lock of Chirutheyi and Neelakantan. According to the plaintiffs, Sankaran died in 1956. His legal representatives are the defendants. Chirutheyi died, as per the averments in the plaint, in 1966 and as stated by the plaintiff in evidence, in 1964. The parties belong to Malayala- kamala community. They follow Mithakshara law as modified by custom.
3. The case of the plaintiff is that the plaint schedule property was acquired by Chirutheyi and one Kuttiperavan as per Ext.A1 Verumpattam deed dated 14.07.1910 from Othayoth Cheriya Amma Thamburatti for a period of 12 years with a stipulation to pay pattam of Rs.5/- per year. Kuttiperavan relinquished his rights in favour of Chirutheyi and Sankaran as per Ext.A2 registered document dated 14.07.1925. Chirutheyi and Sankaran were enjoying the property in common. Sankaran died in 1956 and thereafter in 1966 Chirutheyi also died. 1/4th right of Sankaran devolved on the defendants, (widow and children of Sankaran) and his mother Chirutheyi. Thus Chirutheyi got 1/20 shares and together with her 15/20 shares, she became entitled to 16/20 shares. On the death of Chirutheyi, her rights devolved on the plaintiff and the defendants. Thus the plaintiff claimed 8/20 shares in the plaint schedule property.
4. The defendants contended in the written statement, inter alia, that the plaint schedule property belonged to Madhavan. On the death of Madhavan before 1910, his rights devolved on Sankaran and thus Sankaran alone became entitled to the property. Chirutheyi and Kuttiperavan did not get any rights as per document No.2329/1910 (Ext.A1). Cheriya Amma Thamburatti, who executed Ext.A1, had no right to grant such a lease. So also, Nangeli and others, who demised the property in favour of Cheriya Amma Thamburatti, had no right to execute such a document. The documents were created stating that the executants had rights in the property while, in fact, they had no such rights. Exhibit A2 does not confer any right on Chirutheyi or Sankaran as Kuttiparavan and Chirutheyi were not holding the property at the time of execution of Ext.A2.
5. The trial court, after considering Exts.A1, A20 and B1, held that the plaintiff has co-ownership right in the property. It was held by the trial court that Exts.A1 and A20 were executed more than 30 years ago and, therefore, Section 90 of the Indian Evidence Act would get attracted. The trial court also noticed that no oral evidence was adduced by the defendants and the evidence of the plaintiff as PW1 stands unchallenged. The contention raised by the defendants that the right, if any, of the plaintiff was lost by ouster and a adverse possession was negatived by the trial court on the ground that no evidence was adduced by the defendants to prove that contention. The lower Appellate Court reversed the finding of the trial court and dismissed the suit. The Appellate Court held that the plaintiff is not a co-owner and that Sankaran alone inherited the property left by his father Madhavan. The case of the plaintiff on the basis of Exts.A1 and A20 was rejected by the court below holding that Exts.A1 and A20 are "strange transactions" and that they are not genuine and legally sustainable. This finding was arrived at without any pleading or evidence to find the same. There is no case for the defendants that Exts.A1 a
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