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IN THE HIGH COURT OF KERALA AT ERNAKULAM
P.N. RAVINDRAN, P.B. SURESH KUMAR, R. NARAYANA PISHARADI, JJ.
P.N. Viswambaran S/o Late Narayanan - Appellant
Vs.
T.P. Sanu S/o Late Prabhakaran & Ors. - Respondents
R.S.A. No. 708 of 2015
Decided On : 24-05-2018
The Kerala Land Reforms Act, 1963- Section 72K (1)
" When one of the co-heirs of a tenant or co-shares of a property makes an application to the Land Tribunal under Section 72B(3) of the Act for assignment of the right, title and interest in respect of the holding vested in the Government and if he obtains a certificate of purchase in derogation of the rights of the other co-heirs or co-sharers, by availing his status as a co-heir or co-sharer, the certificate of purchase issued to him would enure to the benefit of the other coheirs or co-sharers.
" A finding by the court that the certificate of purchase issued to a co-heir of the tenant or a co-owner of the property would also enure to the benefit of the other co-heirs or co-owners will not amount to violation of the provision contained in Section 72K(2) of the Act. When a co-heir of the tenant or a co-owner of the property pleads and proves that the certificate of purchase issued to another co-heir or a co-owner would enure to his benefit also, then it does not amount to challenging the conclusiveness of the certificate of purchase which is declared under Section 72K(2) of the Act.
" When the Land Tribunal decides the question of tenancy and passes an order in favour of one of the co-heirs of a cultivating tenant for issuing the certificate of purchase, no finding is entered by it with regard to the inter se rights of the co-heirs/co-tenants or whether the certificate of purchase enures to the other co-heirs/co-tenants. Therefore, the principle of res judicata does not preclude the civil court from trying and deciding such an issue.
" If a party, who is a co-owner/co-sharer of the property, wants to take advantage of the certificate of purchase issued to the opposite party in respect of the property, it is necessary for him to plead and prove that the certificate of purchase was obtained by the opposite party in derogation of the right or interest of the other co-owners/co-sharers in the property and that it would enure to the benefit of the other co-owners/co-sharers also. Whenever a contention of lack of pleadings is raised in this regard, the lower courts shall consider such contention in the light of the principles laid down by the Apex Court in Bhagwati Prasad v. Shri Chandramaul (AIR 1966 SC 735)
" There is no real conflict between the decisions of this Court in Paul v. State of Kerala and Ramakke v. Gopi (2011(3) KHC 491). In Ramakke, it was established that the certificate of purchase was obtained by the tenant who actually took the land on lease and it was in that context it was held by this Court that a person other than the legal heir/ legal representative of the tenant cannot claim any right over the property in the absence of a challenge made to the certificate of purchase issued by the Land Tribunal. The decision in Ramakke is distinguishable on facts. The statement made by the Division Bench in Ramakke that, once a certificate of purchase is issued, the person in whose name it is issued is to be considered as the person in possession of the property, is correct. However, we clarify that when a certificate of purchase is issued in the name of one of the co-heirs of the deceased cultivating tenant or one of the co-owners of the property, he cannot be held to be in exclusive possession of the property. He is to be considered in possession of the property along with the other co-heirs of the cultivating tenant or the other co-owners of the property.
Statement of facts:
What is the effect of a certificate of purchase issued to one of the co-sharers of a land under Section 72K (1) of the Kerala Land Reforms Act, 1963 on other co-sharers? Does the provision contained in Section 72K (2) of the Act prevent the other co-sharers from claiming right, title and possession over the land in respect of which the certificate of purchase is issued under Section 72K (1) of the Act? Does the provision contained in Section 72K(2) of the Act exclude the operation of Section 90 of the Indian Trusts Act, 1882?
Finding of the court:
If a party has pleaded that the certificate of purchase was obtained by the opposite party in derogation of the right or interest of the other co-owners/co-heirs in the property and that it would enure to the benefit of the other co-owners/co-heirs also. Whenever a contention of lack of pleadings is raised, the lower courts shall consider such contention in the light of the principles laid down by the Apex Court in Bhagwati Prasad v. Shri Chandramaul (AIR 1966 SC 735). A pedantic approach, which would defeat justice, shall not be made. Pleadings, if any raised with regard to a claim based on Section 90 of the Trusts Act shall be construed liberally.
Result: Post the appeal before the appropriate Bench for consideration and disposal
R. Narayana Pisharadi, J.
What is the effect of a certificate of purchase issued to one of the co-sharers of a land under Section 72K (1) of the Kerala Land Reforms Act, 1963 (hereinafter referred to as 'the Act') on other co-sharers? Does the provision contained in Section 72K (2) of the Act prevent the other co-sharers from claiming right, title and possession over the land in respect of which the certificate of purchase is issued under Section 72K (1) of the Act? Does the provision contained in Section 72K(2) of the Act exclude the operation of Section 90 of the Indian Trusts Act, 1882? These are the questions which essentially fall for consideration and determination by this Full Bench.
2. This appeal has come up for hearing before the Full Bench on a reference made by a Division Bench of this Court by order dated 30.03.2017 to resolve the conflict between the decisions of this Court in Paul v. State of Kerala and Another (1981 KLT 721) and Ramakke and Others v. Gopi and Others (2011(3) KHC 491).
3. The appeal arises out of the suit O.S.No.1901 of 2004 on the file of the Munsiff's Court, Ernakulam. The suit is for partition. The appellant is the plaintiff in the suit. He contended that he is a co-owner of the plaint schedule property and he claimed one-fifth share in the property. His plea in the suit is that Raman, his predecessor-in-interest, had leasehold right over the plaint schedule property and being the son of Karthiyayini, one of the daughters of Raman, he has acquired right over the property. The claim of the appellant/plaintiff is resisted by the contesting defendants by raising the contention that the property exclusively belonged to their predecessor-in-interest Prabhakaran, one of the sons of Raman. They contended that Prabhakaran had purchased the jenm right of the property in his name through the Land Tribunal concerned. According to the plaintiff, the purchase certificate obtained in the name of Prabhakaran enures to the benefit of all the co-owners including him.
4. The trial court accepted the contention of the plaintiff and granted a decree for partition of the plaint schedule property. However, the lower appellate court negatived the contention of the plaintiff and held that by virtue of the provision contained in Section 72K(2) of the Act, the purchase certificate obtained by Prabhakaran is conclusive proof of his title and possession over the property and in the absence of any challenge raised by the plaintiff against the validity of the purchase certificate, he is not entitled to claim any right over the property. Accordingly, the lower appellate court allowed the appeal and dismissed the suit. Aggrieved by the judgment of the lower appellate court, the plaintiff has filed this second appeal.
5. When the appeal came up for hearing before a learned single Judge of this Court, the following substantial questions of law were raised.
“a. When a purchase certificate is obtained by a co-sharer under the provisions of the KLR Act, in respect of a property, will it not enure to the benefit of all co-sharers?
b. Is it necessary to seek for a declaration or to set aside the purchase certificate so obtained by a co-sharer when the law presumes that the purchase certificate is for the benefit of all co-sharers?
c. Will the finding in Ext.B1 judgment not operate as estoppel against the contesting defendants 1, 2 and 9 to 12 to contended that they have exclusive title to the property?”
6. The learned single Judge noticed that there exists an apparent conflict between the decisions of this Court in Paul v. State of Kerala and Another (1981 KLT 721) and other decisions on the same line and the decision in Ramakke and Others v. Gopi and Others (2011 (3) KHC 491) on the question whether the purchase certificate obtained by one of the co-sharers will enure to the benefit of other co-owners. For resolving the conflict, the learned single Judge adjourned and referred the case for being heard and decided by a Bench of appr
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