2019 Supreme(Ker) 34

IN THE HIGH COURT OF KERALA AT ERNAKULAM
P. Somarajan, J.
Gopakumar and Ors. – Appellants
Versus
Kamalakshy Purushothaman and Ors. – Respondents
RSA. No. 81 of 2010, CO.No. 135 of 2015
Decided On : 29-01-2019

Important Points:
Scope for seeking a relief of partition as against him with respect to the remaining property in his hands, which is not sufficient to satisfy the due share of plaintiffs-The plaintiffs can very well ask for the balance extent which comes to 34 cents and 112 sq.links towards their due share, without seeking a relief of partition-There is no necessity for seeking a further relief of partition in the instant case against first defendant and hence the bar under the proviso to Section 34 of the Specific Relief Act would not come into play as against the relief sought against the first defendant is concerned-The plaintiffs are entitled to a decree of declaration of their title and recovery of possession of the balance extent of property having an extent of 34 cents and 112 sq.links excluding the extent of property covered by Exts.A7 and A8 out of 1 Acre 7 cents left out by deceased Purushothaman- They are also entitled to declaration of their status as the legal heirs and successors in interest of deceased Purushothaman along with the first defendant-The suit is liable to be dismissed in so far as it is against defendant Nos. 2 to 5 are concerned and the judgment and decree of both the trial court and the first appellate court are liable to be modified to that extent.

Headnote:The Limitation Act, Article 58- Transfer of Property Act, Section 3 - The Specific Relief Act- Section 34- No necessity for seeking a further relief of partition in the instant case against first defendant and hence the bar under the proviso to Section 34 of the Specific Relief Act would not come into play as against the relief sought against the first defendant is concerned-The plaintiffs are entitled to a decree of declaration of their title and recovery of possession of the balance extent of property having an extent of 34 cents and 112 sq.links excluding the extent of property covered by Exts.A7 and A8 out of 1 Acre 7 cents left out by deceased Purushothaman-

       Facts of the case:

       The suit is one for a declaration of status of plaintiffs, being the legally wedded wife and children of deceased Purushothaman and for a declaration of title over the immovable property scheduled in the plaint, left out by him and for recovery of possession- The suit was decreed by the Trial Court declaring the status of plaintiffs-the legally wedded wife and children of deceased Purushothaman and their title over the plaint schedule property being the legal heirs- In appeal, the decree of the Trial Court was modified, declaring the status of plaintiffs as the legally wedded wife and children of deceased Purushothaman along with first defendant who is found to be an illegitimate son of deceased Purushothaman and granted a preliminary decree of partition of the property scheduled in the plaint- The first defendant along with his mother Syambavi applied for getting Succession Certificate before the Prl.Munsiff's Court, Alappuzha in O.P(Succession) 1/1997 for getting the retirement benefit of deceased Purushothaman. The plaintiffs also approached the same court with OP(Succession)No.9/1997 for the very same purpose. On getting knowledge about the OP (Succession) filed by the first defendant along with his mother, they applied for revoking the succession certificate in I.A.No.3829/1997, but it was ended in dismissal. Consequently, the OP (Succession)No. 9/1997 was also dismissed for non-prosecution on 12/6/2001. The present suit was instituted subsequently.

       Questions:

       (i) Whether the first appellate court is justified in granting a relief of partition in the absence of a relief sought and whether it is a lesser relief attached to the relief of declaration of title and recovery of possession as prayed for ?

       (ii) What would be the legal impact of an assertion of full right, title and interest over a co-ownership property by one of the co-owner in derogation of other co-owners by executing a document of alienation ?

       (iii) Is it not amount to notice to other co- owners when strangers inducted into possession of portions of co-ownership property, in furtherance of transfer of right or title over the property and whether it would amount to 'deemed notice' as envisaged under Section 3 of Transfer of Property Act ?

       (iv) What would be the period of time available to institute a suit for declaration of title, when coupled with other reliefs, such as partition, recovery of possession, injunction, and whether the trial court and the first appellate court are justified in applying Article 58 of the Limitation Act ?

       (v) Whether a mere suit for declaration of title and recovery of possession would be maintainable, when there is transfer and alienation in derogation of right, title and interest of co-owners by one co- owner to a stranger. Is it necessary to set aside the said document of transfer or a mere suit for declaration of their fractional interest and title over the property would be sufficient ?

       (vi) Whether it is permissible for one co-owner to recover possession of co-ownership property from the other, without having a partition of the respective shares and what would be legal effect, on failure to seek for partition and possession, if the co-owner is out of possession ?

       (vii) In a suit for declaration, whether it is mandatory to seek for further relief than a mere declaration invariably in all suits and if not, what is the criteria/test to be applied in ascertaining the mandate under the proviso to Section 34 of the Specific Relief Act ?

       Finding of the Court:

       The decree and judgment of the trial court and the first appellate court are modified as under :

       (a) Granted a decree of declaration of plaintiffs status as the legally wedded wife and children of deceased Purushothaman.

       (b) Granted a decree of declaration of plaintiffs' title over an extent of 34 cents and 112 sq.links of property excluding the extent covered by Exts.A7 and A8 out of 1 Acre 7 cents left out by deceased Purushothaman.

       (c) Granted a decree of recovery of possession of an extent of 34 cents and 112 sq.links of property excluding the extent covered by Exts.A7 and A8 out of 1 Acre 7 cents left out by deceased Purushothaman from the first defendant.

       (d) The suit as against defendant Nos. 2 to 5 are hereby dismissed.

       (e) The parties are directed to suffer their respective costs of appeal and suit including the second appeal.

       Result : The appeal and the cross objection are allowed in part.