Judicial Analysis Court Copy Headnote Facts Arguments Court observation

2024 Supreme(Ker) 176

IN THE HIGH COURT OF KERALA AT ERNAKULAM
A. Badharudeen, J.
Sivasankaran and Ors. – Petitioners
Versus
Unnikrishnan And Ors. – Respondents
RSA NO. 457 of 2019
Decided On : 01-03-2024

Advocates:
Advocate Appeared:
For the Petitioner: T.Krishnanunni (Sr.), Sri.Vinod Ravindranath, Smt.Meena.A., Smt.M.R.Mini, Sri.Ashwin Sathyanath, Sri.Rohit Nandakumar, Advs.
For the Respondent: Sri.R.Rajesh Kormath, Adv.

When a certificate of purchase is obtained by one co-owner, the benefit automatically enures to the benefit of others once it is established by evidence that the same was obtained by one co-owner.

Headnote:
Purchase Certificate - Property Partition - Kerala Land Reforms Act, 1963 Sections 72(1) & 72K(2) - [72(1), 72K(2)] - The court discussed the legal effect of the purchase certificate issued under Section 72K of the Kerala Land Reforms Act, 1963. It held that when a certificate of purchase is obtained by one co-owner, the benefit automatically enures to the benefit of others once it is established by evidence that the same was obtained by one co-owner. The court also emphasized that no specific challenge against the purchase certificate and no prayer for declaration to that extent are mandatory or obligatory.
Fact of the Case:
The case involved a dispute over the partition of property left by the father of the plaintiff and the defendants. The trial court passed a preliminary decree for partition, which was confirmed by the appellate court. The appellants argued that the purchase certificate issued in favor of defendants 1 and 2 should not enure to the benefit of the plaintiff and other children of the deceased father.
Finding of the Court:
The court found that the purchase certificate obtained by defendants 1 and 2 would enure to the benefit of the plaintiff and the defendants, as it was established by evidence that the same was obtained by one co-owner. Therefore, the property was held liable to be partitioned as per the trial court's decision.
Issues: The main issue was whether the purchase certificate issued in favor of defendants 1 and 2 should enure to the benefit of the plaintiff and other children of the deceased father.
Ratio Decidendi: The court held that when a certificate of purchase is obtained by one co-owner, the benefit automatically enures to the benefit of others once it is established by evidence that the same was obtained by one co-owner. The court also emphasized that no specific challenge against the purchase certificate and no prayer for declaration to that extent are mandatory or obligatory.
Final Decision: The Second Appeal was found to be meritless and accordingly dismissed. The property was held liable to be partitioned as per the trial court's decision.

JUDGMENT :

This appeal arises out of decree and judgment dated 19.01.2019 in A.S.No.19 of 2016 on the files of Sub Court, Manjeri, whereby the verdict rendered by the Munsiff Court, Perinthalmanna in O.S.No. 123/2012 dated 16.06.2014 was confirmed. Defendants 2 to 4, 6 and 7 and legal heirs of deceased 1st defendant are the appellants herein. The respondents are the original plaintiff as well as 5th defendant.

2. As per order dated 11.11.2019 my learned predecessor raised the following substantial question of law and admitted this appeal.

“Are the courts below justified in finding that the purchase certificate issued in favour of defendants 1 and 2 with respect to item No.2 of plaint B schedule enures to the benefit of plaintiff in the absence of specific challenge against the same and also without any prayer for declaration to that extent?”

3. Heard the learned counsel for the appellants as well as the learned counsel appearing for the contesting respondents in detail. Perused the trial court as well as the appellate court records and the relevant decisions placed by the parties.

4. Unnikrishnan as plaintiff had filed the Suit citing plaint A schedule genealogy on the assertion that plaint B schedule property is liable to be partitioned since the same was left by Krishnan, the father of the plaintiff and the defendants.

5. Defendants 1 to 4, 6 and 7 filed joint written statement admitting plaint A schedule genealogy. But it was contended that father Krishnan and mother Kalyani died in the year 1998 and 2000 respectively. Item No.1 in the plaint B schedule property actually would come to 30 cents. It was contended that the 4th defendant purchased the undivided share of defendants 5 and 6 in item No.1 of plaint B schedule property as per document No.5327/2008 and undivided right of 7th defendant as per document No.1337/2009 and the undivided share of defendants 1 to 3 as per document No.969/2011. Thus only the plaintiff and the 4th defendant are possessing item No.1 in the plaint B schedule property.

6. Further contention was that plaint item No.2 to B schedule comprised in Sy.No.35/5 was not obtained on lease from Pulamanthol Mana by late Krishnan and therefore plaintiff has no right as a co-owner in item No.2 to plaint B schedule. The specific contention was that defendants 1 and 2 together directly obtained leasehold right and they jointly obtained purchase certificate No.302/2009 from the Land Tribunal, Manjeri in relation to item No.2 to plaint B schedule. Thereafter the 2nd defendant conveyed his half undivided right over the same as per document No.4475/2009. Thus absolute right over 13 cents of item No.2 to plaint B schedule vested with 1st defendant and 12 cents vested with defendant No.2.

7. Trial court raised necessary issues and tried the matter. PW1 was examined and Exts.A1 to A5(b) were marked on the side of the plaintiff. DW2 was examined and Exts.B1 to B14 were marked on the side of defendants. Ext.C1 commission report also was marked. Trial court appraised the contentions and finally found that item No.1 and 2 in plaint B schedule property are partiable and accordingly preliminary decree for partition was passed as under:

“1. Item No.1 to the plaint B schedule property consist of partiable interest between the plaintiff and the 4 th defendant and therefore ordered to be partitioned into 8 shares and the plaintiff is entitled to 1/8 share and the 4 th defendant is entitled to 7/8 shares in the item No.1 to the plaint B scheduled property.

2. Item No.2 in the plaint B schedule property consists of partiable interest among the plaintiff and defendants No.1 to 7 and therefore ordered to be divided into 8 shares and plaintiff is entitled to 1/8 share and each defendant is entitled to 1/8 share in the Item No.2 to plaint B schedule property.

3. Cost will come out of the estate.

4. Any of the party is at liberty to file final decree application and seek allotment of their share by metes and bounds.

5. Subject to payment of Court