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IN THE HIGH COURT OF KERALA AT ERNAKULAM
M.A. ABDUL HAKHIM, J.
VADAKKAYIL BALAN S/O GOVINDAN – Appellant
Versus
A.K. PRABHAKARAN NAMBIAR S/O NINKILERI KUNHIKRISHNAN NAMBIAR – Respondent
R.S.A. No. 671 of 2016
Decided On : 07-09-2024
Property - Tharavad Rights - Transfer of Property Act, 1882, Section 44; Kerala Land Reforms Act, 1963, Section 72K - The court interpreted Section 44 of the Transfer of Property Act concerning co-ownership and dwelling houses, concluding that the plaintiffs failed to establish their claim over the house due to its dilapidated condition and lack of evidence of residence.
Fact of the Case:
The plaintiffs filed a suit for declaration and recovery of possession of a property claimed to belong to their Tharavad, challenging a sale deed executed by a member of the Tharavad in favor of the defendants. The defendants contended that the property was not Tharavad property and was individually owned by Narayanan Nambiar (Junior).
Finding of the Court:
The court found that the plaintiffs failed to prove their claim over the house in the plaint schedule property, as it was in a dilapidated condition and not used for dwelling purposes. The court also ruled that Section 44 of the Transfer of Property Act was not applicable.
Issues: Whether the members of the Tharavad have rights over the house situated in the plaint schedule property, and whether the First Appellate Court was correct in its application of Section 44 of the Transfer of Property Act.
Ratio Decidendi: The court held that Section 44 of the Transfer of Property Act does not apply when the property in question is not a dwelling house and when the plaintiffs failed to demonstrate their right to reside in the property.
Result: The Regular Second Appeal is allowed, setting aside the judgment of the First Appellate Court and dismissing the suit.
JUDGMENT :
M.A. ABDUL HAKHIM, J.
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. 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. 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 incorrec
AI
The court established that Section 44 of the Transfer of Property Act does not confer rights over a property that is not a dwelling house, particularly when the plaintiffs failed to prove their claim....
Section 44 of the Transfer of Property Act does not apply if the property in question is not a habitable dwelling house and the plaintiffs fail to establish their claim.
For a property to be considered an undivided dwelling house under Section 44 of the T.P. Act, 1882, it must be physically connected and necessary for the enjoyment of the dwelling, which was not esta....
The court upheld the plaintiff's right to seek a mandatory injunction against the defendant, emphasizing the necessity of consistent evidence and pleadings in property disputes.
A permanent injunction can be granted against a co-owner if the plaintiffs establish their possession and enjoyment of the property, despite the defendant's claims.
The court affirmed that ownership claims must be supported by documentary evidence, and the principle of preponderance of probability governs determinations of title and tenancy.
The Kerala Land Conservancy Act does not permit summary eviction in the presence of bona fide title disputes, requiring civil adjudication for property rights conflicts.
To establish the sameness of interest, it is not necessary to establish sameness of the cause of action. Sameness of interest is a pre-requisite for application of under Order 1 Rule 8 of the C.P.C.
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