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IN THE HIGH COURT OF KERALA AT ERNAKULAM
M.A. ABDUL HAKHIM, J.
Vadakkayil Balan – Appellant
Versus
Prabhakaran Nambiar – Respondent
RSA No.671 of 2016
Decided on : 27-09-2024
(A) Transfer of Property Act, 1882 - Section 44 - Kerala Land Reforms Act, 1963 - The case involves a dispute over the ownership and possession of a house situated in Tharavad property. The First Appellate Court decreed recovery of possession of the house, finding it excluded from a prior lease deed. The court emphasized that a transferee who is a stranger to the family cannot claim rights over a dwelling house unless it is habitable. The house in question was found to be in a dilapidated condition, thus not qualifying as a dwelling house under Section 44. (Paras 10, 11, 20, 30)
(B) The court ruled that the plaintiffs failed to prove their claim over the house, as they did not establish that it was a dwelling house or that they intended to reside there. The First Appellate Court's reliance on Section 44 was deemed inappropriate given the circumstances. (Paras 19, 24, 31)
Facts of the case:
The suit was filed for declaration and recovery of possession of a house in Tharavad property, with disputes over the validity of title documents and the nature of the property.
Findings of Court:
The court found that the house was not habitable and the plaintiffs failed to prove their claim over it.
Issues: The main issues were whether the house constituted a dwelling house and the applicability of Section 44 of the Transfer of Property Act.
Ratio Decidendi: The court held that Section 44 does not apply if the house is not suitable for dwelling and the plaintiffs did not demonstrate any intention to reside there.
Result: The Regular Second Appeal is allowed, dismissing the suit.
JUDGMENT :
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 incorrect; that the Tharavad Ho
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.
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....
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.
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.
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.
Possession established by parties through revenue documents prevails over contested ownership claims; mere sale deed insufficient to negate established rights.
Claimants must provide valid title documents and evidence of ownership in property disputes; reliance on non-title documents like patta is insufficient.
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