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2022 Supreme(Online)(KER) 56736
HIGH COURT OF KERALA
, J
MOHANAN – Appellant
Versus
BALAN – Respondent
RSA 994 2013
SRI.DEEPU LAL MOHAN, SRI.T.N.MANOJ
Co-owners cannot exclude each other from property benefits; a patta obtained by one in a fiduciary role must benefit all owners under Section 90 of the Indian Trust Act.
Headnote:
Partition - Property Rights - Indian Trust Act, 1882 (Section 90), Kerala Land Assignment Act - Summary: The court discussed the principle that co-owners cannot take exclusive advantage from a jointly held property. The first defendant was deemed a constructive trustee for all co-owners, making the property partible despite his claims of exclusive ownership.
Fact of the Case:
The plaintiffs sought partition of properties inherited from their deceased father, but the first defendant claimed exclusive ownership based on a patta issued in his name. The trial court dismissed the suit, but the appellate court reversed this decision, declaring the property partible.
Finding of the Court:
The appellate court found the first defendant’s patta to have been obtained as a co-owner, thus making him a constructive trustee. The evidence indicated joint enjoyment of the property, concluding that the first defendant held the patta for the benefit of all co-owners.
Issues: Whether the patta issued to the first defendant conferred exclusive rights over the property, and whether the plaintiffs were entitled to partition.
Ratio Decidendi: The court established that a patta claimed under the Land Assignment Act by one co-owner does not preclude the rights of other co-owners and that the principle in Section 90 of the Indian Trust Act mandates that any advantage gained by a co-owner must benefit all co-owners.
Final Decision: The appeal was dismissed, and the appellate court's order for partition of the property was upheld.
JUDGMENT
Dated this the 15th day of December, 2022 This appeal has been directed against the judgment and decree in A.S.No.56/2009 on the file of Additional Sub Court, Irinjalakuda which in turn arise out of the judgment and decree in O.S.No.1197/2007 on the file of Munsiff's Court, Irinjalakkuda. The suit is one for partition. (Parties would hereafter be referred as per their status before the trial court). Plaintiff, first defendant and the husband of the second defendant are the children of late Peramangalam Raman. Defendants 3 and 4 are the children of deceased Madhavan, the deceased son of late Raman. Late Raman and the mother of the plaintiff and first defendant are no more. Father was in possession of 15 ¼ cents and 58 cents of property in Survey No.27/8/15 and 27/8/16 respectively. After the death of father, the property was devolved upon the legal heirs of late Raman and the property is in the joint possession of plaintiffs and defendants. Patta with respect to scheduled property was granted in favour of the first defendant and he has possessed the plaint schedule property for and on behalf of the plaintiff and the other legal heirs of late father. Plaintiffs have 4/6 shares out of the plaint schedule properties and first defendant has 1/6 share over the properties. Annual income from the scheduled properties is Rs.12,000/-. Even though first defendant was repeatedly demanded for partition of the properties, he was not willing for the same. Hence the suit.
2. Defendants 2 to 4 remained ex-parte. First defendant filed written statement denying that the plaint schedule property belonged to deceased father and the plaintiff and other defendants have right over the scheduled property. Plaint schedule property is under his ownership and possession. Patta was issued in favour of the first defendant. Plaintiff and other defendants have no right over the scheduled property and the plaint schedule property is not liable to be partitioned.
3. PW1 was examined and Ext.A1 was marked from the side of the plaintiff. DW1 and DW2 were examined and Exts.B1 to B4 were marked from the side of the defendants.
4. The learned Munsiff, on evaluating the facts and circumstances and evidence, dismissed the suit finding that the plaint schedule property is not partible, against which the plaintiffs filed appeal and the first appellate court on re- appreciating the facts and circumstances and evidence, reversed the judgment and decree passed by the trial court and found that the 1st defendant in his capacity as co-owner acted as constructive trustee of the plaintiffs and other defendants when he obtained patta with respect to plaint schedule property and hence it was found that the plaint schedule property is partible and thereby reversed the judgment and decree passed by the trial court and ordered partition of the plaint schedule property declaring the 4/6 shares of the plaintiffs over the schedule property.
5. Aggrieved by the judgment and decree passed by the first appellate court, the contesting first defendant approaches this Court in second appeal.
6. Notice was issued to the respondents/plaintiffs and lower court records were called for and both sides were heard. At the time of admission substantial question of law is framed as in the appeal memorandum which reads thus:
i. Is it not a case where, in view of the fact that Ext.B1 is one issued under the provisions of the Land Assignment Act and Rules, the argument that the patta in the name of one person would ensure to the benefit of all, is not an argument available at all?
ii. Is it not a case where only in the case of cultivating tenant or a Kudikidapukaram, under the provisions of the K L R Act, that an argument that the certificate is for and on behalf of all would lie and not in a case of registry on assignment where the primary aspect is the entitlement of the patta holder which gives the patta?
iii. Is it not a case where in view of Ext A1 the suit itself is not maintainable?
iv. Is it no
