A lease executed prior to the Malabar Tenancy Act is treated as a fresh lease, influencing property characterization in relations of self-acquired versus ancestral ownership.

JUDGMENT

These appeals arise from a common Judgment in A.S No. 24 of 2006 and A.S No. 27 of 2006 on the files 0f Sub Court Kozhikode. Three suits were tried together. One preferred by the appellants for injunction against the respondents, another by the respondents 1 and 2 in R.S.A No. 1029 of 2011 for partition of plaint schedule property and the last one by the father of the above respondents for cancellation of the sale deed executed by him in favour of the appellants. The suit for injunction was decreed, while the other suits were dismissed. Two appeals were preferred by the respondents. As against the dismissal of the third suit, no appeal was preferred.

2. The brief facts necessary for the disposal of these appeals are as follows:-

One Chandu had various extents of property in his hold. Chandu derived Jenmom rights over the property from a Nair Tharavadu. His son Chathukkutty, however, had a lease deed executed on 23.10.1908.

Later, Chathukkutty got a lease deed renewed by yet another document in the year 1921 as document No.3159/21 dated 22.07.1921. While so, there was a partition among the Jenmi Tharavadu and by a fresh lease deed executed in the year 1951 as document No.500/1951, Chathukkutty became vested with various extents of property. Though, there is dispute among the parties as regards the nature and character of the said document, which will be dealt with, subsequently, in the judgment, it appears that the said Chathukkutty had proceeded to execute a Will in the year 1955 as Will No.19/1955 dated 10.11.1955. In the said Will, item Nos.17 to 19 was bequeathed in favour one Sreedharan, the father of the plaintiffs in O.S.No.483/2003. Sreedharan in turn had executed a Kanam Assignment deed in favour of the plaintiffs in O.S.No.453 of 2003 / the appellants herein on 16.06.1998. When there was an attempt on the part of the respondents/plaintiffs in O.S.No.483 of 2003 to disturb the possession of the appellants herein, a suit for injunction was filed. Immediately, thereafter, the defendants 2 and 3 in that suit came up with a separate suit as O.S.No.483/2003 claiming that the property at the hands of Sreedharan is a joint family property and therefore, the plaintiffs in O.S.No.483/2003 having born prior to 1976, are entitled to seek for partition. In the meantime, Sreedharan instituted O.S.No.595/2003 for cancellation of the Kanam Assignment deed dated 16.06.1998 on the ground that the sale deed is a sham document and it was intended to operate only as a security document. The claim for partition was resisted by the appellants on the ground that the property in question is a self acquired property of Sreedharan and therefore, he was entitled to dispose of it in accordance with his wish. By referring to the lease deed executed in the year 1951, it was contended that the property in the hands of Chathukkutty was not an ancestral property, but a self acquired property by virtue of the lease deed executed by the Tharavadu. The Trial Court, on an appreciation of the oral and documentary evidence, came to the conclusion that the appellants/plaintiffs in O.S.No.453/2003 are entitled to succeed. Accordingly, decreed the suit for injunction. The claim for partition was declined on the ground that the Late.Chathukkutty was entitled to hold the property as his self acquired property and therefore, the Will executed in the year 1955 was perfectly valid. As far as O.S.No.595/2003 filed by the Sreedharan for cancellation of the Kanam Assignment deed dated 16.06.1998 is concerned, the same was dismissed. It appears that Sreedharan did not carry forward the challenge in a separate appeal. The defendants 2