Ludina Pavanakumari vs Thankamma John(Dead) By Lrs. & Ors

LUDINA PAVANAKUMARI .......APPELLANT

VERSUS

THANKAMMA JOHN(DEAD) BY LRS. & ORS. .....RESPONDENTS

J U D G E M E N T

This

appeal

is

directed

against

the

judgment

of the

learned Single Judge of the Kerala High Court, who allowed the

second appeal preferred by the respondents, reversed the decree

passed by the lower appellate Court and restored the preliminary

decree passed by the trial Court for partition of the plaint

schedule property.

George Puthukkery was granted Kuthakapattam right in respect

of the suit property (land measuring 5.125 cents) comprised in

survey Nos.8328 and 8329 situated in Quilon for a fixed period of 2 12 years commencing from 20.10.1949. He is said to have made some

construction and lived with his two daughters, namely, Mariamma

John and Thankamma John (respondents herein) and son, Stephan

George Puthukkery. George Puthukkery died in 1958/1959 (in the

judgment of the trial Court, the year of death has been shown as

1959 whereas in the judgment of the lower appellate Court, the

year of death has been shown as 1958). During his lifetime,

George Puthukkery married both the daughters.

After

the

death of

George

Puthukkery, the land remained in possession of his son, Stephan

George Puthukkery, whose daughter is the appellant. He paid tax

and also raised construction after obtaining permission from the

municipality vide memo Ex.B-8 dated 11.12.1963 and started

residing in the building. He also set up Marama Chikitsalayam in

the same year. Kuthakapattam right is said to have been given to

Stephan George Puthukkery over 22.875 cents land comprised in

survey Nos.8328 and 8329 including 5.125 cents in respect of which 3 Kuthakapattam right was given to his father in 1949. After 14

years, the land was assigned to Stephan George Puthukkery vide

G.O.Rt. No.853/77/RD dated 2.6.1977 issued by the State Government

under Rule 9(2) of the Kerala Government Land Assignment Rules,

1964.

The respondents filed suit in the Court of Principal Munsiff,

Quilon (trial Court) for partition of 5.125 cents land by

asserting that the plaint schedule property belong to their father

and

after

his

death,

they are

entitled

to get

1/3rd

share

each in

accordance with the provisions of the Travancore Christian

Succession Act 1092. The respondents claimed that they had asked

their brother Stephan George Puthukkery, who was impleaded as sole

defendant in the suit to effect partition but he declined to do

so. They further prayed for restraining the defendant from wasting

or alienating the plaint schedule property. In the written

statement filed by him, the defendant disputed the claim of the

respondents and pleaded that he was in exclusive possession of 4 22.875 cents land including the plaint schedule land, raised

construction and was living with his family and also running

Marama Chikitsalayam. He further pleaded that both the respondents

were married 40/30 years ago and they were living with their

husbands and that he had got Kuthakapattam right over the property

from the Government. During the pendency of the suit, Stephan

George Puthukkery executed settlement dated 30.5.1983 (Ex.B-12) in

favour of the appellant.

The

trial

Court

vide its

judgment

dated

21.1.1984 decreed the suit and declared that the respondents are

entitled to 2/3rd share in the plaint schedule property. The trial

Court also restrained the defendant from committing any waste or

obstructing the respondents from enjoying the properties till the

partition was effected.

After the judgment of the trial Court, Stephan George

Puthukkery appears to have died and, therefore, the appellant

filed an appeal questioning the legality and correctness of the 5 judgment and decree of the trial Court. Along with the appeal,

she produced documents evidencing grant of Kuthakapattam right to

her father, Stephan George Puthukkery over 22.875 cents land. She

also produced patta issued by the Government and the settlement

deed executed in her favour. The respondents opposed the marking

of the documents produced by the appellant by contending that the

same were neither referred to in the written statement nor

produced before the trial Court. Thereupon, the counsel for the

appellant made a prayer that the case be remanded to the trial

Court for fresh disposal. The lower appellate Court accepted his

prayer, allowed the appeal, set aside the judgment and decree of

the trial Court and remanded the case for fresh disposal of the

suit filed by the respondents.

In furtherance of the direction given by the lower appellate

Court, the trial Court re-evaluated the evidence produced by the

parties, referred to the assignment of 22.875 cents land to 6 Stephen George Puthukkery and held that the buildings were

constructed on the plaint schedule property by the defendant

himself with his own funds and the respondents do not have any

right over the same. Notwithstanding this, the trial Court held

that the plaint schedule property is identifiable as part of

22.875 cents land covered by Ex.B-6 and the respondents are

entitled to get 2/3rd share in it. The trial Court also referred

to the judgment of this Court in Mary Roy v. State of Kerala 1986

KLT 508

= (1986)

2 SCC

209

wherein

it was

held

that

Travancore Christian Succession Act 1092 stood repealed with the

extension of Indian Succession Act, 1925 to the State of

Travancore-Cochin by virtue of Section 3 of the Part B States

(Laws) Act, 1951 and proceeded to observe that the respondents are

entitled to share in the property of their father.

The appellant challenged the judgment and decree in AS No.87

of 1989, which was allowed by the lower appellate Court vide its

judgment dated 27.11.1989. The lower appellate Court noted that 7 tenure of Kuthakapattam right given to George Puthukkery had come

to an end on the expiry of 12 years and as such the respondents

were not entitled to their so called share in the plaint schedule

property. The lower appellate Court also referred to the

assignment of 22.875 cents land in favour of the defendant vide

Ex.B-6 and held that the respondents have no right to seek

partition of the plaint schedule property.

The High Court noted that the question of law raised in the

second

appeal

centered

around

Section

90 of

the

Indian

Trust

Act,

referred

to the documents market Exts. A1, B6, B7 and held that the trial

Court was justified in decreeing the suit because in spite of the

permission granted by the lower appellate Court, the defendant

Stephen George Puthukkery did not amend the written statement to

raise contentions based on Exts.B6 and B7. However, the learned

Single Judge did not frame any specific substantial question of

law as per the mandate of Section 100 of the Code of Civil 8 Procedure and allowed the second appeal by assuming that being the

heirs of George Puthukery, the respondents have a right to seek

partition of the property which was granted to their father as

Kuthakapattam.

We have heard learned counsel for the parties and carefully

scrutinised the records. In our view, the impugned judgment is

liable to be set aside only on the ground that the learned Single

Judge failed to notice that the tenure of Kuthakapattam right

given to

George

Puthukkery in 1949 had come to an end some time in 1961 and as on

the date of filing the suit the respondents did not have any

tangible right in the plaint schedule property. The learned

Single Judge also did not pay due attention to the facts that

after 1961 the land remained in possession of Stephan George

Puthukkery, who paid tax and constructed building after obtaining

permission from the municipality; that Kuthakapattam right was

given to Stephan George Puthukkery in respect of 22.875 cents land 9 including the plaint schedule property and in 1977 the same was

assigned to him under Rule 9(2) of the Kerala Government Land

Assignment Rules, 1964 and thereby he had become absolute owner of

the entire property, which was transferred to the appellant in

1983. Admittedly, the respondents had not challenged the

assignment of land in favour of Stephen George Puthukkery.

Therefore, they had no right to claim partition of the plaint

schedule property and the trial Court and the High Court gravely

erred in

passing

a decree

in their

favour.

In

the

result,

the

appeal

is

allowed, the impugned judgment is set aside and the one passed by

the lower appellate Court is restored. As a sequel to this, the

suit filed by the respondents is dismissed. The parties are left

to bear their own costs.

...........................J. ( G.S.SINGHVI ) 10

............................J. ( ASOK KUMAR GANGULY )

NEW DELHI;

NOVEMBER 18, 2010.