RSA No. 150 of 2007 · Kerala High Court

Defendants 8,26 to 29, 31 and 32 in O.S.No.290/1986 on the file of Munsiff Court, Kasaragod are the appellants. Respondents are the plaintiffs and other defendants. The suit was filed seeking partition and separation of the shares. It was contended that plaint A schedule properties originally belonged to the Kutumba governed under Aliyasanthana Law till it was abolished by Joint Hindu Family System (Abolition) Act, 1976 and defendants 2 to 8 are managing major portion of the family properties and plaintiffs and defendants 16 to 22 are members of the Kutumba and even though plaintiffs requested defendants 2 to 8 to effect partition, they are not prepared and so the suit seeking separation of the shares. It was contended that Shankara Alva, husband of 12th defendant and father of defendants R.S.A.150/2007 2 13 to 15 created a false tenancy to dupe and defraud the family members and 13th defendant is not a tenant in respect of 40 cents in R.S.No.83/4, 11 cents in R.S.No.83/1 and 62 cents in R.S.No.80/8 and 13th defendant is not in exclusive possession and he has no right or exclusive possession of the properties and 13th defendant obtained an order from the Land Tribunal in SM.678/1977 but it is fraudulent and collusive one and is not binding on the plaintiffs or the plaint schedule properties.

Plaintiffs sought division of the plaint schedule properties into 32 equal shares and allotment of 20 shares to plaintiffs and defendants 17 to 22 and 25. Defendants 2 and 8 filed a joint written statement contending that second defendant is the wife of Monappa Chowta and item No.2 of the plaint A schedule properties measuring 1.24 acres in R.S. No.80/8 is not available for partition and R.S. No.80/8 does not belong to the Kutumba or in the joint possession of plaintiffs and defendants and defendants are not managing any portion of Kutumba R.S.A.150/2007 3 properties. It was contended that items 1,3 and 4 of the plaint A schedule properties are separately in the possession and enjoyment of defendants 1,2 and 13 and defendants 2 and 8 are entitled to their share of income from item No. 1, 3 and 4 of the plaint A schedule properties and 13th defendant is not a tenant and he is in possession of the property as a member of the family and after the death of Shankara Alva he continued in possession of the properties and the order obtained by him from the Land Tribunal is fraudulent and collusive and is not binding on Kutumba properties.

It was also contended that a usufructuary mortgage was created in respect of the property in R.S.No.80/8 in favour of 8th defendant by the Kutumba as per registered deed dated 6.5.1946 and the mortgagee was put in possession and enjoyment of the property and the right of the Kutumba to redeem the mortgage is barred by time and without redeeming the mortgage the property cannot be partitioned. 13th defendant filed a separate written statement R.S.A.150/2007 4 claiming tenancy right. Defendants 26 to 29, 31 and 32 also filed a written statement contending that item No.2 of the plaint A schedule properties is not available for partition and plaintiffs have no right over that property and item 1,3 and 4 are in the possession of plaintiffs and 13th defendant is not a tenant and without redeeming the mortgage of 1946, property in R.S.80/8 which is in the possession of 8th defendant cannot be divided and they along with defendant No.30 are entitled to 1/32 shares and it is not in the joint possession and it cannot be partitioned.

Learned Munsiff on the evidence of Pw1 and DW1 and Exts.B1 to B14 and X1 to X1(a) passed a preliminary decree finding that plaint A scheudle properties except 40 cents in R.S.83/1 and 52 cents in R.S.80/8 are available for partition and they are to be divided into 32 equal shares and plaintiffs and defendants 17 to 22 and 25 are entitled to 20/32 shares. Tenancy claimed by 13th defendants over the excluded portion of the R.S.A.150/2007 5 properties was upheld. The preliminary decree was challenged by the plaintiffs in A.S.86/2002 and by defendants 8, 26 to 29 and 31 and 32 the appellants herein A.S.87/2002. Learned Sub Judge on reappreciation of evidence confirmed the findings of learned Munsiff and dismissed the appeals and confirmed the preliminary decree. It is challenged in the second appeal by the appellants in A.S.84/2002.

Learned counsel appearing for appellants was heard.

The argument of learned counsel appearing for appellants is that courts below should have found that the oral lease set up by 13th defendant is not valid as written consent of all the major members of the kutumba was not obtained and the lease was not for the benefit of the Kutumba and therefore hit by Section 29 of Madras Aliyasanthana Act, 1949. It was also contended that courts below should have found that 13th defendant is not a cultivating tenant and R.S.A.150/2007 6 properties claimed by 13th defendant are also should have been found available for partition. It was also argued that courts below should have found that as the mortgage evidenced by Ext.B2 which was in 1946 was not redeemed and was barred when the suit was filed and so the property covered by Ext.B2 is not available for partition. Learned counsel also argued that Ext.B2 should have been acted upon by the courts below and therefore the preliminary decree is to be modified.

On hearing learned counsel appearing for appellants, I do not find any substantial question of law involved in the appeal.

The oral lease upheld by the courts below is in favour of 13th defendant, to whom jenm right was assigned by the Land Tribunal. It was attacked by the learned counsel projecting that the oral lease was not granted with the written consent of all the major members of the Kutumba and was not for the necessity or benefit of the Kutumba and therefore it is hit by Section 29 of Act and as it R.S.A.150/2007 7 was not considered by the courts below, it is a substantial question of law to be considered in this case. It was argued that as Ext.B2 along with Ext.B4 gift deed and Ext.B3 series of tax receipts establish that the mortgagee was put in possession and the mortgage was of 1946 was not redeemed, and as the redemption is barred courts below should not have directed partition of the property covered under Ext.B2.

True, section 29 of Madras Aliyasanthana Act provides that no sale or mortgage of any immovable property of a Kutumba and no lease of any such property either for a premium returnable wholly or in part or for a period exceeding five years, shall be valid, unless it is executed by the yajaman, for consideration, for Kutumba necessity or benefit and with the written consent of the majority of major members of the Kutumba and no lease of any immovable property of a Kutumba in cases not referred earlier shall be valid unless it is executed by the yajaman and where the Malabar R.S.A.150/2007 8 Tenancy Act confers fixity of tenure on the lessee, unless written consent of majority of major members of the Kutumba has been obtained to the lease. Hence even for granting a lease written consent of majority of members of the Kutumba is necessary. In addition the lease or alienation should be for the necessity or benefit of the Kutumba.