RAMAKKE Vs. GOPI

JUDGEMENT

(1.) The surviving defendants in a suit for partition are the appellants. Mundappa Gatty had three children; a son Manju Gatty and daughters Birmage and Korappalu. Manju Gatty died issueless and intestate and his right also devolved on the sisters and the plaintiffs are the heirs of Korappalu. They accordingly sued for partition. The defendants contended that Manju Gatty was himself the cultivating tenant of the property in question, he having obtained lease from Vakil Narasimha Naik and had, along with the heirs of Narasimha Naik, filed J Form under the Kerala Land Reforms Act and obtained Ext. A8 order of assignment and certificate regarding the property in question and Manju Gatty who remained unmarried and issueless had executed Ext. B1 Will in favour of the 2nd defendant, who is the son of the 1st defendant.

(2.) The feet that Ext A8 purchase certificate is issued by the Land Tribunal in favour of the 2nd defendant is admitted by the plaintiffs, even going by the plaint averments, in as much as, they plead the said fact; do not impeach it as a fraudulent action before the Land Tribunal; but contended that the benefit of Ext A8 inured to the benefit of the three children of Mundappa Gatty since, according to them, it was Manju Gatty who had originally obtained the lease from the land owner Narasimha Naik. It was on that basis that they pleaded in the plaint that the action of Manju Gatty in obtaining Ext. A8 purchase certificate is one on behalf of all the heirs of Mundappa Gatty and therefore, Ext. A8 inures to their benefit also.

(3.) The court below, on an appreciation of Ext. A8, took the view that the said order by the Land Tribunal and certification were not issued after looking into the lease, but only by acting on the J Form and that on the basis of the materials on record in the suit from which this appeal arises, the lease has to be held as one in favour of Mundappa Gatty and not Manju Gatty. It accordingly held that the benefit of Ext. A8 inures in favour of the children of Mundappa Gatty, though the order and certificate issued by the Land Tribunal stands in the name of Manju Gatty. It further upheld Ext. B1 Will by Manju Gatty containing the bequest in favour of the 2nd defendant. Accordingly, the impugned preliminary decree for partition was passed.