PATHU Vs. MAMMAD

JUDGEMENT

(1.) learned single Judge of this Court has referred these cases to Division Bench "to resolve the apparent conflict between the decision by Eradi J. in 1974 KLT 286 and Poti J. in 1980 KLT 854 " and in view of the fact that "the decision by Eradi J. is seen doubted by a Division Bench of this Court in ASA No.3 of 1971 ( 1974 KLT SN 23 )".

(2.) Revision petitioner in the CRP is the first respondent in the second appeal. First appellant in the second appeal daughter of Ibrayi, filed a suit OS 257 of 1964 in the Munsiff's Court, Payyoli for partition and separation of her 7/72 share in the suit property on the allegation that the property belonged to her deceased father Ibrayi and on his death, she has inherited a share. She also challenged registered lease deed (Ext. B7) marked in the suit executed by her brother, third defendant, in favour of her brother inlaw, 7th defendant and contended that she is entitled to partition free from the claims under the lease deed. Second defendant is the widow, defendants 3.4 and 6 are sons and plaintiff and defendants 1 and 5 are daughters of Ibrayi. Third defendant remained ex parte in the suit. Defendants 1, 2 and 4 to 6 supported the plaintiff and claimed their own shares. Seventh defendant contended that the lease deed is valid and binding on all the parties, that the property belonged to the puthravakasam thavazhi of the defendants of which third defendant was the karanavan and the lease deed executed by the karnavan is binding on all the members of the family. He also contended that the lease was granted with the consent of all the other sharers. He further contended that in the event of eviction he is entitled to value of improvements. Trial Court held that the property did not belong to any puthravakasam thavazhi as alleged but that the property was inherited by the widow and children of Ibrayi as coheirs, that the third defendant had no representative capacity to grant the lease, that the lease was not consented to by the coowners and was not valid and binding on the coowners except the third defendant. Issues 5 and 6 relating to improvements and equity were left open and preliminary decree was passed directing partition and separation of plaintiff's share and declaring that the lease deed is not binding on any of the coowners' except the third defendant. Appellate Court confirmed the decree but held that the seventh defendant is entitled to value of improvements and directed quantum to be assessed in the final decree proceedings. Second appeal filed by the seventh defendant was dismissed but with a direction that claim of the seventh defendant that he is a deemed tenant as contemplated in S.7B of Kerala Land Reforms Act 1/1964 (for short 'the KLR Act') would be decided before final decree is passed.

(3.) Plaintiff filed application for passing final decree. Seventh defendant filed IA 1072/1975 pleading that he is a deemed tenant as contemplated in S.7B of the KLR Act and contending that the decree should be reopened. Application was opposed by all the sharers except third defendant (they are the appellants in the second appeal). Trial Court held that the lease transaction is fishy and came about in a fraudulent atmosphere and that seventh defendant cannot be said to be a person holding possession honestly believing himself to be tenant as contemplated in the decision of this Court in Kaliyannan v. Narasimha Iyer 1974 KLT 286. The Court held that seventh defendant is entitled to protection under S.7B of the KLR Act and accordingly dismissed the petition. Order was challenged before the appellate court which reversed the decision and held that the seventh defendant is entitled to the benefit of protection under S.7B. Appellate Judgment is challenged in second appeal.