MOHAMMED Vs. DEVAKY AMMA

JUDGEMENT

(1.) Plaintiff filed O.S.No.46 of 1964 before the Sub Court, Ottapalam claiming partition. He, his younger brother (deceased Karunakara Menon) and their mother Parukutty Amma were the only members of the tavazhi when they separated from the main tarwad as per partition deed dated 18-8-1952. Sixth defendant claimed tenancy right in the property on the strength of Exts.B1 and B9, Contention of the 6th defendant that he has tenancy right in the property was found against by the Trial Court as well as the first appellate court.

(2.) The only contention of the appellant (6th defendant) is that he is entitled to benefit under S.7B of the Kerala Land Reforms Act (hereinafter referred to as the Act). It is his contention that he has obtained the property as per a registered lease deed prior to 11-4-1957 from mother and brother of the plaintiff and hence he is entitled to the benefit under the Section. It is further contended by him that while deciding his claim the courts below considered only the fact that the lease was incompetent as the karanavan (plaintiff) was not a party to it and did not consider the bona fides of his claim. Learned counsel for the plaintiff submitted that the courts below while considering the case set up by the 6th defendant under S.7B have really considered all aspects of the matter and hence as against the concurrent findings of the courts below no interference is warranted in the Second Appeal.

(3.) In the preliminary judgment dated 3-1-1967 the Sub judge held that the amounts borrowed under Exts.B-1 and B-9 cannot be treated as debts charged on the plaintiffs share. The learned Judge also held that 6th defendant is not entitled to claim reservation of leasehold right in the property. But it is held that he is entitled to a charge for the sum of Rs.700/- advanced under Ext. B-1 and the sum of Rs.900/- advanced under Ext. B-9 over the share of defendants 1 to 5. The suit was decreed for partition ignoring the transactions set up by the 6th defendant and subject to the reservations indicated in the judgment. In A.S.No.164 of 1967 filed by the 6th defendant, the lower appellate court confirmed the finding of the Sub Judge that Exts.B1 and B9 and the alleged oral entrustment of item 1 are invalid and not binding on the tavazhi. The learned District Judge further held that out of the consideration of Ext. B-1 only Rs. 100/- is binding on the tavazhi. S. A.No.289 of 1969 filed by the 6th defendant was dismissed with the observation that his claim under S.7B of the Act has to be considered at the time of passing of the final decree.