RAHELAMMA KOSITY Vs. YOHANNAN

JUDGEMENT

(1.) The appellants are the plaintiffs in a suit for declaration of title and recovery. The case of the plaintiffs is that the suit property originally belonged to two brothers by name Perumal and Koshy. They held this and other properties as tenants-in-common. Perumal died in 1948 possessed of his share in the properties and leaving Ext. A10 Will under which he devised the suit property, as per B schedule, to his grand daughter Mary who is the second plaintiff, the first plaintiff being Mary's mother. The properties in the A schedule were devised to his other grand daughter by name Ammini. He also bequeathed to his wife Annamma the right to enjoy the usufruct of the properties in A and B schedules during her life. On 30-1-1962 the surviving brother Koshy entered into an agreement with Ammini and Mary under which a physical partition between him of the one part and Ammini and Mary of the other part was effected in regard to all the properties held in common by the two brothers. Under that agreement the suit property, comprising 3 acres and 81 contuse, was given absolutely to Mary, the second plaintiff. It is further stated by the plaintiffs that during 1952 the defendant respondent was let into possession of the suit property as a tenant by the surviving brother Koshy and Perumal's wife Annamma. This is in effect admitted by the defendant in Ext. A5 dated 31-5-1961, which is an application to fix fair rent under Act 4 of 1961, where he has stated that he has been holding the suit property as a tenant since 1952. The plaintiffs contend that, since the properties held in common by the two brothers came to be physically partitioned between Perumal's heirs and Koshy under Ext. B1 dated 30-1-1962, and since the defendant was let into possession of the suit property by Koshy together with Annamma, the latter having a mere limited interest to enjoy the usufructs during her life, the defendant can, if at all, only look to Koshy to the extent of his moiety, and the plaintiffs are entitled to recover possession of the suit property which belongs to Mary absolutely.

(2.) The defendant contends that he is protected under the Kerala Land Reforms Act, 1963 by virtue of the lease granted to him in 1952. The claim of tenancy was referred by the Trial Court under S.125(3). The Land Tribunal found, as a matter of fact, that the defendant was let into possession of the suit properly by Koshy and by the holder of a limited interest, namely, Annamma. This is what the Tribunal says:

(3.) The question really is whether the defendant was put into possession of the suit property by Koshy and Annamma, (the latter having only a limited interest) as found by the Tribunal, and, if so, whether, subsequent to Ext. B1 agreement between Koshy and Perumal's successors, the defendant was entitled to claim fixity in regard to the suit property.