ACHAYIYATH SARADA Vs. A. SHANMUGHAM

JUDGEMENT

(1.) A dispute arose as regards the apportionment of compensation for the extent of 115 sq. ft. of land acquired by the Government which led to LAR No. 11/1981 on the file of the Court of the Subordinate Judge of Kozhikode. The property forms part of about 1 acre of land purchased by three brothers by name Choyi, Kelu and Damodaran under Ext.A1 sale deed dated 25.6.1930. Choyi was at that time employed as a Post Master in a post office, Kelu as a Jamedar in a telegraph office and Damodaran as a Teacher in a school explicit from the recitals. Choyi died on 2.12.1933 leaving behind his three sons and two daughters as his legal heirs who are impleaded as Claimant Nos. 11 to 15 in the land acquisition reference. Kelu died on 28.4.1954 leaving behind his four daughters as his legal heirs who are impleaded as Claimant Nos. 7 to 10 in the land acquisition reference. Damodaran died on 3.11.1954 leaving behind one daughter and a son who are impleaded as Claimant Nos. 16 and 17 in the land acquisition reference answered by the Court of the Subordinate Judge. It appears that Claimant Nos. 11, 12 and 17 who are the two sons of Choyi and one son of Damodaran subsequently executed Ext.A6 partition deed dated 4.10.1979 amongst themselves. The land of extent 115 sq. ft. which is the subject matter of the acquisition forms part of the property allotted to Claimant No.12 in Ext.A6 partition deed.

(2.) The Court of the Subordinate Judge by judgment dated 29.6.1985 held that the compensation amount is to be divided into three equal shares one of which will go to Claimant Nos. 7 to 10 exclusively. This was challenged by Claimant No. 12 in LAA. No. 200/1985 contending that he alone is entitled to the compensation for land acquisition on the strength of Ext.A6 partition deed. The learned single Judge has accepted this plea holding that the property belongs to the joint family of the three brothers over which the sons alone have right as co-parceners. The learned single Judge has allowed LAA. No. 200/1985 by the impugned judgment which is challenged by Claimant Nos. 8 to 10 and the legal heirs of Claimant No. 7. It is reported that Claimant No. 13 died on 14.11.1991 only after the hearing of LAA. No. 200/1985 on 13.11.1991 and hence there could be no abatement of the appeal. No exception can also be taken to the maintainability of the Letters

(3.) We heard the following counsel: