AUGUSTY DEVASIA Vs. HARIDASAN NAIR

JUDGEMENT

(1.) This appeal has come up before the Full Bench in view of the conflict between two Bench decisions of this Court, namely, Veerasikku Gounder v. Korah Kurian, 1960 Ker LT 213 and Moideenkutty v. Subhadra,1966 Ker LT 1125. The issue involed is whether a transferee under a void document would come within the definition of 'tenant' in Section 2(d)(iii) of Kerala Compensation for Tenants Improvements Act 29 of 1958 and can claim compensation for the improvements made by him on the property. In 1960 Ker LT 213, it was held that the transferee who had to surrender possession of the property on finding that the document under which he acquired title to the property was to be set aside would come within the definition of 'tenant'. Any improvements effected by him on the land covered by the sale must be taken to have been effectd by him in the bona fide belief that he is entitled to make such improvements because of the existence of the sale in his favour. In 1966 Ker LT 1125 supra, it was held that a purchaser of a property from a person who had no title to it whatsoever cannot be consisdered to be a person who has made any purchase whatsoever. Therefore, he will not come within the expression 'tenant' in Section 2(d)(iii) of the Kerala Compensation for Tenants Improvements Act 29 fo 1958. Learned single Judge who referred the matter for consideration of a Larger Bench expressed his view in favour of the first decision. But, the Division Bench, which referred the matter, has not expressed any view at all.

(2.) The second appeal is at the instance of the 3rd defendant in O.S. 236/83 of the file of the Court of Munsiff, Pala. Repsondents 1 to 3 are the plaintiffs and respondents 4 to 6 are defendants 1, 2 and 4 respectively in the suit. Plaintiffs contended that they, along with their mother, 4th defendant, acquired 391/2 cents of property under a sale deed No. 1723/70 and were enjoing the same jointly. While so, 4th defendant-mother sold the properties under sale deed No. 1734/75 dated 17-7- 1975 to the 1st defendant who, in turn, transferred the property under a sale deed of the year 1977 to the 2nd defendant. 3rd defendant-appellant acquired the property from the 2nd defendant under a sale deed of the year 1982. When the 4th defendant executed sale deed in favour of the 1st defendant, plaintiffs were minors. Plaintiffs contended that the sale deed executed by their mother, 4th defendant as their guardian is void in law. There was no necessity at that time to alienate the property. No consideration was passed from the vendee and no property was acquired in their favour, in spite of a recital to that effect in the sale deed. Defendants 1 and 2 and 4 remained ex parte. 3rd defendant filed wirtten statement and contended that he was a bona fide purchaser from the 2nd defendant, sale deed of the year 1975 in favour of the 1st defendant was supported by consideration and that the sale deed is binding on the plaintiffs and 4th defendant.

(3.) Trial Court as well as First Appellate Court found that Ext. A1 sale deed 17-7-1985 executed by the 4th respondent on her behalf as also as guardian of the plaintiffs is void in law in view of the provisions contained under the Hindu Minority and Guardianship Act, 1956, to the extent it covered the interest of the plaintiffs. Trial Court granted a preliminary decree for partition declaring plaintiffs' 3/4th share over the property and allowing them to have their share separated to gether with future profits which would be assessed in t he final decree proceedings. 3rd defendant as allowed to take the improvements effect by him, in his share, without diminishing the share of the plaintiffs. We do not find any reason to interfere with the concurrent finding entered by the courts below on this issue.