1 IN THE SUPREME COURT OF INDIA   

 CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO.5347 OF 2001  

LUDINA PAVANAKUMARI                                .......APPELLANT

VERSUS

THANKAMMA JOHN(DEAD) BY LRS. & ORS.                .....RESPONDENTS  

J U D  G E M E  N T

This  

appeal  

is  

directed  

against  

the  

judgment  

of  the  

learned Single Judge of the Kerala High Court, who allowed the  

second appeal preferred by the respondents, reversed the decree  

passed by the lower appellate Court and restored the preliminary  

decree  passed  by  the  trial  Court  for  partition  of  the  plaint  

schedule property.

George Puthukkery was granted Kuthakapattam right in respect  

of the suit property (land measuring 5.125 cents) comprised in  

survey Nos.8328 and 8329 situated in Quilon for a fixed period of

2 12 years commencing from 20.10.1949.  He is said to have made some  

construction and lived with his two daughters,  namely, Mariamma  

John  and  Thankamma  John  (respondents  herein)  and  son,  Stephan  

George Puthukkery.  George Puthukkery died in 1958/1959 (in the  

judgment of the trial Court, the year of death has been shown as  

1959 whereas in the judgment of the lower appellate Court, the  

year of death has been shown as 1958).  During his lifetime,  

George Puthukkery married both the daughters.

After  

the  

death of  

George  

Puthukkery, the land remained in possession of his son, Stephan  

George Puthukkery, whose daughter is the appellant. He paid tax  

and also raised construction after obtaining permission from the  

municipality  vide  memo  Ex.B-8  dated  11.12.1963  and  started  

residing in the building.  He also set up Marama Chikitsalayam in  

the same year.  Kuthakapattam right is said to have been given to  

Stephan  George  Puthukkery  over  22.875  cents  land  comprised  in  

survey Nos.8328 and 8329 including 5.125 cents in respect of which

3 Kuthakapattam right was given to his father in 1949.  After 14  

years, the land was assigned to Stephan George Puthukkery vide  

G.O.Rt. No.853/77/RD dated 2.6.1977 issued by the State Government  

under Rule 9(2) of the Kerala Government Land Assignment Rules,  

1964.   

The respondents filed suit in the Court of Principal Munsiff,  

Quilon  (trial  Court)  for  partition  of  5.125  cents  land  by  

asserting that the plaint schedule property belong to their father  

and  

after  

his  

death,  

they are  

entitled  

to  get  

1/3rd  

share  

each  in  

accordance  with  the  provisions  of  the  Travancore  Christian  

Succession Act 1092.  The respondents claimed that they had asked  

their brother Stephan George Puthukkery, who was impleaded as sole  

defendant in the suit to effect partition but he declined to do  

so. They further prayed for restraining the defendant from wasting  

or  alienating  the  plaint  schedule  property.  In  the  written  

statement filed by him, the defendant disputed the claim of the  

respondents and pleaded that he was in exclusive possession of

4 22.875  cents  land  including  the  plaint  schedule  land,  raised  

construction  and  was  living  with  his  family  and  also  running  

Marama Chikitsalayam. He further pleaded that both the respondents  

were  married  40/30  years  ago  and  they  were  living  with  their  

husbands and that he had got Kuthakapattam right over the property  

from the Government. During the pendency of the suit,  Stephan  

George Puthukkery executed settlement dated 30.5.1983 (Ex.B-12) in  

favour of the appellant.   

The  

trial  

Court  

vide its  

judgment  

dated  

21.1.1984 decreed the suit and declared that the respondents are  

entitled to 2/3rd share in the plaint schedule property. The trial  

Court also restrained the defendant from committing any waste or  

obstructing the respondents from enjoying the properties till the  

partition was effected.   

After  the  judgment  of  the  trial  Court,  Stephan  George  

Puthukkery  appears  to  have  died  and,  therefore,  the  appellant  

filed an appeal questioning the legality and correctness of the

5 judgment and decree of the trial Court.  Along with the appeal,  

she produced documents evidencing grant of Kuthakapattam right to  

her father, Stephan George Puthukkery over 22.875 cents land.  She  

also produced patta issued by the Government and the settlement  

deed executed in her favour.  The respondents opposed the marking  

of the documents produced by the appellant by contending that the  

same  were  neither  referred  to  in  the  written  statement  nor  

produced before the trial Court.  Thereupon, the counsel for the  

appellant made a prayer that the case be remanded to the trial  

Court for fresh disposal.  The lower appellate Court accepted his  

prayer, allowed the appeal, set aside the judgment and decree of  

the trial Court and remanded the case for fresh disposal of the  

suit filed by the respondents.

In furtherance of the direction given by the lower appellate  

Court, the trial Court re-evaluated the evidence produced by the  

parties,  referred  to  the  assignment  of  22.875  cents  land  to

6 Stephen  George  Puthukkery  and  held  that  the  buildings  were  

constructed  on  the  plaint  schedule  property  by  the  defendant  

himself with his own funds and the respondents do not have any  

right over the same.  Notwithstanding this, the trial Court held  

that  the  plaint  schedule  property  is  identifiable  as  part  of  

22.875  cents  land  covered  by  Ex.B-6  and  the  respondents  are  

entitled to get 2/3rd share in it.  The trial Court also referred  

to the judgment of this Court in Mary Roy v. State of Kerala 1986  

KLT  508  

= (1986)  

2  SCC  

209  

wherein  

it  was  

held  

that  

Travancore Christian Succession Act 1092 stood repealed with the  

extension  of  Indian  Succession  Act,  1925  to  the  State  of  

Travancore-Cochin by virtue of Section 3 of the Part B States  

(Laws) Act, 1951 and proceeded to observe that the respondents are  

entitled to share in the property of their father.

The appellant challenged the judgment and decree in AS No.87  

of 1989, which was allowed by the lower appellate Court vide its  

judgment dated 27.11.1989.  The lower appellate Court noted that

7 tenure of Kuthakapattam right given to George Puthukkery had come  

to an end on the expiry of 12 years and as such the respondents  

were not entitled to their so called share in the plaint schedule  

property.   The  lower  appellate  Court  also  referred  to  the  

assignment of 22.875 cents land in favour of the defendant vide  

Ex.B-6  and  held  that  the  respondents  have  no  right  to  seek  

partition of the plaint schedule property.     

The High Court noted that the question of law raised in the  

second  

appeal  

centered  

around  

Section  

90  of  

the  

Indian  

Trust  

Act,  

referred  

to the documents market Exts. A1, B6, B7 and held that the trial  

Court was justified in decreeing the suit because in spite of the  

permission granted by the lower appellate Court, the defendant  

Stephen George Puthukkery did not amend the written statement to  

raise contentions based on Exts.B6 and B7.  However, the learned  

Single Judge did not frame any specific substantial question of  

law  as  per  the  mandate  of  Section  100  of  the  Code  of  Civil

8 Procedure and allowed the second appeal by assuming that being the  

heirs of George Puthukery, the respondents have a right to seek  

partition of the property which was granted to their father as  

Kuthakapattam.

We have heard learned counsel for the parties and carefully  

scrutinised the records.  In our view, the impugned judgment is  

liable to be set aside only on the ground that the learned Single  

Judge failed to notice that the tenure of Kuthakapattam right  

given to  

George  

Puthukkery in 1949 had come to an end some time in 1961 and as on  

the date of filing the suit the respondents did not have any  

tangible  right  in  the  plaint  schedule  property.   The  learned  

Single Judge also did not pay due attention to the facts that  

after  1961  the  land  remained  in  possession  of  Stephan  George  

Puthukkery, who paid tax and constructed building after obtaining  

permission from the municipality; that Kuthakapattam right was  

given to Stephan George Puthukkery in respect of 22.875 cents land

9 including the plaint schedule property and in 1977 the same was  

assigned to him under Rule 9(2) of the Kerala Government Land  

Assignment Rules, 1964 and thereby he had become absolute owner of  

the entire property, which was transferred to the appellant in  

1983.  Admittedly,  the  respondents  had  not  challenged  the  

assignment  of  land  in  favour  of  Stephen  George  Puthukkery.  

Therefore, they had no right to claim partition of the plaint  

schedule property and the trial Court and the High Court gravely  

erred in  

passing  

a decree  

in their  

favour.  

In  

the  

result,  

the  

appeal  

is  

allowed, the impugned  judgment is set aside and the one passed by  

the lower appellate Court is restored. As a sequel to this, the  

suit filed by the respondents is dismissed. The parties are left  

to bear their own costs.

               ...........................J.         ( G.S.SINGHVI )

10

                ............................J.         ( ASOK KUMAR GANGULY )

NEW DELHI; NOVEMBER 18, 2010.