M. Sasidharan Nambiar, J.
Plaintiff in O.S. 122/1986 on the file of Sub Court, Kasaragod is the Appellant. Defendants are the Respondents. Suit was filed for partition. Plaint schedule properties are 9 cents in R.S. No. 89/4 and 52 cents in R.S. No. 94/4 of Kasaragod Kasba Village. They admittedly originally belonged to Sheshu Mallya who died issueless in 1933. He had adopted Panduranga Mallya, who died in 1982, as his son. First Respondent is the widow and Appellant and Respondents 2 to 5 are his sons. Sixth Respondent is the son of second Respondent. According to the Appellant, Appellant and Respondents 1 to 6 are followers of Hindu Mithakswara Law of and Sheshu Mallya was a member of the coparcenary and under Ext. A-1 partition deed dated 24-10-1921 joint family properties were divided and some properties were allotted to Sheshu Mallya. The properties so allotted were outstanding on anwar rights. Under Ext. A-2 he assigned the anwar right and utilising the funds he purchased plaint A schedule properties under Ext. A-3 sale deed dated 9-2-1928. When Panduranga Mallya was adopted, as his son, he became a member of the coparcenary. When Respondents 2 to 5 and late Ramnath Mallya were born to Panduranga Mallya and sixth Respondent was born to the second Respondent, they all became members of that coparcenary and each of them had one share. On the death of Panduranga Mallya, his rights vested with the other members of the coparcenary by survivorship. On the death of Ramanatha Mallya, the son of Panduranga Mallya, his rights devolved on the mother, the first Respondent. It is contended that C.V. Kamath had filed O. S. 8/1958 before Sub Court, Kasaragod against Panduranga Mallya and another and obtained a money decree and in execution of that decree plaint A schedule properties were put up for sale in E.P. 28/1966 and C.V. Kamath purchased the entire plaint A schedule property. According to the Appellant Panduranga Mallya had only an undivided 1/7 share in the property and he was sued in O.S. 8/1958 only in his individual capacity and so in the court auction sale C.V. Kamath obtained only the 1/7th right and title of K. Panduranga Mallya. Thereafter C.V. Kamath and the sons of Panduranga Mallya were in joint possession of the plaint A schedule properties. It is contended that Appellant later realised that seventh Respondent and one Muthappa had filed two separate applications for purchase of jenm right before Land Tribunal, Kasaragod and as per the orders passed by the Land Tribunal, purchase certificates were granted in their favour. It was contended that the orders passed and the purchase certificates so issued are invalid and not binding on the plaint A schedule properties as it is not an agricultural lease and they were only building tenants in respect of two houses occupied by them and they played fraud on the Land Tribunal and obtained the orders. It was also contended that no individual notice was given to Panduranga Mallya and in any case Respondents 1 to 6 were not impleaded in the applications before the Land Tribunal and therefore the orders are not binding on them and in any case the orders and the purchase certificates are sham and void. Contending that Appellant and Respondents 1 to 6 are in joint possession of the properties Appellant sought division of the plaint A schedule properties and allotment of his 1/2 share.
2. Respondents 1 to 6 in their joint written statement admitted plaint allegations and claimed their 6/7 shares.
3. Seventh Respondent filed a written statement disputing the title of the Appellant and Respondents 1 to 6 contending that seventh Respondent has been in possession of portion of plaint A schedule property shown in the written statement and he had sold portion of the property to Respondents 8 and 9 and seventh Respondent is now in possession of 14 cents and he has already purchased jenm right in respect of the property and after due enquiry purchase certificate was issued by the Land Tribunal and it is valid and binding on the Appellant and Respondents 1 to 6 and therefore they are not entitled to claim any share.
4. Respondents 8 and 9 filed a joint written statement adopting the contentions raised by the seventh Respondent.
5. Respondents 10 to 13 filed a joint written statement denying the title of the Appellant and Respondents 1 to 7. It was contended that Panduranga Mallya was a total stranger to the property and the family of Panduranga Mallya had no right in the property and plaint A schedule property which belonged to Panduranga Mallya was sold in court auction in E.P. 28/1966 in execution of the decree in O.S. 8/1958 and the decree and the court sale are binding on the plaint A schedule property as well as Appellant and Respondents 1 to 6 and it was not''/, share of Panduranga Mallya which was purchased by C.V. Kamath but the whole right and at the time of court auction sale, there was no joint family and in any case Panduranga Mallya could only be the Kartha of his joint family and in the suit and the execution proceedings, he represented the joint family. It was contended that Respondents 10 to 13 are in possession and enjoyment of the four items of property comprising 15 cents and 12 1/4 cents, 12 1/2 cents and 9 1/2 cents shown in the written statement and even if Appellant and others have any right, it is lost by adverse possession. It was also contended that the orders and the purchase certificate issued in favour of Muthappa is valid and binding on the Appellant and Respondents 1 to 6 as well as the properties and they are not entitled to challenge the same and the suit is only to be dismissed.
6. 16th Respondent in his written statement contended that plaint A schedule property did not belong to Panduranga Mallya or to his sons or to the joint family and the properties were sold in court auction in E.P. 28/1966 and were purchased by C.V. Kamath and K.M. Zainuddin purchased 6 cents out of item No. 1 of the plaint A schedule properties as per document No. 146/1976 and thereafter transferred it in favour of 16th Respondent as per document No. 798/1977 and transferor also gifted 1/2 cent of land in favour of Mariyumma his wife and later she sold the property to the 16th Respondent as per document No. 797/1977 and C.V. Kamath had sold 2 cents from item No. 7 of plaint A schedule property to 1 one K.M. Hameed who in turn sold it to the 17th Respondent and 17th Respondent is in possession of 9 cents in R.S.89/4 and Appellant or Respondents 1 to 6 have no right over that property and the suit is only to be dismissed.
7. On the side of the Appellant he was examined as P.W. 1 and a witness was examined as P.W. 2. Exts. A-1 to A-7 were marked. On the side of Respondents, Exts. B-1 to B-20 were marked and D.W. 1 was examined. Learned Sub Judge on the evidence found that plaint A schedule properties were the ancestral properties of the joint family in the hands of late Panduranga Mallya. It was further found that the properties of Panduranga Mallya were sold in court auction in execution of the decree and later Muthappa purchased jenm right from the Land Tribunal under Ext. B-1 order and it is valid and binding on the Appellant and Respondents 1 to 6. Learned Sub Judge also found that the court auction sale evidenced by Ext. A-7 sale certificate and Ext. B-1 order of the Land Tribunal are binding on the Appellant and Respondents 1 to 6 and they lost right in the plaint A schedule properties from 1973 onwards and Appellant is not a co-owner of the plaint A schedule property thereafter and he is not in joint possession and as Appellant has no title to the properties he or Defendants 1 to 6 are not entitled to any share. The-suit was dismissed. Challenging the decree and judgment Plaintiff has filed this appeal.
8. Learned Counsel appearing for the Appellant and Respondents were t heard.
9. Learned Counsel appearing for the Appellant submitted that though in the plaint partition of 71 cents was sought, subsequent to a settlement of dispute with Respondents 1 to 6 and 8 and 9, I.A. 1392/1990 was filed for recording the compromise stating that Appellant along with Respondents 1 to 6 received Rs. 65,000 from Respondents 8 and 9 and they thereby relinquished their right in respect of 13 cents in R.S. No. 94/4 in favour of Respondents 8 and 9 and partition of only the remaining property was sought. Learned Counsel argued that though under Ext. A-3 the property was obtained by Sheshu Mallya, Ext. A-1 shows that ancestral properties were obtained by Sheshu Mallya in the partition and they were sold under Ext. A-2 and plaint schedule properties were thereafter purchased under Ext. A-3 with the said funds and in any case when Sheshu Mallya adopted Panduranga Mallya as his son. Seshu Mallya and Panduranga Mallya constituted a coparcenary and on the death of Seshu Mallya, by survivorship, his rights also vested on Panduranga Mallya and when Appellant and Respondents 2 to 5 were bom to Panduranga Mallya they also constituted members of the coparcenary and thereafter Respondents 2 to 6 and Appellant became members of the coparcenary and therefore Panduranga Mallya had only 1/7th right in the coparcenary properties - at the time when in execution of the decree in O.S. 8/1958 obtained by Sulochana Bai, property of Panduranga Mallya was proceeded against and finally sold in court auction and purchased by the auction purchaser C.V. Kamath. It was argued that when the judgment-debtor Panduranga Mallya had only 1/7th right in the properties, the auction purchaser could only claim that right and neither in O.S. 8/1958 nor in the execution petition Panduranga Mallya was representing the coparcenary and therefore the court auction sale will affect only his 1/7th share. Learned Counsel also argued that though Muthappa claiming to be a cultivating tenant approached the Land Tribunal and under Ext. B-1 order in O.A. 1186/1971 Muthappa was assigned the jenm right in respect of 49 cents of plaint A schedule properties which was later sold by him under Ext. B-2 in favour of Sreedharan and Ravi which in turn are claimed by Respondents 10 to 13 under Exts. B-3 to B-6, in the O.A. only Panduranga Mallya was impleaded and as mandated u/s 104 of the Kerala Land Reforms Act, the seniormost male member of the coparcenary was not impleaded and therefore Ext. B-1 order is null and void and not valid and binding on Appellant and Respondents 1 to 6 or the plaint A schedule properties. Learned Counsel relying on the decision of this Court in Puthalathu Bava Muhammad v. Sankara Pillai Achuthan Plllai 1978 K.L.N. 253) and Muhammad Haji v. Kunhunni Nair 1993 (1) KLT 227 (F.B.) and in Parukutty v. Appukuttan 1978 KLT 162 argued that Ext. B-1 order is not binding on the Appellant or Respondents 1 to 6 and Muthappa was only a building tenantundcr Exts. B-2 and B-3 to B-6 they did not derive any right in the plaint schedule property and therefore the properties are to be divided as sought for in the plaint. Learned Counsel relying on the decision of the Apex Court in Shccla Devi and Ors. v. Lal Chand and Anr. (2006) 8 SC.C. 581 argued that u/s 6 of Hindu Succession Act the coparcenary property can be inherited only by the remaining members of the coparcenary and therefore Appellant and Respondents 1 to 6 are entitled to get the property divided.
10. Learned Counsel appearing for Respondents argued that the coparcenary of Sheshu Mallya was divided under Ext. A-1 partition deed of 1921 and thereafter Sheshu Mallya was not a member of any coparcenary and he died in 1933 and all his rights were inherited by Panduranga Mallya the adopted son and in O.S. 8/1958 in execution of the money dccrcc the rights of Panduranga Mallya was sold in court auction and purchased by C.V. Kamath and by the court sale, his entire rights were sold and thereafter no other right was left with Panduranga Mallya to be claimed by Appellant or Respondents 1 to 6 after his death and as Panduranga Mallya was the absolute owner of the properties Appellant or Respondents 1 to 6 cannot claim any right in the property before the death of Panduranga Mallya. It was argued that before his death in 1982 the properties were sold in court auction and purchased by C.V. Kamath and therefore the claim for partition can only be rejected. Learned Counsel also argued that in any case even Panduranga Mallya was a member of the coparcenary he would be its Kartha and when in execution of the decree passed against him the properties were sold, it is binding on the remaining members of the joint family and Appellant and Respondents 1 to 6 are not entitled to challenge the same. Learned Counsel then argued that in any case Muthappa the cultivating tenant of 49 cents of the property filed O.A. 1186/1971 for purchase of jenm right of the 49 cents and under Ext. B-1 order, in the presence of Panduranga Mallya, Muthappa was allowed to purchase the jenm right and Ext. B-1 order shows that notice was served on Panduranga Mallya and therefore Ext. B-1 order is valid and binding on Panduranga Mallya and his widow and children and they are not entitled to challenge the same as it has become final. Learned Counsel relying on the Full Bench decision of the Madras High Court in Addl. Commissioner of Income Tax v. P.L. Karuppan Chcttiar AIR 1979 Madras I pointed out that the legal position settled therein was followed by this Court in Chittur Service Co-operative Bank Ltd. v. Kumaran 1992 (I) KLT 215 and it was approved by the Apex Court in
11. The fact that Sheshu Mallya was a member of a coparcenary was specifically pleaded in the plaint. It was also pleaded that Sheshu Mallya though died issueless, had adopted Panduranga Mallya as his son and first Respondent is the widow and Respondents 2 to 5 are the sons and sixth Respondent is the son of a deceased son of Panduranga Mallya. It was also specifically pleaded in the plaint that they are followers of Hindu Mithakswara Law. This fact was not denied in the written statement. Even at the time of evidence, there was no case for the contesting Defendants that they are not followers of the Hindu Mithakswara Law. Therefore it can only be found that Sheshu Mallya and his adopted son and his sons are all governed by Hindu Mithakswara Law.
12. The coparcenary of Sheshu Mallya was admittedly divided under Ext. A-1 partition deed in 1921. Joint family properties were divided and the share due to Sheshu Mallya was allotted to him. Though Sheshu Mallya had no issues, when he adopted Panduranga Mallya, Panduranga Mallya automatically became a member of the coparcenary consisting of Sheshu Mallya and Panduranga Mallya. When Sheshu Mallya died in 1933, the coparcenary consisted of Sheshu Mallya and his adopted son Panduranga Mallya. When Panduranga Mallya is a member of the coparcenary the moment a son was born to Panduranga Mallya that son automatically became a member of the coparcenary by birth. Therefore to that extent the rights of Panduranga Mallya stood modified. When another son was born, again that son also became a member of the coparcenary by birth and to that extent the rights of Panduranga Mallya and the other sons got modified.
13. A Hindu coparcenary is a much narrower body than a joint family. The coparcenary includes only those persons who acquire by birth, an interest in the coparcenary property. They are the sons, grandsons and great grandsons of the holder of the joint property for the time being. A property inherited by a Hindu from his father, father''s father or father''s father''s father is ancestral property. At the same time property inherited by him from other relations are his separate properties. The essential feature of the ancestral property is that, if the person inheriting the ancestral property has sons, grandsons or great grandsons, they bccome joint owner''s or coparcenars along with him. They are entitled to the said right due to their birth. If a son is born subsequently or a grandson or a great grandson is born thereafter, the said son, or grandson or great grandson also became entitled to an equal right by their birth and all of them constitute the coparcenary. Similarly if the father acquires his own property or inherits property from other source which are not ancestral properties, the other members of the coparcenary family cannot claim any right in that property. On his death the said property would devolve on his legal heirs. But it is not by survivorship but by succession. At the same time when the self acquired property of the father is devolved on his son or sons who are members of the coparcenary, it becomes the coparcenary property. In that event it could be claimed by his sons, son''s sons and great grandsons due to their birth. If that be so it cannot be claimed by the son who inherited it that he alone has right over the property or that is his separate property. Prior to the coming into force of Hindu Succession Act, 1956, if A who had a son B inherited property from his father it became ancestral property in his hands and B became a coparccnar with his father. On the other hand if it was the separate property of A, he has absolute right over the property and it cannot be claimed by his son during his lifetime. But on his death his right passes on to the son, though not by survivorship but by succession. Thus even if A inherited the property from his brother and thereby it was his separate property where he had independent absolute right of disposal and the son did not acquire any right by birth, and on his death that property descends to a male issue, then it becomes ancestral property in the hands of the male issue who inherited it. Thus if A who owned separate or self acquired property died, on his death it passes on to the son B as his heir and if B had a son C, C has an interest in that property by reason of his birth and he becomes a coparcenar in respect of the said property with his father B. At the same time, if the father died after coming into force of Hindu Succession Act, 1956, then the inheritance of the property of the father could only be as provided u/s 8 of the Hindu Succession Act, 1956.
14. The law in this behalf is clearly stated in Mayne''s Hindu Law and usage Twelth Edition at page 295 as follows:
Where ancestral property has been divided between several joint owners, there can be no doubt that if any of them have male issue living at the time of the partition, the share which falls to him will continue to be ancestral property in his hands, as regards his male issue, for their rights had already attached upon it, and the partition only cuts off the claims of the dividing members. The father and his male issue still remain joint. The same rule would apply even where the partition had been made before the birth of the male issue or before a son is adopted, for the share which is taken at a partition, by one of the coparceners is taken by him as representing his branch.
The question whether under Hindu Law separate property/self acquired property of a father goes on his death to his sons in the absence of grandsons in a joint Hindu Family way, in joint tenancy, or does it descend by inheritance in well-defined shares as tenants in common was a question of grave conflict of opinion in different High Courts.
15. A Full Bench of the Madras High Court in Viravan Chettiar v. Srinivasachariar A.1.R. 1921 Madras 168 speaking through Kumaraswami Sastri, J. expressed the following opinion:
So far as the text of the Mitakshara dealing with the rights of the sons in their father''s self acquisitions it has been decided by Their Lordships of the Privy Council in Balwant Singh v. Rani Kishor that the text,
''though immovables or bipeds have been acquired by a man himself, a gift or sale of them should not be made without convening all the sons. They who are born and they who are yet unbegotten and they who are still in the womb, require the means of support. No gift or sale should therefore be made'',
is only a moral precept and not a rule of law capable of being enforced. As pointed out in Madan Gopal v. Ram Buksh and Jugmohanda Mangaldas v. Sir Mangaldas Nathubhoy the son acquires no leqal rights over his father''s self-acquisitions by reason of the text of the Mitakshara (Ch. 1, Ss. 1.27) but that his right is imperfect one incapable of being enforced at law.
It is difficult to see how there can be any coparcenary between the father and the sons as regards self-acquired property over which the sons have no legal claim or enforceable rights. Coparcenary and survivorship imply the existence of co-ownership and of rights of partition enforceable at law and a mere moral injunction can hardly be the foundation of a legal right. As observed by the Privy Council in Rani Sartaj Kuari v. Dcoraj Kuari the property in the paternal or ancestral estate acquired by birth under the Mitakshara Law is so connected with a right to partition that it does not exist where there is no right to it. A contention was raised during the course of the argument before the Privy Council in Raja Chelikani Venkayamma v. Raja Chelikani Vcnkataramanayamma that sons acquire a right by birth in the father''s self acquired property. Lord Macnaghten observed that he did not quite understand what that right was and observed ''He is his father''s son and if his father does not dispose of, it will come to him; but is it anything more than a spes?'' So far as a father''s self acquisitions are concerned, the son, though undivided, has only spes succession is and he stands in relation to that property in the same position as heir under Hindu Law. The very essence of the distinction between Apratibandha and Sapratibandha daya is the existence of an interest in the son in respect of properties got by his father. As observed by West and Buhler in a passage (Book 2, Introduction page 19) which was approved in Nand Kumar Lala v. Moulvi Rcazuddccn Ilussain ancestral property may be said to be co-extensive with the objects of apratibandha daya or unobstructed inheritance.
Another Full Bench of the Madras High Court in M.D.R. Ranganatha Mudaliar v. M.D.T. Kumaraswami Mudaliar AIR 1959 Madras 253 had occasion to reconsider the Full Bench decision and the learned Judges refrained from reconsidering it as the Full Bench decision has been treated as stare decisis.
16. The Allahabad High Court in Commissioner of Income Tax, U.P. v. Ram Rakshpal, Ashok Kumar 1968 (67) ITR 164 held that in view of the provisions of Hindu Succession Act, 1956, the income from assets inherited by a son from his father from whom he had separated by partition could not be assessed as the income of the Hindu undivided family of the son. The Allahabad High Court came to the conclusion after discussing the commentary in Mulla''s Hindu Law, and Introduction to Modern Hindu Law by Dr. Derret and placing reliance on the decision of the Privy Council as well as on Mayne''s Hindu Law that the position in Hindu Law is that the income from assets inherited by a son from his father, from whom he had separated by partition could not be assessed in the name of the Hindu undivided family of the son. It was held that partition took away by way of coparcenary the character of coparcenary property which meant that the share of another coparcener upon the division, although the property was obtained by the coparcenar by a partition, continued to be the coparcenary property for him and his unseparated issue. The facts of that case reveal that one Ram Rakshpal and his father Durga Prasad constituted a Hindu undivided family which was assessed as such. Later Ram Rakshpal separated from his father by partition in October, 1948. Thereafter Ram Rakshpal started his own business. But the income therefrom was assessed as an income in the hands of the Assessee family. Durga Prasad, the father after partition had started his own buisiness in the name and style of M/s Murlidhar Mathura Prasad which he continued till his death on 29th March, 195 8 and he left behind his widow, a married daughter and son Ram Rakshpal and grandson Ashok Kumar, the son of Ram Rakshpal as his survivors. u/s 8 of the Hindu Succession Act, the assets left by Durga Prasad devolved on the widow and children. Vidya Wati, the daughter thereafter separated. Mother and son continued the business inherited by them. The share of profit of Ram Rakshapal was assessed as the income of the family. Ram Rakshapal contended that the income cannot be taxed in the hands of Hindu undivided family as it is his personal income. The High Court settled the dispute holding that the assets of the business left in the hands of Ram Rakshapal, would be governed by Section 8 of the Hindu Succession Act and he will take it as his individual capacity.
17. A Division Bench of Allahabad High Court in Pratap Narain v. CIT (1967) 63 LT.R. 505 considering the same question held:
It seems to us that it is now well-settled, that when Hindu undivided family property is partitioned between the members of a Hindu undivided family, and a share is obtained on such partition by a coparcenar, it is ancestral property as regards his male issue. They take an interest in it by birth, whether they are in existence at the time of partition or are born subsequently. We are of opinion that it is not correct to say that the share of the property, upon partition, constitutes the separate property of the coparcenar and that it is only subsequently when a son is bom that the property becomes ancestral property or Hindu undivided family property. The birth of the son does not alter the nature of the property. The property all along continues to be coparcenary property. But upon the birth of a son all the rights which belong to a coparcenar belong to that son, and the enlarged rights hitherto enjoyed by the sole coparcenar are now abridged within their normal compass.
It was held that in view of Section 4 of Hindu Succession Act, any text, rule or interpretation of Hindu Law or any custom or usage as part of that law in force immediately before the commencement of that Act shall cease to have effect with respect to any matter for which provision is made in the Act and any other law in force immediately before the commencement of the Hindu Succession Act shall cease to apply to Hindus in so far it is inconsistent with any of the provisions contained in the Act. Holding that Section 6 deals with devolution of interest in coparcenary property, when a male Hindu dies after commencement of the Act having at the time of his death an interest in a mithakshara coparcenary his interest in the property shall devolve by survivorship upon the surviving members of the coparcenary and not in accordance with the Act, the proviso to Section 6 indicates that if the deceased had left him surviving a female relative specified in Class I of the Schedule or a male relative specified in that class who claims through such female relative, interest of the deceased in Mitakshara coparcenary property shall devolve by testamentary or intestate succession and not by survivorship and the income from the assets inherited by the son from his father from, whom he has separated by partition can be treated only as an income of the son individually. It was held that u/s 8 of the Hindu Succession Act the property of the father who dies intestate will devolve on his son in his individual capacity.
18. But the Gujarat High Court in
19. The Full Bench of the Madras High Court which was heavily relied on by the learned Counsel appearing for the Respondents was followed by this Court in Chittur Service Co-operative Bank Ltd. v. Kumaran 1992 (1) KLT 216 and later approved by the Apex Court in Commissioner of Wealth Tax v. Chander Son A.1.R. 1986 S.C. 1753. The view taken by the Madras High Court was in consonance with the view of the Allahabad High Court. The facts of the Full Bench decision of the Madras High Court show that a partition was effected on March 22,1954 in the Hindu undivided family consisting of P, his wife and their son K and their daughter-in-law and in that partition certain properties were allotted to his share. That partition was accepted by the revenue as provided u/s 25A of Income Tax Act, 1922. K along with his wife and subsequently born children constituted a Hindu undivided family which was being assessed by the department in that status. P died on 9-9-1963 leaving behind his widow and the undivided son K, who was the Kartha of his Hindu undivided family. They are his legal heirs u/s 8 of Hindu Succession Act. Thus K and the widow of P succeeded to the property left by deceased P and then they divided the property among themselves. But when assessment was made on the Hindu undivided family consisting of K, the Kartha and his wife and sons Income Tax Officer included the income received by K from the property which was inherited from his father P. Though it was questioned before the Appellate Assistant Commissioner, the order was confirmed. In the appeal preferred before the Appellate Tribunal, the Tribunal held that the property inherited by K did not form part of the joint Hindu family property of K, his wife and sons and that income cannot be assessed as the income in the hands of the joint Hindu family consisting of K, his wife and sons. On a reference to the High Court at the instance of the revenue the dispute was settled by the Full Bench. The Full Bench held that under Hindu Law the property of a male Hindu on his death devolved on his sons and grandsons as the grandsons also have an interest in the property. However, by reason of Section 8 of Hindu Succession Act, 1956, the son''s son gets excluded and the son alone will inherit the property to the exclusion of his son and no interest would accrue to the grandson of P, in the property left by him on his death. It was held that as the effect of Section 8 is directly derogatory to the law under the Hindu Law, statutory provisions must prevail in view of the unequivocal intention in the statute itself expressed in Section 4(1) of Hindu Succession Act which says that to the extent to which the provisions shall override the established provisions in the tracts of Hindu Law. The Full Bench therefore held that K alone took the property obtained by his father P in the partition between them and irrespective of the question as to whether it was ancestral properties in the hands of K or not, he would exclude his son and since the existing son at the time of the death of the grandfather had been excluded, the after-born son is also excluded. Disagreeing with the view of Gujarat High Court in
With very great respect, we are unable to agree with the view expressed by the learned Chief Justice. The passage quoted from the commentary did not deal with the effect of Section 8 of the Act. What has been illustrated also is the position under the Hindu Law untrammelled by statutes and it occurs in the commentaries to Section 6 of the Act which deals with survivorship and the saving by Section 6 of that principle to the extent to which it had been done. This passage is of no assistance in determining the impact of Section 8 on the principles of devolution of property on the death on the principles of inheritance. We have dealt with the effect of Section 8 earlier and it is clear that here Karuppan alone took the properties of his father Palaniappa which the latter had obtained in the partition, and irrespective of the question whether it was ancestral property in the hands of Karuppan or not, he would exclude his son. Since the existing grandson at the time of the death of grandfather has been excluded, we think that an after born son of Karuppan will also not get any interest which Karuppan inherited from his father. Thus the principles of Hindu Law are not applicable. It is impossible to visualise or envisage any Hindu undivided family in regard to the property which Karuppan got.
20. In Chittur Service Co-operative Bank Ltd. v. Kumaran 1992 (I) KLT 216 Balanarayana Marar, J. had considered the conflicting decisions and followed the Full Bench decision of the Madras High Court. The learned Judge took the view that the overriding effect in respect of matters dealt with in the Hindu Succession Act is provided for in Section 4 which lays down that any law in force immediately before the commencement of the Act shall cease to apply to Hindus in so far as it is inconsistent with any of the provisions contained in the Act and any text, rule or interpretation of Hindu Law or customs or usage shall cease to have effect with respect to any matter for which provisions has been made in the Act and the Act supersedes all existing laws in the matter of intestate succession. Finding that Section 6 of Hindu Succession Act deals only with the share of coparcenar in Mithakshara coparcenary property dying intestate and to an extent the section purports to affect the law relating to joint family property and the devolution of the rights of a male Hindu over such property. But as far as separate and self acquired property is concerned, the devolution can only be u/s 8 of the Act which lays down the rule of succession in respect of the property of a male Hindu dying intestate and the position is directly derogatory of the law established according to the principles of Hindu Law. It was held that this provision must prevail in view of the expression of intention in the statute that the provisions contained in the Act shall override the established provisions in the text of Hindu Law.
21. The Madhya Pradesh High Court in
22. The Apex Court in
23. u/s 8 of the Hindu Succession Act the property of a male Hindu dying intestate shall devolve according to provisions in Chapter II. Class I of the Schedule provides that if there is a male heir of Class I, then the property could be inherited by the heirs provided in Class I alone namely son, daughter, widow, mother, son of a pre-deceased son, daughter of a pre-deceased son, son of a pre-deceased daughter, daughter of a pre-deceased daughter, widow of a pre-deceased son, son of a pre-deceased son of a pre-deceased son, daughter of a pre-deceased son of a pre-deceased son, widow of a pre-deceased son of a predeceased son. The class does not include a grandson or granddaughter son of a son or a daughter of a daughter. Their Lordships analysed the conflicting decisions of the High Courts and found that High Courts of Madras and Madhya Pradesh and Andhra Pradesh took the view opposite to the view expressed by the Gujarat High Court. Their Lordships held:
20. In view of the Preamble to the Act i.e. that to modify where necessary and to codify the law, in our opinion it is not possible when Schedule indicates heirs in Class I and only includes son and does not include son''s son but does include son of a predeceased son, to say, that when son inherits the property in the situation contemplated by Section 8 he takes it as karta of his own undivided family. The Gujarat High Court''s view rioted above, if accepted would mean that though the son of a predeceased son and not the son of a son who is intended to be excluded u/s 8 to inherit, the latter would by applying the old Hindu law get a right by birth of the said property contrary to the Scheme outlined in Section 8. Furthermore as noted by the Andhra Pradesh High Court the Act makes it clear by Section 4 that one should look to the Act in case of doubt and not to the pre-existing Hindu law. It would be difficult to hold that the property which devolved on a Hindu u/s 8 of the Hindu Succession Act would be HUF property in his hand vis-a-vis his own son; that would amount to creating two classes among the heirs mentioned in Class I, the male heirs in whose hands it will be joint Hindu family property and vis-a-vis son and female heirs with respect to whom no such concept could be applied or contemplated. It may be mentioned that heirs in Class I of Schedule u/s 8 of the Act included widow, mother, daughter of predeceased son etc.
21. Before we conclude we may state that we have noted the observations of Mulla''s Commentary on Hindu Law, 15th Edn. dealing with Section 6 of the Hindu Succession Act at page 924-26 as well as Mayne''s on Hindu Law, 12th Edition pages 918-919.
22. The express words of Section 8 of the Hindu Succession Act, 1956 cannot be ignored and must prevail. The Preamble to the Act reiterates that the Act is, inter alia, to amend the law. With that background the express language which excludes son''s son but included son of a predeceased son cannot be ignored.
23. In the aforesaid light the views expressed by the Allahabad High Court, the Madras High Court, Madhya Pradesh High Court and the Andhra Pradesh High Court, appear to us to be correct. With respect we are unable to agree with the views of the Gujarat High Court noted hereinbefore.
24. Reliance was also placed by the learned Counsel appearing for the first Respondent on the decision of the Apex Court in
25. Apex Court in
21. The Act indisputably would prevail over the old Hindu Law. We may notice that Parliament, with a view to confer right upon the female heirs, even in relation to the joint family property, enacted the Hindu Succession Act, 2005. Such a provision was enacted as far back in 1987 by the State of Andhra Pradesh. The succession having opened in 1989, evidently the provisions of the Amendment Act, 2005 would have no application. Sub-section (1) of Section 6 of the Act governs the law relating to succession on the death of a coparcenar in the event the heirs are only male descendants. But, the proviso appended to Sub-section (1) of Section 6 of the Act creates an exception. First son of Babu Lal viz. Lal Chand, was, thus, a coparcener. Scction 6 is an exception to the general rules. It was, therefore, obligatory on the part of the Respondent Plaintiffs to show that apart from Lal Chand, Sohan Lai will also derive the benefit thereof. So far as the second son, Sohan Lal is concerned, no evidence has been brought on record to show that he was born prior to coming into force of the Hindu Succession Act, 1956.
26. It was therefore held that the half share of the property of Babu Ram which should devolve upon all his heirs and legal representatives as at least one of his sons was born prior to the coming into force of the Act and except to that extent the courts below were correct in applying the provisions of Section 6 of the Act and holding that Section 8 will have no application.
27. The following observation in Eramma v. Verrupanna A.1.R. 1966 S.C. 1879 was reiterated:
It is clear from the express language of the section that it applies only to coparcenary property of the male Hindu holder who dies after the commencement of the Act. It is manifest that the language of Section 8 must be construed in the context of Section 6 of the Act. We accordingly hold that the provisions of Section 8 of the Hindu Succession Act are not retrospective in operation and where a male Hindu died before the Act came into force i.e., where succession opened before the Act, Section 8 of the Act will have no application.
28. The facts of the case in
29. It is thus clear that when a male Hindu died subsequent to the coming into force of the Hindu Succession Act, 1956, the inheritance could only be as provided u/s 8 and Section 6 has no application in a case where death was prior to the coming into force of the Act. When the coparcenary property is partitioned between the coparcenars and a share was obtained by a coparcenar, it is the ancestral property as regards the said male issue. The moment a son is born or is adopted to him it becomes the property of that coparcenary. Though the said property could be alienated before the birth of the son, upon the birth of the son all the rights which belongs to a coparcenar belong to the son also and the rights till then enjoyed by the sole coparcenar would get abridged. When a son is born to that son, he also gets a right by birth.
30. Even though learned Counsel appearing for Respondents argued on the admission of P.W. 1 that, on the date of Ext. A-1 partition deed brothers of Panduranga Mallya namely Krishna Mallya had two sons and Srinivasa Mallya had five or six sons and pointed out that they were not parties to Ext. A-1 partition deed and therefore the property obtained by Sheshu Mallya could not be coparcenary property. It is seen that eventhough in the plaint it was specifically pleaded that the parties are governed by Hindu Mithakshwara Law, that fact was not denied in the written statement. Even at the time of trial* the fact that Seshu Mallya is a member of the coparcenary and the properties divided under Ext. A-1 are coparcenary properties were not disputed. Therefore it can only be found that the properties obtained by Sheshu Mallya under Ext. A-1 partition deed in 1921, are the ancestral properties. Though there is no direct evidence to prove that the consideration paid for acquisition of the plaint schedule properties under Ext. A-2, was the consideration received under Ext. A-4, on the facts it does not make much difference. As Seshu Mallya was a member of the coparcenar, when a son is either born or was adopted, that son would automatically be a member of that coparcenar of Sheshu Mallya. Thus on the death of Seshu Mallya in 1933 his adopted son Panduranga was the only other member of that coparcenary. The property of Seshu Mallya which came to vest with Panduranga Mallya, would become the ancestral property in the hands of Panduranga Mallya. When a son is bom to him it become the coparcenary property consisting of father and son. When Plaintiffs and Defendants 2 to 5 and the father of the first Defendant were born, they all became members of that coparcenary by birth. Therefore though Panduranga Mallya was the Kartha of that Joint Hindu Family, he has only one share like all other members of that coparcenary. The finding of the learned Sub Judge that the plaint schedule properties are coparcenary properties is therefore correct.
31. The crucial question then is what is the effect of the court auction sale in execution of the decree in O.S. 8/1958. There is no case for the Respondents in O.S.8/1958 that Panduranga Mallya was impleaded as the Kartha of the family. On the other hand, it is the admitted case that Sulochana Bai instituted that suit for realisation of the money due from Panduranga Mallya and in execution of the money decree, under E.P. 28/1966 the property was sold and purchased by C.V. Kamath and sale was confirmed and Ext. A-7 sale certificate was issued. Therefore what was purchased by C.V. Kamath is the right which Panduranga Mallya had in that property. When Panduranga Mallya had six sons, the share of Panduranga Mallya in the coparcenary property could only be 1/7 shares. If that be the case what could be derived by C.V. Kamath under the court auction sale could only be the 1/7th share of Panduranga Mallya. Learned Sub Judge based on Ext. A-7 sale certificate found that what was brought to sale in execution of the decree in O.S. 8/1958 is the entire property and as the entire property was proclaimed for sale and sold and purchased by C.V. Kamath he obtained the entire rights in the property. That finding of the learned Sub Judge is not correct. Even if in the court auction sale the entire right was purported to be sold, what the auction purchaser could claim is only the right which the judgment-debtor had in that property. If the judgment-debtor had entire right in the property, the auction purchaser would get the entire right in the property. On the other hand, if the judgment-debtor had only a fractional share, the auction purchaser could only claim right over that fractional share and nothing more. The auction purchaser will get only that right which the judgment-debtor had in that property. If that be so, when under Ext. A-7 the individual right of Panduranga Mallya alone was sold in court auction, the auction purchaser C.V. Kamath could only claim that right and not the entire right. If that be so, under Ext. A-7 C.V. Kamath derived only l/7th right of Panduranga Mallya over the plaint schedule property.
32. C.V. Kamath the auction purchaser, in turn, under Ext. B-10 sale deed dated 11-6-1976 sold six cents of that property in favour of 15 th Defendant and the 15th Defendant transferred that right in favour of 16th Defendant as per Ext. B-12saledeed dated 26-6-1977.15th Defendant under Ext. B-11 gift deed transferred 112 cents in favour of his wife who in turn assigned it in favour of the 16th Defendant under Ext. B-13 sale deed dated 26-5-1977. The auction purchaser C.V. Kamath had sold two cents in favour of K.M. Hameed under Ext. B-14 sale deed dated 1-6-1976 and K.M. Hameed thereafter sold that property in favour of 17th Defendant under Ext. B-15 saledeed. On 11-6-1976, under Ext. B-16 C.V. Kamath had sold properties in favour of Mohammed Hameed and later under Ext. B-17 Mohammed had released his rights in favour of Hameed under Ext. B-17 and Hameed in turn assigned it in favour of 16th Defendant under Ext. B-18 sale deed. But they could only claim the right which C.V. Kamath derived under Ext. A-7 which is only the fractional right of Panduranga Mallya.
33. Learned Sub Judge upheld the claim for tenancy raised by Defendants 10 to 13 and 16 based on Ext. B-1 order of the Land Tribunal in O.A. 1186/1971. Under Ext. B-1 Muthappa had purchased jenm right in respect of 49 cents, which was transferred under Ext. B-2 sale deed in favour of V.K. Sreedharan and Ravi and that right is claimed by Defendants 10 to 13 under Exts. B-3 to B-6 sale deeds executed by Sreedharan and Ravi. The finding of the learned Sub Judge is that as Ext.B-1 order was passed by the Land Tribunal against Panduranga Mallya, it is binding on the Plaintiffs and Defendants 1 to 6 and therefore the properties cannot be claimed by Plaintiffs or Defendants 1 to 6.
34. Learned Counsel appearing for the Appellant would challenge the validity and binding nature of Ext. B-1 for the reason that in that O.A. proceedings only Panduranga Mallya was impleaded even though it is a joint family property. It was argued that when the seniormost male member apart from Kartha of the family was not impleaded in the O.A., the order is not binding on the joint family or the properties and therefore the order is null and void. Learned Counsel argued that when the mandatory provisions of Section 104 of Kerala Land Reforms Act is violated the order is not binding on the joint family. Learned Counsel appearing for Respondents argued that even if the property covered under Ext. B-1 order is in respect of the joint family property when even according to Appellant and Respondents 1 to 6, Panduranga Mallya was the Kartha of the joint family, the order is binding on the other members of the family as Kartha was a party to the O.S. and therefore the property cannot be claimed by the Appellant or Defendants 1 to 6.
35. Sub-section (1) of Section 104 provides that in any proceedings under the Act when a joint family is a party it shall be sufficient to implead the manager and the seniormost male member of such family and any other member of the family has a right to get himself impleaded as a party in that proceeding. Section 104 reads:
104. Proceedings by or against joint families, etc.- (1) Where, in any proceeding under this Act, a joint family is a party, it shall be sufficient to implead the manager, karanavan or yajaman and the seniormost male member of such family and, in the case of a Marumakkathayam or Aliyasanthana family, also the karanavan or yajaman of each tavazhi or kavaru, but any other member of the family shall have the right to get himself impleaded as a party.
Ext. B-1 order shows that only Panduranga Mallya was impleaded and none of the other male members much less the seniormost male member was impleaded. The question is what is the effect of non-compliance of the provisions of Section 104 of the Act.
36. The application of Section 104 to a resumption application filed under Kerala Land Reforms Act was considered by a learned Single Judge of this Court in Puthalathu Bava Muhammcd v. Sankara Pillai Achuthan Pillai and Anr. 1978 K.L.N. 253 (Case No. 204). The learned Judge held that Section 104 only says that it shall be sufficient to implead the karanavan and the seniormost male member, when a joint family is a party to the proceeding and it really means that it shall not be sufficient to implead the karanavan alone as a party and the word "party" would include both the applicant and Respondent and if any ambiguity is there, the marginal note could be referred to and it speaks of "proceedings by or against" joint families. Learned Single Judge held:
Section 38 of the Travancore Kshathriya Act, 1108, Section 31 of the Travancore Nair Act, 1100 and Scction 27 of the Travancore Ezhava Act, 1100 all provided that a decree shall not bind a tarwad unless it is obtained against the karanavan and the senior anandiravan. Section 56 of the Cochin Nayar Act,l 113 required that all the members should be parties in a suit against the tarwad. The same provision was there in Section 36 of the Cochin Marumakkathayam Act, 1113. Under the ordinary law, a karanavan could sue on behalf of the tarwad. He alone was a necessary party in suits against the tarwad also. The Travancore and Cochin Legislatures modified the latter rule, as per the provisions noticed above, in order to protect the interests of the joint families. Those provisions applied to suits and decrees and not to proceedings before Tribunals. In my view, what the legislature has done through Section 104 of Act 1 of 1964 is to make a similar provision in regard to proceedings before the various tribunals set up under the Act. Construed in this light also, the view expressed by my learned brother Balagangadharan Nair, J. seems to be irreproachable.
The decision referred to therein by the learned Single Judge is Parukutty v. Appukuttan 1978 KLT 162. In that case Balagangadharan Nair, J. held:
If this Sub-section applies, it is obvious that the seniormost male member after the first Respondent was not a party to the application to start with and the application was defective in that respect. But the Sub-section in my opinion applies only to proceedings against joint families including Marumakkathayam tarwads but not to proceedings by them. Apart from the fact that the Act which is primarily concerned with agrarian reforms could not have undertaken to upset a rule of Marumakkathayam Law, this conclusion flows from the use of the word ''to implead'' in Sub-section (1). Despite the loose way in which the word ''implead'' is often used even in legal parlance, it really means:
(i) ''To sue or prosecute by due course of law''-Bouvier''s Law Dictionary and Black''s Law Dictionary.
(ii) ''To prosecute or take proceedings against a person''-Jowitt''s Dictionary of English Law and Qsborn''s Concise Law Dictionary.
(iii) ''To sue or prosecute''-Wharton''s Law Lexicon.
(iv) ''To sue, arrest or prosecute by course of law''-Mozlcy and Whiteloy''s Law Dictionary.
(v) ''To sue or prosecute by course of law; to make one a party to an action or suit''-Ramanatha Iyer''s Law Lexicon.
(vi) ''Prosecute or take proceedings against (person)''-The Concise Oxford Dictionary. The word thus connotes taking a proceeding against a person and not the starting of a proceeding by a person. ''To implead the manager'' thus postulates a proceeding by someone against the manager and not a proceeding initiated by the manager. The word ''impleaded'' occurring in the expression ''to get himself impleaded as a party'' is not used in its strict legal sense but that is no ground to ignore the correct legal significance of the word ''implead'' in the earlier part. Further the words ''it shall be sufficient to implead the manager'' etc. plainly indicate that what is intended is to permit the Petitioner u/s 104(1) to proceed against the persons specified therein without having to proceed against all the members of the joint family. The effect and intention of the Sub-section being thus clear, it cannot be controlled by the marginal note to the Section which reads: ''Proceedings by or against joint families etc.'' The Sub-section in my opinion applies only to proceedings against joint families and not to proceedings by them and the first Respondent, as karnavan, was competent by himself to make the application.
No other decision on this aspect was brought to my notice.
37. Though learned Counsel appearing for Respondents argued that Section 104 of the Kerala Land Reforms Act is only an enabling provision and its violation will not invalidate an order passed by the Land Tribunal, for non-impleading the seniormost male member of a joint family, I cannot agree with the submission. What is provided u/s 104 is that when a proceeding is initiated under the Kerala Land Reforms Act, where a joint family is a party, it shall be sufficient to implead the manager and seniormost male member of such family. The said provision is made to avoid impleading of all the other members of the joint family. As the wording of Section itself makes it clear it only provides that "it shall be sufficient to implead the manager, karanavan or yajaman and the senior-most male member of such family". It is further made clear by providing that any member of the joint family has a right to get himself impleaded as a party. It means that as far as the Petitioner is concerned, it is sufficient if the manager/kartha or karanavan or yajaman and the seniormost male member of such family is impleaded. All other members of joint family are given a right to get themselves impleaded if they so wish. Therefore when a proceeding is initiated to purchase jenm right in respect of the joint family property held by a person claiming to be a tenant, it is mandatory that he shall implead not only the Kartha of that joint family but also the seniormost male member of that family. Even if a restricted meaning as was given in the cases referred to earlier, is given and it is made applicable only in proceeding against the joint family property, when the O.A proceeding was initiated against the joint family properties and the seniormost male member of that family was not impleaded and only the Kartha of the joint family was impleaded and that too only in his individual capacity, Ext. B-l order is not valid or binding against the Plaintiff or the other members of the joint family.
38. To buttress the argument against the validity of Ext. B-l order learned Counsel appearing for the Appellant relied on the Full Bench decision of this Court in Muhammad Haji v. Kunhunni Nair 1993 (1) KLT 227. The Full Bench found that the statutory tribunal failed to comply with the provisions of the Act and the Rules no order on the preliminary point, as to whether the land comprised is held by a cultivating tenant or not or the right, title and interest of the landowner and intermediaries in respect of such holding have vested in the Government or not, were not passed. Finding that it is only thereafter further proceedings for assignment and determination of compensation purchase certificate etc. should be pursued it was held that the statutory tribunal has not followed the rules and did not act in conformity with the procedure prescribed u/s 72 of the Act read with the rules and therefore it is a fundamental infirmity which make the order of the Tribunal a nullity.
39. When Section 104(1) of Kerala Land Reforms Act mandates that in a proceeding where a joint family property is involved, in addition to the Kartha of the joint family the seniormost member of the family is also to be impleaded, and Ext. B-1 order shows that the seniormost male member was not impleaded it can only be found that Ext. B-1 order is only a nullity and it is not valid and binding on the Appellant and Respondents 1 to 6 or the plaint schedule properties. If that be the case, the question would arise whether Defendants 10 to 13 are entitled to the protection of Kerala Land Reforms Act, as they are assignees of Muthappa who claimed that he is a cultivating tenant in respect of the disputed 49 cents of the property. As much earlier to the institution of the suit, jenm right was purchased by Muthappa under Ext. B-1 order in 1971 from Land Tribunal, Kasaragod and Defendants 10 to 13 are only subsequent assignees, they did not specifically plead the origin of the lease. On the other hand, it is the case in the plaint that Muthappa was not a cultivating tenant of the property but only a building tenant. The suit was instituted in 1986. As Ext. B-1 order is found null and void and not binding on the Plaintiff and Defendants 1 to 6 or the plaint schedule properties, question whether Defendants 10 to 13 are entitled to fixity of tenure based on the right claimed from Muthappa necessarily arise for consideration. In view of Sub-section (3) of Section 125 of the Kerala Land Reforms Act, that question can be decided only after referring the question to the concerned Land Tribunal as provided u/s 125(3) of Kerala Land Reforms Act. As the question was not referred to the Land Tribunal, justifiably in view of Ext. B-1 order, which is now found to be a nullity, the question is to be referred to the Land Tribunal.
40. Learned Counsel appearing for Respondents also raised a contention that in view of the settlement of the claim in respect of part of the plaint schedule property with the other Defendants and claim for partition in respect of the remaining extent except the disputed 49 cents was given up the Appellant and Defendants 1 to 6, which was given a seal of approval by the trial court, the suit as now stands can only be dismissed. Argument is that as suit is one for partition and entire properties are not sought to be divided, the principles of equity cannot be worked out consequent to the settlement arrived at with some of the Defendants and so the suit as such is not maintainable. Learned Counsel appearing for Respondents relying on the decision of a''leamed Single Judge (as His Lordship then was) in Krishnan Nair v. Abraham 1971 K.L.J. 162 argued that the doctrine of substituted securities will be applicable not only when undivided share of a coparcenar in all the items of the coparcenary or the undivided share of a co-owner in all the items owned jointly by the co-owner is alienated but even when a specific item of property is alienated by such coparcenar or co-owner and if ultimately it is found that the alienating coparcenar or co-owner is allotted some other item in partition, the doctrine of substituted security would apply irrespective of the question whether the right of a coparcenar or co-owner is transferred by private sale or by court auction purchase. It is the argument of the learned Counsel that when the property of Panduranga Mallya was sold in court auction and purchased by C.V. Kamath, which subsequently got purchased by some of the Defendants and if the right of Panduranga Mallya was the undivided fractional right in the property, the principles of doctrine of substituted security is to be applied and when the compromise between Plaintiff and Defendants 1 to 6 on the one hand and Defendants 8 and 9 on the other hand was recorded by the trial court as per order in I.A. 1392/1990, after granting leave under I.A. 1393/1990, the suit must fail. Learned Counsel appearing for Appellant pointed out that Defendants 10 to 13 alone are contesting and that too based on the tenancy right under Ext. B-1 order, and when they are only building tenants they are not entitled to claim any equity at the time of division and therefore the question of settlement with Defendants 8 and 9 is not fatal. As it is found that the suit has to go back to the trial court, I do not find it necessary to decide that aspect at this stage. It is open to the contesting Defendants to raise this plea before the trial court.
The appeal is allowed. The decree and judgment in O.S. 122/1986 on the file of Sub Court, Kasaragod are set aside. O.S. 122/1986 is restored and remanded to Sub Court, Kasaragod for fresh disposal in accordance with law in the light of the observations made above. The trial court is to refer the claim for fixity of tenure raised by Defendants 10 to 13 based on the plea of tenancy of Muthappa to the concerned Land Tribunal u/s 125(3) of Kerala Land Reforms Act and thereafter decide the suit in accordance with law. Send back the records to Sub Court, Kasaragod. Parties are directed to appear before the Sub Court, Kasaragod on 22-5-2009. Refund the court fee paid on the memorandum of appeal.
