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M. Appa and anr. Vs. State of Kerala and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKerala High Court
Decided On
Case NumberCourt-fee Reference in un-numbered Original Petition of 1980
Judge
Reported inAIR1981Ker49
ActsConstitution of India - Article 226; Kerala High Court Rules, 1971 - Rule 147A
AppellantM. Appa and anr.
RespondentState of Kerala and ors.
Advocates: P.K. Balasubramanyan and; K.S. Rama Warrier, Advs.
Cases ReferredNangeli Nangjar v. Gopala Sarma.
Excerpt:
- - abdul kader saheb ((1902) ilr 25 mad 26) which clearly enunciates the position in a case like the one on hand......position in a case like the one on hand. i will with advantage read the following passage from the aforesaid decision :'when a right accruing to a single person from a covenant in his favour devolves, on his death on two or more of his heirs in several shares, no question can possibly arise as to whether the covenant 'was joint or several, and the only difference caused by the death of the covenantee is that the cause of action which resided in one person, is, by operation of law transferred to a number of parceners, who as observed by tindal c. j., in decharms v. horwood ((1834) 10 bing 526 at p. 529), constitute one heir. in other words, the claim which was possessed by one individual is now possessed jointly by a number of individuals, who are his legal representatives and all must.....
Judgment:
ORDER

George Vadakkel, J.

1. By Ext. P1 order produced along with the writ petition, the Land Tribunal, Kanhangad disposed of two Original Applications, O. A. Nos. 496 and 506 of 1971. O. A. No. 496 of 1971 was filed by one Appa and the other Original Application was filed by Appa's father Chirukandan. Both these applications were directed against the same landlord who is the 4th respondent in the Original Petition. The said applications were for purchase of right, title and interest of the landlord invoking Section 72B of the Kerala Land Reforms Act 1963. The Land Tribunal dismissed O. A. No. 496 of 1971 but allowed O. A. No. 506 of 1971. The landlord preferred an appeal before the Appellate Authority (Land Reforms) Cannanore against the decision allowing O. A. No. 506 of 1971. It is the case of the petitioner that Chirukandan, the applicant in O. A. No, 506 of 1971 who was the respondent before the Appellate Authority, died pending the said appeal. The appellate authority's order proceeds on the basis that Chirukandan is still alive. Whatever that be, the appellate authority setting aside the decision in O. A. No. 506 of 1971 remanded the matter to the Tribunal for fresh decision as per its order dated 6-6-1980.

2. This writ petition has been filed by two sons of Chirukandan, Appa who filed O. A. No. 496 of 1971 and another who is the 2nd petitioner herein. The 5th respondent herein is, as averred by the petitioners, their brother who could not be made a petitioner in the writ petition. According to the averments contained in this writ petition Chirukandan is no more, It is on that basis that the petitioners impugn Ext. P2 remand order passed by the appellate authority on 6-6-1980 in these proceedings.

3. The question raised by the Office is whether each of the two petitioners should be directed to pay the necessary court-fee as if each of them had filed a separate writ petition. According to the Office note Rule 147A of the Rules of the High Court of Kerala, 1971 governs the case. The learned counsel for the petitioners submit that it is not so.

4. Rule 147A aforesaid envisages a case where each of the petitioners can by himself bring a separate writ petition, and not a case where the several heirs of a deceased person are to file a writ petition as a legal entity. This is a case where one of the legal heirs cannot by himself bring a suit or a petition as against the landlord (the 4th respondent herein) invoking the statutory right the sole tenant, the predecessor-in-interest of the petitioners, is alleged to have had in the land in question. It appears to me that the case on hand falls within the ambit of the principles stated bv this Court in Nangeli Nangiar v. Gopala Sarma (1965 Ker LT 1284). Therein the learned Judge extracted a passage from the decision of Bhashyam Ayyangar J. in Ahinsa Bibi v. Abdul Kader Saheb ((1902) ILR 25 Mad 26) which clearly enunciates the position in a case like the one on hand. I will with advantage read the following passage from the aforesaid decision :

'When a right accruing to a single person from a covenant in his favour devolves, on his death on two or more of his heirs in several shares, no question can possibly arise as to whether the covenant 'was joint or several, and the only difference caused by the death of the covenantee is that the cause of action which resided in one person, is, by operation of law transferred to a number of parceners, who as observed by Tindal C. J., in Decharms v. Horwood ((1834) 10 Bing 526 at p. 529), constitute one heir. In other words, the claim which was possessed by one individual is now possessed jointly by a number of individuals, who are his legal representatives and all must therefore join in a suit to enforce that claim. If one or more of such joint claimants do not join as plaintiffs, the course to be pursued in India, according to lone established course of decisions, is 'for the claimants bringing the suit to join, as party defendants, those who do not loin as plaintiffs.'

Referring to the aforesaid passage and other decisions bearing on the point, Mathew J. in the aforesaid decision of this Court said as follows :

'In view of these rulings I would have held that the plaintiff was not entitled to sue for recovery of either the whole or his share of the amount due under the note. But the plaintiff has produced a succession certificate Ext. P6, authorising him to collect the whole amount due under the note. The court below did not act upon that certificate on the ground that the certificate was applied for and obtained after the expiry of the period of limitation for the institution of the suit, and that it could not revive a claim which was already barred bv limitation.'

So stating, it was pointed out that 'succession certificate need only be produced in court at the time of the passing of the decree'.

5. Applying the principle stated by Tindal C. J. in the aforesaid decision accepted and acted upon by Bhashyam Ayyangar, J. in the Madras decision and the several other decisions cited in Nangeli Nangjar v. Gopala Sarma. (1965 Ker LT 1284) it has to be held that one or the other or some of the legal representatives of Chirukandan could not have filed a separate writ petition for the relief now sought for on the ground that each of them is entitled to a fractional share in the alleged tenancy. In that view. Rule 147A of the Rules of the High Court of Kerala does not govern the instant case.

6. This is a writ petition which Chirukandan himself could have brought; and he now being dead, his legal representatives as one legal entity have brought the same. Only a court-fee of Rs. 25 is leviable thereon. The reference is answered accordingly.


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