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Bappani Rai Vs. Thyampanna Rai and ors. - Court Judgment

LegalCrystal Citation
SubjectTrusts and Societies;Property
CourtKerala High Court
Decided On
Case NumberSecond Appeal No. 1270 of 1960
Judge
Reported inAIR1965Ker221
ActsTrusts Act, 1882 - Sections 90
AppellantBappani Rai
RespondentThyampanna Rai and ors.
Appellant Advocate K. Raghavan Nair, Adv. on behalf of; V.R. Krishna Iyer, Adv.
Respondent Advocate N.K. Varkey, Adv.
DispositionAppeal dismissed
Cases ReferredKodi Shankara Bhatta v. Moidin
Excerpt:
- - it was only in pursuance of this statement and after due enquiry that the tahsildar recommended the grant of darkhast in the name of the 1st respondent and ultimately the government granted it also......the short question for decision is whether the appellant is entitled to any share in the suit property.2. the suit property was originally kumki land and it was granted to datkhast to the 1st respondent. the appellant claims a share in the property on the strength of a recital in ex. a1 of 17th april 1944, which as a partition agreement in his family, to which both the appellant and the 1st respondent were parties. the suit property did not belong to the family, but there is some recital regarding that in the document. the recital is to the effect that the sharers under ex. al have a right to take water from a tank in the suit property, whereon the appellant and the 1st respondent had effected improvements. barring this recital there is no other evidence to support the case of.....
Judgment:

T.C. Raghavan, J.

1. The plaintiff in a suit for partition,which has been dismissed, by both the lower courts, is the appellant and the 1st defendant the contesting respondent. The short question for decision is whether the appellant is entitled to any share in the suit property.

2. The suit property was originally kumki land and it was granted to datkhast to the 1st respondent. The appellant claims a share in the property on the strength of a recital in Ex. A1 of 17th April 1944, which as a partition agreement in his family, to which both the appellant and the 1st respondent were parties. The suit property did not belong to the family, but there is some recital regarding that in the document. The recital is to the effect that the sharers under Ex. Al have a right to take water from a tank in the suit property, whereon the appellant and the 1st respondent had effected improvements. Barring this recital there is no other evidence to support the case of the appellant that he has right in tne suit property. Therefore, both the lower courts have dismissed the suit.

3. The learned advocate of the appellant argues that the recital in Ex. Al is an admission and therefore it has to be given its due weight and should not be brushed aside lightly, when the exclusive right claimed by the 1st respondent is considered. Putting in that form the argument probably may have some force. But, the circumstances of the case, which will come out presently, will not support this contention.

4. As already stated, the property was given ondarkhast by the Government to the 1st respondent.Ex. B3 is the statement given by the 1st respondentbefore the Tahsildar in connection with the darkhast enquiry, wherein he states that he made all the improvements on the land and was therefore entitled to the darkhast grant. It is admitted by the appellant when he is examined that at the time when the 1st respondent gave Ex. B3, the appellant was present and that he did not raise any objection to the state, ment. It was only in pursuance of this statement and after due enquiry that the Tahsildar recommended the grant of darkhast in the name of the 1st respondent and ultimately the Government granted it also.

5. The effect of a grant oh datkhast of kumki lands in South Kanara is laid down by a series of decisions of the Madras High Court. In M. Rama Rao v. Appu, AIR 1925 Mad 1226, the Madras High Court reviewed some of the earlier decisions and held that when the Government granted kumki land on darkhast, any right previously granted by the warg-dar in favour of a tenant regarding the kumki land came to an end and even if there was a mortgage right on the kumki land created by the wargdar, it also came to an end as soon as the grant of darkhast was made. In the case before me the disputed land was kumki land; and the Government granted darkhast in favour of the 1st respondent. The result is that all previous rights subsisting on the said land in favour of anybody came to an end and the grantee under the darkhast obtained his right tree of all such previous rights. Naturally, if the appellant had any right on the land previously, that right must have come to an end on the grant of darkhast.

6. Appellant's learned counsel then invites my attention to the earlier case in Kodi Shankara Bhatta v. Moidin, 8 Mud L W 100 : (A I R 1919 Mad 121) relied upon in the case cited above. An argument was advanced in the earlier decision that section 90 oE the Trusts Act would apply to the facts of that case; and in disposing of that question the learned Judges made an observation, to which my pointed attention is drawn by the counsel oE the appellant. The passage is to the effect that if it was the mortgagee instead of the mortgagor that obtained the grant of the neighbouring waste land from the Government, there might have been some force in the contention that section 90 of the Trusts Act applied. The counsel argues from this that if in that case it was the mortgagee who claimed the right rather than the mortgagor, the decision would have been different. In the ease before me it is the co-owner who is claiming and therefore, the learned counsel contends, the two decisions of the Madras High Court read together will mean that section 90 of the Trusts Act will apply in this case. But, I would point out that the latter portion of the passage referred to by the counsel goes against this contention, because that portion indicates that there should also be something to show that the mortgagee obtained the grant as representing all persons interested in the mortgaged property. In the, present case when the 1st respondent gave the statement, Ex. B3, he did not do it on behalf of all the co-owners, but he did it only on his own behalf; and the other alleged co-owner was nearly acquiescing in that statement. In other words, he did not use his position as co-owner. It follows that section 90 of the Trusts Act cannot apply to this case either.

7. The 1st respondent's counsel argues that the recital in Ex. Al was introduced by the appellant without the 1st respondent's knowledge; and he would not have signed the document, if he knew that there was such a recital in the document. The 1st respondent speaks to it in the box; and he says in particular that he is illiterate. Ex. 1)3 being earlier, probably there may be some substance in this contention. At any rate, I do not propose to pronounce upon that question. It is enough to lay down that the legal effect of the grant of darkhast in the name of the 1st respondent is to terminate any previous right held by anybody in the land.

8. The second appeal has thus very little substance and the same is dismissed with costs of the 1st respondent.


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