w w w . L a w y e r S e r v i c e s . i n



P.N. Viswambaran, Vaikom Taluk v/s T.P. Sanu & Others


    RSA. No. 708 of 2015 In OS. 1901 of 2004

    Decided On, 24 May 2018

    At, High Court of Kerala

    By, THE HONOURABLE MR. JUSTICE P.N. RAVINDRAN
    By, THE HONOURABLE MR. JUSTICE P.B. SURESH KUMAR & THE HONOURABLE MR. JUSTICE R. NARAYANA PISHARADI

    For the Appellant: Abraham P. George, M. Rajendran Nair, M. Santhy, Advocates. For the Respondents: P.B. Pradeep, Advocate.



Judgment Text

R. Narayana Pisharadi, J.

1. What is the effect of a certificate of purchase issued to one of the co-sharers of a land under Section 72K (1) of the Kerala Land Reforms Act, 1963 (hereinafter referred to as 'the Act') on other co-sharers? Does the provision contained in Section 72K (2) of the Act prevent the other co-sharers from claiming right, title and possession over the land in respect of which the certificate of purchase is issued under Section 72K (1) of the Act? Does the provision contained in Section 72K(2) of the Act exclude the operation of Section 90 of the Indian Trusts Act, 1882? These are the questions which essentially fall for consideration and determination by this Full Bench.

2. This appeal has come up for hearing before the Full Bench on a reference made by a Division Bench of this Court by order dated 30.03.2017 to resolve the conflict between the decisions of this Court in Paul v. State of Kerala and Another (1981 KLT 721) and Ramakke and Others v. Gopi and Others (2011(3) KHC 491).

3. The appeal arises out of the suit O.S.No.1901 of 2004 on the file of the Munsiff's Court, Ernakulam. The suit is for partition. The appellant is the plaintiff in the suit. He contended that he is a co-owner of the plaint schedule property and he claimed one-fifth share in the property. His plea in the suit is that Raman, his predecessor-ininterest, had leasehold right over the plaint schedule property and being the son of Karthiyayini, one of the daughters of Raman, he has acquired right over the property. The claim of the appellant/plaintiff is resisted by the contesting defendants by raising the contention that the property exclusively belonged to their predecessor-in-interest Prabhakaran, one of the sons of Raman. They contended that Prabhakaran had purchased the jenm right of the property in his name through the Land Tribunal concerned. According to the plaintiff, the purchase certificate obtained in the name of Prabhakaran enures to the benefit of all the co-owners including him.

4. The trial court accepted the contention of the plaintiff and granted a decree for partition of the plaint schedule property. However, the lower appellate court negatived the contention of the plaintiff and held that by virtue of the provision contained in Section 72K(2) of the Act, the purchase certificate obtained by Prabhakaran is conclusive proof of his title and possession over the property and in the absence of any challenge raised by the plaintiff against the validity of the purchase certificate, he is not entitled to claim any right over the property. Accordingly, the lower appellate court allowed the appeal and dismissed the suit. Aggrieved by the judgment of the lower appellate court, the plaintiff has filed this second appeal.

5. When the appeal came up for hearing before a learned single Judge of this Court, the following substantial questions of law were raised.

'a. When a purchase certificate is obtained by a co-sharer under the provisions of the KLR Act, in respect of a property, will it not enure to the benefit of all co-sharers?

b. Is it necessary to seek for a declaration or to set aside the purchase certificate so obtained by a co-sharer when the law presumes that the purchase certificate is for the benefit of all cosharers?

c. Will the finding in Ext.B1 judgment not operate as estoppel against the contesting defendants 1, 2 and 9 to 12 to contended that they have exclusive title to the property?'

6. The learned single Judge noticed that there exists an apparent conflict between the decisions of this Court in Paul v. State of Kerala and Another (1981 KLT 721) and other decisions on the same line and the decision in Ramakke and Others v. Gopi and Others (2011(3) KHC 491) on the question whether the purchase certificate obtained by one of the co-sharers will enure to the benefit of other coowners. For resolving the conflict, the learned single Judge adjourned and referred the case for being heard and decided by a Bench of appropriate strength. Thereafter, the appeal came up for consideration before a Division Bench of this Court. As per the order dated 30.03.2017, the Division Bench made a reference as follows:

'There is an apparent conflict between the decisions in Paul v. State of Kerala and Another (1981 KLT 721) and Ramakke and Others v. Gopi and Others (2011(3) KHC 491 (DB). The same has been noticed in the Reference Order passed in R.S.A No.708 of 2015 and S.A.No.295 of 2003. The conflict between the two bench decisions need to be resolved by a Full Bench therefore in the circumstances.'

Thus, the appeal has come up for consideration before the Full Bench for answering the reference.

7. We have heard Sri.M.Rajendran Nair, learned counsel for the appellant and Sri.P.B.Krishnan, learned counsel for the contesting respondents in the appeal.

8. Sri.M.Rajendran Nair, learned counsel for the appellant made extensive reference to the relevant provisions contained in the Act regarding the issue of purchase certificate to a cultivating tenant. He also made reference to Section 90 of the Indian Trusts Act, 1882. Learned counsel for the appellant contended that on the death of a cultivating tenant, the tenancy right devolves on his legal heirs jointly and therefore issuing a purchase certificate in the name of only one of the co-tenants/co-sharers does not mean assignment of the right, title and interest of the land owner exclusively to that co-tenant/co-sharer but it enures to the benefit of the other co-sharers. Learned counsel sought support for this proposition from the provision contained in Section 90 of the Indian Trusts Act, 1882. Learned counsel further contended that the provision contained in Section 72K(2) of the Act does not in way prevent a co-sharer from raising a plea based on Section 90 of the Indian Trusts Act, 1882. 9. Per contra, Sri.P.B.Krishnan, learned counsel for the contesting respondents would contend that Section 72K(2) of the Act contains a rule of evidence regarding conclusive proof of a fact as provided in Section 4 of the Indian Evidence Act, 1872. Learned counsel contended that a certificate of purchase issued under Section 72K(2) of the Act is conclusive proof of the assignment to the tenant of the right, title and interest of the land owner. He contended that when a certificate of purchase is produced before the court, no evidence can be adduced to prove that some person, other than the holder of the certificate, is the owner of the property or that some other person has got right over the property in respect of which the certificate is issued. Learned counsel would further contend that a person, other than the holder of a certificate of purchase, who wants to claim right or title over a property in respect of which the certificate of purchase is issued, has to challenge the validity of the certificate and he has to plead and prove that the certificate is not valid for some reason. Learned counsel would contend that merely raising a contention that the certificate of purchase issued in the name of one of the legal heirs of a cultivating tenant would enure to the benefit of his other legal heirs is not sufficient to claim right over the property.

10. We shall straightaway refer to the relevant provisions in the Act. Section 72(1) of the Act reads as follows:

''72. Vesting of landlord's rights in Government – (1) On a date to be notified by the Government in this behalf in the Gazette, all right, title and interest of the landowners and intermediaries in respect of holdings held by cultivating tenants (including holders of kudiyiruppus and holders of karaimas) entitled to fixity of tenure under Section 13 and in respect of which certificates of purchase under sub-section (2) of Section 59 have not been issued, shall, subject to the provisions of this section, vest in the Government free from all encumbrances created by the landowners and intermediaries and subsisting thereon on the said date.''

11. Section 72A (l) of the Act provides for granting compensation to the landowner and intermediary whose right, title and interest in respect of any holding have vested in the Government under Section 72. Section 72B (1) of the Act provides that the cultivating tenant of any holding or part of a holding, the right, title and interest in respect of which have vested in the Government under Section 72, shall be entitled to assignment of such right, title and interest. Section 72B (3) of the Act provides for the making of an application by the cultivating tenant to the Land Tribunal for such assignment. Section 72C of the Act deals with assignment of such right to the cultivating tenant when no application is made by him. Section 72D (1) of the Act provides for payment of the purchase price by the cultivating tenant on such assignment.

12. Sections 72K (1) and (2) of the Act read as follows:

'72K. Issue of certificate of purchase - (1) As soon as may be after the determination of the purchase price under Section 72F or the passing of an order under sub-section (3) of Section 72 MM the Land Tribunal shall issue a certificate of purchase to the cultivating tenant, and thereupon the right, title and interest of the landowner and the intermediaries, if any, in respect of the holding or part thereof to which the certificate relates shall vest in the cultivating tenant free from all encumbrances created by the landowner or the intermediaries, if any.

Explanation. -- For the removal of doubts, it is hereby declared that on the issue of the certificate of purchase, the landowner or any intermediary shall have no right in the land comprised in the holding, and all his rights including rights, if any, in respect of trees reserved for his enjoyment shall stand extinguished.

(2) The certificate of purchase issued under subsection (1) shall be conclusive proof of the assignment to the tenant of the right, title and interest of the landowner and the intermediaries, if any, over the holding or portion thereof to which the assignment relates'.

13. Section 2(8) of the Act defines cultivating tenant as "a tenant who is in actual possession of, and is entitled to cultivate, the land comprised in his holding'. Section 2(57) of the Act defines a tenant as any person who has paid or has agreed to pay rent or other consideration for his being allowed to possess and to enjoy any land by a person entitled to lease that land. The word 'cultivate' is also defined under Section 2(7) of the Act.

14. As per Section 72K(1) of the Act, it is the cultivating tenant who is entitled to get the certificate of purchase. Section 2(8) of the Act defines cultivating tenant as "a tenant who is in actual possession of, and is entitled to cultivate, the land comprised in his holding. "Holding" is defined under Section 2(17) of the Act as a parcel or parcels of land held under a single transaction by a tenant from a landlord. Section 2(8) of the Act mainly provides for two qualifications for a tenant to come under the category of a cultivating tenant. The first qualification is that he should be in actual possession of the land in question. The next qualification is that he should be entitled to cultivate the land. When both the aforesaid qualifications are satisfied, it can be said that such a tenant is a cultivating tenant. A cultivating tenant as per its definition must be a person in actual possession entitled to cultivate the land comprised in the holding.

15. Learned counsel Sri.P.B.Krishnan would contend that the object of the Act is to make the tiller of the soil its owner and the definition of the term 'cultivating tenant' under Section 2(8) of the Act indicates that the tenant who is in actual possession of the land and who cultivates the land alone can be a cultivating tenant and only such a person is entitled to get a certificate of purchase under Section 72K(1) of the Act.

16. Section 2(8) of the Act does not indicate that actual cultivation of the land by the tenant is necessary. What is required is only an entitlement to cultivate. The intention of the tenant must be cultivation of the property. He shall be a person who is entitled to cultivate the land. There is no requirement that he shall be a person actually cultivating the land. This is the view held by a learned single Judge of this Court in Purushotham G. Plywood Company v. Hamsa Kutty (1992(2) KLT 756). We see no reason to disagree with this view.

17. A tenant who is entitled to cultivate the land shall be in actual possession of the land to satisfy the definition of cultivating tenant under Section 2(8) of the Act. Therefore, it is necessary to examine what is meant by the expression 'possession' in the context of Section 2(8) of the Act.

18. 'Possession' is defined under Section 2(45) of the Act as follows:

'Possession' in relation to land includes occupation of land by a person deemed to be a tenant under Section 4, Section 4A,Section 5,Section 6, Section 6A, Section 6B, Section 7, Section 7A, Section 7B, Section 7C, Section 7D, Section 8, Section 9 or Section 10, or presumed to be a tenant under Section 11.'

19. The aforesaid definition of 'possession' under Section 2(45) of the Act is not precise or exhaustive. It only indicates that possession includes occupation of land by various categories of tenants.

20. "Possession" is a polymorphous term which may have different meanings in different contexts. It is impossible to work out a completely logical and precise definition of "possession" uniformly applicable to all situations in the contexts of all statutes. Possession is not purely a legal concept (See Superintendent & Remembrancer of Legal Affairs, West Bengal v. Anil Kumar Bhunja: AIR 1980 SC 52).

21. The word 'possession', no doubt, has different shades of meaning and it is quite elastic in its connotation. Possession and ownership need not always go together. Salmond on Jurisprudence (12th Edition at page 273) says that the test, 'for determining whether a man is in possession of anything is whether he is in general control of it. Unless he is actually holding or using it - in which event he clearly has possession - we have to ask whether facts are such that we can expect him to be able to enjoy the use of it without interference on the part of others'.

22. Tenancy right is inheritable. Tenancy is a heritable right unless a legal bar operating against heritability is shown to exist (See Parvinder Singh v. Renu Goutam : AIR 2004 SC 2299).

23. In Pandey v. Paul : AIR 1989 SC 1470, the Supreme Court has held as follows:

'It is now well settled that on the death of the original tenant, subject to any provision to the contrary either negativing or limiting the succession, the tenancy rights devolve on the heirs of the deceased tenant. The incidence of the tenancy are the same as those enjoyed by the original tenant. It is a single tenancy which devolves on the heirs. There is no division of the premises or of the rent payable thereof. That is the position as between the landlord and the heirs of the deceased tenant. In other words, the heirs succeed to the tenancy as joint tenants'.

24. The decision of the Apex Court in Pandey's case has been affirmed by a larger Bench in Harish Tandon v. Additional District Magistrate, Allahabad (AIR 1995 SC 676).

25. However, the Constitution Bench has held in Boddu Venkatakrishna Rao v. Boddu Satyavathi (AIR 1968 SC 751) that the principle of joint tenancy is unknown to Hindu law, except in the case of coparcenary between the members of an undivided family. Section 19 of the Hindu Succession Act, 1956 states, inter alia, that if two or more heirs succeed together to the property of an intestate, they should take the property save as otherwise expressly provided in the Act, per capita and not per stripes and as tenants - in - common and not as joint tenants. It would not be out of context to mention that under the Mohammedan Law also, when a person dies intestate, his estate devolves upon his heirs who succeed to the estate as tenants - in - common in specific shares and not as joint tenants (See Syed Shah Gulam Ghouse Mohiuddin v. Syed Shah Ahmad Mohiuddin Kamisul Qadri: AIR 1971 SC 2184).

26. But, personal law has no application proprio vigore to inheritance of tenancy right as in the case of inheritance of proprietary rights. Notions of Hindu Law or any other personal law can have no application to the rights created under a statute relating to agrarian reforms. (See Ramji Dixit v. Bhrigunath : AIR 1965 All 1 (FB).

27. It is also to be noted that as far as possession is concerned, it is immaterial whether the legal heirs of a tenant succeed to the estate as joint tenants or tenants -in -common. The salient feature of a joint tenancy is that it connotes unity of title, unity of possession, unity of interest and unity of the time of commencement of title. In a case of tenancy-in-common or co-tenancy also, there is unity of possession.

28. It is a well recognised principle that possession of properties movable or immovable by one of the owners, whether it be as a member of the undivided joint Hindu family or a joint family or as tenants- in- common, such possession is possession of all the sharers. Under the law each tenant in common is entitled to the possession of the entire property, that is, to every part of it though his right to possession is limited to the extent of share in the property (See Jahuri Sah v. Dwarika Prasad : AIR 1967 SC 109). The possession of one co-heir is considered, in law, as possession of all co-heirs. When one co-heir is found to be in possession of the properties it is presumed to be on the basis of joint title (See P.L. Lakshmi Reddy v. L. Lakshmi : AIR 1957 SC 314). Under the law, possession of one cosharer is possession of all co-sharers. It cannot be adverse to them, unless there is a denial of their right to their knowledge by the person in possession, and exclusion and ouster following thereon for the statutory period (See Mohammad Baqar and others v. Naim - Un - Nisa Bibi: AIR 1956 SC 548).

29. It is settled law that all co-owners have equal rights and co - ordinate interest in the property though their shares may be either fixed or indeterminate. Every co-owner has a right to enjoyment and possession equal to that of the other co-owner or co-owners. Each co - owner has, in theory, interest in every infinite small portion of the subject - matter and each has the right irrespective of the quantity of his interest, to be in possession of every part and parcel of the property jointly with others. When the tenancy right devolves on the heirs of a tenant on his death, the incidence of tenancy remains the same as earlier enjoyed by the original tenant and it is a single tenancy which devolves on them. There is no division of the premises or of the rent payable.

30. When an application for certificate of purchase is made by the actual tenant, that is, the person who has actually taken the land on lease, no difficulty arises. He would be a person who is entitled to cultivate the land and he would also be in actual possession of the land. The difficulty arises when application for certificate of purchase is made by only one of the co-heirs of a deceased cultivating tenant. In our view, the expression 'actual possession'' contained in Section 2(8) of the Act cannot be given a narrow interpretation to mean that only the co-heir or co-sharer who actually cultivates the land acquires the status of a cultivating tenant. When a co-heir is in actual possession of the land, his possession has to be deemed to be the possession of other co-heirs or co-sharers also. When the tenancy right devolves upon the legal heirs of the deceased cultivating tenant and when one of them is in actual possession of the land, other cosharers shall also to be considered to be in actual possession of the land. As noticed earlier, the possession of one co-heir is considered, in law, as possession of all co-heirs. The conduct of co-sharers in permitting one of them to manage the common property does not by itself raise any estoppel precluding them from asserting their rights.

31. If the expression 'actual possession' in Section 2(8) of the Act is given a narrow and literal interpretation in case of an application for certificate of purchase made by one of the co-heirs of a cultivating tenant, the other co-heirs would be deprived of their right. Sometimes, absurd results may also follow. Suppose there are three persons who jointly inherit the tenancy right of a cultivating tenant. By virtue of some arrangement, either express or implied, only one of them may be in actual physical possession of the land and cultivate it. Others may be working at distant places. Sometimes, the other two persons may be pursuing a profession. If strict and literal interpretation of the expression 'actual possession' in Section 2(8) of the Act is adopted and if it is found that only the co-sharer who is actually in possession of the land, to the exclusion of the other co-sharers, is the cultivating tenant, the other co-sharers would be deprived of their legal right over the land. It would be destructive of the well-established principle of law that the possession of a co-owner is, in law, the possession of the other co-owners. The legislature must be aware of the principles of law relating to co-ownership and the manifest injustice which their abrogation will entail. Again, there may be instances where one of the co-heirs of a cultivating tenant is not able to cultivate the land and manage the property on account of some physical disability. Strict and literal interpretation of the expression 'actual possession' in Section 2(8) of the Act would result in deprivation of his right in the property.

32. It is true that where the language is clear and unequivocal, effect must be given to the express provision of the Act unhampered by any equitable considerations. The question of convenience has no scope where the language is clear and the meaning of the legislation is unambiguous. The normal rule of interpretation is that the words used by the legislature are generally a safe guide to its intention. It is a cardinal principle of interpretation of statutes that the words of a statute must be understood in their natural, original or popular sense and construed according to their grammatical meaning unless such construction leads to some absurdity or unless there is something in the context or in the object of the statute to the contrary. However, where the language of a statute, in its ordinary meaning and grammatical construction, leads to a manifest contradiction of the apparent purpose of the enactment, or to some inconvenience or absurdity, hardship or injustice presumably not intended, a construction may be put upon it which modifies the meaning of the words and even the structure of the sentence (See Pentiah v. Muddala Veeramallappa : AIR 1961 SC 1107). After a survey of the decisions on the rules of interpretation of statutes, in Eera v. State (AIR 2017 SC 3457), the Supreme Court has observed as follows:

'It is thus clear on a reading of English, U.S., Australian and our own Supreme Court judgments that the 'Lakshman Rekha' has in fact been extended to move away from the strictly literal rule of interpretation back to the rule of the old English case of Heydon, where the Court must have recourse to the purpose, object, text, and context of a particular provision before arriving at a judicial result. In fact, the wheel has turned full circle. It started out by the rule as stated in 1584 in Heydon's case, which was then waylaid by the literal interpretation rule laid down by the Privy Council and the House of Lords in the mid 1800s, and has come back to restate the rule somewhat in terms of what was most felicitously put over 400 years ago in Heydon's case'.

33. In Kailash Rai v. Jai Jai Ram : AIR 1973 SC 893, on interpretation of the provisions contained in U. P. Zamindari Abolition and Land Reforms Act, 1950 the Supreme Court has held as follows:

'There is no indication in the Abolition Act or the Tenancy Act that bhumidhari rights are not intended to be conferred on all the co-sharers or co-proprietors, who are entitled to the properties, though only some of them may be in actual cultivation. One can very well visualise a family consisting of father and two sons, both of whom are minors. Normally, the cultivation will be done only by the father. Does it mean that when the father is found to be cultivating the land on 30-6-1952, he alone is entitled to the bhumidhari rights in the land and that his two minor sons are not entitled to any such rights? In our opinion, the normal principle that possession by one co-sharer is possession for all has to be applied. Further, even when one co-sharer is in possession of the land, the other co-sharers must be considered to be in constructive possession of the land. The expression 'possession' in clause (a), in our opinion, takes in not only actual physical possession, but also constructive possession that a person has in law'.

34. The intention of the legislature in enacting the Kerala Land Reforms Act is to protect the rights of the tenants. The provisions of the Act referred to earlier provide for the extinguishment of the rights of the landlords and intermediaries in respect of the holding and the vesting of the same in the cultivating tenant. These provisions are intended to achieve a social purpose of abolition of feudalism and vesting of the proprietorship of the land in the cultivating tenant. The Explanation to Section 72K makes it clear that the purpose of these provisions of the Act is to confer proprietorship of the soil on the cultivating tenant. It cannot be found that the legislature had the intention to deprive some of the co-heirs of a cultivating tenant of their right in the land. The Court has to strive to avoid a construction which will tend to make the statute unjust, oppressive, unreasonable, absurd, mischievous, or contrary to the public interest. Liberal and creative construction of the expression 'actual possession' in Section 2(8) of the Act would enable preservation of the rights of all the coowners of the land and at the same time, it would help to achieve the object the framers of the law had in view. On a liberal and creative and purposive construction of the expression 'actual possession' in Section 2(8) of the Act, it has to be found that it includes constructive possession of a co-owner of the land. If we hold otherwise, it would amount to placing a premium upon dishonesty and permitting a dishonest co-heir of a cultivating tenant to get the entire land to the exclusion of other co-sharers for no fault of theirs. Limiting the scope of the expression 'actual possession' in Section 2(8) of the Act would circumscribe its scope unduly and it would result in hardship to rightful owners of the land. Thus, the expression 'actual possession' in Section 2(8) of the Act has to be construed to mean that it includes constructive possession of the land by all the heirs of a cultivating tenant.

35. The discussion above leads to the conclusion that on the death of a cultivating tenant, the tenancy right devolves upon all his legal heirs and each of them acquires the status of a cultivating tenant. If any of them makes application to the Land Tribunal under Section 72B (3) of the Act for assignment of the right, title and interest in respect of the holding vested in the Government and if a certificate of purchase is issued to him, it has to enure to the benefit of the other co-heirs or co-sharers.

36. If any of the co-shares makes an application under Section 72B (3) of the Act, he is bound to disclose the names and details of other persons who were interested in the holding at the time of vesting. Rule 4 of the Kerala Land Reforms (Vesting and Assignment) Rules, 1970 (hereinafter referred to as 'the Rules') provides that the application under Section 72 of the Act shall be made in Form A. This Form indicates the details to be furnished by the applicant. If the certificate of purchase is issued in suo motu proceedings as provided in Section 72C of the Act, then also the formalities prescribed under the Rules have to be complied with. Non-compliance with the procedure under the Act or the Rules will render the order of the Land Tribunal a nullity.

37. No doubt, by virtue of the provision contained in Section 72K (2) of the Act, the certificate of purchase issued under sub-section (1) of Section 72K of the Act shall be conclusive proof of the assignment to the tenant of the right, title and interest of the landowner and the intermediaries, if any, over the holding or portion thereof to which the assignment relates. The point now arising for consideration is whether the aforesaid rule of evidence prevents co-sharers or co-owners of a property from proving that the certificate of purchase enures to their benefit also.

38. At this juncture, it would be advantageous to refer to Section 90 of the Indian Trusts Act, 1882 which reads as follows:-

"Section 90. Advantage gained by qualified owner.- Where a tenant for life, co-owner, mortgagee or other qualified owner of any property, by availing himself of his position as such, gains an advantage in derogation of the rights of the other persons interested in the property, or where any such owner, as representing all persons interested in such property, gains any advantage, he must hold, for the benefit of all persons so interested, the advantage so gained, but subject to repayment by such persons of their due share of the expenses properly incurred, and to an indemnity by the same persons against liabilities properly contracted, in gaining such advantage.

Illustrations

(a) A, the tenant for life of leasehold properly, renews the lease in his own name and for his own benefit. A holds the renewed lease for the benefit of all those interested in the old lease.

(b) A village belongs to a Hindu family. A, one of its members, pays Nazrana to Government and thereby procures his name to be entered as the inamdar of the village. A holds the village for the benefit of himself and the other members.

(c) A mortgages land to B, who enters into possession. B allows the Government revenue to fall into arrear with a view to the land being put up for sale and his becoming himself the purchaser of it. The land is accordingly sold to B. Subject to the repayment of the amount due on the mortgage and of his expenses property incurred as mortgagee, B holds the land for the benefit of A'.

39. Section 90 of the Indian Trusts Act, 1882 embodies a wellknown principle of equity, justice and good conscience. It incorporates a wholesome doctrine of trust. Section 90 of the Trusts Act is based on the equitable principle that no person in a fiduciary capacity or position can make a profit out of that capacity or position to the detriment of other persons who are beneficially interested in the property. He shall not utilise his position to obtain an advantage to himself. The following conditions are requisite for the application of Section 90 of the Trusts Act. (1) A tenant for life, co-owner, mortgagee or other qualified owner of any property gains an advantage (2) such an advantage is gained by availing himself of his position as such and (3) it is in derogation of the rights of other persons interested in the property. It must be shown (1) that the party against whom relief is sought, availed himself of his position; (2) that he gained an advantage by doing so and (3) that the advantage was gained in derogation of the right of the person interested in the property. In other words, a person who is a limited owner by reason of his position must not utilise that position to obtain an advantage to the detriment of his co-owners. It is not necessary that the other persons should prove that the advantage was obtained fraudulently or by misrepresentation or by suppression of true facts. All that the section says is that if there is a person in a fiduciary relation to another, he cannot take advantage of his position so as to gain something exclusively for himself which otherwise he would not have obtained but for the position which he held.

40. We may now refer to certain decisions in which the principle underlying Section 90 of the Indian Trusts Act has been applied.

41. Babani Soiroo Patel v. Dulba Govind Bhandari : AIR 1932 Bom 240 dealt with a case where the Government acquired land in the year 1865 and forty-seven years later, the Government decided that the land should be restored to the persons from whom it was acquired. The land was returned to defendant No. 1 alone on his repaying the compensation money. Two nephews of defendant No.1, who had interest in the property, then sold their two-third share to the plaintiff and he filed a suit for partition and recovery of his share of property from defendant No.1. The question raised was whether, in so far as the transfer to the first defendant is concerned, the land was held by the first defendant himself, for his own benefit or under the principle of Section 90 of the Indian Trusts Act, it was held by him also for the benefit of his two nephews from whom the plaintiff derived his title. It was held that the principle of Section 90 of the Indian Trusts Act applied to the facts of the case and defendant No.1 was directed to restore the two-third share to the plaintiff on payment of proportional part of the compensation money. It was held that where the acquisition of a benefit depends upon the holding of a certain position, and that position is in reality held not by one but by several persons, and yet only one of the several persons acquires that benefit by holding that position, the person acquiring the benefit is a constructive trustee for those several persons.

42. Mohammad Ali v. Mumtaz Ali: AIR 1929 Oudh 521 was a case in which a claim for partition of the properties which belonged to one Ramzan Ali was dealt with. Ramzan Ali was the tenant of the properties. The appellant-plaintiff filed the suit for partition of the properties in the possession of the respondent-defendant Mumtaz Ali, one of the heirs of Ramzan Ali. He had come into possession of the properties on the basis of a compromise entered into with the landlord. The trial court held that the property was joint property of the parties and granted a decree for partition. On appeal a different view was taken and the appellate court dismissed the suit. On second appeal filed by the plaintiff, the decree of the trial court was restored. It was found that the properties were in the possession of Ramzan Ali and the defendant came into possession of the properties as a heir of Ramzan Ali. It was held that the right obtained by the defendant in respect of the properties must be ascribed to the right of Ramzan Ali whose heir he happened to be and the benefit derived by him must be considered as benefit derived by him not for his exclusive advantage but for all the heirs of Ramzan Ali. It was further held that when the defendant came into possession of the properties after the death of Ramzan Ali, his possession must be considered to be not only on his own behalf but on behalf of all the heirs of Ramzan Ali and if the defendant while in possession of the entire property derived any advantage by virtue of being in such possession, he could not appropriate that advantage exclusively for himself, but must be deemed in law to have derived it both for himself and his co-sharer.

43. In Dharma Raghunath Desai v. Keshav Gunajee Kondkar: AIR 1934 Bom 219, the Government had leased out certain lands to the father of defendants Nos.1 and 2 for a term of thirty years and the lands were in his possession. On his death, defendants Nos.1 and 2 became entitled to equal shares in the lands. The land was held by the defendants as co-owners. Meanwhile, defendant No.2 had mortgaged his moiety in the lands to the plaintiff. When the lease granted by the Government expired, defendant No.1, relying on his possession over the lands and incorrect representation of facts, obtained from the Government occupancy right in the whole land in his own name. The plaintiff sued to recover possession of half share of defendant No.2. It was held that Section 90 of the Indian Trusts Act, 1882 operated inasmuch as defendant No.1 had not got the beneficial interest in the moiety of defendant No. 2 and held the share for the benefit of the plaintiff having such interest. It was held that defendant No.1 by availing himself of his position as a co-owner in actual possession gained the occupancy right relating to the suit lands in his own name to the derogation of the rights of the plaintiff and defendant No.2 and that he got right over the lands because he claimed to be the heir of the original lessee and to be solely in possession of the lands.

44. In Ramrudhar Singh vs Dileshwar Singh: AIR 1965 Pat 117, the dispute arose in a suit for partition. The trial court decreed the suit for partition in part. The contesting defendant filed appeal. The suit property in that case vested in the State of Bihar under Section 4 of the Bihar Land Reforms Act. Section 6(1) of that Act provided that on and from the date of vesting, all lands used for agricultural or horticultural purposes, which were in khas possession of an intermediary on the date of such vesting shall, subject to the provisions of Sections 7A and 7B, be deemed to be settled by the State with such intermediary and he shall be entitled to retain possession thereof and hold them as a raiyat under the State having occupancy rights in respect of such lands subject to the payment of such fair and equitable rent as may be determined by the Collector in the prescribed manner. Section 2(k) of that Act stated that 'khas possession' used with reference to the possession of a proprietor or tenure-holder of any land used for agricultural or horticultural purposes means the possession of such proprietor or tenure-holder by cultivating such land of carrying on horticultural operations thereon himself with his own stock or by his own servants or by hired labour or with faired stock. The appeal by the defendant was dismissed holding as follows:

'If there are more intermediaries than one and all of them are in joint possession, the lands in their khas possession would be retained by the entire body of intermediaries as raiyats with occupancy rights. The question, however, will seriously arise, ii one co-sharer is in actual cultivating possession of the lands, whether the settlement by the State will enure to his benefit alone or to the benefit of all his co-sharers along with him. There is no reason to suppose that the Bihar Land Reforms Act has impliedly, though not expressly, abrogated settled principles of law unconnected with the object and purpose of its enactment. For instance, a family, consisting of two brothers, had a family business as well as proprietary interest in a village. One brother looked after the business, and the other looked after the proprietary interest, including cultivation of the bakasht lands for agricultural or horticultural purposes. They separated in status but continued to look after the family business and the family intermediary interests as before. It would, undoubtedly, be unjust if the brother who was in actual cultivating possession of the lands on behalf of the family became the exclusive raiyat in respect of those lands when the estate vested, and was also held entitled to a share in the family business which was being looked after by the other brother'.

45. In Kochu Lakshmi v. Velayudhan: 1981 KLT 639, the elder son of a cultivating tenant had obtained a certificate of purchase in his name under Section 72K of the Act and claimed exclusive right over the property. This Court held that if there are other legal heirs, they would have the status of co-owners and the certificate of purchase would enure to the benefit of all such co-owners. However, this decision does not refer to Section 90 of the Trusts Act.

46. In Saidali v. Amina Umma: ILR 1985 (1) Kerala 253, a learned Single Judge of this Court held that a certificate of purchase obtained by one co-owner will enure to the benefit of the other coowners. In this case also, Section 90 of the Trusts Act was not expressly referred to but the principle that a co-owner in possession of a property is a person who holds the status of a trustee was applied.

47. In Janaki v. Paru : AIR 1986 Kerala 110, the contesting defendants had obtained a certificate of purchase in respect of the suit property under Section 72K of the Act. They were co-owners of the property alongwith the plaintiffs. This Court held that the contesting defendants in their capacity as co-owners acted as constructive trustees of the plaintiffs and other defendants when they obtained the purchase certificate and it will certainly enure to the benefit of the other co-owners including the plaintiffs and that the contesting defendants cannot have any special right derogative of the rights of the plaintiffs by virtue of the purchase certificate.

48. In Kunhunni v. Kesavan Namboodiri : 1990 (2) KLT 854, the karanavan of an Illom obtained assignment of land from the Government under a local law then existed. After making reference to Section 90 of the Trusts Act, a Division Bench of this Court held as follows:

'When a Karanavan of a tharavad or Illam or the Kartha of a joint family who by virtue of his position is either in possession of Kumki land or is exercising Kumki privileges applies to the government for assignment and obtains the assignment, without anything more, the only inference which can be drawn is that he so applied for assignment in his capacity as Karanavan and for the benefit of the family. If he seeks assignment in his individual capacity and not in representative capacity that certainly would be in derogation of rights of other members of the family who would be entitled to contend that the family has preferential right to obtain assignment. Either way the position is that the assignment in favour of the Kartha enures to the benefit of the family'.

49. In Gouri v. Balakrishnan : 2011 KHC 2849, this Court has again held that a certificate of purchase obtained by one of the coowners shall enure to the benefit of all the other co-owners.

50. In Chandra Gopi v. Gopalakrishnan : 2013 (1) KHC 174, a learned Single Judge of this Court reiterated that a certificate of purchase issued under Section 72K of the Act would definitely enure to the benefit of all co-owners. However, on the facts of the case, it was held that the persons who claimed to be co-owners of the property had no right in it.

51. We see no reason to take a view which is different from the view taken in the decisions referred to just above. Where a co-owner of a land, who is in possession of the land, by availing himself of his position as a co-owner, obtains a certificate of purchase under Section 72K of the Act, it amounts to gaining an advantage in derogation of the rights of the other co-owners by using such position as a coowner. Then he becomes a constructive trustee for the other coowners. By virtue of the principle of law contained in Section 90 of the Trusts Act, the benefit obtained by him in the form of the certificate of purchase shall be held by him also for the advantage of the other coowners. The certificate of purchase obtained by him shall enure to the benefit of the other co-owners also. We hold so.

52. We are aware that there are decisions of this Court which hold that a co-owner is not a trustee of other co-owners and that merely because a person is a co-owner it cannot be said that any benefit derived by him as a co-owner should go to the benefit of the other co-owners also (See Balakrishnan v. Makkom : ILR 1973 (1) Kerala 519 and Padmanabhan v. Thulasi : ILR 1978 (2) Kerala 412). We have no quarrel with this proposition. What we want to emphasise is that once a co-owner gains an advantage using his position as a coowner and in derogation of the rights of the other co-owners, he becomes a constructive trustee and then, he holds such advantage in trust for the benefit of the other co-owners also. If we hold otherwise, the provision contained in Section 90 of the Trusts Act would become nugatory and redundant.

53. Learned counsel Sri.P.B.Krishnan would contend that the proposition, that a certificate of purchase obtained by one of the coowners of a property would enure to the benefit of the other coowners also, would make the provision under Section 72K(2) of the Act redundant and nugatory. Learned counsel would contend that by virtue of the provision contained in Section 72K (2) of the Act, the certificate of purchase issued under sub-section (1) of Section 72K of the Act shall be conclusive proof of the assignment to the tenant of the right, title and interest of the landowner and the intermediaries, if any, over the holding or portion thereof to which the assignment relates and this rule of evidence prevents any other person to plead or prove otherwise.

54. Section 4 of the Indian Evidence Act defines 'conclusive proof' as follows :

"When one fact is declared by this Act to be conclusive proof of another, the Court, shall, on proof of the one fact, regard the other as proved, and shall not allow evidence to be given for the purpose of disproving it."

55. The rule of evidence stated as 'conclusive proof' under Section 4 of the Indian Evidence Act applies only to facts declared as proved under that Act and not under other statutes. But, in Somawanti v. State of Punjab : AIR 1963 SC 151, the Supreme Court has held as follows:

'Since evidence means and includes all statements which the Court permits or requires to be made, when the law says that a particular kind of evidence would be conclusive as to the existence of a particular fact it implies that that fact can be proved either by that evidence or by some other evidence which the Court permits or requires to be advanced. Where such other evidence is adduced it would be open to the Court to consider whether, upon that evidence, the fact exists or not. Where, on the other hand, evidence which is made conclusive is adduced the Court has no option but to hold that the fact exists. If that were not so, it would be meaningless to call a particular piece of evidence as conclusive evidence. Once the law says that certain evidence is conclusive it shuts out any other evidence which would detract from the conclusiveness of that evidence. In substance, therefore, there is no difference between conclusive evidence and conclusive proof. Statutes may use the expression 'conclusive proof where the object is to make a fact non justiciable. But the legislature may use some other expression such as 'conclusive evidence' for achieving the same result. There is thus no difference between the effect of the expression 'conclusive evidence' from that of 'conclusive proof', the aim of both being to give finality to the establishment of the existence of a fact from the proof of another'.

56. When an enactment enjoins that any evidence shall be treated as conclusive proof of a particular fact, the law forbids other evidence from being adduced for the purpose of contradicting or varying that conclusiveness. On interpretation of the provision contained in Section 72K(2) of the Act, in Chettian Veetil Ammad v. Taluk Land Board : AIR 1979 SC 1573, the Supreme Court has held as follows:

'Now the certificate of purchase which the Land Tribunal issues (in the prescribed form) evidences the "assignment" of the assigned land to the purchaser. Sub-section (2) of Section 72K of the Act mentioned above merely declares that the certificate shall be conclusive proof of that "assignment" of the right, title and interest of the landowner and the intermediaries (if any) to the tenant in respect of the holding concerned (or portion thereof). There is nothing in the subsection which could be said to declare that the finding recorded by the Tribunal in those proceedings would be conclusive proof of any other matter …. It would thus appear that eventhough the certificate of purchase issued under sub-section (1) of Section 72K is conclusive proof of the assignment of the right, title and interest of the landowner in favour of the holder in respect of the holding concerned under sub-section (2), that only means that no contrary evidence shall be effective to displace it, unless the so called conclusive effective proof is inaccurate on its face, or fraud can be shown'.

57. In Patinhare Purayil Nabeesumma v. Miniyatan Zacharias: AIR 2008 SC 1456, the Apex Court has held as follows:

'A certificate issued under S.72K of the Act is conclusive. One the same is found to be conclusive, the same cannot be refused to be taken into consideration for any purpose whatsoever. The only issue which, therefore, should have been raised by the High Court was as to who was entitled thereto, keeping in view the fact that the Land Tribunal had granted certificates of assignment to both the parties. In view of the statutory scheme, both the parties could not have been given the certificates of assignment. The certificate in favour of the appellant, even otherwise, having been granted earlier and the same having not been set aside on the ground of fraud or illegality, it was conclusive even as against the Land Tribunal. The Land Tribunal, therefore, had no jurisdiction to issue a second certificate.''

58. In Ahmmed Kutty v. Mariakutty Umma : AIR 2000 SC 1853, the Apex Court has observed as follows:

'Of course, the interdict that the court shall not allow evidence to be adduced for the purpose of disproving the conclusiveness, will not prevent a party who alleges fraud or collusion from establishing that the document is vitiated by such factors. Except regarding the said limited sphere the conclusiveness of the document would remain beyond the reach of controvertibility'.

59. A close analysis of the provision contained in Section 72K(2) of the Act in the light of the decisions of the Apex Court referred to above would show that the bar under that provision is only against adducing evidence to disprove the fact of assignment to the tenant of the right, title and interest of the landowner and the intermediaries, if any, over the holding or portion thereof to which the assignment relates. When a party produces before the court the certificate of purchase issued in his name in respect of a property and when the opposite party is permitted to plead and prove that the assignment of the right, title and interest of the landowner over the property, which is evidenced by the certificate of purchase, enures to his benefit also, then the assignment to the tenant of the right, title and interest of the landowner is not challenged and therefore, there is no violation or dilution of the provision contained in Section 72K(2) of the Act. What is then permitted is not disproving of the fact of assignment of the right, title and interest of the landowner and the intermediaries, if any, over the holding or portion thereof to the holder of the certificate. What is then permitted is only pleading and proving that the assignment so made enures to the benefit of some other person also. This is different from adducing evidence to displace the conclusiveness of the certificate of purchase. It does not amount to raising of a rival claim of title over the property. It does not amount to disproving the fact conclusively established by the certificate of purchase. As held by the Apex Court in Chettian Veetil Ammad (supra), the certificate of purchase which the Land Tribunal issues evidences the "assignment" of the land to the purchaser and sub-section (2) of Section 72K of the Act merely declares that the certificate shall be conclusive proof of that "assignment" of the right, title and interest of the landowner and the intermediaries (if any) to the tenant in respect of the holding concerned. The certificate of purchase issued under Section 72K of the Act is not conclusive proof of any other matter. What is prevented under Section 72K(2) of the Act is adducing contrary evidence to disprove the assignment of the right over the land to the tenant. Therefore, we are of the view that a finding by the court that the certificate of purchase issued to a co-heir of the tenant or a co-owner of the property would also enure to the benefit of other co-heirs and co-owners will not amount to violation of the provision contained in Section 72K(2) of the Act. Permitting a co-heir of the tenant or a coowner of the property to plead and prove that the certificate of purchase issued to another co-heir or a co-owner would enure to his benefit also will not amount to challenging the conclusiveness of the certificate of purchase regarding assignment of the right and title in respect of the land to the tenant to whom the certificate is issued.

60. Now, we shall examine the contention regarding the conflict between the two decisions of this Court in Paul v. State of Kerala and Another (1981 KLT 721) and Ramakke and Others v. Gopi and Others (2011(3) KHC 491).

61. A careful reading of the judgment in Paul's case would reveal that there is no dictum laid down in that case to the effect that the benefit of a certificate of purchase issued to a co-heir or co-owner under Section 72K(1) of the Act would enure to the benefit of other coowners. It was in Kochu Lakshmi v. Velayudhan: 1981 KLT 639, the same Division Bench which decided Paul's case had held that certificate of purchase obtained by one co-heir of a cultivating tenant in his name would enure to the benefit of all other co-owners. In Kochu Lakshmi the Division Bench had held that "disputes inter se among cultivating tenants is not a matter for determination of the Land Tribunal in an enquiry regarding the vesting of rights of the landlord and the intermediaries in the cultivating tenant by the issue of a purchase certificate to him." In Paul's case the Division Bench clarified that the observation quoted above was made on the facts of the case in Kochu Lakshmi and that it was not the view of the Division Bench that in a proceeding where there are rival claims for the issue of a purchase certificate that question cannot be determined by the Land Tribunal. The Division Bench in Paul's case clarified that if there are rival claims, that question will have necessarily to be gone into by the Land Tribunal. While making such clarification, the Division Bench reiterated the dictum laid down in Kochu Lakshmi that when the tenancy devolves on more than one person and one of the co-heirs applies for the issue of a purchase certificate without disclosing the existence of the rights of other co-heirs it is not necessary to determine the quantum of his share in the tenancy because even if he purchased all the rights of the landlord it will enure to the benefit of the other co-tenants under the principle of quasi trust. This view is in consonance with the view we have now taken.

62. The facts of the case in Ramakke and Others v. Gopi and Others (2011(3) KHC 491) are as follows. Mundappa Gatty had three children; a son Manju Gatty and daughters Birmage and Korappalu. Manju Gatty died without issues. The plaintiffs in the suit were the heirs of Korappalu. They sued for partition. Their plea was that the suit property had been taken on lease by Mundappa Gatty and on his death, the right over the property devoled on the three children and on the death of Manju Gatty, his right over the property devolved on the two sisters. The defendants contended that Manju Gatty was himself the cultivating tenant of the property in question and he was the person who obtained the lease and he had obtained certificate of purchase in respect of the property from the Land Tribunal. They further contended that Manju Gatty had executed Ext. B1 Will in favour of the second defendant bequeathing the property covered by the certificate of purchase to him. The Division Bench of this Court held that in the absence of any plea that the certificate of purchase has been obtained by fraud and without seeking any declaration as to title on the basis of the purchase certificate which stands in the name of Manju Gatty, the other children of Mundappa Gatty or their heirs cannot stake any claim to the property covered by the certificate of purchase.

63. A close scrutiny of the facts in Ramakke would show that it was established in that case that it was Manju Gatty who was the cultivating tenant and not Mundappa Gatty. When it was established that the cultivating tenant himself, who had actually taken the property on lease, had obtained a certificate of purchase in respect of the property, there was no question of the benefit under it enuring to another person. In such circumstances, if another person wanted to claim right in the property covered by the purchase certificate, it was necessary for him to impeach the certificate of purchase or to seek a declaration of his right in the property. No question of application of the principle of quasi trust or constructive trust arose in Ramakke. Thus, it is a case distinguishable on facts.

64. True, in Ramakke, the Division Bench has held that once a certificate of purchase is issued, the person in whose name it is issued is to be considered as the person in possession of the property. There can be no quarrel with this proposition. However, when a certificate of purchase is issued in the name of one of the co-heirs of the deceased cultivating tenant or one of the co-owners of the property, he cannot be held to be in exclusive possession of the property. It can only be found that he is in possession of the property along with the other co-heirs of the cultivating tenant or the other coowners of the property. We therefore clarify the dictum laid down in Ramakke to that extent.

65. At this juncture, it is also to be noted that a certificate of purchase is not conclusive as against a person to whom individual notice has not been issued before passing such order directing issuance of the certificate (See Chandran Nair v. Kunhambu Nair :AIR 1982 Kerala 232, Velappan v. Thomas :1979 KLT 412, Kochu Lakshmi v. Velayudhan :1981 KLT 639 and Sree Karikkad Devaswom v. Wandoor Jupiter Chits (P) Ltd : 1980 KLT 760). Further, when a certificate of purchase is issued by the Land Tribunal without complying with the provisions of the Act and the Rules, it would be a nullity (See Muhammed Haji v. Kunhunni Nair: 1993 (1) KLT 227 (FB). As already noticed, certificate of purchase issued under sub-section (1) of Section 72K is not conclusive proof of the assignment of the right, title and interest of the landowner in favour of the holder when it is inaccurate on its face or when it is shown that it has been obtained by playing fraud (See Chettian Veetil Ammad v. Taluk Land Board : AIR 1979 SC 1573).

66. Learned counsel Sri.P.B.Krishnan would submit that the finding of the Land Tribunal that a person is the tenant of a holding operates as res judicata in a subsequent suit and therefore, the civil court cannot try and decide the issue whether the certificate of purchase obtained by one of the co-heirs enures to the benefit of other co-heirs. Learned counsel relies upon the decision of the Full Bench of this Court in Muhammed Haji v. Kunhunni Nair (1993 (1) KLT 227) in support of this contention.

67. In Muhammed Haji v. Kunhunni Nair (1993 (1) KLT 227), a Full Bench of this Court has held that the Land Tribunal is a court or Tribunal of exclusive jurisdiction and that the decision of the Land Tribunal regarding the existence of a tenancy will be res judicata in a subsequent civil suit or proceeding and will be a bar for the further decision on the same point, either by the Land Tribunal or by a civil court. However, the Full Bench has further held that existence of a valid order under Section 72F(5) of the Act is a pre-requisite or a sine qua non for passing the consequential order under Section 72K of the Act whereby a certificate of purchase is issued and an order passed by the Land Tribunal without complying with the provisions of the Act and the Rules would be a nullity.

68. Section 108A was introduced in the Act by Amendment Act 27 of 1979, which came into force on 07.07.1979. Section 108A of the Act provides that the provisions of Section 11 of the Code of Civil Procedure, 1908 shall apply to the proceedings before the Land Tribunal. Even before Section 108A was introduced by the Amendment Act 27 of 1979, a Full Bench of this Court had in Koran v. Kamala Shetty (1977 KLT 358) taken the view that the general principles of res judicata would apply to the proceedings before the Land Tribunal.

69. The principle of res judicata would apply only when the matter directly and substantially in issue in a suit has been directly and substantially in issue in a former suit or proceedings between the same parties, or between parties under whom they or any of them claim litigating under the same title. When the Land Tribunal decides the question of tenancy and passes an order in favour of one of the coheirs of a cultivating tenant, it does not decide whether the certificate of purchase to be issued pursuant to such order would enure to other co-heirs. The Division Bench in Paul's case (supra) has held that for the issue of the purchase certificate the inter se rights of the cotenants need not be gone into by the Land Tribunal and how far the benefit of such certificate of purchase will devolve on the other coheirs is not a matter to be gone into by the Land Tribunal. Another Division Bench of this Court has concurred with this view in Balakrishnan Nair v. Radha Amma : 1987 (1) KLT 195. We agree with the aforesaid view taken by the two Division Benches of this Court. It then follows that when the Land Tribunal decides the question of tenancy and passes an order in favour of one of the co-heirs of a cultivating tenant for issuing certificate of purchase, no finding is entered by it with regard to the inter se rights of the co-heirs/cotenants or whether the certificate of purchase enures to the other coheirs/co-tenants. If that be so, the principle of res judicata does not apply and the civil court is not precluded from trying and deciding such issue.

70. Sri.P.B.Krishnan would submit that when certificate of purchase is produced by a party in a suit, the court cannot act upon a mere contention raised by the opposite party that the certificate would enure to his benefit also and that the court cannot straightaway enter a finding in that regard. Learned counsel would contend that a party who wants to take advantage of the provision contained in Section 90 of the Trusts Act shall plead and prove the necessary facts and establish that the certificate of purchase produced by the opposite party enures to his benefit also.

71. We agree with the submission made by Sri.P.B.Krishnan that the party who wants to take advantage of the provision contained in Section 90 of the Trusts Act shall plead and prove the necessary facts. But it is not necessary for a party to plead the law or evidence. Order 6 Rule 2(1) of the Code of Civil Procedure, 1908 states that every pleading shall contain, and contain only a statement in a concise form of the material facts on which the party pleading relies for his claim or defence as the case may be, but not the evidence by which they are to be proved. Pleadings and particulars are necessary to enable the court to decide the rights of the parties in the trial. The purpose of pleadings and issues is to ascertain the real dispute between the parties and to narrow the area of conflict between them. In order to have a fair trial it is imperative that the party should state the essential material facts so that the other party may not be taken by surprise. The parties are expected to raise specific pleadings before the first forum for adjudication of the dispute. Those pleadings are the basis of the case of the respective parties even before the appellate / higher courts. The parties would be bound by such pleadings, of course, subject to the right of amendment allowed in accordance with law. It is well settled that in the absence of pleading, evidence, if any, produced by the parties cannot be considered. It is also equally settled that no party should be permitted to travel beyond its pleading and that all necessary and material facts should be pleaded by the party in support of the case set up by it.

72. It is equally well settled that pleadings shall receive a liberal construction. No pedantic approach should be adopted to defeat justice on hair splitting technicalities. Pleadings must be construed reasonably. The contention of the parties must be culled out from the pleadings by reading the same as a whole. Sometimes, pleadings are expressed in words which may not expressly make out a case in accordance with the strict interpretation of the law. In such a case it is the duty of the court to ascertain the substance of the pleadings. Whenever the question about lack of pleading is raised, the enquiry should not be so much about the form of the pleadings. Then the court must find out whether in substance the parties knew the case and the issues upon which they went to trial. Once it is found that inspite of deficiency in the pleadings parties knew the case and they proceeded to trial on the issues by producing evidence, it would not be open to a party to raise the question of lack of pleadings (See Ram Sarup Gupta v. Bishun Narain

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Inter College: AIR 1987 SC 1242). 73. Procedural law is intended to facilitate and not to obstruct the course of substantive justice. Provisions relating to pleading in civil cases are meant to give to each side intimation of the case of the other so that it may be met to enable courts to determine what is really at issue between the parties (See Ganesh Trading Co. v. Moji Ram: AIR 1978 SC 484). 74. In Bhagwati Prasad v. Shri Chandramaul: AIR 1966 SC 735, a four Judge Bench of the Apex Court has held as follows: "If a plea is not specifically made and yet it is covered by an issue by implication, and the parties knew that the said plea was involved in the trial, then the mere fact that the plea was not expressly taken in the pleadings would not necessarily disentitle a party from relying upon if it is satisfactorily proved by evidence. The general rule no doubt is that the relief should be founded on pleadings made by the parties. But where the substantial matters relating to the title of both parties to the suit are touched, though indirectly or even obscurely in the issues, and evidence has been led about them, then the argument that a particular matter was not expressly taken in the pleadings would be purely formal and technical and cannot succeed in every case. What the Court has to consider in dealing with such an objection is : did the parties know that the matter in question was involved in the trial, and did they lead evidence about it? If it appears that the parties did not know that the matter was in issue at the trial and one of them has had no opportunity to lead evidence in respect of it, that undoubtedly would be a different matter. To allow one party to rely upon a matter in respect of which the other party did not lead evidence and has had no opportunity to lead evidence, would introduce considerations of prejudice, and in doing justice to one party, the Court cannot do injustice to another." 75. In Manmatha Nath vs Rakhal Chandra Mandal: AIR 1933 Cal 215, it was observed as follows: 'The pleadings in India have to be construed somewhat liberally notwithstanding the fact that lawyers in general in the mofussil now are more fully equipped than the average mofussil lawyers of half a century or more ago. Their Lordships of the Judicial Committee have made observations to the effect that pleadings of this country are not to be construed with the same strictness as pleadings in English Courts'. Even now, the position remains the same in the matter of pleadings filed in the mofussil courts. 76. Necessity of pleadings with regard to a claim based on Section 90 of the Trusts Act shall be insisted in consonance with the principles mentioned above. It would be sufficient if a party has pleaded that the certificate of purchase was obtained by the opposite party in derogation of the right or interest of the other co-owners/coheirs in the property and that it would enure to the benefit of the other co-owners/co-heirs also. Whenever a contention of lack of pleadings is raised, the lower courts shall consider such contention in the light of the principles laid down by the Apex Court in Bhagwati Prasad v. Shri Chandramaul (AIR 1966 SC 735). A pedantic approach, which would defeat justice, shall not be made. Pleadings, if any raised with regard to a claim based on Section 90 of the Trusts Act shall be construed liberally. 77. On the basis of the conclusions reached by us in the discussion above, we answer the reference as follows: (1) When one of the co-heirs of a tenant or co-shares of a property makes an application to the Land Tribunal under Section 72B (3) of the Act for assignment of the right, title and interest in respect of the holding vested in the Government and if he obtains a certificate of purchase in derogation of the rights of the other co-heirs or cosharers, by availing his status as a co-heir or co-sharer, the certificate of purchase issued to him would enure to the benefit of the other coheirs or co-sharers. (2) A finding by the court that the certificate of purchase issued to a co-heir of the tenant or a co-owner of the property would also enure to the benefit of the other co-heirs or co-owners will not amount to violation of the provision contained in Section 72K(2) of the Act. When a co-heir of the tenant or a co-owner of the property pleads and proves that the certificate of purchase issued to another co-heir or a co-owner would enure to his benefit also, then it does not amount to challenging the conclusiveness of the certificate of purchase which is declared under Section 72K(2) of the Act. (3) When the Land Tribunal decides the question of tenancy and passes an order in favour of one of the co-heirs of a cultivating tenant for issuing the certificate of purchase, no finding is entered by it with regard to the inter se rights of the co-heirs/cotenants or whether the certificate of purchase enures to the other coheirs/co-tenants. Therefore, the principle of res judicata does not preclude the civil court from trying and deciding such an issue. (4) If a party, who is a co-owner/co-sharer of the property, wants to take advantage of the certificate of purchase issued to the opposite party in respect of the property, it is necessary for him to plead and prove that the certificate of purchase was obtained by the opposite party in derogation of the right or interest of the other coowners/co-sharers in the property and that it would enure to the benefit of the other co-owners/co-sharers also. Whenever a contention of lack of pleadings is raised in this regard, the lower courts shall consider such contention in the light of the principles laid down by the Apex Court in Bhagwati Prasad v. Shri Chandramaul (AIR 1966 SC 735). (5) There is no real conflict between the decisions of this Court in Paul v. State of Kerala (1981 KLT 721) and Ramakke v. Gopi (2011(3) KHC 491). In Ramakke, it was established that the certificate of purchase was obtained by the tenant who actually took the land on lease and it was in that context it was held by this Court that a person other than the legal heir/ legal representative of the tenant cannot claim any right over the property in the absence of a challenge made to the certificate of purchase issued by the Land Tribunal. The decision in Ramakke is distinguishable on facts. The statement made by the Division Bench in Ramakke that, once a certificate of purchase is issued, the person in whose name it is issued is to be considered as the person in possession of the property, is correct. However, we clarify that when a certificate of purchase is issued in the name of one of the co-heirs of the deceased cultivating tenant or one of the co-owners of the property, he cannot be held to be in exclusive possession of the property. He is to be considered in possession of the property along with the other co-heirs of the cultivating tenant or the other co-owners of the property. 78. The Registry shall post the appeal before the appropriate Bench for consideration and disposal. Before we conclude, we express our profound appreciation for the valuable assistance rendered by the learned counsel for the parties Sri.M.Rajendran Nair and Sri.P.B.Krishnan who have addressed the arguments with great industry and ability.
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