INTRODUCTION:
This case deals with section 44 of the transfer of property act, 1882 specifically with second paragraph of it.
Section 44: where one or more co-owners of immovable property legally competent in that behalf transfers his share of such property or an interest therein the transferee acquires as to such share or interest as so far as is necessary to give effect to the transfer the transferor’s right to joint possession or other common or part enjoyment of the property and to enforce a partition of the same, subject to conditions and liabilities affecting, at the date of the transfer, the share or interest so transferred. (Para 1)
Where the transferee of a share of a dwelling-house belonging to an undivided family is not a member of the family nothing in this section shall be deemed to entitle him the joint possession or common or part enjoyment of the house. (Para 2)
In this case the single judge bench of the Kerala high court on 25th may 2024, upholding the judgment of the trail and 1st appellate court held that the benefit of second para of section 44 of the transfer of property Act, 1882 can be claimed only by the co-owners of an immovable property and thus dismissed the appeal of the appellants.
BRIEF FACTS OF THE CASE:
The case involves 98 cents of landed property and residential building belonging to late Anandaraman Gowder. He had three sons namely Devaraja Gowder, Subbaya Gowder and Sivalingappa Gowder, who is the 1st defendant in the suit and his son is the second defendant. When family partition was effected the above 98 cents of landed property and the residential building was allotted to son devaraja and Subbaya jointly. Devraja sold his ½ undivided share in the property to the plaintiffs through a sale deed (respondent here). The appellants/defendants are residing in one portion of the building with the permission of devaraja. The plaintiffs filed a suit for mandatory injunction against the appellants to vacate them from the scheduled property and building therein. The trail court decreed in favor of plaintiffs and directed the defendants to vacate the schedule property. The 1st appellant court too confirmed the decision of the trail court. Now aggrieved by this judgement the defendants preferred a second regular appeal before the Kerala high court.
CONTENTIONS FROM THE SIDE OF THE APPELLANT:
That the remedy invoked by the plaintiffs for mandatory injunction is not proper as the defendants resided in the schedule property even at the time of family partition and the proper remedy should be the suit for recovery of possession.
Relying upon section 44 it was contended that since the schedule property is the family house of the defendants the plaintiffs who are strangers cannot seek recovery of possession either, without a prayer for partition.
That since the plaintiffs are strangers, they are not entitled to the joint possession or common enjoyment of the dwelling house located in the plaint schedule property.
That the defendants continued to reside in the schedule residential building even after family partition which was executed in 1957, with the permission of devaraja in exchange for allowing him to reside at the 1st defendant’s house in kunnathurmedu.
That the defendants have acquired a title over the scheduled property through adverse possession and limitation.
CONTENTION FROM THE SIDE OF THE RESPONDENTS:
That the 1st defendant is not the co-owner of the scheduled property after the execution of the partition deed in 1957 and is merely a licensee as his occupation of the property is just permissive and thus is not entitled to benefit from second para of section 44.
OBSERVATIONS OF THE COURT:
The 1st defendant ceased to be a co-owner of the scheduled property of 98 cents of land and residential building therein after partition effected in 1957 as the 1st defendant was given no right or share in the above property and the whole property was jointly allotted to devaraja and Subbaya Gowder.
As per the trail courts findings the 1st defendant could not prove his claim of exchanging his house at kunnathurmedu with the share of the devaraja in the residential building in the schedule property and therefore he is only a licensee of devaraja Gowder.
The suit for mandatory injunction is sufficient to recover the possession as the same was filed immediately after the termination of license thus without any delay.
DECISION:
In the light of the above observations, the High court held that since the appellants are not the co-owners of the schedule property and residential building therein, they are not entitled to get benefit of second para of section 44. And since they are just licensee, they are bound to vacate the dwelling house in the schedule property after the termination of license and since they have refused to do the same the plaintiffs are entitled to a decree directing the defendants to vacate the schedule property and therefore dismissed the appeal of the appellant.
Reference: A. Sivalingappa Gowder @ Sivaraj Gowder v/s N.A. Anidas, 2024, KER
By Amruta Pawar
Intern at Nyaya Nishtha