The revision petitioners are the sons of Sri.Ponnappas Maniyakkaran, against whom ceiling proceedings under Section 85(5) of the Kerala Land Reforms Act had been initiated as CC No.1732/73. The impugned order under challenge had been passed in compliance with the direction of this Court in CRP No.973/07, filed by the second petitioner. This Court set aside the order of the Taluk Land Board dated 22-6-2007 and directed the Land Board to consider the question raised by the second petitioner with respect to the Partition Deed No.1160/1973, in the light of the decision in Ponni Vs. Taluk Land Board (1981 KLT 780) and pass appropriate orders. After issuing notices to the concerned parties and other legal representatives of the declarant, the Taluk Land Board passed the impugned order, rejecting the claim of the petitioners that the Partition Deed No.1160/1973 is a gift deed and thereby they are entitled to get exemption under Section 84(1A) of the Land Reforms (Amendment) Act, 1976. The legality and propriety of the impugned order are under challenge in this Revision Petition.
2. The learned counsel for the revision petitioners submits that, in spite of the specific direction in the earlier CRP No.973 of 2007, the Taluk Land Board has not considered the partition deed No.1160 of 1973, in view of Ponni's case. The learned counsel further drew my attention to the devolution of title as well as the operative portion of the partition deed and submits that, though, it appears that the said document is a deed, in view of the nomenclature, the said deed is actually a gift deed executed by the father in favour of his three sons. In so far as a Christian family, there is no possibility to have a family property having coparcenery right. Therefore, going by the document, it could be reasonably construed that the said document was intended to effect transfer of property by way of gift, notwithstanding, the nomenclature which specifies that the same is a partition deed.
3. Per contra, the learned Special Government Pleader submits that the findings by which the Land Board dismissed the claim under Sec. 84(1)(A), on the basis of the partition deed No.1160 of 1973 are justifiable and sustainable. The learned Special Government Pleader further contends that, earlier, the 2nd petitioner had filed CRP No.2336 of 1991, raising the very same contention that partition deed No.1160 of 1973 is, in effect a transfer of property by way of gift and that contention had been rejected by this Court by the impugned order dated 18th June, 1997 passed in the above CRP. But, suppressing the said facts, the 2nd petitioner again filed the above CRP No.973 of 2007 and obtained an order of remand clandestinely to consider the very same question again. The learned Special Government Pleader drew my attention to paragraph 3 of the order passed by this Court in CRP No.2336 of 1991 which shows that this Court has analysed the partition deed No.1160 of 1973, interpreted the devolution of title as well as the operative portion and arrived at a finding that the said deed is a partition deed and on the date of acquisition itself the 2nd petitioner is a co-owner.
4. In view of the rival contentions, the short question that arises for consideration in this revision petition is, whether the interpretation given by the Taluk Land Board to the partition deed No.1160 of 1973 is correct, just and proper ? Put it differently, the question is, whether the document No.1160 of 1973 is a gift deed or partition deed ?
5. Going by the order passed by this Court in CRP No.973 of 2007, it is seen that, the contention raised by the revision petitioners is that, the entire extent covered by the partition deed in favour of the revision petitioners have to be excluded from the ceiling limit in the account of the father, for the reason that it amounts to a valid gift under Sec. 84(1)(A) of the Kerala Land Reforms Act. As rightly submitted by the learned Special Government Pleader, I notice the fact that in the earlier CRP No.2336 of 1991 filed by the 2nd petitioner, this Court construed the document No.1160 of 1973 as a partition deed on a finding that on the date of acquisition itself, the 2nd revision petitioner is a co- owner and what is done by the document is to divide the property which belongs to the declarant and his children by means and bounds. In the light of the above construction of the documents, this Court held that, the contention that the property should be excluded in view of Sec.84(1)(A), cannot be accepted as the document does not have the characteristics of a gift deed. But, unfortunately, the said order was not brought to the notice of this Court while rendering judgment in CRP No.973 of 2007 directing the Taluk Land Board to do the very same things, that is, the construction of the document No.1160 of 1973 in view of the decision in Ponni's case. So, at the outset itself, I have no hesitation to hold that the entire proceedings after the last remand in CRP No.2336/1991 is barred by Resjudicata.
6. The second question is, whether the document No.1160 of 1973 is a gift deed or partition deed ? A gift is essentially a transfer. A donee cannot have any pre- existing right in the subject matter of the gift; whereas, the partition is a transaction by which an adjustment of mutual rights of joint owners or co-owners in common property is effected. The partition involves a conversion of joint ownership and joint enjoyment into one and severalty. A party to the partition have pre-existing title to the property dealt with therein. That being so, a partition does not involve conveyance of right or transfer of property. Whatever be the nomenclature given by the parties to a transaction, the Court or Tribunal is entitled to go behind and look into the real nature of the transaction. In view of the above proposition laid down by this Court in Ponni's case, let us look into the partition deed. The develution of title and operative portion read as follows:
“നമള ഇത%വര( ഏക ത+,ഗത.മന0ല+0ല ഒ(4 ക4ഡ46ബമ,+0 കഴ0ഞ4ക:ട0 വന4 എങ0ല46 തമല,ല അങ0രന ഒ(4 ക4ഡ46ബമ,+0 %4ടരന% കഴ0ഞ4വ(4വ,ന പ(സപ(6 സ*ക(+രമ, സമ%തമ, ഇല,,യക+,ല നമ4രട ക4ഡ46ബ വക+,+ %,രഴ പറ+46 പപക,(മ4ള മ4%ല കടങര1 വ2%0ര3ട4ത% അവ(വ(4രട +4കവ46 സ*ക(+വ46 തപ,രല പ0(0ഞ4കഴ0+4ന%,+,ല തമല,ല അഭ0വ+0ദ0+46 ത.മവ46 കടതമ,ചനവ46 ഉണ,വ,ന മ,ര;മ4ള%,+0 നമ4ക% ത=,ദ+6 വന0(0ക+,ല 1970 മ,ര30ല സBത4കര1 വ2%0ര3ട4ത% അവ(വര പപത%+ക6 പപത%+ക6 കകവശ6 വ3Eവ(4ന%0നന4സ(03% ആ ഭ,ഗസ6ഗ%0 ത(ഖരHട4തണരമന% ത%,ന4ക+,ല മദ+സര മ4ഖ,ന(6 ഇതH,ള ഈഭ,ഗപപ%ത0ന46 ക,(ണമ,+%,ക4ന4”.
The above portion which narrates the devolution of title shows that each parties have pre-existing right in the subject matter of the deed and conversion of joint ownership and joint enjoyment into one and severalty is effected. In short, an adjustment of mutual rights of joint owners or co-owners in common property is seen effected. In addition to that, the entire liabilities of the family also have been divided and liability to discharge the debt of the family also has been divided and shouldered on all the sharers equally and separately.
7. Going by the devolution of title as well as operative portion, I have no hesitation to concur with the findings of this Court in the earlier CRP No.2336 of 91 that the document No.1160 of 1973 is nothing other than a partition deed and it contains all the characteristics of a partition deed and at any stretch of imagination, the said document cannot be construed to a gift deed.
In the light of the above interpretation, I find that the petitioners are not entitled to get exemption under Sec. 84 (1)(A) of the Land Reforms (Amendment) Act 1976 and this revision petition is devoid of merits and dismissed accordingly.
Okb/stu //True copy// P.A to Judge K.HARILAL, JUDGE.