Kerala High Court Dismisses Partition Appeal; ‘Melpattam’ Gives Only Limited Right to Take Usufructs, Not Ownership or Transferable Interest, Nor Does It Affect Co-Ownership of Other Members
Safiya Malik
The High Court of Kerala, Division Bench of Justice Sathish Ninan and Justice P. Krishna Kumar held that a ‘melpattam’ arrangement does not confer ownership or any transferable interest in the land. Delivering its judgment on an appeal challenging a preliminary decree for partition from the Sub Court, Vadakara, the Bench found no basis for the appellant’s claim of exclusive rights over family property. The Court observed that the documents relied upon only granted a limited right to take usufructs and did not affect the co-ownership of other members. Concluding that the disputed property continued to belong jointly to the family, the Court dismissed the appeal and allowed the partition decree to stand.
The appeal arose from a preliminary decree in a partition suit concerning ancestral properties originally owned by one Kadungon, the predecessor-in-interest of the parties. The dispute related specifically to one of the two scheduled properties. The plaintiffs sought partition and separate possession of their 5/6 share in the property based on a Will executed by Kadungon bequeathing the estate to his wife Narayani, children, and grandchildren. The first defendant contended that the property was not partible and claimed exclusive ownership.
The defendant’s claim was founded on a series of transactions beginning with Narayani allegedly granting a melpattam right to her son-in-law Anandan, permitting him to take usufructs and make limited improvements. It was contended that Anandan subsequently obtained further rights through Ext.B3, allowing him to construct a house and sink a well on a portion of the land. Later, Anandan executed Ext.B4 Sale Deed (1943) transferring the property to his wife Lakshmi, and under Ext.B5 Sale Deed (1972), Lakshmi conveyed it to the first defendant. The appellant relied on these documents to assert that he had obtained exclusive title through valid conveyances and continuous possession.
The plaintiffs disputed this claim, asserting that the property remained Tarwad/Tavazhi property and that no valid transfer or exclusive ownership could arise from the cited documents. The trial court rejected the defendant’s claim of exclusive title and granted a preliminary decree for partition. The appellant challenged this finding, maintaining that the transfers created independent ownership rights. The Court examined the nature of melpattam rights, the validity of the subsequent documents, and the issue of adverse possession, considering relevant precedents and statutory provisions under the Madras Marumakkathayam Act.
The Court recorded that “the property originally belonged to one Kadungon, the predecessor-in-interest of the parties under Ext.B1 Partition Deed of the year 1911”. It stated that “the property was bequeathed by Kadungon to his wife, children, and grandchildren under Ext.A2 Will dated 30.08.2011.”
The Bench observed that “the claim for exclusive right of the first defendant was founded on four transactions—the alleged melpattam right granted by Narayani to her son-in-law Anandan, the permission under Ext.B3 to construct a house and well, the conveyance under Ext.B4 to his wife Lakshmi, and Ext.B5 Sale Deed executed by Lakshmi in favour of the first defendant.”
The Court stated that “melpattam is only a right to take usufructs from the trees in the property. It does not create interest over the land.” Citing the Full Bench decision in Krishnan Nair & anr. v. Abdu [AIR 1965 Ker. 39 (F.B.)], it recorded that “‘a melpattom (literally, a lease of what is above the surface) is a lease of trees with no interest in the land, ordinarily enuring for one year.’: The Bench noted that “the possession under such an arrangement was limited for the purpose of taking usufructs from the trees and did not create proprietary interest.”
The Court further observed that “under the Madras Marumakkathayam Act, to grant a lease for more than twelve years or one having fixity of tenure, the written consent of the majority of the major members of the Tarwad was necessary. “It recorded that “there was no such consent in the present case, and therefore, there could not be a valid lease.”
Regarding Ext.B3, the Court stated that “all that is given is a permission to construct a house and to sink a well in a portion of the property” and that this permission was conditional on surrendering the property upon receiving the value of improvements.
As to Ext.B4 and Ext.B5, the Bench observed that the conveyances could only extend to the limited melpattam and permissive rights, which did not defeat the co-owners’ rights. It recorded that “an undivided member could not alienate her purported share in the property,” referring to Ammalu Amma v. Lakshmi Amma (1966 KLT 32). The Court stated that no plea of adverse possession could be sustained, since the documents themselves acknowledged co-ownership.
The Court declared that “the property is liable to be partitioned between the sharers” and that “the decree and judgment of the trial court warrant no interference.” It recorded that “we find no merit in the appeal” and accordingly directed that “the appeal fails and is dismissed.” The Court did not issue any further consequential orders, noting that the preliminary decree for partition passed by the trial court stood affirmed.
Advocates Representing the Parties
For the Appellant: Sri. Mahesh V. Ramakrishnan, Advocate
For the Respondents: Shri. B. Krishnan and Shri. R. Parthasarathy, Advocates
Case Title: Venugopal K. Veloth v. Mahilamani & Ors.
Neutral Citation: 2025:KER:84493
Case Number: R.F.A. No. 11 of 2017
Bench: Justice Sathish Ninan and Justice P. Krishna Kumar
