IN THE HIGH COURT OF KERALA AT ERNAKULAM
AS.No. 34 of 1997(C)
1. P.D.NANU BALAN
... Petitioner
Vs
1. LAKSHMANAN
... Respondent
For Petitioner :SRI.R.PARTHASARATHY
For Respondent :SRI.T.A.RAMADASAN
The Hon'ble MR. Justice A.K.BASHEER
The Hon'ble MR. Justice P.S.GOPINATHAN
Dated :14/10/2010
O R D E R
A.K. Basheer & P.S.Gopinathan, JJ.
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A.S.Nos.34 & 130 of 1997
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Dated this the 14th day of October, 2010
Judgment
Basheer, J:
These two appeals are directed against the preliminary
decree and judgment in a suit for partition. While
A.S.No.34 of 1997 is at the instance of defendant Nos.1 and
2, the other appeal is by defendant No.6. The court below
decreed the suit as prayed for directing partition of the
plaint schedule property and allotment of 7 out of 13 shares
to the plaintiffs and the remaining 6 shares to the
defendants.
2. The crucial issue that came up for consideration
in the suit was whether the plaint schedule property was
thavazhi property as contended by the plaintiffs. The court
below answered the above question in the affirmative and
held that plaintiffs were entitled to 7 out of 13 shares.
3. The case of the plaintiffs may be briefly noticed:
A.S.Nos.34 & 170/1997. : 2 :
4. The plaint schedule property with an old
residential building, well etc. originally belonged to
Perumpada Achu and his brother Kanaran. They
assigned their right in the property in favour of
Perumpada Chappila, Manni, Matha and Mathu
through an assignment deed dated March 28, 1912. On
the same day, the assignees (Smt.Chappila and others)
mortgaged the said property to Perumpada Lakshmi
and her three children viz., Suseela, Nanu (defendant
No.1) and Vasu and handed over possession of the
same to these mortgagees. The mortgage was for a
period of 6 years and the mortgagees were permitted to
effect improvements and take income therefrom. The
mortgage was never redeemed by the mortgagors and
therefore the mortgagees became absolute owners of
the property.
5. It was contended by the plaintiffs that the
A.S.Nos.34 & 170/1997. : 3 :
plaint schedule property was enjoyed as a
Marumakkathayam tharwad property eversince its
acquisition. Lakshmi and her 5 children, including
Bhaskaran and Chandrasekharan who were born after
execution of the mortgage deed constituted by
thavazhy tharwad. Smt.Lakshmi passed away in or
about 1925. Suseela the only daughter of Lakshmi
died in 1980. Plaintiffs and defendant Nos.3 and 4 are
the children and grandchildren of late Suseela.
Bharathan, another son of Suseela died in the year
1981. Defendant No.5 is the widow of deceased
Bharathan. Thus the plaintiffs and defendants 3 to 5
are the members of thavazhy of late Suseela, daughter
of Perumpada Lakshmi. As mentioned earlier,
defendant Nos.1 and 2 are two of the four sons of
Perumpada Lakshmi. Of the remaining sons,
Vasudevan died in 1966. Defendant No.6 is his widow.
A.S.Nos.34 & 170/1997. : 4 :
The other son Bhaskaran died a bachelor in 1989.
6. According to the plaintiffs, defendant No.1
the eldest male member of the tharwad had been
managing the property after the death of Lakshmi.
There are three residential buildings in the property
including the old tharwad house. The tharwad building
was let out on rent to the Kerala State Electricity Board
for a few years. Later, the Board vacated the building
since it became dilapidated due to disrepair. Defendant
No.1 became unable to look after and maintain the
plaint schedule property due to old age. Further, he
refused to share the income from the property to the
thavazhi members.
7. Plaintiffs contended that the property was
liable to be partitioned into 13 shares and each one of
them was entitled to one share each (7/13).
8. Claim for partition was disputed and resisted
A.S.Nos.34 & 170/1997. : 5 :
only by defendants 1, 2 and 6. Defendant No.1 in his
written statement contended that the plaint schedule
property was never treated or enjoyed as a thavazhi
property as alleged by the plaintiffs. The mortgage
deed of the year 1912 (Ext.A1) was only a “simple
mortgage” and possession was never handed over to
the mortgagees. According to this defendant, the
mortgage property was outstanding in the possession
of a tenant on the strength of a registered marupat.
Later, the tenancy right was surrendered by the tenant
to the jenmi and the jenmom right which was
subsequently sold in a Court auction was purchased by
one Kunjiraman with the funds of the Dr.Kumaran, the
father of defendant No.1. Later, Dr.Kumaran got the
jenmom right of the property assigned in his favour
from Kunjiraman on the strength of Ext.B2 assignment
deed of the year 1923. Still later, in 1942 Dr.Kumaran
A.S.Nos.34 & 170/1997. : 6 :
executed Ext.B3 jenmom assignment deed in favour of
his three male children viz., Nanu Balan (defendant
No.1), Vasudevan and Chandrasekharan. Defendant
No.1 asserted that there was no mention of thavazhi in
any of the documents referred to above. He claimed
1/3rd share in the property. He conceded that defendant
No.6 being the widow of his late brother Vasudevan,
would be entitled to get 1/6th share and the remaining
1/3rd would go to defendant No.2. In short, he
contended that the plaintiffs and defendants other than
defendant Nos.2 and 6 had no right in the plaint
schedule property. Alternatively it was also prayed by
him that if it was found that the right under the
mortgage deed of 1912 was still subsisting, only those
persons mentioned in the said document would be
entitled to claim any share. Suseela, the daughter of
Lakshmi would be entitled to get 1/4th share which will
A.S.Nos.34 & 170/1997. : 7 :
devolve on her six children. He further contended that
he would be entitled to get 1/5th share out of his
mother’s share in addition to 1/4th share as a co-owner.
9. The other contention raised by defendant
No.1 was that the existing residential building in the
plaint schedule building was constructed by him with
his own funds and there was a specific understanding
that it would be reserved in his favour in the event of
partition. He further contended that no income had
been obtained by him from the property at any point of
time.
10. Defendant No.2 reiterated whatever had
been stated by defendant No.1 in his written statement.
But in his additional written statement it was contended
by defendant No.2 that Section 4A of the Kerala Land
Reforms Act had no application. Right of redemption
was never exercised within the period of limitation or
A.S.Nos.34 & 170/1997. : 8 :
even thereafter. The contention that the property had
vested absolutely on the strength of continued and
uninterrupted possession was also disputed. It was
further contended that the Court had no jurisdiction to
decide the tenancy right claimed on the strength of
Section 4A, in view of the bar under Section 125 of
the Act.
11. Defendant No.6 (widow of Vasudevan) in
her written statement supported the case of defendant
Nos.1 and 2. and contended that the property was never
enjoyed as a Marumakkathayam thavazy property. The
property was acquired with the funds of Dr.Kumaran,
to be enjoyed by his wife and children. She further
contended that Lakshmi’s 1/4th share in the property
will alone assume the character of thavazhi, and
Bhaskaran and Chandrasekharan, the two sons of
Lakshmi, would get their respective shares only as
A.S.Nos.34 & 170/1997. : 9 :
members of the thavazhy of Lakshmi in respect of her
1/4th share. In short, defendant No.6 contended that if
at all there could be a claim by the plaintiffs for
partition of the property as thavazhy, it had to be
limited to 1/4th share in that property. She claimed
12/44 share in the property which accrued to her late
husband.
12. Defendant Nos.3 and 4, the grandchildren
of Suseela and the only daughter of Lakshmi
supported partition. Defendant No.5, the daughter in
law of Suseela remained absent and she was set ex
parte,
The trial court framed the following issues:
“1. Whether the plaint schedule property
is a tavazhy property and whether the
plaintiffs have share in it?
2. What are the correct shares in case of
partition?
A.S.Nos.34 & 170/1997. : 10 :
3. What are the reservations and
equities?
4. Who is liable to pay share of profit
and what is the quantum?
Addl.5. Whether the plaintiffs are
deemed tenants?”
13. Plaintiff No.1 was examined as Pw.1 and
Exts.A1 to A4 were marked on the side of the
plaintiffs. Defendant No.2 got himself examined as
DW.1 and Exts.B1 to B3 were marked on the side of
the defendants. The report and account submitted by
the Advocate Commissioner were marked as Exts.C1
and C2.
14. As has been mentioned already, the court
below repelled the contentions raised by the contesting
defendants and held that the plaint schedule property
was liable to be partitioned as claimed by the plaintiffs.
The court below held that considering the nature of
A.S.Nos.34 & 170/1997. : 11 :
acquisition of the property and its enjoyment thereafter,
it was liable to be partitioned among the plaintiffs and
defendants, they being “successors in interest” of the
thavazhy property. Plaintiffs and defendants 3 to 5 who
are the members of thavazhy of late Suseela, the only
daughter of Lakshmi, would be entitled to get 1/13
share each in the property, it was held.
15. It is contended by the appellants, who
alone resisted partition, that the findings entered by the
court below are totally illegal and erroneous.
According to the appellants, the property was never
acquired with an intention to be enjoyed as a thavazhi
property and in fact it had never been enjoyed as a
thavazhy property also. It is pointed out by learned
counsel for the appellants that the property was
mortgaged in favour of Lakshmi and her three children
viz., Suseela, Nanu Balan (defendant No.1) and
A.S.Nos.34 & 170/1997. : 12 :
Vasudevan in the year 1912. If in fact the acquisition
was intended to be for the benefit of thavazhy headed
by Suseela, such an intention would have been made
explicit in the document itself. Admittedly Suseela had
5 children. But the other two children viz., Bhaskaran
and Chandrsekharan were not included in the mortgage
deed. It is further contended by the learned counsel
that the mortgaged property was outstanding in the
possession of a tenant at the time of mortgage. The said
tenant (Sri.Puthiyapurayil Aboobacker) had later
surrendered his tenancy right to the Jenmi. The
jenmom right was sold in court auction in execution of
a decree in SC.No.1492/1911. In the court auction the
jenmom right was purchased by one Kunjiraman with
the funds made available by Dr.Kumaran, who later
had assigned the jenmom right over the property in
favour of his three sons viz., defendant No.1,
A.S.Nos.34 & 170/1997. : 13 :
Vasudevan and Chandrasekharan. Thus according to
the learned counsel, the property exclusively belonged
to defendant Nos.1, 2 and 6. At any rate, it can never
be said that the property was being enjoyed as a
thavazhi property.
16. The main plank of the above argument is
that Lakshmi and her three children mentioned in
Ext.A1 mortgage deed had never got possession of the
property pursuant to the mortgage. According to the
contesting defendants, the mortgaged property was
outstanding in the possession of a tenant at the time of
the mortgage. But a perusal of Ext.A1 mortgage deed
will unambiguously show that the said contention is
totally baseless and incorrect. It is seen recited in the
said document, that the entire property including the
building and other structures therein had been put in
the possession of the mortgagees on the date of
A.S.Nos.34 & 170/1997. : 14 :
execution of the document itself. Therefore the
contention that the property was outstanding in the
possession of a tenant falls to the ground.
17. It is true that the document recites that one
Aboobacker had been given the right to take usufructs
(melpattom) from the property. It is seen further recited
in the document that the melpattom right was liable to
be terminated. For this purpose a notice signed by
the mortgagors to be issued to the melpattomdar was
also handed over to the mortgagees. The recitals in the
above document will show that Aboobacker had no
tenancy right in the property as alleged by the
contesting defendants. More importantly, the
contesting defendants had not adduced any evidence to
show that the so called tenant, if any, had surrendered
his tenancy right to the landlord. There is not even
any semblance of evidence to substantiate the above
A.S.Nos.34 & 170/1997. : 15 :
contention. The appellants had not even pleaded as to
when the tenant had surrendered his right, leave alone
producing any document of surrender. Further, Exts.B2
and B3 on which heavy reliance had been placed by the
appellants, will not show that Dr.Kumaran had
obtained any possessory right over the property. It is
evident from the pleadings of the appellant that
Dr.Kumaran had purchased only jenmom right from
one Kunjiraman on the strength of Ext.B2 document.
This is explicit from the said document itself. Ext.B3
will also show that Dr.Kumaran had assigned only
jenmom right over the property in favour of his three
sons including defendant No.1. In short, there is
nothing on record to show that the mortgagees
mentioned in Ext.A1 (Lakshmi and her three children)
had never been put in possession of the property
pursuant to the creation of the mortgage. As mentioned
A.S.Nos.34 & 170/1997. : 16 :
earlier, Ext.A1 clearly established otherwise.
18. In this context it may be noticed that the
contention of defendant No.1 is that he had constructed
the residential building in the property using his own
funds. This necesssarily means that he along with his
mother, sister (Suseela) and others had always been in
possession of the property. In the absence of any
specific pleading as to when he and his brothers got
exclusive possession of the property from the
jenmi/owner after the so called surrender by the tenant,
it can never be said that the mortgagees had not got
possession of the property pursuant to Ext.A1.
19. The other contention raised by the
appellants is that the acquisition of the property was
not for the benefit of the thavazhi at all. In support of
the above contention it was pointed out that all the
children of Lakshmi were not included in Ext.A1
A.S.Nos.34 & 170/1997. : 17 :
mortgage deed. But it is the admitted position that in
the year 1912 when Ext.A1 mortgage deed was
executed, Lakshmi had only three children viz.,
Suseela, Nanu (defendant No.1) and Vasudevan. The
other two sons viz., Bhaskaran and Chandrasekharan
were born subsequently. Still further, the recitals in
Ext.A1 will show that the mortgage money had been
contributed by Dr.Kumaran, the husband of Lakshmi,
and father of the other mortgagees. There is specific
reference to the payment made by Dr.Kumaran for the
purpose of acquisition of this property to be enjoyed by
his wife and then available children. The amount
contributed by Dr.Kumaran is referred to in the
document as “derived out of puthravakasam fund of
Lakshmi and children”. That plaintiffs and defendants
3 to 5 are the members of the thavazhi of Suseela, the
only daughter of Lakshmi was not at all in dispute.
A.S.Nos.34 & 170/1997. : 18 :
20. The contesting defendants in their
respective written statements have practically conceded
that Suseela had at least mortgagee’s right in the plaint
schedule property. Their only contention was that the
children and grandchildren of Suseela could not have
claimed share in the plaint schedule property as though
it was a thavazhy property. But going by the materials
available on record, we have no hesitation to hold that
the property was acquired by Dr.Kumaran and
Lakshmi to be enjoyed by her children as a thavazhy
property. We have no hesitation to hold that the
contentions raised by the contesting defendants to deny
the legitimate right of the lenial descendants of
Suseela are totally without any merit or substance.
21. The court below had also referred to the oral
testimony of defendant No.2 in the case, who was
examined as DW.1. To a question in the course of
A.S.Nos.34 & 170/1997. : 19 :
cross examination, defendant No.2 had admitted that
the Melpattomdar (Aboobacker) mentioned in Ext.A1
document had been given only the right to take
usufructs. The court below had also noticed that
defendant No.1 had never bothered to step into the
witness box. It may be remembered that he was the
only surviving beneficiary (mortgagee) available at the
time of trial of the suit.
22. The court below had also referred to the
order passed on additional issue No.5 relating to
deemed tenancy. After considering the said issue the
court below had held that the question of tenancy was
not liable to be referred to the Land Tribunal. The said
finding was never challenged by any of the parties at
any point of time. The appellants have also not
questioned the validity or correctness of the said
finding in these two appeals.. Further it is on record
A.S.Nos.34 & 170/1997. : 20 :
that Dr.Kumaran had purchased the jenmom right from
the Jenmi. Though in Ext.B3 Dr.Kumaran had referred
to the names of only three of his male children, we are
of the considered opinion that the jenmom right
obtained by the Dr.Kumaran shall enure to the benefit
of all his children including Suseela, the only female
child.
23. The other contention raised by defendant
No.1 was that he had constructed the residential
building in the property with his own funds and that
too with a specific understanding that it would be
allotted to his share in the event of partition. But
defendant No.1 did not adduce any evidence in support
of the above contention. In that view of the matter, the
court below had rightly rejected the above claim made
by defendant No.1.
24. Yet another contention raised by defendant
A.S.Nos.34 & 170/1997. : 21 :
No.1 was that he had not been getting any income
from the plaint schedule property to be shared among
the other members. But this contention was repelled.
Referring to Exts.C1 and C2 report and accounts
submitted by the Advocate Commissioner, the court
below directed that the quantum of share of profits of
the parties can be decided in the final decree
proceedings. Having considered the materials available
on record, we are satisfied that the finding entered by
the court below on issue No.4 does not call for any
interference.
25. While dealing with issue No.2 the court
below has, in our view, correctly, held that the
plaintiffs are entitled to 7/13 shares (1/13 each).
Similarly defendant No.1 to 6 are found entitled to get
1/13 shares each. Since it has already been found that
the plaint schedule property is to be divided as
A.S.Nos.34 & 170/1997. : 22 :
thavazhy property among the thavazhi members, the
finding entered by the court below on issue No.2 also
does not call for any interference.
26. For the foregoing reasons it is held that the
conclusions arrived at by the court below are totally
legal and valid and eminently justified, in the facts and
circumstances of the case. The decree and judgment
are upheld.
27. The appeals are dismissed.
In the facts and circumstances of the case, the
parties shall suffer their respective costs.
A.K. Basheer
Judge.
P.S. Gopinathan
Judge.
an.