IN THE HIGH COURT OF KERALA AT ERNAKULAM
AS No. 576 of 1992(A)
1. A.M.PADMINI AMMA
... Petitioner
Vs
1. VIJAYALAKSHMI AMMA
... Respondent
For Petitioner :SRI.A.P.CHANDRASEKHARAN (SR.)
For Respondent :SRI.T.A.RAMADASAN
The Hon'ble MR. Justice KURIAN JOSEPH
The Hon'ble MR. Justice HARUN-UL-RASHID
Dated :24/10/2007
O R D E R
KURIAN JOSEPH & HARUN-UL-RASHID, JJ.
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A.S.No.576 of 1992 & Cross- objections
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Dated: October 24, 2007
JUDGMENT
Harun-Ul-Rashid, J.
This Appeal Suit arises from the judgment and decree dated
21.12.1991 in O.S.No.92/1988 on the file of the Sub Court, Thalassery.
Defendants Nos.12 and 24 are the appellants herein. The plaintiffs and
defendant No.3 have jointly preferred the memorandum of cross-objection
challenging the finding of the court below in regard to item No.6 of the
plaint schedule property. The parties herein are referred to hereafter as
plaintiffs and defendants.
2. O.S.No.92/1988 is a suit for partition praying to pass a
preliminary decree for partition of item Nos.1 and 2 in the plaint schedule
properties into 25 shares, to allot 18 shares to the plaintiffs and for
partition of item Nos.3 to 6 in the plaint schedule properties into 23 shares
and to allot 18 such shares to the plaintiffs with the past and future profits
and for such other consequential reliefs.
3. The facts necessary for the disposal of the appeal are as
follows:-
The plaintiffs and the defendants in the suit are the descendants of
the common ancestress Velluva Puthiyaveettil Lakshmi Amma. The A
schedule attached to the plaint is the genealogy of the parties. The plaint
B schedule are the immovable properties belonging to the plaintiffs and the
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defendants. The plaintiffs are some of the children and grandchildren of
Ammukutty Amma who is the only daughter of Parvathi Amma. Parvathi
Amma is the daughter of the common ancestress Lakshmi Amma.
Parvathi Amma died in the year 1964. Ammukutty Amma died in the year
1949. The 1st defendant is the only son alive at the time of filing the suit
amongst the children of Parvathi Amma and he was the eldest male
member among the tavazhi members who became co-owners as a result
of Act 30 of 1976. Till 1976 he was the Karanavan of the tavazhi and as
the eldest male member, he was managing the properties.
4. Item Nos.1 and 2 were allotted to Lakshmi Amma and her
descendants as per Ext.A1 partition karar dated 13.6.1933 entered into in
the family by name Velluva Puthiyaveettil. In item No.1 there is a house in
which the 1st defendant and his family members are residing. Item Nos.3,
4 and 5 originally belonged to Arathikandoth Kannan Nambiar and as per
Ext.A2 registered will executed by him on 31.8.1924, the said properties
were bequeathed to Parvathi Amma and all her children to be enjoyed as
tavazhi. Kannan Nambiar died in 1929. Item Nos.3, 4 and 5 were enjoyed
as tavazhi properties by Parvathi Amma and her descendants. Item No.6
is the last item of property scheduled as B schedule. Item No.6 was
purchased by Parvathi Amma and her children as per Ext.A3 assignment
deed dated 9.11.1942. According to the plaintiffs the consideration paid
for item No.6 was out of the income from item Nos.3 to 5 which the tavazhi
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got by Ext.A2 registered will dated 31.8.1924 and as such item No.6 also
belongs to the tavazhi of Parvathi Amma and her descendants. In short,
according to the plaintiffs, item Nos.1 and 2 belonged to the larger tavazhi
of Lakshmi Amma and item Nos.3 to 6 belonged to the tavazhi of Parvathi
Amma. Besides the aforesaid properties, the tavazhi also owned several
other items of tenanted properties. The respective tenants purchased the
right, title and interest of the tavazhi by separate proceedings before the
Land Tribunal. The plaintiffs claim that defendants 1 and 2 had received
Rs.20,000/- as purchase money which belongs to the tavazhi. The said
amount of Rs.20,000/- is shown as C schedule and they have further
claimed their share of the purchase money as well.
5. It is pleaded in the plaint that the plaintiffs now understand that
the 1st defendant in collusion with the 2nd defendant had created some
false documents to defeat the rights of the plaintiffs, that such documents
are not binding on the plaintiffs and neither the 1st defendant nor the 2nd
defendant are entitled to any sort of reservation with respect to any portion
of items Nos.1 and 2 of the plaint schedule properties. In paragraph 9(b)
inserted by way of amendment it is averred that the supplemental 25th
defendant had assigned 30 cents of land in item No.1 in favour of
supplemental defendants 26 to 29 during the pendency of the suit. Those
documents are not binding on the plaintiffs and other members of the
tavazhi. In paragraph 9(c) inserted it is further alleged that the gift deed
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executed by the 1st defendant in favour of his son who is the supplemental
34th defendant is also a collusive document not binding on other members
of the tarwad. In paragraph 10(a) inserted by way of amendment it is also
pleaded that the 1st defendant had created some documents with respect
to item No.1 in favour of his two daughters who are impleaded as
supplemental defendants 24 and 25 in the suit. In paragraph 10(b) of the
plaint as inserted, it is further stated that the special right claimed by the 1st
defendant on the strength of lease deed in his favour dated 3.8.1960
(Ext.B1) is a fraudulent document not binding on the members of the
tarwad, that the lessor is the father-in-law of the 1st defendant and that he
had no right to lease the same, that the purchase certificate obtained by
the 1st defendant making the 2nd defendant as the respondent is not
binding on the tarwad and so also the purchase of items Nos.1 and 2 in
the name of the 1st defendant was behind the back of other members of
the tarwad and therefore special right claimed by the 1st defendant and
others on the basis of the illegal lease and purchase certificate are not
valid and binding on the plaintiffs. It is also alleged in paragraph 10(b) that
the plaintiffs are entitled to get their share in the property with past and
future profits ignoring all the documents put forward by the defendants to
which they are not parties.
7. Defendants Nos.1 and 12 filed a joint written statement
contending inter alia that the plaint item Nos.1 and 2 exclusively belong to
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the 1st defendant, item Nos.1 and 2 are not partible, that plaint item No.1
originally belonged in jenm right to Velluva Puthiyaveettil tarwad, during
March 1952 this property was orally leased by the then Karanavan of the
tarwad Sri Krishnan Nambiar in favour of the 1st defendant on kuzhikanom
right, that subsequently in the year 1960 Krishnan Nambiar executed a
kuzhikanom pattadaram in favour of the 1st defendant as per Ext.B1
registered document No.1326/1960, that on the basis of the oral lease and
subsequent lease deed (Ext.B1), he obtained purchase certificate in
respect of item Nos.1 and 2 as per the proceedings in SM No.30/1983 and
thus he was holding the properties on exclusive rights. It is also
contended that the 1st defendant is residing in the house in item No.1 with
his family members and that he has re-modelled the house therein. It is
also alleged in the written statement that he had gifted 46.5 cents of land
in favour of his daughter Sathyabhama as per document No.3062/1986
and in 1987 he had assigned 30 cents in favour of his daughter Rathi as
per document No.717/1987. In the written statement the defendants have
also stated that these defendants have no objection in partitioning item
Nos.3 to 6 and they are also entitled to get their share with mesne profits
in item Nos.3 to 6. It is also averred that the tenancy of the 1st defendant
over item Nos.1 and 2 was admitted by the tarwad of the plaintiffs and the
defendants and therefore it is submitted that item Nos.1 and 2 may be
excluded from partition and there can be a decree for partition in respect of
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the other items. In the additional written statement filed by the same
defendants it is further averred that the right of the plaintiffs, if any, over
item Nos.1 and 2 is barred by adverse possession and limitation in view of
the 1st defendant’s exclusive possession and enjoyment of the same. It is
also pleaded in the additional written statement that item No.3 has lost its
character as tavazhi property by virtue of document No.320 of 1929, that
as per the said document item No.3 had been given on leasehold right to
deceased Parvathi Amma and her children alone and the same cannot
devolve upon her grandchildren and therefore the said item had to be
divided into 4 equal shares which will devolve upon Parvathi Amma’s four
children by name deceased Madhavan Nambiar, Ammukutty Amma,
Kunhikannan Nambiar and Govindankutty Nambiar.
8. Defendant Nos.4 and 5 in their written statement admitted that
plaint B schedule properties belong to the plaintiffs and the defendants
except item No.6. According to defendant Nos.4and 5, item No.6 was
purchased by Madhavan Nambiar which was later assigned to Parvathi
Amma and her children as per the assignment deed dated 9.11.1942
(Ext.A3), that the said property was not purchased out of the income from
item Nos.3 to 5 and it does not belong to the tavazhi. According to the
said defendants, item Nos.1 and 2 belonged to the larger tavazhi of
Lakshmi Amma, item No.6 is not liable to be partitioned among the
plaintiffs and the defendants, but is to be partitioned among defendant
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Nos.1 and 4 to 8 and the legal heirs of Ammukutty Amma and that item
No.3 exclusively belongs to the four children of Parvathi Amma etc.
9. Defendant No.24 in the written statement supported defendants
Nos.1 and 12 and pleaded that he adopts the written statement filed by
defendants Nos.1 and 12. Defendant Nos.2, 3, 6 to 8, 25, 26 and 27 also
filed written statements supporting either the plaintiffs or defendant Nos.1
and 12.
10. On the basis of the pleadings the court below framed seven
issues, the evidence of Pw.1 and Dws.1 to 3 are recorded and marked
Exts.A1 to A8 and B1 to B20.
11. The court below, after examining the evidence on record,
entered findings on all the issues raised. The court below held that
Exts.B1 registered kuzhikanom pattadaram executed by the Karanavan of
Velluva Puthiyaveettil tarwad Sri Krishnan Nambiar in favour of the 1st
defendant, a member of the tarwad, and Ext.B2 kuzhikanom marupattom
deed are not valid and binding on the plaintiffs and other members of the
tavazhi and the suit properties. The court also held that Ext.B3 order of
the Land Tribunal in SM No.30/1983 and Ext.B5 purchase certificate
issued by the Land Tribunal to the 1st defendant are also not valid and
binding and will not disqualify the plaintiffs and other members of the
tavazhi from claiming partition of the suit properties. The court below did
not accept the contention of the plaintiffs that item No.6 was purchased out
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of the income from item Nos.3 to 5 and the fund left by deceased Kannan
Nambiar and, therefore, held that item No.6 is not liable to be partitioned
among the members of the tavazhi of Parvathi Amma. It held that item
No.6 in the plaint B schedule property is only liable to be partitioned
among defendants Nos.1 and 4 to 8 and the legal representatives of
Parvathi Amma. The claim of defendants 1, 12 and 25 that the rights of
the plaintiffs, if any, over item Nos.1 and 2 is lost by adverse possession
and limitation was negatived. The court further held that the plaintiffs have
title and joint possession over items 1 to 5 in the plaint B schedule and
plaintiffs Nos.1, 7, 8, 12, 15 and 18 have title and possession over item
No.6 and that the properties are available for partition. On the basis of the
findings as stated above, the court below passed a preliminary decree for
partition in the following terms:
That item Nos.1 and 2 in the plaint schedule properties be
partitioned into 25 equal shares by metes and bounds of which the
plaintiffs together entitled to 18/25 shares;
Defendants Nos.1 to 3 will be entitled to one such share each,
defendants Nos.4 and 5 together entitled to get one such share .
defendants 6 to 8 together entitled to get one such share,
defendants 9 to 15 together entitled to one such share and
defendants 16 to 23 together entitled to one such share. The
remaining defendants are not entitled to get any shares in items 1
and 2.
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That item Nos.3 to 5 in the plaint schedule property be partitioned
into 23 equal shares by metes and bounds of which the plaintiffs
together entitled to get 18/23 shares, defendants 4 and 5 together
entitled to one such share and defendants 6 to 8 together entitled to
get one such share.
That item No.6 be partitioned into four equal shares by metes and
bounds of which the 1st defendant is entitled to get one such share,
defendants 4 and 5 together entitled to one such share, defendants
6 to 8 together will be entitled to get one such share and plaintiffs 1,
7, 8, 12, 15 and 18 and defendants 2 and 3 together entitled to get
one such share.
The plaintiffs and other defendants are entitled to get share of
mesne profits from the 1st defendant in respect of item No.1 and the
quantum of the same will be decided in final decree proceedings.
The quantum of mesne profits and the liability of paying the same
in respect of item Nos.3 to 6 is left open and the same will be
decided in the final decree proceedings.
12. The suit is one for partition of the plaint B schedule items 1 to 6.
It is the common case of the parties that item Nos.4 and 5 in the plaint B
schedule belongs to the tavazhi of the plaintiffs and the defendants and
those items are available for partition. The dispute is only with respect to
items 1, 2, 3 and 6 in the plaint B schedule. Defendants Nos.12 and 24
who are the appellants in the above appeal attacked the findings of the
court below that items 1 and 2 are partible, the findings on the question of
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adverse possession and ouster and also attacked the findings of the court
below in respect of item 3 and claimed that the appellants are also entitled
to a share in item No.3.
13. It is an admitted fact that items 1 and 2 were originally
belonged to the tarwad of the plaintiffs and defendants 1 to 23 and that the
plaintiffs and defendants 1 to 23 are the descendants of the common
ancestress Velluva Puthiyaveettil Lakshmi Amma and items 1 and 2 in the
plaint B schedule were allotted to the share of the aforesaid Lakshmi
Amma and her descendants under Ext.A1 partition karar. It is the case of
the plaintiffs that items 3 to 5 originally belonged to Palathikandoth Kannan
Nambiar and he bequeathed the properties under Ext.A2 will in favour of
Parvathi Amma and her children and that properties belong to the tavazhi
of Parvathi Amma. The plaintiffs also pleaded that item No.6 was
purchased under Ext.A3 assignment deed with the income from items 3 to
5 and therefore item No.6 property also partakes the character of tavazhi
property. It is also the case of the plaintiffs that the 1st defendant is the
Karanavan of the tavazhi, that he is residing in the house situated in item
No.1 with his family members and that he is in possession and enjoyment
of the properties for and on behalf of other members of the tarwad. The
plaintiffs contended that items 1 and 2 are liable to be partitioned among
the members of the larger tavazhi and items 3 to 6 among the members of
the sub-tavazhi of Parvathi Amma. Defendants Nos.1, 12 and 24 opposed
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the claim of the plaintiffs and other supporting defendants in items 1and 2.
The 1st defendant claimed exclusive right and possession of items 1 and
2. According to him items 1 and 2 were orally leased by Krishnan
Nambiar, the then Karanavan, in the year 1952 in his favour and
subsequently Krishnan Nambiar executed Ext.B1 kuzhikanom pattadaram
in his favour and on the same day he executed Ext.B2 marupat and ever
since he is in exclusive possession and enjoyment of the properties on
absolute right. According to him, on the strength of the oral lease and
Ext.B1 kuzhikanom pattadaram he obtained Ext.B5 purchase certificate in
respect of items 1 and 2. Since he is the absolute owner of the property
by virtue of the aforesaid documents, he assigned some portion of the
property in favour of his children.
14. The point argued before us by the learned counsel for the
appellants is that the1st defendant has got absolute right over items 1 and
2 and, therefore, the said items are not partible. They attacked the
findings and reasonings of the court below. None of the parties have
disputed that items 1 and 2 belonged in jenm to Velluva Puthiyaveettil
tarwad and the said items were enjoyed as tavazhi properties prior to the
alleged oral entrustment in favour of the 1st defendant. It is also not
disputed that the 1st defendant was the Karanavan of the tavazhi from
1968 and that he was the eldest male member. It has also come out in
evidence that the executant of Ext.B1 kuzhikanam pattadaram late
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Krishnan Nambiar is the father-in-law of the 1st defendant. The case set
up by the1st defendant is that he obtained the oral lease in March 1952
from his father-in-law and that his father-in-law executed Ext.B1
kuzhikanam pattadaram in his favour, that he executed Ext.B2 marupat
and subsequently obtained Ext.B5 purchase certificate on the basis of
Ext.B1 kuzhikanam pattadaram. According to the respondents/plaintiffs
the oral lease of 1952 set up by the 1st defendant is incorrect, that such a
claim is set up to defeat the legitimate right of the plaintiffs and other co-
owners of the property and that Ext.B1 and B2 documents are got
fraudulently executed.
15. The question raised before the court below and now before
us is whether the lease given by the then Karanavan under the alleged oral
lease of 1952 and Ext.B1 are valid or not valid. According to the learned
counsel for the plaintiffs the Karanavan has no right to alienate the
property without the consent of the majority of the major members of the
tarwad and that there is a prohibition under sec.33(1) of the Madras
Marumakkathayam Act (22 of 1930) against the alienation of the property
by way of sale, mortgage or lease. According to the learned counsel, the
lease of tarwad property by the Karanavan shall not be valid unless the
written consent of the majority of the major members of the tarwad has
been obtained to the lease.
16. Sec.33 of the said Act deals with alienation of immovable AS 576/1992 Page numbersproperty by a Karanavan of a tarwad. The question to be decided is as to
whether the Karanavan has got a right to lease the tarwad property in 1952
without obtaining the written consent of the majority of the major members
of the tarwad. According to the 1st defendant, he got oral lease in 1952
and on 3.8.1960 Ext.B1 registered lease deed was executed by the then
Karanavan. There is no evidence forthcoming as to the period of the
lease originally granted and as to whether it exceeds 12 years or not. In
the light of Ext.B1 lease deed executed after 8 years, it can be presumed
that originally the lease was for a period not exceeding 12 years. Under
sub-sec.(2) of sec.33 of the Act, as it stood at the time of the oral lease of
1952, no lease of any immovable property of a tarwad shall be valid unless
it is executed by the Karanavan and where the Malabar Tenancy Act, 1929
confers fixity of tenure on the lessee, unless the written consent of the
major members of the tarwad has been obtained to the lease, The alleged
oral lease of 1952 will confer fixity of tenure under the Malabar Tenancy
Act to a verumpattomdar provided the applicant should establish the oral
lease of 1952. Sub-sec.(2) of sec.33(2) prohibits grant of any such lease
which confers fixity of tenure on the lessee unless the alleged lease was
given with the written consent of the major members of the tarwad.
17. Lease of tavazhi property by a Karanavan in favour of some
members of the family in the year 1951 without the consent of the major
members of the tavazhi was considered by a Division Bench of this Court
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in Kohnan Gopalan and others v. Padmini and others – ILR [1996 (3)] 770.
That was a case of lease executed on 29.1.1951 by the Karanavan in
favour of some members of the tavazhi. Written consent of the majority of
the members of the tavazhi was not obtained. The period of lease was for
12 years. The court held that in view of sub-sec.(2) of sec.33 of the Act,
as amended in the year 1951, the consent of major members of the
tavazhi or tarwad was required in view of the fact that the tenant
thereunder would have been entitled to fixity of tenure under the Malabar
Tenancy Act. The Division Bench held that any such lease executed after
27th July 1950 was hit by the amended sec.33(2) of the Act.
18. The appellants have no case that the oral entrustment as well
as the entrustment under Exts.B1 and B2 documents are with the written
consent of the majority of the major members of the tarwad. As DW.1 the
1st defendant deposed that his father-in-law, who was the Karanavan at
that time, granted him oral lease in 1952 and executed Ext.B1 registered
lease in 1960. He has no case that the original entrustment or subsequent
Ext.B1 entrustment was with the consent of the majority of the major
members of the tarwad.
19. Apart from the statutory bar as mentioned above under sec.33
(2) of the Madras Marumakkathayam Act, the further question is whether
there is an entrustment by way of lease as alleged by the 1st defendant in
his favour by the then Karanavan in the year 1952. There is no evidence
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apart from the interested oral testimony of the 1st defendant as DW.1 to
show that items 1 and 2 was entrusted to him by the then Karanavan. As
DW.1, the1st defendant had deposed that he had paid purappad to the
then Karanavan and obtained receipts in pursuance to the lease of 1951.
He had also deposed that from 1960 to 1970 he had obtained receipts for
the payment of purappad. But the 1st defendant failed to produce even a
single receipt during the period 1952 to 1960 and from 1960 to 1970. The
non-production of rent receipts or any other documents or circumstances
evidencing the transaction also leads to the conclusion that the oral lease
set up by the 1st defendant who is the son-in-law of the then Karanavan is
not correct. Even after Ext.B1 lease deed came into existence, the 1st
defendant is not in a position to produce even a single receipt evidencing
payment of purappad. Even assuming that he got the property on lease
under Ext.B1 lease deed, the said lease is also not a valid lease in view of
sec.33(2) as it stood in 1960. The amendment was brought about in the
year 1952 which provided that no lease at all could be granted by a
Karanavan without the written consent of the majority of the members of
the tarwad. Sec.33(1) as amended by Act 26/1958 reads as follows:-
“33. xx xx xx xx
(1) No sale or mortgage of any immovable property of a tarwad and
no lease of any such property shall be valid, unless it is executed by
the Karanavan for consideration, for tarwad necessity or benefit,
and with the written consent of the majority of the major members of
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the tarwad.”
For a lease to be held valid under the said provision, the transaction shall
be supported by consideration, tarwad necessity or benefit and shall be
executed with the written consent of the majority of the major members of
the tarwad. Since there is no evidence worthwhile to prove a valid lease
which satisfies the requirements under sec.33(1) of the Madras
Marumakkathayam Act as amended by Act 26/1958, the contention that
he got absolute right over the property by virtue of Exts.B1 to B5 cannot
stand. There is nothing wrong in the Karanavan executing a lease in
favour of any member of the tarwad provided such transaction shall
conform to the requirements of the statute then in force. The simple
reason that the member happened to be the son-in-law of the Karanavan
is not a factor to be taken note of for invalidating the lease. Any member
of the tarwad, under a valid lease, can enjoy the property as a lessee if
the family circumstances warrant grant of such lease for the best interest
of the tarwad.
20. The learned counsel for the plaintiffs also challenged Ext.B3
order in SM 30/1983 and Ext.B5 purchase certificate issued pursuant
thereto. In the proceedings before the Land Tribunal the 1st defendant
impleaded the 2nd defendant in the suit as the opposite party. The 2nd
defendant is a member of the tarwad and he has no authority to represent
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the remaining tavazhi members. The proper party before the Land
Tribunal should have been the tavazhi. There is no case for the1st
defendant that the tavazhi members had ever taken any decision
authorising the 2nd defendant to represent the tavazhi before the Land
Tribunal. Ext.B3 order and Ext.B5 purchase certificate are obtained
behind the back of the tavazhi and its members and have no binding force
on the tavazhi or its members. In such circumstances the contention
raised by the plaintiffs that Exts.B3 to B5 were fraudulently got executed in
collusion with the 2nd defendant assumes importance. The very same
contention as against Exts.B1 and B2 also had merit in the facts and
circumstances proved. Since Exts.B1 to B5 documents are not legal and
valid and are not binding on the plaintiffs or other members of the family
and therefore in no way it disqualifies the plaintiffs and other members of
the tavazhi from claiming partition of the suit properties.
21. Defendants Nos.1 and 12 in their written statement had further
pleaded that item No.3 has lost its character as tavazhi property.
According to them, as per Ext.A1 will, the said property has been given on
leasehold right to deceased Parvathi Amma and her children alone and
this was confirmed by document No.320/1929 which would also show that
the lease was in favour of the specified members and could not devolve
upon any of the descendants. On this ground the defendants are entitled
to one share in item No.3. On the basis of the contention raised in the
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appeal, document No.320/1929 was also examined by us and the merit of
the contention on that basis also has to fail due to the following reasons:-
Going by the recitals in Ext.A1 and the document No.320/1929, item
No.3 property was taken on lease by Sri Kannan Nambiar on 1.12.1905
from the jenmies. Kannan Nambiar is none other than the husband of
Parvathi Amma and father of the four children named in the registered
lease deed No.320/1929. Again Sri Kannan Nambiar took renewal of the
said property on 28.1.1914. While so, Sri Kannan Nambiar by Ext.A2 will
bequeathed item No.3 and other properties to Parvathi Amma and her
children. In 1929 Sri Kannan Nambiar passed away. After his death
document No.320/1929, which is a kuzhikanom pattadaram, was
executed by the jenmi Karanavan in favour of Parvathi Amma and her four
children. The lease in favour of the husband of Ammukutty Amma in the
year 1905 and subsequent renewal of 1914 and the will dated 31.8.1924
(Ext.A2) are mentioned in document No.320/1929. The jenmi also
admitted in the said document that pursuant to the will dated 31.8.1924
(Ext.A2), Parvathi Amma and her children are enjoying the property as
lessees. Going by the recitals in document No.320/1929 it is clear that
this document is executed in continuation of the earlier documents and
can only be treated as a renewal of the lease in favour of the tavazhi
consisting of Parvathi Amma and her descendants. The acquirers of lease
constitute a natural group and form a tavazhi by themselves. There can
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hardly be any doubt that the acquisition should be presumed to be on
behalf of the tavazhi. It has been held in a number of decisions of this
court that gift or acquisition made in favour of a marumakkathayi woman
and her children, a natural presumption would arise that the acquisition is
for the benefit of the tavazhi. Except producing this document, no
evidence was let in on the side of the appellants to prove that item No.3
property was given on leasehold right to Parvathi Amma and her children
alone, that the said lease was in favour of the specified members and
therefore could not devolve upon any of the descendants. In fact,
defendants Nos.1 and 12 admitted in their written statement that items 3
to 5 properties are partible and that they have no objection in partitioning
the said items. While giving evidence as DW.1 also the 1st defendant
categorically admitted that he has no objection in partitioning items 3 to 5
as tavazhi properties. Hence the contention of the appellants that the
claim made by the plaintiffs in plaint item No.3 has to be characterised as
tavazhi property tracing its origin to Ext.A2 will executed by Kannan
Nambiar cannot be accepted, stands rejected.
22. The trial court rejected the contention of the plaintiffs that item
No.6 was purchased with the income from item Nos.3 to 5 and the fund left
by deceased Kannan Nambiar and therefore item No.6 is also liable to be
partitioned among the members of the tavazhi of Parvathi Amma. The trial
court upheld the contention of defendants 4 and 5 that the said item of
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property is liable to be partitioned among defendants 1 and 4 to 8 and the
children of Parvathi Amma. The trial court after accepting the contentions
of defendants 4 and 5 held that item No.6 be partitioned into four equal
shares by metes and bounds of which the 1st defendant is entitled to get
one such share, defendants 4 and 5 together entitled to one such share as
the legal representatives of Madhavan Nambiar, defendants 6 to 8 will be
entitled to get one such share as the legal representatives of
Govindankutty and plaintiffs 1, 7, 8, 12, 15 and 18 and defendants 2 and 3
together entitled to get one share as the legal representatives of
Ammukutty Amma.
23. The plaintiffs and defendant No.3 who are respondents 1 to 18
and 21 in the appeal filed cross-objection challenging the said finding.
According to the cross-objectors, the finding that item No.6 is liable to be
partitioned only among defendants 1 and 4 to 8 and the legal
representatives of Parvathi Amma is unsustainable. They have contended
before us that item No.6 was purchased with the funds left by deceased
Kannan Nambiar and retained with Parvathi Amma and also with the
income from item Nos.3 to 5 possessed by Parvathi Amma. Item No.6
was purchased by Parvathi Amma and her children by Ext.A3 document
dated 9.11.1942. Under what circumstances and in what manner the
consideration for Ext.A3 was raised is not known. There is no direct
evidence to prove that item No.6 was purchased out of the income from
AS 576/1992 Page numbers
item Nos.3 to 5 or with any fund left by deceased Kannan Nambiar. One
thing is very clear that the acquisition is made in favour of a
marumakkathayi woman and her children who constitutes a natural group.
It is also borne out from evidence that Parvathi Amma was in possession
and enjoyment of properties bequeathed to the tavazhi under Ext.A2 will
dated 31.8.1924 by her husband. Her husband died in the year 1929 and
in 1929 she came into possession of the properties covered by Ext.A2 will.
While she was in management of the said properties, item No.6 was
acquired on 9.11.1942 by Ext.A3 assignment deed. There is also no
evidence that Parvathi Amma had her own funds other than the income
from the tarwad properties. It has also come out in evidence that the
tarwad was receiving purappad from several tenants. The evidence on
hand will go to show that the above mentioned amounts at her hands was
the income she received from the tarwad properties and there is every
possibility that those amounts have been utilised for the acquisition of item
No.6 property, especially when the acquisition was for a small amount of
Rs.380/-. Such a possibility cannot be ruled out. At the same time, since
positive evidence is lacking regarding the consideration paid for item No.6
in Ext.A3 assignment deed, we concur with the reasons stated by the trial
court that there is no evidence to show that the income from item Nos.3 to
5 and the fund left by deceased Kannan Nambiar was utilized for purchase
of item No.6.
AS 576/1992 Page numbers
24. At the same time, a natural presumption would arise when a gift
or acquisition is made in favour of a marumakkathayi woman and all her
children that the acquisition is for the benefit of the tavazhi. The principle
of law in such circumstances is that once it is found that the acquirers
constitute a natural group and form a thavazhi by themselves, there can
hardly be any doubt that the acquisition should be presumed to be on
behalf of the thavazhi. There is no evidence in this case to rebut the
presumption. There cannot be any dispute that an acquisition by the joint
exertion of persons constituting a thavazhi will enure to the benefit of the
thavazhi and the property so acquired is thavazhi property. We find
support for the above said principle from the decision reported in Kayakkal
Lakshmi and others v. Kayakkal Anandan and others – ILR 1982 (2) Ker.
377 wherein the same position was examined and held so.
25. The appellants also contended that the right of the
plaintiffs over items Nos.1 and 2 is lost by adverse possession and
limitation. It is well settled that if a co-owner in possession held adversely
to other co-owners openly and for a substantially long period of time,
ouster of other co-owners may be inferred. A co-owner who is in
possession is to prove adverse possession by positive evidence.
Mutation of name in the revenue records or effecting repairs or even
building a house cannot constitute ouster. There must be evidence of
open assertion of hostile title coupled with exclusive possession and
AS 576/1992 Page numbers
enjoyment by one of them to the knowledge of others may justify a claim
for adverse possession. In this case there is no such evidence adduced
by the appellants before the court below. Under the circumstances the
finding of the court below that the title of the plaintiffs over items Nos.1 and
2 is not lost by adverse possession and limitation requires no interference
and therefore confirmed.
26. In the circumstances the cross-objection filed by the cross-
objectors is allowed and we hold that item No.6 in the plaint schedule
property also is to be partitioned along with item Nos.3 to 5 into 23 equal
shares by metes and bounds of which the plaintiffs together will be entitled
to get 18/23 such shares, defendants 1 to 3 will be entitled to one such
share each, defendants 4 and 5 together will be entitled to one such share
and defendants 6 to 8 together will be entitled to get one such share.
In the result, A.S.No.576 of 1992 is dismissed. The cross-objection
filed by the cross-objectors stands allowed and the judgment and decree
passed by the court below stand modified as stated above. No order as
to costs.
KURIAN JOSEPH, JUDGE
HARUN-UL-RASHID, JUDGE
mt/-
AS 576/1992 Page numbers C.R. KURIAN JOSEPH & HARUN-UL-RASHID, JJ.———————————————-
A.S. No.576/1992 and
Cross-objections
JUDGMENT
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24.10.2007