IN THE HIGH COURT OF KERALA AT ERNAKULAM
AS.No. 311 of 1994()
1. MRS.SUSHEELA KARUNAKARAN
... Petitioner
Vs
1. K.K.BHARATHAN
... Respondent
For Petitioner :SRI.T.A.RAMADASAN,A.K.ALEX,K.ABOOTY
For Respondent :SRI.E.VENUGOPALAN NAYANAR
The Hon'ble MR. Justice P.R.RAMAN
The Hon'ble MR. Justice T.R.RAMACHANDRAN NAIR
Dated :09/07/2008
O R D E R
P.R.Raman &
T.R. Ramachandran Nair, JJ.
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A.S.No.311 of 1994
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Dated this the 9th day of July, 2008.
JUDGMENT
Ramachandran Nair, J.
This appeal arises from a decree for preliminary partition. The
appellant herein was the first defendant and pending the appeal, she died
and appellants 2 to 7 have been impleaded as the legal heirs.
2. In this appeal the main points raised concern the finding that the
plaint schedule property is not a tavazhi property and that the claim is lost
by adverse possession.
3. The properties originally belonged to the plaintiffs’ grandmother
Thala who obtained the properties under kuzhikanam from the jenmi by
registered Marupat in the year 1887. She died in 1928 and her rights
devolved upon her two children, viz. K. Kunhiraman and K. Karunakaran.
Kunhiraman died in the year 1936 and Karunakaran died in 1988. He had
no issues also. The first defendant in the suit (original appellant herein) is
his wife.
4. The plea that the properties are tavazhi properties was negatived
by the court below on the ground that consequent on the death of the
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mother, only two sons survived her and there were no female members to
constitute the tavazhi. The parties are Thiyyas and followers of
Marumakkathayee Law. Therefore, the contention that on the death of
Thala, the property absolutely belonged to Karunakaran was negatived.
5. Now, the position has conclusively been settled by the Apex Court
in the decision in Madhava Kurup v. Madhava Kurup {2006 (2) KLT
382 (SC)}. It was held that “if the descent is traceable only through
females, in the absence of a female member, the Tavazhi must come to an
end with no chance of there being a female member to continue the line.
The rule of survivorship in such circumstances ceases to operate and the
surviving male members, in the absence of a Tavazhi, must inherit the
property as tenants in common, and share it equally.” In the light of the
above binding judgment, we find that the finding rendered by the court
below on that aspect has to be sustained. We do so.
6. The other point argued by the learned counsel is regarding adverse
possession. Herein, adverse possession is claimed by a co-owner. To
constitute ouster of a co-owner, proof of something more than mere
exclusive possession and exclusive receipt of income is required. The court
below, relying upon the decision of the Apex Court in Karbalai Beegum
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v. Mohd. Sayeed (AIR 1981 SC 77), found that a clear ouster has to be
pleaded and as the defendants have not pleaded ouster in the written
statement, no such question can be considered at the time of argument. In
that view of the matter, the issue was found in favour of the defendants.
We find that the view taken by the court below is perfectly justified. It is
beyond dispute that possession by a co-owner is presumed to be on behalf
of other co-owners. There is no proper plea on that aspect and therefore
nothing turns on that point also. Lastly, as regards the claim of defendants 3
to 9, who had purchased the properties from deceased Karunakaran, the
court below had directed to allot those properties to the share of the first
defendant as far as possible.
No other issues have been raised. Therefore, confirming the
preliminary decree, we dismiss the appeal. There will be no order as to
costs.
( P.R.Raman, Judge.)
(T.R. Ramachandran Nair, Judge.)
kav/
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P.R.Raman &
T.R. Ramachandran Nair, JJ.
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A.S.No.311 of 1994
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JUDGMENT
9th July, 2008.