IN THE HIGH COURT OF KERALA AT ERNAKULAM
AS.No. 563 of 1999(A)
1. ARAVINDAKSHI AMMA
... Petitioner
Vs
1. GOPALA MENON
... Respondent
For Petitioner :SRI.T.K.VENUGOPALAN
For Respondent :SRI.A.BALAGOPALAN
The Hon'ble MR. Justice V.RAMKUMAR
Dated :27/08/2009
O R D E R
CR
V. RAMKUMAR, J.
.........................................
A.S. No. 563 of 1999
& Cross Objection No. 19 of 2009
&
R.F.A. 43 of 2008
& Cross Objection No. 18 of 2009
.........................................
Dated, this the 27th day of August 2009
JUDGMENT
Defendants 3, 4, 7 and 9 to 14 in O.S. No. 631 of 1993
on the file of the first Addl. Sub Court, Ernakulam are the
appellants in A.S. No. 563 of 1999. Defendants 15 to 17 are
the appellants in R.F.A. No. 43 of 2008. The
aforementioned suit was one for partition and separate
possession of the plaintiffs’ 8/16 shares over two items of
immovable properties described in the plaint. Plaint A
schedule item No. 1 is shown as having an extent of 70 <
cents. Plaint A schedule item No. 2 lying comprised in two
survey numbers has a total extent of 3.51 acres. Plaint A
schedule item No. 1 is in Poonithura Village and item No. 2
A.S. No. 563 of 1999
and
R.F.A. 43 of 2008 -:2:-
is in Thrikkakara North Village of Ernakulam District.
PLAINTIFFS’ CASE
2. The case of the plaintiffs can be summarised as
follows:-
Plaint schedule properties belonged to the
Marumakkathayam tarvad of the plaintiffs 2 to 8 and
defendants 1 to 14 known as Andipillil Tarvad. In the year
1950 a partition took place in the said tarvad as evidenced
by Ext.A1 partition deed dated 1-11-1950 and plaint A
schedule item No. I was allotted to the tavazhi of Parukutty
Amma. The said partition was between defendants 1, 7 and
8 and Neelakanda Menon and their mother Parukutty
Amma. The plaint A schedule item No. 2 was acquired by
the tavazhi of Parukutty Amma as per Ext.A2 usfructory
mortgage dated 7th Edavam 1096 (corresponding to the
year 1921) executed by Parvathy Amma, the mother-in-law
of Parukutty Amma. Plaintiffs 2 to 8 are the children of
A.S. No. 563 of 1999
and
R.F.A. 43 of 2008 -:3:-
Padmavathy Amma who was one of the daughters of the
first defendant Narayani Amma who in turn was one of the
daughters of Parukutty Amma. Parukutty Amma and
Padmavathy Amma are no more. Defendants 2 to 4 are the
other children of the first defendant, Narayani Amma.
Defendants 5 and 6 are the children of the 2nd defendant.
Thus, plaintiffs 2 to 8 and defendants 1 to 14 are the
members of the tavazhi of Parukutty Amma who was the
common ancestress of the tarvad. The plaint A schedule
properties belonged to the said tavazhi. The properties are
in the joint possession of the plaintiffs 2 to 8 and defendants
1 to 14. The plaintiffs were given their share of income
from the properties up to December 1991. The assignment
deed executed by defendants 2 and 8 in favour of strangers
are void and not binding on the plaintiffs. Eventhough the
plaintiffs demanded partition and separate possession of
their share the defendants have not acceded to their
demand. The properties will fetch an annual income of
A.S. No. 563 of 1999
and
R.F.A. 43 of 2008 -:4:-
Rs. 10,000/-. The plaint schedule properties may, therefore,
be divided into 16 shares and the plaintiffs may be allotted
8 shares over the same with share of profits at the rate of
Rs. 5,000/- per annum.
THE DEFENCE
3. The suit was resisted by defendants 1,3,4,7, 9, 11
and 12 raising the following contentions:-
The plaint allegation that the plaint A schedule item
No. 1 property belonged to Andippillil Tarvad is false. It
was the property belonging to Andippillil Krishnan Menon.
The said Krishnan Menon gifted the property in favour of 11
persons as per a gift deed of the year 1099 ME
(corresponding to the year 1924). Out of the 11 persons
Ravunni Nair and Madhavi Amma died. The remaining 9
co-owners partitioned the properties as per Ext.A1
partition deed dated 1-11-1950. The plaint A schedule item
No.I was allotted to defendants 1, 7 and 8 and their
brother Neelakanda Menon and their mother Parukutty
A.S. No. 563 of 1999
and
R.F.A. 43 of 2008 -:5:-
Amma. It was not a tavazhi property and, therefore,
subsequently born children in the Andipillil tarvad have no
right over the property. Plaint A schedule item No. 2 also
did not belong to Andippillil tarvad. The said item
belonged to Kandangad Sankaran Padmanabhan, the
husband of Parukutty Amma and the father of defendants 1,
7 and 8 and deceased Neelakanda Menon. On the death of
Sankaran Padmanabhan, the half share he had over the
property devolved upon his wife Parukutty Amma and
children, Narayani Amma (D1), Karunakara Menon (D8),
Neelakanda Menon and Ammukutty Amma (D7). The other
half share devolved on Sankaran Padmanabhan’s mother
Parvathy. She gifted her share to the wife and children of
Sankaran Padmanabhan as per document No. 3177/1096
M.E. of S.R.O. Alangad. The plaintiffs have no right over
the said property. The share of Neelakanda Menon in the
suit properties was assigned in favour of the 8th defendant
as per Ext.B1 sale deed of the year 1116 and B2 sale deed
A.S. No. 563 of 1999
and
R.F.A. 43 of 2008 -:6:-
dated 21-10-1955. Parukutty Amma died in the year 1972.
Thereafter as per Ext.B3 partition deed dated 28-10-1981 of
S.R.O. Tripunithura, defendants 1, 7 and 8 partitioned the
properties among themselves. 8th defendant Karunakara
Menon assigned 10 cents of property in favour of the 15th
defendant and his wife the 16th defendant as per sale deed.
By his will dated 15-7-1989 Karunakara Menon bequeathed
his property to his children who are defendants 10 to 14.
The first defendant gifted her share over the properties to
her daughter Kamalakshi @ Thankam the 2nd defendant as
per Ext.B4 gift deed dated 4-3-1983. The 2nd defendant in
turn assigned the same to her children namely defendants 5
and 6. Defendants 5 and 6 assigned the property to
strangers. The plaintiffs have no right over the plaint
schedule properties. The plaint allegation that the plaintiffs
were given their share of income from the properties till
December 1991 is false. The properties will not fetch Rs.
10,000/- per annum as alleged. At the most they may fetch
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and
R.F.A. 43 of 2008 -:7:-
Rs. 100/- per annum. The suit may be dismissed with
costs.
4. The 5th defendant filed a written statement
supporting the plaint averments and praying for partition
and separate allotment of her share with profits from the
suit properties.
5. The 13th defendant who is the daughter of the 8th
defendant Karunakara Menon filed a written statement
raising the very same contentions raised by defendants 1,
3, 4, 7 , 9 and 12. She further contended that plaintiffs 1 to
3 and Padmavathy Amma the wife of the first plaintiff and
mother of the other Plaintiffs were aware of the execution of
Ext.A1 partition deed and, therefore, the rights, if any, of
the plaintiffs have been lost by adverse possession and
limitation and that in the event of partition she may be
given the value of improvements effected by her.
6. Defendants 15 to 17 filed a joint written statement
raising the defences set up by other contesting defendants
A.S. No. 563 of 1999
and
R.F.A. 43 of 2008 -:8:-
and further contended as follows:-
Defendants 15 and 16 have purchased 10 cents of land
from 8th defendant Karunakara Menon and 17th defendant
has purchased 6.5 cents of land from the 2nd defendant
Kamalakshy Amma @ Thankam as per document No. 3191
of 1991. The properties are not partible. In case the suit is
decreed, the assignment in favour of defendants 15 to 17
may not be set aside. They have effected valuable
improvements in the properties purchased by them. In the
event of partition, they may be given the value of the
improvements. The suit is barred by limitation and is to be
dismissed with costs.
THE TRIAL
7. The court below framed the following issues for
trial:-
i) Whether the suit is time barred ?
ii) Whether the suit is bad for non-joinder of
necessary parties ?
iii) Whether the plaint schedule first item property
A.S. No. 563 of 1999
and
R.F.A. 43 of 2008 -:9:-
was the property of Andippillil Taravadu ?
iv) Whether the plaint schedule second item
property was the property of Andippillil Taravadu ?
v) Whether the alienations made by Neelakanda
Menon are valid ?
vi) Whether partition Deed No. 6143/1981 is
binding on the plaintiffs ?
vii) Whether the alienations made by defendants 1
and 2 are binding on the plaintiffs ?
viii) Whether the alienation made by the 8th
defendant is binding on the plaintiffs ?
ix) What is the share (if any) to which each of the
co-owners is entitled in the plaint schedule
properties ?
x) What is the amount (if any) to which
defendants 13 and 15 to 17 are entitled as value of
improvements ?
xi) What is the order as to costs ?
8. On the side of the plaintiffs the 6th plaintiff was
examined as P.W.1 and Exts.A1 to A4 were got marked.
On the side of the defendants the 3rd defendant was
examined as DW1 and Exts. B1 to B10 were got marked.
A.S. No. 563 of 1999
and
R.F.A. 43 of 2008 -:10:-
9. The learned Subordinate Judge, after trial as,
per judgment and decree dated 8-1-1999 passed a
preliminary decree for partition as follows:-
i) The plaint schedule properties will be divided by metes and
bounds into 15 shares.
ii) Defendants 1 to 7 and plaintiffs 2 to 8 are entitled to one
share each. Additional defendants 9 to 14 together are
entitled to one share.
iii) The plaintiffs will be put in possession of their joint
7/15 share.
iv) The fifth defendant will be put in possession of her share.
v) The plaintiffs and fifth defendant are allowed to realise
their share of income out of the shares of the other co-owners
who will be liable proportionate to their shares.
vi) The quantum of the share of income will be decided in
the final decree proceedings.
vii) The costs shall come out of the estate.
The case is adjourned sine die”.
It is the said preliminary judgment and decree which
A.S. No. 563 of 1999
and
R.F.A. 43 of 2008 -:11:-
are assailed in these appeals.
10. I heard Advocate Sri. T.K. Venugopalan the
learned counsel appearing for the appellants in A.S.
563/99, Advocate Sri. N.K. Subramonian , the learned
counsel appearing for the appellants in R.F.A. 43 of 2008
and Advocate Sri. Charles the learned counsel appearing
for the respondents/plaintiffs.
ARGUMENTS OF THE CONTESTING DEFENDANTS
11. On behalf of the appellants in the two appeals the
following submissions were made before me in support of
the appeals:-
An extent of 1.56 acres of land including the plaint A
schedule item No. 1 admeasuring 70 < cents belonged to
Andippillil Krishnan Menon, a member of the plaintiff's
tarvad. The said property was gifted by Krishna Menon
in favour of the following 11 members of the tarwad:-
i) Madhavi Amma
ii) Ravunni Nair
A.S. No. 563 of 1999
and
R.F.A. 43 of 2008 -:12:-
iii) Ayyappa Menon
iv) Parameswara Menon
v) Damodara Menon @ Govinda Menon
vi) Raghava Menon
vii) Parukutty Amma
viii) Narayani Amma (D1)
xi) Karunakara Menon (D8)
x) Neelakanda Menon
xi) Ammukutty Amma (D7)
The above gift was not in favour of any tavazhi but to
the named donees who were tenants -in-common. The
plaint A schedule item No. 1 is in the erstwhile Cochin
area. In the case of such a gift, even if both the donor as
well as donees are Marumakkathayees, contrary to the
views of the Madras and Travancore High Courts, the
Cochin High Court has always held that the donees take
the properties as co-owners or tenants-in-common. (See
Kalianikutty Amma v. Devaki Amma – 1950 KLT 705
A.S. No. 563 of 1999
and
R.F.A. 43 of 2008 -:13:-
F.B.) Among the aforesaid 11 persons who were co-
owners in respect of the plaint A schedule item No. I,
Madhavi Amma and Ravunni Nair died. O.S. 77/1125
M.E. (corresponding to the year 1950) was a suit filed by
Ayyappa Menon referred to above before the Anjikaimal
District Court seeking partition of the aforesaid property.
The surviving 8 co-owners were the defendants in the said
suit. Ext.B9 is the preliminary judgment dated 11-8-1950
passed in the said suit. Pending the said suit the parties
compromised and executed Ext.A1 partition deed dated 1-
11-1950. Ext.B7 compromise petition dated 15-11-1950
was also filed before Court. Ext.B8 final judgment and
Ext.B10 final decree dated 17-11-1950 were passed by the
court recording the compromise. Ext.B6 is the plaint in
O.S. No. 77 of 1925 referred to above. In the said suit
filed by Ayyappa Menon it was alleged that the property
was purchased by the 11 co-owners referred to above and
that defendants 1 to 3 therein viz., Parameswara Menon,
A.S. No. 563 of 1999
and
R.F.A. 43 of 2008 -:14:-
Damodara Menon @ Govinda Menon and Raghava Menon
were mismanaging the property and were creating
encumbrances over the property by mortgaging the same
in favour of strangers and 3rd defendant Raghava Menon
was fraudulently getting back the property from the
mortgagee. It was pending the said suit that Ext.A1
partition deed was executed as per which Ayyappa Menon
who was the plaintiff therein was allotted property worth
Rs. 150/- as branch No. I, Parameswara Menon was
allotted property worth Rs. 200/- as branch No. II, Govinda
Menon was allotted property worth Rs. 200/- as branch No.
III, Raghava Menon was allotted property worth Rs. 400/-
as branch No. IV and Parukutty Amma and her children
were allotted the present A schedule item No. I i.e.70 <
cents worth Rs. 150/- as branch No. V. The B schedule to
Ext.A1 partition deed enumerates the debts. It says that a
sum of Rs. 300/- payable to Raghava Menon by virtue of
Ext.A4 mortgage deed of 1120 M.E. is allotted to Raghava
A.S. No. 563 of 1999
and
R.F.A. 43 of 2008 -:15:-
Menon. B schedule to Ext.A1 further shows that a sum of
Rs. 150/- expended by Ayyappa Menon for conducting
Ext.B1 suit is allotted to him and Rs. 31/- is allotted to him
towards payment made to the jenmi Devaswom and Rs.
324/- and Rs. 95/- to the children of Ayyappa Menon due
under a decree. Ext.A4 is the mortgage executed
dishonestly by Parameswara Menon, Govinda Menon and
Madhavi Amma as alleged in Ext.B6 plaint. Ext.A4 recites
that Parameswara Menon and two others are executing
the mortgage for and on behalf of the tarvad. By virtue of
Secs. 53 and 54 of the Cochin Nair Act , written consent of
the major members of the tarvad was necessary for
alienating the tarvad property by way of mortgage. No
such written consent had been obtained. So Ext.A4
mortgage was invalid and not binding on the tarvad. That
was the reason why the mortgage debt under Ext.A4 was
not allotted to the 5th branch but to Raghava Menon.
From the very fact that the other family members were not
A.S. No. 563 of 1999
and
R.F.A. 43 of 2008 -:16:-
made liable for the debts, it is clear that Ext.A4 mortgage
was one executed dishonestly and not on behalf of the
tarvad. The present suit is filed 43 years after Ext.A1. If as
a matter of fact the plaint A schedule item No. I was a
tavazhi property, Padmavathy Amma, the mother of
plaintiffs 2 to 8 who died in the year 1966 would have
claimed partition. She not only did not claim partition but
was not allotted any share in Ext.B3 partition dated 28-10-
1981. Similarly, the plaint A schedule item No. 2
altogether admeasuring 3.51 acres belonged to
Kandangattu tarwad of which Sankaran Padmanabhan,
the husband of Parukutty Amma was a member. After the
death of Padmanabhan his half right devolved on his
widow Parukutty Amma and children and the other half
right to his mother Parvathy Amma. The said Parvathi
Amma gave a gift of her half right to Parukutty Amma
and her children as per document No. 3177/1096 of S.R.O.,
Alangad which was produced before the court below on 2-
A.S. No. 563 of 1999
and
R.F.A. 43 of 2008 -:17:-
12-1996 but was not marked and has been marked in this
appeal as Ext.B11. Ext.A2 is only a right to encumber the
property for 630/- rupees given as a usufructury mortgage
by Parvathy Amma to Parukutty Amma and her children.
Since Sec. 22 of the Travancore Nair Act, 1100 M.E. as per
which a gift or bequest by a Marumakkathayee husband to
his wife and children will enure to the puthravakasam
tavazhi of his wife and children has no application neither
document No. 3177/1096 nor Ext.A2 can be treated as an
acquisition by the tavazhi of Parukutty Amma so as to
enure to the subsequently born members of the said
tavazhi. Parvathi Amma who is the donor under document
No. 3177/1096 M.E. and the mortgagor under Ext.A2 not
being a father or husband the property dealt with under
these documents will not enure to the puthravakasam
thavazhi of Parukutty Amma and her children. The
property will only enure to the named donees namely
Parukutty Amma , the first defendant Narayani Amma, 7th
A.S. No. 563 of 1999
and
R.F.A. 43 of 2008 -:18:-
defendant Ammukutty Amma and 8th defendant
Karunakara Menon. The finding recorded by the court
below that plaint A schedule item No. 2 enured to the
tavazhi of Parukutty Amma is, therefore, unsustainable. As
per Ext.B3 partition deed dated 28-10-1981, Narayani
Amma the grandmother of plaintiffs 2 to 8 was allotted 12
= cents from plaint A schedule item No. I and 63 cents in
the property comprised in Sy. No. 691/2 of plaint schedule
item No. 2 and 12 cents in the property comprised in Sy.
Nos. 690/I C of plaint A schedule item No. 2. The first
defendant had gifted certain items to her daughter the 2nd
defendant as per Ext.B4 sale deed of the year 1993. From
out of the said property the 2nd defendant sold 6.5 cents to
the 17th defendant as per Ext.B5 sale deed dated 20-1-
1993. Likewise, the 8th defendant was allotted 45 < cents
from the plaint A schedule item No. 1 and 2.03 acres from
plaint A schedule item No. 2 as per Ext.B3 partition. He
had sold 10 cents out of the property allotted to him and
A.S. No. 563 of 1999
and
R.F.A. 43 of 2008 -:19:-
comprised in Sy. No. 691/2 to defendants 15 and 16
(husband and wife) as per document No. 3107/1989
S.R.O. Edappally. Merely because plaint A schedule item
No. 2 is given to Parukutty Amma and her children it
cannot be held that the mortgage enures to the share of
the tavazhi of Parukutty Amma so as to entitle plaintiffs 2
to 8 to claim a share. In (Kunju Ponnamma Gouri
Amma v. Parvathi Amma – 1969 KLR 902) it has been
held that the Ist defendant therein and her two minor
children who were the other members of her tavazhi to
whom properties were allotted on per capita basis and
included under one schedule would take the properties
were allotted on per capita basis and included under
one schedule would take the properties as tenants -in-
common and that the properties would not enure to the
tavazhi. There is no presumption that properties acquired
by a junior member are tarvad properties. (See Kalliani
Amma v. Rugmini – 1999 (3) KLT 98). It is only if the
A.S. No. 563 of 1999
and
R.F.A. 43 of 2008 -:20:-
tarvad is possessed of sufficient nucleus with which the
properties could have been acquired and the acquisition
was made utilising the nucleus, can there be a
presumption that the acquisition would enure to the tarvad
(See Chenthamarakshan v. Kondath Damodaran – ILR
1970 (Kerala) 65). In case, this Court upholds the
preliminary decree for partiion, since the impugned
transfers were effected after 1-12-1976 they were not void
attracting the decision of the Full Bench reported in
Ammalu Amma v. Lakshmy Amma – 1966 KLT 32
(FB). Hence, in the event of partition 10 cents
purchased by D15 and 16 from D8 may be allotted to D8
and 6.5 cents purchased by D17 from D2 may be allotted to
D2 or his son D6 so that the transferees can work out their
equities in the final decree proceedings. Eventhough the 13th
defendant had pleaded adverse possession and limitation, the
court below has not recorded any finding in that behalf.
JUDICIAL RESOLUTION
12. I am afraid that I cannot agree with the above
A.S. No. 563 of 1999
and
R.F.A. 43 of 2008 -:21:-
submissions made on behalf of the appellants.
13. Admittedly the parties belong to a
Marumakkathayam tarvad by name Andippillil of Ponnurunni
desom in Poonithura Village of Kanayannoor Taluk in
Ernakulam District. . Item I of plaint A schedule is situated in
Ponnurunni Desom and is known as Vadakke Andipilli paramba
having an extent of 70 < cents comprised in Survey No. 573/1
of Poonithura Village. Ponnurunni was admittedly a part of
the erstwhile Cochin State. Plaint A schedule item No. 2,
having a total extent of 3.51 acres is lying at Edappally in
Ernakulam District in two survey Nos. and is known as
Kadangattu paramba. Edappally was admittedly a part of the
erstwhile Travancore area. 1.03 acres out of the said 3.51
acres is comprised in survey No. 690/C and 2.48 acres is
comprised in Survey No. 691/2 of Thrikkakara North Village and
are lying contiguously. For a better comprehension of the
contentions of the parties, it is necessary to know the
relationship between the parties. The common ancestor of the
parties was one Nangeli Amma of Andipallil tarvad. Krishna
Menon, Madhavi Amma, Ravunni Nair, and Parukutty Amma
A.S. No. 563 of 1999
and
R.F.A. 43 of 2008 -:22:-
were the children of Nangeli Amma. Parameswara Menon,
Govinda Menon and Raghava Menon were the children of
Madhavi Amma. Karunakara Menon (D8), Neelakanda
Menon, Narayani Amma (D1) and Ammukutty Amma (D7) were
the children of Parukutty Amma whose husband was one
Sankaran Padmanabhan. Karunakara Menon died pending suit
and his legal representatives are his widow the 9th defendant
and childrens defendants 10 to 14. Kamalakshi @ Thankam
(D2), Aravindakshi Amma (D3), Ramachandran (D4) and
Padmavathy Amma are the children of first defendant Narayani
Amma. Defendants 5 and 6 are the children of 2nd defendant,
Kamalakshy Amma @ Thankam . The 6th defendant died
pending this appeal and respondents 12 and 13 in A.S. No.
563 of 1999 are his legal representatives. The first
plaintiff is the husband of Padmavathi Amma who died
prior to the suit and plaintiffs 2 to 8 are her children.
The following is the genealogy showing the
relationship between the parties:-
A.S. No. 563 of 1999
and
R.F.A. 43 of 2008 -:23:-
GENEALOGY
A.S. No. 563 of 1999
and
R.F.A. 43 of 2008 -:24:-
While in the case of all the members of Andippillil tarvad
there is evidence either oral or documentary to fix their
ancestry and lineage, in the case of Ayyappa Menon I have
not been able to fix his position in the genealogy except
that he is admittedly a member of the tarvad. There was
only a casual statement by DW1 Aravindakshy Amma to
the effect that Ayyappa Menon was her uncle . But it is
nobody’s case that Ayyappa Menon was the son of
Parukutty Amma so as to become DW1’s uncle .
14. I will first consider the nature and character of
plaint A schedule item No. I and the rival claims regarding
the said item. As mentioned earlier the said item is
situated in Ponnurunni Desom of Poonithura Village and
was part of the erstwhile Cochin State. The document as
per which this item was acquired has not been produced
before court by either of the parties. But there is intrinsic
A.S. No. 563 of 1999
and
R.F.A. 43 of 2008 -:25:-
evidence to show that this item was gifted by Krishna
Menon of Andippillil Tarvad in favour of 11 members of
the very same tarvad. Ext. B6 plaint in O.S. 77/1125 M.E.
makes mention of the above gift deed as document No.
1223/1099 M.E. (corresponding to the year 1924).
According to the appellants, this was an acquisition by 11
co-owners and the property was a co-ownership property.
First of all, as mentioned earlier the document of
acquisition is not before Court. Without having the
opportunity to consider the terms and conditions and the
recitals in the aforesaid gift deed it cannot be said that the
property was co-ownership property or even tavazhi
property. But then in Ext.B6 plaint in O.S. 77/1125 M.E.
filed by one of the donees under the aforesaid document
against the surviving 8 donees thereto, it is alleged that
on the death of Madhavi Amma and Ravunni Nair (the
two deceased co-donees) their rights devolved on the
surviving donees. If it was a co-ownership property then
A.S. No. 563 of 1999
and
R.F.A. 43 of 2008 -:26:-
the rights of Ravunni Nair and Madhavi Amma would not
have reverted to the surviving donees but would have
devolved on the personal heirs of Madhavi Amma and
Ravunni Nair. It was during the pendency of O.S. 77/1125
instituted by Ayyappa Menon against the other donees
under the gift deed of 1099 seeking a partition and
separate possession of the 1.56 acres of land including the
present plaint A schedule item No. I scheduled thereto, that
the parties to that suit came to a compromise. They
executed Ext.A1 partition deed dated 1-11-1950 subsequent
to the preliminary decree passed on 11-8-1950 as
evidenced by Ext.B9 preliminary judgment. Ext.B7
compromise petition dated 15-9-1950 was filed stating
that the parties have settled the dispute by executing
Ext.A1 partition deed. Accordingly, Ext.B8 and Ext. B10
final judgment and final decree dated 17-11-1950 was
passed recording the compromise. The executants to
Ext.A1 partition deed are :
A.S. No. 563 of 1999
and
R.F.A. 43 of 2008 -:27:-
i) Ayyappa Menon
ii) Parameswara Menon
iii)Govinda Menon
iv) Raghava Menon
v) Karunakara Menon
vi) Neelakanda Menon
vii)Parukutty Amma
viii)Narayani Amma
ix) Ammukutty Amma
The rank of the executants to Ext.A1 partition deed is
shown above their names in the genealogy given above.
The 1.56 acres of property including the present A schedule
item No. I (admeasuring 70 < cents) was divided and
allotted to five branches. Ayyappa Menon, Parameswara
Menon, Govinda Menon and Raghava Menon constituted
branch Nos. 1 to 4. Parukutty Amma and her children
namely Karunakara Menon, Neelakanda Menon , Narayani
Amma and Ammukutty Amma together constituted branch
A.S. No. 563 of 1999
and
R.F.A. 43 of 2008 -:28:-
No. 5. The plaint A schedule item No. 1 was allotted to the
5th branch, that is, Parukutty Amma and her children. It
is pertinent to note that the name of this property itself is
Vadakke Andippillil paramba. Even assuming that this
property was a co-ownership property, when it was
allotted in partition to the 5th branch consisting of
Parukutty Amma and her children, then in the hands of the
progeny of Parukutty Amma the property became
impressed with tarvad characteristics.
16. Under the Hindu Mithakshara Law the share
which a co-parcener obtains on partition of ancestral
property as regards his male issues is also ancestral in
character and they take an interest in such property by
birth whether they are in existence at the time of the
partition or are born subsequently. The property in his
hands has the incidents of right by birth and suvivorship.
The same principle has always been applied in the case of
a Marumakkathayee female obtaining property on
A.S. No. 563 of 1999
and
R.F.A. 43 of 2008 -:29:-
partition of ancestral property with the only difference that
members in a joint Hindu Marumakkathayam family
descent lineally from a common ancestress and by virtue
of the matrilineal system of inheritance female members
and their female descendants enjoy the status analogous
to that of co-parceners under the Hindu Marumakkathayam
Law. But the three degree rule of Mitakshara law
founded on religious obligation is not applicable to
Marumakkathayam law. Thus, the property of a
Marumakkathayam tarvad enures for the benefit of its
members who may be added in the future by births into
the family in the female line, the new members getting
forthwith a right by birth in the property. Therefore,
under the customary Marumakkathayam law a
subsequently conceived or born child gets a right by birth
in the property obtained by its mother by way of her
separate share in the partition of her ancestral properties.
In other words, after partition of the ancestral property the
A.S. No. 563 of 1999
and
R.F.A. 43 of 2008 -:30:-
share allotted to a female in her hands continues to retain
its character as tarvad property. Statutory intervention
into the customary Marumakkathayam Law by the Madras
Marumakkathayam Act, 1933, the Travancore Nair Act,
1100 M.E. , the Cochin Nair Act, 1113 M.E. etc. have not
effected any change in the prestine Marumakkathayam
law. See Mary v. Bhasura – 1967 KLT 430 – F.B.,
Parameswaran Pillai v. Ramakrishna Pillai – 1954 KLT
862 FB. Where property has been allotted to a natural
group consisting of a Marumakkathayam mother and her
children, they take such property as tavazhi property with
all its incidents. (See Nullikkodan v. Ayisumma – 2002
(3) KLT 883). In Ext.B6 plaint O.S. 77/1125 M.E. filed
before Anjikaimal District Court by Ayyappa Menon against
the other eight surviving donees under the gift deed of
1099 M.E. it is averred that on the death of Madhavi
Amma and Ravunni Nair, their share over the property
devolved on the remaining 9 donees. If the 11 persons who
A.S. No. 563 of 1999
and
R.F.A. 43 of 2008 -:31:-
got the property from their senior member under the gift
deed were tenants -in- common then, the interest of two of
the deceased donees should have devolved on their
personal heirs by virtue of Sec. 27 of the Cochin Nair Act,
1113. From the very fact that their shares were treated as
devolved on the remaining 9 co-donees, it is crystal clear
that even in the year 1950, the parties treated the property
as tavazhi property. Ext.A 4 mortgage with regard to plaint
A schedule item No. 1 executed by three senior members
of the tarvad also recites that the property is their tarvad
property. To crown all DW1 Aravindakshi Amma during
her cross-examination clearly admitted as follows:-
? (Q)
. A). Ext. A1
.
.
A.S. No. 563 of 1999
and
R.F.A. 43 of 2008 -:32:-
Thus, the only witness examined on the side of the
contesting defendants has admitted that gifts given by the
uncle to his own nephews and nieces were to enure to the
tavazhi and that in Ext.A1 partition that took place in the
Andippillil tarvad, Parukutty Amma and her children
separated as one tavazhi. Such being the position, it is
futile for the appellants to contend that plaint A schedule
item No. 1 allotted in partition to Parukutty Amma and
her children does not enure to the tavazhi of Parukutty
Amma and her descendants according to the tenets of the
prestine Marumakkathayam Law. The finding recorded by
the court below in this regard does not call for any
interference.
15. What now survives for consideration is the nature
of acquisition of plaint A Schedule item No.2. Ext.A2 is
the usufructory mortgage dated 7th Edavom 1096 M.E.
corresponding to the year 1921 executed by Parvathy
Amma, the mother-in-law of Parukutty Amma in respect of
A.S. No. 563 of 1999
and
R.F.A. 43 of 2008 -:33:-
the plaint A schedule item No. 2 known as Kadangattu
Paramba . Ext.A2 recites that the consideration for the
document proceeded from Parukutty Amma. The
document is in favour of Parukutty Amma and her minor
children. This mortgage was never redeemed by Parvathy
Amma. Under the Prestine Marumakkathayam Law
acquisition of a property in the name of mother and
children who form a natural group had always been
presumed to be on behalf of the tavazhi and even the
existence of an original nucleus was not considered
essential. (Vide Karthiyayini v. Parukutty – AIR 1957
Kerala 27, Lakhsmi v. Anandan – ILR 1982 (2) Kerala
377, Sarojini Amma v. Aboobacker – 1986 KLT 944
and P. Kamalam and Others v. Devaki and Others –
2006 (2) KLT 499). The position is the same where a
Marumakkathayee male makes a gift in favour of his
nephews or nieces eventhough there is no statutoy
presumption in that behalf – See Tazhath Valappil
A.S. No. 563 of 1999
and
R.F.A. 43 of 2008 -:34:-
Prasanth v. Kalliani and Others – 2007 (2) KLT 992.
The statutory intervention in the from of Section 44 of the
Travancore Nair Act corresponding to Sec. 74 of the
Cochin Nair Act had not made any inroads into the rules of
customary Marumakkathayam law which stands unaffected
by the presumptions engrafted into the aforementioned
enactments. In the decision reported in 1969 KLR 902
(supra) cited on behalf of the appellants, the intention that
the gift ensured to the named donees only was gathered
from the recitals in the document. Moreover, that decision
is in line with the dissenting view of the learned Judge
himself in the decision reported in 1967 KLT 430 (FB)
(supra). The binding precedent is that of the Full Bench.
Thus, it is not necessary that the gift or bequest in favour
of the wife and children should invariably be made by a
Marumakkathayee husband so as to draw the presumption
that such gift or bequest enures to the puthravakasam
tavzhi of such wife. Any acquisition by a natural group
A.S. No. 563 of 1999
and
R.F.A. 43 of 2008 -:35:-
constituting a tavazhi as known to the Marumakkathayam
law will get impressed with all the tavazhi characteristics
and the children born through the female line will get a
right by birth over such properties. (See Mary v. Bhasura
Devi – supra). DW1, the only witness examined on the
side of the contesting defendants has unequivocally
admitted that plaint A schedule item No. 2 was obtained
by the tavazhi of her maternal grandmother, Parukutty
Amma. This is what she has deposed to :-
”
“
16. As for document No. 3177 of 1096 marked in this
appeal as Ext.B11, the same has really no connection
whatsoever with the property in question. Plaint A
schedule item No. 2 is not the property dealt with under
Ext.B11 and, therefore, the argument of the contesting
defendants based on Ext.B11 gift deed is wholly
untenable. That is presumably the reason why this
A.S. No. 563 of 1999
and
R.F.A. 43 of 2008 -:36:-
document although produced before the Court below was
not attempted to be marked on the side of the defendants.
Since the acquirers under Ext.A2 mortgage namely
Parukutty Amma and her minor children formed a natural
group, the property would enure to all the members of the
tavazhi of Parukutty Amma. It is pertinent in this
connection to note that in Ext.B3 partition dated 28-10-
1981 as per which Karunakara Menon , Narayani Amma
and Ammukutty Amma are alleged to have divided the
property to the exclusion of the other tavazhi members
including the plaintiffs, the title which is traced to plaint A
schedule item No. 2 is Ext.A2 mortgage and not Ext.B11
gift deed. This also re-inforces the plaintiffs’ case that this
item was acquired by Parukutty Amma and her children as
per Ext.A2 mortgage. In Gopalan v. Rajendran Nair –
2000 (1) KLT 765 it has been held that a gift by a
brother to his sister to whom children were born
subsequently would not attract Sec. 22 of the Travancore
A.S. No. 563 of 1999
and
R.F.A. 43 of 2008 -:37:-
Nair Act 1101 M.E. and that it would enure to the tavazhi
of the donee sister. I, therefore, endorse the conclusion
reached by the court below with regard to the plaint A
schedule item No.2 as well.
17. Now coming to the plea of adverse possession
and limitation raised by the 13th defendant who is one of
the sons of 8th defendant Karunakara Menon, apart from
the fact no plea of ouster had been raised, no issue was
also framed by the court below in this behalf. The issues
were framed one decade ago and no exception has been
taken by the 13th defendant for the omission in framing an
issue in this behalf. Moreover, in the light of the decisions
of the Apex Court in E.T. Munichikkanna Reddy and
Others v. Revamma and Others – (2007) 6 SCC 59
and Hemaji Waghaji Jat v. Bhikhabhai Khengarbhai
Harijan and Others AIR 2009 SC 103 , the 13th
defendant cannot succeed on the said plea. All that apart,
in Ext.B3 partition, the title over the property is traced to
A.S. No. 563 of 1999
and
R.F.A. 43 of 2008 -:38:-
Ext.B2 usufructory mortgage. Ext.B3 partition was
entered into only on 28-10-1981 and the present suit has
been filed within 12 years of Ext.B3 partition. Hence,
there cannot be any question of adverse possession or
ouster.
WHAT IS THE CORRECT SHARE ?
MEMORANDA OF CROSS OBJECTIONS
18 AND 19 OF 2009
18. In both these appeals, the plaintiffs have filed
cross-objections taking exception to the total shares
arrived at by the court below. According to the
plaintiffs/cross objectors there were altogether 16 sharers
as on 1-12-1976 when the Kerala Joint Hindu Joint Family
System (Abolition) Act, 1975 came into force. Those
sharers are:-
i) Karunakara Menon (D8)
ii) Narayani Amma (D1)
iii) Ammukutty Amma (D7)
A.S. No. 563 of 1999
and
R.F.A. 43 of 2008 -:39:-
iv) Kamalakshi @ Thankam (D2)
v) Aravindakshi Amma (D3)
vi) Ramachandran (D4)
vii) Padmavathy Amma
viii)Balan (D6)
ix) Radha (D5)
x) 2nd plaintiff
xi) 3rd Plaintiff
xii) 4th plaintiff
xiii) 5th plaintiff
xiv) 6th plaintiff
xv) 7th plaintiff
xvi) 8th plaintiff
The court below, however, directed division of the
properties into 15 shares only. In my view the court below
was right in fixing the total shares at 15. Plaintiffs 2 to 8
were not justified in treating their mother Padmavathy
Amma as a sharer who was alive on 1-12-1976. She had
A.S. No. 563 of 1999
and
R.F.A. 43 of 2008 -:40:-died in the year 1966. If so, the Memoranda of Cross
Objections filed in these appeals are without any merit and
are accordingly dismissed.
19. The only other surviving question is regarding
the assignments effected by defendants 2 and 8 with
regard to portions of the 2.48 acres of land which is a part
of plaint A schedule item No. 2. As per Ext.B5 sale deed
dated 20-1-1993 the 2nd defendant assigned 6.5 cents out
of 2.48 acres to the 17th defendant who has constructed a
two storied building by availing of a loan. As per I.A. No.
166 of 2009 D17 has produced the loan agreement and
the site plan pertaining to the 6 = cents of land.
Likewise, defendants 15 and 16 who are husband and wife
had purchased 10 cents of land from out of the 2.48 acres
from the 8th defendant as per a sale deed dated 24-4-
1989. They have constructed a single storied building in
the 10 cents of land. Defendants 15 and 16 have filed I.A.
No. 165 of 2009 producing the sale deed in their favour
A.S. No. 563 of 1999
and
R.F.A. 43 of 2008 -:41:-
and the site plan pertaining to the building. The Court
below treated the aforesaid sale deeds as null and void on
the ground that they were alienations of the undivided
share by members of an undivided Marumakkathayam
family. Reliance in this connection was made to
Antherman v. Kannan – 1960 KLT 1313 (FB) and
Ammalu Amma v. Lakshmi Amma – 1966 KLT 32 F.B.
But then, the lower Court failed to note that as on 1-12-
1976 there was a statutory partition of all Joint Hindu
Families in Kerala with the coming into force of the Kerala
Joint Hindu Family System (Abolition)Act, 1975 converting
the joint tenancies into tenants-in-concern. The
alienations in this case were after 1-12-1976. Hence, there
is nothing wrong in recognizing those alienations qua
the respective vendors and feeding the grant in favour of
the alinees by estoppal by invoking the principle
discernible from Sec. 43 of the Transfer of Property Act
and allotting the portions transferred to the share of the
A.S. No. 563 of 1999
and
R.F.A. 43 of 2008 -:42:-
transferors. As per the preliminary decree, both defendants 2
and 8 are each entitled to 1/15 shares over the 2.48 acres and
that will work out to 16.53 cents per share. It is hardly
necessary to mention that these assignees are entitled to
equitable treatment at the hands of the court. Hence, the
portions taken assignment of by D15 , D16 and D17 shall be
allotted to the share of their respective assignors in equity in
the final decree proceedings. Subject to the above, the
preliminary decree passed by the court below is confirmed.
In the result, these appeals are dismissed confirming the
preliminary decree passed by the court below subject to the
equitable reservation to be made in the final decree
proceedings in favour of D15 to D17, the assignees. No costs.
The Memoranda of Cross Objections are also dismissed as
indicated above.
Dated this the 27th day of August, 2009.
V. RAMKUMAR,
(JUDGE)
ani/
A.S. No. 563 of 1999
and
R.F.A. 43 of 2008 -:43:-
V. RAMKUMAR, J.
…………………………………..
A.S. No. 563 of 1999
&
R.F.A. 43 of 2008
…………………………………..
Dated, this the 27th day of August 2009
JUDGMENT