IN THE HIGH COURT OF KERALA AT ERNAKULAM
RSA.No. 4 of 2009()
1. THOTTUMKARA SUKUMARAN (DIED)
... Petitioner
2. P. KOUSALYA @ SREEMATHI,
3. P.T. JAYARAJAN, S/O. LATE SUKUMARAN,
4. P.T. MOHANRAJ, S/O. LATE SUKUMARAN,
5. P.T. PRASANNA RAJAN,
6. P.P. SHYAMALA, D/O. LATE SUKUMARAN,
7. P.T. RAVINDRAN, S/O. LATE SUKUMARAN,
8. P.T. SHOBANA, D/O. LATE SUKUMARAN,
9. P.T. SATHYA RANJAN,S/O.LATE SUKUMARAN,
Vs
1. THOTTUMKARA VIMALA,
... Respondent
2. THOTTUMKARA SHYLAJA,
3. BEENA,
4. MANOJ, S/O. VIMALA,
5. LEENA,
6. SEENA, D/O. VIMALA,
7. NEENA, D/O. VIMALA,
8. MINI, D/O. VIMALA,
9. KRISHNA KUMARI, S/O. VIMALA,
10. SANTHOSH, D/O. SHYLAJA,
11. AMBIKA, D/O. SHYLAJA,
12. ANITHA, D/O. SHYLAJA,
13. T. VENUGOPAL, S/O. YESODA,
For Petitioner :SRI.MVS.NAMBOOTHIRY
For Respondent : No Appearance
The Hon'ble MR. Justice M.SASIDHARAN NAMBIAR
Dated :07/04/2009
O R D E R
M. SASIDHARAN NAMBIAR, J.
-------------------------------------------------
R.S.A.No. 4 OF 2009
--------------------------------------------------
Dated this the 7th day of April, 2009
J U D G M E N T
Legal heirs of the first defendant in O.S.126 of 1997
on the file of Munsiff Court, Kannur are the appellants. The suit
was filed for partition of the plaint schedule property which
originally belonged to Kousalya. Kousalya admittedly died on
7.7.1951 without leaving any husband or issues. Kousalya was a
member of marumakkathayam tavazhi. Her mother was Thala.
The other members of the tavazhy were her children Kousalya,
Sukumaran, deceased first defendant and his sister Yesodha.
Yesodha had three children, who are respondents 1 and 2, the
plaintiffs 1 and 2 and respondent No.13, the second defendant.
Children of first respondent are respondents 3 to 9 the plaintiffs
3 to 9. Respondents 8 and 9 were admittedly born subsequent to
1.12.1976, the date of coming into force of Kerala Joint Hindu
Family (Abolition) Act. As on 1.12.1976, Kousalya there were 13
members in the tavazhi. Yesodha died on 3.10.1996. Her rights
devolved on her children. On the death of Kousalya on 7.7.1951
RSA.4/09-A
2
her right devolved on the tavazhi consisting of Thala and her
children and their female descendants. Respondents sought
partition of the plaint schedule property contending that the
properties are to be divided among the tavazhi members as on
the date of Kerala Joint Hindu Family (Abolition) Act. Appellants
admitted that the properties are available for division but
contended that the properties cannot be divided among all
members of the tavazhi and the division should be per capita and
respondents 2 to 12 are not entitled to a share. It is contended
that on the death of Kousalya her right on the property devolved
on her brother, sisters and mother and it is to be divided equally
among them and respondents 2 to 12 are not entitled to a share
as sought for. Learned Munsiff on the evidence found that on
the death of Kousalya her right reverted back to the tavazhi and
as on the date of coming into force of Kerala Joint Hindu Family
(Abolition) Act there were 13 members and each of them is
entitled to one share. A preliminary decree was passed
accordingly. It was challenged before District Court, Thalassery
in A.S.97 of 1998. Learned District Judge on reappreciation of
evidence rejected the case of the appellants that division should
RSA.4/09-A
3
have been per capita. It was found that the properties were
correctly divided as provided under the Marumakkathayam Act
and the appeal was dismissed. The judgment is challenged in
this second appeal.
2. Learned counsel appearing for appellant was heard.
3. The argument of the learned counsel is that as
Kousalya died on 7.7.1951 her right devolved on her mother
Thala and brother the first defendant and sister Yesodha, the
property is to be divided on per capita basis and not by per
stripes as done by the learned Munsiff and confirmed by the
learned District Judge. Learned counsel relied on the Full
Bench decision of this Court in Sivasankaran Vs. Lakshmi &
Others (1966 KLT 327).
4. On hearing the learned counsel, I do not find any
substantial question of law involved in the appeal. As Kousalya
died on 7.7.1951 who was admittedly a member of the
Marumakkathayam tavazhi leaving behind no husband or issues,
her right devolved on her tavazhi consisting of the mother Thala
and brother deceased first defendant and sister deceased
Yesodha and their female descendants. As rightly found by the
RSA.4/09-A
4
learned Munsiff and confirmed by the District Judge as on
1.12.1976, the date of coming into force of Kerala Joint Hindu
Family (Abolition) Act there were 13 members in the tavazhi
including respondents 2 to 7 and 10 to 12. Respondents 8 and 9,
who were born subsequent to that date are not entitled to claim
a share by birth. All other members of the tavazhi are entitled to
one share as granted by the courts below.
As there is no substantial question of law involved in the
appeal, it is dismissed in limine.
M. SASIDHARAN NAMBIAR, JUDGE
okb
RSA.4/09-A
5