IN THE HIGH COURT OF KERALA AT ERNAKULAM
AS.No. 703 of 1998(A)
1. A.SAROJINI THANKACHI
... Petitioner
Vs
1. RANIKUMARI
... Respondent
For Petitioner :SRI.VINOD.J.DEV~~~~~~~~~~~
For Respondent :SRI.G.UNNIKRISHNAN
The Hon'ble MR. Justice HARUN-UL-RASHID
Dated :08/03/2010
O R D E R
HARUN-UL-RASHID, J.
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A.S.No.703 of 1998 - A
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Dated this the 8th day of March, 2010
J U D G M E N T
The 4th defendant in O.S.No.460 of 1989 on the file of the
Principal Sub Court, Thiruvananthapuram, is the appellant. The
suit is for partition. Plaintiff claimed 1/7th share. A preliminary
decree was passed allotting 1/7th share each to the plaintiff and
defendants 3, 8, 9 and 10 in the plaint schedule property.
Aggrieved by the decree and judgment, the 4th defendant has
preferred the appeal. The parties are hereinafter referred to as
the plaintiff and defendants as arrayed in the suit.
2. The plaint schedule property is having an extent of
25= cents of land in Vanchiyoor village. Plaint schedule property
is the D schedule property in Ext.A1 partition deed. Ext.A1
partition deed was entered into between the sharers on 8.7.1984.
Plaintiff is the wife of late Thrivikraman Thampi. Properties
including plaint D schedule property are belonging to the thavazhi
consists of Ananda Bai Thankachi, her children and grant
children. Some items of properties are self acquired properties of
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her husband namely, late Puthuppally Krishna Pillai, the then
Chief Justice of Travancore-Cochin High Court. 1st defendant is
the wife of Gopinathan Thampi. 2nd and 3rd defendants are the
wives of two sons of Ananda Bai Thankachi. 4th defendant is the
daughter of Ananda Bai Thankachi. Defendants 5 to 7 are the
children of another daughter by name, Leelavathy Thankachi.
Thrivikraman Thampi, Gopinathan Thampi, Sundareshan Thampi,
Leelavathy Thankachi and defendants 4, 8 and 9 are the brothers
and sisters and are the children of late Puthuppally Krishna Pillai
and late Ananda Bai Thankachi. In the partition deed dated
8.7.1984 marked as Ext.A1, the plaint schedule property, which
is the D schedule property in the partition deed, was allotted to
her children equally. The enjoyment of the property by the
children was postponed till the death of Ananda Bai Thankachi
who died on 7.7.1980. In Ext.A1 partition deed, the thavazhi
property was divided among all the members of the thavazhi
members. It is the plaintiff’s case that 1/7th share was gifted to
her as per gift deed No.608 dated 13.9.1962, marked as Ext.A2.
Plaintiff filed the suit for partition and separate possession of her
share.
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3. The 3rd defendant filed a written statement claiming
her share in the property. The 4th defendant filed a written
statement contending inter alia that all the properties except the
plaint schedule property were partitioned under Ext.A1 deed; the
D schedule property was excluded from partition; and that D
schedule property was enjoyed and possessed by late Ananda Bai
Thankachi till her death. 4th defendant denied the statement that
D schedule property was allotted exclusively to her children.
According to her, the plaint schedule property is available for
partition among all the thavazhi members. Therefore, all the
members of thavazhi are entitled to shares and they are
necessary parties. It is contended that the suit is bad for non-
jointer of necessary parties. It is also contended that
Thrivikraman Thampi was not entitled to transfer by way of gift
or sell his undivided interest in the tharavad property and
therefore, the gift deed is unauthorised, invalid and ab-initio void.
4. The plaintiff and the contesting defendants adduced
evidence. The oral evidence consists of PWs 1 to 3 and DW1.
Exts.A1 to A3 and B1 to B3 are marked on the side of the plaintiff
and defendants respectively. Ext.X1 is also marked.
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5. Respective contentions were examined by the court in
detail. Ext.A1 is the partition deed dated 8.7.1984 executed by
Ananda Bai Thankachi, her 7 children and her grand children.
There were 17 members in the family at the time of Ext.A1
partition deed. The property scheduled as A to H were
partitioned among the sharers. In the present case, we are
concerned only with the D schedule property in Ext.A1 which is
the plaint schedule property. Ananda Bai Thankachi died on
7.7.1980. In Ext.A1, D schedule property was allotted to her 7
children. The parties agreed that their mother namely, Ananda
Bai Thankachi shall enjoy the property, take usufructs for her
lifetime and was allowed to reside in the residential building, at
the same time the property was allotted to her children. But the
enjoyment of the property was postponed till the death of their
mother. Since the plaintiff’s husband was one of the 7 children,
the plaintiff claimed that she is entitled to 1/7th share on the
strength of the gift deed executed by her husband. Defendants 8
& 9 have admitted the execution of gift deed. Ext.A2 is the gift
deed executed by the plaintiff’s husband. Some of the
defendants contended that the plaintiff is not the wife of
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Thrivikraman Thampi. According to them, the plaintiff is not the
wife of late Thrivikraman Thampi, but one Bhanumathi Amma is
his wife. The definite contentions of the 4th defendant is that 19
cents out of the 25= cents in the D schedule property is the
tharavad property and the remaining 5= cents is the self
acquired property of her husband. It is contended that
Thrivikraman Thampi will not get 1/7th share over the 19 cents
because subsequently born children will also get right over the 19
cents.
6. It is the plaintiff’s case that once Ext.A1 partition deed
was executed, the sub tharavad ceased to exist; at the time of
Ext.A1, 17 persons were available in the thavazhi and the
properties were partitioned among all the sharers. The
properties were partitioned and scheduled as A to H. Going by
the recitals in Ext.A1 partition deed the grand children who are
minors at the time of partition are allotted separate properties.
The court below observed that the contentions of the 4th
defendant that minors are not sufficiently compensated by
allotment has no force; and that the 4th defendant cannot turn
around and say that minors have not got their due share in the
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properties. I have examined the relevant portions in Ext.A1
partition deed. The recitals in clause 19 shows that D schedule
property was also included in the partition and the property was
allotted jointly to the 7 children of late Ananda Bai Thankachi.
Therefore, the court below rightly held that the contentions of the
4th defendant that the D schedule property was not included in
the partition is unsustainable.
7. The court below also examined the question whether
the plaintiff is the legally wedded wife of late Thrivikraman
Thampi. The oral evidence of the respective sides were examined
and discussed in detail. Only some family members namely,
defendants 4, 10 and 11 contended that the plaintiff is not the
legally wedded wife of late Thrivikraman Thampi. The
circumstances and the evidence shows that the claim of 10th and
11th defendants that Bhanumathi Amma, their mother had
married late Thrivikraman Thampi and they are the children of
Thrivikraman Thampi had not been substantiated. The validity
and execution of Ext.A2 gift deed was also challenged. The
evidence of PWs 2 and 3 were examined to prove the execution
and registration of gift deed coupled with the evidence tendered
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by PW1 relied by the court below in support of the proof of
execution of Ext.A1 gift deed. Court below also perused Ext.A2,
oral evidence tendered by the scribe, PW3, PW2 the officer from
the Sub Registrar Office and the relevant entry in the Ext.X1
thump impression register in order to find that Ext.A1 was validly
executed. The trial court observed that there is absolutely
nothing to show that the gift deed had not come into force. The
court below relied on the evidence of PW1 which would amply
prove that there was acceptance of gift.
8. I have examined the contentions raised by the counsel
for the appellant. I have discussed the oral and documentary
evidence, the recitals in Exts.A1 and A2 and all the attended
circumstances. All these show that the contentions raised by the
4th defendant in the suit has no merit and therefore, the court
below rightly held that the contentions must fail and the plaintiff
is entitled to a decree for partition. The appellant/4th defendant
died pending appeal and the additional appellants 2 to 8 are
impleaded as legal heirs of the deceased appellant. It is made
clear that contentions of the legal heirs of the deceased appellant
were considered in their capacity as legal heirs of 4th defendant
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alone.
In the result, the appeal fails and it is accordingly,
dismissed. No order as to costs.
HARUN-UL-RASHID,
JUDGE.
bkn/-