IN THE HIGH COURT OF KERALA AT ERNAKULAM
AS.No. 7 of 1992(B)
1. N.AMMUKUTTY AMMA
... Petitioner
Vs
1. PRABHAKARAN
... Respondent
For Petitioner :SRI.D.KRISHNA PRASAD
For Respondent :SRI.D.NARENDRANATH
The Hon'ble MR. Justice P.R.RAMAN
The Hon'ble MR. Justice V.K.MOHANAN
Dated :04/04/2008
O R D E R
P.R.RAMAN & V.K.MOHANAN,JJ.
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A.S.N0.7 OF 1992
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Dated, 4th April, 2008.
JUDGMENT
Raman,J.
Plaintiffs are the appellants. The suit is one for partition
and separate possession of 7/29 shares of the plaint B schedule
property of item Nos. 1 to 3.
2. According to the plaint averments, plaintiffs and
defendants 1 to 18 are members of an ancient Nair
Marumakkathayam tarwad by name `Nikampurath tarwad’.
Defendants 19 to 34 are legal heirs of deceased male members
of the tarwad who died after the commencement of the Hindu
Succession Act, 1956. Defendants 19 to 21 are legal heirs of
deceased Govindan Nair; defendants 22 to 25 are legal heirs of
deceased Karunakaran Nair; defendants 26 to 30 are legal heirs
of deceased Cherootty Nair and defendants 31 to 34 are legal
heirs of deceased Narayanan Nair. According to the plaintiffs,
item No.1 of the plaint B Schedule property was assigned by
the then tarwad karanavan, namely, Kunhikrishnan Nair for and
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on behalf of the tharwad and as karanavan of the tharwad. The
earlier kanam deed was renewed by registered kychit No.926 of
1985 by Cherootty Nair, the subsequent karanavan of the
tharwad, likewise in the same manner for and on behalf of the
tarwad. Later Cherootty Nair and his nephew, late Govindan Nair,
renewed the earlier kanam right by registered deed No.3451/1922
and the property was vested in the tarwad. Item Nos. 2 and 3 of
the plaint B schedule was assigned by the said Kunhikrishnan
Nair for the tarwad as per registered kanam kychit No.3318 of
1888. Later Kunhikrishnan Nair died. The then karanavan,
Cherootty Nair renewed the same for the tarwad as per Ext.A3
registered kanam kychit No.2740/1923. While he was in
possession, he died, and the subsequent karanavan Govindan Nair
renewed it in his capacity as the karanavan of tarwad and for the
benefit of the tarwad vide registered kanam deed No.2389/1950.
The said properties were in the joint possession of tarwad
members. As already stated, plaintiffs and defendants 1 to 18
are members of the tarwad. According to the plaintiffs, there were
29 members in the tarwad before the Joint Hindu Family Abolition
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Act and after the Hindu Succession Act came into force by virtue
of Under section 7 of the Hindu succession Act, a partition is
deemed to have been effected on the dates of deaths of the said
members and their respective shares would devolve on their
personal legal heirs. On the date of commencement of the Joint
Hindu Family system (Abolition) Act, 1975 (Act 30 of 1976)
including the shares of said deceased male members, there were
29 sharers for tarwad property. Plaintiffs 1 to 7 are entitled to
7/29 shares. Defendants 1 to 18 each entitled to 1/29 shares;
defendants 19 to 21 together entitled 1/29 share, defendants 22
to 25 together entitled 1/29 share; defendants 26 to 30 together
entitled 1/29 share; defendants 31 to 34 together entitled 1/29
share. Defendants 35 and 36 are the assignees of portions of B
Schedule item No.1 from the 20th defendant, the former 10
cents and the latter 13 > cents respectively. The properties
sought to be partitioned are plaint B schedule items 1 to 3. Plaint
schedule item 1 is garden land, the total extent of which was
originally 7.5 acres. Portions of this land had been given on
Charthu to others by former Karanavans and hence what was
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available for partition is only the balance extent. Plaint B schedule
item 1 is described as :
”
.”
Plaint B schedule items 2 and 3 are paddy lands,by name
” ”. Exts.A1 and A4 are the title deeds in respect of
plaint B schedule items which are kanom renewal by registered
deeds. Exts.A1 and A2 relate to Plaint B schedule item 1 and
Exs.A3 and A4 relate to items 2 and 3 plaint B schedule
property. As is known there is no dispute that kanam is only a
form of tenancy given by the landlord in favour of the tenant and
on the expiry of the original period, it is being renewed
subsequently. The terms and conditions of kanam are contained
in the deed itself regarding payment to be made by tenants to the
landlord. According to the plaintiff, since the properties originally
belonged to tarwad as is evidenced by the renewal of kanam by
respective karanavans from time to time, the properties are joint
properties entitled to be partitioned.
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3. Defendants 1, 2 and 4 to 8 in the written statement
contended that they are entitled to 7/29 shares with mesne
profits. According to them they are not taking income from the
property and are in joint possession along with other defendants.
Defendants 3, 9 to 18 filed joint written statement contending
that no tarwad is in existence as averred in the plaint. So the suit
is not maintainable. They denied that plaint B schedule properties
were belonged to the tarwad or were in the possession of tarwad
karanavan. According to them, it is not correct to say that
Govindan Nair was the next karanavan because he had an elder
brother named Appu Nair, and no property is partible by
plaintiffs and defendants. Certain portion of item (1) was assigned
by Govindan Nair in 1930 and that was bequeathed to
defendants 1 and 21. Out of the property partitioned and
obtained by 21st defendant, 10th defendant purchased some
portion as per assignment deed No.2825/1974. Thus Govindan
Nair and his heirs were in possession openly and without
interruption. Even if the plaintiffs had any claim right over the
property, that is lost by adverse possession and limitation. Item
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Nos.2 and 3 belong to defendants 19 to 21. They prayed for their
separate possession if the court finds that the properties are
partible.
4. Defendants 19, 20 and 21 filed written statement raising
similar contentions.
5. Defendants 26 to 30 in their joint written statement
supported the claim of the plaintiffs for partitioning and allotting
their separate shares. Defendants 31 to 34 also filed separate
written statement and claimed their share. Defendants 22 to 25
claimed for partition and their separate share. Defendants 35 and
36 filed separate written statement stating that the extent of item
No.1 of the plaint B schedule property is 3 acre 48 cents and it
is not the tarwad property of plaintiff and defendants; but was
the self acquired property of Govindan Nair. The contention of
defendants 35 and 36 are similar to the contentions raised by other
contesting defendants. It is further contended by them that the
35th defendant purchased 10 cents of property from item No.1 and
he was in possession and enjoyment of the property as absolute
owner. 36th defendant purchased 13 > cents in item No.1. Those
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properties are not partible.
6. Admittedly, the plaintiffs and defendants 1 to 18 are
members of the tarwad and entitled to partition. some of the
aforesaid parties and male members died and legal heirs were
already brought on record who are entitled to the respective
shares succeeding the estate of the shares of their predecessors.
7. The trial court framed 12 issues for consideration based
on the pleadings.
8. The evidence consisted of the oral testimony of PW1;
DWs 1 to 3 and documentary evidence Ext.A1 to A7 and Ext.B1 to
B42.
9. The trial court found that the plaint A schedule genealogy
is not correct and complete. It is also found that portion of item
(1) of the plaint B schedule property was not tarwad property of
plaintiffs and defendants 1 to 18 as alleged and it is the self
acquisition and is in possession of Nikampurath Govindan Nair. It
is also held that title of defendants 19 to 21 over item No.1 of the
plaint B schedule property is lost by adverse possession and
limitation. According to the court below, defendants 19 to 21 have
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obtained property as per the document executed by Govindan
Nair since 1963 onwards. They have obtained patta in respect of
the properties assigned in their favour as evidenced by Exts. B31
and B33. The property as per Ext.A5 was partitioned in 1974
by Ext.B1. Plaintiffs were also parties in Ext.B1 and they obtained
the property. According to the court below, that circumstances
show that Govindan Nair treated plaint B schedule property as
his self-acquired property and after Ext.B1 partition, each sharer
is enjoying their respective share. According to the court below,
the remaining property available for partition is not correctly
stated and no decree could be passed for partition of an
undefined and unspecified item. In the result, the suit was
dismissed, however, without cost. Aggrieved thereby, the
appellants preferred this appeal.
10. The first question that falls for consideration is as to
whether item (1) of plaint B Schedule is a joint tarward property
of plaintiffs and defendants 1 to 18 or a self acquired property of
Govindan Nair. According to the plaintiff, the plaintiffs and
defendants 1 to 18 are members of undivided Nair tarwad known
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as Nikampurath tarwad. Item(1) of plaint B schedule was
assigned by Kunhikrishnan Nair, the karanavan of the tarwad for
and on behalf of the tarwad and as karanavan of the tarwad. The
earlier kanam deed was renewed by Cherooty Nair, the
subsequent karanavam of the tarwad in the year 1985. Ext.A1 is
the registration copy of Kanam Assignment deed document No.926
dated 9-3-1985. Originally, the total extent was 7.5 acres.
Admittedly, portions of the property were assigned by the
former karanavans on charthu to others. What is the actual
extent thus assigned by way of charthu is not stated in the plaint
and complete. However, the plaintiffs limit their claim for partition
only to the remaining extent available in item B less what is
assigned earlier by former karanavans. At this stage, we need not
take the trouble of calculating the actual extent available since
this is a matter to be determined in the final decree proceedings.
Therefore what has to be considered is as to whether item (1) of
plaint B schedule is a tarwad property. This property in B
schedule is described in Ext.A1 as :
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”
.”
The plaint B schedule items 2 and 3 are admittedly paddy lands
by name ” ” Ext. A1 is executed by Cherootty Nair
in favour of the Jenmi. It is described as kanam kychit. It is
further recited that the scheduled items were originally in the
name of his karanavan Kunhikrishnan Nair. The kanam amount
is 2 rupees 12 anas. This renewal deed is executed by Cherootty
Nair in favour of the Jenmi. Admittedly, the executant had
taken advantage of the kanam amount already paid by the
previous karanavan as a consideration for the renewal under
Ext.A1. Consequently, there is no substantial change in the
kanam amount as such. These two aspects would indicate that
the succeeding karanavan has only renewed the deed in favour
of the Jenmi on the expiry of the original period for which the
property was outstanding in tenancy with the Tarwad. Ext.A2 is a
document of the year 1922. This document executed by the
Jenmi of the property jointly in favour of Cherootty Nair and
Govindan Nair, his nephew. It is the same property covered by
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Ext.A1 that is again renewed in favour of the Cherootty Nair
and Govindan Nair. (Here also there is no change in the kanam
amount). The contention now raised on behalf of the respondent is
that either in Ext.A1 or A2 there is nothing to indicate that the
property was taken on assignment under kanam right for and on
behalf of the Tarwad and that according to the respondent it
would only indicate that the property is taken by tenants in their
personal capacity or in their individual name. We are unable to
accept this contention. Admittedly, before Ext.A1, the property
was outstanding on tenancy with the tarwad. It was only after
the expiry of the original period that Ext.A1 was executed by way
of renewal of deed by succeeding karanavan, namely, Cherooty
Nair. Kanam amount is the same in Ext.A1 and A2. Admittedly,
kanam amount was paid even prior to Ext.A1 by karanavan and
the property was taken on lease by tarwad. Thus the nucleus,
namely the kanam amount paid by the tarwad continues to
remain with the landlord and what was done by Exts.A1 and A2
was mere renewals without paying any further amount or after
surrender by the earlier kanam amount in faovour of the tarwad.
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Thus the renewal enure to the tarwad and they were not taken
by the executants in their individual capacity.
11. As regards item Nos 2 and 3 of B schedule covered
by two documents Exts.A3 and A4, Ext.A3 is the kanom deed
executed by Cherooty Nair. The kanam amount is 6 rupees and 4
anas which is the same amount paid by the prior karanavan as
per kychit No.3318/1888. The recitals contained in Ext.A3 show
that there was no surrender or fresh lease but it is only a renewal
of the lease for a further period for the same kanam amount.
Ext.A4 is dated 30-9-1950 which is executed by Govindan Nair.
The description of Govindan Nair is ‘Kaikaryakarthavu’. This is a
document executed in favour of Govindan Nair by Jenmi and there
is a clear recital that the earlier kanam deed was in favour of
the then karanavan – late Cherootty Nair for the kanam amount of
6 rupees and 4 anas and reference is made to Ext.A3 in this
connection. Therefore, there cannot be any dispute that Cherootty
Nair was the previous karanavan who had taken assignment in his
capacity as the karanavan for and on behalf of the tarwad and
later, the succeeding karanavan Govindan Nair in whose favour,
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the Jenmi had renewed lease for a further period. These four
documents therefore would clearly show that the property
covered by Exts.A1 and A2 in respect of item (1) of B schedule as
well as Exts.A3 and A4 were taken on lease by the then
karanavamn for and on behalf of the tarwad and not in their
individual name. It is seen from Ext.A3 that even prior to the
execution of Ext.A3 renewal deed by Cherootty Nair, he was in
possession of the property. Such possession is based on
registered kanam deed 1318/1888 executed by the previous
karanavan and on terms and conditions stipulated therein.
Kanam deed No.3318/1888 was executed by the previous
karanavan Kunhikrishnan Nair. The plaintiffs have a case that the
previous karanavan Kunhikrishnan Nair is the Kunhikrishnan Nair
referred to in Ext.A1 and this is specifically averred by the
plaintiffs in paragraph III(3) of the plaint, and it is not denied by
any of the defendants. However, Cherooty Nair took Ext.A3
renewal for the same kanam amount as already noted above. We
have already noticed that after the death of Cherooty Nair, the
kanam is renewed in the name of the Govindan Nair, who was
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the succeeding karanavan and husband of the 19th defendant and
father of defendants 20 and 21. Ext. A4 is the renewal deed in
favour of Govindan Nair executed by the karanavan of the jenmi.
This is only for continuation of the possession of the previous
karanavan. Ext.A4 would show that the karanavan did not incur
any further expenditure for taking the renewal. Therefore, on a
consideration of the above aspects, we have no hesitation to hold
that the kanam was taken by the karanavanan for and on behalf
of the tarwad and so not to be treated as their self acquired
property. When a property is acquired in the name of
karanavan, the presumption is that it is a tarwad property and
the presumption holds good unless and until it is rebutted by
acceptable evidence. Reference may be made to the decision of
the Apex Court in Achuthan Nair v. Chinnammu Amma
(A.I.R.1966 S.C.411).
12. However, it has to be clarified that an extent of
2.50 acres was owned by the tarwad described as Neekampurathu
Parambu where there was a tarwad house. Ext.A6 was executed
by the karanavan Cherootty Nair in respect of the said paramba in
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favour of his nephew Govindan Nair in 1916 which stipulates that
Govindan Nair redeemed the earlier panayams. Govindan Nair
stated to have redeemed those panayams and obtained possession
of the Neekampurath paramba. An extent of 1.50 acres of land
out of the plaint B schedule item 1 is also given by way of Charthu
by Cherootty Nair in the year 1907. The description contained in
the plaint itself would show that the plaintiff was claiming partition
only the property described in the plaint schedule less what has
been given by way of Charthu. Therefore, both the Neekampurath
Paramba and 2.5 acres and 1.50 acres in the plaint schedule item
(1) is not included for the purpose of partition. We are only
making this aspect clear so as to avoid future dispute. Ext.A5 is
the Will executed by Govindan Niar in respect of two items of
properties. Item 1 was the Neekampurath Paramba which he
obtained under Ext.A6 and item 2 was the 1.50 acres of B
schedule item 1 which he got under Ext.B27 sale deed.
Govindan Nair bequeathed item 1 by Ext.A5 Will to his nephew
and nieces who are parties 1 to 21 in the Will. The 22nd party in
Ext.A5 was Padmanabhan Nair, son of Govindan Nair, who is the
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21st defendant in the suit. Item 2 in the said Will i.e., 1.50 acres
of plaint B schedule item 1 obtained by Govindan Nair as per
Ext.B27 was bequeathed by him jointly in favour of party Nos.12
and 22 in Ext.A5. This would reveal that Govindan Nair was
dealing with the properties as self-acquired property and does
not form part of the property available for partition.
13. Learned Counsel appearing for the respondents
Sri.M.C.Sen contended that survey numbers mentioned in Ext.A2
are 132/8, 133/1 and 128 whereas in Ext.B34 partition between
the legal representatives of Govindan Nair namely his wife, son and
daughter who are defendants 19 to 21, the subject matter of
partition is the property comprised in 134/1, R.S.35/1B which
is having an extent of 1.95 acres. True, that property in
Sy.No.132/5 and 133/1 of an extent of 75 cents is also included
in the said partition. The argument is that so long as Sy. 131/1 is
not included in Ext.A2, this cannot be treated as tarwad property
available for partition. Sri P.G.Paramesewara Panicker (senior
counsel) appearing for the appellant would contend that while the
parties have traced title, they have referred to Ext.A2 only and
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therefore the fact that different survey numbers mentioned does
not show that the property dealt with in Ext.B34 is a different
property other than covered by Ext.A2. Admittedly, the total
extent covered by Ext.A2 is 7.50 acres of which 1.50 acres
covered by deed No.1327. Another extent of 1 acre 19 = cents
that is outstanding with Aboobacker and another extent 46 =
outstanding with Karunakaran are liable to be excluded from
partition. If so, only the balance is available for partition, i.e.4.33
acre. But even this is in dispute by the respondents contending
that the total extent available under Ext.A2 is only 3 = acres
instead of 7 acres. But going by the document Ext.A2, the total
extent is 7 acres 50 cents. What is actually available is a
matter to be decided in the final decree. The contention based on
Ext.B34 and the difference in the survey numbers made mention
however, does not appear to be tenable since we are not proposed
to go into details regarding the survey numbers and the extent
available in Ext.A2. Ext.A2 is a kanam assignment deed in favour
of tarwad, the total extent , going by the description, is available
for partition. If as a matter of fact, parties to Ext.B34 traces
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their title, nothing of this sort is made mention in A2. As a
matter of fact though Ext.B34 is executed by Govindan Nair, which
deals with self acquired property, it is not the case of the
contesting respondents that Sy.No.134/1 is the property made
mention of in the Will. If so, it is up to them to give evidence as
to how they got title in respect of Sy.No.134/1. At any rate for
the limited purpose of the present suit for partition we only say
that the property covered by Ext.A2 is available for partition, the
extent of which is to be decided at the time of final decree.
14. Coming to the shares to be allotted, there is no dispute
between the parties. Accordingly, we reverse the decree passed
by the court below. There will be a preliminary decree for
partition. Plaintiffs 1 to 7 together entitled to 7/29 shares;
defendants 1 to 18 each entitled to 1/29 shares; defendants 19 to
21 together entitled to 1/29 share; defendants 22 to 25 together
are entitled to 1/29 share; defendants 26 to 30 together are
entitled to 1/29 share and defendants 31 to 34 together are
entitled to 1/29 share.
15. It was stated by the learned counsel for the appellant
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that the property transferred by assignment in favour of
defendants 35, 36 and 37 are also available for partition. True
that the transaction as such may not bind the appellant, but it
is for the appellant to agitate the said issue in other appropriate
proceedings. This we say because following the decision of the
Division Bench in Sarojini Amma v. Pappi Amma (1973 KLT
148) wherein it is held that there cannot be a partition of the
property in the hands of the trespassers unless it is reduced to
possession of the joint family. If the sale deed is not binding on
the plaintiffs, necessarily the assignee has to be treated as
trespasser. Therefore applying the above principle, partition
cannot be granted as it is not in joint possession.
16. It was then contended that the suit is hit by adverse
possession. As rightly pointed out by the Sr.Counsel Sri
P.G.Parameswara Panicker, the contesting defendants are legal
representatives of Govindan Nair who are co-sharers as respect
the share of Govindan Nair. If so, their joint possession with
others will in no way bar the claim for partition by the plaintiffs
nor any question of adverse possession as against co-sharers
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would arise. further plea of adverse possession arises only when
the plaintiff’s title is admitted by the respondents. In this case
defendants are disputing the title of the plaintiffs.
In the result, the suit is decreed and a preliminary decree is
passed as stated earlier. The suit is allowed as above. No costs.
P.R.RAMAN, JUDGE.
V.K.MOHANAN, JUDGE.
kvm/-
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P.R.RAMAN &
V.K.MOHANAN, J J.
A.S.No.7 OF 1992
Judgment
Dated:4-4-2008
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