{"id":3058,"date":"2009-08-27T00:00:00","date_gmt":"2009-08-26T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/aravindakshi-amma-vs-gopala-menon-on-27-august-2009"},"modified":"2015-01-04T15:39:54","modified_gmt":"2015-01-04T10:09:54","slug":"aravindakshi-amma-vs-gopala-menon-on-27-august-2009","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/aravindakshi-amma-vs-gopala-menon-on-27-august-2009","title":{"rendered":"Aravindakshi Amma vs Gopala Menon on 27 August, 2009"},"content":{"rendered":"
Kerala High Court<\/div>\n
Aravindakshi Amma vs Gopala Menon on 27 August, 2009<\/div>\n
       \n\n  \n\n  \n\n \n \n  IN THE HIGH COURT OF KERALA AT ERNAKULAM\n\nAS.No. 563 of 1999(A)\n\n\n\n1. ARAVINDAKSHI AMMA\n                      ...  Petitioner\n\n                        Vs\n\n1. GOPALA MENON\n                       ...       Respondent\n\n                For Petitioner  :SRI.T.K.VENUGOPALAN\n\n                For Respondent  :SRI.A.BALAGOPALAN\n\nThe Hon'ble MR. Justice V.RAMKUMAR\n\n Dated :27\/08\/2009\n\n O R D E R\n                                                                 CR\n\n                       V. RAMKUMAR, J.\n                 .........................................\n                     A.S. No. 563 of 1999\n            & Cross Objection No. 19 of 2009\n                                   &\n                       R.F.A. 43 of 2008\n            & Cross Objection No. 18 of 2009\n                 .........................................\n\n         Dated, this the 27th day of August 2009\n\n\n                           JUDGMENT\n<\/pre>\n
    Defendants 3, 4, 7 and 9 to 14 in O.S. No. 631 of 1993<\/p>\n
on the file of the first Addl. Sub Court, Ernakulam are the<\/p>\n
appellants in A.S. No. 563 of 1999. Defendants 15 to 17 are<\/p>\n
the appellants        in R.F.A. No. 43 of 2008.                  The<\/p>\n
aforementioned suit was one for partition and separate<\/p>\n
possession of the plaintiffs’ 8\/16 shares over two items of<\/p>\n
immovable properties described in the plaint.                Plaint A<\/p>\n
schedule item No. 1 is shown as having an extent of 70 <<\/p>\n
cents. Plaint A schedule item No. 2 lying comprised in two<\/p>\n
survey numbers has a total extent of 3.51 acres. Plaint A<\/p>\n
schedule item No. 1 is in Poonithura Village and item No. 2<\/p>\n
A.S. No. 563 of 1999
\nand
\nR.F.A. 43 of 2008               -:2:-<\/span><\/p>\n
is in Thrikkakara North Village of Ernakulam District.<\/p>\n
                        PLAINTIFFS’ CASE<\/p>\n
       2.      The case of the plaintiffs can be summarised as<\/p>\n
follows:-\n<\/p>\n
       Plaint       schedule properties     belonged   to   the<\/p>\n
Marumakkathayam tarvad of the plaintiffs 2 to 8            and<\/p>\n
defendants 1 to 14 known as Andipillil Tarvad. In the year<\/p>\n
1950 a partition took place in the said tarvad as evidenced<\/p>\n
by Ext.A1 partition deed dated 1-11-1950 and           plaint A<\/p>\n
schedule item No. I was allotted to the tavazhi of Parukutty<\/p>\n
Amma. The said partition was between defendants 1, 7 and<\/p>\n
8 and        Neelakanda Menon and        their mother Parukutty<\/p>\n
Amma. The plaint A schedule item No. 2 was acquired by<\/p>\n
the tavazhi of Parukutty Amma as per Ext.A2 usfructory<\/p>\n
mortgage dated 7th Edavam 1096 (corresponding to the<\/p>\n
year 1921) executed by Parvathy Amma, the mother-in-law<\/p>\n
of Parukutty Amma. Plaintiffs 2 to 8 are the children of<\/p>\n
A.S. No. 563 of 1999
\nand
\nR.F.A. 43 of 2008               -:3:-<\/span><\/p>\n
Padmavathy Amma who was one of the daughters of the<\/p>\n
first defendant Narayani Amma who in turn was one of the<\/p>\n
daughters of Parukutty Amma.             Parukutty Amma and<\/p>\n
Padmavathy Amma are no more. Defendants 2 to 4 are the<\/p>\n
other children of the first defendant,         Narayani Amma.<\/p>\n
Defendants 5 and 6 are the children of the 2nd defendant.<\/p>\n
Thus, plaintiffs 2 to 8 and defendants 1 to 14 are the<\/p>\n
members of the tavazhi of Parukutty Amma who was the<\/p>\n
common ancestress of the tarvad. The plaint A schedule<\/p>\n
properties belonged to the said tavazhi. The properties are<\/p>\n
in the joint possession of the plaintiffs 2 to 8 and defendants<\/p>\n
1 to 14. The plaintiffs were given their share of income<\/p>\n
from the properties up to December 1991. The assignment<\/p>\n
deed executed by defendants 2 and 8 in favour of strangers<\/p>\n
are void and not binding on the plaintiffs. Eventhough the<\/p>\n
plaintiffs demanded partition and separate possession of<\/p>\n
their share the defendants have not acceded to their<\/p>\n
demand. The          properties will fetch an annual income of<\/p>\n
A.S. No. 563 of 1999
\nand
\nR.F.A. 43 of 2008                 -:4:-<\/span><\/p>\n
Rs. 10,000\/-. The plaint schedule properties may, therefore,<\/p>\n
be divided into 16 shares and the plaintiffs may be allotted<\/p>\n
8 shares over the same with share of profits at the rate of<\/p>\n
Rs. 5,000\/- per annum.\n<\/p>\n
                            THE DEFENCE<\/p>\n
       3.      The suit was resisted by defendants 1,3,4,7, 9, 11<\/p>\n
and 12 raising the following contentions:-<\/p>\n
       The plaint allegation that the plaint A schedule item<\/p>\n
No. 1 property belonged to Andippillil Tarvad is false. It<\/p>\n
was the property belonging to Andippillil Krishnan Menon.<\/p>\n
The said Krishnan Menon gifted the property in favour of 11<\/p>\n
persons as per a gift deed of the year 1099 ME<\/p>\n
(corresponding to the year 1924). Out of the 11 persons<\/p>\n
Ravunni Nair and Madhavi Amma died. The remaining 9<\/p>\n
co-owners           partitioned the properties as per Ext.A1<\/p>\n
partition deed dated 1-11-1950. The plaint A schedule item<\/p>\n
No.I was allotted to          defendants 1, 7 and 8 and their<\/p>\n
brother Neelakanda Menon and their mother Parukutty<\/p>\n
A.S. No. 563 of 1999
\nand
\nR.F.A. 43 of 2008               -:5:-<\/span><\/p>\n
Amma.          It was not a tavazhi property and, therefore,<\/p>\n
subsequently born children in the Andipillil tarvad have no<\/p>\n
right over the property.      Plaint A schedule item No. 2 also<\/p>\n
did not belong to          Andippillil tarvad.  The said item<\/p>\n
belonged to Kandangad            Sankaran Padmanabhan, the<\/p>\n
husband of Parukutty Amma and the father of defendants 1,<\/p>\n
7 and 8 and deceased Neelakanda Menon. On the death of<\/p>\n
Sankaran Padmanabhan, the half share he had over the<\/p>\n
property         devolved upon his wife Parukutty Amma and<\/p>\n
children, Narayani Amma (D1), Karunakara Menon (D8),<\/p>\n
Neelakanda Menon and Ammukutty Amma (D7). The other<\/p>\n
half share devolved on Sankaran Padmanabhan’s mother<\/p>\n
Parvathy. She gifted her share to the wife and children of<\/p>\n
Sankaran Padmanabhan as per document No. 3177\/1096<\/p>\n
M.E. of S.R.O. Alangad. The plaintiffs have no right over<\/p>\n
the said property. The share of Neelakanda Menon in the<\/p>\n
suit properties was assigned in favour of the 8th defendant<\/p>\n
as per Ext.B1 sale deed of the year 1116 and B2 sale deed<\/p>\n
A.S. No. 563 of 1999
\nand
\nR.F.A. 43 of 2008              -:6:-<\/span><\/p>\n
dated 21-10-1955. Parukutty Amma died in the year 1972.<\/p>\n
Thereafter as per Ext.B3 partition deed dated 28-10-1981 of<\/p>\n
S.R.O. Tripunithura, defendants 1, 7 and 8 partitioned the<\/p>\n
properties among themselves.        8th defendant Karunakara<\/p>\n
Menon assigned 10 cents of property in favour of the 15th<\/p>\n
defendant and his wife the 16th defendant as per sale deed.<\/p>\n
By his will dated 15-7-1989 Karunakara Menon bequeathed<\/p>\n
his property to his children who are     defendants 10 to 14.<\/p>\n
The first defendant gifted her share over the properties to<\/p>\n
her daughter Kamalakshi @ Thankam the 2nd defendant as<\/p>\n
per Ext.B4 gift deed dated 4-3-1983. The 2nd defendant in<\/p>\n
turn assigned the same to her children namely defendants 5<\/p>\n
and 6.         Defendants 5 and 6   assigned the property to<\/p>\n
strangers. The plaintiffs have no right       over the plaint<\/p>\n
schedule properties. The plaint allegation that the plaintiffs<\/p>\n
were given their share of income from the properties till<\/p>\n
December 1991 is false. The properties will not fetch Rs.<\/p>\n
10,000\/- per annum as alleged. At the most they may fetch<\/p>\n
A.S. No. 563 of 1999
\nand
\nR.F.A. 43 of 2008               -:7:-<\/span><\/p>\n
Rs. 100\/- per annum.          The suit may be dismissed with<\/p>\n
costs.\n<\/p>\n
       4.      The 5th defendant filed a written statement<\/p>\n
supporting the plaint averments and praying for partition<\/p>\n
and separate allotment of her share with profits from the<\/p>\n
suit properties.\n<\/p>\n
       5.      The 13th defendant who is the daughter of the 8th<\/p>\n
defendant Karunakara Menon filed a written statement<\/p>\n
raising the very same contentions raised by defendants 1,<\/p>\n
3, 4, 7 , 9 and 12. She further contended that plaintiffs 1 to<\/p>\n
3 and Padmavathy Amma the wife of the first plaintiff and<\/p>\n
mother of the other Plaintiffs were aware of the execution of<\/p>\n
Ext.A1 partition deed and, therefore, the rights, if any, of<\/p>\n
the plaintiffs have been lost by adverse possession and<\/p>\n
limitation and that in the event of partition she may be<\/p>\n
given the value of improvements effected by her.<\/p>\n
       6.      Defendants 15 to 17 filed a joint written statement<\/p>\n
raising the defences set up by other contesting defendants<\/p>\n
A.S. No. 563 of 1999
\nand
\nR.F.A. 43 of 2008                   -:8:-<\/span><\/p>\n
and further contended as follows:-\n<\/p>\n
       Defendants 15 and 16 have purchased 10 cents of land<\/p>\n
from 8th defendant Karunakara Menon and 17th defendant<\/p>\n
has purchased 6.5 cents of land from the 2nd defendant<\/p>\n
Kamalakshy Amma @ Thankam as per document No. 3191<\/p>\n
of 1991. The properties are not partible. In case the suit is<\/p>\n
decreed, the assignment in favour of defendants 15 to 17<\/p>\n
may not be set aside.                They have effected valuable<\/p>\n
improvements in the properties purchased by them. In the<\/p>\n
event of partition, they may be given the value of the<\/p>\n
improvements. The suit is barred by limitation and is to be<\/p>\n
dismissed with costs.\n<\/p>\n
                               THE TRIAL<\/p>\n
       7.      The court below framed the following issues for<\/p>\n
trial:-\n<\/p>\n
                i) Whether the suit is time barred ?\n<\/p><\/blockquote>\n
                ii)  Whether the suit is bad for non-joinder of
\n                necessary parties ?<\/p><\/blockquote>\n
                iii) Whether the plaint schedule first item property<\/p>\n
A.S. No. 563 of 1999
\nand
\nR.F.A. 43 of 2008                   -:9:-<\/span><\/p>\n
                was the property of Andippillil Taravadu ?\n<\/p>\n
                iv)  Whether the plaint schedule second item
\n                property was the property of Andippillil Taravadu ?\n<\/p>\n
                v) Whether the alienations made by Neelakanda
\n                Menon are valid ?\n<\/p>\n
                vi)  Whether partition Deed No. 6143\/1981 is
\n                binding on the plaintiffs ?\n<\/p>\n
                vii) Whether the alienations made by defendants 1
\n                and 2 are binding on the plaintiffs ?\n<\/p>\n
                viii) Whether the alienation made by the 8th
\n                defendant is binding on the plaintiffs ?\n<\/p>\n
                ix) What is the share (if any) to which each of the
\n                co-owners is entitled in the plaint        schedule
\n                properties ?\n<\/p>\n
                x)      What is the amount (if any) to which
\n                defendants 13 and 15 to 17 are entitled as value of
\n                improvements ?\n<\/p>\n
                xi) What is the order as to costs ?\n<\/p>\n<\/p>\n
        8.      On the side of the plaintiffs the 6th plaintiff was<\/p>\n
examined as P.W.1 and Exts.A1 to A4 were got marked.<\/p>\n
On the side of the defendants the 3rd defendant was<\/p>\n
examined as DW1 and Exts. B1 to B10 were got marked.<\/p>\n
A.S. No. 563 of 1999
\nand
\nR.F.A. 43 of 2008                     -:10:-<\/span><\/p>\n
        9.      The learned Subordinate Judge, after trial as,<\/p>\n
per        judgment and decree dated 8-1-1999 passed a<\/p>\n
preliminary decree for partition as follows:-<\/p>\n
            i) The plaint schedule properties will be divided by metes and
\n            bounds into 15 shares.\n<\/p><\/blockquote>\n
<\/blockquote>\n
            ii) Defendants 1 to 7 and plaintiffs 2 to 8 are entitled to one
\n            share each.    Additional defendants 9 to 14       together are
\n            entitled to one share.\n<\/p><\/blockquote>\n
<\/blockquote>\n
            iii)   The plaintiffs will be put in possession of their joint
\n            7\/15 share.\n<\/p><\/blockquote>\n
<\/blockquote>\n
            iv) The fifth defendant will be put in possession of her share.<\/p>\n<\/blockquote>\n
            v)     The plaintiffs and fifth defendant are allowed to realise
\n            their share of income out of the shares of the other co-owners
\n            who will be liable proportionate to their shares.<\/p>\n<\/blockquote>\n
            vi) The quantum of the share of income will be decided        in
\n            the final decree proceedings.<\/p>\n<\/blockquote>\n
            vii) The costs shall come out of the estate.\n<\/p><\/blockquote>\n
                      The case is adjourned sine die”.<\/p><\/blockquote>\n
        It is the said preliminary judgment and decree which<\/p>\n
A.S. No. 563 of 1999
\nand
\nR.F.A. 43 of 2008                -:11:-<\/span><\/p>\n
are assailed in these appeals.\n<\/p>\n
        10. I heard Advocate Sri.        T.K. Venugopalan the<\/p>\n
learned counsel appearing for the appellants in A.S.<\/p>\n
563\/99, Advocate Sri. N.K. Subramonian , the learned<\/p>\n
counsel appearing for the appellants in R.F.A. 43 of 2008<\/p>\n
and Advocate Sri. Charles the learned counsel appearing<\/p>\n
for the respondents\/plaintiffs.\n<\/p>\n
  ARGUMENTS OF THE CONTESTING DEFENDANTS<\/p>\n
        11. On behalf of the appellants in the two appeals the<\/p>\n
following submissions were made before me in support of<\/p>\n
the appeals:-\n<\/p>\n
        An extent of 1.56 acres of land including the plaint A<\/p>\n
schedule item No. 1 admeasuring 70 < cents belonged to<\/p>\n
Andippillil Krishnan Menon, a member of the plaintiff's<\/p>\n
tarvad.          The said property was gifted by Krishna Menon<\/p>\n
in favour of the following 11 members of the tarwad:-<\/p>\n
             i)    Madhavi Amma\n\n             ii)   Ravunni Nair\n\nA.S. No. 563 of 1999\nand\nR.F.A. 43 of 2008              -:12:-<\/span>\n\n             iii) Ayyappa Menon\n\n             iv)   Parameswara Menon\n\n             v)    Damodara Menon @ Govinda Menon\n\n             vi)   Raghava Menon\n\n             vii) Parukutty Amma\n\n             viii) Narayani Amma (D1)\n\n             xi)   Karunakara Menon (D8)\n\n             x)    Neelakanda Menon\n\n             xi)   Ammukutty Amma (D7)\n\n<\/pre>\n
        The above gift was not in favour of any tavazhi but to<\/p>\n
the named donees who were tenants -in-common.            The<\/p>\n
plaint A schedule item No. 1 is in the erstwhile Cochin<\/p>\n
area. In the case of such a gift, even if both the donor as<\/p>\n
well as donees are Marumakkathayees, contrary to the<\/p>\n
views of the Madras and Travancore High Courts, the<\/p>\n
Cochin High Court has always held that the donees take<\/p>\n
the properties as co-owners or tenants-in-common. (See<\/p>\n
Kalianikutty Amma v. Devaki Amma<\/a> – 1950 KLT 705<\/p>\n
A.S. No. 563 of 1999
\nand
\nR.F.A. 43 of 2008             -:13:-<\/span><\/p>\n
F.B.)          Among the aforesaid 11 persons who were co-<\/p>\n
owners in respect of the plaint A schedule item No. I,<\/p>\n
Madhavi Amma and Ravunni Nair died. O.S.              77\/1125<\/p>\n
M.E. (corresponding to the year 1950) was a suit filed by<\/p>\n
Ayyappa Menon referred to above before the Anjikaimal<\/p>\n
District Court seeking partition of the aforesaid property.<\/p>\n
The surviving 8 co-owners were the defendants in the said<\/p>\n
suit. Ext.B9 is the preliminary judgment dated 11-8-1950<\/p>\n
passed in the said suit. Pending the said suit the parties<\/p>\n
compromised and executed Ext.A1 partition deed dated 1-<\/p>\n
11-1950. Ext.B7 compromise petition dated 15-11-1950<\/p>\n
was also filed before Court.       Ext.B8 final judgment  and<\/p>\n
Ext.B10 final decree dated 17-11-1950 were passed by the<\/p>\n
court recording the compromise. Ext.B6 is the plaint in<\/p>\n
O.S. No. 77 of 1925 referred to above. In the said suit<\/p>\n
filed by Ayyappa Menon it was alleged that the property<\/p>\n
was purchased by the 11 co-owners referred to above and<\/p>\n
that defendants 1 to 3 therein viz., Parameswara Menon,<\/p>\n
A.S. No. 563 of 1999
\nand
\nR.F.A. 43 of 2008               -:14:-<\/span><\/p>\n
Damodara Menon @ Govinda Menon and Raghava Menon<\/p>\n
were mismanaging the property and were creating<\/p>\n
encumbrances over the property by mortgaging the same<\/p>\n
in favour of strangers and 3rd defendant Raghava Menon<\/p>\n
was          fraudulently getting back the property from the<\/p>\n
mortgagee.          It was pending the  said suit that Ext.A1<\/p>\n
partition deed was executed as per which Ayyappa Menon<\/p>\n
who was the plaintiff therein was allotted property worth<\/p>\n
Rs. 150\/- as branch No. I, Parameswara Menon was<\/p>\n
allotted property worth Rs. 200\/- as branch No. II, Govinda<\/p>\n
Menon was allotted property worth Rs. 200\/- as branch No.<\/p>\n
III, Raghava Menon was allotted property worth Rs. 400\/-<\/p>\n
as branch No. IV and Parukutty Amma and her children<\/p>\n
were allotted the present A schedule item No. I i.e.70 <<\/p>\n
cents worth Rs. 150\/- as branch No. V. The B schedule to<\/p>\n
Ext.A1 partition deed enumerates the debts. It says that a<\/p>\n
sum of Rs. 300\/- payable to Raghava Menon by virtue of<\/p>\n
Ext.A4 mortgage deed of 1120 M.E. is allotted to Raghava<\/p>\n
A.S. No. 563 of 1999
\nand
\nR.F.A. 43 of 2008            -:15:-<\/span><\/p>\n
Menon. B schedule to Ext.A1 further shows that a sum of<\/p>\n
Rs. 150\/- expended by Ayyappa Menon for conducting<\/p>\n
Ext.B1 suit is allotted to him and Rs. 31\/- is allotted to him<\/p>\n
towards payment made to the jenmi Devaswom and Rs.<\/p>\n
324\/- and Rs. 95\/- to the children of Ayyappa Menon due<\/p>\n
under a decree.        Ext.A4 is the mortgage executed<\/p>\n
dishonestly by Parameswara Menon, Govinda Menon and<\/p>\n
Madhavi Amma as alleged in Ext.B6 plaint. Ext.A4 recites<\/p>\n
that Parameswara Menon and two others are executing<\/p>\n
the mortgage for and on behalf of the tarvad. By virtue of<\/p>\n
Secs. 53 and 54 of the Cochin Nair Act , written consent of<\/p>\n
the major members of the tarvad          was necessary for<\/p>\n
alienating the tarvad property by way of mortgage. No<\/p>\n
such written consent had been obtained.             So Ext.A4<\/p>\n
mortgage was invalid and not binding on the tarvad. That<\/p>\n
was the reason why the mortgage debt under Ext.A4 was<\/p>\n
not allotted to the 5th branch but to Raghava Menon.<\/p>\n
From the very fact that the other family members were not<\/p>\n
A.S. No. 563 of 1999
\nand
\nR.F.A. 43 of 2008              -:16:-<\/span><\/p>\n
made liable for the debts, it is clear that Ext.A4 mortgage<\/p>\n
was one executed dishonestly and not        on behalf of the<\/p>\n
tarvad. The present suit is filed 43 years after Ext.A1. If as<\/p>\n
a matter of fact the plaint A schedule item No. I was a<\/p>\n
tavazhi property, Padmavathy Amma, the mother of<\/p>\n
plaintiffs 2 to 8 who died in the year 1966 would have<\/p>\n
claimed partition. She not only did not claim partition but<\/p>\n
was not allotted any share in Ext.B3 partition dated 28-10-<\/p>\n
1981.         Similarly, the plaint A schedule   item No. 2<\/p>\n
altogether          admeasuring  3.51  acres   belonged     to<\/p>\n
Kandangattu tarwad of which Sankaran          Padmanabhan,<\/p>\n
the husband of Parukutty Amma was a member. After the<\/p>\n
death of Padmanabhan his half right devolved on his<\/p>\n
widow Parukutty Amma and children and the other half<\/p>\n
right to his mother Parvathy Amma. The said Parvathi<\/p>\n
Amma gave a gift of her half right to Parukutty Amma<\/p>\n
and her children as per document No. 3177\/1096 of S.R.O.,<\/p>\n
Alangad which was produced before the court below on 2-<\/p>\n
A.S. No. 563 of 1999
\nand
\nR.F.A. 43 of 2008             -:17:-<\/span><\/p>\n
12-1996 but was not marked and has been marked in this<\/p>\n
appeal as Ext.B11. Ext.A2 is only a right to encumber the<\/p>\n
property for 630\/- rupees given as a usufructury mortgage<\/p>\n
by Parvathy Amma to Parukutty Amma and her children.<\/p>\n
Since Sec. 22 of the Travancore Nair Act, 1100 M.E. as per<\/p>\n
which a gift or bequest by a Marumakkathayee husband to<\/p>\n
his wife and children will enure to the puthravakasam<\/p>\n
tavazhi of his wife and children has no application neither<\/p>\n
document No. 3177\/1096 nor Ext.A2 can be treated as an<\/p>\n
acquisition by the tavazhi of Parukutty Amma so as to<\/p>\n
enure to the subsequently born members of the said<\/p>\n
tavazhi. Parvathi Amma who is the donor under document<\/p>\n
No. 3177\/1096 M.E. and the mortgagor under Ext.A2 not<\/p>\n
being a father or husband the property dealt with under<\/p>\n
these        documents will not enure to the puthravakasam<\/p>\n
thavazhi of Parukutty Amma and her children.           The<\/p>\n
property will only enure to the named donees namely<\/p>\n
Parukutty Amma , the first defendant Narayani Amma, 7th<\/p>\n
A.S. No. 563 of 1999
\nand
\nR.F.A. 43 of 2008             -:18:-<\/span><\/p>\n
defendant          Ammukutty Amma     and   8th   defendant<\/p>\n
Karunakara Menon. The finding recorded by the court<\/p>\n
below that plaint A schedule item No. 2 enured to the<\/p>\n
tavazhi of Parukutty Amma is, therefore, unsustainable. As<\/p>\n
per Ext.B3 partition deed dated 28-10-1981, Narayani<\/p>\n
Amma the grandmother of plaintiffs 2 to 8 was allotted 12<\/p>\n
= cents from plaint A schedule item No. I and 63 cents in<\/p>\n
the property comprised in Sy. No. 691\/2 of plaint schedule<\/p>\n
item No. 2 and 12 cents in the property comprised in Sy.<\/p>\n
Nos. 690\/I C of plaint A schedule item No. 2.     The first<\/p>\n
defendant had gifted certain items to her daughter the 2nd<\/p>\n
defendant as per Ext.B4 sale deed of the year 1993. From<\/p>\n
out of the said property the 2nd defendant sold 6.5 cents to<\/p>\n
the 17th defendant as per Ext.B5 sale deed dated 20-1-<\/p>\n
1993. Likewise, the 8th defendant was allotted 45 < cents<\/p>\n
from the plaint A schedule item No. 1 and 2.03 acres from<\/p>\n
plaint A schedule item No. 2 as per Ext.B3 partition. He<\/p>\n
had sold 10 cents out of the property allotted to him and<\/p>\n
A.S. No. 563 of 1999
\nand
\nR.F.A. 43 of 2008             -:19:-<\/span><\/p>\n
comprised in Sy. No. 691\/2 to defendants 15 and 16<\/p>\n
(husband and         wife) as per document No. 3107\/1989<\/p>\n
S.R.O. Edappally. Merely because plaint A schedule item<\/p>\n
No. 2 is given to Parukutty Amma and her children it<\/p>\n
cannot be held that the mortgage enures to the share of<\/p>\n
the tavazhi of Parukutty Amma so as to entitle plaintiffs 2<\/p>\n
to 8 to claim a share.       In (Kunju Ponnamma Gouri<\/p>\n
Amma v. Parvathi Amma<\/a> – 1969 KLR 902) it has been<\/p>\n
held that the Ist defendant therein and her two minor<\/p>\n
children who were the other members of her tavazhi to<\/p>\n
whom properties were allotted on per capita basis and<\/p>\n
included under one schedule would take the properties<\/p>\n
were allotted on per capita basis and     included under<\/p>\n
one schedule would take the properties as tenants -in-<\/p>\n
common and that the properties would not enure to the<\/p>\n
tavazhi. There is no presumption that properties acquired<\/p>\n
by a junior member are tarvad properties. (See Kalliani<\/p>\n
Amma v. Rugmini – 1999 (3) KLT 98). It is only if the<\/p>\n
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tarvad is possessed of sufficient nucleus with which the<\/p>\n
properties could have been acquired and the acquisition<\/p>\n
was made utilising the nucleus, can there               be a<\/p>\n
presumption that the acquisition would enure to the tarvad<\/p>\n
(See Chenthamarakshan v. Kondath Damodaran – ILR<\/p>\n
1970 (Kerala) 65).        In case, this Court upholds    the<\/p>\n
preliminary decree for partiion, since the impugned<\/p>\n
transfers were effected after 1-12-1976 they were not void<\/p>\n
attracting the decision of the Full Bench reported in<\/p>\n
Ammalu Amma v. Lakshmy Amma<\/a> – 1966 KLT 32<\/p>\n
(FB).         Hence, in the  event of partition 10      cents<\/p>\n
purchased by D15 and 16 from D8 may be allotted to D8<\/p>\n
and 6.5 cents purchased by D17 from D2 may be allotted to<\/p>\n
D2 or his son D6 so that the transferees can work out their<\/p>\n
equities in the final decree proceedings. Eventhough the 13th<\/p>\n
defendant had pleaded adverse possession and limitation, the<\/p>\n
court below has not recorded any finding in that behalf.<\/p>\n
                     JUDICIAL RESOLUTION<\/p>\n
        12. I am afraid that I cannot agree with the above<\/p>\n
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submissions made on behalf of the appellants.<\/p>\n
        13. Admittedly      the      parties   belong    to     a<\/p>\n
Marumakkathayam tarvad by name Andippillil of Ponnurunni<\/p>\n
desom in Poonithura Village of Kanayannoor Taluk in<\/p>\n
Ernakulam District. . Item I of plaint A schedule is situated in<\/p>\n
Ponnurunni Desom and is known as Vadakke Andipilli paramba<\/p>\n
having an extent of 70 < cents comprised in Survey No. 573\/1<\/p>\n
of Poonithura Village. Ponnurunni was admittedly a part        of<\/p>\n
the erstwhile Cochin State.         Plaint A schedule item No. 2,<\/p>\n
having a total extent of 3.51 acres is lying at Edappally in<\/p>\n
Ernakulam District       in two survey Nos. and is known as<\/p>\n
Kadangattu paramba. Edappally was admittedly a part of the<\/p>\n
erstwhile Travancore area.        1.03 acres out of the said 3.51<\/p>\n
acres is        comprised in survey No. 690\/C and 2.48 acres is<\/p>\n
comprised in Survey No. 691\/2 of Thrikkakara North Village and<\/p>\n
are lying contiguously.       For a better comprehension of the<\/p>\n
contentions of the parties, it is necessary to know the<\/p>\n
relationship between the parties. The common ancestor of the<\/p>\n
parties was one Nangeli Amma of Andipallil tarvad. Krishna<\/p>\n
Menon, Madhavi Amma, Ravunni Nair, and Parukutty Amma<\/p>\n
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were the children of Nangeli Amma. Parameswara Menon,<\/p>\n
Govinda Menon and Raghava Menon were the children of<\/p>\n
Madhavi Amma.          Karunakara Menon (D8),    Neelakanda<\/p>\n
Menon, Narayani Amma (D1) and Ammukutty Amma (D7) were<\/p>\n
the children of Parukutty Amma whose husband was one<\/p>\n
Sankaran Padmanabhan. Karunakara Menon died pending suit<\/p>\n
and his legal representatives are his widow the 9th defendant<\/p>\n
and childrens defendants 10 to 14. Kamalakshi @ Thankam<\/p>\n
(D2), Aravindakshi Amma (D3), Ramachandran (D4) and<\/p>\n
Padmavathy Amma are the children of first defendant Narayani<\/p>\n
Amma. Defendants 5 and 6 are the children of 2nd defendant,<\/p>\n
Kamalakshy Amma @ Thankam .           The 6th defendant died<\/p>\n
pending this appeal and respondents 12 and 13 in A.S. No.<\/p>\n
563 of 1999 are his legal representatives. The first<\/p>\n
plaintiff is the husband of Padmavathi Amma who died<\/p>\n
prior to the suit and plaintiffs 2 to 8 are her children.<\/p>\n
The following is the genealogy showing                   the<\/p>\n
relationship between the parties:-\n<\/p>\n
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                      GENEALOGY<\/p>\n
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While in the case of all the members of Andippillil tarvad<\/p>\n
there is evidence either oral or documentary to fix           their<\/p>\n
ancestry and lineage, in the case of Ayyappa Menon I have<\/p>\n
not been able to fix his position in the genealogy except<\/p>\n
that       he is admittedly a member of the tarvad. There was<\/p>\n
only a casual statement by DW1 Aravindakshy Amma to<\/p>\n
the effect that Ayyappa Menon was her uncle . But it is<\/p>\n
nobody’s case              that Ayyappa Menon      was the son of<\/p>\n
Parukutty Amma so as to become DW1’s uncle .<\/p>\n
        14.       I will first consider the nature and character of<\/p>\n
plaint A schedule item No. I and the rival claims regarding<\/p>\n
the said item.           As mentioned earlier the said     item is<\/p>\n
situated in Ponnurunni Desom of Poonithura Village and<\/p>\n
was part of the erstwhile Cochin State. The document as<\/p>\n
per which this item was acquired has not been produced<\/p>\n
before court by either of the parties. But there is intrinsic<\/p>\n
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evidence to show that this item was gifted by Krishna<\/p>\n
Menon of Andippillil Tarvad in favour of 11 members of<\/p>\n
the very same tarvad. Ext. B6 plaint in O.S. 77\/1125 M.E.<\/p>\n
makes mention of the above gift deed as document No.<\/p>\n
1223\/1099 M.E. (corresponding to the year 1924).<\/p>\n
According to the appellants, this was an acquisition by 11<\/p>\n
co-owners and the property was a co-ownership property.<\/p>\n
First of all, as mentioned earlier the document of<\/p>\n
acquisition is not         before Court.     Without having the<\/p>\n
opportunity to consider the terms and conditions and the<\/p>\n
recitals in the aforesaid gift deed it cannot be said that the<\/p>\n
property was co-ownership property or even tavazhi<\/p>\n
property.         But then in Ext.B6 plaint in O.S. 77\/1125 M.E.<\/p>\n
filed by one of the donees under the aforesaid document<\/p>\n
against the surviving 8 donees thereto, it is alleged that<\/p>\n
on the death of Madhavi Amma and Ravunni Nair (the<\/p>\n
two deceased co-donees)            their rights devolved on the<\/p>\n
surviving donees. If it was a co-ownership property then<\/p>\n
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the rights of Ravunni Nair and Madhavi Amma would not<\/p>\n
have reverted to the surviving donees but would have<\/p>\n
devolved on the personal heirs of Madhavi Amma and<\/p>\n
Ravunni Nair. It was during the pendency of O.S. 77\/1125<\/p>\n
instituted by Ayyappa Menon against the other donees<\/p>\n
under the gift deed of 1099 seeking a partition and<\/p>\n
separate possession of the 1.56 acres of land including the<\/p>\n
present plaint A schedule item No. I scheduled thereto, that<\/p>\n
the parties to that suit came to a compromise.        They<\/p>\n
executed Ext.A1 partition deed dated 1-11-1950 subsequent<\/p>\n
to the preliminary decree passed on 11-8-1950 as<\/p>\n
evidenced by Ext.B9 preliminary judgment.           Ext.B7<\/p>\n
compromise petition dated 15-9-1950 was filed stating<\/p>\n
that the parties have settled the dispute by executing<\/p>\n
Ext.A1 partition deed. Accordingly,    Ext.B8 and Ext. B10<\/p>\n
final judgment and final decree dated 17-11-1950        was<\/p>\n
passed recording the compromise.       The executants     to<\/p>\n
Ext.A1 partition deed are :\n<\/p>\n
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                  i) Ayyappa Menon<\/p>\n
                  ii) Parameswara Menon<\/p>\n
                  iii)Govinda Menon<\/p>\n
                  iv) Raghava Menon<\/p>\n
                  v) Karunakara Menon<\/p>\n
                  vi) Neelakanda Menon<\/p>\n
                  vii)Parukutty Amma<\/p>\n
                  viii)Narayani Amma<\/p>\n
                  ix) Ammukutty Amma<\/p>\n
The rank of the executants to Ext.A1 partition deed is<\/p>\n
shown above their names in the genealogy given above.<\/p>\n
The 1.56 acres of property including the present A schedule<\/p>\n
item No. I (admeasuring 70 < cents) was divided and<\/p>\n
allotted to five branches.        Ayyappa Menon, Parameswara<\/p>\n
Menon, Govinda Menon and Raghava Menon constituted<\/p>\n
branch Nos. 1 to 4. Parukutty Amma and her children<\/p>\n
namely Karunakara Menon, Neelakanda Menon , Narayani<\/p>\n
Amma and Ammukutty Amma together constituted branch<\/p>\n
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No. 5. The plaint A schedule item No. 1 was allotted to the<\/p>\n
5th branch, that is, Parukutty Amma and her children.      It<\/p>\n
is pertinent to note that the name of this property itself is<\/p>\n
Vadakke Andippillil       paramba. Even assuming that this<\/p>\n
property was a          co-ownership property, when it was<\/p>\n
allotted in partition       to the 5th branch consisting of<\/p>\n
Parukutty Amma and her children, then in the hands of the<\/p>\n
progeny of Parukutty Amma the property became<\/p>\n
impressed with tarvad characteristics.<\/p>\n
        16.      Under the Hindu Mithakshara Law the share<\/p>\n
which a co-parcener obtains on        partition of ancestral<\/p>\n
property as regards his male issues is also ancestral in<\/p>\n
character and they take an interest in such property by<\/p>\n
birth whether they are in existence at the time of the<\/p>\n
partition or are born subsequently.      The property in his<\/p>\n
hands has the incidents of right by birth and suvivorship.<\/p>\n
The same principle has always been applied in the case of<\/p>\n
a      Marumakkathayee       female   obtaining property on<\/p>\n
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partition of ancestral property with the only difference that<\/p>\n
members in a joint Hindu Marumakkathayam family<\/p>\n
descent lineally from a common ancestress and by virtue<\/p>\n
of the matrilineal system of inheritance female members<\/p>\n
and their female descendants enjoy the status analogous<\/p>\n
to that of co-parceners under the Hindu Marumakkathayam<\/p>\n
Law.            But the three degree rule of  Mitakshara law<\/p>\n
founded on religious obligation is not applicable to<\/p>\n
Marumakkathayam law.                 Thus, the property of a<\/p>\n
Marumakkathayam tarvad enures for the benefit of its<\/p>\n
members who may be added in the future by births into<\/p>\n
the family in the female line, the new members getting<\/p>\n
forthwith a right by birth in the property. Therefore,<\/p>\n
under         the   customary  Marumakkathayam     law      a<\/p>\n
subsequently conceived or born child gets a right by birth<\/p>\n
in the property obtained by its mother        by way of her<\/p>\n
separate share in the partition of her ancestral properties.<\/p>\n
In other words, after partition of the ancestral property the<\/p>\n
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share allotted to a female in her hands continues to retain<\/p>\n
its character as tarvad property. Statutory intervention<\/p>\n
into the customary Marumakkathayam Law by the Madras<\/p>\n
Marumakkathayam Act, 1933, the Travancore Nair Act,<\/p>\n
1100 M.E. , the Cochin Nair Act, 1113 M.E. etc. have not<\/p>\n
effected any change in the prestine Marumakkathayam<\/p>\n
law. See Mary v. Bhasura – 1967 KLT 430 – F.B.,<\/p>\n
Parameswaran Pillai v. Ramakrishna Pillai<\/a> – 1954 KLT<\/p>\n
862 FB. Where property has been allotted to a natural<\/p>\n
group consisting of a Marumakkathayam mother and her<\/p>\n
children, they take such property as tavazhi property with<\/p>\n
all its incidents. (See Nullikkodan v. Ayisumma<\/a> – 2002<\/p>\n
(3) KLT 883). In Ext.B6 plaint O.S. 77\/1125 M.E. filed<\/p>\n
before Anjikaimal District Court by Ayyappa Menon against<\/p>\n
the other eight surviving donees under the gift deed of<\/p>\n
1099 M.E. it is       averred that on the death of Madhavi<\/p>\n
Amma and Ravunni Nair, their share over the property<\/p>\n
devolved on the remaining 9 donees. If the 11 persons who<\/p>\n
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got the property from their senior member under the gift<\/p>\n
deed were tenants -in- common then, the interest of two of<\/p>\n
the deceased donees should have devolved on            their<\/p>\n
personal heirs by virtue of Sec. 27 of the Cochin Nair Act,<\/p>\n
1113. From the very fact that their shares were treated as<\/p>\n
devolved on the remaining 9 co-donees, it is crystal clear<\/p>\n
that even in the year 1950, the parties treated the property<\/p>\n
as tavazhi property. Ext.A 4 mortgage with regard to plaint<\/p>\n
A schedule item No. 1 executed by three senior members<\/p>\n
of the tarvad also recites that the property is their tarvad<\/p>\n
property. To crown all DW1 Aravindakshi Amma during<\/p>\n
her cross-examination clearly admitted as follows:-<\/p>\n
                        ?   (Q)<\/p>\n
                      . A).       Ext. A1<\/p>\n
                              .\n<\/p><\/blockquote>\n
\n
                       .\n<\/p><\/blockquote>\n
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        Thus, the only witness examined on the side of the<\/p>\n
contesting defendants has admitted that gifts given by the<\/p>\n
uncle to his own nephews and nieces were to enure to the<\/p>\n
tavazhi and that in Ext.A1 partition that took place in the<\/p>\n
Andippillil tarvad,     Parukutty Amma and her children<\/p>\n
separated as one tavazhi. Such being the position, it is<\/p>\n
futile for the appellants  to contend that plaint A schedule<\/p>\n
item No. 1 allotted     in partition to Parukutty Amma and<\/p>\n
her children does not enure to the tavazhi of Parukutty<\/p>\n
Amma and her descendants according to the tenets of the<\/p>\n
prestine Marumakkathayam Law. The finding recorded by<\/p>\n
the court below in this regard does not call for any<\/p>\n
interference.\n<\/p>\n
        15. What now survives for consideration is the nature<\/p>\n
of acquisition of plaint A Schedule item No.2. Ext.A2 is<\/p>\n
the usufructory mortgage dated 7th Edavom 1096 M.E.<\/p>\n
corresponding to the      year 1921 executed by Parvathy<\/p>\n
Amma, the mother-in-law of Parukutty Amma in respect of<\/p>\n
A.S. No. 563 of 1999
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the plaint A schedule item No. 2 known as Kadangattu<\/p>\n
Paramba . Ext.A2 recites that the consideration for the<\/p>\n
document proceeded from Parukutty Amma.                    The<\/p>\n
document is in favour of Parukutty Amma and her minor<\/p>\n
children. This mortgage was never redeemed by Parvathy<\/p>\n
Amma.            Under the   Prestine Marumakkathayam Law<\/p>\n
acquisition of        a property in the name of    mother and<\/p>\n
children who form a natural group had always been<\/p>\n
presumed to be on behalf of the tavazhi and even the<\/p>\n
existence of an original nucleus was           not  considered<\/p>\n
essential.        (Vide Karthiyayini v. Parukutty – AIR 1957<\/p>\n
Kerala 27, Lakhsmi v. Anandan – ILR 1982 (2) Kerala<\/p>\n
377, Sarojini Amma v. Aboobacker – 1986 KLT 944<\/p>\n
and P. Kamalam and Others v. Devaki and Others<\/a> –<\/p>\n
2006 (2) KLT 499).            The position is the same where a<\/p>\n
Marumakkathayee male makes a gift              in favour of his<\/p>\n
nephews or          nieces eventhough    there is   no statutoy<\/p>\n
presumption in that behalf            – See Tazhath Valappil<\/p>\n
A.S. No. 563 of 1999
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Prasanth v. Kalliani and Others<\/a> – 2007 (2) KLT 992.<\/p>\n
The statutory intervention in the from of Section 44 of the<\/p>\n
Travancore Nair Act corresponding to Sec. 74 of the<\/p>\n
Cochin Nair Act had not made any inroads into the rules of<\/p>\n
customary Marumakkathayam law which stands unaffected<\/p>\n
by the presumptions engrafted into the aforementioned<\/p>\n
enactments.         In the decision reported in 1969 KLR 902<\/p>\n
(supra) cited on behalf of the appellants, the intention that<\/p>\n
the gift ensured to the named donees only was gathered<\/p>\n
from the recitals in the document. Moreover, that decision<\/p>\n
is in line with the dissenting view of the learned Judge<\/p>\n
himself in the decision reported in 1967 KLT 430 (FB)<\/p>\n
(supra). The binding precedent is that of the Full Bench.<\/p>\n
Thus, it is not necessary that the gift or bequest in favour<\/p>\n
of the wife and children should invariably be made by a<\/p>\n
Marumakkathayee husband so as to draw the presumption<\/p>\n
that such gift or bequest enures to the puthravakasam<\/p>\n
tavzhi of such wife.      Any acquisition by a natural group<\/p>\n
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constituting a tavazhi as known to the Marumakkathayam<\/p>\n
law will get impressed with all the tavazhi characteristics<\/p>\n
and the children born through the female line will get a<\/p>\n
right by birth over such properties. (See Mary v. Bhasura<\/p>\n
Devi – supra).         DW1, the only witness examined on the<\/p>\n
side of          the contesting defendants has unequivocally<\/p>\n
admitted that plaint A schedule item No. 2 was obtained<\/p>\n
by the tavazhi of her maternal grandmother, Parukutty<\/p>\n
Amma. This is what she has deposed to :-<\/p>\n
                    ”\n<\/p><\/blockquote>\n
                                  “<\/p>\n
        16. As for document No. 3177 of 1096 marked in this<\/p>\n
appeal as Ext.B11, the same has really no connection<\/p>\n
whatsoever with the          property in question.  Plaint A<\/p>\n
schedule item No. 2 is not the property dealt with under<\/p>\n
Ext.B11 and, therefore, the argument of the contesting<\/p>\n
defendants based on Ext.B11             gift deed is  wholly<\/p>\n
untenable.          That is presumably the reason why this<\/p>\n
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document although produced before the Court below was<\/p>\n
not attempted to be marked on the side of the defendants.<\/p>\n
Since the acquirers         under Ext.A2 mortgage namely<\/p>\n
Parukutty Amma and her minor children formed a natural<\/p>\n
group, the property would enure to all the members of the<\/p>\n
tavazhi of Parukutty Amma.            It is pertinent in this<\/p>\n
connection to note that in Ext.B3 partition dated 28-10-<\/p>\n
1981 as per which Karunakara Menon , Narayani Amma<\/p>\n
and Ammukutty Amma are alleged to have divided the<\/p>\n
property to the exclusion of the other tavazhi members<\/p>\n
including the plaintiffs, the title which is traced to plaint A<\/p>\n
schedule item No. 2 is Ext.A2 mortgage and not Ext.B11<\/p>\n
gift deed. This also re-inforces the plaintiffs’ case that this<\/p>\n
item was acquired by Parukutty Amma and her children as<\/p>\n
per Ext.A2 mortgage. In Gopalan v. Rajendran Nair<\/a> –<\/p>\n
2000 (1) KLT 765 it has been held that a gift by a<\/p>\n
brother to his        sister to whom children      were born<\/p>\n
subsequently would not attract Sec. 22 of the Travancore<\/p>\n
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Nair Act 1101 M.E. and that it would enure to the tavazhi<\/p>\n
of the donee sister. I, therefore, endorse the conclusion<\/p>\n
reached by the court below with regard to the plaint A<\/p>\n
schedule item No.2 as well.\n<\/p>\n
        17. Now coming to the plea of adverse possession<\/p>\n
and limitation raised by the 13th defendant who is one of<\/p>\n
the sons of 8th defendant Karunakara Menon, apart from<\/p>\n
the fact no plea of ouster had been raised, no issue was<\/p>\n
also framed by the court below in this behalf. The issues<\/p>\n
were framed one decade ago and no exception has been<\/p>\n
taken by the 13th defendant for the omission in framing an<\/p>\n
issue in this behalf. Moreover, in the light of the decisions<\/p>\n
of the Apex Court in E.T. Munichikkanna Reddy and<\/p>\n
Others v. Revamma and Others<\/a> – (2007) 6 SCC 59<\/p>\n
and Hemaji Waghaji Jat v. Bhikhabhai Khengarbhai<\/p>\n
Harijan and Others         AIR<\/a> 2009 SC 103 , the 13th<\/p>\n
defendant cannot succeed on the said plea. All that apart,<\/p>\n
in Ext.B3 partition, the title over the property is traced to<\/p>\n
A.S. No. 563 of 1999
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Ext.B2 usufructory mortgage.           Ext.B3 partition was<\/p>\n
entered into only on 28-10-1981 and the present suit has<\/p>\n
been filed within 12 years of Ext.B3 partition.       Hence,<\/p>\n
there cannot be any question of adverse possession or<\/p>\n
ouster.\n<\/p>\n
                 WHAT IS THE CORRECT SHARE ?\n<\/p>\n
               MEMORANDA OF CROSS OBJECTIONS<\/p>\n
                         18 AND 19 OF 2009<\/p>\n
        18. In both these appeals, the plaintiffs have filed<\/p>\n
cross-objections taking exception to the total shares<\/p>\n
arrived at by the court below.            According to the<\/p>\n
plaintiffs\/cross objectors there were altogether 16 sharers<\/p>\n
as on 1-12-1976 when the Kerala Joint Hindu Joint Family<\/p>\n
System (Abolition) Act, 1975 came into force. Those<\/p>\n
sharers are:-\n<\/p>\n
                i) Karunakara Menon (D8)<\/p>\n<\/blockquote>\n
                ii) Narayani Amma (D1)<\/p>\n<\/blockquote>\n
                iii) Ammukutty Amma (D7)<\/p>\n
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                iv) Kamalakshi @ Thankam (D2)<\/p>\n<\/blockquote>\n
                v) Aravindakshi Amma (D3)<\/p>\n<\/blockquote>\n
                vi) Ramachandran (D4)<\/p>\n<\/blockquote>\n
                vii) Padmavathy Amma<\/p>\n<\/blockquote>\n
                viii)Balan (D6)<\/p>\n<\/blockquote>\n
                ix) Radha (D5)<\/p>\n<\/blockquote>\n
                x)    2nd plaintiff<\/p>\n<\/blockquote>\n
                xi) 3rd Plaintiff<\/p>\n<\/blockquote>\n
                xii) 4th plaintiff<\/p>\n<\/blockquote>\n
                xiii) 5th plaintiff<\/p>\n<\/blockquote>\n
                xiv) 6th plaintiff<\/p>\n<\/blockquote>\n
                xv) 7th plaintiff<\/p>\n
                xvi) 8th plaintiff<\/p>\n
The court below, however, directed division of the<\/p>\n
properties into 15 shares only. In my view the court below<\/p>\n
was right in fixing the total shares at 15. Plaintiffs 2 to 8<\/p>\n
were not justified in treating their mother Padmavathy<\/p>\n
Amma as a sharer who was alive on 1-12-1976. She had<\/p>\n
A.S. No. 563 of 1999
\nand
\nR.F.A. 43 of 2008              -:40:-<\/span><\/p>\n
died in the year 1966.        If so, the Memoranda of Cross<\/p>\n
Objections filed in these appeals are without any merit and<\/p>\n
are accordingly dismissed.<\/p><\/blockquote>\n
        19. The only other surviving question is regarding<\/p>\n
the assignments        effected by defendants 2 and 8 with<\/p>\n
regard to portions of the 2.48 acres of land which is a part<\/p>\n
of plaint A schedule item No. 2. As per Ext.B5 sale deed<\/p>\n
dated 20-1-1993 the 2nd defendant assigned 6.5 cents out<\/p>\n
of 2.48 acres to the 17th defendant who has constructed a<\/p>\n
two storied building by availing of a loan. As per I.A. No.<\/p>\n
166 of 2009         D17 has produced the loan agreement and<\/p>\n
the site plan        pertaining to the 6 =    cents of land.<\/p>\n
Likewise, defendants 15 and 16 who are husband and wife<\/p>\n
had purchased 10 cents of land from out of the 2.48 acres<\/p>\n
from the 8th defendant        as per a sale deed dated 24-4-<\/p>\n
1989. They have constructed a single storied building in<\/p>\n
the 10 cents of land. Defendants 15 and 16 have filed I.A.<\/p>\n
No. 165 of 2009 producing the sale deed in their favour<\/p>\n
A.S. No. 563 of 1999
\nand
\nR.F.A. 43 of 2008                -:41:-<\/span><\/p>\n
and the site plan pertaining to the building.         The Court<\/p>\n
below treated the aforesaid sale deeds as null and void on<\/p>\n
the ground that they were alienations of the undivided<\/p>\n
share by members of an undivided              Marumakkathayam<\/p>\n
family.         Reliance in this       connection was made to<\/p>\n
Antherman v. Kannan<\/a> – 1960 KLT 1313                   (FB) and<\/p>\n
Ammalu Amma v. Lakshmi Amma<\/a> – 1966 KLT 32 F.B.<\/p>\n
But then, the lower Court failed to note that as on 1-12-<\/p>\n
1976 there was a statutory partition of all Joint Hindu<\/p>\n
Families in Kerala with the coming into force of the Kerala<\/p>\n
Joint Hindu Family System (Abolition)Act, 1975 converting<\/p>\n
the joint tenancies            into tenants-in-concern.     The<\/p>\n
alienations in this case were after 1-12-1976. Hence, there<\/p>\n
is nothing wrong in recognizing those alienations           qua<\/p>\n
the respective vendors and feeding the grant in favour of<\/p>\n
the alinees by estoppal                by invoking the principle<\/p>\n
discernible         from Sec. 43 of the Transfer of Property Act<\/p>\n
and allotting the portions transferred to the share of the<\/p>\n
A.S. No. 563 of 1999
\nand
\nR.F.A. 43 of 2008                          -:42:-<\/span><\/p>\n
transferors. As per the preliminary decree, both defendants 2<\/p>\n
and 8 are each entitled to 1\/15 shares over the 2.48 acres and<\/p>\n
that will work out to 16.53 cents per share.                   It is hardly<\/p>\n
necessary to mention that these assignees are entitled to<\/p>\n
equitable treatment at the hands of the court.                  Hence, the<\/p>\n
portions taken assignment of by D15 , D16 and D17 shall be<\/p>\n
allotted to the share of their respective assignors in equity in<\/p>\n
the final decree proceedings.                    Subject to the above, the<\/p>\n
preliminary decree passed by the court below is confirmed.<\/p>\n
         In the result, these appeals are dismissed confirming the<\/p>\n
preliminary decree passed by the court below subject to the<\/p>\n
equitable reservation to be made                       in the final decree<\/p>\n
proceedings in favour of D15 to D17, the assignees. No costs.<\/p>\n
The Memoranda of Cross Objections are also dismissed as<\/p>\n
indicated above.\n<\/p>\n
       Dated this the 27th day of August, 2009.<\/p>\n
                                                       V. RAMKUMAR,
\n                                                          (JUDGE)<\/p>\n
ani\/<\/p>\n
A.S. No. 563 of 1999
\nand
\nR.F.A. 43 of 2008             -:43:-<\/span><\/p>\n
                                               V. RAMKUMAR, J.\n<\/p>\n
                                    …………………………………..\n<\/p>\n
                                            A.S. No. 563 of 1999
\n                                                                        &
\n                                                 R.F.A. 43 of 2008
\n                                    …………………………………..<\/p>\n
                     Dated, this the 27th day of August 2009<\/p>\n
                                                         JUDGMENT<\/p>\n","protected":false},"excerpt":{"rendered":"
Kerala High Court Aravindakshi Amma vs Gopala Menon on 27 August, 2009 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. […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[8,21],"tags":[],"class_list":["post-3058","post","type-post","status-publish","format-standard","hentry","category-high-court","category-kerala-high-court"],"yoast_head":"\nAravindakshi Amma vs Gopala Menon on 27 August, 2009 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/aravindakshi-amma-vs-gopala-menon-on-27-august-2009\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Aravindakshi Amma vs Gopala Menon on 27 August, 2009 - 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