{"id":44327,"date":"2007-10-26T00:00:00","date_gmt":"2007-10-25T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/yyyyyshnan-vs-k-vaidhyanathan-on-26-october-2007-2"},"modified":"2015-01-26T19:29:52","modified_gmt":"2015-01-26T13:59:52","slug":"yyyyyshnan-vs-k-vaidhyanathan-on-26-october-2007-2","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/yyyyyshnan-vs-k-vaidhyanathan-on-26-october-2007-2","title":{"rendered":"Yyyyyshnan vs K.Vaidhyanathan on 26 October, 2007"},"content":{"rendered":"
Kerala High Court<\/div>\n
Yyyyyshnan vs K.Vaidhyanathan on 26 October, 2007<\/div>\n
       \n\n  \n\n  \n\n \n \n  IN THE HIGH COURT OF KERALA AT ERNAKULAM\n\nAS No. 182 of 2001()\n\n\n\n1. YYYYYSHNAN\n                      ...  Petitioner\n\n                        Vs\n\n1. K.VAIDHYANATHAN\n                       ...       Respondent\n\n                For Petitioner  :SRI.S.EASWARAN\n\n                For Respondent  :SRI.R.HARIKRISHNAN\n\nThe Hon'ble MR. Justice P.R.RAMAN\nThe Hon'ble MR. Justice V.K.MOHANAN\n\n Dated :26\/10\/2007\n\n O R D E R\n\n\n\n\n                  P.R.RAMAN & V.K.MOHANAN, JJ.\n\n                -------------------------------\n\n                          A.S.NO.182 OF 2001\n\n                --------------------------------\n\n                 Dated this the  26th  day of October, 2007\n\n\n                                   JUDGMENT\n<\/pre>\n
Raman, J.\n<\/p>\n<\/p>\n
       Plaintiffs   are   the   appellants.     Suit   was   one   for   declaration   and<\/p>\n
separate  possession  of the plaint  schedule properties. Originally there<\/p>\n
were 4 defendants in the suit.  During the pendency of the suit the 2nd<\/p>\n
defendant Sri K.Mahadevan died and his legal heirs were impleaded as<\/p>\n
additional defendants 5 to 7.  The suit was dismissed by the trial court,<\/p>\n
against which the present appeal is filed.\n<\/p>\n<\/p>\n
       2. The questions that arise for consideration in this appeal is (i)<\/p>\n
whether the plaint schedule properties are co-parcenary properties and<\/p>\n
if so, whether the plaintiffs acquired  right by birth and hence available<\/p>\n
for partition, (ii) whether the right if any of the plaintiffs extinguished<\/p>\n
by the release deed ( Ext.A5) executed by the 4th defendant, the father<\/p>\n
of the plaintiffs, (III) whether the suit is barred by limitation  and (iv)<\/p>\n
whether  defendants  1   to  3  and  5   to  7   perfected   their  title   by adverse<\/p>\n
possession.\n<\/p>\n<\/p>\n
       3.   The   material   averments   as   gathered   from   the   plaint   and   the<\/p>\n
                                             -2-<\/span><\/p>\n
A.S.No.182\/2001<\/p>\n
written statement filed by the parties which are relevant for answering the<\/p>\n
above questions may be briefly stated as follows:\n<\/p>\n<\/p>\n
       Plaint   A   schedule   property   consists   of   an   extent   of   10.08   acres.<\/p>\n
Plaint   B   schedule   property   consists   of   an   extent   of   3.500   cents.<\/p>\n
According to the plaintiff, plaint A schedule property originally belonged<\/p>\n
to one Sri Krishnayyan, Pazhayadath Puthenmadom, Thodupuzha and he<\/p>\n
was in possession and enjoyment of the same.   Krishnayyan had 3 sons,<\/p>\n
viz.,  Krishna Iyer, Narayana Iyer and Neelakanda Iyer.  Neelakanda Iyer<\/p>\n
died   long   ago   surviving   him     his   widow   Smt.Kaveri   Ammal   and   4<\/p>\n
daughters, viz., Parvathi, Lakshmi, Savithri and Thankamma and one son<\/p>\n
Hariharan.  Krishna Iyer died on 10\/6\/1971 and his wife Parvathy Ammal<\/p>\n
died in the year 1976.   Krishna Iyer and Parvathy Ammal had four sons,<\/p>\n
who are defendants 1 to 4.   Plaintiffs are two sons of the 4th defendant.<\/p>\n
During  the  life  time  of   Krishnayyan  plaint   A  schedule  properties  were<\/p>\n
allotted in favour of his eldest son, Krishna Iyer, who is the grandfather<\/p>\n
of   the   plaintiffs,   as   per   document   No.912   dated   24\/4\/1120   M.E.   of   the<\/p>\n
Sub Registry, Thodupuzha styled as a partition deed, produced as Ext.A1<\/p>\n
in  this   case.   In   respect   of   other   properties   excluding   plaint   A   schedule<\/p>\n
properties   Krishnayyan   executed   a   settlement   deed   as   per   document<\/p>\n
                                              -3-<\/span><\/p>\n
A.S.No.182\/2001<\/p>\n
No.3601 dated  5\/12\/1121 M.E. of Sub Registry, Thoudupuzha produced<\/p>\n
as   Ext.A2   in   this   case,   settling   the   properties   in   favour   of     his   sons;<\/p>\n
Krishna Iyer, Narayana Iyer and Neelakanda Iyer.  Since Neelakanda Iyer<\/p>\n
was no more at the time of such settlement deed, his legal representatives,<\/p>\n
his   widow   Kaveri   Ammal   and   children   Lakshmi,   Savithri,   Thankamma<\/p>\n
and   Hariharan   were   included   in   the   said   settlement   deed.     Parvathy,<\/p>\n
daughter   of     late   Neelakanda   Iyer   however   was   excluded   from   the<\/p>\n
settlement deed for the reason that she was married at that time.<\/p>\n
        4.   Plaint   A   schedule   properties   was   acquired   by   Krishna   Iyer.<\/p>\n
Krishna Iyer died on 10\/6\/1971 leaving his wife Parvathy Ammal and his<\/p>\n
children who are defendants 1 to 4.  According to the plaintiffs, they are<\/p>\n
therefore entitled to 1\/5th share  over the plaint schedule properties as per<\/p>\n
the   provisions   of   the   Hindu   Succession   Act,   1956.   Plaintiffs   and   their<\/p>\n
sister   Geetha   are   the   children   of   the   4th   defendant.     On   the   death   of<\/p>\n
Krishna Iyer, the 4th defendant is thus entitled to 1\/5th share over plaint<\/p>\n
A and B schedule properties.  The 4th defendant and the plaintiffs form a<\/p>\n
co-parcenary and hence entitled to 1\/5th share of the 4th defendant over<\/p>\n
the   plaint   schedule   items.     Even   otherwise   the   4th   defendant   and   the<\/p>\n
plaintiffs would form a joint family entitled to 1\/5th share over   paint A<\/p>\n
                                             -4-<\/span><\/p>\n
A.S.No.182\/2001<\/p>\n
and   B   schedule   properties.   According   to   the   plaintiffs,   they   were   away<\/p>\n
from Thodupuzha for their studies and recently before instituting the suit<\/p>\n
when they visited to the ancestral home at Thodupuzha, they noticed the<\/p>\n
activities   among   defendants   1   to   3   for   partition   of   plaint     A   schedule<\/p>\n
properties. The lst defendant is in possession of the plaint schedule items<\/p>\n
for and on behalf of the joint family.  Defendants 1 to 3 were evasive to<\/p>\n
the   various   enquiries   made   by   the   plaintiffs   regarding   their   attempt   of<\/p>\n
partition   among   themselves   of   the   plaint   schedule   items.     Hence,   they<\/p>\n
sent   a   letter   dated   21\/12\/1996   to   the   lst   defendant   to   inform   regarding<\/p>\n
their proposal and  whether the  plaintiffs  are allotted  any share.   To this<\/p>\n
the lst defendant replied saying that the schedule properties were owned<\/p>\n
and  possessed  by late  N.K.Krishna  Iyer absolutely and  hence  the  plaint<\/p>\n
schedule items are not joint family properties and the lst defendant is the<\/p>\n
Manager of the family.  It is stated that the schedule properties belonged<\/p>\n
to   the   defendants   and   Parvathy   Ammal,   and   during   her   life   time<\/p>\n
Paravathy Ammal joined the 4th defendant  to execute  a release deed as<\/p>\n
early as in 1972 and therefore there is nothing to be partitioned. It was for<\/p>\n
the first time that the plaintiffs then came to know from the reply of the<\/p>\n
release deed said to have been executed by the 4th defendant father along<\/p>\n
                                               -5-<\/span><\/p>\n
A.S.No.182\/2001<\/p>\n
with their mother, Parvathy Ammal and hence they made enquiries with<\/p>\n
the   Sub   Registra’s   Office   and   came   across   the   release   deed   as   also   the<\/p>\n
partition deed by which defendants 1 to 3 partitioned and allotted among<\/p>\n
themselves the plaint schedule properties.   Hence they obtained certified<\/p>\n
copies   of   these   documents.   Document   No.325   dated   8\/2\/1972   is   the<\/p>\n
release deed executed  by the 4th  defendant along with Parvathy Ammal<\/p>\n
in   favour   of   defendants   1   to   3.     This   document   is   marked   as   Ext.A5.<\/p>\n
Partition deed No.4588\/96 dated 23\/12\/1996 is marked as Ext.A6 in this<\/p>\n
case.  It is averred that 1\/5th share of  udukkoor rights over plaint A and<\/p>\n
B   schedule   properties   of   the   4th   defendant     and     Parvathy   Ammal<\/p>\n
purported to have  assigned in favour of defendants  1 to 3 as per Ext.A5.<\/p>\n
It is the case of the plaintiffs that the release deed No.325 dated 8\/2\/1972<\/p>\n
(Ext.A5)   and   the   partition   deed   No.4588   dated   23\/12\/1996   (Ext.A6)   to<\/p>\n
the   extent   they     purported   to   deal   with   the   share   of     plaint   A   and   B<\/p>\n
schedule properties are void abinitio and hence liable to be declared so by<\/p>\n
the court. According to them, on the  death of Krishna Iyer on 10\/6\/1971<\/p>\n
the   properties     devolved   on   his   legal   representatives,   the   defendant   as<\/p>\n
well as his widow Parvathy Ammal.  The 4th defendant being one of the<\/p>\n
sons   and   heir   of   Krishna   Iyer   is   entitled   to   1\/5th   share   over   the   plaint<\/p>\n
                                              -6-<\/span><\/p>\n
A.S.No.182\/2001<\/p>\n
schedule   items   and   plaint   A   schedule   property   in   the   hands  of   Krishna<\/p>\n
Iyer   is   a   co-parcenary   property   being   ancestral   in   nature;   obtained   by<\/p>\n
Krishna Iyer from his father Krishnayyan as per document No.912\/1120<\/p>\n
M.E. (Ext.A1). The 1\/5th share to which the 4th defendant was entitled to<\/p>\n
on   the   death   of   his   father   Krishna   Iyer   is   also   ancestral   in   his   hands.<\/p>\n
Therefore, the plaintiffs are entitled to equal share over 1\/5th share of the<\/p>\n
4th  defendant  over the plaint schedule  items.   Hence, the 4th defendant<\/p>\n
could   not   purport   to   release   or   assign   the   plaintiffs’   right   acquired   by<\/p>\n
birth. According to them, the 4th  defendant  had only a share over 1\/5th<\/p>\n
share obtained by him over the plaint schedule properties on the death of<\/p>\n
his  father and therefore, except to the extent of his right over the plaint<\/p>\n
schedule item, the right that was acquired by the plaintiffs  could not have<\/p>\n
been validly released in favour of defendants 1 to 3.  In other words, the<\/p>\n
assignment   cannot   affect   1\/3rd   share   each   of   the   plaintiffs   over   1\/5th<\/p>\n
share obtained by the 4th defendant over the plaint schedule item. To that<\/p>\n
extent,   the   release  deed   No.325  dated  8\/2\/1972   (Ext.A5)   is  liable   to  be<\/p>\n
declared   void   ab   initio.     Alternatively   it   is   contended   that   the   4th<\/p>\n
defendant  and plaintiffs formed a joint family at the time when Krishna<\/p>\n
Iyer   died   on   10\/6\/1971.     The   1\/5th     share   of   the   plaint   schedule   items<\/p>\n
                                             -7-<\/span><\/p>\n
A.S.No.182\/2001<\/p>\n
inherited by the 4th defendant on the death of Krishna Iyer on 10\/6\/1971<\/p>\n
is  the  nucleus.   Plaintiffs are co-owners  of 1\/5th  share of 4th  defendant<\/p>\n
over   the   plaint   schedule   item   and   hence   the   assignee   cannot   claim<\/p>\n
exclusive right over the plaint schedule item in-exclusion of the other co-<\/p>\n
owners.     Plaintiffs   claim   1\/3rd   right   each   over   1\/5th   share   of   the   4th<\/p>\n
defendant   over   the   plaint   schedule   item.     In   the   circumstances,   they<\/p>\n
sought for a decree declaring  Ext.A5 (document No.325 dated 8\/2\/1972)<\/p>\n
and  Ext.A6 (document No.4588 dated 23\/12\/1996) are void ab initio and<\/p>\n
not binding on the plaintiffs and for setting aside those documents to the<\/p>\n
extent   of  1\/3  share  of  each  of  the  plaintiffs  over   1\/5th   share   of  the   4th<\/p>\n
defendant over the plaint schedule item.  They also claimed for partition<\/p>\n
of the plaint schedule item and for  separate possession of their share and<\/p>\n
for a permanent prohibitory injunction   restraining the defendants 1 to 3<\/p>\n
from dealing with plaint schedule item.\n<\/p>\n<\/p>\n
       5. Defendants  1  to 3 contended  that  by virtue  of  the release  deed<\/p>\n
executed by the 4th defendant and his wife  they cease to have any right<\/p>\n
thereafter   and   subsequently   defendants   1   to   3   have   also   partitioned   the<\/p>\n
plaint schedule item as per Ext.A6 partition deed.   They also contended<\/p>\n
that   the   plaint   schedule   item   held   by   Krishna   Iyer   is   self   acquired<\/p>\n
                                              -8-<\/span><\/p>\n
A.S.No.182\/2001<\/p>\n
property.  Though Ext.A1 the nomenclature shown may be partition deed<\/p>\n
from the recitals contained therein and from the subsequent  settlement in<\/p>\n
which reference is made to the earlier deed, it is only a gift deed and the<\/p>\n
plaint A schedule items were  self acquisition of Krishnayyan and   there<\/p>\n
was no pre-existing right to be partitioned between  Krishnayyan and his<\/p>\n
son,   Krishna  Iyer.    Thus  both   plaint   A  and   B  schedule   properties  were<\/p>\n
self acquired properties of Krishnayyan and hence not co-parcenary and<\/p>\n
the   plaintiff   have   no   right   by   birth.     After   the   death   of   Krishna   Iyer,<\/p>\n
plaintiffs father, the 4th defendant, along  with his wife   having released<\/p>\n
their undivided right in favour of defendants 1 to 3, the plaintiffs should<\/p>\n
be non-suited for partition.  They also contended that the suit is barred by<\/p>\n
limitation.   They also contended that the plaint schedule properties were<\/p>\n
not ancestral properties and never treated as such.  Actually, Krishnayyan<\/p>\n
had no means to purchase A schedule properties and it was late Krishna<\/p>\n
Iyer, who purchased it in the name of his father besides other properties<\/p>\n
in the name of his wife etc.  It is not correct to say that the 4th defendants<\/p>\n
and the plaintiffs are co-owners of 1\/5th share of the 4th defendant over<\/p>\n
the properties.    Apart from the huge debts  whatever properties obtained<\/p>\n
by   the   4th   defendant   from   the   family   were   lost,   spoiled   or   wasted   by<\/p>\n
                                              -9-<\/span><\/p>\n
A.S.No.182\/2001<\/p>\n
himself.   Plaintiffs are looking after their parents   at Thodupuzha.   They<\/p>\n
had been coming to Thodupuzha every week and hence it is false to say<\/p>\n
that they came to know the entire affairs only recently.<\/p>\n
         6. The evidence consists of   Exts.A1 to A6 marked on the side of<\/p>\n
the   plaintiffs,   the   lst   plaintiff   gave   evidence   as   PW-1   and   the   3rd<\/p>\n
defendant   gave   evidence   as   DW-1.   No   documents   were   marked   on   the<\/p>\n
side of the defendants.   Registered  copy of the  document  No.912  dated<\/p>\n
24\/4\/1120 M.E. is  executed   by  Krishnayyan, styled  as a partition deed<\/p>\n
(              ).     But   from   the   recitals   in   this   deed   it   is   clear   that   the<\/p>\n
executant had no ancestral properties and that he had acquired properties<\/p>\n
by his own efforts and he is in exclusive possession and enjoyment of the<\/p>\n
same.\n<\/p>\n<\/p>\n
         ”\n<\/p><\/blockquote>\n
\n<\/blockquote>\n
                                                                                    “<\/p>\n
                                               -10-<\/span><\/p>\n
A.S.No.182\/2001<\/p>\n
        7. It is out of those properties  that the properties mentioned therein<\/p>\n
were purchased by him as per registered document of the Sub Registry,<\/p>\n
Thodupuzha and that the property scheduled therein were gifted in favour<\/p>\n
of Krishna Iyer. Thus even going by the recitals in this deed the property<\/p>\n
was   purchased     by   the   executant   as   per   registered   deed   of   the   Sub<\/p>\n
Registry, Thodupuzha.  Admittedly, this is the plaint A schedule property.<\/p>\n
As a matter of fact, the plaintiffs themselves have described this deed in<\/p>\n
the   plaint   as   a   gift   deed.   There   is   also   a   declaration     that   he   had   no<\/p>\n
ancestral   property   and   he   had   purchased   various   other   items   including<\/p>\n
this property of   which this item is assigned   in favour of Krishna Iyer,<\/p>\n
one of his sons.   Since Krishna Iyer had no pre-existing right and going<\/p>\n
by the recitals contained in the deed, this is only a gift deed executed in<\/p>\n
favour   of   Krishna   Iyer.     Admittedly,   the   plaint   B   schedule   items   were<\/p>\n
acquired by Krishna Iyer during his life time.  Thus both the plaint A and<\/p>\n
B schedule items do not have the characteristic of any ancestral property.<\/p>\n
Plaint   B   schedule   property   having   been   acquired   by   Krishna   Iyer   and<\/p>\n
Plaint A schedule properties obtained by him as per gift deed executed by<\/p>\n
his   father,   Krishnayyan,   both   plaint   A   and   B   schedule   items   are     self<\/p>\n
acquisition   in   the   hands   of   Krishna   Iyer.   Ext.A2   is   a   document   dated<\/p>\n
                                           -11-<\/span><\/p>\n
A.S.No.182\/2001<\/p>\n
5\/12\/1121, which is styled as settlement deed (                                            )<\/p>\n
executed   by  Krishnayyan   in   favour   of   Krishna   Iyer,   Narayana   Iyer   and<\/p>\n
Kaveri   Ammal,   minors   Lakshmi,   Savithri     Thankamma,   and     Harihara<\/p>\n
Iyer.           Krishna   Iyer   and   Narayana   Iyer   are   described   as   sons   of<\/p>\n
Krishnayyan,   the   executant   and   Kaveri   Ammal   is   described   as   wife   of<\/p>\n
deceased   Neelakanda   Iyer.     The   minors   are   children   of   deceased<\/p>\n
Neelakanda   Iyer.     According   to   the   executant,   during   his   life   time   he<\/p>\n
decided  to settle the properties  which  were acquired  by him. There  is  a<\/p>\n
further declaration that those properties   mentioned in the document are<\/p>\n
self   acquisition   and   not   an   exclusive   possession     and   enjoyment   of   the<\/p>\n
same. Vellookkunnu Madom and Purayidom is one such property which<\/p>\n
was given by way of gift in favour of Krishna Iyer, his son.   Thus what<\/p>\n
was assigned under Ext.A1 was also the property acquired by him and in<\/p>\n
respect of which a gift deed was executed in favour of  Krishna Iyer, one<\/p>\n
among the sons and also  a beneficiary of Ext.A2.  As per this document<\/p>\n
various properties described therein were settled.  Ext.A5 is the document<\/p>\n
No.325   dated   8\/12\/1972   of   the   Sub   Registry,   Thodupuzha.     This<\/p>\n
document was executed by Senapathy, son of Krishnayyan, and his wife<\/p>\n
Parvathy   Ammal   in   favour   of   Vaidyanatha   Iyer,   Mahadeva   Iyer   and<\/p>\n
                                             -12-<\/span><\/p>\n
A.S.No.182\/2001<\/p>\n
Harihara Iyer.  It is described as released deed (                                                      ).\n<\/p>\n
\nAs per this deed the executants relinquished their right over the properties<\/p>\n
scheduled thereunder.  As per the recitals contained in the deed, after the<\/p>\n
death of Krishna Iyer on 10\/6\/1971 the scheduled properties belonged to<\/p>\n
him and   after his death, by devolution  all of them had equal right over<\/p>\n
the properties jointly  held by them and whatever right the executant had<\/p>\n
over the schedule properties was already relinquished orally in favour of<\/p>\n
the   executants   and   they   were   in   exclusive   possession   of   the   same   and<\/p>\n
with   a   view   to   acknowledge   the   same   by   a   written   document   for<\/p>\n
consideration of Rs.20,0000\/- received on different occasions.  Ext.A6 is<\/p>\n
a   document   No.4588   dated   23\/12\/1996,   which   is   a   partition   deed<\/p>\n
executed  between Vaidyanatha Iyer, Mahadeva Iyer and Harihara Iyer.<\/p>\n
        8.   According   to   the   learned   counsel,   Sri   Easwaran,   appearing   on<\/p>\n
behalf of the appellants, the property in the hands of their father, the 4th<\/p>\n
defendant obtained by him from Krishna Iyer, father of defendants 1 to 4<\/p>\n
and grandfather of plaintiffs, is  ancestral in nature.    Plaintiffs  being co-<\/p>\n
parcenars   are   entitled   to     1\/3rd   right   over   1\/5th   right   acquired   by   their<\/p>\n
father, the 4th defendant.   Hence, the release deed (Ext.A5) executed by<\/p>\n
their father, the 4th defendant cannot  be treated as valid to the extent of<\/p>\n
                                             -13-<\/span><\/p>\n
A.S.No.182\/2001<\/p>\n
their   share.   At   best   only   the   share   of   their   father,   4th   defendant   alone<\/p>\n
could have been given valid relinquishment under Ext.A5.  Since the 4th<\/p>\n
defendant had only  a fractional interest in the property, the right, title and<\/p>\n
interest of the plaintiffs as co-parcenars   in no way are affected by such<\/p>\n
release deed. To the extent of their right and interest concerned, Ext.A5 is<\/p>\n
ab initio void and even without specifically seeking to set aside the said<\/p>\n
document, they can ignore the said document and claim partition. On the<\/p>\n
other  hand,  the  learned  counsel   appearing  on  behalf  of  the   respondents<\/p>\n
would contend that the properties  were obtained by Krishna Iyer by two<\/p>\n
settlement deeds, Exts.A1 and A2.  The recitals contained in Exts.A1  and<\/p>\n
A2   would   abundantly   make   it   clear   that   those   properties   were   self<\/p>\n
acquisition   by   Krishnayyan,   father   of   Krishna   Iyer   (grandfather   of<\/p>\n
plaintiffs) and   grandfather of defendants 1 to 4. If so, after the death of<\/p>\n
Krishna Iyer in 10\/6\/1971 the properties devolved on defendants 1 to 4 by<\/p>\n
way of succession under the Hindu Succession Act, 1956 and by virtue of<\/p>\n
Section   8   of   the   Hindu   Successions   Act,   the   share   held   by   the   4th<\/p>\n
defendant is to be treated as self acquisition and by virtue of the release<\/p>\n
deed, Ext.A5 executed by the 4th defendant and his wife, defendants 1 to<\/p>\n
3 are absolutely entitled to the said property and the plaintiffs would not<\/p>\n
                                             -14-<\/span><\/p>\n
A.S.No.182\/2001<\/p>\n
have acquired any right by birth. But according to the learned counsel for<\/p>\n
the  appellants,   if   the  properties   are   ancestral   properties   in  the   hands   of<\/p>\n
Krishna   Iyer, they have   acquired  a  right  by  birth  and   they having   been<\/p>\n
born   long   prior   to   1956,   devolution   of   their   right   and   title   would   be<\/p>\n
governed by Section 6 of the Hindu Succession Act.  Therefore the prime<\/p>\n
question is as to  whether the plaintiffs had acquired any right by birth in<\/p>\n
the   property   held   by   Krishna   Iyer   prior   to   his   death   on   10\/6\/1971   and<\/p>\n
whether the property in the hands of Krishna Iyer is ancestral in nature.<\/p>\n
From   the   recitals   contained   in   Ext.A1   and   A2   to   which   reference   has<\/p>\n
already been made,   it is abundantly clear that Krishna Iyer obtained the<\/p>\n
plaint schedule item by two settlement deeds (Exts.A1 and A2) executed<\/p>\n
by his  father Krishnayyan. Though  Ext.A1  is styled as  a partition  deed,<\/p>\n
further recitals contained in the deed would clearly show that it is only a<\/p>\n
settlement   deed.     Krishnayyan,   father   of   Krishna   Iyer   himself   declared<\/p>\n
that   those   properties   are   self   acquisition   and   not   ancestral   in   his   hands<\/p>\n
and that  Ext.A1, which is a gift deed, is further supported by the recitals<\/p>\n
contained   in   the   settlement   deed,   Ext.A2   also.   If   so,   the   properties<\/p>\n
obtained by Krishna  Iyer can only be treated as self acquisition  and not<\/p>\n
ancestral in his hands.\n<\/p>\n
\n                                            -15-<\/span><\/p>\n
A.S.No.182\/2001<\/p>\n
       9. In Commissioner of Wealthtax, Kanpur  etc. v. Chander Sen<\/p>\n
etc. (AIR 1986 SC 1753) the Apex Court had occasion to consider a case<\/p>\n
where a partition of joint family business between father and his only son<\/p>\n
and the business was continued by the father and the son formed a joint<\/p>\n
family with his own sons.  The father died later and the question arose as<\/p>\n
to whether  the amount standing to the credit of the deceased father in the<\/p>\n
account of the firm devolved on his son as his individual income. It was<\/p>\n
held   that   such   income   cannot   be   included   in   computing   net   wealth   of<\/p>\n
son’s   joint   family.   The   joint   family   business   were   partitioned   between<\/p>\n
father   and   his   only   son   and   it   was   thereafter   that   they   continued   the<\/p>\n
business in the name of the partnership firm.  The Wealth Tax Authorities<\/p>\n
while assessing the wealth tax in respect of the family of the son i.e. the<\/p>\n
assessee, included the amount in computing wealth.  It was held that the<\/p>\n
son  inherited  the  property  as   an  individual  and   not  as  karta  of  his  own<\/p>\n
family   and   hence   it   could   no   be   included   in   computing   the   assessee’s<\/p>\n
wealth.     It   was   further   held   that   under   the   Hindu   law   the   son   would<\/p>\n
inherit the property of his father as karta of is own family. But the Hindu<\/p>\n
Succession Act has modified the rule of succession.   The Act lays down<\/p>\n
the general rules of succession in the case of males. The first rule is that<\/p>\n
                                            -16-<\/span><\/p>\n
A.S.No.182\/2001<\/p>\n
the property of a male Hindu dying  intestate shall devolve according to<\/p>\n
the provisions of Chapter II and Class I of the Schedule provides that if<\/p>\n
there is a male heir of Class I then upon the heirs mentioned in Class I of<\/p>\n
the Schedule. In interpreting the provisions of Act it is necessary to bear<\/p>\n
in mind the preamble to the Hindu Succession Act.  The preamble states<\/p>\n
that   it   was   an   Act   to   amend   and   codify   the   law   relating   to   intestate<\/p>\n
succession among Hindus.  In view of the Preamble to the Act i.e., that to<\/p>\n
modify   where   necessary   and   to   codify   the   law,   it   is   not   possible   when<\/p>\n
Schedule   indicates  heirs  in   Class  I   and   only  includes   son   and   does   not<\/p>\n
include son’s son but does include son of a predeceased son, to say that<\/p>\n
when son inherits the property in the situation contemplated by Section 8<\/p>\n
he  takes  it  as  karta  of  his  own  undivided  family.   If  a contrary view is<\/p>\n
taken it would mean that though the son of a predeceased son and not the<\/p>\n
son of a son who is intended to be excluded under Section 8 to inherit, the<\/p>\n
latter   would   by applying  the   old  Hindu  Law  get  a  right   by birth  of the<\/p>\n
said property contrary to the scheme outlined in Section 8.  Further more<\/p>\n
the Act makes it clear by Section 4 that one should look to the Act in case<\/p>\n
of doubt and not to the pre-existing Hindu law.   It would be difficult to<\/p>\n
hold today that the property which devolved on a Hindu under Section 8<\/p>\n
                                             -17-<\/span><\/p>\n
A.S.No.182\/2001<\/p>\n
of the Hindu Succession Act would be HUF in his hand vis-a-vis his own<\/p>\n
son;   that   would   amount   to   creating   two   classes   among   the   heirs<\/p>\n
mentioned in Class I, the male heirs in whose hands it will be joint Hindu<\/p>\n
Family property and vis-a-vis son and female heirs with respect to whom<\/p>\n
no such concept could be applied or contemplated.  It may be mentioned<\/p>\n
that   heirs   in   Class   I   of   Schedule   under   Section   8   of   the   Act   included<\/p>\n
widow, mother, daughter of predeceased son etc.   The express words of<\/p>\n
Section   8   of   the   Hindu   Succession   Act   cannot   be   ignored   and   must<\/p>\n
prevail.   The preamble to the Act reiterates  that the Act is, inter alia, to<\/p>\n
‘amend’   the   law.   With   that   background   the   express   language   which<\/p>\n
excludes   son’s   son   but   included   son   of   a   predeceased   son   cannot   be<\/p>\n
ignored.\n<\/p>\n<\/p>\n
        10.   In  C.N.   Arunachala   Mudaliar   v.   C.A.Muruganatha<\/p>\n
Mudaliar and<\/a> another (AIR 1953 SC 495) the Apex Court held that the<\/p>\n
Mitakshara   father   is   not   only   competent   to   sell   his   self   acquired<\/p>\n
immovable property to a stranger without the concurrence of his son, but<\/p>\n
he   can   make   a   gift   of   such   property   to   one   of   his   own   sons   to   the<\/p>\n
detriment   of   another   and   he   can   make   even   an   unequal   distribution<\/p>\n
amongst his heirs. It was also held that in view of the settled law that a<\/p>\n
                                        -18-<\/span><\/p>\n
A.S.No.182\/2001<\/p>\n
Mitakshara father has absolute right of disposition over his self acquired<\/p>\n
property to which no exception can be taken by his male descendants, it is<\/p>\n
not possible to hold that such property bequeathed or gifted to a son must<\/p>\n
necessarily, and under all circumstances, rank as ancestral property in the<\/p>\n
hands of the donee in which his sons would acquire co-ordinate interest.<\/p>\n
To  find  out  whether  a property is  or  is  not  ancestral  in  the  hands  of   a<\/p>\n
particular person, not merely the relationship between the original and the<\/p>\n
present holder but the mode of transmission also must be looked to; and<\/p>\n
the  property  can  ordinarily be  reckoned  as  ancestral  only  if   the  present<\/p>\n
holder has got it by virtue of  his being a son or descendant of the original<\/p>\n
owner. But when the father obtains the  grandfather’s property by way of<\/p>\n
gift,  he receives it not because he is a son or has  any legal right to such<\/p>\n
property    but because his father chose to bestow a favour on him which<\/p>\n
he could have bestowed on any other person as well. The interest which<\/p>\n
he takes in such property  must depend upon the will of the grantor. There<\/p>\n
is no warrant for saying that according to the Mitakshara, an affectionate<\/p>\n
gift by the father to the son  constitutes  ‘ipso facto’ ancestral property in<\/p>\n
the hands of the donee.   In other words, a property gifted or bequeathed<\/p>\n
by a father to his  son cannot become ancestral property in  the hands  of<\/p>\n
                                             -19-<\/span><\/p>\n
A.S.No.182\/2001<\/p>\n
the   donee   or   legatee   simply   by   reason   of   the   fact     that   the   donee   or<\/p>\n
legatee got it from his father or ancestor.  As the law is accepted and well<\/p>\n
settled that  a Mitakshara father has complete powers of disposition over<\/p>\n
his self-acquired property, it must follow as a necessary consequence that<\/p>\n
the father is quite competent to provide expressly, when he makes a gift,<\/p>\n
either that the donee would take it exclusively for himself or that the gift<\/p>\n
would be for the benefit of his branch of the family.  If there are express<\/p>\n
provisions to that effect either in the deed of gift or a will, no difficulty is<\/p>\n
likely to arise and the interest which the son would take in such property<\/p>\n
would depend upon the terms of the grant.  If, however, there are no clear<\/p>\n
words   describing   the   kind   of     interest   which   the   donee   is   to   take,   the<\/p>\n
question   would   be   one   of   construction   and   the   Court   would   have   to<\/p>\n
collect   the   intention   of   the   donor   from   the   language   of   the   document<\/p>\n
taken   along   with  the  surrounding   circumstances  in   accordance  with   the<\/p>\n
well-known canons of construction.   In paragraph 12 of the judgment it<\/p>\n
was held as follows:\n<\/p>\n<\/p>\n
        “……..According to  Mitakshara, the son has a right by<\/p>\n
        birth both in his father’s and grandfather’s estate, but<\/p>\n
        a   distinction   is   made   in   this   respect   by   Mitakshara<\/p>\n
        itself. In the ancestral or grandfather’s property in the<\/p>\n
        hands   of   the   father,   while   in   the   self   acquired<\/p>\n
                                           -20-<\/span><\/p>\n
A.S.No.182\/2001<\/p>\n
       property   of   the   father,   his   rights   are   unequal   by<\/p>\n
       reason   of   the   father   having   an   independent   power<\/p>\n
       over   or   predominant   interest   in   the   same.     The   son<\/p>\n
       can  assert this  equal right with the father  only when<\/p>\n
       the   grandfather’s   property   has   devolved   upon   his<\/p>\n
       father   and   has   become   ancestral   property   in   his<\/p>\n
       hands.  The property of the grandfather can normally<\/p>\n
       vest in the father as ancestral   if and when the father<\/p>\n
       inherits such property on the death of the grandfather<\/p>\n
       or   receives   it,   by   partition,   made   by  the   grandfather<\/p>\n
       himself during his life-time.  On both these occasions<\/p>\n
       the   grandfather’s   property   comes   to   the   father   by<\/p>\n
       virtue of the latter’s legal right as a son or descendant<\/p>\n
       of the  former and consequently  it becomes  ancestral<\/p>\n
       property in his hands.”<\/p><\/blockquote>\n
      11.  In   this  case   Krishna   Iyer   having  obtained  the   plaint   schedule<\/p>\n
items by virtue of the gift deed executed by his father Krishnayyan and<\/p>\n
not by virtue of his being the son or descendant of the owner but because<\/p>\n
his father bestowed  a favour, which he could have bestowed on any other<\/p>\n
person as well.  So merely because it was obtained by Krishna Iyer from<\/p>\n
his father it does not become ancestral in his hands.   Thus, Krishna Iyer<\/p>\n
had absolute right of dispossession over the property during his life time<\/p>\n
which has obtained by him from his father by two gift deeds executed in<\/p>\n
his  favour.     Thus,  defendants  1 to 4 did  not  acquire any right by birth<\/p>\n
over the property held by Krishna Iyer during his life time.  It is only after<\/p>\n
the  death  of Krishna   Iyer that  the  properties  devolved  by succession   in<\/p>\n
                                            -21-<\/span><\/p>\n
A.S.No.182\/2001<\/p>\n
favour of his heirs included in Clause 1, as per Hindu Succession Act.  If<\/p>\n
defendants 1 to 4 did not have acquire any right by birth and Krishna Iyer<\/p>\n
had   absolute   right   of   dispossession   during   his   life   time,   there   is   no<\/p>\n
question of the plaintiffs acquiring any right by birth in the said property.<\/p>\n
       12.   In  Yudhishter   v.   Ashok   Kumar   (AIR<\/a>   1987   SC   558)    after<\/p>\n
referring to the decision in  Commissioner of Wealth Tax, Kanpur   v.<\/p>\n
Chander   Sen   (AIR<\/a>   1986   SC   1753),    it   was   reiterated     that   normally<\/p>\n
whenever   the   father   gets   a   property   from   whatever   source   from   the<\/p>\n
grandfather or from any other source, be it separate property or not, his<\/p>\n
son should have a share in that and it will become part of the joint Hindu<\/p>\n
family of his son and grandson and other members who form joint Hindu<\/p>\n
family   with   him.   This   position   has   been   affected   by   Section   8   of   the<\/p>\n
Hindu   Succession   Act,   1956   and   therefore   after   the   Act,   when   the   son<\/p>\n
inherited the property in the situation contemplated by Section 8, he does<\/p>\n
not   take   it   as   Kar   of   his   own   undivided   family   but   takes   it   in   his<\/p>\n
individual capacity.\n<\/p>\n<\/p>\n
       13. In Sheela Devi and others v. Lal Chand and<\/a> another (2006)<\/p>\n
8   SCC   581)    the   Apex   Court     considered   the   question   as   to   how<\/p>\n
devolution   of     co-parcenary   property     takes   place   and   considered   the<\/p>\n
                                            -22-<\/span><\/p>\n
A.S.No.182\/2001<\/p>\n
scope   of  Sections    6   and  8   of   the  Hindu  Succession  Act,  1956  and  the<\/p>\n
devolution of co-parcenary property after commencement of 1956 Act. It<\/p>\n
was held that the effect of a son having been born prior to commencement<\/p>\n
of   1956   Act   and   as   per   the   Mitakshara   law   in   usage   prior   to   the<\/p>\n
commencement   of   the   1956   Act,   once   a   son   was   born,   he   acquired   an<\/p>\n
interest in the co-parcenary property as an incident of his birth and hence<\/p>\n
a son having been born prior to commencement of 1956 Act would retain<\/p>\n
his share of the property as a co-parcenar even after the commencement<\/p>\n
of   the   1956   Act,   while   the   father’s   share   shall   devolve   upon   his   heirs<\/p>\n
according to the provisions of 1956 Act. It was also held that so long as<\/p>\n
the property remains  in hands of a single person, though it be inherited<\/p>\n
co-parcenary   property,   it   would   be   treated   as   a   separate   property.     But<\/p>\n
once a son is born, the concept of a property being co-parcenary property<\/p>\n
in terms of Mitakshara law, is revived.   In that case   one Tulsi Ram was<\/p>\n
the owner of the property. He died  in the year 1989 leaving behind five<\/p>\n
sons   of   whom   Babu   Ram   was   one.   The   afore-mentioned   five   sons   of<\/p>\n
Tulsi Ram were members  of a M itakshara Coparcenary. Upon the death<\/p>\n
of Tulsi Ram, Babu Ram inherited 1\/5th share in the property.  Babu Ram<\/p>\n
died in the year 1989 leaving behind two sons (respondent-plaintiffs) and<\/p>\n
                                            -23-<\/span><\/p>\n
A.S.No.182\/2001<\/p>\n
three   daughters  (appellants).   One   of  the   son  was    was   born  in   the  year<\/p>\n
1938 and the other in 1956.  Although in 1927, Babu Ram had no son and<\/p>\n
the property in his hands became a separate property.   But, as soon as a<\/p>\n
son   was   born   to   him   the   concept   of   the   property   being   a   co-parcenary<\/p>\n
property in terms of  the  Mitakshara School of Hindu Law revived.  The<\/p>\n
succession  had been opened in 1989 on the death of Babu Ram.  Section<\/p>\n
6(1) of the Hindu Succession Act governs the law relating to succession<\/p>\n
on     the   death   of   a   co-parcener   in   the   event   the   heirs   are   only   male<\/p>\n
descendants.  Placing    reliance  on  this  decision  it  was contended  that  in<\/p>\n
this case the plaintiffs, who were born prior to 1956, acquired the right by<\/p>\n
birth     in   the   grandfather’s   property   namely   the   property   held   by<\/p>\n
Krishnayyan,   which  right   according  to   them, will   not   be   lost   by   Hindu<\/p>\n
Succession   Act,   1956.     But   this   contention   is   raised   forgetting   the   fact<\/p>\n
that Krishna Iyer had an absolute right of dispossession over his property<\/p>\n
and   no   right  is   acquired   by  his   male   descendants   and   as   already   stated<\/p>\n
defendants 1 to 4  have therefore acquired no right by birth and Krishna<\/p>\n
Iyer   died   only   in   the   year   1971   long   after   the   Hindu   Succession   Act.<\/p>\n
Hence succession takes place as per the Hindu Succession Act only.<\/p>\n
       14. As per Section 8 of the Hindu Succession Act, the property of a<\/p>\n
                                           -24-<\/span><\/p>\n
A.S.No.182\/2001<\/p>\n
male Hindu dying  intestate shall devolve according to  the provisions  of<\/p>\n
this Chapter, firstly, upon the heirs, being the relatives specified in class I<\/p>\n
of the schedule.   Section 6 of the Act only says that when a male Hindu<\/p>\n
dies after the commencement of this Act, having at the time of his death<\/p>\n
an   interest   in   a   Mitakshara   co-parcenary   property,   his   interest   in   the<\/p>\n
property  shall   devolve   by  surveyorship   upon   the   surviving   members   of<\/p>\n
the co-parcenary and not in accordance with this Act.  As per Explanation<\/p>\n
1, for the purpose of this section, the interest of a Hindu Mitakshara co-<\/p>\n
parcener shall be deemed to be the share in the property that would have<\/p>\n
been   allotted   to   him   if   a   partition   of   the   property   had   taken   place<\/p>\n
immediately before his death, irrespective of whether he was entitled to<\/p>\n
claim partition or not. But here as already stated, no right is acquired by<\/p>\n
the male descendants of Krishna Iyer till his death.  So, Section 6 has no<\/p>\n
application.\n<\/p>\n<\/p>\n
       15. The court below held that the suit is barred by limitation as per<\/p>\n
Article 109 of the Limitation Act, since the suit was instituted more than<\/p>\n
12  years after  Ext.A5  and  they cannot  validly seek  to  set  aside  Ext.A5,<\/p>\n
after the expiry of the period of 12 years.  Ext.A5 being dated 8\/12\/1972<\/p>\n
and the suit was filed only on 17\/3\/1997.   According  to the counsel for<\/p>\n
                                              -25-<\/span><\/p>\n
A.S.No.182\/2001<\/p>\n
the   appellants,     he   need   not   specifically   seek   to   set   aside   Ext.A5   and<\/p>\n
according to him, Ext.A5 is void ab initio and therefore he can ignore the<\/p>\n
same   and   during   his   argument   he   submitted   that   he   is   not   pressing   the<\/p>\n
relief for setting aside Ext.A5, but still he can validly maintain the prayer<\/p>\n
for   separate   possession.       As   per   Article   65   of   the   Limitation   Act,   for<\/p>\n
claiming possession of immovable property or any interest therein based<\/p>\n
on   title,   the   period   of   limitation   prescribed   is   twelve   years   when     the<\/p>\n
possession   of   the   defendant   becomes   adverse   to   the   plaintiff.     But<\/p>\n
according   to   the   plaintiffs\/appellants,   the   possession     can   be   said   to<\/p>\n
become   adverse   to   their   interest   only   when   there   was   an   attempt   to<\/p>\n
partition   of   the   property   by   defendants   1   to   3   and   only   in   1996   the<\/p>\n
partition deed was executed whereas the suit was instituted in 1997 itself.<\/p>\n
If the release deed Ext.A5 is a document void ab initio and if  defendants<\/p>\n
1   to   3   are   in   possession   of   the   property,   lst   defendant   is   the   Manager,<\/p>\n
whose   possession   can   only   be   on   behalf   of   all   the   co-owners.   In   this<\/p>\n
connection he also placed reliance on the decision of this Court in  Paru<\/p>\n
v.   Chiruthai   (1985   KLT   563).    It   was   held   that   since   a   co-sharer   in<\/p>\n
possession is a trustee for a co-sharer not in possession, there can be no<\/p>\n
question of any adverse possession, by any co-owner in possession. Mere<\/p>\n
                                              -26-<\/span><\/p>\n
A.S.No.182\/2001<\/p>\n
non-participation   in   the   profits   or   non-payment   of   rent   by   themselves<\/p>\n
cannot amount to ouster.\n<\/p>\n<\/p>\n
        16. In Karbalai Begum v. Mohd. Sayeed and<\/a> another (AIR 1981<\/p>\n
SC   77)    the   Apex   Court   while   considering   Articles   64   and   65   of   the<\/p>\n
Limitation Act, held that it is well settled that mere non-participation in<\/p>\n
the rent and profits of the land of a co-sharer does not amount to an ouster<\/p>\n
so   as   to   give   title   by   adverse   possession   to   the   other   co-sharer   in<\/p>\n
possession.  Indeed even if this fact is admitted, then the legal possession<\/p>\n
would   be   that   the   co-sharers   in   possession   would   become   constructive<\/p>\n
trustees on behalf of the co-sharer who is not in possession and the right<\/p>\n
of such co-sharer would be deemed to be protected by the trustees.<\/p>\n
        17.   In  Mohd.   Mohammad   Ali   v.   Jagadish   Kalita   and   others<\/a><\/p>\n
((2004) 1 SCC 271) the Apex Court held that possession of property by a<\/p>\n
co-sharer is deemed to be possession on behalf  of other co-sharers unless<\/p>\n
there is a clear ouster by denying title of the other co-sharers. Mere long<\/p>\n
and continuous possession by itself is not enough.   Plea of ouster has to<\/p>\n
be   raised   and   proved.     In   a  suit  for   declaration   of  title   to   the  property,<\/p>\n
plaintiff   has   only   to   prove   his   title   and   not   his   possession   and   the<\/p>\n
defendant raising plea of adverse possession must prove the same along<\/p>\n
                                               -27-<\/span><\/p>\n
A.S.No.182\/2001<\/p>\n
with his animus possidendi.\n<\/p>\n<\/p>\n
        18.  Sankaran Nair  v. Govindan<\/a> (1982 KLT 948)  was a suit for<\/p>\n
recovery  of   possession   by  junior   members   of  tarwad   property   alienated<\/p>\n
without necessity of a tarwad property.  The question arose as to whether<\/p>\n
it was necessary to set aside the sale. In that context, Articles 60 or 65 of<\/p>\n
the   Limitation   is   relevant.     It   was   held   that   there   is   no   necessity   for   a<\/p>\n
junior member of a tarwad in impuging a transaction by its karanavan to<\/p>\n
file a suit to have the transaction set aside.  He can ignore the transaction<\/p>\n
and recover possession to the property if the acts of the karnavan cannot<\/p>\n
be   said   to   be   within   his   powers.   A   junior   member   can   treat   an   invalid<\/p>\n
alienation of his tarwad property as void, ignore it and sue to recover the<\/p>\n
property. There is no need to bring a suit to set aside the alienation and a<\/p>\n
junior   member   bringing   a   suit   for   recovery   of   possession   of   tarwad<\/p>\n
property alienated without consideration or necessity need not seek to set<\/p>\n
aside the document and neither Article 59 nor Article 60 of the Limitation<\/p>\n
Act  can  have  any application  to such  a suit  for  recovery of possession.<\/p>\n
The only article of the Limitation Act that is applicable to such a suit is<\/p>\n
Article 65 as per which the period of limitation is 12 years from the date<\/p>\n
on which possession of the defendant became adverse to the plaintiff.<\/p>\n
                                             -28-<\/span><\/p>\n
A.S.No.182\/2001<\/p>\n
        19.  In this  case  if  the plaintiffs  could establish  that  they acquired<\/p>\n
right by birth in the property held by Krishna Iyer, then necessarily on his<\/p>\n
death,   the   right,   title   and   interest   of   the   plaintiffs     cannot   be   validly<\/p>\n
extinguished Ext.A5. Since the 4th defendant will have only a fractional<\/p>\n
interest  along  with the plaintiff and if so  execution  of the release  deed,<\/p>\n
Ext.A5, can in no way affect the right, title and interest of the plaintiffs,<\/p>\n
their   right   cannot   be   transferred   without   their   consent.     In   this   case<\/p>\n
according   to   the   plaintiffs,   they   have   already   become  majors   as   on   the<\/p>\n
date of Ext.A5 release deed. If only the contention of the appellants that<\/p>\n
the property held by Krishna Iyer is ancestral in nature is accepted, then it<\/p>\n
has   to   be   held   that   the   suit   will   be   governed   by   Article   65   of   the<\/p>\n
Limitation Act and hence not barred.\n<\/p>\n<\/p>\n
        Conclusion:\n<\/p>\n<\/p>\n
        1) In the result,  we hold that  the  plaintiffs  have not succeeded  in<\/p>\n
establishing that they had acquired any right by birth in the property held<\/p>\n
by Krishna Iyer. The contention of the appellants that the property in the<\/p>\n
hands of  Krishna Iyer is ancestral in nature, is found against.<\/p>\n
        2) The 4th  defendant  and his  wife  having executed a release deed<\/p>\n
                                               -29-<\/span><\/p>\n
A.S.No.182\/2001<\/p>\n
Ext.A5   in   favour   of   defendants   1   to   3   have   no   further   right   in   the<\/p>\n
property. After the death of Krishna Iyer, when the property devolved on<\/p>\n
his legal heirs, (defendants 1 to 4 alone), the right, title and interest of the<\/p>\n
4th   defendant   having   been   released   in   favour   of   the   co-sharers,   the<\/p>\n
plaintiffs have no right to seek partition.\n<\/p>\n<\/p>\n
        3) In  the  circumstances  of the  case,  it  is  not  be necessary for  the<\/p>\n
plaintiffs   to seek to set aside Ext.A5 and the relevant article that would<\/p>\n
apply is Article 65 of the Limitation Act.\n<\/p>\n<\/p>\n
        4) There is no evidence in this case to  hold that the properties held<\/p>\n
by defendants 1 to 3 were adverse to the interest of the plaintiffs or that<\/p>\n
there   is   any   ouster   to   the   knowledge   of   the   plaintiffs.     If   they   are   co-<\/p>\n
sharers of the property, the possession if any held by the lst defendant can<\/p>\n
only be  on  behalf  of the  co-sharers   as  a trustee.   Hence,  the  suit  is  not<\/p>\n
shown to be barred under the provisions of the Limitation Act.<\/p>\n
        5) In view of the finding that the appellants\/plaintiffs had no right<\/p>\n
in    the  plaint schedule property at the time of execution  of the released<\/p>\n
deed Ext.A5 executed by the 4th defendant in favour of defendants 1 to 3,<\/p>\n
it   has   to   be   held   that   plaintiffs   have   no   partible   interest   in   the   plaint<\/p>\n
schedule item.\n<\/p>\n
\n                                             -30-<\/span><\/p>\n
A.S.No.182\/2001<\/p>\n
          In   the   result,   confirming   the   decree   and   judgment   passed   by   the<\/p>\n
court below, this appeal is dismissed.   Parties shall bear their respective<\/p>\n
costs.\n<\/p>\n<\/p>\n
                                                                              P.R.RAMAN,<\/p>\n
                                                                                         Judge.\n<\/p>\n
                                                                       V.K.MOHANAN,<\/p>\n
                                                                                   Judge.\n<\/p>\n
kcv.\n<\/p>\n
\n                             -31-<\/span><\/p>\n
A.S.No.182\/2001<\/p>\n
                         P.R.RAMAN & V.K.MOHANAN,JJ.\n<\/p>\n
                     —————————-\n<\/p>\n
                                A.S.NO.182 OF 2001<\/p>\n
                    —————————-\n<\/p>\n<\/p>\n
                                           JUDGMENT<\/p>\n
                                     26th October, 2007<\/p>\n<\/blockquote>\n","protected":false},"excerpt":{"rendered":"
Kerala High Court Yyyyyshnan vs K.Vaidhyanathan on 26 October, 2007 IN THE HIGH COURT OF KERALA AT ERNAKULAM AS No. 182 of 2001() 1. YYYYYSHNAN … Petitioner Vs 1. K.VAIDHYANATHAN … Respondent For Petitioner :SRI.S.EASWARAN For Respondent :SRI.R.HARIKRISHNAN The Hon’ble MR. Justice P.R.RAMAN The Hon’ble MR. Justice V.K.MOHANAN Dated :26\/10\/2007 O R D E R […]<\/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-44327","post","type-post","status-publish","format-standard","hentry","category-high-court","category-kerala-high-court"],"yoast_head":"\nYyyyyshnan vs K.Vaidhyanathan on 26 October, 2007 - 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\/yyyyyshnan-vs-k-vaidhyanathan-on-26-october-2007-2\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Yyyyyshnan vs K.Vaidhyanathan on 26 October, 2007 - Free Judgements of Supreme Court & High Court | Legal India\" \/>\n<meta property=\"og:url\" content=\"https:\/\/www.legalindia.com\/judgments\/yyyyyshnan-vs-k-vaidhyanathan-on-26-october-2007-2\" \/>\n<meta property=\"og:site_name\" content=\"Free Judgements of Supreme Court & High Court | Legal India\" \/>\n<meta property=\"article:publisher\" content=\"https:\/\/www.facebook.com\/LegalindiaCom\/\" \/>\n<meta property=\"article:published_time\" content=\"2007-10-25T18:30:00+00:00\" \/>\n<meta property=\"article:modified_time\" content=\"2015-01-26T13:59:52+00:00\" \/>\n<meta property=\"og:image\" content=\"https:\/\/i0.wp.com\/www.legalindia.com\/judgments\/wp-content\/uploads\/sites\/5\/2025\/09\/legal-india-icon.jpg?fit=512%2C512&ssl=1\" \/>\n\t<meta property=\"og:image:width\" content=\"512\" \/>\n\t<meta property=\"og:image:height\" content=\"512\" \/>\n\t<meta property=\"og:image:type\" content=\"image\/jpeg\" \/>\n<meta name=\"author\" content=\"Legal India Admin\" \/>\n<meta name=\"twitter:card\" content=\"summary_large_image\" \/>\n<meta name=\"twitter:creator\" content=\"@legaliadmin\" \/>\n<meta name=\"twitter:site\" content=\"@Legal_india\" \/>\n<meta name=\"twitter:label1\" content=\"Written by\" \/>\n\t<meta name=\"twitter:data1\" content=\"Legal India Admin\" \/>\n\t<meta name=\"twitter:label2\" content=\"Est. reading time\" \/>\n\t<meta name=\"twitter:data2\" content=\"34 minutes\" \/>\n<script type=\"application\/ld+json\" class=\"yoast-schema-graph\">{\"@context\":\"https:\/\/schema.org\",\"@graph\":[{\"@type\":\"Article\",\"@id\":\"https:\/\/www.legalindia.com\/judgments\/yyyyyshnan-vs-k-vaidhyanathan-on-26-october-2007-2#article\",\"isPartOf\":{\"@id\":\"https:\/\/www.legalindia.com\/judgments\/yyyyyshnan-vs-k-vaidhyanathan-on-26-october-2007-2\"},\"author\":{\"name\":\"Legal India Admin\",\"@id\":\"https:\/\/www.legalindia.com\/judgments\/#\/schema\/person\/0bfdffe9059fb8bb24a86d094609c5ea\"},\"headline\":\"Yyyyyshnan vs K.Vaidhyanathan on 26 October, 2007\",\"datePublished\":\"2007-10-25T18:30:00+00:00\",\"dateModified\":\"2015-01-26T13:59:52+00:00\",\"mainEntityOfPage\":{\"@id\":\"https:\/\/www.legalindia.com\/judgments\/yyyyyshnan-vs-k-vaidhyanathan-on-26-october-2007-2\"},\"wordCount\":6683,\"commentCount\":0,\"publisher\":{\"@id\":\"https:\/\/www.legalindia.com\/judgments\/#organization\"},\"articleSection\":[\"High Court\",\"Kerala High Court\"],\"inLanguage\":\"en-US\",\"potentialAction\":[{\"@type\":\"CommentAction\",\"name\":\"Comment\",\"target\":[\"https:\/\/www.legalindia.com\/judgments\/yyyyyshnan-vs-k-vaidhyanathan-on-26-october-2007-2#respond\"]}]},{\"@type\":\"WebPage\",\"@id\":\"https:\/\/www.legalindia.com\/judgments\/yyyyyshnan-vs-k-vaidhyanathan-on-26-october-2007-2\",\"url\":\"https:\/\/www.legalindia.com\/judgments\/yyyyyshnan-vs-k-vaidhyanathan-on-26-october-2007-2\",\"name\":\"Yyyyyshnan vs K.Vaidhyanathan on 26 October, 2007 - Free Judgements of Supreme Court & High Court | Legal India\",\"isPartOf\":{\"@id\":\"https:\/\/www.legalindia.com\/judgments\/#website\"},\"datePublished\":\"2007-10-25T18:30:00+00:00\",\"dateModified\":\"2015-01-26T13:59:52+00:00\",\"breadcrumb\":{\"@id\":\"https:\/\/www.legalindia.com\/judgments\/yyyyyshnan-vs-k-vaidhyanathan-on-26-october-2007-2#breadcrumb\"},\"inLanguage\":\"en-US\",\"potentialAction\":[{\"@type\":\"ReadAction\",\"target\":[\"https:\/\/www.legalindia.com\/judgments\/yyyyyshnan-vs-k-vaidhyanathan-on-26-october-2007-2\"]}]},{\"@type\":\"BreadcrumbList\",\"@id\":\"https:\/\/www.legalindia.com\/judgments\/yyyyyshnan-vs-k-vaidhyanathan-on-26-october-2007-2#breadcrumb\",\"itemListElement\":[{\"@type\":\"ListItem\",\"position\":1,\"name\":\"Home\",\"item\":\"https:\/\/www.legalindia.com\/judgments\/\"},{\"@type\":\"ListItem\",\"position\":2,\"name\":\"Yyyyyshnan vs K.Vaidhyanathan on 26 October, 2007\"}]},{\"@type\":\"WebSite\",\"@id\":\"https:\/\/www.legalindia.com\/judgments\/#website\",\"url\":\"https:\/\/www.legalindia.com\/judgments\/\",\"name\":\"Free Judgements of Supreme Court & High Court | Legal India\",\"description\":\"Search and read the latest judgements, orders, and rulings from the Supreme Court of India and all High Courts. A comprehensive database for lawyers, advocates, and law students.\",\"publisher\":{\"@id\":\"https:\/\/www.legalindia.com\/judgments\/#organization\"},\"alternateName\":\"Free judgements of Supreme Court & High Court of India | Legal India\",\"potentialAction\":[{\"@type\":\"SearchAction\",\"target\":{\"@type\":\"EntryPoint\",\"urlTemplate\":\"https:\/\/www.legalindia.com\/judgments\/?s={search_term_string}\"},\"query-input\":{\"@type\":\"PropertyValueSpecification\",\"valueRequired\":true,\"valueName\":\"search_term_string\"}}],\"inLanguage\":\"en-US\"},{\"@type\":\"Organization\",\"@id\":\"https:\/\/www.legalindia.com\/judgments\/#organization\",\"name\":\"Judgements of Supreme Court & High Court | Legal India\",\"alternateName\":\"Legal India\",\"url\":\"https:\/\/www.legalindia.com\/judgments\/\",\"logo\":{\"@type\":\"ImageObject\",\"inLanguage\":\"en-US\",\"@id\":\"https:\/\/www.legalindia.com\/judgments\/#\/schema\/logo\/image\/\",\"url\":\"https:\/\/www.legalindia.com\/judgments\/wp-content\/uploads\/sites\/5\/2025\/09\/legal-india-icon.jpg\",\"contentUrl\":\"https:\/\/www.legalindia.com\/judgments\/wp-content\/uploads\/sites\/5\/2025\/09\/legal-india-icon.jpg\",\"width\":512,\"height\":512,\"caption\":\"Judgements of Supreme Court & High Court | Legal India\"},\"image\":{\"@id\":\"https:\/\/www.legalindia.com\/judgments\/#\/schema\/logo\/image\/\"},\"sameAs\":[\"https:\/\/www.facebook.com\/LegalindiaCom\/\",\"https:\/\/x.com\/Legal_india\"]},{\"@type\":\"Person\",\"@id\":\"https:\/\/www.legalindia.com\/judgments\/#\/schema\/person\/0bfdffe9059fb8bb24a86d094609c5ea\",\"name\":\"Legal India Admin\",\"image\":{\"@type\":\"ImageObject\",\"inLanguage\":\"en-US\",\"@id\":\"https:\/\/www.legalindia.com\/judgments\/#\/schema\/person\/image\/\",\"url\":\"https:\/\/secure.gravatar.com\/avatar\/4faa9d728ed1af3b73d52225c7f12901ac726fe6f7ea0a3348a1d51f3a930987?s=96&d=mm&r=g\",\"contentUrl\":\"https:\/\/secure.gravatar.com\/avatar\/4faa9d728ed1af3b73d52225c7f12901ac726fe6f7ea0a3348a1d51f3a930987?s=96&d=mm&r=g\",\"caption\":\"Legal India Admin\"},\"sameAs\":[\"https:\/\/www.legalindia.com\",\"https:\/\/x.com\/legaliadmin\"],\"url\":\"https:\/\/www.legalindia.com\/judgments\/author\/legal-india-admin\"}]}<\/script>\n<!-- \/ Yoast SEO plugin. -->","yoast_head_json":{"title":"Yyyyyshnan vs K.Vaidhyanathan on 26 October, 2007 - Free Judgements of Supreme Court & High Court | Legal India","robots":{"index":"index","follow":"follow","max-snippet":"max-snippet:-1","max-image-preview":"max-image-preview:large","max-video-preview":"max-video-preview:-1"},"canonical":"https:\/\/www.legalindia.com\/judgments\/yyyyyshnan-vs-k-vaidhyanathan-on-26-october-2007-2","og_locale":"en_US","og_type":"article","og_title":"Yyyyyshnan vs K.Vaidhyanathan on 26 October, 2007 - Free Judgements of Supreme Court & High Court | Legal India","og_url":"https:\/\/www.legalindia.com\/judgments\/yyyyyshnan-vs-k-vaidhyanathan-on-26-october-2007-2","og_site_name":"Free Judgements of Supreme Court & High Court | Legal India","article_publisher":"https:\/\/www.facebook.com\/LegalindiaCom\/","article_published_time":"2007-10-25T18:30:00+00:00","article_modified_time":"2015-01-26T13:59:52+00:00","og_image":[{"width":512,"height":512,"url":"https:\/\/i0.wp.com\/www.legalindia.com\/judgments\/wp-content\/uploads\/sites\/5\/2025\/09\/legal-india-icon.jpg?fit=512%2C512&ssl=1","type":"image\/jpeg"}],"author":"Legal India Admin","twitter_card":"summary_large_image","twitter_creator":"@legaliadmin","twitter_site":"@Legal_india","twitter_misc":{"Written by":"Legal India Admin","Est. reading time":"34 minutes"},"schema":{"@context":"https:\/\/schema.org","@graph":[{"@type":"Article","@id":"https:\/\/www.legalindia.com\/judgments\/yyyyyshnan-vs-k-vaidhyanathan-on-26-october-2007-2#article","isPartOf":{"@id":"https:\/\/www.legalindia.com\/judgments\/yyyyyshnan-vs-k-vaidhyanathan-on-26-october-2007-2"},"author":{"name":"Legal India Admin","@id":"https:\/\/www.legalindia.com\/judgments\/#\/schema\/person\/0bfdffe9059fb8bb24a86d094609c5ea"},"headline":"Yyyyyshnan vs K.Vaidhyanathan on 26 October, 2007","datePublished":"2007-10-25T18:30:00+00:00","dateModified":"2015-01-26T13:59:52+00:00","mainEntityOfPage":{"@id":"https:\/\/www.legalindia.com\/judgments\/yyyyyshnan-vs-k-vaidhyanathan-on-26-october-2007-2"},"wordCount":6683,"commentCount":0,"publisher":{"@id":"https:\/\/www.legalindia.com\/judgments\/#organization"},"articleSection":["High Court","Kerala High Court"],"inLanguage":"en-US","potentialAction":[{"@type":"CommentAction","name":"Comment","target":["https:\/\/www.legalindia.com\/judgments\/yyyyyshnan-vs-k-vaidhyanathan-on-26-october-2007-2#respond"]}]},{"@type":"WebPage","@id":"https:\/\/www.legalindia.com\/judgments\/yyyyyshnan-vs-k-vaidhyanathan-on-26-october-2007-2","url":"https:\/\/www.legalindia.com\/judgments\/yyyyyshnan-vs-k-vaidhyanathan-on-26-october-2007-2","name":"Yyyyyshnan vs K.Vaidhyanathan on 26 October, 2007 - Free Judgements of Supreme Court & High Court | Legal India","isPartOf":{"@id":"https:\/\/www.legalindia.com\/judgments\/#website"},"datePublished":"2007-10-25T18:30:00+00:00","dateModified":"2015-01-26T13:59:52+00:00","breadcrumb":{"@id":"https:\/\/www.legalindia.com\/judgments\/yyyyyshnan-vs-k-vaidhyanathan-on-26-october-2007-2#breadcrumb"},"inLanguage":"en-US","potentialAction":[{"@type":"ReadAction","target":["https:\/\/www.legalindia.com\/judgments\/yyyyyshnan-vs-k-vaidhyanathan-on-26-october-2007-2"]}]},{"@type":"BreadcrumbList","@id":"https:\/\/www.legalindia.com\/judgments\/yyyyyshnan-vs-k-vaidhyanathan-on-26-october-2007-2#breadcrumb","itemListElement":[{"@type":"ListItem","position":1,"name":"Home","item":"https:\/\/www.legalindia.com\/judgments\/"},{"@type":"ListItem","position":2,"name":"Yyyyyshnan vs K.Vaidhyanathan on 26 October, 2007"}]},{"@type":"WebSite","@id":"https:\/\/www.legalindia.com\/judgments\/#website","url":"https:\/\/www.legalindia.com\/judgments\/","name":"Free Judgements of Supreme Court & High Court | Legal India","description":"Search and read the latest judgements, orders, and rulings from the Supreme Court of India and all High Courts. A comprehensive database for lawyers, advocates, and law students.","publisher":{"@id":"https:\/\/www.legalindia.com\/judgments\/#organization"},"alternateName":"Free judgements of Supreme Court & High Court of India | Legal India","potentialAction":[{"@type":"SearchAction","target":{"@type":"EntryPoint","urlTemplate":"https:\/\/www.legalindia.com\/judgments\/?s={search_term_string}"},"query-input":{"@type":"PropertyValueSpecification","valueRequired":true,"valueName":"search_term_string"}}],"inLanguage":"en-US"},{"@type":"Organization","@id":"https:\/\/www.legalindia.com\/judgments\/#organization","name":"Judgements of Supreme Court & High Court | Legal India","alternateName":"Legal India","url":"https:\/\/www.legalindia.com\/judgments\/","logo":{"@type":"ImageObject","inLanguage":"en-US","@id":"https:\/\/www.legalindia.com\/judgments\/#\/schema\/logo\/image\/","url":"https:\/\/www.legalindia.com\/judgments\/wp-content\/uploads\/sites\/5\/2025\/09\/legal-india-icon.jpg","contentUrl":"https:\/\/www.legalindia.com\/judgments\/wp-content\/uploads\/sites\/5\/2025\/09\/legal-india-icon.jpg","width":512,"height":512,"caption":"Judgements of Supreme Court & High Court | Legal India"},"image":{"@id":"https:\/\/www.legalindia.com\/judgments\/#\/schema\/logo\/image\/"},"sameAs":["https:\/\/www.facebook.com\/LegalindiaCom\/","https:\/\/x.com\/Legal_india"]},{"@type":"Person","@id":"https:\/\/www.legalindia.com\/judgments\/#\/schema\/person\/0bfdffe9059fb8bb24a86d094609c5ea","name":"Legal India Admin","image":{"@type":"ImageObject","inLanguage":"en-US","@id":"https:\/\/www.legalindia.com\/judgments\/#\/schema\/person\/image\/","url":"https:\/\/secure.gravatar.com\/avatar\/4faa9d728ed1af3b73d52225c7f12901ac726fe6f7ea0a3348a1d51f3a930987?s=96&d=mm&r=g","contentUrl":"https:\/\/secure.gravatar.com\/avatar\/4faa9d728ed1af3b73d52225c7f12901ac726fe6f7ea0a3348a1d51f3a930987?s=96&d=mm&r=g","caption":"Legal India Admin"},"sameAs":["https:\/\/www.legalindia.com","https:\/\/x.com\/legaliadmin"],"url":"https:\/\/www.legalindia.com\/judgments\/author\/legal-india-admin"}]}},"modified_by":null,"jetpack_featured_media_url":"","jetpack_sharing_enabled":true,"jetpack_likes_enabled":true,"jetpack-related-posts":[],"_links":{"self":[{"href":"https:\/\/www.legalindia.com\/judgments\/wp-json\/wp\/v2\/posts\/44327","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/www.legalindia.com\/judgments\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/www.legalindia.com\/judgments\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/www.legalindia.com\/judgments\/wp-json\/wp\/v2\/users\/1"}],"replies":[{"embeddable":true,"href":"https:\/\/www.legalindia.com\/judgments\/wp-json\/wp\/v2\/comments?post=44327"}],"version-history":[{"count":0,"href":"https:\/\/www.legalindia.com\/judgments\/wp-json\/wp\/v2\/posts\/44327\/revisions"}],"wp:attachment":[{"href":"https:\/\/www.legalindia.com\/judgments\/wp-json\/wp\/v2\/media?parent=44327"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/www.legalindia.com\/judgments\/wp-json\/wp\/v2\/categories?post=44327"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/www.legalindia.com\/judgments\/wp-json\/wp\/v2\/tags?post=44327"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}