{"id":45870,"date":"2008-04-04T00:00:00","date_gmt":"2008-04-03T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/n-ammukutty-amma-vs-prabhakaran-on-4-april-2008"},"modified":"2016-10-13T13:39:39","modified_gmt":"2016-10-13T08:09:39","slug":"n-ammukutty-amma-vs-prabhakaran-on-4-april-2008","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/n-ammukutty-amma-vs-prabhakaran-on-4-april-2008","title":{"rendered":"N.Ammukutty Amma vs Prabhakaran on 4 April, 2008"},"content":{"rendered":"
Kerala High Court<\/div>\n
N.Ammukutty Amma vs Prabhakaran on 4 April, 2008<\/div>\n
       \n\n  \n\n  \n\n \n \n  IN THE HIGH COURT OF KERALA AT ERNAKULAM\n\nAS.No. 7 of 1992(B)\n\n\n\n1. N.AMMUKUTTY AMMA\n                      ...  Petitioner\n\n                        Vs\n\n1. PRABHAKARAN\n                       ...       Respondent\n\n                For Petitioner  :SRI.D.KRISHNA PRASAD\n\n                For Respondent  :SRI.D.NARENDRANATH\n\nThe Hon'ble MR. Justice P.R.RAMAN\nThe Hon'ble MR. Justice V.K.MOHANAN\n\n Dated :04\/04\/2008\n\n O R D E R\n                P.R.RAMAN & V.K.MOHANAN,JJ.\n             ----------------------------------------------\n                         A.S.N0.7 OF 1992\n             ----------------------------------------------\n                       Dated, 4th April, 2008.\n\n                             JUDGMENT\n<\/pre>\n
Raman,J.\n<\/p>\n<\/p>\n
     Plaintiffs are the appellants. The suit is one for partition<\/p>\n
and separate possession of 7\/29 shares of the plaint B schedule<\/p>\n
property of item Nos. 1 to 3.\n<\/p>\n
     2.    According to the plaint averments, plaintiffs and<\/p>\n
defendants 1 to 18 are members                  of an ancient Nair<\/p>\n
Marumakkathayam        tarwad by name         `Nikampurath tarwad’.<\/p>\n
Defendants 19 to 34 are legal heirs of deceased male members<\/p>\n
of the tarwad who died after the commencement of the Hindu<\/p>\n
Succession Act, 1956. Defendants 19 to 21 are legal heirs of<\/p>\n
deceased Govindan Nair; defendants 22 to 25 are legal heirs of<\/p>\n
deceased Karunakaran Nair; defendants 26 to 30 are legal heirs<\/p>\n
of deceased Cherootty Nair and defendants 31 to 34 are legal<\/p>\n
heirs of deceased Narayanan Nair. According to the plaintiffs,<\/p>\n
item No.1 of the plaint B Schedule property was assigned by<\/p>\n
the then tarwad karanavan, namely, Kunhikrishnan Nair for and<\/p>\n
AS 7\/92                       -:2:-<\/span><\/p>\n
on behalf of the tharwad and as karanavan of the tharwad. The<\/p>\n
earlier kanam deed was renewed by registered kychit No.926 of<\/p>\n
1985 by Cherootty Nair, the subsequent        karanavan    of the<\/p>\n
tharwad, likewise in the same manner for and on behalf of the<\/p>\n
tarwad. Later Cherootty Nair and his nephew, late Govindan Nair,<\/p>\n
renewed the earlier kanam right by registered deed No.3451\/1922<\/p>\n
and the property was vested in the tarwad. Item Nos. 2 and 3 of<\/p>\n
the plaint B schedule was assigned by the said Kunhikrishnan<\/p>\n
Nair for the   tarwad as per registered kanam kychit No.3318 of<\/p>\n
1888.     Later Kunhikrishnan Nair died.   The then    karanavan,<\/p>\n
Cherootty Nair renewed the same for the tarwad as per Ext.A3<\/p>\n
registered kanam kychit No.2740\/1923.          While he was in<\/p>\n
possession, he died, and the subsequent karanavan Govindan Nair<\/p>\n
renewed it in his capacity as the karanavan of tarwad and for the<\/p>\n
benefit of the tarwad vide registered kanam deed No.2389\/1950.<\/p>\n
The said properties   were in    the joint possession of   tarwad<\/p>\n
members.     As already stated, plaintiffs and defendants 1 to 18<\/p>\n
are members of the tarwad. According to the plaintiffs, there were<\/p>\n
29 members in the tarwad before the Joint Hindu Family Abolition<\/p>\n
AS 7\/92                       -:3:-<\/span><\/p>\n
Act and after the Hindu Succession Act came into force by virtue<\/p>\n
of   Under section 7 of the Hindu succession Act, a partition is<\/p>\n
deemed to have been effected on the dates of deaths of the said<\/p>\n
members and their respective shares      would    devolve on their<\/p>\n
personal legal heirs. On the date of commencement of the Joint<\/p>\n
Hindu Family system (Abolition) Act, 1975 (Act 30 of 1976)<\/p>\n
including the shares of said deceased male members, there were<\/p>\n
29 sharers for tarwad property. Plaintiffs 1 to 7 are entitled to<\/p>\n
7\/29 shares. Defendants 1 to 18 each entitled to 1\/29 shares;<\/p>\n
defendants 19 to 21 together entitled 1\/29 share, defendants 22<\/p>\n
to 25 together entitled 1\/29 share; defendants 26 to 30 together<\/p>\n
entitled 1\/29 share; defendants 31 to 34 together entitled 1\/29<\/p>\n
share. Defendants 35 and 36 are the assignees of portions of B<\/p>\n
Schedule item No.1 from the 20th defendant, the former 10<\/p>\n
cents    and the latter 13 > cents respectively. The properties<\/p>\n
sought to be partitioned are plaint B schedule items 1 to 3. Plaint<\/p>\n
schedule item 1 is garden land, the total extent of which was<\/p>\n
originally 7.5 acres.  Portions of this  land had been given on<\/p>\n
Charthu to others by former Karanavans and hence        what was<\/p>\n
AS 7\/92                          -:4:-<\/span><\/p>\n
available for partition is only the balance extent. Plaint B schedule<\/p>\n
item 1 is described as :\n<\/p>\n
              ”\n<\/p><\/blockquote>\n
                                  .”<\/p>\n
Plaint B schedule      items 2 and 3 are paddy lands,by name<\/p>\n
”     ”. Exts.A1 and A4 are the title deeds in respect of<\/p>\n
plaint B schedule items which are kanom renewal by registered<\/p>\n
deeds. Exts.A1 and A2 relate to Plaint B schedule item 1 and<\/p>\n
Exs.A3 and A4 relate       to  items 2 and 3 plaint       B schedule<\/p>\n
property. As is known there is no dispute that kanam is only a<\/p>\n
form of tenancy given by the landlord in favour of the tenant and<\/p>\n
on the     expiry of the original period, it is being        renewed<\/p>\n
subsequently. The terms and conditions of kanam are contained<\/p>\n
in the deed itself regarding payment to be made by tenants to the<\/p>\n
landlord. According to the plaintiff, since the properties  originally<\/p>\n
belonged to tarwad as is evidenced by the renewal of kanam by<\/p>\n
respective karanavans from time to time, the properties are joint<\/p>\n
properties entitled to be partitioned.\n<\/p>\n
AS 7\/92                        -:5:-<\/span><\/p>\n
      3. Defendants 1, 2 and 4 to 8 in the written statement<\/p>\n
contended that they are entitled to 7\/29 shares       with   mesne<\/p>\n
profits. According to them they are not taking income from the<\/p>\n
property and are in joint possession along with other defendants.<\/p>\n
Defendants 3, 9 to 18 filed joint written statement contending<\/p>\n
that no tarwad is in existence as averred in the plaint. So the suit<\/p>\n
is not maintainable. They denied that plaint B schedule properties<\/p>\n
were belonged to the tarwad or were in the possession of tarwad<\/p>\n
karanavan.    According to them, it is not correct to say that<\/p>\n
Govindan Nair was the next karanavan because he had an elder<\/p>\n
brother named     Appu Nair,     and no property is    partible  by<\/p>\n
plaintiffs and defendants. Certain portion of item (1) was assigned<\/p>\n
by Govindan Nair in 1930         and that    was    bequeathed to<\/p>\n
defendants    1 and 21.    Out of the property    partitioned   and<\/p>\n
obtained    by 21st defendant, 10th defendant    purchased    some<\/p>\n
portion as   per assignment deed No.2825\/1974. Thus Govindan<\/p>\n
Nair and his      heirs were in possession openly and without<\/p>\n
interruption.   Even if the plaintiffs had any claim right over the<\/p>\n
property, that is lost by adverse possession and limitation. Item<\/p>\n
AS 7\/92                          -:6:-<\/span><\/p>\n
Nos.2 and 3 belong to defendants 19 to 21. They prayed for their<\/p>\n
separate possession if the court finds that the properties are<\/p>\n
partible.\n<\/p>\n
      4. Defendants 19, 20 and 21 filed written statement raising<\/p>\n
similar contentions.\n<\/p>\n
      5. Defendants 26 to 30 in their joint       written statement<\/p>\n
supported the claim of the plaintiffs for partitioning and allotting<\/p>\n
their separate shares. Defendants 31 to 34 also filed separate<\/p>\n
written statement and claimed their share. Defendants 22 to 25<\/p>\n
claimed for partition and their separate share. Defendants 35 and<\/p>\n
36 filed separate written statement stating that the extent of item<\/p>\n
No.1 of the plaint B schedule property is 3 acre 48 cents and it<\/p>\n
is not the tarwad property of plaintiff and defendants;     but was<\/p>\n
the self acquired property of Govindan Nair.     The contention of<\/p>\n
defendants 35 and 36 are similar to the contentions raised by other<\/p>\n
contesting defendants.    It is further contended by them that the<\/p>\n
35th defendant purchased 10 cents of property from item No.1 and<\/p>\n
he was in possession and enjoyment of the property as absolute<\/p>\n
owner. 36th defendant purchased 13 > cents in item No.1. Those<\/p>\n
AS 7\/92                          -:7:-<\/span><\/p>\n
properties are not partible.\n<\/p>\n
      6.   Admittedly, the plaintiffs and defendants 1 to 18 are<\/p>\n
members of the tarwad and entitled to partition. some of the<\/p>\n
aforesaid    parties and male members died and legal heirs were<\/p>\n
already brought on record who         are entitled to the respective<\/p>\n
shares succeeding the estate of the shares of their predecessors.<\/p>\n
      7. The trial court framed 12 issues for consideration based<\/p>\n
on the pleadings.\n<\/p>\n
      8. The evidence consisted of the oral testimony of PW1;<\/p>\n
DWs 1 to 3 and documentary evidence Ext.A1 to A7 and Ext.B1 to<\/p>\n
B42.\n<\/p>\n
      9. The trial court found that the plaint A schedule genealogy<\/p>\n
is not correct and complete. It is also found that portion of item<\/p>\n
(1) of the plaint B schedule property was not tarwad property of<\/p>\n
plaintiffs and defendants 1 to 18 as alleged and it is the self<\/p>\n
acquisition and is in possession of Nikampurath Govindan Nair. It<\/p>\n
is also held that title of defendants 19 to 21 over item No.1 of the<\/p>\n
plaint B schedule property is lost by adverse possession and<\/p>\n
limitation. According to the court below, defendants 19 to 21 have<\/p>\n
AS 7\/92                        -:8:-<\/span><\/p>\n
obtained property as per the document executed by Govindan<\/p>\n
Nair since 1963 onwards. They have obtained patta in respect of<\/p>\n
the properties assigned in their favour as evidenced by Exts. B31<\/p>\n
and B33.      The property as per Ext.A5 was partitioned in 1974<\/p>\n
by Ext.B1. Plaintiffs were also parties in Ext.B1 and they obtained<\/p>\n
the property. According to the court below, that circumstances<\/p>\n
show that Govindan Nair treated plaint B schedule property as<\/p>\n
his self-acquired property and after Ext.B1 partition, each sharer<\/p>\n
is enjoying their respective share. According to the court below,<\/p>\n
the remaining     property  available for partition is not correctly<\/p>\n
stated and no decree could be passed          for partition  of an<\/p>\n
undefined and unspecified item.     In the result,   the   suit was<\/p>\n
dismissed, however, without cost.        Aggrieved    thereby, the<\/p>\n
appellants preferred this appeal.\n<\/p>\n
     10. The first question that falls for consideration is as to<\/p>\n
whether item (1) of plaint B Schedule is a joint tarward property<\/p>\n
of plaintiffs and defendants 1 to 18 or a self acquired property of<\/p>\n
Govindan Nair.      According to the plaintiff, the plaintiffs and<\/p>\n
defendants 1 to 18 are members of undivided Nair tarwad known<\/p>\n
AS 7\/92                        -:9:-<\/span><\/p>\n
as Nikampurath tarwad.      Item(1)    of plaint B schedule      was<\/p>\n
assigned by Kunhikrishnan Nair, the karanavan of the tarwad for<\/p>\n
and on behalf of the tarwad and as karanavan of the tarwad. The<\/p>\n
earlier   kanam deed was         renewed by Cherooty Nair, the<\/p>\n
subsequent karanavam of the tarwad in the year 1985. Ext.A1 is<\/p>\n
the registration copy of Kanam Assignment deed document No.926<\/p>\n
dated 9-3-1985.    Originally, the total extent  was     7.5 acres.<\/p>\n
Admittedly, portions of the property        were assigned by the<\/p>\n
former karanavans on charthu to others.       What    is the actual<\/p>\n
extent thus assigned by way of charthu is not stated in the plaint<\/p>\n
and complete. However, the plaintiffs limit their claim for partition<\/p>\n
only to the remaining extent available in item B less what is<\/p>\n
assigned earlier by former karanavans. At this stage, we need not<\/p>\n
take the trouble of   calculating the actual extent available since<\/p>\n
this is a matter to be determined in the final decree proceedings.<\/p>\n
Therefore what has to be considered is as to whether item (1) of<\/p>\n
plaint B schedule   is a tarwad     property. This property    in B<\/p>\n
schedule is described in Ext.A1 as :\n<\/p>\n
AS 7\/92                       -:10:-<\/span><\/p>\n
         ”\n<\/p><\/blockquote>\n
                                 .”<\/p>\n
The plaint B schedule items 2 and 3 are admittedly paddy lands<\/p>\n
by name ”     ”             Ext. A1 is executed by Cherootty Nair<\/p>\n
in favour of the Jenmi. It is described as kanam kychit. It is<\/p>\n
further recited that the  scheduled items were originally in the<\/p>\n
name of his karanavan Kunhikrishnan Nair. The kanam amount<\/p>\n
is 2 rupees 12 anas. This renewal deed is executed by Cherootty<\/p>\n
Nair in favour of the Jenmi. Admittedly, the executant       had<\/p>\n
taken advantage of the kanam amount already         paid by the<\/p>\n
previous karanavan as a consideration    for the renewal   under<\/p>\n
Ext.A1. Consequently, there is no substantial change in the<\/p>\n
kanam amount as such. These two aspects would indicate that<\/p>\n
the succeeding karanavan has only renewed the deed in favour<\/p>\n
of the Jenmi on the expiry of the original period for which the<\/p>\n
property was outstanding in tenancy with the Tarwad. Ext.A2 is a<\/p>\n
document of the year 1922.       This document executed by the<\/p>\n
Jenmi of the property   jointly in favour of Cherootty Nair and<\/p>\n
Govindan Nair, his nephew. It is the same property covered by<\/p>\n
AS 7\/92                        -:11:-<\/span><\/p>\n
Ext.A1 that is again renewed in favour of the Cherootty Nair<\/p>\n
and Govindan Nair. (Here also there is no change in the kanam<\/p>\n
amount). The contention now raised on behalf of the respondent is<\/p>\n
that either in Ext.A1 or A2 there is nothing to indicate that the<\/p>\n
property was taken on assignment under kanam right for and on<\/p>\n
behalf of the Tarwad and that according to the respondent it<\/p>\n
would only indicate that the property is taken by tenants in their<\/p>\n
personal capacity or in their individual name. We are unable to<\/p>\n
accept this contention. Admittedly, before Ext.A1, the property<\/p>\n
was outstanding on tenancy with the tarwad. It was only after<\/p>\n
the expiry of the original period that Ext.A1 was executed by way<\/p>\n
of renewal of deed by succeeding karanavan, namely, Cherooty<\/p>\n
Nair. Kanam amount is the same in Ext.A1 and A2. Admittedly,<\/p>\n
kanam amount was paid even prior to Ext.A1 by karanavan and<\/p>\n
the property was taken on lease by tarwad. Thus the nucleus,<\/p>\n
namely the kanam amount paid by the          tarwad continues  to<\/p>\n
remain with the landlord and what was done by Exts.A1 and A2<\/p>\n
was mere renewals without paying any further amount or after<\/p>\n
surrender by the earlier kanam amount in faovour of the tarwad.<\/p>\n
AS 7\/92                        -:12:-<\/span><\/p>\n
Thus the renewal enure to the tarwad and they were not taken<\/p>\n
by the executants in their individual capacity.<\/p>\n
           11. As regards item Nos 2 and 3 of B schedule covered<\/p>\n
by two documents Exts.A3 and A4,        Ext.A3 is the kanom deed<\/p>\n
executed by Cherooty Nair. The kanam amount is 6 rupees and 4<\/p>\n
anas which is the same amount paid by the prior karanavan as<\/p>\n
per kychit No.3318\/1888. The recitals contained in Ext.A3 show<\/p>\n
that there was no surrender or fresh lease but it is only a renewal<\/p>\n
of the lease for a further period for the same kanam amount.<\/p>\n
Ext.A4 is dated 30-9-1950 which is executed by Govindan Nair.<\/p>\n
The description of Govindan Nair is ‘Kaikaryakarthavu’.    This is a<\/p>\n
document executed in favour of Govindan Nair by Jenmi and there<\/p>\n
is a clear recital that the earlier kanam deed was in favour of<\/p>\n
the then karanavan – late Cherootty Nair for the kanam amount of<\/p>\n
6 rupees   and 4 anas and reference is made to Ext.A3 in this<\/p>\n
connection. Therefore, there cannot be any dispute that Cherootty<\/p>\n
Nair was the previous karanavan who had taken assignment in his<\/p>\n
capacity as the karanavan for and on behalf of the tarwad and<\/p>\n
later, the succeeding karanavan Govindan Nair in whose favour,<\/p>\n
AS 7\/92                        -:13:-<\/span><\/p>\n
the Jenmi had renewed lease for a further period. These four<\/p>\n
documents      therefore would    clearly  show that     the property<\/p>\n
covered by Exts.A1 and A2 in respect of item (1) of B schedule as<\/p>\n
well as Exts.A3 and A4 were          taken on lease by the then<\/p>\n
karanavamn for and on behalf of the tarwad and not in their<\/p>\n
individual name. It is seen from Ext.A3 that even prior to the<\/p>\n
execution of Ext.A3 renewal deed by Cherootty Nair, he was in<\/p>\n
possession of the property. Such        possession     is   based on<\/p>\n
registered    kanam deed 1318\/1888 executed         by the previous<\/p>\n
karanavan and on terms        and    conditions   stipulated therein.<\/p>\n
Kanam deed No.3318\/1888 was executed            by the       previous<\/p>\n
karanavan Kunhikrishnan Nair. The plaintiffs have a case that the<\/p>\n
previous karanavan Kunhikrishnan Nair is the Kunhikrishnan Nair<\/p>\n
referred to in Ext.A1 and this is specifically averred by the<\/p>\n
plaintiffs in paragraph III(3) of the plaint, and it is not denied by<\/p>\n
any of the defendants.      However,    Cherooty Nair took Ext.A3<\/p>\n
renewal for the same kanam amount as already noted above. We<\/p>\n
have already noticed that after the death of Cherooty Nair, the<\/p>\n
kanam is renewed in the name of the Govindan Nair, who was<\/p>\n
AS 7\/92                      -:14:-<\/span><\/p>\n
the succeeding karanavan and husband of the 19th defendant and<\/p>\n
father of defendants 20 and 21. Ext. A4 is the renewal deed in<\/p>\n
favour of Govindan Nair executed by the karanavan of the jenmi.<\/p>\n
This is only for continuation of the possession of the previous<\/p>\n
karanavan. Ext.A4 would show that the karanavan did not incur<\/p>\n
any further expenditure for taking the renewal. Therefore, on a<\/p>\n
consideration of the above aspects, we have no hesitation to hold<\/p>\n
that the kanam was taken by the karanavanan for and on behalf<\/p>\n
of the   tarwad and so not to be treated as their self acquired<\/p>\n
property.     When a property is acquired in the name of<\/p>\n
karanavan, the presumption is that it is a tarwad property and<\/p>\n
the presumption holds good unless and until it is rebutted by<\/p>\n
acceptable evidence. Reference may be made to the decision of<\/p>\n
the   Apex Court in Achuthan Nair v.        Chinnammu Amma<\/p>\n
(A.I.R.1966 S.C.411).<\/a>\n<\/p>\n
           12. However, it has to be clarified that an extent of<\/p>\n
2.50 acres was owned by the tarwad described as Neekampurathu<\/p>\n
Parambu where there was a tarwad house.      Ext.A6 was executed<\/p>\n
by the karanavan Cherootty Nair in respect of the said paramba in<\/p>\n
AS 7\/92                         -:15:-<\/span><\/p>\n
favour of his nephew Govindan Nair in 1916 which stipulates that<\/p>\n
Govindan Nair redeemed the earlier panayams. Govindan Nair<\/p>\n
stated to have redeemed those panayams and obtained possession<\/p>\n
of the Neekampurath paramba.          An extent of 1.50 acres of land<\/p>\n
out of the plaint B schedule item 1 is also given by way of Charthu<\/p>\n
by Cherootty Nair in the year 1907. The description contained in<\/p>\n
the plaint itself would show that the plaintiff was claiming partition<\/p>\n
only the property described in the plaint schedule less what has<\/p>\n
been given by way of Charthu. Therefore, both the Neekampurath<\/p>\n
Paramba and 2.5 acres and 1.50 acres in the plaint schedule item<\/p>\n
(1) is not included    for the purpose of partition.    We are only<\/p>\n
making this aspect clear so as to avoid future dispute. Ext.A5 is<\/p>\n
the Will executed by Govindan Niar in respect of two items of<\/p>\n
properties. Item 1 was the Neekampurath Paramba which he<\/p>\n
obtained under Ext.A6 and item 2 was the           1.50 acres of B<\/p>\n
schedule    item 1 which      he got     under Ext.B27 sale deed.<\/p>\n
Govindan Nair bequeathed item 1 by Ext.A5 Will to his nephew<\/p>\n
and nieces who are parties 1 to 21 in the Will. The 22nd party in<\/p>\n
Ext.A5 was Padmanabhan Nair, son of Govindan Nair, who is the<\/p>\n
AS 7\/92                        -:16:-<\/span><\/p>\n
21st defendant in the suit. Item 2 in the said Will i.e., 1.50 acres<\/p>\n
of plaint B schedule item 1 obtained by Govindan Nair        as per<\/p>\n
Ext.B27 was bequeathed by him jointly in favour of party Nos.12<\/p>\n
and 22 in Ext.A5.     This would     reveal that Govindan Nair was<\/p>\n
dealing with the properties as self-acquired property and does<\/p>\n
not form part of the property available for partition.<\/p>\n
      13.   Learned Counsel      appearing for the     respondents<\/p>\n
Sri.M.C.Sen contended that    survey numbers mentioned in Ext.A2<\/p>\n
are 132\/8, 133\/1 and 128 whereas in Ext.B34 partition between<\/p>\n
the legal representatives of Govindan Nair namely his wife, son and<\/p>\n
daughter who are defendants 19 to 21, the subject matter of<\/p>\n
partition is the property comprised in 134\/1, R.S.35\/1B       which<\/p>\n
is having an      extent of 1.95    acres.  True, that  property in<\/p>\n
Sy.No.132\/5 and 133\/1 of an extent of 75 cents is also included<\/p>\n
in the said partition. The argument is that so long as Sy. 131\/1 is<\/p>\n
not included in Ext.A2, this cannot be treated as tarwad property<\/p>\n
available for partition.   Sri P.G.Paramesewara Panicker (senior<\/p>\n
counsel) appearing for the appellant would contend that while the<\/p>\n
parties have traced title, they have referred to   Ext.A2 only and<\/p>\n
AS 7\/92                        -:17:-<\/span><\/p>\n
therefore the fact that different survey numbers mentioned does<\/p>\n
not show that the property dealt with in Ext.B34 is a different<\/p>\n
property other than covered by Ext.A2.        Admittedly, the total<\/p>\n
extent covered by      Ext.A2 is 7.50 acres of which 1.50 acres<\/p>\n
covered by deed No.1327. Another extent of 1 acre 19 = cents<\/p>\n
that is outstanding with Aboobacker and another extent 46 =<\/p>\n
outstanding with Karunakaran      are   liable to be excluded from<\/p>\n
partition. If so, only the balance is available for partition, i.e.4.33<\/p>\n
acre. But even this is in dispute by the respondents contending<\/p>\n
that the total extent available under Ext.A2 is only 3 = acres<\/p>\n
instead of 7 acres. But going by the document Ext.A2, the total<\/p>\n
extent is 7 acres 50 cents. What is actually available            is a<\/p>\n
matter to be decided in the final decree. The contention based on<\/p>\n
Ext.B34 and the difference in the survey numbers made mention<\/p>\n
however, does not appear to be tenable since we are not proposed<\/p>\n
to go into details regarding the survey numbers and the extent<\/p>\n
available in Ext.A2. Ext.A2 is a kanam assignment deed in favour<\/p>\n
of tarwad, the total extent , going by the description, is available<\/p>\n
for partition.   If as a matter of fact, parties to Ext.B34 traces<\/p>\n
AS 7\/92                         -:18:-<\/span><\/p>\n
their title, nothing of this sort is made mention in A2. As a<\/p>\n
matter of fact though Ext.B34 is executed by Govindan Nair, which<\/p>\n
deals with self acquired property, it is not the case        of the<\/p>\n
contesting respondents that Sy.No.134\/1 is      the property made<\/p>\n
mention of in the Will. If so, it is up to them to give evidence as<\/p>\n
to how they got title in respect of Sy.No.134\/1. At any rate for<\/p>\n
the limited purpose of the present suit for partition we only say<\/p>\n
that the property covered by Ext.A2 is available for partition, the<\/p>\n
extent of which is to be decided at the time of final decree.<\/p>\n
      14. Coming to the shares to be allotted, there is no dispute<\/p>\n
between the parties. Accordingly, we reverse the decree passed<\/p>\n
by the court below.       There will be  a preliminary decree for<\/p>\n
partition.   Plaintiffs 1 to 7 together entitled to 7\/29 shares;<\/p>\n
defendants 1 to 18 each entitled to 1\/29 shares; defendants 19 to<\/p>\n
21 together entitled to 1\/29 share; defendants 22 to 25 together<\/p>\n
are entitled to 1\/29 share; defendants 26 to 30 together are<\/p>\n
entitled to 1\/29 share and defendants 31 to 34 together are<\/p>\n
entitled to 1\/29 share.\n<\/p>\n
      15. It was     stated by the learned counsel for the appellant<\/p>\n
AS 7\/92                         -:19:-<\/span><\/p>\n
that    the property   transferred by assignment       in favour of<\/p>\n
defendants 35, 36 and 37 are also available for partition.     True<\/p>\n
that the transaction as such may not bind the appellant, but it<\/p>\n
is for the appellant to agitate the said issue in other appropriate<\/p>\n
proceedings. This we say because following the decision of the<\/p>\n
Division Bench in Sarojini Amma v. Pappi Amma<\/a> (1973 KLT<\/p>\n
148) wherein it is held that there cannot be a partition of the<\/p>\n
property in the hands of the trespassers unless it is reduced to<\/p>\n
possession of the joint family. If the sale deed is not binding on<\/p>\n
the plaintiffs, necessarily the   assignee   has to be   treated as<\/p>\n
trespasser.     Therefore applying the above principle, partition<\/p>\n
cannot be granted as it is not in joint possession.<\/p>\n
      16. It was then contended that the suit is hit by adverse<\/p>\n
possession.    As rightly pointed out by       the Sr.Counsel   Sri<\/p>\n
P.G.Parameswara Panicker,      the contesting defendants are legal<\/p>\n
representatives of Govindan Nair who are co-sharers as respect<\/p>\n
the share of Govindan Nair. If so,       their joint possession with<\/p>\n
others will in no way bar the claim for partition by the plaintiffs<\/p>\n
nor any question of adverse possession as against co-sharers<\/p>\n
AS 7\/92                         -:20:-<\/span><\/p>\n
would arise. further plea of adverse possession arises only when<\/p>\n
the plaintiff’s title is admitted by the respondents. In this case<\/p>\n
defendants are disputing the title of the plaintiffs.<\/p>\n
     In the result, the suit is decreed and a preliminary decree is<\/p>\n
passed as stated earlier. The suit is allowed as above. No costs.<\/p>\n
                                              P.R.RAMAN, JUDGE.\n<\/p>\n
                                           V.K.MOHANAN, JUDGE.\n<\/p>\n
kvm\/-\n<\/p>\n
AS 7\/92    -:21:-<\/span><\/p>\n
                         P.R.RAMAN &<\/p>\n
                     V.K.MOHANAN, J J.\n<\/p><\/blockquote>\n
                     A.S.No.7 OF 1992<\/p>\n
                             Judgment<\/p>\n
                         Dated:4-4-2008<\/p>\n
AS 7\/92    -:22:-<\/span><\/p>\n<\/blockquote>\n","protected":false},"excerpt":{"rendered":"
Kerala High Court N.Ammukutty Amma vs Prabhakaran on 4 April, 2008 IN THE HIGH COURT OF KERALA AT ERNAKULAM AS.No. 7 of 1992(B) 1. N.AMMUKUTTY AMMA … Petitioner Vs 1. PRABHAKARAN … Respondent For Petitioner :SRI.D.KRISHNA PRASAD For Respondent :SRI.D.NARENDRANATH The Hon’ble MR. Justice P.R.RAMAN The Hon’ble MR. Justice V.K.MOHANAN Dated :04\/04\/2008 O R D […]<\/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-45870","post","type-post","status-publish","format-standard","hentry","category-high-court","category-kerala-high-court"],"yoast_head":"\nN.Ammukutty Amma vs Prabhakaran on 4 April, 2008 - 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\/n-ammukutty-amma-vs-prabhakaran-on-4-april-2008\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"N.Ammukutty Amma vs Prabhakaran on 4 April, 2008 - 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