IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR WEDNESDAY, THE 12TH MARCH 2008 / 22ND PHALGUNA 1929 SA.No. 482 of 1994(G) --------------------- AS.37/1989 of SUB COURT, PAYYANNUR OS.296/1985 of MUNSIFF COURT, PAYYANNUR .................... APPELLANT/2ND APPELLANT/2ND DEFENDANT: ----------- MOOLAKKOVVAL KUNHAKKAN, MAMBALAM. PAYYANNUR (PO) KANNUR (DIST). BY ADV. SRI.M.SASINDRAN RESPONDENTS/RESPONDENTS/PLAINTIFF/DEFENDENTS 3 TO 6 AND LRS OF ------------- 1ST APPELLANT IN A.S.: 1. KUNHIPPURAYIL KUNHAKKAM, W/O.LATE KRISHNAN, PANAPPUZHA AMSOM, PARAVOOR, PANAPPUZHA, KANNUR (DIST). 2. K.BALAKRISHNAN, S/O.KUNHIPURAYIL KUNHAKKAM, OF DO. 3. K.VELAYUDHAN OF DO. 4. K.BHASKARAN, OF DO DO. 5. K.THANKAMANI, DO DO. 6. GOURI.K, DO DO. 7. K.VALSALA, OF DO DO. 8. MOOLAKKOVVAL CHERIYA, D/O.KUNJIRI PANAPPUZHA AMSOM, PARAVOOR DESOM, PANAPPUZHA KANNUR. 9. -DO- RAMAN, S/O.KUNJIRI, DO DO. 10. -DO- KALLIANI, D/O.KUNJIRI, DO DO. 11. PANAVALAPPIL NARAYANAN, S/O.LAKSHMI AMMA, KOTTOOR AMSOM DESOM, KUTTOOR, KANNUR. 12. PACHA KARTHIAYANI, W/O.LATE MOOLAKKOVVAL KANNAN, MAMBALAM, PAYYANNUR PO, KANNUR. SA.No. 482/1994/G -2- 13. PACHA GIRIJA, D/O.PACHA KARTHIAYANI, DO DO. 14. PACHA MURALI, DO DO. 15. PACHA SUPRIYA, DO DO. 16. PACHA SASI, DO DO 17. PACHA SUNITHA, DO DO. BY ADV. SRI.V.R.VENKATAKRISHNAN (SR.) SRI.N.C.JOSEPH SRI.S.ANANTHAKRISHNAN THIS SECOND APPEAL HAVING BEEN FINALLY HEARD ON 12/03/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: M.SASIDHARAN NAMBIAR,J. ------------------------------------------ S.A .NO. 482 OF 1994 ------------------------------------------ Dated 12th March 2008 J U D G M E N T Second defendant in O.S.296/1985 on the file of Munsiff court, Payyannur is the appellant. Respondents 1 to 7 are plaintiffs and other respondents, other defendants. Suit was for partition. Trial court passed a preliminary decree directing division of the plaint schedule property into 48 shares and allotment of 3 shares to plaintiffs, 12 shares each to defendants 1, 2 and 6 and three shares each to defendants 3,4 and 5, directing appellant to pay the share of profits, quantum of which is to be fixed in the final decree. Appellant challenged the preliminary decree and judgment along with first defendant, before Sub court, Payyannur in A.S.37/1989. Learned Sub Judge on re-appreciation of evidence confirmed the preliminary decree and dismissed the appeal. It is challenged in second appeal. 2. Second appeal was admitted formulating the SA 482/94 2 following substantial question of law. Whether courts below were right in holding that defendants 1 and 6 also got equal right over 3/4 share of the properties along with defendant No.2. 3. Learned counsel appearing for appellant and respondents 1 to 12 heard. 4. It is admitted by the appellant in his written statement that plaint schedule property originally belonged to Chirakkal Kovilakam in jenm right and it was outstanding in the possession of Narayana Pattar under a kuzhikanam lease and later under Ext.A1 registered assignment deed, Narayana Pattar transferred his right in favour of Moolakovval Raman and his sister Mani on 20/5/1913. Mani admittedly had two daughters. Cheriya and Kunjiri. Cheriya had three children, defendants 1 and 2 and deceased Raman. Karthiayani is the widow of Raman. Kunjiri had four children. Defendants 3 to 5 and deceased Krishnan. First respondent/plaintiff is the widow and plaintiffs 2 to 7 are the children. It is also admitted case that the one half right of Moolakovval Raman over the property obtained under Ext.A1, was sold in court auction sale in execution of the decree, in E.P.326/1940 SA 482/94 3 in S.C.431/1939. One Thotten Thalakkal Krishnan purchased the property in court auction sale. Subsequently on his death, the sole legal heir Kochu through power of attorney holder Thotten Thalakkal Raman instituted O.S.551/1956 for partition of one half right over the property which belonged to Moolakovval Raman. Item No. 2 of the properties in that suit is the property obtained under Ext.A1. Item No.1 of the suit properties in that suit was another item of the property, which was also purchased in that court auction sale. Ext.B2 final decree was passed in R.I.A.95/1959 on 3/12/1960. As per the final decree, item No.2 therein namely, the property covered under Ext.A1 was divided into two halves, northern half and southern half. Plot P1A, the southern 14½ cents, was allotted to the share of the plaintiff in O.S.551/1956. So out of the property covered under Ext.A1, one half share due to Moolakovval Raman, which was sold in court auction and purchased by Krishnan was separated by the decree in O.S.551/1956 5. Respondents 1 to 7 claimed a share in the plaint schedule property admitting the court auction sale and also that Krishnan transferred his right in favour of Cheriya. According to respondents 1 to 7, on the death of SA 482/94 4 Kunjiri her right devolved on defendants 3 to 5 as well as deceased Krishnan and each of them have 1/4th share in the one half right of Kunjiri which devolved on her as legal heir of deceased Mani. Plaintiffs are claiming 1/4 share due to Krishnan, deceased son of Kunjiri being his widow and children. What was contended by appellant/second defendant along with first defendant was that Mani died after coming into force of Madras Marumakkathayam Act, 1932 and before coming into force of Hindu Succession Act, 1956 and on the death of Mani her rights devolved on her thavazhy consisting of Cheriya and Kunjeri. It was contended that one half right of Raman which was sold in court auction was also obtained by Cheriya and Cheriya has been in exclusive possession of the property and while so, she transferred her right in favour of appellant, her son and appellant obtained jenm right under Ext.B9 sale deed and therefore the entire right now vests with appellant alone and plaintiffs or other defendants are not entitled to any share. 6. On the death of Cheriya her rights devolved on her children, defendants 1 and 2 and deceased Raman. Karthiayani is the widow of Raman. Under Ext.B43, Karthiayani assigned her right which devolved on her as SA 482/94 5 widow of Raman in favour of Kannan under Ext.B43 which was purchased by sixth defendant under Ext.B44. 7. Learned Munsiff on the evidence found that no evidence was adduced to prove that parties are Marumakkathayis or that Mani died before coming into force of Hindu Succession Act, 1956. It was also found that on the death of Mani her one half right over the property covered under Ext.A1 devolved on her children Cheriya and Kunjiri. Being the legal heirs of Krishnan, plaintiffs are entitled to that share. A preliminary decree allotting the said share was passed. It was also found that remaining 3/4 shares on the death of Kunjiri devolved on defendants 3 to 5 her other children. So also on the death of Cheriya her right devolved on defendants 1 and 2 and Raman her children and each one of them are entitled to one share. Under Ext.B43 and B44, the 1/3 right of Raman now vest with sixth respondent. Learned Sub Judge on re-appreciation of evidence confirmed the same. 8. Though it was contended by the appellant that Mani died before coming into force of Hindu Succession Act, in the absence of any evidence with regard to the date, month or year of death, findings of courts below SA 482/94 6 that appellant did not establish that Mani died before coming into force of Hindu Succession Act is perfectly correct. So also, apart from claiming that the property obtained under Ext.A1 belonged to the thavazhy, no evidence was adduced to prove that parties are governed by Marumakkathayam Act or that lease under Ext.A1 was in favour of the thavazhy or tarawad. More over, Ext.B9 jenm assignment deed obtained by appellant is sufficient to reject that plea. If case of appellant is that assignment obtained by Raman and Mani under Ext.A1 was for the tharawad or thavazhy is true, on the death of Mani her right will not devolve on Cheriya or Kunjiri alone but to all members of the thavazhy. If that be the case, in Ext.B9 it would not have been recited that property belongs to Cheriya. Ext.B9 shows that jenm right was assigned by landlord in favour of appellant, on the basis that the property was originally outstanding in the possession of Mani and it devolved on Cheriya and later Cheriya transferred it in favour of appellant. The right that devolved on the death of Mani is only her one half right. The remaining one half right was with her brother Raman. The right devolved on cheriya is only the one half right of Mani. The remaining one half right SA 482/94 7 devolved on Kunjiri. That could be the case only if the property was obtained by Raman and Mani, on their individual right and not for any thavazhy. When appellant is claiming right under Ext.B9 and Ext.B9 establishes that it is not a thavazhy property, appellant cannot be heard to contend that the property obtained by the thavazhy or that it is a thavazhy property. Therefore, courts below rightly found that plaint schedule property was not a thavazhy property and instead it was the property of Raman and Mani and each of them have one half right. 9. Mani had one half right in the property covered under Ext.A1. The other one half right was sold in court auction and divided under Ext.B2. On the death of Mani her one half right alone devolved on her daughter Cheriya and Kunjiri. It is that one half right which devolved on Kunjiri, which devolved on her children defendants 3 to 5 and deceased Krishnan. That 1/4 right of the one half right devolved on plaintiffs. Courts below rightly found that plaintiffs are entitled to the 1/4 share of one half right of Kunjiri over her one half right devolved on her as daughter of Mani. 10. After the court auction sale of one half right SA 482/94 8 of Moolakovval Raman, that one half right was sought to be divided in O.S.551/1956. Under Ext.B2 final decree that one half right was separated. Hence as legal heirs of deceased Krishnan, the deceased son of Kunjiri, plaintiffs are entitled only the remaining property excluding the property divided under Ext.B2. 11. The only substantial question of law formulated while admitting the appeal was in respect of the shares due to defendants 1 and 6. Plaint shows that there was no prayer for partition of the rights which originally vested with Moolakovval Raman. It was admittedly sold in court auction sale in E.P.326/1940. Partition was sought in respect of one half right of Mani, which devolved on her legal heirs. As stated earlier one half right over the entire property which vests with Raman, brother of Mani was sold in court auction sale and auction purchaser through the power of attorney holder instituted O.S.551/1956. Pursuant to the preliminary decree Ext.B2 final decree was passed and the southern one half right over item No.2 therein, which is the plaint schedule property, was allotted to the share of the auction purchaser. Therefore, property which is available as the share of Mani subsequent to Ext.B2 SA 482/94 9 final decree is only the northern one half. Though it is contended that the right so obtained by the auction purchaser was transferred to Cheriya plaintiffs are not entitled to claim any share in that property and partition of that property was not sought. Therefore the decree for partition in the suit is to be confined to the northern one half as shown in Ext.B2 final decree namely plan 2 appended to Ext.B2 decree. 12. Mani had two daughters. Cheriya and Kunjiri. As far as the share of Cheriya is concerned it devolved on defendants 1 and 2 and deceased Raman. Each of them have 1/3 share on the one half right of Cheriya. Under Exts.B43 and 44 sixth defendant obtained the 1/3 share which vested on the deceased Raman. Defendants 1 and 2 are entitled to 1/3 share each over one half share of Cheriya which would be 8/48 shares each. On the death of Kunjiri her right devolved on defendants 3 to5, her children and deceased Krishnan. Each of them is having 1/4 share. On the death of Krishnan his 1/4 right over one half right of Kunjiri devolved on the plaintiffs. Plaintiffs are entitled to 6/48 shares. Defendants 3 to 5 are entitled to 6/48 shares each. Unfortunately, this aspect was not properly considered. Hence it is necessary SA 482/94 10 to modify the preliminary decree passed by the courts below. 13. Appeal is allowed in part. Preliminary decree passed by the courts below is modified as follows. Property available for partition is the unallotted plot excluding plot P1A of item No.2 of Ext.B2 final decree. It shall be divided into 48 equal shares. Plaintiffs together are entitled to 6 shares. Defendants 1, 2 and 6 are entitled to 8/48 shares each. Defendants 3,4 and 5 are entitled to 6 shares each. Second defendant is liable to pay share of profits to the plaintiffs and other defendants from the date of the suit, quantum of which shall be fixed in the final decree proceedings. M.SASIDHARAN NAMBIAR, JUDGE. uj. SA 482/94 11 ============================= M.SASIDHARAN NAMBIAR,J. JUDGMENT S.A.NO.482 OF 1994 12th March 2008 ============================