IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE K.SURENDRA MOHAN FRIDAY, THE 24TH DAY OF JULY 2009/2ND SRAVANA 1931 A.S.No. 554 of 1996 (C) ----------------------- AGAINST THE ORDER/JUDGMENT IN OS 201/1992 of PRINCIPAL SUB COURT,PARAVUR DATED 31-01-1995 APPELLANTS:PLAINTIFFS 1 TO 4 ----------- 1. P.G.RATHNAVALLY, GAYATHRI, EAST VELIYATHUNAD, U.C.COLLEGE P.O, ALUVA - 2. 2. BIJU, DO. DO. 3. BINDU, OF DO. DO. 4. P.G.KOMALAVALLY, RESIDING AT 403, GOLDEN APARTMENT RAMBANG, M.G.ROAD, GORIGOAN WEST, BOMBAY.62 REPRESENTED BYT HER POWER OF ATTORNEY HOLDER, P.G.RATHNAVALLY (1ST APPELLANT). BY ADVS.SRI.B.JAYASANKER SRI.DINESH R.SHENOI RESPONDENT(S):(DEFENDANTS AND PLAINTIFFS 5 AND 6) -------------- 1. ANANDAVALLY, ANANDA BHAVAN KUTTAMASSERY, ALUVA. 2. LATHA, C/O.SAJEEVA KUMAR, TATA HOUSING SOCIETY, TYPE II, A/A. CHEMBUR, BOMBAY. 74. 3. GEETHA, ASOK BHAVAN, CHELAMATTOM, OKKAL P.O, PERUMBAVOOR. 4. PREETHA, ANANDA BHAVANAM, KUTTAMASSERY, ALUVA. 5. ARAVINDAKSHAN, KURUNTHALA HOUSE, DO. DO. A.S.No. 554 of 1996 (C) : 2 : 6. VENUGOPALAN, M/32, `THEJUS', CHANGAMPUZHA NAGAR, KALAMASSERY. 7. MURALEEDHARAN, POTHANALIL HOUSE, EAST KADUNGALLUR, U.C.COLLEGE P.O, ALUVA.2. 8. KAMALA KUMARY, C-34, FACT COLONY, UDYOGAMANDAL P.O. 9. VINOD KUMAR, OF DO. DO. 10. VIMAL KUMAR, OF DO. DO. 11. VIPIN KUMAR, OF DO. DO. 12. THE STATE OF KERALA REPRESENTED BY THE CHIEF SECRETARY, THIRUVANANTHAPURAM. 13. SANTHOSH, RESIDING AT 403, GOLDEN APARTMENTS, RAMBANG, M.G.ROAD, GORIGOAN WEST, BOMBAY.62. 14. SMITHA, RESIDING AT DO. DO. R BY ADV. SRI.K.C.CHARLES R1 TO R11 BY ADV.A.BALAGOPAL R, BY ADV. SRI.GOVT.PLEADER SRI SHYSON P.MANGUZHA THIS APPEAL SUITS HAVING BEEN FINALLY HEARD ON 24-07-2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K. SURENDRA MOHAN, J. ------------------------------------------------------------ A.S. NO: 554 OF 1996 ----------------------------------------------------------- Dated this the 24th July, 2009. JUDGMENT Plaintiffs in O.S.201 of 1992 of the Principal Sub Court, North Paravur are the appellants. They challenge the judgment and decree dated 31.1.1995 dismissing the suit filed by them for declaration and recovery of money. 2. Plaintiffs 1 and 4, respondents 1, 5, 6 and 7 are children of late Gowrikutty Amma. She had two other sons, Bhaskaran and Radhakrishnan, who are no more. Late Bhaskaran was a bachelor. Respondent Nos: 8 to 11 are the wife and children of late Radhakrishnan. Plaintiffs 2 and 3 are the children of the first plaintiff and plaintiffs 5 and 6 are the children of the fourth plaintiff. They have been made parties to the appeal as respondents 13 and 14. Respondents 2, 3 and 4 are the children of the first respondent. 3. According to the plaintiffs, late Gowrikutty Amma was the member of a Marumakkathayam Tarawad known as Pisharath Tarwad. The properties of the Pisharath Tarawad were partitioned on 11.11.1952. As per the partition deed registered as document No: 3829 of 1952. The said document has been marked as Ext.B2 by the court below. It is alleged that an extent of 42 cents of land comprised in Survey No: 269/5D was set A.S.NO: 554 of 1996 2 apart to the share of the Sakha of 8 children of Gowrikutty Amma who are plaintiffs 1,4, defendants 1,5 to 7 late Radhakrishnan and late Bhaskaran. Since the property was tarawad property the sharers took the property with all the incidents of the tarawad property and they constituted a tarawad under the Travancore Nair Act. Plaintiffs 2 and 3, 5 and 6 who are children of the first and 4th plaintiffs respectively as well as defendants 2 to 4, children of the first defendant, were born subsequent to the partition deed but before the coming into force of the Hindu Joint Family Abolition Act. Therefore, on their birth, it is contended that they became members of the tarawad with equal rights in the tarawad properties along with the other members. Upon the death of Bhaskaran in 1970 and Radhakrishnan in 1979, by virtue of the provisions of the Hindu Succession Act 1956, their shares devolved on their surviving brothers and sisters entitling them to 1/11 share to which each one of them was entitled to. When the Kerala Joint Hindu Family System (Abolition) Act, 1975 came into force, there were 14 members in the tarawad and they became co-owners in respect of the properties, having 1/14th share therein. When Radhakrishnan died in 1979 he was entitled to 12/154 share of 40 cents in survey No: 269/5D of Paravur village and his share devolved on defendants 8 to 11 who are his wife and children. A.S.NO: 554 of 1996 3 4. An extent of 3.90 ares out of the aforesaid property was acquired by the State in 1980. Thereupon, the plaintiffs and defendants 1 to 11 were entitled to share the compensation awarded in proportion to their shares in the property. It is alleged that no notice was received by the plaintiffs and in September 1986, when they came to know of the proceedings, the 5th defendant had already obtained a certificate from the Tahsildar showing only the names of plaintiffs 1,4, defendants 1 & 5 to 11 as the persons who have rights in respect of the property. Though the first plaintiff submitted a petition before the RDO on 25.9.1986 claiming that plaintiffs 2 and 3 and the children of the fourth plaintiff also were entitled to shares in the compensation, no action was taken on the petition. On 12.12.1986 the first plaintiff came to know that notices had been received by some of the defendants on 1.12.1986 of an award and on enquiry it was known that the award was passed only in favour of the major members of the tarawad. Though objections were filed and the plaintiffs were informed that their claim would be referred for adjudication to the Sub Court, that was not done. LAR 567/88, the reference made by the Land Acquisition Officer related to the claim for enhanced compensation alone. 5. In the above circumstances, the plaintiffs made another representation on 1.10.1990 to the Revenue Divisional Officer and since there was no action on the same, plaintiffs 1 and 2 filed O.P.591/1991 A.S.NO: 554 of 1996 4 before this Court for a direction to refer the matter to the Sub Court, which was alleged to be pending at the time of filing of the suit. According to the plaintiffs, an amount of Rs. 34,238.16 was awarded as compensation out of which each of the sharers were entitled to a sum of Rs.14,228.80. Therefore, they sought to recover the said amount out of the compensation awarded as per award No: 69/86 dated 23.9.1986 of the RDO, Fort Kochi and for a declaration that the plaintiffs are entitled to get due share of the enhanced compensation in LAR 567/88, with interest. The plaintiffs filed the suit praying for a decree for realisation of the said amount from the defendants with costs. 6. Defendants 1,3 and 4 to 10 filed a joint written statement refuting the plaint claim. They denied the plaint averment that Gowrikutty Amma was a member of the Marumakkathayam family. According to them, when Gowrikutty Amma was a minor, in the year 1097 ME as per partition deed No: 1099 ME the properties of the tarawad were divided and she became the sole owner of the properties allotted to her. Till her death in 1950, she continued to be the sole owner of the properties and after her death, her properties devolved upon her children and the children of her deceased sons. No one else has any rights in the property. The allegation that on 11.11.1952 the properties of Pisharath Tarawad were partitioned is denied. Though as per document No: 1097 ME, the properties allotted to A.S.NO: 554 of 1996 5 Velayudhan, Karthiayani and her daughter Lakshmikutty and to the minor daughter Gowrikutty Amma were not separately partitioned, their shares were fixed as 2/7 and 3/7 respectively. As per the partition deed of 11.11.1952 the shares were only separated. Gowrikutty Amma was the sole owner of 3/7 share and on her death her properties devolved upon her children and children of her pre-deceased children. Her properties are not family properties, it is contended. 7. An extent of 27 cents in Survey No: 269/5D was set apart towards the share of Gowrikutty Amma and her children, defendants 1 and 4 and 5, 6 and 7 and Bhaskaran and Radhakrishnan as per the partition deed of 11.11.1952. The shares were allotted to them as children of the same owner and on the death of Radhakrishnan his share devolved upon his wife and children, defendants 8 to 11. Defendants 2 to 4 are unnecessary parties to the suit for the reason that 13 cents on the southern side of the 27 cents allotted to Lakshmikutty Amma was allotted to her for the reason that her mother Karthiayani had died prior to 11.11.1952. Plaintiffs 1 to 4, defendants 1 and 5 to 7, Radhakrishnan and Bhaskaran were directed to maintain Lakshmikutty and on the death of Lakshmikutty her property devolved upon them. A portion of those two items were acquired by the State. The exact extent acquired was not ascertained. A.S.NO: 554 of 1996 6 8. The allegation that the joint family continued after the properties were partitioned in 1952, that the properties were partitioned with all the qualities of a family property etc. were all denied. According to the defendants, Gowrikutty Amma was the sole owner of her properties and she was enjoying the property along with her children. The contention that the children have acquired rights by virtue of their birth and the claim that each one of them is entitled to individual shares in the property are not correct. According to the defendants, the amounts awarded in LAR 68/1993 were received by them. The persons born after the death of Gowrikutty Amma were not entitled to any rights in the property. They denied that the plaintiffs were entitled to the amount of Rs.14,288.80 each out of the compensation awarded. Therefore, they prayed for dismissal of the suit. 9. The 12th respondent, State of Kerala was also the 12th defendant in the suit. The State has filed a formal written statement admitting that an extent of 3.90 ares in survey No: 269/5-B covered by document No: 3829/52 of Sub Registry, Paravur along with other properties were acquired for the Thattukadavu bridge and bridges in Paravur Village. The claims of the owners were considered and an award was passed granting compensation for the land acquired, under Section 12(2) of the Land Acquisition Act, 1894. The said award is: 69/86. A joint reference petition A.S.NO: 554 of 1996 7 dated 5.1.1987 was filed by the first defendant and defendants 5 to 10 on 7.1.1987. There was a reference under Section 18 of the Land Acquisition Act of the Sub Court, Paravur and the case was adjudicated as LAR 567/88 and its execution petition is pending in that court. Though plaintiffs 1 and 2 had filed a petition dated 1.10.1980, the same was not considered since it was out of time. The plaintiffs have filed O.P.591/1991 before this Court and this Court directed the authorities to refer the question of apportionment to the Civil Court, if not already referred. Accordingly, a reference was made and the claim is pending consideration of the Sub Court, Paravur. Therefore, the 12th defendant prayed for dismissal of the suit. 10. The suit was tried by the court below on the above pleadings after raising six issues. No oral evidence was adduced by both sides. No document was also produced by the plaintiff. For the defence, two documents were produced and they have been marked as Exts.B1 and B2. Ext.B1 is the partition deed No: 1099/1097 ME and Ext. B2 is the partition deed No: 3829/52. The court below after a consideration of the pleadings of the rival parties and the decisions on the point, found that the properties allotted to late Gowrikutty Amma included properties other than tarawad properties also, all of which remained together, without being separated. However, the court below found that the plaintiffs had not produced any A.S.NO: 554 of 1996 8 evidence in support of their claim for recovery of share in the amount of compensation awarded by the Land Acquisition authorities. Therefore, the suit was dismissed. The said judgment and decree are under challenge in the above appeal. According to the learned counsel for the appellant the properties continued to be tarawad properties even after Exts.B1 and B2 partition deeds, till 1976 when the Kerala Hindu Joint Family System (Abolition) Act, 1975 (hereinafter referred to as the 1975 Act for short) was enacted. Plaintiffs 2, 3,5 & 6 and defendants 2,3 and 4 being persons who were born before the date of coming into force of the 1975 Act were entitled to individual shares in the tarawad properties on their birth. With the coming into force of the Hindu Joint Family Abolition Act, they acquired individual rights as co-owners in respect of the properties that belonged to the tarawad. Therefore, they were entitled to equal shares in the land that was acquired by the 12th defendant. Consequently, they claim that they ought to have been found entitled to receive shares in the amount of compensation awarded. On the above basis, they prayed for setting aside the judgment and decree of the court below and for allowing the above appeal. 11. Counsel for the respondents on the other hand contends that though the appellants have staked a claim to a share in the amount of compensation awarded they have not established a right to receive any A.S.NO: 554 of 1996 9 such amount. According to the counsel, the properties ceased to be family properties as early as in 1097 ME with Ext.B1 partition deed. Thereafter, the properties continued to be the absolute properties of late Gowrikutty Amma. On her death, the properties devolved upon her eight children. Therefore, it is contended that the appellants have no right to claim a share in the amount of compensation awarded. It is pointed out that the plaintiff had not produced any evidence in the case either oral or documentary in support of their claim. Exts.B1 and B2 documents were produced only by the defendants. 12. I have heard the counsel for the parties on either side. I have also gone through the pleadings and the evidence in the case. 13. The only question that arises for consideration is whether the appellants/plaintiffs are entitled to a share in the amount of compensation awarded, as claimed? 14. A reading of Ext.B1 partition deed shows that the properties set apart by the said document to the share of Gowrikutty Amma is as her sole property. As per Ext.B1, properties were allotted to Gowrikutty Amma along with her maternal grandmother Karthyiayany Lakshmikutty Amma and Velayudhan. The properties had been allotted as absolute properties. The properties allotted to her are seen to have been separated in 1952 by Ext.B2 partition deed. All the children of Gowrikutty Amma are parties to A.S.NO: 554 of 1996 10 Ext.B2. As per Ext.B2, the property allotted to Gowrikutty Amma has been divided among them. 15. The court below has found that the property allotted to the children of Gowrikutty Amma under Ext.B2 includes property other than the family property also. The property so allotted as per Ext.B2 consists of an extent of 27 cents of land and the building in B and C schedule properties on the northern side of 53 cents in survey No: 269/5D excluding A schedule of 13 cents and B schedule of 13 cents. It appears from Ext.B2 that the total extent of property in survey No: 269/5-B is 1 acre 19 cents. 16. It has been admitted in the written statement of the 12th defendant that the property that was acquired is comprised in Survey No: 269/5D. However, the plaint does not contain any description of the property. There is no evidence regarding the amount that was actually awarded as compensation. Since the rights of the plaintiffs are disputed by the defendants, it was incumbent upon the plaintiffs to have established their rights. However, no documents are produced by the plaintiffs in support of their case. Neither the Land Acquisition notification nor the award passed are produced. None of the plaintiffs have mounted the box to depose to their case. There is a total lack of evidence in this case in support of the case pleaded by the plaintiffs. In the above circumstances it A.S.NO: 554 of 1996 11 is not possible to decide the case put forward by the plaintiffs, one way or the other. Therefore, the court below has rightly dismissed the suit. 17. In the appeal also no attempt has been made to produce any evidence in support of the case of the appellants. May be it is because the question of apportionment, which is stated to have been referred to the Civil Court for adjudication has been decided in favour of the appellants or may be it is because they are pursuing their claims before the said court. Be that as it may, there are no grounds to interfere with the judgment and decree of the court below. The appeal fails and is dismissed for the above reasons. No costs. Sd/- K. SURENDRA MOHAN Judge jj /True copy/ A.S.NO: 554 of 1996 12 K. SURENDRA MOHAN, J. ------------------------------- A.S.NO: 554 OF 1996 ------------------------------ JUDGMENT Dated: 24th July, 2009.