IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH WEDNESDAY, THE 3RD APRIL 2009 / 13TH CHAITHRA 1931 SA.No. 804 of 1995() -------------------- AS.89/1994 of SUB COURT, PALA OS.32/1986 of MUNSIFF COURT, PALA .................... APPELLANT(S)/APPELLANT/3RD DEFENDANT: -------------- MOHANDAS, SON OF PARAMESWARA PILLAI, TAILORING WORKS, RESIDING AT KARIVELIPADIYIL HOUSE, KIDANGOOR. BY ADV. SRI.RAJEEV V.KURUP RESPONDENT(S)/RESPONDENTS/PLAINTIFFS AND OTHER DEFENDANTS: --------------- 1. THANKAMMA CHANDRIKA, WIFE OF THULASY, KARIVELIPPADIYIL HOUSE, KIDANGOOR P.O., KOTTAYAM DT. 2. CHANDRIKA JAYASREE, -DO- -DO- 3. NANIKUTTY AMMA THANKAMMA, -DO- -DO- 4. THANKAMMA GIRIJA, RESIING AT -DO- -DO- 5. BHASKAR P.NAIR, RESIDING AT BUILDING NO.3 FLAT NO.17, TRIM CO-OPERATIVE SOCIETY, YAGANIK NAGAR, JBM ROAD, AMBOLI, ANDHERI WEST, BOMBARY 400058. ADV. SRI.K.GOPALAKRISHNA KURUP SRI.K.SURESH KURUP SRI.SADER E.REAZ THIS SECOND APPEAL HAVING BEEN FINALLY HEARD ON 3.4.2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: THOMAS P. JOSEPH, J. -------------------------------------- S.A.No.804 of 1995 -------------------------------------- Dated this the 3rd day of April, 2009. JUDGMENT I had dictated judgment in this case on 25.3.2009 but before signing the judgment, I thought it necessary to hear the counsel again and accordingly the appeal was posted for being spoken to. 2. Heard the counsel. 3. This Second Appeal at the instance of defendant No.3 arises from the preliminary decree for partition passed by the learned Munsiff and confirmed by the first appellate court. Parties are referred to as plaintiffs and defendants as in the trial court for convenience. 4. The substantial questions of law raised for a decision are:- (i) Whether the first appellate court has applied the correct law applicable to the parties to hold that the property is partiable and also in dividing or separating of the shares of the parties over the plaint schedule property? (ii) Whether the courts below were correct in holding that defendant No.4 is also entitled to an equal share in the property as a member of the thavazhi when he was allotted a separate share under Ext.A1? SA No.804/1995 2 5. It is contended by learned counsel for the appellant/defendant No.3 that the courts below did not properly consider the evidence regarding family arrangement. Evidence of DW2 was not even referred to. It is also contended that the courts below did not consider the effect of defendant No.4 being allotted a separate share as E schedule in Ext.A1, partition deed. According to the learned counsel, defendant No.4 cannot be treated as a member of the thavazhi of Nanikutty Amma. 6. Defendant Nos.1 and 4 are the children of Nanikutty Amma who died in the year 1975. Plaintiff No.1 and Defendant Nos.2 and 3 are the children of defendant No.1. Plaintiff No.2 is the daughter of plaintiff No.1. The property in respect of which partition is claimed is the 'G schedule' in Ext.A1, partition deed No.3472 of 1103 which property was allotted to the sub- tharawad or thavazhi of Nanikutty Amma. Ext.A1 would show that the 'G schedule' therein was allotted to Nanikutty Amma and her daughter, Thankamma (defendant No.1) to be enjoyed as the property of the sub-tharawad headed by Nanikutty Amma. E schedule was allotted to defendant No.4 (son of Nanikutty Amma) and Kalyani Amma, sister of Nanikutty Amma (aunt of defendant No.4). It is contended by defendant No.3 that defendant No.4 has no right in the G schedule which is sought to be partitioned. I shall refer to this contention a bit later. SA No.804/1995 3 7. One contention urged by learned counsel for appellant/defendant No.3 is that there was a family arrangement based on whichExt.B1, partition deed executed on 16.1.1984 with the permission of plaintiff No.1 also. According to defendant No.3, defendant No.1 had preferred a complaint to the local N.S.S. Karayogam who intervened in the matter, a family arrangement was made and following that, Ext.B1, partition deed was executed. To prove that, defendant No.3 gave evidence as DW1. DW2 is the then Secretary of the N.S.S.Karayogam. They referred to the alleged family arrangement and execution of Ext.B1. Learned counsel contended that none of the courts below adverted to the evidence of DW2. It is true that while the courts below observed that there is no acceptable evidence regarding the alleged family arrangement leading to Ext.B1, no reference was made to the evidence of DW2. But, I do not think that a remand of the case for that reason alone is not warranted if the conclusion can otherwise be accepted. I have gone through the evidence of DW2 also. Concededly, plaintiffs are not parties to Ext.B1 and hence, that deed by itself cannot bind them. So far as the family arrangement is concerned, defendant No.3 stated that he had not preferred any complaint to the N.S.S.Karayogam but it was his mother who did so. Even regarding that, DW1 has no direct information as is revealed from his statement that his mother had told him about DW2 interfering and the parties entering into the family arrangement. DW2 in chief examination stated that 'plaintiff Chandrika' also agreed for division but in cross examination he stated that he had not talked to Chandrika. It was suggested that partition could be by metes and bounds but SA No.804/1995 4 DW2 does not know for himself what is meant by partition by metes and bounds. Evidence of DW1 is also not convincing to show that plaintiffs are parties to the so called family arrangement which culminated in Ext.B1. Therefore, though without referring to the evidence of DW2, the courts below were justified in finding that the family arrangement is not proved and hence Ext.B1 is not binding on the plaintiffs. 8. It is contended by learned counsel for appellant/defendant No.3 that defendant No.4 is not entitled to any share in the property since even at the time of Ext.A1, partition deed No.3472 of 1103, defendant No.4 was not included as a member of the thavazhi of Nanikutty Amma. Learned counsel contends that along with Kalyani Amma (sister of Nanikutty Amma), defendant No.4 was allotted a separate share (E schedule) as per Ext.A1 and hence, he has no right to claim share in the suit property. 9. That contention of the learned counsel requires to be considered. Ext.A1 shows that at the time of that partition Nanikutty Amma and defendant Nos.1 and 4 were alive. Nanikutty Amma is executant No.7 in Ext.A1. She along with defendant No.1, her daughter formed a thavazhi and to them the property referred to in the G schedule of Ext.A1 was allotted, which is the property sought to be partitioned in this case. Along with kalyani Amma (sister of Nanikutty Amma), defendant No.4 was allotted property described in the E schedule of Ext.A1. Thus even at the time of Ext.A1, defendant No.4 was not a SA No.804/1995 5 member of the thavazhi of Nanikutty Amma and hence on the premise that he is a member of that thavazhi he cannot claim share in the suit property. Courts below have not referred to this aspect of the matter. 10. It is not in dispute that Nanikutty Amma died intestate in the year 1975 before the commencement of the The Kerala Joint Hindu Family System (Abolition) Act, 1975 (Act 30 of 1976 as amended by Act 15 of 1978). Hence, as a natural heir of Nanikutty Amma, defendant No.4 is entitled to a share with defendant No.1 in the share Nanikutty Amma had in the suit property, by virtue of Section 15 of the Hindu Succession Act. Therefore, the entitlement of defendant No.4 is only for a share with defendant No.1 in the share of Nanikutty Amma in the suit property. If that be the position, plaintiffs together will get 4/12 shares, defendant No.1 will get 3/12 shares, defendant Nos.2 and 3 will get 2/12 shares each and defendant No.4 will get 1/12 share in the suit property. The preliminary decree is to be modified accordingly. Resultantly, this appeal is allowed in part and the preliminary decree is modified in the following lines: (a) The plaint schedule property will be divided into 12 shares. (b) Plaintiffs together will get 4/12 shares in the suit property. (c) Defendant No.1 will get 3/12 shares in the suit property. SA No.804/1995 6 (d) Defendant Nos.2 and 3 will get 2/12 shares each in the suit property. (e) Defendant No.4 will get 1/12 share in the suit property. (f) Parties will be at liberty to take out commission at the time of passing of final decree to share and separate the schedule property by metes and bounds. (g) No order as to costs. C.M.P.No.1962 of 1995 will stand dismissed. THOMAS P.JOSEPH, Judge. cks SA No.804/1995 7 Thomas P.Joseph, J. S.A.No.804 of 1995 JUDGMENT 3rd April, 2009.