IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOTTATHIL B.RADHAKRISHNAN & THE HONOURABLE MR. JUSTICE P.BHAVADASAN MONDAY, THE 6TH DECEMBER 2010 / 15TH AGRAHAYANA 1932 AS.No. 176 of 1998(D) ------------------------------ OS.1129/1986 of I ADDL.SUB COURT, THRISSUR .................... APPELLANT(S): 37THE DEFENDANT ----------------------------------------------------- CHANDRADASAN, S/O. VATHIYATH KUMARAN, PADIYAM VILLAGE, TRICHUR TALUK, TRICHUR DISTRICT. BY ADVS. SRI.T.K.MARTHANDAN UNNITHAN SRI.MATHEW UMMEN RESPONDENT(S): PLAINTIFFS, DEFENDANTS 2 TO 28,30 TO 36, 38 & 39. ------------------------------------------------------------------------------------------------------ 1. BHARGAVI AMMA, D/O.ALLATH KUNCHI AMMA, ANTHKAD VILLAGE AND DESOM, TRISSUR TALUK. 2. NANDAKUMARNA, /O. ALLATH BHARGAVI AMMA, DO. DO. 3. SIVARAMA MENON, S/O. ALLATH KUNCHI AMMA, ANTHIKKAD VILLAGE AND DESOM, THRISSUR TALUK. 4. PEETHAMBHARA MENON, S/O. ALLATH KUNCHI AMMA, OVERSEAR, NO.59763, DC, HC, 32 BRTF, C/O. 56 APO. *5. GOURI AMMA, D/O. ALLATH KUNCHI AMMA, ANTHIKKAD VILLAGE AND DESOM, THRISSUR TALUK.(DIED) *6. EASWARI AMMA, D/O. ALLATH KUNCHI AMMA DO. DO.(DIED) * 7. KOCHUNARAYANI AMMA, DO. DO.(DIED) A.S. NO.176/1998 *IT IS RECORDED THAT THE 7TH RESPONDENT DIED AND THAT THE 8TH RESPONDENT LAREADY IN THE PARTY ARRAY IS HER LEGAL REPRESENTATIVE VIDE ORDER DTD. 17.9.09 ON IA. 2387/09. *RESPONDENTS 7 AND 8 ARE RECORDED AS THE LEGAL HEIRS OF THE DECEASED 5TH AND 6TH RESPONDENTS, VIDE ORDER DTD. 7.4.06 IN IA. 1132/06. 8. BHAGEERADHI AMMA, DO. DO. 9. SUNDARAN, S/O. ALLATH BHARGAVI AMMA, P.O. ERAVU, THRISSUR DISTRICT. 10. SASIDHARAN, S/O. ALLATH BHARGAVI AMMA, ANTHIKKAD VILLAGE AND DESOM, THRISSUR TALUK. 11. VIJAYALAKSHMI.A., D/O. ALLATH BHARGAVI AMMA, TEACHER, TSS.F.M.SCHOOL, P.O.ERAVU, THRISSUR. 12. MINI, D/O. ALLATH VIJAYALAKSHMI, DO. DO. 13. SWARNAKUMARI, D/O. ALLATH BHARGAVI AMMA, DO.DO. 14. BINDHU, D/O. ALLATH SWARNAKUMARI, DO. DO. 15. GEETHA, D/O. ALLATH SWARNAKUMARI, DO. DO. 16. LATHA, D/O. ALLATH SWARNAKUMARI, DO. DO. 17. MADHUSUDHANAN, S/O. ALLATH SWARNAKUMARI DO. DO. 18. RAMACHANDRAN, S/O. ALLATH BHAGEERADHI AMMA, ANTHIKKAD VILLAGE AND DESOM, THRISSUR TALUK. 19. RADHAKRISHNAN, S/O. ALLATH BHAGEERADHI AMMA, DO. DO. 20. SUBHARDRAMMA, W/O. ALLATH LATE NARAYANANKUTTY MENON, THAYYAPPULLATH HOUSE, THANISSERY DESOM, KIZHUTHANI VILLAGE. 21. GOPAKUMAR, S/O. SUBHADRAMMA, DO. DO. 22. NANDAKUMAR, S/O. DO. DO. 23. KRISHNAKUMAR, S/O. SUBHADRAMMA , DO. DO. 24. MINI KUMARI, D/O. SUBHADRAMMA DO. DO. A.S. NO.176/1998 25. VIMALADEVI AMMA, W/O. ALLATH LATE RAGHUNADHA MENON, PULLISSERY, THOTTIPPAL VILLAGE, AND DESOM, MUKUNDAPURAM TALUK. 26. USHAKUMARI, D/O. VIMALADEVI AMMA, DO. DO. 27. PREETHI, D/O. DO. 28. REKHA, D/O. DO. DO. 29. BALACHANDRAN (MINOR), S/O. VIMALADEVI AMMA, DO. DO. 30. VASUDEVAN, S/O. MENOTHPARAMBIL AYYAPPAN, ANTHIKKAD VILLAGE AND DESOM, THRISSUR TALUK. 31. SUGATHAN, S/O. KALLAT KUNHAMAN, PADIYAM VILLAGE, THRISSUR TALUK. *32. SUBRAMANIAN, S/O. THANDASSERY KUNHIKRISHNAN, VADAKKUMMURI VILLAGE, THRISSUR TALUK.(DELETED) 33. SURESH, S/O.THANDASSERY KUNHIKRISHNAN, DO. DO. 34. SASIDHARAN, S/O. THANDASSERY KUNHIKRISHNAN DO. DO. *35 SREEDHARAN, S/O. VANNERY KARAPPANKUTTY, SANTHI NAGAR COLONY, CHUNKAM, AYYANTHOLE, THRISSUR TALUK. * RESPONDENTS 32 & 35 ARE DELETED FROM THE PARTY ARRAY AT THE RISK OF THE PETITIONER VIDE ORDER DTD. 7.4.06 IN IA. 1131/06. 36. RAVI, S/O. CHULLIYIL MADHAVAN, ENGANDIYOOR AMSOM AND DESOM, CHAVAKKAD TALUK. 37. JINADASAN, S/O. MENOTHPARAMBIL LATE KRISHNAN, ANTHIKKAD VILLAGE AND DESOM, THRISSUR TALUK. A.S. NO.176/1998 38. SARADA AMMA, D/O. ITHIKKAT KALIKUTTY AMMA, VATANAPPILLY AMSOM AND DESOM, CHAVAKKAD TALUK. (MINOR RESPONDENT NO.29 IS REPRESENTED BY GUARDIAN MOTHER 25TH RESPONDENT). R2 BY ADV. SMT.I.SHEELA DEVI R10, 11, 13 BY ADV. SRI.K.GEORGE VARGHESE KANNANTHANAM, SRI.TONY GEORGE KANNANTHANAM. R8, 19 BY SRI.S.V.BALAKRISHNA IYER, SENIOR ADVOCATE R30, 31, 37 BY ADV. SRI.K.G.SARATHKUMAR R 36 BY ADV. SRI.P.V.CHANDRA MOHAN R38 BY ADV. SRI.N.P.SAMUEL SMT.REJI RAMACHANDRAN THIS APPEAL SUITS HAVING BEEN FINALLY HEARD ON 22/11/2010, ALONG WITH AS NO. 407 OF 1998 THE COURT ON 06/12/2010 DELIVERED THE FOLLOWING: tss THOTTATHIL B. RADHAKRISHNAN & P. BHAVADASAN, JJ. - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - A.S. Nos. 176 & 407 of 1998 - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 6th day of December, 2010. JUDGMENT Bhavadasan, J, These appeals are by two sets of defendants in O.S. 1129 of 1986 before the Sub Court, Thrissur, who suffered a preliminary decree for partition. The parties and facts are hereinafter referred to as they are available before the court below. 2. One Ammu alias Kunjiyamma had ten children. They are the first plaintiff, defendants 1 to 7, late Narayanankutty Menon and late Raghunatha Menon. Kunjiyamma died in 1981. Rugmini, Padmini, Parameswaran had predeceased Kunjiyamma. They died in 1956. Narayanankutty Menon and Raghunatha Menon died in 1981 before the suit. The plaint schedule property consisted of two items of property, namely, A and B schedule properties. Plaint A schedule property had three items of property having a total A.S.176 & 407/98. 2 extent of 1.12 acres. Plaint B schedule consisted of four items of properties having a total extent of over 3 and odd acres. The plaint claim was that both the acquisitions were for and on behalf of the tavazhy, of which Kunjiyamma was the senior most female member and the plaintiffs and the defendants are entitled to shares in the property. Pointing out that the plaintiffs did not wish to continue the joint status, they filed the suit for partition. they claimed 2/20 shares. 3. It appears that during the pendency of the suit, the first defendant died and defendant No.39 was brought on the party array. 4. Defendants 1, 4, 5, 6, 19 and 24 filed a joint written statement. They disputed that the plaint schedule properties were acquired for and on behalf of the tavazhy. According to them, plaint B schedule properties were sold for a debt of the family and it was purchased by one Krishnan Nambiar. They also disputed that plaint A schedule items were tavazhy properties. According to them, that was an acquisition utilizing the funds of the husband of Kunjiyamma for and on A.S.176 & 407/98. 3 behalf of Kunjiyamma and her children and therefore it is a puthravakasam property. Various other contentions were also raised, which are not very relevant for the present purpose. 5. Defendants 7, 17 and 18 also filed a written statement disputing the allegations in the plaint and claiming that 25½ cents in B schedule was assigned to them as per Ext.B4 deed dated 4.2.1953 and they are entitled to exclusive possession and enjoyment of the same. They have put up a building in the property and are residing there. They have also contended that if it is found that the property is partible, they have perfected their title by adverse possession and limitation. 6. Defendants 13 to 16 and 25 to 28 filed separate written statements admitting the plaint claim. 7. Defendants 29 to 32 and 34 filed a written statement pointing out that the assignment in their favour evidenced by Ext.B2 dated 2.7.1977 is a valid document and the property covered by the said document is not available for partition. A.S.176 & 407/98. 4 8. The 38th defendant being an assignee from defendants 33, 35 and 36, adopted the contentions put forward by them. 9. On the basis of those pleadings necessary issues were raised by the court below. The evidence consists of the testimony of P.W.1 and 2 and Exts.A1 to A8 marked from the side of the plaintiff. Defendants had D.Ws. 1 to 4 examined and Exts.B1 to B8 marked. The court below found that both A and B schedule properties are tavazhy properties and accordingly passed a preliminary decree, which reads as follows: “Plaint A and B schedule properties will be divided into 910 shares and out of it the first plaintiff, defendants 39, 2, 3, 5, 6 and 7 are entitled to get 56 shares each. Defendants 19 to 23 are entitled to get 49 shares and defendants 24 to 28 are also entitled to 49 shares. Second plaintiff, defendants 8, 9, 10, 11, 12, 13, 14, 15, 16, 17 and 18 are entitled to get 35 shares each. The cost of the suit of the plaintiffs shall be borne out by the defendants 1 and 7. Any of the sharers who paid the necessary court fee is entitled to apply for a final decree.” A.S.176 & 407/98. 5 10. Assailing the preliminary decree, defendants 7 and 18 have filed A.S.407 of 1998 and defendant No. 37 has filed A.S. 176 of 1998. The dispute in this appeal is confined to plaint B schedule property. There is no challenge to the preliminary decree passed by the court below with regard to plaint A schedule items. 11. The appellants in both the appeals have common grounds of attack. According to them, the court below has erred in law in holding that plaint B schedule property is tavazhy property. These defendants would say that, that was the self acquired property of the first defendant and the name of Kunjiyamma happened to be included in the document due to sentimental reasons. They pointed out that originally the property did belong to the tavazhy, but that had been sold in court auction and purchased by one Krishnan Nambiar. Infact the first defendant utilizing his funds purchased the property from Krishnan Nambiar and since earlier it was a tarawad property, the name of Kunjiyamma also happened to be included in the document. The document of acquisition is A.S.176 & 407/98. 6 Ext.A2. These defendants would point out that Kunjiyamma and the first defendant had assigned the property of an extent of 25 and half cents of property to defendants 7, 17 and 18 and 63 and odd cents in favour of the assignor of defendant No.37. According to the appellants, they were competent to do so and the plaintiffs and other supporting defendants can have no right over these items of property. As an alternative contention it is stated that at best what could be said is that Kunjiyamma had half share over plaint B schedule property and that might devolve on the legal heirs as per the provisions of Hindu Succession Act. They therefore say that the property obtained by them should be excluded from partition and they are entitled to exclusive possession and enjoyment of the same. 12. Per contra, the contesting defendants pointed out that there is absolutely no merit in the contention put forward by the appellants. The evidence, according to learned counsel is clear to the effect that the acquisition of plaint B schedule was by utilizing the funds derived from the property of the tarwad and even assuming that the acquisition was in the name of the A.S.176 & 407/98. 7 first defendant, he, at the relevant time, was the karanavan of the tarwad being the senior most male member. Being an acquisition in the name of the karanavan utilizing the funds of the tarwad, the appellants cannot challenge the finding of the court below that it was a tavazhy property. There is nothing to show, according to learned counsel for the respondent, that the first defendant had independent means of income to acquire the property. In fact a reading of the evidence and the relevant documents would show that the acquisition was for and on behalf of the tavazhy. Learned counsel relied on the decision in Melepurath Sankunni Ezhuthazzan v. Thekittil Geopalankutty Nair (AIR 1986 SC 411), which was relied on by the court below and contended that the preliminary decree calls for no interference. 13. Ext.A2 is the document by which plaint B schedule items were acquired. In fact at the time of acquisition there were five items of property, two of which were outstanding on lease. It is not in dispute that an item of property having an A.S.176 & 407/98. 8 extent of 1.36 acres acquired under Ext.A2 had already been sold. The evidence of D.W.1 is to the effect that the said sale was made to discharge the debt incurred for purchasing plaint B schedule item. The evidence also shows that plaint B schedule items covered by Ext.A2 was acquired by borrowing amounts by the first defendant. The first defendant would say that at the relevant time he was employed as a Manager of a Spinning Mill owned by Anantha Narayana Iyer. Therefore, it is contended on behalf of the appellants that it was the self acquisition of the first defendant and they also contended that the name of Kunjiyamma happened to be included in the document due to sentimental factors. 14. The said claim is contested by the respondents in the appeal by pointing out that the first defendant had no independent means of income and the acquisition of plaint B schedule as per Ext.A2 was utilizing the income from the property of the tarwad. A.S.176 & 407/98. 9 15. Though the argument on behalf of the contesting respondents that the acquisition by Ext.A2 of plaint B schedule property was for and on behalf of the tarwad would look prima facie formidable, on a close scrutiny it can be found that it is not so. Plaint B schedule properties were acquired as per Ext.A2 dated 29.12.1118. One may at this juncture refer to the fact that as per Ext.A1 document plaint A schedule property was acquired on 16.6.1104. Even though some of the contesting defendants had a case that the properties covered by Ext.A1 is puthravakasam property, a reading of Ext.A1 does not show that the consideration for the purchase flowed from the husband of Kunjiyamma. The claim that plaint A schedule is a puthravakasam property was rightly rejected by the court below. What is significant is that in Ext.A1 Kunjiyamma and the then existing children were included in the deed. 16. It is not in dispute that plaint B schedule property initially belonged to the tavazhy. It appears that the tavazhy had incurred debts and the properties were brought to sale in pursuance to a decree obtained by Krishnan Nambiar. Krishnan A.S.176 & 407/98. 10 Nambiar had authorised Damodaran Nambiar to take further proceedings on his behalf. It is seen that Damodaran Nambiar, instead of acting on behalf of Krishnan Nambiar, had purchased the property in his own name. This led to a dispute between Krishnan Nambiar and Damodaran Nambar and ultimately Krishnan Nambiar was able to obtain the property in his own name. Subsequently, by Ext.A2 dated 29.12.1118, the first defendant purchased the property from Krishnan Nambiar. Of course the name of Kunjiyamma is seen included in the deed. 17. There is much debate regarding Ext.A2. While the respondent, as already noticed, would contend that plaint B schedule property was purchased utilizing the fund of the tarwad, the appellants would say that it is not so. The lower court has placed much reliance on the decision reported in Melepurath Sankunni Ezhuthazzan's case (supra). Following the said decision, it was held that once it is shown that the property acquired by a natural group and forms a tavazhy by themselves, any acquisition would be presumed to be for and on behalf of the tavazhy. A.S.176 & 407/98. 11 18. There can be no dispute regarding the above principle. But, in the case on hand, there is nothing to show that there was any income available from the tarwad, which could be utilized for the purchase of plaint B schedule property covered by Ext.A2 document. In fact one should remember that plaint B schedule was sold for the debts incurred by the tarwad. One may now have a look at the recital regarding the consideration in Ext.A2. The consideration shown in the document is Rs.4000/-. It is seen recited in the document that two of the items are outstanding on lease. The documents show that a sum of Rs.3,990/- was borrowed from Peethambara Iyer alias Anantha Narayana Iyer, who issued a cheque drawn on a Bank. 19. There is nothing in Ext.A2 to indicate that Kunjiyamma had any role in the borrowel. 20. It is contended on behalf of the contesting respondents that the cheque happened to be issued in favour of the first defendant since Anantha Naryana Iyyer was not inclined to issue a cheque in the name of a lady and since the first defendant was the senior most male member, the cheque A.S.176 & 407/98. 12 happened to be issued in his name. It is also contended that the first defendant had no independent means of income. Heavy reliance was placed on the evidence of D.W.1 that he had not used his funds for the acquisition of plaint B schedule property. 21. It is true that at the relevant time, the first defendant was the senior most member. It is also true that Ext.A2 also contains the name of Kunjiyamma. But are they by themselves sufficient to come to the conclusion that the acquisition was for and on behalf of the tavazhy? 22. D.W.1 has categorically denied that the cheque happened to be issued in his name because Anantha Narayana Iyer refused to issue a cheque in the name of a female. It is evident that plaint B schedule properties were acquired as per Ext.A2 by borrowing amounts from Anantha Narayana Iyer by the first defendant. It has also come out in evidence that he discharged the debt by selling one of the items having an extent of 1.36 acres. One may notice here that there is nothing to show that there were other properties in the possession of the tavazhy, and plaint B schedule properties were purchased by A.S.176 & 407/98. 13 utilizing the income generated from those properties. If as a matter of fact there was such income, then there was no need for the first defendant to borrow amounts from Anantha Narayana Iyer. There is absolutely no evidence to show that even the tarwad had generated any surplus income, which could be utilized for the purchase of plaint B schedule properties. 23. It is also significant to notice that in Ext.A1, when the purchase was made of plaint A schedule property, the parties were careful to include the names of Kunjiyamma and all her then existing children. However, when Ext.A2 was executed only the name of Kunjiyamma and the first defendant alone are shown. No explanation whatsoever is offered by the learned counsel for the respondents for the omission to mention the names of other members existing at the time of acquisition under Ext.A2. One must remember that the parties must have been conscious about the nature of the acquisition when they A.S.176 & 407/98. 14 chose to exclude the names of the other existing members at the time of acquisition as per Ext.A2 especially when a different conduct was exhibited at the time of acquisition under Ext.A1. 24. The evidence of D.W.1 would also disclose that he had independent means of income. Of course he does say that he had not utilized his funds to purchase plaint B schedule property. But the fact remains that he borrowed amounts from Anantha Narayana Iyer to purchase the property and he had discharged the same by selling another item of property. The contesting respondents cannot pretend ignorance about the sale of 1.36 acres nor have they assailed the same. There is nothing seen mentioned regarding that item of property in the plaint. No rights are claimed in respect of that property also. 25. One must recollect that the suit property was outstanding on lease at the time of execution of Ext.A2. One of the properties outstanding on lease was admittedly sold and the other was retrieved. A.S.176 & 407/98. 15 26. One may now have a look at the other documents produced in the case. Ext.B4 document in favour of defendants 7, 17 and 18 is of the year 1953. The recital in Ext.B4 shows that the assignors asserted that the property having an extent of 25 ½ cents formed part of the property exclusively owned by them and acquired under Ext.A2 document. The appellants in A.S.407 of 1998 have claimed that the building was put up by them and that they are residing in the property. The contesting respondents have a case that even though the document Ext.B4 was executed in 1953, the first defendant continued to be in possession of the property and he constructed the building therein. Except for the self interested assertion, there is absolutely no evidence to prove the said fact. It is shown that the house tax receipts produced by the appellants in A.S. 407 of 1998 are issued after the suit was instituted. But it is clear from the evidence that they are residing in the building situate in the property assigned to them. A.S.176 & 407/98. 16 27. One may now notice that in Ext.B2 document, by which Kunjiyamma and the first defendant assigned 63 and odd cents to strangers. It is asserted that the property so assigned exclusively belongs to them. It is not possible to accept the plea put forward by the contesting defendants that they were unaware of these documents. Ext.B2 is of the year 1977. Strangers were put in possession of the property. The suit is in 1986. It is asserted by the contesting defendants that all the persons have been residing together in the house in plaint A schedule property. If that be so, obviously, those respondents must have come to know about the induction of strangers. As far as Ext.B2 executed by Kunjiyamma and the first defendant is concerned, it cannot be assumed that they were totally unaware of that assignment. 28. The first plaintiff was examined as P.W.1. P.W.1 would say that at the time of acquisition under Ext.A2, the first defendant was the karanavan of the tarwad. It does not appear to be correct. In fact, the tone of the assertion made by P.W.1 is to the effect that the acquisition was by Kunjiyamma and the first A.S.176 & 407/98. 17 defendant was only a name lender. Subsequent assertion by her is that Anantha Narayana Iyer refused to issue a cheque in the name of a female, and the cheque was issued in the name of the first defendant. Both these contentions are disproved by the evidence on record. However, it is admitted by P.W.1 that the building in the property assigned to the appellants in A.S.407 of 1998 was put up by them and they are residing therein. Even according to her, the building was put up at least in 1981. It is admitted by P.W.1 that the recitals in Ext.A2 are correct. She would further assert that Ext.A2 contains all the members of the tarwad then existing. It is belied by the document itself. It is interesting to note that P.W.1 in her evidence says that apart from the property acquired by Exts.A1 and A2 there were other properties owned by the tarwad. To a question as to why they were not included in Ext.A2 document, her answer was that those properties stand in the name of all the then existing members, so she did not seek relief, an explanation, which is per se unacceptable. A.S.176 & 407/98. 18 29. Of course, it is true that D.W.1, the first defendant had stated that he had not used his personal funds to purchase the property covered by Ext.A2, but his evidence shows that he had borrowed amounts from his employer and later he had sold an item of property covered by Ext.A2 to repay the debt. At any rate, there is nothing to indicate that the acquisition under Ext.A2 was for and on behalf of the tarwad or tavazhy as the case may be. 30. At this juncture, it will be relevant to refer to Ext.B1. Ext.B1 is a partition deed entered into between the members of the tavazhy. It is true that the plaintiff and her children have not taken part in the partition. But what is significant is that all the other senior as well as junior members are signatories to the said document. What is more significant is that the assertion in Ext.B1