IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR FRIDAY, THE 23RD FEBRUARY 2007 / 4TH PHALGUNA 1928 SA.No. 492 of 1992(A) --------------------- AS.246/1988 of DISTRICT COURT, THALASSERY OS.84/1987 of SUB COURT, PAYYANNUR .................... APPELLANT: - (1ST RESPONDENT/PLAINTIFF) ----------- THAZHATH VALAPPIL PRASANTH S/O.DEVAKI AMMA RESIDING AT VELLUR AMSOM KANDOTH DESOM. BY ADV. SRI.D.KRISHNA PRASAD RESPONDENTS: - (APPELLANTS AND 2ND RESPONDENT/DEFENDANTS 2 TO 6) -------------------------------------------------------------------------------------- 1) KALLIANI. 2) MADHAVI. (DIED)6. 3) KRISHNAN. 4) KUNHIRAMAN (DIED) 5) DEVAKI. ADDL.R6 TO R11 IMPLEADED. SUPPLEMENTAL RESPONDENTS 12 TO 16 IMPLEADED. (RESPONDENTS 1 TO 4 ARE RESIDING AT VELIYATTU, PARAVANTHATTA, KOROM AMSOM AND DESOM, AND RESPONDENT NO.5 IS RESIDING AT THAZHATH VALAPPIL, VELLUR AMSOM, KANDOTH DESOM. ADDL.R6. VELIYATT SANTHA, W/O.MAPPIDACHERRY APPU, PALTHARA, POST VELLUR, VIA.PAYYANNUR. ADDL.R7. VELIYATT SOUDHAMINI W/O.THAMARAYIL KUNJIRAMAN, KOKKODE, POST KOROME, VIA. PAYYANNUR. ADDL.R8. VELIYATT NALINI W/O.BALAKRISHNAN, PARAVANTHATTA, POST KOROME, VIA. PAYYANNUR. ADDL.R9. SULOCHANA M. ADDL.R10. NAMITHA ADDL.R11. NITHIN (RESPONDENTS R9 TO R11 ARE THE WIFE AND CHILDREN OF DECEASED VELIYATT THAMBAN PUTHILOTT POST KODAKKAD, VIA THRIKKARIPUR. (SUPPLEMENTAL RESPONDENTS 6 TO 11 ARE IMPLEADED AS THE LEGAL REPRESENTATIVES OF DECEASED RESPONDENT NO.2 AS PER ORDER DATED 3/10/2006 IN I.A.1192/2006. ADDL.R12. PADMINI, M.V.MAVICHERRY, POST PAYYANNUR. ADDL.R13. PRADEEPAN M.V., MAVICHERRY, DO. ADDL.R14. PREETHA M.V. , -DO- -DO- ADDL.R15. PRASHOBKUMAR, -DO- -DO- ADDL.R16. PRASAD M.V. -DO- -DO- (SUPPLEMENTAL RESPONDENTS 12 TO 16 ARE IMPLEADED AS THE LEGAL HEIRS OF DECEASED RESPONDENT NO.4 AS PER THE ORDER DATED 3/10/2006 IN I.A.1190/2006. BY ADV. SRI.P.N.KRISHNANKUTTY ACHAN(SR.) SRI.P.N.RAVINDRAN SRI.T.SETHUMADHAVAN FOR R2 TO R4 BY ADV.SRI.P.N.K. ACHAN (SR.) “ SRI.MOHANAKANNAN FOR ADDL.R6 TO R11 & ADDL. R12 TO R16. THIS SECOND APPEAL HAVING BEEN FINALLY HEARD ON 9/02/2007 ALONG WITH SA NO. 332 OF 1994 THE COURT ON THE 23/2/07 DELIVERED THE FOLLOWING:- M.SASIDHARAN NAMBIAR,J. =========================== S.A. NO.492/92 & 332/94 =========================== Dated this the day of 2007 JUDGMENT Appellant is the only son of deceased Velliyattu Narayanan. Appellant filed O.S.169/81 before Munsiff Court, Payyannur on 7.9.81 with his maternal uncle as his next friend. The suit was subsequently returned for presentation before proper court and was represented as O.S.318/82 before Sub Court, Thalasserry. Later it was transferred to Sub Court, Payyannur, and numbered as O.S.83/87. The suit was for partition of twelve items of properties scheduled in the plaint. His mother was the second defendant and grandmother (mother of Narayanan) was first defendant. It was contended by appellant that plaint schedule properties are the self acquired properties of Narayanan and on the death of Narayanan, it devolved upon his wife, second defendant, mother first defendant and son, S.A.492/92 & 332/94 2 plaintiff and each of them are entitled to one share and though Ext.A8 partition deed was executed by defendants 1 and 2, it was against the interest of plaintiff and second defendant did not act in the interest of appellant as his guardian and therefore he is entitled to ignore Ext.A8 and seek partition. It was also contended that though items 1 and 2 of plaint schedule properties are self acquired properties of deceased Narayanan under Ext.A1 marupattam deed of 26.3.59 and item No.3 of the plaint schedule properties belonged to Narayanan under Ext.A2 marupattam deed of 7.2.63 and item No.4 property was purchased by deceased Narayanan as per Ext.A3 assignment deed 20.2.59, they were not included in Ext.A8 partition deed and therefore he is entitled to get partition and separation of his 1/3 shares. It was also contended that appellant is entitled to ignore the alienations made by defendants. On the death of first defendant defendants 3 to 6 were impleaded as her legal heirs. Appellant also S.A.492/92 & 332/94 3 instituted O.S.170/81 before Munsiff Court, Payyannur which was later transferred to Sub Court, Thalasserry and renumbered as O.S.323/82 and again transferred to Sub Court, Payyannur and renumbered as O.S.84/87. That suit was filed by the minor appellant with his maternal uncle as the next friend seeking partition of fifteen items of properties scheduled in the plaint. First defendant therein is the grandmother of the appellant who was also first defendant in O.S.83/87. Sixth defendant is his mother, the second defendant in O.S.83/87. Defendants 2 and 3 are the daughters and defendants 4 and 5 the sons of first defendant, who were later impleaded as defendants 3 to 6 in O.S.83/87. According to appellant, plaint schedule properties jointly belonged to first defendant and her children including deceased Narayanan and on the death of Narayanan, his 1/6th share devolved jointly on the appellant and sixth defendant and appellant is entitled to get his share separated. It was S.A.492/92 & 332/94 4 contended that in answer to the lawyer notice demanding partition, a reply notice was sent intimating that there was no co-ownership properties to be divided and the self acquired properties of Narayanan were divided as per Ext.A8 partition deed and the co-ownership properties of defendants were divided under Ext.A12 partition deed. It was further contended in the plaint that in Ext.A12 partition deed, all the sharers were not parties and is not binding on him and appellant is entitled to get his share separated. 2. First defendant filed a written statement in O.S.83/87 contending that items 1 to 4 are not self acquired properties of Narayanan and therefore they are not available for partition. It was contended that items 5 to 12 the self acquired properties of Narayanan were divided between the sharers under Ext.A8 partition deed and appellant the minor was represented by his mother second defendant and `B` schedule properties thereunder were allotted jointly to the appellant and second S.A.492/92 & 332/94 5 defendant and appellant is not entitled to claim partition. Additional defendants 3 to 6 filed a written statement reiterating the same contentions and additionally contending that after Ext.A8 partition deed, item No.2 of `B' schedule properties was purchased by fourth defendant from second defendant and second defendant also represented appellant as his guardian in Ext.B3 sale deed of 10.3.77 and he constructed a house therein and is residing there and appellant is not entitled to seek partition. In O.S.84/87, defendants 1 to 3 and 5 filed a joint written statement contending that deceased Narayanan had right over only items 4 to 8 of the plaint schedule properties and after his death those properties were divided among his sharers under Ext.A8 partition deed and appellant was represented by the mother in the partition deed and therefore appellant is not entitled to seek a decree for partition of the said properties. It was contended that the remaining properties were the self S.A.492/92 & 332/94 6 acquired properties of Velliyattu Kandan Koran , the Karanavan of the tarwad, who executed Ext.B69 Will on 9.2.1948 bequeathing items 1, 2 and 9 to 12, 14 and 15 to the defendants 1 to 3 and Narayanan had no right over the properties and so appellant is not entitled to claim partition of the properties. It was also contended that plaint schedule items 3 and 13 originally belonged to Cheria Kannan, brother of first defendant, and from him it was obtained by first defendant, and Narayanan had no right over the same and therefore appellant is not entitled to claim a share. It was also contended that after Ext.A8 partition deed, properties obtained by first defendant thereunder and the properties obtained under Ext.B69 Will, were divided under Ext.A12 partition deed on 9.2.81 and the properties were seperated. According to defendants, item No.1 was allotted under Ext.A12 partition deed to defendants 1 to 3 and item No.2 to defendants 2 to 4, item No.3 to defendants 2 to 5 and items 4 to 8 to first defendant and item S.A.492/92 & 332/94 7 No.9 to defendants 2 and 3, item No.10 to defendants 2,3 and 5, item No.11 and 12 to fourth defendant, item No.13 to defendants 2 to 5 and item No.14 to fifth defendant and item No.15 to third defendant and appellant is not entitled to claim any share. Defendants 2 and 4 filed a separate written statement reiterating the same contentions and additionally contending that item No.1 of plaint schedule properties was allotted to defendants 1 to 3 and share obtained by first defendant was gifted in favour of defendants 4 and 5 as per gift deed 9.2.81 and out of item No.15 of the plaint schedule properties 38 cents each were gifted to defendants 2 and 3 and 8 cents each to defendants 4 and 5 and appellant is not entitled to claim any share. 3. Learned Sub Judge framed the necessary issues. Both the suits were tried jointly. On the side of the appellant, he was examined as PW1 and Exts.A1 to A18 were marked. On the side of defendants , fourth defendant in O.S.84/87 (fifth S.A.492/92 & 332/94 8 additional defendant in O.S. 83/87) was examined. Two witnesses, the attestor and scribe of Ext.B69 Will were also examined as Dws.2 and 3. Exts. B1 to B69 were marked. 4. Learned Sub Judge on the evidence found that items 1 to 3 of plaint schedule properties are not the self acquired properties of deceased Narayanan and there is no evidence to prove that Exts.A1 and A2 marupattam deeds were accepted or acted upon and so they are not available for partition. It was found that under Ext.A3 sale deed item No.4 of plaint schedule properties belonged to deceased Narayanan and it was not divided under Ext.A8 and therefore it is available for partition. Learned Sub Judge also found that under Ext.A8 partition deed, other properties belonging to deceased Narayanan were divided on 26.5.75 between the legal heirs and appellant was represented by second defendant mother therein and there is no evidence to prove that the division was unjust or unfair and it is binding on appellant S.A.492/92 & 332/94 9 and he is not entitled to claim partition of items 5 to 12 of the plaint schedule properties, which were already divided under Ext.A8 partition deed. Learned Sub Judge found that on the death of Narayanan, 1/3rd share devolved on his mother, widow and son and appellant is entitled to 11/30 shares. A preliminary decree for partition of item No.4 of `B' schedule property was passed in O.S.83/87 directing division of the said property into 30 equal shares and allotment of 11 such shares to the appellant. The claim for partition of other properties was dismissed. Learned Sub Judge under issue No. 1 to 3 in O.S.84/87 found that first defendant had five children, three sons and two daughters and under Ext.B69 Will executed by Karanavan, properties were bequeathed to first defendant and daughters defendants 1 and 2 and first defendant had 1/3rd right in the property. It was found that on the death of first defendant her 1/3rd right under Ext.A8 properties devolved on defendants 2 to 5 in equal shares and also on the S.A.492/92 & 332/94 10 group of deceased Narayanan, the pre-deceased son. Learned Sub Judge therefore held that `A' schedule properties of A8 partition deed, allotted to first defendant devolved on her children and the group consisting of pre-deceased son on equal shares and defendants 2 to 5 are entitled to 2/10 shares each and the group consisting of appellant and sixth defendant is entitled to two out of 10 shares and in respect of other items which are not covered under Ext.A8, but included in Ext.A12 partition deed, the pre-deceased son, Narayanan had 1/5th share. Holding that the properties were divided under Ext.A12 partition without appellant or sixth defendant and so Ext.A12 partition could be ignored as nonest and one out of six shares available to deceased Narayanan devolved on appellant and sixth defendant, it was held that defendants 2 to 5 are entitled to 2/10 shares each and appellant and sixth defendant to 1/10 shares each. A preliminary decree for partition was passed in O.S.84/87 directing division of plaint S.A.492/92 & 332/94 11 schedule properties into ten equal shares and for allotment of 1/10 share to plaintiff. 5. Defendants 2 to 5 filed A.S.246/88 before District Court, Thalasserry challenging the preliminary decree for partition granted in O.S.84/87. Plaintiff in O.S.83/87 filed A.S.111/89 challenging the dismissal of the claim for partition except item No.4 of plaint schedule properties in O.S.83/87. Learned District Judge heard both the appeals together. On reappreciation of evidence, District Judge confirmed the finding of learned Sub Judge in O.S.83/87 that items 1 to 3 are not the self acquired properties of deceased Narayanan and deceased Narayanan had no right over the same and therefore those properties are not available for partition. The learned District Judge also confirmed the finding of the learned Sub Judge that Ext.A8 partition deed is binding on appellant and properties of Narayanan were divided in Ext.A8 and his mother represented the appellant and Ext.A8 is valid and binding on S.A.492/92 & 332/94 12 appellant and he is not entitled to seek partition and dismissed A.S.111/1989. Learned District Judge on an elaborate consideration of Ext.B69 Will and Ext.A12 partition deed found that there was no case in the plaint that plaint schedule properties in O.S.84/87 were thavazhi properties of first defendant. Learned District Judge also held that recitals in Ext.B69 do not show that the properties bequeathed to defendants 1 to 3 thereunder are to be enjoyed as thavazhi properties of first defendant and Ext.A1 and A2 executed by Narayanan establish that he had no case that the properties were enjoyed as thavazhi properties and therefore Narayanan had no right over the properties bequeathed to defendants 1 to 3 under Ext.B69 and item Nos.3 to 8 which admittedly belonged to deceased Narayanan, were partitioned by plaintiff and defendants 1 and 6 under Ext.A8 partition deed and it is valid and binding on the appellant and therefore appellant is not entitled to claim a share either in the properties allotted to S.A.492/92 & 332/94 13 defendants 1 to 3 under Ext.B69 or to the properties of deceased Narayanan divided under Ext.A8. On that findings learned District Judge set aside the preliminary decree for partition in O.S.84/87 and dismissed that suit also. 6. Plaintiff filed S.A.332/94 challenging the dismissal of A.S.111/89 whereunder the decree in O.S.83/87 was confirmed. He filed S.A.492/92 challenging the judgment in A.S.246/88 whereunder the preliminary decree in O.S.84/87 was set aside. S.A.492/92 was admitted after formulating the following substantial questions of law. (i) Whether the lower appellate court has properly interpreted the several recitals contained in Ext.A12 and B69. (ii) Whether under the facts and circumstances of the case, the lower appellate court was right in reversing the finding of the trial court that the suit S.A.492/92 & 332/94 14 properties are tavazhi properties. (iii) Are not the suit properties tavazhi properties and is not the plaintiff entitled to a share in the properties as a legal heir of his deceased father Narayanan; (iv) When the undisputed documents clearly indicate that the properties are tavazhi properties, is it necessary to adduce any further evidence in relation to the same; (v) Whether under the facts and circumstances of the case, the court below was right in declining to pass a preliminary decree for partition in respect of item Nos. 1 to 8 which admittedly belonged to deceased S.A.492/92 & 332/94 15 Narayanan, solely on the basis of Ext.A8 to which the plaintiff is not a party. (vi) When properties over which the plaintiff has admittedly a share are sought to be partitioned without the junction of the plaintiff, can he not ignore the said document and seek a fresh partition of the said properties; (vii) Whether under the facts and circumstances of the case, the court below was right to in not granting a decree in respect to the share due to the plaintiff as a legal representative of deceased 1st defendant.” S.A. 332/94 was admitted formulating the following substantial questions of law. S.A.492/92 & 332/94 16 “Whether under the facts and circumstances of the case courts below were right in declining to grant relief in respect of plaint items 1 to 3 and 5 to 12. (ii) Whether under the facts and circumstances of the case, Ext.A8 is valid and binding on the plaintiff; (iii) When admittedly the plaintiff has right over an item of property, can it be denied to him on the basis of document of partition to which he is not a party and when such document does not protect his interests. 7. Learned counsel appearing for the appellant and learned Senior counsel appearing for respondents were heard. S.A.492/92 & 332/94 17 8. Learned counsel appearing for appellant argued that Exts.A1 marupattam deed of 1959 establish that item Nos.1 and 2 of plaint schedule properties in O.S.83/87 were obtained by deceased Narayanan and Ext.A2 marupattam deed establish that item No.3 of plaint schedule properties was obtained by deceased Narayanan in 1963 and Ext.A7 adangal extract establish that tax was paid by deceased Narayanan and on this evidence courts below should have found that Exts.A1 and A2 marupattam deeds were acted upon and items 1 to 3 of the plaint schedule properties are the self acquired properties of deceased Narayanan available for partition. It was also argued that though items 5 to 12 of plaint schedule properties in O.S.83/87 were divided under Ext.A8 partition deed and appellant and second defendant were jointly allotted the properties shown in the`B' schedule thereunder, second defendant was not acting in the best interest of the minor son, and so Ext.A8 is not binding on the appellant and S.A.492/92 & 332/94 18 courts below should have found that all the plaint schedule properties in O.S.83/87 are available for partition ignoring Ext.A8. It was also argued that when courts below found that item No.4 of plaint schedule properties is one of the self acquired properties of deceased Narayanan and it was not included in Ext.A8 partition deed, the partition under Ext.A8 was vitiated and result of collusion and therefore not valid and binding on the appellant. Learned counsel further argued that in any case even if it is taken that Ext.A8 partition deed is binding on the appellant, when `B' schedule properties therein were jointly allotted to appellant and mother, sale of item No.2 of the B schedule properties by mother without seeking permission of the court under Ext.B3 sale deed in favour of fourth defendant is void and courts below should have found that the alienation is not binding on the appellant and he is at least entitled to a decree for partition of item No.2 of plaint `B' schedule properties in S.A.492/92 & 332/94 19 Ext.A8 partition deed, ignoring Ext.B3 sale deed and therefore the decree granted in O.S.83/87 is to be modified. Learned counsel further argued that eventhough a preliminary decree was passed in O.S.84/87 and A.S.246/88 was filed challenging the decree and judgment, there was no case for the defendants in the appeal memorandum that they were not aware of the contentions of the appellant that plaint schedule properties are tavazhi properties and therefore finding of learned District Judge that case of appellant cannot be accepted for want of pleading is unsustainable. Learned counsel relying on the decision of Apex Court in Kedar Lal v. Hari Lal (AIR 1952 SC 47), Ram Sarup Gupta v. Bishun Narain Inter College (AIR 1987 SC 1242) and Smt.Rajbir Kaur v. M/s.S.Chokosiri & Co.(AIR 1988 SC 1845) argued that learned District Judge should not have interfered with the finding of trial court for the reason that there was no pleading, when S.A.492/92 & 332/94 20 defendants have no such grievance as no such case was taken in the appeal memorandum. Learned counsel also argued that under Ext.B69 Will, the self acquired properties of the then Karanavan Kandan Koran were bequeathed in favour of tavazhi consisting of first defendant and her daughters, defendants 2 and 3 and their descendants in the female line and therefore the bequest under Ext.B69 is not in favour of defendants 1 to 3 personally but in favour of the tavazhi and the contrary finding of learned District Judge is unsustainable. Relying on the decision of the Madras High Court in Kuttayi Lakshmi v. Puthia purayil (AIR 1954 Madras 235) and the decision of this court in Parvathi Amma Kalliani Amma v. Padmanabha Pillai Krishna Pillai (1956 KLT 803), and in Sathyabhama Amma v. Taluk Land Board, Palghat (1978 KLT 359)it was argued that the bequest under Ext.B69 is not to defendants 1 to 3 individually but to the tavazhi of first S.A.492/92 & 332/94 21 defendant. Learned counsel argued that no artificial tavazhi was created and instead karanavan bequeathed properties in favour of the existing tavazhi, making it clear that the properties are to be enjoyed by the tavazhi as marumakkathayam property and therefore intention of the testator was clear from Ext.B69 and learned District Judge was not correct in holding otherwise. Relying on Section 88 of Indian Succession Act and the decision of the Apex Court in K.Ambunhi v.H.G.Bhandary (AIR 1995 SC 2491) and this court in Ganesh Bhandary v. Ambunhi (1989 (2) KLT 882) and Narayana Pillai v. Raghavan Pillai 1986 KLT SN page 15 (Case No.29) it was argued that the latter clause in Ext.B69 makes it absolutely clear that the bequeathed properties are to be enjoyed as marumakkathayam tavazhi properties and even if there is some doubt on the question whether the former part of the Will is a bequest in favour of defendants 1 to 3 S.A.492/92 & 332/94 22 personally, effect has to be given to the last clause in the Will and if so, the bequest could only be interpreted as for the tavazhi and if a harmonious interpretation is given to the different clauses of the Will, it can only be held that the bequest was in favour of tavazhi consisting of first defendant and her children and their descendants in the female line and therefore deceased Narayanan had equal rights over the properties with defendants 1 to 5 and on the death of Narayanan, his one out of six shares right devolved on his widow sixth defendant and son appellant and they are entitled to get a share and therefore a decree for partition should have been granted. 9.Learned Senior counsel argued that courts below rightly appreciated Exts.A1 and A2 and found that they were not acted upon and that factual finding cannot be interfered in the second appeal. It was also argued that both the courts found that Ext.A8 partition deed is valid and is S.A.492/92 & 332/94 23 binding on the appellant and appellant who was then a minor was represented by the mother and properties were jointly allotted to the mother and son under B schedule of Ext.A8 partition deed and appellant is not entitled to claim partition which was rightly refused by courts below in O.S.83/87 and S.A.332/94 is only to be dismissed. Learned senior counsel pointed out that there is no case for appellant anywhere in the plaint that plaint schedule properties in O.S.84/87 were tavazhi properties. It was argued that under Ext.B69 Will Karanavan bequeathed the properties in favour of defendants 1 to 3 alone and not to the tavazhi and there is nothing in Ext.B69 to show that the bequest was in favour of tavazhi as rightly appreciated by the first appellate court. The learned Senior counsel also argued that an artificial tavazhi cannot be created by the act of parties and if the bequest under Ext.B69 was in favour of tavazhi, apart from defendants 1 to 3 other members of tavazhi including defendants 4, 5 S.A.492/92 & 332/94 24 and deceased Narayanan would have been included and as they were excluded and properties were given only to the two daughters and the mother excluding other members of the tavazhi, the bequest cannot be interpreted as in favour of tavazhi. Relying on the decision in Central Banking Corporation v. Padmanabha Pillai Sankara Pillai (ILR TC 723) and in Ammukutty v. Sankarankutty Nair (1958 KLT 547)learned Senior counsel argued that tavazhi in marumakkathayam family must consist of a natural group of persons and cannot be created artificially by consent