IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN WEDNESDAY, THE 14TH JANUARY 2009 / 24TH POUSHA 1930 AS.No. 519 of 1999(D) ------------------------------ OS.326/1997 of PRL.SUB COURT, KOZHIKODE .................... APPELLANT(S): PLAINTIFF ----------------------- RADHAKRISHNAN ALIAS RATHEESAN, S/O. SAROJINI AMMA, KODAKKATTIL HOUSE, ANNASSERY AMSOM DESOM, KOZHIKODE TALUK, REP.BY MUKTHIYAR AGENT AHMED KOYA, S/O. USMAN HAJI. BY ADV. SRI.D.KRISHNA PRASAD SRI.D.NARENDRANATH SRI.JOJI VARGHESE SRI.M.HARISHARMA SRI.T.P.ELDHOSE RESPONDENT(S): (DEFENDANTS 2 TO 12 & 14 TO 17) ------------------------ 1. DAMODARAN NAIR, S/O. NARAYANI AMMA. 2. GOPALAN NAIR, S/O. NARAYANI AMMA. 3. KUMARAN NAIR, S/O. NARAYANI AMMA. 4. SAROJINI AMMA, D/O. NARAYANI AMMA. 5. PADMINI AMMA, D/O. NARAYANI AMMA. 6. ASOKAN NAIR, S/O. SAROJINI AMMA. 7. VASANTHA, D/O. SAROJINI AMMA. 8. AJITHA, D/O. SAROJINI AMMA. 9. MANOJKUMAR, S/O. SAROJINI AMMA. A.S. NO.519/1999 10. SHEEBA, D/O. SAROJINI AMMA. 11. SUDHEESAN, S/O. PADMINI AMMA. 12. CHANDRAMATHY, W/O. CHANDRA KURUP. 13. KAMMANA NARAYANI AMMA, W/O. DAMODARAN NAIR. 14. SUGEESH, S/O. PADMINI AMMA. 15. SUBAJA, D/O. PADMINI AMMA. RESPONDENTS 1,4 6 TO 10 ARE RESIDING AT KADAKKATTIL HOUSE, ANNASSERY AMSOM DESOM, KOZHIKODE TLAUK. RESPONDENTS 2 AND 3 IN THEKKE KODAKKATTIL HOUSE, ANNASSERY AMSOM DESOM, KOZHIKODE TALUK. RESPONDENTS 5 AND 11 IN KUZHUPPILATTU HOUSE, ANNASSERY AMSOM DESOM, KOZHIKODE TALUK AND 12 TO 15 IN ANNASSERY AMSOM DESOM, KOZHIKODE TALUK. D 13 IS DEAD AND LRs ARE ALREAZDY ON RECORD AS R1 TO R5 /D2 TO 6. ADV. SRI.K.P.BALASUBRAMANYAN SRI.C.P.MOHAMMED NIAS FOR R1 TO 3,5,11,13, TO 15 THIS APPEAL SUITS HAVING BEEN FINALLY HEARD ON 14/01/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ORDER ON CMP. NO.4152/1999 IN AS. NO.519/1999 Dismissed 14.01.2009 SD/- M.N.KRISHNAN, JUDGE /TRUE COPY/ P.A. TO JUDGE tss M.N. KRISHNAN, J ----------------------- A.S.No. 519 OF 1999 --------------------------------- Dated this the 14th day of January, 2009 JUDGMENT This is an appeal preferred against the judgment and decree in O.S. 326/97 of the Subordinate Judge, Kozhikode. The suit is one for partition. The suit is field by one of the son of Sarojini Amma who is the 5th defendant in the suit for re-opening the partition deed executed in the year 1973 on the ground that it is vitiated by fraud, inequity and not properly represented and so the partition has to be redone in accordance with law. The brief facts necessary for the disposal of the appeal are as follows: 2. Admittedly the property belonged to the tavazhi consisting of the plaintiff and defendants 1 to 12. The common ancestor was one Kavu Amma and she had three children namely Narayani Amma, Ukkappan Nair and Koman Nair. Defendants 2 to 6 and deceased Madhavan Nair are the children of D1 Narayani Amma. The plaintiff and defendants 7 to 11 are the children of the 5th defendant Sarojini Amma. D12 is the son of the D6. On account of the contention raised subsequently supplemental defendants D13 to D17 had also been impleaded. It is the case of the plaintiff that the A.S. No. 519/99 -2- partition executed on 11.6.1973 is unequal and vitiated and further the minors were not represented by their natural guardian and the other members of the family were able to dominate the will of 5th defendant and therefore it requires reopening. On the other hand the contesting defendants would contend that the partition is equally effected, acted upon and even the 5th defendant has recognised the partition and instituted a suit in which her son was examined as witness and therefore the present suit is only filed to harass the contesting defendants and therefore it has to be dismissed. 3. In the trial court PW1 and DW1 were examined . Exts. A1 to 3, B1 to B56 and C1 to C6 were marked. On analysis of the evidence the trial court dismissed the suit and it is against that decision the plaintiff has come up in appeal. The point that arises for determination are: 1. Whether the court below was justified in dismissing the suit against the settled position of law ? 2. Is there anything to interfere with the decision rendered by the trial court? Points 1 & 2: At the out set it is desirable to state the position of law to be A.S. No. 519/99 -3- followed in these type of cases. In the decision reported in Ratnam Chettiar and others v. S.M. Kuppuswami Chettiar and others [AIR 1976 SC (1)], the apex court considered about the question of reopening a partition when the minors are affected by the same. The Supreme Court in para 19 had had laid down the following propositions: “1. A partition effected between the members of the Hindu Undivided Family by their own volition and with their consent cannot be reopened, unless it is shown that the same is obtained by fraud, coercion, misrepresentation or undue influence. In such a case the Court should require a strict proof of facts because an act inter vivos cannot be lightly set aside. 2. When the partition is effected between the members of the Hindu Undivided Family which consists of minor coparceners it is binding on the minors also if it is done in good faith and in bona fide manner keeping into account the interests of the minors. 3. Where, however, a partition effected between the members of the Hindu Undivided Family which consists of minors is proved to be unjust and unfair and is detrimental to the interests of the A.S. No. 519/99 -4- minors the partition can certainly be reopened whatever the length of time when the partition took place. In such a case it is the duty of the Court to protect and safeguard the interests of the minors and the onus of proof that the partition was just and fair is on the party supporting the partition.” 4. The learned counsel for the appellant has stressed upon in para 3 that the partition can be reopened whatever be the length of time and that it is the duty of the persons who are supporting the partition to prove that it was fair. So it is really a factual analysis that is necessary in this case. I will straight away refer to Ext. A2 which is the disputed partition deed. It is executed between 13 members of the tavazhy on 11.6.73. The present plaintiffs group are executant Nos. 5,8,9,10,11 and 12. The plaintiff is the 12th executant who was a minor at the time of the execution of the document represented by his mother as the guardian. Items 4,8 and 9 and fractional share over the improvements in item No. 5 of Ext.A2 schedule was set apart to the group of the plaintiffs, his mother and brothers. The estimated value of each share of the property was Rs. 600 and the total value was estimated at Rs. 7,800/- . According to the valuation shown in Ext. A2 document A.S. No. 519/99 -5- property worth Rs. 3,800/- has been set apart to the share of the group of the plaintiffs. There are 6 persons in the group and there entitlement would have been for Rs. 3,600/- where as property worth Rs. 3,800/- is seen allotted to their share. The learned counsel would contend the recitals in Ext. A2 cannot be taken as the basis to arrive at a decision regarding the fairness and equitable distribution of the properties. Therefore we have to take into consideration the other aspects namely the total extent of the land value etc. for the purpose of deciding the case. Item Nos. 1 to 8 and 14 are dry lands and Item Nos. 9 to 12 are wet lands. Item Nos. 1 to 7 in Ext. A2 partition deed is a part and parcel of same paramba divided into 7 segments. Item No. 8 is a portion of another paramba and item Nos. 9 to 12 are wet land having a extent of 77 ½ cents or in other words a total extent of dry land plus the residential compound with dry land comes to 3 acres and 25 cents and that of the wet land is 77 ½ cents. Out of this the plaintiffs group had been allotted 88 ½ cents of dry land and 26 ¼ cents of wet land, that is item Nos. 4, 8 and 9 described in Ext. A2. In order to find out the nature and description I perused Ext. A2 and it is explicitly clear from the said document that the Items 1 to A.S. No. 519/99 -6- 7 therein are part and parcel of one paramba called Kodakattil Paramba. Item 8 is another paramba called Kizhakkedathu Paramba and items 9 to 12 are the part and parcel of the same paddy land called Palakkandi Nilam. Item No.13 is the residential house. It can be seen from the description that the house is situated in item No. 5 and from the allotment one can find that the group of the plaintiffs and his family are given one out of four shares of the house situated in item No.5. Or in other words items 4,8,9 and and ¼ of the value of the house of item No. 5 together were valued at Rs. 3,800/- and it is allotted to the group of the plaintiffs. For an equalisation of shares it was decided to give Rs. 200/- to the 3rd executant namely Gopalan Nair. Thus a perusal of Ext. A2 would only show that there had been proper application of mind and part and parcel of the same property had been set apart to the different sharers in accordance with their entitlement to the property. 5. The learned counsel for the appellant had drawn my attention to the commissioner's report submitted in this case. It is marked as Ext. C4. A perusal of Ext. C4 would show that the property allotted to the plaintiffs are now lying without cultivation A.S. No. 519/99 -7- whereas some other properties are shown as garden land. It has to be remembered that it is the part and parcel of the same lands that has been segmented and the Commissioner inspects the property after a period of 25 years from the date of execution of the document. If the other sharers had improved their property and planted coconut trees etc. it cannot be a ground to hold that partition in the year 1973 was unequal. It is true that when a property of the minor is involved in a litigation necessarily there is a burden caused to establish that it has been fair and equitable. Further it has to be stated that there is no quarrel between the plaintiff and his mother D5 who was heading the family in the year 1973. She had instituted a suit against the 6th defendant in this case as O.S. 637/1986 before the Munsiff Court, Kozhikode. In the said suit said Sarojini Amma claimed right over the property by virtue of Ext. A2 partition deed which is under challenge. One of the son of the said Sarojini Amma who is arrayed as D7 in this case is examined as PW1 in that case. So D5 as well as D7 had acknowledged about the partition deed in the year 1986. It cannot be held that there are materials available before the court to show that partition has been unequal and therefore it requires reopening. A.S. No. 519/99 -8- 6. The next contention raised is regarding the competency of D5 to represent the minors at the time of the partition deed. When the property belongs to a joint family and especially to a Marumakkathayam family where the property devolves upon the heirs through the mother and when the mother who is competent represents of the minor children, it cannot be said that it is invalid. It has to be held that the mother as the head of the tavazhi had really protected the interest of the minors. Further the father who has been examined as PW1 in this case had been residing through out with the D5 and the children and so he cannot pretend ignorance about the partition. He cannot be classified as stranger for the reason that the property is alloted to his wife and children. Therefore I do not find any mistake or a ground to set aside partition on the ground that the mother has represented the minor children as the guardian. 7. The next point to be considered is regarding D11. The name of D11 in the case is shown as Sheeba. It is case of the plaintiff that 11th defendant was in the womb of her at the time of effecting partition and according to the law as child in the womb is entitled to share in the property and the non allotment of share for A.S. No. 519/99 -9- the child in the womb goes against the law and therefore it requires reopening. In support of the said contention Ext. A3 document is produced. In Ext. A3 it is seen that a child had been born by name Geetha, D/o Sarojini Amma in the year 1973. The name of the 11th defendant and the name in the certificate totally differs and neither the mother Sarojini Amma nor the 11th defendant Sheeba has come before the court to depose that Geetha and Sheeba are one and the same person and so without any proof the court cannot come to the conclusion that she was in the womb of her mother at the time of the partition deed. So from these discussions, I hold that Ext. A2 partition deed cannot be said to be unequal or disproportionate and it was intend to defeat the interest of the minors or the group of the plaintiffs family and so it has to be held as a valid document which cannot be set aside or reopened. I do not find any ground to interfere with the decision rendered by the trial court. Therefore the appeal lacks merit and same is dismissed but under the circumstances without any order as to costs. M.N. KRISHNAN,JUDGE vkm