IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE HARUN-UL-RASHID THURSDAY, THE 22ND JULY 2010 / 31ST ASHADHA 1932 SA.No. 60 of 1994(F) -------------------- AS.7/1992 of SUB COURT, VADAKARA OS.76/1986 of MUNSIFF COURT, NADAPURAM ....................` APPELLANTS/RESPONDENTS 1 TO 4/PLAINTIFFS: ------------------ 1. KUNIYUIL KEZHALAN MALATHI AMMA. (DIED). 2. KUNIYIL KEEZHALAN VINODAN, S/O. MALATHI AMMA. 3. -DO- SAJITHA, D/O. MALATHI AMMA. 4. -DO- KOMALAVALLY, D/O.MALATHI AMMA. APPELLANTS ARE RESIDING AT NADAPURAM VILLAGE, KUMMAMKODE DESOM, VADAKARA TALUK. ADDL. 5. RAJESH, S/O.MALATHI AMMA, NADAPURAM VILLAGE, KUMMAMKODE DESOM, VADAKARA TALUK. (ADDL.5TH APPELLANT IS IMPLEADED AS THE LEGAL REPRESENTATIVE OF DECEASED I ST APPELLANT AS PER ORDER DTD. 24/7/03 ON CMP.723/2002. BY ADV. SRI.M.C.SEN, SENIOR ADVOCATE SRI.PRAKASH THOMAS SRI.M.P.SREEKRISHNAN SMT.SHAHNA KARTHIKEYAN RESPONDENTS/ RESPONDENTS 5 TO 59 & DEFENDANTS 1 TO 59 --------------------- 1. KUNIYIL KEESZHALAN KUNHI ANANTHA KURUP, S/O.MADHAVI AMMA, PENSIONER, RESIDING AT NARIKKANNAMPOYIL, KUTTIPPRAM AMSOM, NARIKKATTERI DESOM, VADAKARA TALUK. 2. K. BALAKRISHNA KURUP, MAMAGER, KOTTAKKAL ARYA VAIDHYA SALA, KOTTAKKAL. 3. NELLOLIKANDIYIL LALITHAMMA, D/O.LATE LAKSHMIKUTTY AMMA, SIVAPURAM AMSOM, KARUMALA DESOM, QUILANDY TALUK. 4. RAMACHANDRA KURUP, S/O.LAKSHMIKUTTY AMMA, MARKTING OFFICER, HINDUSTAN COPPER LTD., MADRAS. 5. SANTHA AMMA, D/O. LAKSHMI AMMA, NELLOLIKANDIYIL HOUSE, SIVAPURAM AMSOM, KARUMALA DESOM, QUILANDY TALUK. -2- S.A.NO.60/94 6. RAJAN, S/O.LAKSYHMIKUTTY AMMA OF -DO- -DO- 7. GETHA, D/O. -DO- -DO- 8. NELLOLIKANDIYIL UDAYAN, S/O.LALITHA OF -DO- -DO- 9. NELLOLIKANDIYIL LEKHA, D/O. -DO- -DO- 10. KUNIYIL KEEZHALAN KUNHIKAVA AMMA, D/O. LATE PARAVATHI AMMA, KUTTIYIL, KUMMAKODE AMSOM, POST KUNNAMKODE, NADAPURAM VILLAGE. (DIED) 11. KUNIYIL KEEZHALAM KALLIYANI AMMA, D/O.LATE PARVATHY AMMA, CHERUVALATH, KUTTIPRAM AMSOM, VARIKOLI DESOM, POST VARIKOLI, VIA. KALLACHI, VADAKARA TALUK. 12. KUTTIYIL RADHA AMMA, D/O.KUNHIKAVA AMMA, KUMMAMKODE AMSOM AND DESOM, POST KUMMAMKODE, POST VARIKOLI, NADAPURAM VILLAGE, VADAKARA TALUK. 13. KUTTIYIL SUMATHI AMMA, D/O. -DO -DO- 14. CHERUVALATH RAMACHANDRAN, S/O.KALLIYANI AMMA, KUTTIPRAM AMSOM, VARIKOLI DESOM, POST VARIKOLI. 15. KUNIYIL KEEZHALAN SANTHAA KUMARI, D/O. LAKSHMIKUTTY AMMA, PANTHAPPOYIL, POST MATTUNGAL, VIA CHERODE, VADAKARA TALUK. 16. KUNIYIL KEEZHALAN JAYARAMA KURUP, S/O.LAKSHMI KUTTYAMMA, ACCOUNTANT, CO-OPERATIVE BANK, KALPETTA, WYNAD. 17. PANTHAPPOYIL SASIKALA, D/O.SANTHAKUMARI, TEACHER, VILLIAPPILLY AMSOM, POST MAYANNUR, VADAKARA TALUK. 18. PANTHAPPOY8IL SARATH KUMAR, CHERODE VILLAGE, POST MATTUNGAL, VIA. VARIKOLI, VADAKARA TALUK. 19. KUNIYIL KEEZHALAN KUNHI MADHAVI AMMA ALIAS OMANA AMMA, D/O.KUNHIPARVATHI AMMA, KAKKANDIYIL, POST MEMUMDA, VADAKARA TALUK. 20. KUNIYIL KEEZHALAN KUNHILAKSHMI AMMA, D/O.KUNHIPARVATHI AMMA, AYADATHIL, CHERAPURAM AMSOM AND DESOM, POST CHERAPURAM. 21. CHERUVALATH PADMANABHA KURUP, S/O.KUNHIPARVATHI AMMA, CHERUVALATH HOUSE, KUTTUPRAM AMSOM, POST VARIKKOLI, VADAKARA. 22. CHERUVALATH SREEDHARA KURUP, S/O.KUNHIPARVATHY AMMA, DEMONSTRATOR, AGRICULTURAL DEPT., POST KUTTIADI. 23. CHERUVALATH BALAKRUSHNA KURUP,S/O.KUNHIPARVATHY AMMA, CHERUVALATH HOUSE,. POST VARIKKOLI. -3- S.A.NO.60/94 24. -DO- BALAGOPALA KURUP, S/O.KUNHIPARVATHI AMMA, ADVOCATE MUSIFF'S COURT, NADAPURAM, POST KALLACHI. 25. KUNIYIL KEEZHALAN MANOHARAN, RESIDING AT KAKKANDIYIL MEMUNDA AMSOM, POST MEMUNDA, VADAKARA TALUK. 26. -DO- JAYACHANDRAN OF -DO- -DO- 27. -DO- SUDHEER OF -DO--do- 28. AYADATHIL SRELATHA, D/O.KUNHILAKSHMI AMMA, CHERAPURAM, VADAKARA TALUK. 29. AYADATHIL SREEKUMAR OF -DO- -DO- 30. -DO- SREEJA OF -DO- -DO- 31. PADINHARAYIL KALLIYANI AMMA, IST WIFE OF RAMA KURUP, THUNERI AMSOM AND DESOM, POST THUNERI, VADAKARA TALUK. (DIED) (R32 AND R33 ARE RECORDED AS THE L.RS. OF THE DECEASED R31 AS PER ORDER DTD. 25/1/08 IN MEMO BEARING CF.1902/06. 32. PADINHARAYIL KUNHIMADHAVI AMMA, D/O. RAMA KURUP, -DO- 33. -DO- JANAKI ALIAS OMANA AMMA, W/O. LATE SANKARAN NAMBIAR, -DO- 34. -DO- RAJAN, S/O. KUNHISANKARAN NAMBIAR OF -DO- 35. -DO- GIRIJA, D/O. KUNHISANKARAN NAMBIAR, OF -DO- -do- 36. -DO- RAMACHANDRAN, S/O. -DO--do- 37. NARIKKATTERI DESOM, VADAKARA TALUK. 38. VEERAMVELLI THANKAMANI, D/O.LATE AMMUKUTTY AMMA, KUTTIPRAM AMSOM, VARIKKOLI DESOM, POST VARIKKOLI. 39. PADMANABHAN, S/O. KUNHUIPARVATHI AMMA, KAILASA BHAVANAM, ERAMALA AMSOM, AYITHUR, VIA. OORKKATTERI. 40. KUTTISANKARAN, S/O.KUNHIPARVATHY AMMA, SUPERINTENDENT, NATIONAL SAMPLE SURVEY, KOZHIKODE. 41. RAVEENDRAN, U.D. CLERK,TALUK OFFICE, VADAKARA. 42. RAMAKRISHNAN, KAILAS BHAVAAN, ERAMALA AYITHUR, VIA-OORKKATTERY. 43. SAROJINI, D/O.KUNHIPARVATHY AMMA, KAILAS BHAVANAM, ERAMALA, AYITHUR, VIA OORKKATTERY. 44. KUNHINARAYANAN, S/O.-DO- INSPECTOR, C.B.I., KOZHIKODE. -4- S.A.NO.60/94 45. KOTTARATHIL KUNHILAKSHMI, D/O. -DO- KAILAS BHAVANAM, ERAMALA, AYITHUR, VIA OORKKATTERY. 46. -DO- SANTHA, TEACHER, KOILOTH HOUSE, AZHIYOOR AMSOM, POST CHEMBOLA. 47. -DO- HARIDAS, KAILAS BHAVANAM, ERAMALA, POST AYITHUR, VIA. OORKKATTERY. 48. K.V. MALATHI MENON, VANDIPPETTA, ADAKKAVU, CALICUT-3. 49. K.V. SARADA BALAKRISHNAN, -DO- -DO- 50. RADHA VISWANATHA OF -DO- 51. K.V.HARIKRISHNAN OF -DO- 52. K.V. MEENA GANGADHARAN OF -DO- 53. K.V. SATHYA GOVINDAN, 578 IST STAGE, INDIRA NAGAR, BANGALORE-38. 54. K.V. VISHNU SANKAR, 1004/ HAL 2ND STAGE, -DO- -DO- 55. KUNIYIL DEVAKI AMMA, W/O.KRISHNA KURUP, KUTTUPRAM AMSOM DESOM, POST VARIKKOLI. 56. -DO- SANTHA, D/O. DEVAKI AMMA OF -DO- 57. -DO- KUNHIRAMAN, CLERK, BLOCK OFFICE, KUNNUMMEL, VADAKARA TALUK. 58. -DO- VENU, CHERIYA PUNANGOTTU HOUSE, POST VARIKKOLI, VIA. KALLACHI. 59. -DO- AMBUJAKSHY OF -DO- -DO- IT IS RECORDED THAT R12 AND R13 ARE THE L.R.S OF THE DECEASED R10 AND THAT THE APPELLANTS 2 AND 3 ARE THE L.RS OF THE DECEASED IST APPELLANT AS PER ORDER DTD. 28/1/04 ON SA. R32 AND R33 ARE RECORDED AS THE L.R.S OF THE DECEASED R31 AS PER ORDER DATED 25/1/08 IN MEMO BEARIG CF.1902/06. ADV. SRI.R.PARTHASARATHY ROR 19, 20, 25 TO 30, 55 TO 59 SRI.T.SETHUMADHAVAN FOR SRI.P.N.KRISHNANKUTTY ACHAN, SENIOR ADVOCATE FOR R21 TO R24 SRI.T.SETHUMADHAVAN FOR R21 TO R24 THIS SECOND APPEAL HAVING BEEN FINALLY HEARD ON 22/07/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: HARUN-UL-RASHID,J. ------------------------------ S.A.NO.60 OF 1994 ------------------------------- DATED THIS THE 22ND DAY OF JULY, 2010 JUDGMENT Plaintiffs in O.S.No.76/86 on the file of the Munsiff's Court, Nadapuram are the appellants. This appeal is directed against the judgment and decree dated 7th April, 1993 in A.S.No.7/92 of the Sub Court, Vadakara. The suit was filed for partition. A preliminary decree for partition was passed by the trial court directing division of plaint B schedule property into 37 equal shares and declared that the plaintiffs together be allotted to 4 such shares, defendants 1 to 30 be entitled to one share each, defendants 31 to 48 together be allotted to one such share, defendants 49 to 55 together be allotted one such share and defendants 56 to 60 together be allotted to one such share. The Lower Appellate Court set aside the judgment and decree of the trial court and dismissed the suit. The parties hereinafter are referred to as the plaintiffs and defendants as arrayed in the suit. -2- S.A.No.60/94 2. The plaintiffs' case is that suit B schedule property belonged to the thavazhi originated from one Cherooni Amma. The relationship and geneology are shown in plaint A schedule. According to the plaintiffs, Madhavi Amma, daughter of Cherooni Amma, obtained the property as per lease from Ayanchery Kovilakam. After the death of Madhavi Amma, her sister Nani Amma and daughter Narayani Amma jointly got the lease renewed as per documents dated 25/2/1921 and 27/3/1944, which were marked as Exts.A1 and A2 in the suit. The plaintiffs contended that the property devolved upon the thavazhi of Madhavi Amma's mother Cherooni Amma and the same was enjoyed as such by the thavazhi members of Cherooni Amma. The plaintiffs and defendants 1 to 30 are the members of thavazhi as on the date of Joint Family Abolition Act, 1976. It is further pleaded that one son of Nani Amma, Ramar Kurip, his sister's son Appunni Kurup and Narayani Amm's son Krishna Kurup died after coming into force of the Hindu Succession Act, 1956. -3- S.A.No.60/94 As such the rights of those three persons as members of the thavazhi devolved upon their legal heirs. Defendants 31 to 48, 49 to 55 and 56 to 60 were impleaded in the suit as the legal heirs of the aforesaid three members. The plaintiffs sued for division of the property into 37 shares and prayed for allotment of 4 shares out of 37 shares. 3. The defendants filed separate written statements. The lst defendant supported the case of the plaintiffs and contended that the suit property is liable to be partitioned among the members of Cherooni Amma's thavazhi as per Exts.A1 and A2 documents and prayed for allotment of his share . Defendants 2 to 9 also filed joint written statement admitting the suit claim and prayed for allotment of 8/37 share and for future mesne profits. Defendants 10, 11 to 14 and 15 to 18 filed separate written statements supporting the case of the plaintiffs that the property belongs to the thavazhi of Cherooni Amma and therefore the suit property is liable to be partitioned -4- S.A.No.60/94 among the members of Cherooni Amma's thavazhi. 4. Defendants 19, 20, 25 to 30 and 56 to 60 filed a joint written statement. They contested the suit. They denied the plaint averments and prayed for dismissal of the suit. According to them, plaint B schedule property did not belong to Cherooni Amma's thavazhi and that Madhavi Amma, the elder daughter of Cherooni Amma, did not obtain the property for Cherooni Amma's thavazhi. According to them, Nani Amma and her descendants have no right over the property. They contended that plaint B schedule property is a self acquired property of Madhavi Amma, that she obtained the property in the name of one Chappan in an auction sale and that she enjoyed the property individually. While so, she obtained the property on lease as per document No.229/1877 of SRO, Nadapuram from the jenmi. Thereafter, she got the lease renewed periodically as per document Nos.2152/1889 and 2969/1898 and 988/1909 and was enjoying the property as a lessee. It is also averred in the written -5- S.A.No.60/94 statement that Madhavi Amma died prior to the coming into force of Madras Marumakkathayam Act, that after Madhavi Amma's death, her rights devolved on Narayani Amma and Narayani Amma's children as thavazhi property. They contended that even though the subsequent renewal deeds show the name of Nani Amma also, she has not derived any title to the property, that Nani Amma's thavazhi was not in possession and enjoyment of the property and that Nani Amma's thavazhi members' right, if any, is barred by adverse possession and limitation. Defendants 21 and 22 to 24 also filed separate written statements supporting the contesting defendants namely defendants 19 and others and contended that the property never belonged and enjoyed as Cherooni Amma's thavazhi property and therefore the plaintiffs are not entitled to seek any relief in respect of the property. Defendants 22 to 24 filed separate written statements. Defendants 31 to 35 and 36 in their written statements supported the plaintiff's claim. -6- S.A.No.60/94 5. The most important issue that arose for consideration in the suit is whether the plaint B schedule property belongs to the thavazhi of Cherooni Amma and whether Nani Amma or her descendants had any right or possession over the said property. The case of the plaintiffs is that Madhavi Amma, elder daughter of Cherooni Amma, obtained the property from Ayancheri Kovilakam as per the lease deed for and on behalf of the thavazhi of Cherooni Amma and that the plaintiffs and the defendants mentioned in the plaint are the present members of the thavazhi. The contesting defendants contended that the property is the self acquisition of Madhavi Amma and on her death the property devolved on Narayani Amma and Narayani Amma's children. The defendants produced Exts.B1 to B4 renewal deeds. Ext.B1 is the earlier document produced. It is dated 22/1/1877. By Ext.B1 lease deed Madhavi Amma obtained the plaint schedule property from the jenmi family. Ext.B1 is styled as a renewal lease deed. It is recited in Ext.B1 that the lessee -7- S.A.No.60/94 Madhavi Amma obtained the property in court auction in the name of Chappan and was enjoying the property and therefore the renewal lease deed was executed in her name. Ext.B2 is of the year 1889. It is the renewal lease deed executed in favour of Madhavi Amma. Ext.B2 is followed by Exts.B3 and B4 renewal deeds dated 15/9/1898 and 18/3/1909. All the aforesaid renewal deeds are in the name of Madhavi Amma, the elder daughter of Cherooni Amma. 6. The next renewal is in 1921. By Ext.A1 renewal lease deed dated 25/2/1921 jenmi family renewed the lease in favour of Nani Amma, who is the sister of Madhavi Amma and Narayani Amma, the daughter of Madhavi Amma. Again the jenmi family by Ext.A2 renewal lease deed dated 27/3/1944 renewed the lease in favour of the very same persons. Exts.B1 to B4 renewal lease deeds show that Madhavi Amma was the original lessee. After her death, the lease was renewed in the name of Nani Amma and Narayani Amma. Exts.B1 to B4 -8- S.A.No.60/94 renewal lease deeds further show that Madhavi Amma was holding the property as a lessee and on her death, the lease was renewed in the name of two female members of the family. In Ext.A1 renewal lease deed it is recited that Madhavi Amma was the lessee and since she is no more, the lease is renewed in the name of two female members, who are her legal heirs and they continued to possess and enjoy the property. The said recitals would go to show that Ext.A1 renewal lease deed was executed by the jenmi family in favour of two members of the family finding that Madhavi Amma is dead. The recitals further would go to show that after Madhavi Amma's death the property was in the possession and enjoyment of Nani Amma and Narayani Amma, who are the lineal descendants of Cherooni Amma. The property was renewed in the name of these two persons in the year 1944 by Ext.A2 renewal lease deed. The defendants contended that the property is self acquired property of Madhavi Amma, which she obtained by Ext.B1 to B4 renewal deeds and -9- S.A.No.60/94 after her death, the property devolved upon the thavazhi consisting of her daughter Narayani Amma and her lineal descendants. They also contended that even though Ext.A1 shows that the property is renewed in the names of Nani Amma and Narayani Amma, the mere recitals in the document do not confer any right on Nani Amma, who is admittedly the sister of Madhavi Amma. 7. The dispute primarily depends upon the interpretation of Exts.B1to B4 and Exts.A1 and A2. The recitals in Ext.A1, which was executed after the death of Madhavi Amma, would go to show that Nani Amma and Narayani Amma obtained renewal of the lease as members of the thavazhi. It is recited in Ext.A1 that the lease was renewed in their names, since they are the legal heirs of deceased Madhavi Amma. On an interpretation of Ext.A1 after giving credit to the recitals therein, the conclusion that can be arrived at is that Nani Amma and Narayani Amma obtained the lease deed as members of the -10- S.A.No.60/94 thavazhi. Assuming that Ext.A1 renewal lease deed obtained by Nani Amma and Narayani Amma is not for and on behalf of the thavazhi, then the only other possibility is that they obtained the property individually. Then also the descendants of Nani Amma are entitled to inherit the property obtained by Nani Amma as well by virtue of Exts.A1 and A2 renewal lease deeds. The contention of the defendants is that Madhavi Amma enjoyed the property as her self acquired property and therefore, Nani Amma, who is admittedly her sister, does not become the legal heir of Madhavi Amma, cannot stand in view of the fact that Nani Amma is either co-lessee as per Ext.A1 or obtained Ext.A1 as elder member of the Cherooni Amma's thavazhi. Moreover, even if it is accepted that Madhavi Amma had obtained the property as self acquired property, after her death, the property would devolve upon her descendants alone. Ext.A1 shows that the property belongs to Nani Amma and Narayani Amma. The recitals in Ext.A1, which I have referred to in the earlier -11- S.A.No.60/94 paragraphs, evidenced the fact that Nani Amma and Narayani Amma started enjoying the property as members of thavazhi of Cherooni Amma. Even if it is found that they are enjoying the property individually, then also the plaintiffs can claim right over the property as members of the thavazhi of Nani Amma. 8. The trial court examined Exts.B1 to B4 documents produced by the contesting defendants and Exts.A1 and A2 produced by the plaintiffs. The trial court, referring to the same recitals I have referred above, observed that both Nani Amma and Narayani Amma are in possession of the property and that they succeeded as members of the thavazhi. The trial court further observed that Ext.B1 not only recites that Nani Amma and Narayani Amma are the successors-in-interest of Madhavi Amma, but also recites that they are in possession of the property. The trial court held that if the property did not belong to the thavazhi of Cherooni Amma, there is no reason how Nani Amma could be in possession of the property and a reading of -12- S.A.No.60/94 Ext.A1 shows that Nani Amma and Narayani Amma are in possession of the property and are the successors-in-interest of Madhavi Amma. The trial court held that the recitals show that the property belonged to the thavazhi of Cherooni Amma. The trial court also referred to Exts.A3, which shows that Nani Amma was the manager of the Ponnamkottu Veedu. Ext.A3 is of the year 1925. Ext.A4 shows that one Chathu and Mathu obtained the property originally from Madhavi Amma and that further marupattom was executed by them in favour of Nani Amma and Narayani Amma. Ext.A4 also recites that the property belonged to Ponnamkottu Veedu. Therefore, placing reliance on Ext.A4 the trial court also held that it is evident that Ext.A4 property was obtained by Madhavi Amma as per the lease from the jenmi (Kovilakom), that Exts.A3, A4 and B77 substantially proved that Madhavi Amma was meddling with the property of Ponnamkottu Veedu. None of these documents refers to the suit property. These documents show that Madhavi Amma was managing the -13- S.A.No.60/94 property of Ponnamkottu Veedu. The last renewal of the lease deed by Kovilakam in favour of Madhavi Amma was as per Ext.B4 of the year 1909. The lease was renewed after Madhavi Amma's death in favour of Nani Amma and Narayani Amma as per Ext.A1 renewal deed. Ext.A1 was renewed in 1944 as per Ext.A2 renewal deed. Ext.A2 renewal deed shows that the rent was paid to the landlord in between Exts.A1 and A2 periods. The defendants contended that Nani Amma's name is fraudulently inserted in Ext.A1 by her son Kanara Kurup. The said contention is not seen acceptable for the reason that Ext.B87, which is the marupattom executed by Nani Amma and Narayani Amma, shows that Narayani Amma was also a signatory to the marupattom and that Ext.A1was further renewed by Ext.A2 in favour of the same persons in the year 1944, that too after a period of approximately 23 years. These are very old documents, which came into existence at a time when there was no dispute between the parties. It is found that from 1921 to 1944 Nani -14- S.A.No.60/94 Amma and Narayani Amma were holding the properties as lessees. On the basis of renewals in the name of Nani Amma by Exts.A1 and A2 documents, the trial court rightly held that if the property was self acquisition of Madhavi Amma, there is no reason how Nani Amma, who is admittedly the younger sister of Madhavi Amma, would also be a party to the renewal lease deeds. 9. Some of the members of the thavazhi of Narayani Amma had filed O.S.No.95/84 on the file of the Sub Court, Vadagara for partition of the present suit property. The case of the plaintiffs in the said suit is that the suit property in that case which is the suit property in the present case, belonged to the thavazhi of Narayani Amma. Ext.A6 is the written statement filed by the 21st defendant in that suit. In Ext.A6 the 21st defendant denied that the suit property absolutely belongs to the thavazhi of Narayani Amma. In paragraph 4 of Ext.A6 he has contended that the lease was renewed in 1921 (Ext.A1) and in -15- S.A.No.60/94 1944 (Ext.A2) by Nani Amma and Narayani Amma and as such Nani Amma's legal heirs have to be impleaded in the suit. Ext.A7 is the written statement in the said suit filed by defendants Nos. 22 to 24. In Ext.A7 also defendants 22 to 24 contended that the legal heirs of Nani Amma have to be impleaded in the suits, since there is renewal of lease in favour of Nani Amma and Narayani Amma. Exts.A6 and A7 are the written statements filed by the defendant Nos. 21 to 24. Their stand in the earlier suit is in terms of the plaintiffs' claim in the present suit. In the present suit contrary stand was taken, which was directly opposite to the earlier stand taken in the suit filed by other members for partition. In the light of the contentions as stated, some of the members of Nani Amma's thavazhi filed a petition to implead themselves as additional defendants in that suit. At that stage, the plaintiffs in the suit did not press the suit. Subsequently, the legal heirs of Narayani Amma entered into a partition karar as per Ext.B61. Though defendant Nos. 21 to 24 contended in that suit that the -16- S.A.No.60/94 lease was renewed in favour of Nani Amma and Narayani Amma in 1921 and 1944, the said fact has been suppressed in Ext.B61 partition karar. It is stated that the property was obtained by Madhavi Amma alone as per the renewal deeds. The conduct of the contesting defendants would show that they are raising false claim in the present suit, which is diametrically opposite stand in the earlier suit, only to deny the lawful claim of the plaintiffs. The trial court also examined the contentions of the plaintiffs and defendants in the light of Exts.A6, A7 and B61 as well. 10. The trial court also examined the contesting defendants' plea of adverse possession and the plea as to whether the possession of the thavazhi of Narayani Amma is to the exclusion of the thavazhi of Nani Amma. Following the settled position that mere non-participation in the management of the property or the income of the property does not amount to adverse possession and taking into account the facts and circumstances including the stand taken by the respective parties -17- S.A.No.60/94 oral and documentary evidence, the trial court concluded on facts that Nani Amma's thavazhi also has right over the suit property and that the possession of the property by some members of Narayni Amma's thavazhi is also for and on behalf of Nani Amma's thavazhi and therefore negatived the plea of defendants that they have acquired the right by adverse possession and limitation. 11. The Lower Appellate Court also discussed the questions raised by the parties in detail. The Lower Appellate Court referred to all the documents relied on by the trial court and took a contrary view stating that there is no reference in Ext.B1 that the property is acquired for the thavazhi and that the recitals in Exts.B2 to B4 do not give rise to any presumption that the property was acquired by Madhavi Amma not for herself, but for the thavazhi of her mother. By interpreting the terms of Exts.B1 to B4, the Lower Appellate Court held that Exts.B1 to B4 are of the nature that will lead to a conclusion that the -18- S.A.No.60/94 property is intended as the self acquisition of Madhavi Amma, that there is nothing to show that during the lifetime of Madhavi Amma the property was ever enjoyed as thavazhi property and that on the other hand, the evidence shows that it was intended to be and was enjoyed as the self acquisition of Madhavi Amma. The Lower Appellate Court failed to place reliance on Exts.A1 and A2 in order to accept the stand that the property is a thavazhi property of Cherooni Amma. The Lower Appellate Court rejected the plea and held that there was no necessity to add the name of Narayani Amma, who was only a junior member of the thavazhi of Cherooni Amma, if the case of the plaintiffs is to be accepted. Another reason stated by the Lower Appellate Court is that the thavazhi property was usually managed by the Karanavan and there is no