IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN MONDAY, THE 24TH MAY 2010 / 3RD JYAISHTA 1932 AS.No. 662 of 1997() ------------------------------- OS.413/1996 of I ADDL.SUB COURT, THRISSUR .................... APPELLANT(S): 7TH DEFT. -------------------------- VENU SON OF MADHAVAN, RESIDING AT KODAVAMPARAMBIL, PERUMPILAVU VILLAGE, THALAPPILLY TALUK, (AS LEGAL REPRESENTATIVE OF THE 9TH DEFENDANT SREEMATHY WHO DIED ON 4.2.1997 HAVING EXECUTED A REGISTERED WILL DT. 23.2.1985 BEQUEATHING ALL HER PROPERTIES IN FAVOUR OF THE 7TH DEFENDANT/ APPELLANT)(DIED) ADDL. APPELLANTS 2 TO 5 IMPLEADED. 2. AMBUJAKSHI, W/O. LATE KODAVANPARAMBIL VENU, KODAVANPARAMBIL HOUSE, P.O., PERUMPILAVU, KUNNAMKULAM, THRISSUR DIST. 3. TAJ, S/O. LATE KODAVANPARAMBIL VENU, DO. DO. DO. 4. SHILE, S/O. LATE KODAVANPARAMBIL VENU, DO. DO. DO. 5. HAPPY, D/O. LATE KODAVANPARAMBIL VENU, DO. DO. LEGAL REPRESENTATIVES OF DECEASED SOLE APPELLANT ARE IMPLEADED AS ADDL. APPELLANTS 2 TO 5 VIDE ORDER DTD. 28.8.09 ON AS. 662/1997. BY ADV. SRI.T.C.MOHANDAS SRI.T.M.SUNIL SRI.A.R.GENGADAS SMT.ANJU GOVIND A.S. NO.662/1997 RESPONDENT(S): ------------------------ 1. SWARNAM, D/O. KODAVAMPARAMBIL LATE MADHAVAN AND WIFE OF KANAMGOT, SREEDHARAN, KANIYAMBAL DESOM, PERUMBILAVU VILLAGE, TALAPPILLY TALUK. 2. THANKAM, D/O. MADHAVAN AND WIFE OF CHULLIPARAMBIL NARAYANAN, NO. 57 OFFICERS COLONY, RAJARAM METHA NAGAR, MADRAS. 3. RETNAM D/O. MADHAVAN, AND WIFE OF KAKKARATH SUKUMARAN, MATTAYA DESOM, TRITHALA AMSOM, OTTAPPALAM TALUK. 4. KANAKAM, D/O. MADHAVAN AND WIFE OF THANDASSERY DHARMARAJAN, VADOOKKARA DESOM, KOORKKENCHERY VILLAGE , THRISSUR. 5. PAVIZHAM D/O. MADHAVAN, AND WIFE OF KUNNATH RAMACHANDRAN, PADOOR, PALGHAT. 6. KANCHANA, D/O. MADHAVAN AND WIFE OF KUZHIPARAMBIL SUSEELAN, MULAMKUNNATH KAVU DESOM AND VILLAG, THRISSUR. 7. NIDHI SON OF MADHAVAN, PERUMBILAVU, VILLAGE AND DESOM, TALAPPILLY TALUK. 8. SURESHNADH, SON OF KAKKARATH SUKUMARAN MATTAYA DEOSM THRITHALA AMSOM OTTAPPALAM TALUK. R1 BY ADVS.SRI.K.RAMACHANDRAN SRI.B.K.PURUSHOTHAMAN FOR R2,3,6 &7 BY SRI.T.K.CHINNAN R8 BY SRI.N.P.SAMUEL THIS APPEAL SUITS HAVING BEEN FINALLY HEARD ON 24/05/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: M.N. KRISHNAN, J. = = = = = = = = = = = = = = = A.S. NO. 662 OF 1997 = = = = = = = = = = = = = = = Dated this the 6th day of August, 2010. J U D G M E N T This appeal is preferred by the 7th defendant against the judgment and decree passed by the Subordinate Judge, Thrissur in O.S.413/86. As per the preliminary decree the trial court ordered the properties mentioned as items 2 to 6 in the plaint schedule property to be divided into 9 equal shares and to allot one share each to the plaintiffs 1 to 7 and D9. The plaintiff was also entitled to get future profits and the 9th defendant was made liable to pay future profits. The Court also made it very clear while effecting partition if any situation arises affecting the running of the school, the plaint schedule properties where the school is situated, are to be auctioned between the A.S. 662 OF 1997 -2- sharers and the sale proceeds apportioned in proportion to the respective shares. 2. The property described in the plaint schedule, according to the contesting defendants were the joint family properties of which the common predecessor Madhavan and his three sons were entitled to have equal right. So it is submitted that the plaintiff is not entitled to any share in the family property and they are not available for division. It is also a contention that after Madhavan's death which took place in the year 1978 the property belonging to Madhavan are liable to be divided where the defendants are also entitled to share over the property. The question whether it was a separate property or an ancestral property was considered by the Court below and also on the basis of Ext.B4 and the Court arrived at a decision that the property belonged to the joint A.S. 662 OF 1997 -3- family of Madhavan. When the property belonged to the joint family of Madhavan it goes without saying that himself and his three sons would have equal right over the property. So whatever is allotted to Madhavan alone shall be a subject matter of division subsequently. It is at that point it is contended that the 9th defendant who is the wife of Madhavan is also entitled to a share by virtue of the pristine Hindu Law and the original property is to be be divided into 5 equal shares of which one share each will go to the sons, one share to Madhavan and one share to 9th defendant. 3. The question now first I will consider about is the nature of the property. I think there is no serious difficulty in resolving that for the reason that the property had been obtained by Madhavan is by virtue of a partition deed of the year 1954, i.e. Ext.B4 in the year A.S. 662 OF 1997 -4- 1954. In a proceeding under S.85(8) of Kerala Land Reforms Act the Taluk Land Board considered the question and held that being ancestral properties the daughters are not entitled to share by birth. Further in a revisional matter before this Court this Court also construed Ext.A1 partition deed and held that since the property belonged to the joint family the daughters do not have right over the property and construed their division in the partition deed as a gift and invoking the benefit under Act 27/1979 of the Kerala Land Reforms Act exempted it from the ceiling area since it was a gift executed prior to 5.11.74. It has to be held that the properties are ancestral in character. So far as the property of the daughters are concerned covered by Ext.A1 it has been treated as a gift. Therefore the properties to be considered for division is those properties A.S. 662 OF 1997 -5- allotted to Madhavan in the partition deed. 4. 7th defendant is no more and now legal representatives are on records. Now the learned counsel for the legal representatives of the 7th defendant who claims under D9 would contend before me that under the pristine Hindu Law the wife is entitled to a share and therefore when there is an original division of the properties between father and son, the wife is entitled to share and taking into consideration that aspect the said share of the 9th defendant had been set apart to the share of Madhavan and therefore half the share in Ext.A1 really belonged to the 9th defendant and by virtue of a Will executed by her in the year 1985 the said property will devolve upon the 7th defendant. At the out set I may like to state that the will is not produced in this case and so one cannot hold about the same. But even without that, suppose the mother A.S. 662 OF 1997 -6- is not entitled to any share as contended by the learned counsel for the appellant then the matter has not to be protracted. In the Mayne's Hindu Law 16th edition page 912 the learned author dealt with the wife's share under the Mitakshara Law. “According to the Mitakshara Law prevailing in States other than Madras, a wife is entitled on a partition between her husband and his sons to a share equal to that of a son; but she cannot enforce a partition. She may either be the mother or the step-mother of the sons. She can sue for her share where there has been partition and she has not been assigned any share, provided there were no waiver of her rights or acquiescence on her part.” 5. According to the learned author it is the practice prevailing in other States than A.S. 662 OF 1997 -7- Madras. When the present properties are considered it is situated in erstwhile Malabar and therefore the wife may not be entitled to share. But I am not entering into that aspect because other materials would be sufficient to dispose of this appeal. Now there was a proceedings before the Taluk Land Board initiated against Madhavan. Madhavan was directed to surrender about 10.361 acres. Then taking umbrella under the new enactment of Act 27 of 1979 the daughters moved an application as well as the wife as a legal representative of Madhavan contending that there was a partition in the family in the year 1970 and by virtue of the Act 27 of 1979 any gift given to the children prior to 5.11.74 was validated under the Kerala Land Reforms Act. So Ext.A1 was placed before the Taluk Land Board and contended that the said document would save the property A.S. 662 OF 1997 -8- held by the declarants by virtue of the amendment. The Taluk Land Board rejected that contention. The matter came up before this Court and this Court by virtue of Ext.B2 order found that the property coming under Ext.A1 in favour of daughters had to be construed as a gift for the reason they do not have any pre- existing right in the property. Accordingly the contentions were accepted and extending the benefit of S.27 of 1979 the order to surrender lands were set aside by this Court. It has to be remembered that it was on the basis of Ext.A1 and Ext.A1 alone where the mother Sreemathy namely 9th defendant and the daughters approached the Taluk Land Board and also the High Court for redressing their grievance. The mother was totally aware of the partition deed is quite evident from her conduct by participating before the Taluk Land Board in the revisional Court. A.S. 662 OF 1997 -9- So when she was consciously aware of the fact that no property has been set apart to her share under Ext.A1 as correctly found out by the trial court it has to be stated that either she has waived his right or has acquiesce and therefore after so many years she cannot turn round and say that Ext.A1 is not binding on her and therefore it was to be separated. So I find Ext.A1 is binding by the conduct of 9th defendant on her and she cannot turn round and say that it is not binding on her. One cannot approbate and reprobate and blow hot and cold at the same time. So applying these principles I hold that the way the property is ordered to be divided by the Court below is perfectly in order and it does not call for any interference. Anyhow it has come out in evidence that the 9th defendant is dead and the 7th defendant is claiming her right through a will. When the final decree is A.S. 662 OF 1997 -10- being adjudicated I directed the Court below to adjudicate the question regarding the validity of the will and if it is proved let the share due to the 9th defendant as the legal heir of Madhavan be allotted to the share of 7th defendant and now the legal representatives of the 7th defendant. Appeal is accordingly dismissed. Parties are directed to bear their respective costs. Sd/- M.N. KRISHNAN, JUDGE. ul/- [true copy] P.A. To Judge. A.S. 662 OF 1997 -11- M.N. KRISHNAN, J. = = = = = = = = = = A.S. No.662 OF 1997 = = = = = = = = = = = J U D G M E N T 6th August, 2010.