IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.BHAVADASAN FRIDAY, THE 2ND DECEMBER 2011 / 11TH AGRAHAYANA 1933 SA.No. 529 of 1996(D) ------------------------------- AS.210/1991 OF ADDITIONAL DISTRICT COURT, KOZHIKODE OS.71/1989 OF I ADDITIONAL SUB COURT, KOZHIKODE .................... APPELLANT/APPELLANT/SUPPLE. 5TH DEFENDANTS: ------------------------------------------------------------------------------- OTHAYAMANGALATH C.RAJAGOPALAN, S/O.PADMAVATHY AMMA, AGED 46 YEARS, RESIDING AT INDIRA NIVAS, P.O. WEST HILL, CALICUT-670 005. BY ADV. SRI.V.V.SURENDRAN, SRI.P.A.HARISH. RESPONDENT(S): -------------------------- *1. OTHAYAMANGALATH PADMAVATHY AMMA, D/O.DEVAKI AMMA, AGED 70 YEARS, INDIRA NIVAS, P.O. WEST HILL, CALICUT. *(DIED) 2. THAZHEVEETTIL T.V. INDIRA, AGED 50 YEARS, D/O.BALAKRISHNAN NAIR, PARINAYAM, SREEVALSAM FLAT, NEAR DESHABHIMANI, PONOTH ROAD, KALOOR. 3. THAZHEVEETTIL T.V. JAYARAJAN, S/O.BALAKRISHNAN NAIR, AGED 52 YEARS, PARVATHI NIVAS, P.O. KALLISSERI, CANNANORE DISTRICT. 4. THAZHEVEETTIL T.V.AMMINI, AGED 42 YEARS, D/O.BALAKRISHNAN NAIR, NO.2432, B, KESAVA MENON HOUSING COLONY, CALICUT. 5. OTHAYAMANGALATH O.MURALI, S/O.PADMAVATHI AMMA, AGED 44 YEARS, INDIRA NIVAS, P.O. WEST HILL, CALICUT. SA.No. 529 of 1996(D) **6. OTHAYAMANGALATH O. NANDAKUMAR, S/O.PADMAVATHI AMMA, AGED 40 YEARS, RESIDING AT INDIRA NIVAS, P.O. WEST HILL, CALICUT. **(DIED) 7. S. MANSINGH, AGED 35 YEARS, S/O.O. SREENIVASAN, POLICE CONSTABLE, NO.5, MANDAPAM ROAD, IIND STREET, KILIPARK GARDEN, MADRAS-600 010. 8. MRS.S. PADMAVATHY, AGED 29 YEARS, W/O.S. HARIDAS, 69/A, WASHER VARADEPPA MAISTRY STREET, NEW WASHERMANPET, MADRAS-600 081. ***9. S. SIDAKOYAN, AGED 24 YEARS, S/O.O. SREENIVASAN, NO.5, MANDAPAM ROAD, IIIRD STREET, KALPARK GARDEN, MADRAS-600 010. **(DIED) * ADDL. R10 IMPLEADED ADDL. R10 SRI.VIJAYAKUMAR, S/O.PADMAVATHY AMMA, INDIRA NIVAS, WEST HILL, KOZHIKODE. * ADDL. 10TH RESPONDENT IS IMPLEADED AS THE LRS OF DECEASED 1ST RESPONDENT AS PER ORDER DATED 02/08/2010 IN C.M.P.1338/2001 IN SA. **THE APPELLANT AND RESPONDENTS 5 AND 10 IN S.A. ARE RECORDED AS THE LEGAL REPRESENTATIVES OF THE DECEASED 6TH RESPONDENT AS PER ORDER DATED 23/03/2011 IN MEMO BEARING C.F.1487/2011. *** THE DEATH OF THE 9TH RESPONDENT IS RECORDED AND HIS LEGAL REPRESENTATIVES ARE ALREADY ON PARTY ARRAY AS APPELLANT AND RESPONDENTS AS PER ORDER DATED 23/09/2011 IN MEMO BEARING C.F.5666/2011. R7 & R8 BY ADV. SRI.K.P.BALASUBRAMANYAN, SRI.T.K.AJITH KUMAR. R2 TO R4 BY ADV. SRI.K.T.SHYAMKUMAR. BY ADV. SRI.T.KARUNAKARAN NAMBIAR, SRI.SREEPRAKASH K.NAIR, SRI.P.P.RAJEEV LAXMAN. THIS SECOND APPEAL HAVING BEEN FINALLY HEARD ON 02/12/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: rs P. BHAVADASAN, J. - - - - - - - - - - - - - - - - - - - - - - - - - - - S.A. No. 529 of 1996 - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 2nd day of December, 2011. JUDGMENT Supplemental fifth defendant in O.S.71 of 1989 before the Sub Court, Kozhikode is the appellant. Parties and facts are hereinafter referred to as they are available before the trial court. 2. According to the plaintiff, plaintiff and the defendants belonged to Thathyat tavazhi of Othayamangalath tarwad. Properties of the tarwad was the subject matter of partition in O.S.32 of 1941 and as per the final decree passed in the suit, plaint schedule properties were set apart to the plaintiff, the first defendant, Devaki Amma, Balakrishnan Nair, father of defendants 2 to 4, and Kovu Amma, mother of Balakrishnan Nair. The allegation was that they were in joint possession of the suit property and on the death of Balakrishnan Nair his rights devolved on defendants 2 to S.A.529/1996. 2 4. There are other averments in the plaint, which are not very relevant for the present purpose. Since the plaintiff did not desire to continue the joint status, he sued for partition. He claimed 9/30 shares over the plaint schedule property. 3. The first defendant resisted the suit. The suit for partition and the allotment therein were admitted. But it is contended that the allotment as per Ext.A1 was to a tavazhy and therefore the subsequently born children will also get a right in the property. On that basis, it is contended that the first defendant is entitled to 2/16 shares and the children together are entitled to get 8/16 shares. 4. On the above pleadings, issues were raised by the trial court. Evidence was adduced. The evidence consists of the testimony of P.W.1 and documents marked as Exts.A1 to A4 from the side of the plaintiff. The defendants had marked Exts.B1 to B3. The trial court, on an evaluation of the evidence in the case, found that the allotment under Ext.A1 cannot be treated as one to a tavazhy and the allottees had taken it as tenants in S.A.529/1996. 3 common. Based on those findings, the shares were determined and a preliminary decree was passed. 5. The matter was carried in appeal before the District Court as A.S. 210 of 1991. The appellate court did not find any reason to take a different view and therefore confirmed the preliminary decree passed by the trial court. 6. Notice is seen issued on the following questions of law: “a) Whether a person born to a female sharer of a Marumakkathayam family before 1.12.1976 entitled for a share in the property? b) Whether joint allotment of property of marumakkathayam family property by virtue of an earlier partition suit breaks the thavazhi character of the property? c) Whether joint allottees in a suit for partition of a marumakkathayam family are co-owners or tavazhy members? d) Whether nature of a document shows the intention of the properties on the manner in which they hold the property?” S.A.529/1996. 4 7. Learned counsel appearing for the appellant pointed out that if the allotment is to a tavazhy, the settled law is that all subsequently born children in the family has got right by birth. If that be so, the children of Parvathi Amma too have shares. The lower courts were not justified in declining to grant any relief on this basis. 8. True, if the allotment is to a tavazhy, the contention of learned counsel for the appellant has to be accepted. Unfortunately, in the case on hand, the group to which the properties were allotted under Ext.A1 cannot be treated as a natural tavazhy. Both the courts have concurrently found that it is not a natural tavazhy. On going through the records, there is no reason to take a different view. Both the courts below were therefore justified in coming to the conclusion that the properties were taken as tenants in common. 9. It was then pointed out that the share of Devaki Amma atleast will have to be treated as tavazhy property in their hands and the subsequently born children of S.A.529/1996. 5 Padmavathi Amma will get a share by virtue of their birth in the tavazhy. That is a matter to be dealt with only in the final decree proceedings. That question does not arise now. 10. It was then contended that Ext.B1 shows that Balakrishnan Nair, son of Kovu Amma was the tavazhy karanavan and that would show that the parties have treating the property as tavazhy property. 11. As rightly pointed out by the learned counsel for the respondents, the subsequent conduct cannot be a ground for holding that the property is a tavazhy property when it is originally not so. The allotment under Ext.A1 is not to a natural group and therefore cannot be treated as tavazhy property. This would be clear from a reading of Ext.A1 where properties were allotted to individuals as a group and not to a tavazhy as such. The courts below were therefore justified in decreeing the suit. No substantial question of law arises for consideration in this Second Appeal. The Second Appeal is S.A.529/1996. 6 without any merits and accordingly it is dismissed. There will be no order as to costs. P. BHAVADASAN, JUDGE sb.