IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR FRIDAY, THE 23RD SEPTEMBER 2011 / 1ST ASWINA 1933 RSA.No. 62 of 2004(G) --------------------- AS.125/2000 of DISTRICT COURT, THRISSUR OS.1609/1992 of I ADDL.MUNSIFF COURT,THRISSUR .................... APPELLANTS/APPELLANTS IN AS/DEFENDANTS 3 & 9 ---------------------------------------------------------------- 1. SREEDEVI D/O. RAMAN NAMBOODIRI & PAPPY ALIAS PARVATHY ANTHARJANAM, W/O. VELUTHEDATH MANAKKAL V.N.NARAYANAN NAMBOODIRI KUTTOOR VILLAGE, P.O.KUTTOOR, THRISSUR TALUK & DISTRICT 680 013. * 2. NARAYANAN NAMBOODIRI S/O. VELUTHEDATH MANAKKAL RAMAN NAMBOODIRI, KUTTOOR VILLAGE P.O.KUTTOOR, THRISSUR TALUK & DISTRICT 680 013. (DIED). $ 3. JAYESH, S/O. LATE NARAYANAN NAMBOODIRI VELUTHEDATH MANA, KUTTUR VILLAGE AND DESOM, TRICHUR TALUK AND DISTRICT. $ 4. RAJESH, S/O. LATE NARAYANAN NAMBOODIRI VELUTHEDATH MANA, KUTTUR VILLAGE AND DESOM, TRICHUR TALUK AND DISTRICT. * 1ST APPELLANT IS RECORDED AS ONE OF THE LEGAL REPRESENTATIVES OF DECEASED 2ND APPELLANT AS PER ORDER DATED 27.2.2009 IN MEMO BEARING CF NO.890/2009. $ ADDITIONAL APPELLANTS 3 AND 4 ARE IMPLEADED AS THE LEGAL REPRESENTATIVES OF DECEASED 2ND APPELLANT AS PER ORER DATED 27.2.2009 IN I.A.348 OF 2009. BY ADV. SRI.N.SUBRAMANIAM SRI.M.S.NARAYANAN SRI.P.T.GIRIJAN SRI.PRAMODH.R SMT.USHA NARAYANAN RESPONDENT(S): RESPONDENT NO.1 IN AS/PLAINTIFF ---------------------------------------------- 1. NEELAKANTAN NAMBOODIRI, S/O. AVANAVU MANAKKAL RAMAN NAMBOODIRI, PERAMANGALAM P.O., THRISSUR TALUK & DISTRICT 680 545. # 2. RAMAN NAMBOODIRI, S/O. LATE RAMAN NAMBOODIRI, AVANAVU MANAKKAL, PERAMANGALAM P.O., THRISSUR TALUK & DISTRICT 680 545 (DIED) 3. PAPPY ALIAS PARVATHY ANTHARJANAM, W/O. RAMAN NAMBOODIRI, DO. DO. 4. RAMAN NAMBOODIRI S/O. RAMAN NAMBOODIRI, DO. DO. 5. ARYA, W/O.KORANGOOR MADATHIL KRISHNAN ADIKAL, D/O. RAMAN NAMBOODIRI AND PAPPY @ PARVATHY ANTHARJANAM, P.O.KORANGIYOOR, VIA CHAVAKKAD, THRISSUR-6. 6. DEVASENA ALIAS USHA W/O. K.N.KRISHNAN NAMBOODIRI, KARUTHEDATH, FLAT NO.64, AMAR CLASSIC CO-OPERATIVE HOUSING SOCIETY, PUNE - SHOLAPUR ROAD, HADAPSAR, PUNE 28. 7. KRISHNAN NAMBOODIRI, S/O. RAMAN NAMBOODIRI AND PAPPY ALIAS PARVATHY ANTHARJANAM, AVANAVU MANAKKAL, PERAMANGALAM VILLAGE & DESOM, P.O.PERAMANGALAM, THRISSUR TALUK & DISTRICT 680 545. 8. GOWRI W/O. KODAKKADU KUNNATH KRISHNAN NAMBOODIRI, KODAKKATT KUNNATHU ILLOM, P.O.KODAKKADU, VIA THRIKKARIPPUR, KASARAGOD DISTRICT 671 357. 9. UMADEVI W/O. KRISHNAN NAMBOODIRI, VADAGON SHARIL NAGAR ROAD, SY.NO.53/1, POONA 411 014 # IT IS RECORDED THAT 1ST APPELLANT AND RESPONDENTS 3 TO 8 ARE THE LEGAL REPRESENTATIVES OF DECEASED 2ND RESPONDENT AS PER ORDER DATED 25.9.2004 IN MEMO CF.NO.4343/2004 DATED 16.8.2004. ADV. SRI.V.SANKARA RAJA FOR R1 THIS REGULAR SECOND APPEAL HAVING BEEN FINALLY HEARD ON 23/09/2011 THE COURT ON THE SAME DAY PASSED THE FOLLOWING: M.SASIDHARAN NAMBIAR, J ........................................... RSA No.62 of 2004 ............................................ DATED THIS THE 23rd DAY OF SEPTEMBER, 2011 JUDGMENT Defendants 3 and 9 in O.S.1609 of 1992 on the file of First Additional Munsiff Court, Thrissur are the appellants. First respondent was the plaintiff and other respondents, other defendants in the suit. First appellant is the wife. Second appellant is her husband. Second respondent died subsequent to the filing of the second appeal. First appellant and appellants 3 and 4 were recorded and impleaded as his legal heirs. Second defendant is the wife of first defendant. Defendants 3 to 8 and 10 are their children. 9th defendant who died subsequent to the filing of the appeal is the husband of third defendant. The first respondent plaintiff instituted the suit seeking partition and allotment of his share in the plaint schedule property contending that plaint schedule property was alloted to the family of the plaintiff and defendants 1 to 7 under Ext.A1 partition deed 358/1962. 8th defendant was born to the family subsequent to the partition. They are all members of Namboothiri community. RSA 62/2004 2 After the passing of Kerala Hindu Joint Family System (Abolition) Act, plaintiff, defendants 1, 2 and 4 to 8 are co-owners who are tenants in common and are entitled to 1/8 share each. It was contended that third defendant was married, as per the custom prevailing in the community to the 9th defendant in 1974 and after her marriage she ceased to be a member of the illom of the first defendant and became the member of the illom of 9th defendant and therefore only the parents and the other children are entitled to a share. It was contended that though Ext.A2 partition deed was entered into on 6.11.1991, neither the plaintiff nor 4th defendant execute the partition deed and therefore the said division is not valid and binding on them and plaintiff is entitled to get the entire property divided ignoring Ext.A2 and get his share alloted to him. Defendants 3 and 9, the appellants herein, filed a joint written statement and later an additional written statement. They contended that plaint schedule property belonged to the plaintiff and defendants 1 to 8 and 10 jointly and all are having equal shares and due to the abolition of Namboothiri Act, after due consideration and discussion, the joint property was decided to be divided in 1991 and Ext.A2 partition deed was executed with the knowledge and consent of all the RSA 62/2004 3 sharers including the plaintiff. It was contended that as plaintiff was not available to affix his signature, though share was alloted to him, he did not execute the partition deed. It was contended that the plaintiff had agreed to execute the partition deed later, on reaching his native place, but later he backed out and suit was filed with a vengeance and as the joint property was already divided, he is not entitled to a decree for partition. It was contended that 8th defendant who was alloted a share under Ext.A2 partition deed assigned one half of her right in favour of the 9th defendant and the remaining one half to defendant No.10 on 5.5.1992 and hence 9th defendant is entitled to the share. It was also contended that marriage of 3rd defendant was conducted when she was 24 years old and as the financial status of the family was bad, and there was dispute in the illom of third defendant and 9th defendant, it was decided that share will be given to third defendant. On the intervention of Mullappally Narayanan Bhattathiripad and Madavu Parmeswaran Namboothiripad, it was decided to give a share to the third defendant in the family property make arrangements for their residence and the members have agreed for the same. Hence in the event of a partition, share is to be alloted to third defendant RSA 62/2004 4 also. Fourth defendant filed a written statement supporting the plaintiff and claiming that he did not execute Ext.A2 partition deed and third defendant is not entitled to any share and 4th defendant is entitled to get his share separated. 2. Learned Munsiff, on the evidence of PWs 1 and 2, DWs 1 and 2, Exts.A1 to A5, B1 to B9 and C1 to C5 found that third defendant was admittedly given in marriage to 9th defendant in 1974 and on her marriage, she ceased to be a member of the illom of defendants 1 and 2 and therefore she is not entitled to claim any share. Learned Munsiff also found that though under Ext.A2 partition deed a share was alloted to the fourth defendant as well as the plaintiff, 4th defendant and plaintiff did not execute the partition deed and therefore that partition is not valid and binding on them. Hence it was found that plaint schedule property is available for partition and is to be divided into eight equal shares and plaintiff and defendants 1, 2 and 4 to 8 are entitled to 1/8 share each and plaintiff is entitled to his share of profits from defendants 1 to 3 and 5 to 8. Appellants challenged the preliminary decree before District Court, Thrissur in A.S.125 of 2000. Learned District Judge, on re-appreciation of the evidence confirmed the findings of learned Munsiff and dismissed RSA 62/2004 5 the appeal. It is challenged in the second appeal. 3. Second appeal was admitted formulating the following substantial questions of law. 1) Whether the interpretation given to Ext.A2 document in so far as it relates to the properties given to the 3rd defendant is concerned, correct ? 2) Whether the allotment by a Hindu father and Karta in 1991 in favour of his daughter (though the daughter had ceased to be a member of her paternal illom by virtue of her marriage in 1974 and had no persisting right in the properties in her paternal illom), cannot be taken as a gift ? 3) Whether the judgments and decrees rendered by the courts below without looking into the facade or covering, the identity, essence and reality of the transaction correct and sustainable ? 4. Learned counsel appearing for appellants and first respondent were heard. The argument of the learned counsel appearing for appellants is that as third defendant ceased to be a member of the illom of the first defendant, subsequent to her marriage with 9th defendant, she is not entitled to a share in the plaint schedule property in law and when a share was alloted to her under Ext.A2 partition deed, it is to be treated as a gift in her RSA 62/2004 6 favour and courts below omitted to appreciate this fact of the case. Learned counsel argued that there could be a partition and allotment of a share only between the co-owners and when third defendant being not a member of the family of the illom, is not entitled to any share and thereby she is not a co-owner, the allotment made to the third defendant under Ext.A2 partition deed could only be treated as a gift. Relying on the decision of a learned Single Judge of this court in Ponnu V. Taluk Land Board (1981 KLT 780) it was argued that the question whether the allotment under Ext.A2 in favour of third defendant is an allotment of a share or was a gift is not to be settled based on the nomenclature of the document but considering the fact whether she had a pre-existing right in the property divided thereunder and when third defendant had no pre-existing right the allotment to the third defendant could only be treated as a gift and if that be so, when the gift is accepted and acted upon, the share alloted to the third defendant under Ext.A2 partition deed is to be excluded from partition. Learned counsel relying on the decisions of the Apex Court in Guramma V.Mallappa (1964 SC 510) and R.Kuppayee V.Raja Gounder (2004(1) SCC 295) would argue that the moral obligation of the father to RSA 62/2004 7 provide properties to a married daughter who was not given any property at the time of her marriage and who had spent money for the family as she alone was employed at that time, was not taken away by the enactment of Kerala Namboothiri Act or the provisions of Hindu Succession Act and therefore when first defendant father as Karta of the family is competent to grant a gift of the family properties, taking into consideration the pius obligations, provision in Ext.A2 alloting portion of the property to third defendant can only be treated as a gift and therefore it is to be found that the property alloted to the third defendant under Ext.A2 partition deed is not available for partition. 5. Learned counsel appearing for first respondent submitted that neither before the trial court nor before the first appellate court appellants have a case that Ext.A2 is not a partition but a gift and hence such an argument cannot be allowed to be advanced for the first time in the second appeal. Reliance was placed on the decision of a Division Bench of this court in Shaji Varghese V. P.C.Cherian (ILR 1993(1) Kerala 287). Learned counsel argued that when appellants proceeded before the courts below that Ext.A2 is a partition deed and under Ext.A2, a share was alloted to the third defendant, at this belated RSA 62/2004 8 stage, they cannot be allowed to contend that it is a gift and based on any moral or pius obligation, the property is to be excluded from partition. Learned counsel argued that Ext.A2 does not show that property was alloted to the third defendant considering any moral or pius obligation and instead, it only shows that property was alloted considering the fact that she is also one of the sharers. When admittedly 3rd defendant was not a member of the illom of the plaintiff and is not entitled to a share, appellants are not entitled to contend that the property alloted to the share of 3rd defendant under Ext.A2 is not available for partition. Learned counsel also argued that both the courts below on appreciation of the evidence found that Ext.A2 is a partition deed and plaintiff and fourth defendant have not executed Ext.A2 partition deed and therefore, Ext.A2 partition is not valid and binding on them and the plaint schedule property is available for partition and there is no reason to interfere with the preliminary decree. Learned counsel also argued that in any case, Ext.A2 partition deed was executed in 1992, much after the coming into force of the Kerala Hindu Joint Family System (Abolition) Act and therefore when first defendant father is only one among the tenants in common, he could grant a gift only in RSA 62/2004 9 respect of the property alloted to his share and not in respect of the property belonging to the share of others and therefore in any case, based on the plea of gift by the father, appellants cannot contend that the property alloted to the third defendant under Ext.A2 is not available for partition. Learned counsel also relied on the decisions in Narayani Amma V. Narayana Namboodiri (1984 (1) KLT Short notes case No.130) and M.Karunakara Kurup V. Vaniyarambath Lakshmikutty Amma (1984 (1) KLT Shortnote case No.134) and argued that it is not the intention of the parties not seen in the document which is to be considered but the meaning of the recitals in Ext.A2 and when Ext.A2 does not show that property alloted to third defendant as a gift, it could only be considered a partition deed. Relying on the decision of this court in Abdulla V. abdull and another (2000(1) KLJ 110), it was argued that when the trial court and first appellate court construed Ext.A1 as a partition deed it is not for this court to consider the alleged intention not borne out of Ext.A2 and substitute the finding of the courts below and hold that Ext.A2 is a gift to the extent of the property alloted to the third defendant and therefore the appeal is only to be dismissed. RSA 62/2004 10 6. The facts are not disputed. Plaint schedule property was alloted to the share of the plaintiff and defendants 1 to 7 under Ext.A1 partition deed of 1962. Eighth defendant was born subsequently. Ext.A1 establishes that the allotment under Ext.A1 was to the illom of the first defendant. Plaintiff and defendants are all members of Namboothiri community, admittedly governed by Kerala Namboothiri Act prior to its repeal by Kerala Hindu Joint Family System (Abolition) Act, 1975. Third defendant daughter was married to 9th defendant in 1974. The explanation to clause (b) of Section 2 of Kerala Namboothiri Act makes it absolutely clear that a female, on her marriage shall cease to be a member of the illom in which she was born, if she marries in her community and becomes a member of the illom of her husband. Therefore, on the marriage of the third defendant with 9th defendant who is a member of the same community in 1974, she ceased to be a member of the illom of her father. Therefore, when the Kerala Namboothiri Act was repealed by the Kerala Hindu Joint Family System (Abolition) Act, third defendant being not a member of the illom is not entitled to a share in the illom properties, as rightly found by the courts below. Though the illom properties were seen divided under Ext.A2 partition deed on RSA 62/2004 11 6.11.1991, it is not disputed that neither the plaintiff nor the 4th defendant executed Ext.A2 partition deed. When they did not affix their signature in Ext.A2, the division under Ext.A2 is not valid and binding on the plaintiff or 4th defendant. Therefore, courts below rightly found that Ext.A2 is not a valid partition and based on Ext.A2, the claim for partition raised by the plaintiff as well as 4th defendant cannot be denied. The finding of the courts below on these aspects is perfectly correct. 7. Though it was not canvassed before the courts below, appellants have raised a new plea before this court evidently for the first time that the allotment of a share to the third defendant under Ext.A2 partition deed is to be treated as a gift. Admittedly, such a contention was not raised either in the pleading or at the time of defence or when the suit was argued or the first appeal was heard. The question is whether appellants could be allowed to raise such a new contention in the second appeal. There is force in the submission of the learned counsel appearing for first respondent that appellants cannot be allowed to raise such a new plea, which was not raised before the courts below for the first time in the second appeal especially when appellants proceeded before the courts below contending that third defendant is a RSA 62/2004 12 sharer and she is entitled to the share alloted to her under Ext.A2. Whatever it be the question is even if the appellants are allowed to raise the plea whether they could succeed in the plea. 8. Learned counsel appearing for appellants relied on the moral and pius obligation on the Karta of a joint family enunciated by Honourable Supreme court in Guramma's case (supra) and Kuppayee and another (supra). The argument of the learned counsel appearing for the appellants could have been accepted if there is any indication in Ext.A2 to show that the allotment made to third defendant under Ext.A2 partition deed was taking into consideration the fact that third defendant is not entitled to a share or that third defendant was not given any financial assistance at the time of her marriage, because of the financial conditions of the family at that time of her marriage or taking into consideration the need to provide residence or property to the married daughter as a pius obligation of the father or head of the illom. As rightly pointed out by the learned counsel appearing for the first respondent, Ext.A2 does not reveal any such intention on the part of first defendant or the second defendant mother or the other members of the illom. On the other hand, Ext.A2 only shows that at the time of partition and RSA 62/2004 13 division effected under Ext.A2, they were under the belief or impression that third defendant is also entitled to a share and therefore a share was to be alloted to the third defendant. True, while alloting the share, some more extent of the property was alloted to the third defendant taking into consideration the fact that she had provided financial assistance to the family early. But that was not as a gift, as canvassed by the learned counsel. On the other hand, Ext.A2 shows that the property was alloted only as the share due to the third defendant, when under law she is not entitled to any share. Therefore, for the sole reason that third defendant was not entitled to a share and therefore she was not having any pre-existing right in the property divided under Ext.A2, it cannot be held that the allotment made to the third defendant is to be treated as a gift. As rightly pointed out by the learned counsel appearing for first respondent, it is to be borne in mind that Ext.A2 partition deed was entered into in 1991, much after the coming into force of the Kerala Hindu Joint Family System (Abolition) Act and therefore even if the first defendant father had any moral or pius obligation, there cannot be a gift of the property which belonged to the illom of plaintiff and defendants 1, 2 and 4 to 8, without the consent of the other RSA 62/2004 14 members of the illom. Therefore in spite of the vehement argument of the learned counsel appearing for appellant, I cannot construe Ext.A2 as a gift, to the extent of the property alloted to the share of the third defendant. If that be so, appellants are not entitled to contend that the property alloted to the third defendant is to be excluded from partition. As third defendant is not entitled to a share and 9th defendant is only her husband who is not also entitled to share, the preliminary decree passed by the learned Munsiff as confirmed by the learned District Judge, holding that plaint schedule property is available for partition as Ext.A2 partition deed is not valid and binding on the plaintiff and 4th defendant and plaintiff and defendants 1, 2 and 4 to 8 are entitled to one share each is perfectly correct. 9. Learned counsel appearing for the appellants then submitted that first defendant father, who is entitled to 1/8 share under the preliminary decree is now no more and as he died subsequent to the commencement of Kerala Hindu Joint Family System (Abolition) Act, his right would devolve on his legal heirs as provided under Section 8 of Hindu Succession Act and being a daughter, third defendant is also entitled to a share and hence a share is to be alloted to the first appellant. Learned counsel RSA 62/2004 15 appearing for first respondent pointed out that the question of division of the share alloted to the first defendant was not considered by the courts below as he died only after disposal of the first appeal and the share due to the first defendant would be available for partition only if the first defendant died intestate and that question cannot be decided in the second appeal. There is force in the submission. But on facts, I do not find it necessary to direct the parties to institute another suit for division of the share to the first defendant. Instead parties can be permitted to seek to a supplementary preliminary decree, in respect of the share due to the first defendant if he died intestate. Third defendant or any of the sharers is entitled to approach the trial court to pass a supplementary preliminary decree in respect of the share due to the first defendant and if such a supplementary preliminary decree is passed, allotment is also to be made along with the allotment under the preliminary decree, in the same final decree. It is also made clear that the availability of the share due to the first defendant father depends on the question whether the first defendant died intestate or not. 10. Appeal is therefore dismissed with the above observations. Learned counsel appearing for appellants submitted RSA 62/2004 16 that there are buildings in the plaint schedule property and they are also to be valued at the time of partition. I do not find any reason for any such apprehension because when the plaint schedule property is found to be available for partition and is directed to be divided into 8 shares and no building was excluded, or reserved, all the available buildings are also to be valued and divided. M.SASIDHARAN NAMBIAR, JUDGE lgk