IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN FRIDAY, THE 21ST MAY 2010 / 31ST VAISAKHA 1932 AS.No. 7 of 2000(B) ---------------------------- OS.11/1997 of SUB COURT, NEDUMANGAD .................... APPELLANTS-(DEFENDANTS 1 AND 2: --------------------------------------------------------- 1. N. VANAJAKSHI, D/O.KALI, SHRF 70, MADHU MANDIRAM, PERAYAM P.O., CHELLANCHI, PACHA, PALODE. 2. MADHUSOODHANAN, S/O.RAGHAVAN, AGED 46, -DO- -DO-. BY ADV. SRI.G.S.REGHUNATH RESPONDENTS-(PLAINTIFFS AND DEFENDANTS 3 TO 9): ------------------------------------------------------------------------------------ 1. SNEHALATHA, PARAKKUDI VEEDU, ULLOOR, MEDICAL COLLEGE P.O., THIRUVANANTHAPURAM. 2. S. CHITHRA KUMARI, D/O.SNEHALATHA, -DO- -DO-. 3. R. BINU, S/O.RAVEENDRAN, -DO- -DO-. 4. R.S. BAIJU, S/O.RAVEENDRAN, -DO- -DO-. 5. SIBHASHINI, D/O.VANAJAKSHI, -DO- -DO-. 6. SASIDHARAN, S/O.RAGHAVAN, -DO- -DO-. 7. SUDHA DEVI, D/O.VANAJAKSHI, -DO- -DO-. 8. SUMANGALA, D/O.VANAJAKSHI, D-O- -DO-. 9. SUSEELA, D/O.VANAJAKSHI, -DO- -DO-. AS.No. 7 of 2000(B) 10. SUJITHA, D/O.VANAJAKSHI, -DO- -DO-. 11. VALSALA, S/O.GOPALAN, JALAJA MANDIRAM, CHELLANCHI, PERAYAM P.O., ANAD MURI, PALODE VILLAGE. BY ADV. SRI.R.S.KALKURA. THIS APPEAL SUITS HAVING BEEN FINALLY HEARD ON 21/05/2010,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: AS.No. 7 of 2000(B) ORDER ON C.M.P. NOS.1114/2000 & 4066/2001 IN A.S. NO.7/2000 DISMISSED 21/05/2010. SD/- M.N.KRISHNAN, JUDGE //TRUE COPY// P.A. TO JUDGE rs. M.N. KRISHNAN, J. ........................................... A.S.NO.7 OF 2000 ............................................. Dated this the 21st day of May, 2010. J U D G M E N T This is an appeal preferred against the judgment and decree in O.S.No.11/1997of the Subordinate Judge, Nedumangad. The suit is one for partition. The first plaintiff and defendants 2 to 8 are the children of the first defendant. There are two schedules of property – A schedule and B schedule. The parties are governed by the Travancore Ezhava Act prior to the commencement of the abolition of the Joint Family Act, 1976 as well as Hindu Succession Act, 1956. There is no quarrel that they followed the Marumakkathayam law. So far as A schedule property is concerned, it was purchased as per Ext.A1 by the mother of the first defendant namely Kali, the common ancestress. When the property stands in the name of the common ancestress under the Marumakkathayam law and as she died prior to the commencement of the Hindu Succession Act, 1956, the law presumes in favour of Tavazhi nature of the property. When it is of a Tavazhi nature, all members of the Tavazy are entitled to equal share. Since the property is conferred : 2 : A.S.NO.7 OF 2000 under Ext.A1 by Kali and as she died prior to the commencement of the Hindu Succession Act, devolution of the property will have the Tavazhi nature and as there are 12 members on the date of the suit, the plaintiffs were entitled to one out of 12 shares each in the property is acceptable and therefore, such a finding entered into by the court below need not be interfered with. 2. The crucial question is regarding the B schedule. B schedule property originally belonged to the father of the 1st defendant namely Nanan. By virtue of a document, Ext.A2, Nanan has gifted the property in favour of his wife Kali, who is the mother of the 1st defendant. So, it is contended that since Kali was having the right over the property, on her death since it has taken place prior to the commencement into force of the Hindu Succession Act, B schedule will also have to be divided as a Tavazhi property. But the contesting defendant namely the first defendant would contend before the court that the said Kali does not have any existing right over the property on the date on her death. It is true by Ext.A2 that there was a gift deed in favour of Kali. It : 3 : A.S.NO.7 OF 2000 appears that there was a reunion between the husband and wife and the wife re-conveyed the property in the form of gift in the name of Nanan in the Malayalam Era 1109. So whatever right that she had acquired under Ext.A1 had been transferred back to the husband by virtue of the document in 1109 ME. Unfortunately, the said document was not produced before the court below, but it is very clear from the plaint by virtue of the averment itself that the plaintiffs were aware of such document. That is why in para-10 of the plaint they have mentioned about execution of the document dated 4.2.1109 ME. It is submitted that the document has not been acted upon. A perusal of the document would reveal that there had been divestiture of title in favour of the husband and no document is produced by the plaintiffs to establish that in spite of execution of the document in the year 1109 ME the property was enjoyed by the said Kali. 3. So when a document is produced before the court and that document is of the year 1109 ME, it has to be stated that there had been a gift deed in favour of the husband and thereby he became the absolute owner of : 4 : A.S.NO.7 OF 2000 the property. It is true that unfortunately that document was not marked before the court below. But the learned counsel for the appellants had made available a registered copy of the document for my perusal. So, I am not inclined to remand the case on technical grounds to re-agitate the question. In the light of the document in the year 1109 ME, the property had been re-conveyed to Nanan. When Nanan dies, by virtue of Section 15 of the Travancore Ezhava Act the legal representatives will be his widow or mother or both and also the children. At the time of death of Nanan, the 1st defendant alone was there and therefore, the property has devolved upon the 1st defendant by virtue of Section 15 of the Travancore Ezhava Act. Since it is her absolute property and as she is alive even today, the question of division of B schedule property does not arise at this stage. Therefore, I find that B schedule property is not available for partition. 4. In the result, the appeal is disposed of confirming the finding of the lower court by allowing partition of A schedule property in the proportion mentioned therein and : 5 : A.S.NO.7 OF 2000 I dismiss the suit with respect to the claim for partition of the B schedule property. Parties are directed to bear their respective costs. Disposed of accordingly. M.N. KRISHNAN, JUDGE. cl : 6 : A.S.NO.7 OF 2000 M.N. KRISHNAN, J. ..................................... A.S.NO.7 OF 2000 ................................. 21st day of May, 2010. J U D G M E N T