IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR TUESDAY, THE 7TH APRIL 2009 / 17TH CHAITHRA 1931 RSA.No. 4 of 2009() ------------------- AS.97/1998 of DISTRICT COURT, THALASSERY OS.126/1997 of ADDL.MUNSIFF COURT, KANNUR .................... APPELLANTS(S): APPELLANTS/1ST DEFENDANT & LEGAL HEIRS ------------------------------ 1. THOTTUMKARA SUKUMARAN (DIED) S/O. ACHUTHAN, CAMP BAZAR, WEST WARD, KANNUR MUNICIPALITY. 2. P. KOUSALYA @ SREEMATHI, W/O. LATE SUKUMARAN, AGED 83 YEARS, RESIDING AT PUTHIYADDATH HOUSE, ARAT ROAD, KANNUR-1. 3. P.T. JAYARAJAN, S/O. LATE SUKUMARAN, RESIDING AT PUTHIYADATH HOUSE, ARAT ROAD,KANNUR-1. 4. P.T. MOHANRAJ, S/O. LATE SUKUMARAN, RESIDING AT PUTHIYADATH HOUSE, ARAT ROAD,KANNUR-1 5. P.T. PRASANNA RAJAN, S/O. LATE SUKUMARAN, RESIDING AT PUTHIYADATH HOUSE, ARAT ROAD,KANNUR-1 6. P.P. SHYAMALA, D/O. LATE SUKUMARAN, RESIDING AT PUTHIYADATH HOUSE, ARAT ROAD,KANNUR-1 7. P.T. RAVINDRAN, S/O. LATE SUKUMARAN, RESIDING AT PUTHIYADATH HOUSE, ARAT ROAD,KANNUR-1 8. P.T. SHOBANA, D/O. LATE SUKUMARAN, RESIDING AT PUTHIYADATH HOUSE, ARAT ROAD,KANNUR-1 9. P.T. SATHYA RANJAN,S/O.LATE SUKUMARAN, RESIDING AT PUTHIYADATH HOUSE, ARAT ROAD,KANNUR-1 (APPELANTS 2 TO 4 6 TO 9 REP. THROUGH P.A. HOLDER 5TH APPELLANT P.T. PRASANNA RAJAN BY ADV. MR. MVS.NAMBOOTHIRY (...2/) RSA.4/09 (2) RESPONDENT(S): RESPONDENTS/PLAINTIFF & 2ND DEFENDANT: -------------------------- 1. THOTTUMKARA VIMALA, D/O.THOTTUMKARA YESODA, NO OCCUPATION, RESIDING AT GOGHALA ROAD, KANATHUR WARD, KANNUR MUNICIPALITY. 2. THOTTUMKARA SHYLAJA, D/O.THOTTUMKARA YESODA, NO OCCUPATION, RESIDING AT GOGHALA ROAD, KANATHUR WARD, KANNUR MUNICIPALITY. 3. BEENA,D/O.THOTTUMKARA VIMALA, NO OCCUPATION, RESIDING AT GOGHALA ROAD, KANATHUR WARD, KANNUR MUNICIPALITY. 4. MANOJ, S/O. VIMALA, BUSINESS, RESIDING AT GOGHALA ROAD, KANATHUR WARD, KANNUR MUNICIPALITY. 5. LEENA, NO OCCUPATION, RESIDING AT GOGHALA ROAD, KANATHUR WARD, KANNUR MUNICIPALITY. 6. SEENA, D/O. VIMALA, NO OCCUPATION, RESIDING AT GOGHALA ROAD, KANATHUR WARD, KANNUR MUNICIPALITY. 7. NEENA, D/O. VIMALA, NO OCCUPATION, RESIDING AT GOGHALA ROAD, KANATHUR WARD, KANNUR MUNICIPALITY. 8. MINI, D/O. VIMALA, NO OCCUPATION, RESIDING AT GOGHALA ROAD, KANATHUR WARD, KANNUR MUNICIPALITY. 9. KRISHNA KUMARI, S/O. VIMALA, NO OCCUPATION, RESIDING AT GOGHALA ROAD, KANATHUR WARD, KANNUR MUNICIPALITY. 10. SANTHOSH, D/O. SHYLAJA, NO OCCUPATION, RESIDING AT GOGHALA ROAD, KANATHUR WARD, KANNUR MUNICIPALITY. 11. AMBIKA, D/O. SHYLAJA, NO OCCUPATION, RESIDING AT GOGHALA ROAD, KANATHUR WARD, KANNUR MUNICIPALITY. (...3/-) RSA.4/09 (3) 12. ANITHA, D/O. SHYLAJA, NO OCCUPATION, RESIDING AT GOGHALA ROAD, KANATHUR WARD, KANNUR MUNICIPALITY. 13. T. VENUGOPAL, S/O. YESODA, P.B. NO. 002, CENTRAL SALALA 211, SULTHANATE OF OMAN. THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 07/04/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: RSA.4/09 ORDER ON I.A.5 OF 2009 IN RSA. 4 OF 2009 DISMISSED. SD/- M. SASIDHARAN NAMBIAR, JUDGE 7.4.2009 OKB - TRUE COPY - P.A. TO JUDGE M. SASIDHARAN NAMBIAR, J. ------------------------------------------------- R.S.A.No. 4 OF 2009 -------------------------------------------------- Dated this the 7th day of April, 2009 J U D G M E N T Legal heirs of the first defendant in O.S.126 of 1997 on the file of Munsiff Court, Kannur are the appellants. The suit was filed for partition of the plaint schedule property which originally belonged to Kousalya. Kousalya admittedly died on 7.7.1951 without leaving any husband or issues. Kousalya was a member of marumakkathayam tavazhi. Her mother was Thala. The other members of the tavazhy were her children Kousalya, Sukumaran, deceased first defendant and his sister Yesodha. Yesodha had three children, who are respondents 1 and 2, the plaintiffs 1 and 2 and respondent No.13, the second defendant. Children of first respondent are respondents 3 to 9 the plaintiffs 3 to 9. Respondents 8 and 9 were admittedly born subsequent to 1.12.1976, the date of coming into force of Kerala Joint Hindu Family (Abolition) Act. As on 1.12.1976, Kousalya there were 13 members in the tavazhi. Yesodha died on 3.10.1996. Her rights devolved on her children. On the death of Kousalya on 7.7.1951 RSA.4/09-A 2 her right devolved on the tavazhi consisting of Thala and her children and their female descendants. Respondents sought partition of the plaint schedule property contending that the properties are to be divided among the tavazhi members as on the date of Kerala Joint Hindu Family (Abolition) Act. Appellants admitted that the properties are available for division but contended that the properties cannot be divided among all members of the tavazhi and the division should be per capita and respondents 2 to 12 are not entitled to a share. It is contended that on the death of Kousalya her right on the property devolved on her brother, sisters and mother and it is to be divided equally among them and respondents 2 to 12 are not entitled to a share as sought for. Learned Munsiff on the evidence found that on the death of Kousalya her right reverted back to the tavazhi and as on the date of coming into force of Kerala Joint Hindu Family (Abolition) Act there were 13 members and each of them is entitled to one share. A preliminary decree was passed accordingly. It was challenged before District Court, Thalassery in A.S.97 of 1998. Learned District Judge on reappreciation of evidence rejected the case of the appellants that division should RSA.4/09-A 3 have been per capita. It was found that the properties were correctly divided as provided under the Marumakkathayam Act and the appeal was dismissed. The judgment is challenged in this second appeal. 2. Learned counsel appearing for appellant was heard. 3. The argument of the learned counsel is that as Kousalya died on 7.7.1951 her right devolved on her mother Thala and brother the first defendant and sister Yesodha, the property is to be divided on per capita basis and not by per stripes as done by the learned Munsiff and confirmed by the learned District Judge. Learned counsel relied on the Full Bench decision of this Court in Sivasankaran Vs. Lakshmi & Others (1966 KLT 327). 4. On hearing the learned counsel, I do not find any substantial question of law involved in the appeal. As Kousalya died on 7.7.1951 who was admittedly a member of the Marumakkathayam tavazhi leaving behind no husband or issues, her right devolved on her tavazhi consisting of the mother Thala and brother deceased first defendant and sister deceased Yesodha and their female descendants. As rightly found by the RSA.4/09-A 4 learned Munsiff and confirmed by the District Judge as on 1.12.1976, the date of coming into force of Kerala Joint Hindu Family (Abolition) Act there were 13 members in the tavazhi including respondents 2 to 7 and 10 to 12. Respondents 8 and 9, who were born subsequent to that date are not entitled to claim a share by birth. All other members of the tavazhi are entitled to one share as granted by the courts below. As there is no substantial question of law involved in the appeal, it is dismissed in limine. M. SASIDHARAN NAMBIAR, JUDGE okb RSA.4/09-A 5