IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.BHAVADASAN WEDNESDAY, THE 23RD MARCH 2011 / 2ND CHAITHRA 1933 SA.No. 586 of 1999(C) -------------------------- AS.395/1997, 411/97 & CROSS APPEAL IN A.S. NO. 411/97 of I ADDL.DISTRICT COURT, THRISSUR OS.192/1990 of MUNSIFF COURT,CHAVAKKAD .................... APPELLANT(S):RESPONDENT(APPELLANT IN A.S.411/97 AND 4TH RESPONDENT IN A.S.395/97)/DEFENDANT NO.3. ------------------------------------------------------------------------------- RAJAGOPALAN, S/O. PANIKKETTY KUMARAN, NATTIKA AMSOM DESOM, CHAVAKKAD TALUK. BY ADV. PARTY IN PERSON(SRI.RAJAGOPALAN) RESPONDENT(S):RESPONDENTS IN AS/RS 1 TO 3/PLFFS. RS. 4 TO 6/DEFTS 1,2 & 4 R7 TO 14 -DEFTS 5 TO 12 IN O.S. ---------------------------------------------------------------------- 1. SASHIKUMAR, S/O. PANIKKETTY SHIVASANKARAN, RESIDING IN THE ADDRESS W-11, ARUNODAY, USHA NAGAR, VILLAGE ROAD, BHANDUP, BOMBAY - 400-078. 2. SAJEET, S/O. PANIKKETTY SHIVASANKARAN, C/O. P.S.SASIKUMAR, W-II, ARUNODAY, USHA NAGAR, VILLAGE ROAD, BHANDUP, BOMBAY - 400-078. 3. RAJEEV, S/O. PANIKETTY JANARDHANAN, NATTIKA AMSOM DESOM, CHAVAKKAD TALUK C/O. P.S.SASHIKUMAR, W-II, ARUNODAY DO. DO. 4. KUMARAN (DIED), S/O.PANIKETTY GOVINDAN, NATTIKA AMOSM DESOM, CHAVAKKAD TALUK. 5. SHIVASANKARAN, S/O. PANIKETTY KUMARAN, RESIDING AT THE ADDRESS P.O.SHIVASANKARAN, W-II, ARUNODAY, VILLAGE ROAD, BHANDUP, BOMBAY - 400-078.NOW RESIDING AT PANIKETTY HOUSE, NATTIKA AMSOM DESOM, CHAVAKKAD TALUK. svs ............2/-... ...2... S.A. NO.586/1999 *6. JANARDHANAN, S/O. PANIKETTY KUMARAN (DIED)LR'S IMPLEADED, NATTIKA AMSOM DESOM, CHAVAKKAD TALUK. 7. MADHAVI (DIED), W/O. PANIKETTY KUMARAN, NATTIKA AMSOM DESOM, P.O. NATTIKA, CHAVAKKAD TALUK. 8. URMILA RAMAKRISHNAN, KARAYIL HOUSE, KAIPAMANHALAM VILLAGE DESOM, KODUNGALLUR TALUK. 9. GOURI VASUDEVAN, W/O. CHEMBIPARAMBIL PULLANI VASUDEVAN, MATHILAKAM VILLAGE. 10. SANTHAKUMARI MADHAVAN (DIED).W/O.KATTANGAL MADHAVAN, KATTUR VILLAGE DESOM, MUKUNDAPURAM TALUK. 11. RAMANI NARAYANADAS, PAZHANGAPARAMBIL HOUSE, KARIATTUKARA DESOM, ARANATTUKARA VILLAGE, THRISSUR. 12. K.V.MADHAVAN, S/O.VELAYI, KATTUNGAL HOUSE, KATTUR VILLAGE DESOM P.O. KATTUR, MUKUNDAPURAM TALUK. 13. BIJOY, S/O. K.V.MADHAVAN KATTUNGAL HOUSE, KATTUR VILLAGE DESOM P.O. KATTUR, MUKUNDAPURAM TALUK. 14. BINOY,S/O.K.V.MADHAVAN, KATTUNGAL HOUSE, KATTUR VILLAGE DESOM, P.O.KATTUR, MUKUNDAPURAM TALUK. * ADDL. R15 IMPLEADED 15. THARA JANARDHANAN, W/O. LATE JANARDHANAN, PANIKETTY HOUSE, NATTIKA DESOM, CHAVAKKAD TALUK, THRISSUR (DIED). * ADDL R15 IS IMPLEADED AS THE LR'S OF R6AS PEER ORDER DATED 02/02/2011 IN I.A. NO.721/2008. R1 & 2 BY ADVS. SRI.G.SREEKUMAR (CHELUR) SRI.K.RAVI (PARIYARATH) SRI.N.P.SAMUEL R3 & 14 BY ADVS. SRI.RAJIT SRI.DILIP J. AKKARA SRI.RANJIT BABU R8,9 & 11 BY ADV.SRI.B.V.BALAKRISHNAN THIS SECOND APPEAL HAVING BEEN FINALLY HEARD ON 11/03/2011, THE COURT ON 23/03/2011 DELIVERED THE FOLLOWING: svs P. BHAVADASAN, J. - - - - - - - - - - - - - - - - - - - - - - - - - - - S.A. No. 586 of 1999 - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 23rd day of March, 2011. JUDGMENT The fifth defendant in O.S. 192 of 1990 before the Munsiff's Court, Chavakkad is the appellant. The parties and facts are hereinafter referred to as they are available before the trial court. 2. Plaintiffs are three in number, among whom plaintiffs 1 and 2 are the children of the second defendant and the third plaintiff is the son of the fourth respondent. Defendants 2 to 4 are siblings and the first defendant was their father. First defendant died during the pendency of the suit and his legal heirs were brought on the party array. 3. According to the plaintiffs, the properties obtained by the first defendant as per the final decree in O.S.322 of 1962 was ancestral in his hands and by their birth in the family, they got a share as the parties are S.A.586/1999. 2 governed by Hindu Mithakshara Law. At the time of the coming into force of the Kerala Joint Hindu Family (System) Abolition Act, there were seven members in the family and each of them was entitled to 1/7 shares. There was a suit as O.S.390 of 1984 instituted by the third defendant, wherein defendants 1, 2 and 4 alone were the defendants. The plaintiffs were not parties to the said suit. Therefore, the decree in that suit is not binding on them. Claiming 3/7 shares, they laid the suit. 4. Defendants 2 and 4 filed separate written statements pointing out that the first defendant executed a settlement deed in their favour and they are enjoying the property pursuant thereto. They put up a building therein and are residing therein. Finally it was contended that in the event of the court ordering partition, they may be given those portions in which the buildings are situated. 5. The main contesting defendant is the third defendant. In his written statement he pointed out that the plaintiffs are not entitled to 3/7 shares. If at all they have S.A.586/1999. 3 any share they have to look up to the share allotted to defendants 2 and 4 in the decree in O.S.390 of 1984. According to him, the plaintiffs were fully aware of the proceedings in O.S.390 of 1984 and they were represented by their respective father. The decree in that suit is binding on the plaintiffs also. They therefore can have only lay claim regarding 1/4th share obtained by defendants 2 and 4 pursuant to the decree in O.S.390 of 1984. 6. On the basis of the above pleadings, issues were raised by the trial court. The evidence consists of the testimony of P.W.1 and document marked as Ext.A1 from the side of the plaintiffs. The defendants had D.W.1 examined and Exts.B1 to B5 marked. The trial court accepted the plea raised by the third defendant regarding the share, but declined to accept the plea that the decree in O.S.390 of 1984 is binding on the plaintiffs. Accordingly, a preliminary decree was passed in the following terms: “In the result preliminary decree is passed for partition of the plaint schedule property into 96 S.A.586/1999. 4 equal shares and for allotment of 8 shares each to plaintiffs 1 and 2 and 12 shares to plaintiff No.3, 11 shares to D2, 27 shares to D3, 15 shares to Dr, 3 shares each to D5, D6, D7 and D9 and 3 shares to D10 to D12 together with mesne profits from the date of suit. The cost of the suit shall come out of the estate.” 7. Defendants 2 and 4 preferred A.S. 395 of 1997 and the third defendant preferred A.S.411 of 1997. The plaintiffs filed cross-appeals. The lower appellate court considered the appeals together and disposed of the same by a common judgment. The appellate court was of the view that the finding of the trial court that the plaintiffs are entitled to only 1/4th share obtained by their parents in pursuance to the decree in O.S.390 of 1984 is wrong and that the plaintiffs are entitled to 1/7 shares each as claimed in the plaint. The lower appellate court was also of the view that at the time of passing of the final decree the trial court may as far as possible allot the houses constructed by S.A.586/1999. 5 defendants 2 and 4 to their shares. With the said modification, their appeal was disposed of and A.S.411 of 1997 was dismissed. 8. This Second Appeal is directed against the judgment and decree of the lower appellate court in A.S. 395 of 1997 and A.S.411 of 1997. 9. Notice is seen issued on the following questions of law: “(1) Whether on the facts and in the circumstances of the case, the finding of the lower appellate court that the decree in O.S.390 of 1984 would not operate as res judicata/estoppel is correct? (2) Does not the decree of the lower appellate court amount to granting partition of the co-parcenary property on per capita basis which is not permissible under Hindi Mithakshara Law? (3) Does not the method of partition adopted by the lower appellate court given an unmerited advantage to the branch of defendants 2 and 4? S.A.586/1999. 6 (4) Whether the courts below have gone wrong in ordering the costs to come out of the estate? (5) Whether the courts below have gone wrong in ordering the costs to come out the estate? (6) Have not the courts below gone wrong in dividing the share of the deceased first defendant equally among his eight heirs?” 10. The appellant appeared in person. He has submitted a very elaborate argument note. According to him, the lower appellate court ought to have held that the suit is barred by res judicata and estoppel. He contended that the finding of the lower appellate court that the plaintiffs are entitled to per capita shares in the property and they are entitled to 1/7 shares is erroneous and cannot be supported in law. He also stated that the suit was hopelessly barred by limitation. His further complaint is that proper issues were not raised either by the trial court or by the lower appellate court and that has caused considerable S.A.586/1999. 7 prejudice to him. There are several other averments, which are not very relevant for the present purpose. 11. Before going into the facts of the case, it will be useful to understand the geneology of the parties. One Sanku had three sons, namely, Govindan, Kunjimama and Ayyappunni. Kunjimama had two sons by name Sankaran and Raman. Govindan had a son by name Kumaran. Ayyapunni died as a bachelor in 1959. Kumaran, the first defendant, has three children, namely, Sivasankaran, Rajagopalan and Janardhanan. Sasikumar and Sajeet, who are the first and second plaintiff, and Janardhanan's son Rajeev is the third plaintiff. Rajagopalan, another son of Kumaran is the third defendant. 12. It is not in dispute that the sons of Kumaran instituted O.S.322 of 1962, which was a suit for partition. The claim put forward in the said suit was that consequent on the death of Ayyappan, the property, which devolved on the two branches and they are entitled to half share each. Even though the trial court as well as the lower appellate S.A.586/1999. 8 court accepted the case put forward by the defendants that the plaintiff in the said suit was entitled to only 1/3rd share, in Second Appeal this court took the view that the branch consisting of Kumaran and the other branch consisting of Gopalan had equal shares and each group was allotted half share over the property. Admittedly the plaintiffs were born before 1976. It cannot be disputed that the Gopalan and other persons in that branch had right over the half share since it was the ancestral property, By virtue of the same, the plaintiffs too have a share. 13. The trial court was of the view that with the institution of O.S.322 of 1962, there is a total dissolution of joint family and there was no co-parcenary in existence thereafter. This view, as rightly noticed by the lower appellate court, cannot be supported. As already stated, by the division effected in O.S.322 of 1962, the tarawad branched off into two. It is agreed to by all parties that they are governed by Hindu Mithakshara Law, that means the property received by each of the branches as ancestral S.A.586/1999. 9 property, the male born in that branch will get a right in the property of that branch. Therefore it could not be said that as found by the trial court the plaintiffs are entitled to claim shares out of 1/4th share given to their fathers. 14. As regards the contention based on res judicata and estoppel are concerned, they are without any merits whatsoever. It is the admitted fact that in O.S.390 of 1994 the plaintiffs were not parties. The claim of the appellant is that they were represented by their fathers and also that they were fully aware of the proceedings in the suit and if they had any interest in the property, they ought to have got themselves impleaded. Having not done so, and having invited a decision, it is contended that they are bound by the same. 15. As rightly noticed by both the courts below, the contention is without any merits whatsoever. The lower appellate court has observed that there is nothing to indicate that the plaintiffs were represented by their respective fathers or whether there was any allocation of S.A.586/1999. 10 shares in O.S.390 of 1984 taking into consideration the shares due to them. After the coming into force of Act 30 of 1976 each member of the tarwad has a separate share and if that be so, at the time of commencement of the Act there were seven members in the family including the plaintiffs and each of them was entitled to 1/7 shares. Therefore the plaintiffs had independent right over the suit property and it could not be said that their rights were represented or considered in O.S.390 of 1984. 16. As regards the plea of limitation, it is only to be rejected. The contention is that it is long after the final decree in O.S. 322 of 1962 the present suit had been laid. 17. One fails to understand how the present suit can be influenced by the decree in O.S.322 of 1962. There is also a contention that the present suit is the result of a collusion between defendants 2 and 4 in order to defeat the claim of the third defendant. Apart from the said plea there is no evidence to show that there is any collusion as such between the plaintiffs and defendants 2 and 4. It is not as if S.A.586/1999. 11 that plaintiffs 1 to 3 have no independent rights. Even at the time of institution of the suit, i.e. O.S.390 of 1984 they had subsisting interest and right over the property and they ought to have been made parties to the suit. 18. The other ground regarding the non-raising of issues etc does not assume much importance in the facts and circumstances of this case. The result is that this appeal is devoid of merits and it is only to be dismissed. I do so confirming the judgment and decree of the lower appellate court. P. BHAVADASAN, JUDGE sb.