IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOTTATHIL B.RADHAKRISHNAN & THE HONOURABLE MR. JUSTICE S.S.SATHEESACHANDRAN TUESDAY, THE 15TH JUNE 2010 / 25TH JYAISTHA 1932 AS.No. 642 of 1993(C) --------------------- OS.341/1991 of ADL.SUB COURT, THALASSERY .................... APPELLANT(S)/DEFENDANTS 5, 49, 52, 53: -------------- 1.KAYYU,D/O.KUNJALIMA, AGED 50, MUKKATTUMBRATH, POOVALAPPU, THIRUVANGAD AMSOM DESOM, THALASSERY. 2.ASSANKUTTY, S/O.KAYYU, AGED 30, RESIDING AT DO. DO. 3.KUNHALU, D/O.KAYYU, AGED 20, RESIDING AT DO. DO. 4.ABOOBAKKAR SIDDIQUE, AGED 19, S/O.KAYYU, RESIDING AT DO. DO. BY ADV. SRI.CIBI THOMAS SRI.A.K.ALEX SRI.K.ABOOTY RESPONDENT(S)/PLAINTIFFS & DEFENDANTS (3, 4, 7, 8, 10 TO 25, 29, 30 TO 42, 50, 51, 54): --------------- 1.K.N.KALLIYANI, W/O.KANNAN CHETTIAR, AGED 75, ERAMKULANGARA, THIRUVANGAD AMSOM DESOM, THALASSERY. (DIED) 2.CHERIYA MAYAN, S/O.KAYYUMMA, SUPERVISORY, OFFICE OF THE S.D.O., THALASSERY. (DIED) 3.MUKKATTUMBRATH MAKKI, ASARF WOOD INDUSTRIES, PALLIPPURAM POST, MUDIKAL, PERUMBAVOOR. (DIED) 4.KAYEEPPARAKKAT AYISSU, D/O.ALIPI, GOODSHED ROAD, THORUVANGAD AMSOM. 5.-DO- AMI, RESIDING -DO- A.S.NO.642/93 6.KUNHAMMED, KUNNATH, NEAR CIVIL COURT, THALASSERY. 7.KUNNATH ABOOTTY, RESIDING DO. 8.THAYYILEKKANDY PATHOOTYUMMA, KAYYATH ROAD, THIRUVANGAD AMSOM. (DIED) 9.PAYYARAMBATH SARAMMA, W/O.MAYAN, RESIDING AT DO. DO. 10.-DO- HARIS, RESIDING -DO- 11.-DO- AHAMMED, RESIDING -DO-. 12.-DO- IBRAHIM, TEACHERM MUBARAK HIGH SCHOOL, SAIDAR PALLI, THIRUVANGAD AMSOM DESOM, THALASSERY. 13.VANIYAMBRATH AYSU,W/O.ABOOTY, VADIKKAKAM DESOM, THALASSERY AMSOM, THALASSERY. 14.-DO- ALI, RESIDING -DO- S/O.AYISSU. 15.THAYOTHOTTATHIL BEEBI, JUBILEE ROAD, THIRUVANGAD AMSOM DESOM, THALASSERY. 16.FATHIMATH SUHARA, (MINOR 13 YEARS), D/O.BEEBI, RESIDING DO. REPRESENTED BY GUARDIAN 1ST RESPONDENT THAYOTHOTTATHIL BEEBI. 17.MISRIYA,D/O.SUHARA, MINOR AGED 6 YEARS, RESIDING DO. REPRESENTED BY GUARDIAN 1ST RESPONDENT THAYOTHOTTATHIL BEEBI. 18.MUHAMMED MASHOOD,S/O.-DO-, MINOR AGED 4, RESIDING AT DO. DO. 19.THAYYILEKANDY PATHOOTY, W/O.POKKU THALASSERY AMSOM, VADIKKAKAM DESOM. (DIED) 20.ALI, S/O.PATHOOTY, RESIDING DO. 21.BASHEER, RESIDING AT -DO-. 22.PATHU, PAZHAYAMBRATH, KAYYATH ROAD, THIRUVANGAD AMSOM. 23.AYISHI, RESIDING AT DO. DO. 24.UMAYYA, RESIDING AT DO. DO. 25.KUNHAMMED, CITY PRESS, MAIN ROAD, THALASSERY. (DIED) A.S.NO.642/93 26.C.K.MUHAMMED,S/O.AMU, MAIMOONATH HOUSE, THIRUVANGAD AMSOM DESOM. 27.POKKU ALIAS KUNHIKUTTY ALI, POOVALAPPU THERU, THIRUVANGAD AMSOM. 28.FATHIMA, RESIDING AT DO. DO. 29.C.K.UMMACHU, RESIDING AT DO. DO. 30.C.K.MOIDU, RESIDING DO. (DIED) 31.C.K.SABITHA, RESIDING DO. 32.C.K.AMIR, RESIDING DO. 33. C.K.HASHIM, RESIDING AT DO. 34.C.K.KHADEEJA, RESIDING AT DO. 35.C.K.AYISHA, RESIDING AT DO. 36.USMAN, RESIDING AT DO. 37.ABOOTTY, RESIDING AT DO. 38.AHAMMED NIZAR, RESIDING AT DO. ADDL.RESPONDENTS 39 TO 44: 39.V.B.NAFEESA UMMA, W/O.CHERIYA MAYAM, RESIDING AT V.B.HOUSE, CHETTAMKUNNU ROAD, THALASSERY. 40.AYISHA,RESIDING AT DO. DO. 41.HARIS, RESIDING AT DO. DO. 42.MEHARUNNEESA, RESIDING AT DO. DO. 43.RIYAS, RESIDING AT DO. DO. 44.KHAIRUNNEESA, RESIDING AT DO. DO. ADDL.RESPONDENTS 39 TO 44 ARE IMPLEADED AS THE LEGAL REPRESENTATIVES OF THE DECEASED 2ND RESPONDENT IN THE APPEAL VIDE ORDER DATED 5.1.2005 IN I.A.NO.2473/2004. ADDL.RESPONDENTS 45 & 46: 45.P.V.AMINA, W/O.MOIDOO, KEYIS HOUSE, KAYYATH ROAD, THALASSERY. A.S.642/93 46.MUNASHERIU, RESIDING AT DO. DO. ADDL.RESPONDENTS 45 AND 46 ARE IMPLEADED AS THE LEGAL REPRESENTATIVES OF THE DECEASED 30TH RESPONDENT VIDE ORDER DATED 21.10.2004 IN I.A.NO.1361/2004. ADDL.RESPONDENTS 47 TO 50: 47.A.R.FATHIMA MUTHUBI, ARAKKAL COTTAGE, KAYATH ROAD, THALASSERY. 48.KADEEJA SAFIA, RESIDING AT DO. DO. 49.C.P.PACHUMMA, BABY MAHAL, TOWN BUS STAND, THALASSERY. 50.C.P.AYICHI, RESIDING AT DO. DO. ADDL.RESPONDENTS 51 TO 54: 51.K.HARIDASAN, RESIDING AT POOMBOLA QUARTERS, DR.RAVEENDRAN TRS, KANNAVAYAL, MUZHAPPILANGAD, KANNUR DISTRICT. 52.K.RAJALAKSHMI, DO. DO. 53.K.RADHAKRISHNAN, DO. DO. 54.K.BALAN, DO. DO. ADDL.RESPONDENTS 51 TO 54 ARE IMPLEADED AS THE LRS OF DECEASED 1ST RESPONDENT AS PER ORDER DATED 1.2.2007 IN I.A.NO.3472 OF 2006. ADDL.RESPONDENTS 55 TO 59: 55.N.V.MOOSA,S/O.MAKKIMA, RESIDING AT BUSTHAN HOUSE, A.M.ROAD, PERUMBAVOOR, ERNAKULAM DISTRICT. 56.N.V.NAZEER AHAMMED, DO. DO. 57. N.V.SALEEM, DO. DO. 58.N.V.HARIS, DO. DO. 59.N.V.MUHAMMED ASHRAF, DO. DO. ADDL.RESPONDENTS 55 TO 59 ARE IMPLEADED AS THE LEGAL HEIRS OF DECEASED R3 AS PER ORDER DATED 3.11.2009 IN I.A.NO.1442/2009. A.S.642/93 ADDL.RESPONDENTS 47 TO 50 ARE IMPLEADED AS THE LEGAL REPRESENTATIVES OF THE DECEASED 25TH RESPONDENT VIDE ORDER DATED 21.10.2004 ON I.A.NO.1359/2004. RESPONDENTS 22, 23, 24, 47, 48, 49 AND 50 WHO ARE ALREADY IN THE PARTY ARRAY ARE RECORDED AS THE LEGAL REPRESENTATIVES OF THE DECEASED 8TH RESPONDENT VIDE ORDER DATED 11.6.2004 ON I.A.NO.1321/2004. RESPONDENTS 14, 15, 16, 17 AND 18 WHO ARE ALREADY IN THE PARTY ARRAY, ARE RECORDED AS THE LEGAL REPRESENTATIVES OF THE DECEASED 13TH RESPONDENT VIDE ORDER DATED 11.6.2004 ON I.A.NO.1322/2004 RESPONDENTS 20 AND 21 WHO ARE ALREADY IN THE PARTY ARRAY ARE RECORDED AS THE LEGAL REPRESENTATIVES OF THE DECEASED 19TH RESPONDENT VIDE ORDER DATED 11.6.2004 ON I.A.NO.1323/2004. RESPONDENTS 23 AND 24 WHO ARE ALREADY IN THE PARTY ARRAY ARE RECORDED AS THE LEGAL REPRESENTATIVES OF THE DECEASED 22ND RESPONDENT VIDE ORDER DATED 11.6.2004 ON I.A.NO.1324 OF 2004. ADV. SRI.V.R.VENKATAKRISHNAN, SENIOR ADVOCATE SRI.S.ANANTHAKRISHNAN SRI.GRASHIOUS KURIAKOSE FOR R9 TO 12 SRI.P.V.MADHAVAN NAMBIAR FOR R13 TO 18 SRI.K.V.SOHAN FOR R2,4,5, 22 TO 25 SRI.K.M.SATHYANATHA MENON FOR R37 & 38 SRI.N.C.JOSEPH SRI.C.MOHAN FOR R1 SRI.E.V.NAYANAR FOR R36 SRI.SURESH SUKUMAR FOR R36 SRI.K.V.SOHAN FOR R39,42 & 44 SRI.SHEJI P.ABRAHAM FOR R3 SRI.S.ANANTHAKRISHNAN FOR ADDL.R.51 TO 54 SRI.N.K.SUBRAMANIAN FOR ADDL.R.51 TO 54 SRI.T.G.RAJENDRAN FOR ADDL.R55 TO 54 THIS APPEAL SUIT HAVING BEEN FINALLY HEARD ON 15/06/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ORDER ON C.M.P.NO.2070/1994 IN A.S.NO.642/1993 DISMISSED. 15.6.2010 SD/- THOTTATHIL B. RADHKRISHNAN, JUDGE SD/- S.S.SATHEESACHANDRAN, JUDGE /TRUE COPY/ P.A. TO JUDGE THOTTATHIL B. RADHAKRISHNAN & S.S.SATHEESACHANDRAN, JJ. ------------------------------- A.S.NO.642 OF 1993 () ----------------------------------- Dated this the 15th day of June, 2010 J U D G M E N T THOTTATHIL B. RADHAKRISHNAN, J. Defendant No.5 and her children, supplementary defendants 49, 52 and 53 in a suit for partition, O.S.No.341 of 1991 of the Sub Court, Thalassery are the appellants. 2. The suit property belonged to Mukkattumbrathu Tharawad, a muslim joint family admittedly governed by the provisions of the Mappila Marumakkathayam Act, Act XVII of 1939. The properties of that tharawad was the subject matter of O.S.No.21 of 1946 of the Sub Court, Thalassery. A preliminary decree for partition was passed in that suit. Later, a final decree was passed. Item Nos.34 and 35 among the plaint schedule properties in that suit were left out of A.S.No.642/93 2 that partition. The plaintiff in the suit, from which this appeal arises, namely, Keyan Kallyani, admittedly not a member of the aforesaid tharwad, was the 2nd plaintiff in that suit, she being an assignee of the 1st plaintiff in that suit namely, Mukkattumbrath Assan. 3. On the basis of the fact that item Nos.34 and 35 were left out of partition in Exts.A1 - A2 - A4 decree and proceedings in O.S.No.21 of 1946, the plaintiff filed the suit from which this appeal arises claiming share relatable to the aforesaid Assan in those properties. 4. Before the institution of the suit in hand, some other members of the family had filed O.S.No.209 of 1986 before the Sub Court, Thalassery. Ext.A3 is the plaint in that case. The plaintiff herein was the 7th defendant in that suit. It is her case that the said suit was settled out of court or otherwise closed before she was served with summons thereof. According to her, she moved that court for review of those proceedings and for permitting her to agitate the issue by re-opening the A.S.No.642/93 3 issues. However, barring the plaint, which is Ext.A3, no other material relating to that suit is forthcoming in the case in hand. The learned counsel for the plaintiff would, however, point out that the parties were in agreement before the court below that there was no decision on merits in O.S.No.209 of 1986. Though, review petition filed by the plaintiff herein in O.S.No.209 of 1986 was admittedly not entertained, the plaintiff herein did not further pursue any remedy in relation to the finality achieved by O.S.No.209 of 1986. 5. Here, the plaintiff claims partition of the two items, namely, item Nos.34 and 35 in O.S.No.21 of 1946, which were then left out for partition on the ground that it contained the tharwad house and the land appurtenant thereto and, therefore, should be kept out of partition. In the final proceedings in O.S.No.21 of 1946, the claim of the appellant herein to any right in relation to that property including the right to seek partition and separate possession were left open. A.S.No.642/93 4 6. In the suit in hand, defendant No.4 filed written statement raising different contentions including that the property cannot be partitioned at the instance of the plaintiff. 7. The 5th defendant, who has filed this appeal, contested the claim for partition and pleaded that the plaintiff is not entitled to any share as claimed in the plaint and that the partition of the tharwad house in the plaint schedule property cannot be effected without the consent of 2/3 rd of the existing members of the tharwad. She also set up a case that major portions of the tharwad house had collapsed after the disposal of O.S.No.21 of 1946 and, thereafter, she and her children spent funds and put up constructions, apart from utilising the remnants of the tharwad house. Accordingly, she claimed special right in relation to the property in the event of it being found that the suit property is liable to be partitioned. A.S.No.642/93 5 8. The court below proceeded to take the view that the property in question should be treated as the personal acquisition of the survivor in as much as he died issue-less, and therefore, ought to be treated as one available for partition as if it is property belonging to an individual member and not belonging to the tharwad. Section 18 of the Mappila Marumakkathayam Act was relied on by the court below to hold that “succession to such property obtained by the individual member on partition shall be governed by the Islamic Law of Inheritance.” The court below did not countenance the 5th defendant's claim for special right, and, accordingly, passed a preliminary decree. 9. The 5th defendant and her children appeal against the aforesaid preliminary decree. 10. Having heard the learned counsel for the parties, it is seen that the finding in Ext.A1 proceedings that item Nos.34 and 35 therein are to be left in common as part of the tharwad house, cannot be reopened or A.S.No.642/93 6 disturbed without any of the parties building up a specific case that either the tharwad disintegrated or that the tharwad house no more exists. We find that the plaint lacks such pleadings. The plaintiff does not have a case that the tharwad has disintegrated or that the tharwad house no more exists. The existence of the tharwad cannot be disputed having regard to the fact that its existence and continuance stands recognised by Ext.A1 decree in the 1946 suit. Equally, the existence of a tharwad house and its occupation by some of the members of the tharwad cannot be denied, as at least in 1946. Therefore, when the plaintiff proceeds to establish any right on the basis that the tharwad house does not exist, there has to be specific plea and existence in proof thereof. Not only that, what is reserved in Ext.A2 is only the right subject to any entitlement of such reservation does not by itself give a cause of action for a fresh suit and a right to partition is independently demonstrated in the subsequent suit. Faced with this situation, to A.S.No.642/93 7 support the judgment of the court below, the learned counsel for the plaintiff argued that in Ext.A3 plaint in the 1986 suit, the parties had the specific case that the tharwad building no more exists. Obviously, the appealing 5th defendant and her children cannot be tied down to those pleadings, because none of them was a plaintiff in the 1986 suit. In this context, the learned counsel for the plaintiff referred to the judgment of the Apex Court in Bhagwati Prasad v. Shri Chandramaul (1966 (2) SCR 286 = AIR 1966 SC 735), wherein, their lordships laid down that though it is hardly necessary to emphasise the importance of the pleadings, in particular cases and instances, the defence emerging out of the materials on record, which was within the notice and knowledge of the parties, could be acted upon by the courts. In the case in hand, utilising the said precedent, the learned counsel for the plaintiff tried to canvass for the position that the question whether the tharwad house exists or not is not a disputed issue of A.S.No.642/93 8 fact, having regard to the pleadings in Ext.A3 and the testimony of the DW1, the husband of the 5th defendant. We are not impressed. Even a reading of the testimony of DW1 would show that his case was that a large portion of the tharwad house had fallen down and the children of the 5th defendant had put up separate constructions. utilising also remnants of the tharwad house. The learned counsel for the plaintiff is right in making reference to the deposition of DW1 to say that the clear evidence is against any findings as to the extinction of the tharwad house. We will not use that evidence against the plaintiff since we are of the view that the disintegration of the structure called the tharwad house is by itself insufficient for a person outside the tharwad and who is not a member of the tharwad to claim that the tharwad house or the tharwad had disintegrated opening up the availability of the partition of the tharwad house, except by recourse to Section 16 of the Mappilla Marumakkathayam Act. The said provision enjoins that A.S.No.642/93 9 in a partition of tharwad properties, unless two thirds of the members of the tharwad desire to the contrary, the tharwad house including the site or sites of any building appurtenant thereto, and such other land, as is necessary for the convenient enjoyment of the tharwad house shall be kept undivided for the common use of all the members of the tharwad. In contradiction to this is the request of the plaintiff, who is admittedly not a member of that tharwad, for partition by metes and bounds of the land on which the tharwad house stood. Adverting to Section 13 of the Mappilla Marumakkathayam Act, it can be seen that a claim for partition can be made only by an individual member of a tharwad and his claim is to take his/her share of the properties of the tharwad over which the tharwad has power of disposal. This power under Section 13 of the Mappila Marumakkathayam Act and the right of a member of a tharwad, has to be understood in a very limited and rigid sense and cannot be held as available for exercise by an assignee of a member, that A.S.No.642/93 10 too, by a person who does not belong to the tharwad. Otherwise, it will result in situations beyond what has been conceived by the Mappila Marumakkathayam Act, because it will tend to impinge of the existence of the tharwad as a unit, which going by the definition in Section 2 (f), means a joint family which includes all its members with community of property governed by the Marumakkathayam Law. We are therefore, of the clear view that the plaintiff, who is not a member of the tharwad was not entitled to claim partition of the tharwad house though she had an assignment in her favour from a member of the tharwad, Mukkattumbrath Assan. No member of the tharwad has claimed partition or has appealed against the impugned decree. The intention of the majority of the members of the tharwad is therefore explicit, namely that the tharwad house involved in item Nos.34 and 35 of Ext.A1 suit of 1946 ought not to be disturbed and should be permitted to be continued as it has been. A.S.No.642/93 11 11. For the aforesaid reasons, we are of the view that the court below erred in law and on facts in passing the impugned preliminary decree and the same is liable to be set aside. In the result, the appeal succeeds. The same is accordingly allowed and the impugned decree is set aside and the suit is dismissed. However, the parties are directed to bear their respective costs. THOTTATHIL B. RADHAKRISHNAN JUDGE S.S.SATHEESACHANDRAN JUDGE prp THOTTATHIL B. RADHAKRISHNAN & S.S.SATHEESACHANDRAN, JJ. ------------------------------- A.S.NO.642 OF 1993 () ----------------------------------- J U D G M E N T 15th day of June, 2010