IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.BHAVADASAN FRIDAY, THE 14TH OCTOBER 2011 / 22ND ASWINA 1933 FAO.No. 68 of 2003() -------------------- AS.122/2000 of ADDL.D.C. & ADDL.MACT,ALAPPUZHA. OS.26/1994 of SUB COURT, CHERTHALA .................... APPELLANTS/RESPONDENTS 1 AND 2/PLAINTIFFS 1 AND 2 ------------------------------------------------------------------------------------- 1.BINU, D/O.THAVAMONY AMMA AGED 32 YEARS RESIDING AT EDAKKANAT VEEDU, MARARIKULAM MURI MARARIKULAM NORTH VILLAGE 2. VINOD, S/O.ANANTHAN NAIR, AGED 28 YEARS -DO- BY ADV. SRI.P.R.VENKITESH SRI.M.S.JAYESH RESPONDENTS/APPELLANTS & RESPONDENTS 3 TO 6/DEFENDANTS 1 TO 5 ------------------------------------------------------------------------------------------------------------ 1.GOVINDA KURUP, S/O.KUNJAN KURUP, AGED 71 YEARS )( DIED AND LEGAL THOPPIL HOUSE, KATTOOR MURI, )( HEIRS IMPLEADED MARARIKULAM SOUTH VILLAGE 2. THAVAMONI AMMA D/O.BHAVANI AMMA, AGED 55 YEARS THOPPIL HOUSE, EDAKKANAT HOUSE, MARARIKULAM MURI MARARIKULAM NORTH VILLAGE 3. MANOJ, S/O.THAVAMONI AMMA, AGED 37 YEARS, DO. 4. ANANTHAN NAIR, S/O.VASUDEVAKURUP, AGED 60 YEARS DO 5. DR.RADHAKRISHNAN, S/O.CHANDRASEKHARA KURUP AGED 44 YEARS, P B NO.733, AJMAN, ALBHARIN DENTAL CLINIC, UAE ADDL.RESPONDENTS : -------------------------------- 6. KARTHYAYANI AMMA LEELAVATHY AMMA W/O.LATE GOVINDA KURUP THOPPIL VEEDU POLLAITHAI, P O ALUMOODU 7. GOVINDA KURUP, KANDRASA KURUP -DO- FAO 68/03 -2- 8. GOVINDA KURUP ANANDAKUTTAN ALIAS AYILIAM VEEDU, DO 9. LEELAVATHY AMMA, ASHALATHA MANOHAR NIVAS N M PO, CHERTHALA LEGAL REPRESENTATIVES OF DECEASED FIRST RESPONDENT ARE IMPLEADED AS ADDL.R6 TO R9 VIDE ORDER DT.9.4.2010 ON IA NO.257/10 ADV. SRI.K.S.HARIHARAPUTHRAN FOR R1 SRI.GEORGE MATHEW FOR R1 SRI.R.MURALIDHARAN (AROOR) FOR ADDL.R7 TO 9 SRI.M D SASIKUMARAN SRI.DIPU JAMES THIS FIRST APPEAL FROM ORDERS HAVING BEEN FINALLY HEARD ON 14/10/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: HARUN-UL-RASHID, J. ------------------------ F.A.O.No.68 Of 2003 ---------------------- Dated this the 14th day of June, 2010. J U D G M E N T The plaintiffs in O.S.No.26 of 1994 on the file of the Sub Court, Cherthala are the appellants. The suit was filed for partition by the plaintiffs claiming ¼ share each in the plaint schedule property. The trial court passed a preliminary decree allowing partition by metes and bounds and declared that the plaintiffs are entitled to get ¼ share each in the plaint schedule property. The trial court also declared that the plaintiffs are entitled to get ¼ share each on the compensation amount awarded in L.A.R.No.96 of 1988 with respect to 51.20 Ares of property. In the appeal preferred by the 4th defendant the lower appellate court set aside the decree and judgment passed by the trial court and remanded the case to the trial court for allowing the plaintiff to implead the legal heirs of the deceased Chandrasekhara Kurup and further directed the trial court to dispose of the case in accordance with law. The remand order is under challenge. Parties are hereinafter referred to as the plaintiffs and defendants as arrayed in the suit. F.A.O.No.68 Of 2003 ::2:: 2. The plaint schedule property originally belonged to the Marumakkathayam tarwad consisting of Parvathi Amma, Thavamani Amma and then existing child of Thavamani Amma, namely, the second defendant. This thavazhi obtained the properties under Ext.A1 partition deed. C schedule belonged to the Sakha of Thavamani Amma. Out of the 2 acres 48 cents scheduled in the plaint 1 acre 67 cents of property was acquired by railway and rest of the property was in the possession of the first defendant. Parvathi Amma died in the year 1990. Parvathi Amma had four children, namely, Bhavani Amma, Vasudeva Kurup, Chandra Sekhara Kurup and Govinda Kurup (4th defendant). Chandra Sekhara Kurup pre-deceased Parvathi Amma. On going through Ext.A1 partition deed it can be seen that the plaint schedule property was allotted to the Sakha of Thavamani Amma, namely, the first defendant. After the death of Parvathi Amma, the legal heirs of Parvathi Amma executed Ext.B2 release deed releasing their rights in the name of the first defendant. Therefore, it is contended by the plaintiffs that the heirs of the Parvathi Amma have no right either over any portion of plaint schedule property or compensation awarded under the Land Acquisition Act in respect of any portion of plaint schedule F.A.O.No.68 Of 2003 ::3:: property. Plaintiffs were born subsequent to Ext.A1 in the Sakha of Thavamani Amma and they are claiming ¼ share each over the plaint schedule property. Plaintiffs got ¼ share each from the compensation awarded by the Land Acquisition Officer. The 4th defendant who is one of the sons of Parvathi Amma was impleaded as a formal party. He had executed the release deed conveying his right in the suit property in favour of the first respondent vide Ext.B2. 3. Defendants 1 and 2 filed written statement practically admitting the plaintiffs' share. The 4th defendant was impleaded in the suit since he is the father of the plaintiffs and second defendant and husband of the first defendant. He did not oppose the claim of the plaintiffs. The 4th defendant filed a written statement. He denied the plaint allegations that as per Ext.A1, the plaint schedule property were set apart to the Sakha of Thavamani Amma. According to him Parvathi Amma had 1/3rd right and the defendants 1 & 2 had 2/3 rights. He admitted the execution of Ext.B2 release deed. In the written statement it is stated that he had no objection in passing a preliminary decree in respect of the properties except the compensation awarded under Ext.B1. F.A.O.No.68 Of 2003 ::4:: 4. The lower appellate court held that children of Parvathi Amma are also entitled to shares and therefore they must be made parties. The lower appellate court held as follows: “Going by Ext.A1 it is clear that gift to parties 2 to 9 is not a gift by a husband, especially when the first party is the husband of the 4th party to whom he has not given any gift at all; but the property gifted to them is by one Govinda Kurup”. So, the property obtained by the parties 2 to 9 under that gift is their thavazhi property. So, also the property obtained by them under the partition deed is the tharavad property. Thus it is clear that these family properties along with the separate property of the first party, Sivarama Kurup were partitioned under Ext.A1. In other words, the separate property of Sivarama Kurup and the family property of the parties 2 to 9 brought in to common hotchpotch and divided as per Ext.A1. Learned Judge held that all the properties acquired the status of family property and therefore the plaint schedule property, measuring 2 Acre 48 cents which is C schedule in Ext.A1 and allotted to Parvathi Amma and others is their thavazhi property. The learned Judge held that the Sakha of Parvathi Amma who is the mother of Thavamani Amma is designated as a separate thavazhi along with Thavamani Amma and others and therefore the allotment is not F.A.O.No.68 Of 2003 ::5:: to the Sakha of Thavamani Amma but to the Sakha of parvathi Amma. Learned Judge wrongly stated that the Parvathi Amma is the mother of Thavamani Amma. In fact Parvathi Amma is the grandmother of Thavamani Amma. Learned Judge therefore held that the allotment enures to the benefit of all the children of Parvathi Amma and all the other members of her Sakha. In Ext.A1 partition deed, the plaint schedule properties are allotted to the Sakha of Thavamani Amma. Parvathi Amma is the grandmother of Thavamani Amma. Parvathi Amma has got 4 children, namely, Bhavani Amma, Vasudeva Kurup, Chandra Sekhara Kurup and Govinda Kurup. All the members of the family were allotted shares except Bhavani Amma and the children of Thavamani Amma, who are the plaintiffs and that they are all entitled to shares over the said property. The properties are grouped and divided into 9 shares. C schedule property was allotted to thavazhi of Thavamani Amma consisting of Thavamani Amma and her son Manoj. Grandmother Parvathi Amma was also included in the group. In fact, none of the male children of Parvathi Amma were allotted property. Allotment in Ext.A1 partition deed schedule A to I are in favour of separate sub thavazhi. Therefore it is very clear that the allotment of C F.A.O.No.68 Of 2003 ::6:: schedule property is in favour of thavazhi consisting of Thavamani Amma and her children. Name of Parvathi Amma, the grandmother, was also included in the thavazhi allotment in favour of Thavamani Amma and her children. The male children of Parvathi Amma were not allotted properties in the family partition of the year 1965. The said three male children including the 4th defendant never had occasion to challenge the partition and allotment of shares to 9 sub thavazhi excluding them. In such circumstances, finding of the lower appellate court that even though these 4 children, three sons including 4th defendant are not included in Ext.A1 partition deed, the property allotted to Parvathi Amma will enure to their benefit also cannot stand. Further finding that they are entitled to shares over the plaint schedule property is also not sustainable either on facts and evidence. The learned Judge held that the three children of Parvathi Amma were also entitled to shares on the plaint schedule property. This is a finding which is not correctly arrived at. Learned Judge observed that there is lack of pleadings on the part of the 4th defendant in claiming right over the plaint schedule property. In fact, the 4th defendant never claimed any allotment of share over the properties left behind after acquisition. F.A.O.No.68 Of 2003 ::7:: Moreover, the finding of the lower appellate court that allotment of C schedule property in Ext.A1 in favour of Parvathi Amma and her children cannot stand. In fact, the allotment is in favour of Thavamani Amma consisting of Thavamani Amma and her children. Parvathi Amma is the grandmother whose name was included in one of the sub groups out of the 9 groups. Therefore, the remand order passed by the lower appellate court for allowing the plaintiff to implead the legal representatives of deceased Chandra Sekhara Kurup on the basis of the findings cannot stand. In the result, appeal is allowed. The judgment and decree passed by the lower appellate court is set aside and the decree and judgment passed by the trial court is restored. There will be no order as to costs. HARUN-UL-RASHID, Judge. bkn/-