IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.BHAVADASAN FRIDAY, THE 14TH OCTOBER 2011 / 22ND ASWINA 1933 RP.No. 362 of 2011() -------------------- AGAINST THE JUDGEMENT/ORDER IN AS.66/2001 Dated 29/07/2010 .................... REVIEW PETITIONER: APPELLANT/DEFENDANT --------------------------------------------------------------------- GOPALAN NAIR, S/O.ANIYATH LAKSHMI AMMA, R/O.KIZHAVUR AMSOM, PATTAMBI, PALAKKAD DISTRICT, KERALA STATE. BY ADV. SRI.C.E.UNNIKRISHNAN RESPONDENTS: RESPONDENTS/PLAINTIFFS & DEFENDANTS --------------------------------------------------------------------------------------- 1. RUGMINI AMMA, D/O.PUTHENVEETIL AMMU AMMA, KALLADIPPATTA AMSOM, ANDALADI DESOM, OTTAPPALAM TALUK, PALAKKAD DISTRICT. 2. LAKSHMANAN NAIR, S/O.PUTHENVEETIL AMMU AMMA, KALLADIPPATTA AMSOM, ANDALADI DESOM, OTTAPPALAM TALUK, PALAKKAD DISTRICT. 3. RAMANKUTTY NAIR, S/O.PUTHENVEETIL AMMU AMMA, KALLADIPPATTA AMSOM, ANDALADI DESOM, OTTAPPALAM TALUK, PALAKKAD DISTRICT. 4. KRISHNAN NAIR, S/O.ANIYATH ITTICHIRI @ KUNJI AMMA, KIZHAYUR AMSOM AND DESOM, OTTAPPALAM TALUK, PALAKKAD DISTRICT. 5. GOVINDAN NAIR, S/O.ANIYATH ITTICHIRI @ KUNJI AMMA, KIZHAYUR AMSOM AND DESOM, OTTAPPALAM TALUK, PALAKKAD DISTRICT. 6. KRISHNAN NAIR @ K.A.NAIR, KALLADIPPATTA AMSOM, ANDALADI DESOM, OTTAPPALAM TALUK, PALAKKAD DISTRICT. 7. SAROJINI, KALLADIPPATTA AMSOM, ANDALADI DESOM, OTTAPPALAM TALUK, PALAKKAD DISTRICT. RP 362/11 -2- 8. MANI, KALLADIPPATTA AMSOM, ANDALADI DESOM, OTTAPPALAM TALUK, PALAKKAD DISTRICT. 9. LAKSHMI, KALLADIPPATTA AMSOM, ANDALADI DESOM, OTTAPPALAM TALUK, PALAKKAD DISTRICT. 10. PRASAD, KALLADIPPATTA AMSOM, ANDALADI DESOM, OTTAPPALAM TALUK, PALAKKAD DISTRICT. 11. RAMU, KALLADIPPATTA AMSOM, ANDALADI DESOM, OTTAPPALAM TALUK, PALAKKAD DISTRICT. 12. VENKITALAKSHMI, KALLADIPPATTA AMSOM, ANDALADI DESOM, OTTAPPALAM TALUK, PALAKKAD DISTRICT. 13. AMMU AMMA, D/O.PUTHEN VEETTIL LAKSHMI AMMA, KALLADIPPATTA AMSOM, ANDALADI DESOM, OTTAPPALAM TALUK, PALAKKAD DISTRICT. 14. SURESH KUMAR, S/O.VISHALAKSHI AMMA, KALLADIPPATTA AMSOM, ANDALADI DESOM, OTTAPPALAM TALUK, PALAKKAD DISTRICT. 15. RAMANI, W/O.RAMAN KUTTY NAIR, PUTHEN VEETTIL AMBULADI DESOM, KALLADIPPATTA, R/O.PADANAYAKATHU VEEDU, NADUVATT, PALAKKAD DISTRICT. 16. MANIKANDAN, (MINOR) REPRESENTED BY GUARDIAN MOTHER, RAMANI, PUTHEN VEETTIL AMBULADI DESOM, KALLADIPPATTA, R/O.PADANAYAKATHU VEEDU, NADUVATT, PALAKKAD DISTRICT. 17. MANOJ, (MINOR) REPRESENTED BY GUARDIAN MOTHER, RAMANI, PUTHEN VEETTIL AMBULADI DESOM, KALLADIPPATTA, R/O.PADANAYAKATHU VEEDU, NADUVATT, PALAKKAD DISTRICT. ADV. SRI.SANTHEEP ANKARATH FOR R2&14 SMT.N.P.ASHA FOR R2&14 THIS REVIEW PETITION HAVING COME UP FOR ADMISSION ON 14/10/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: P.BHAVADASAN, J. ------------------------------------------------------ RP No.362 of 2011-B ---------------------------------------------------- Dated this the 14th day of October 2011 Order Pointing out that there is an error apparent on the face of the record, the petitioner seeks to have the judgment dated 29.07.2010 in AS No.66/01 passed by this court reviewed under Order XLVII Rule 1 CPC. 2. The short case that seems to have been agitated before the court below and this court is that the property involved in the suit belonged to one Ittichiri who obtained it under Ext.A1 document. The plaintiff laid the suit pointing out that the property being the self acquired property, on her death, it should devolve on her children and the plaintiffs are entitled to a share in the property. The contesting defendants pointed out that the property is a thavazy property and therefore, the plaintiffs have no manner of right over the suit property. RP 362/11-B 2 3. The trial court, on an analysis of the evidence found that there is nothing to show that the property which was acquired by Ittichiri as per Ext.A1 had the characteristics of a thavazhi property and it remained as the self acquired property of Ittichiri. Accordingly, a preliminary decree was passed by the trial court. 4. The third defendant brought up the matter before this court in AS No.66/01. This court, on an independent evaluation of the evidence, concurred with the trial court and found that the property was the self acquired property of Ittichiri and there was nothing to show that it had the characteristics of thavazhi properties and accordingly, confirmed the lower court decree. 5. The learned counsel for the review petitioner points out that this court has omitted to note the dictum laid down in the decisions in Mary v. Bhasura Devi (1967 KLT 430) and Raghavan Pillai v. Kunjuraman Nair (1988 KLT RP 362/11-B 3 381) and that has resulted in miscarriage of justice. It is also pointed out that the suit was laid nearly after 42 years after the death of Ittichiri and the contention of the contesting defendants that the right, if at all the plaintiffs had, was lost by adverse possession and limitation, was not considered. This, according to the learned counsel, constitutes an error, apparent on the face of the record and a review is justified. 6. Though the argument may look very attractive at the first blush, on a closer scrutiny, it can be found to be without any basis whatsoever. The decision in Mary v. Bhasura Devi (supra) is a case where the issue considered was whether the property obtained by a female in a partition acquires the characteristics of a tharwad or thavazhi property on the birth of a child to her. It was contended in the said case that when the thavazhi consists of a single female and in a partition, a property was acquired by her, it acquires the characteristics of a thavazhi RP 362/11-B 4 property. It was held that a subsequently conceived child gets a right by birth in the property obtained by its mother in her separate share in the partition of her tharwad. In the decision in Raghavan Pillai v. Kunjuraman Nair (supra), what was considered was the provision under the Travancore Nair Regulation which provided that on the death of a Nair female, her self acquired property shall devolve on her own thavazhi. 7. Admittedly, in the case on hand, the parties are governed by the Madras Marumakkathayam Act. Section 25 of the said Act states that on the death of an intestate marumakkathayee female, her property which was self acquired, shall devolve in the order and according to the rules contained in Sections 26, 27, 28 and 29. Section 26 says that where the intestate has left surviving, her children or lineal descendants in the female line through deceased daughters or both, the whole of the property shall belong to them. In the light of the specific provision which applies to the parties in the case on hand, RP 362/11-B 5 one need not consider the application of the Travancore Regulation and subsequent Travancore Nair Act. In fact, the provisions of the Travancore Nair Act are on par with the provisions contained in the Madras Marumakkathayam Act. 8. The next question to be considered is whether there is any evidence to show that the acquisition by Ittichiri was using the funds of the tharwad or thavazhi. The trial court as well as this court have already found that there was nothing to show that there was any tharwad or thavazhi property or nucleus, which enabled Ittichiri to acquire the property under Ext.A1. The burden was on the contesting defendants to show that there were funds available, generated from tharwad or thavazhi properties as the case may be which would have been the sole source of income for purchase of the property covered by Ext.A1 by Ittichiri. Unfortunately, they were unable to adduce any evidence in this regard and trial court and this court held that in the absence of any such evidence, the only RP 362/11-B 6 conclusion possible was that the property acquired by Ittichiri under Ext.A1 is self acquired property. 9. As regards the contention regarding adverse possession and limitation, it has necessarily to fail since one has to notice that the plea of adverse possession is set up against a co-owner. In the case of a co-owner, the burden is considerably heavy to prove ouster of the co- owner. The mere non-participation, management or taking of income or keeping away from possession by itself will not constitute ouster of the co-owner and considerable amount of evidence is required to show that the contesting defendants were enjoying the property to the exclusion of the other co-owner. Unfortunately for the appellant, there is no evidence in that regard also. 10. It was the above facts, which had persuaded this court to concur with the views of the trial court. No grounds are made out warranting interference with the judgment passed by this court on 29.07.2010. RP 362/11-B 7 The result is that this Review Petition is without any merits and it is liable to be dismissed. I do so. P.Bhavadasan, Judge sta RP 362/11-B 8