IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.RAMKUMAR THURSDAY, THE 27TH AUGUST 2009 / 5TH BHADRA 1931 AS.No. 563 of 1999(A) --------------------- OS.631/1993 of I ADDL.SUB COURT,ERNAKULAM .................... APPELLANT(S): (defendants 3,4,7 and 9 to 14) ----------- 1. Aravindakshi Amma, D/o. Narayani Amma, residing at Andippillil House, Ponnurunni Desom, Poonithura Village, Kanayannur Taluk 2. Ramachandran, S/o. Narayani Amma, -do- 3. Ammukutty Amma, D/o. Parukutty Amma, residing at Kizhakke Kadangattil Veedu, Vattekunnam Kara, Edappally North, Kochi – 24 4. Kalyanikutty Amma, W/o. Late A. Karunakara Menon, (died) Kadangat House, Vattekunnam Kara, Edappally North Village, Kochi -24. 5. Dr. M.Ravindranath, S/o. Late A. Karunakara Menon, Deputy General Manager, India Petro Chemicals, Research Wing, Baroda. 6. M.Radhakrishnan, S/o. late A. Karunakara Menon, Professor, Sanskrit Department, Sree Sankara College, Kaladi 7. Smt. Kamaladevi, D/o. A. Karunakara Menon, H.S.a. Government High School, Thiruvankulam 8. Rajalakshmi, D/o. late A. Karunakara Menon, Staff, K.S.E. Board, Kalamassery 9. Kumari, D/o. late A. Karunakara Menon, Professor, Sree Krishna College, Guruvayoor -:2:- Appellants 5 to 9 are recorded as the legal representatives of appellant No. 4 as per Order dated 29-2- 2008 in I.A. 578 of 2008). BY ADV. SRI.T.K.VENUGOPALAN SRI.SHIBU JOSEPH SRI.V.DEVAN RESPONDENT(S): --------------- 1. Gopala Menon, S/o. Sankunny Menon (deleted) residing at Mooledathu House, Eroor Desom, Nadama Village, Kanayannur Taluk 2. Vijayan, S/o. Gopala Menon, residing at -do- 3. Santha, D/o. Gopala Menon, -do- 4. Vimala , d/o. -do- 5. Nandanan, S/o. Gopala Menon -do- 6. Venugopal, S/o. Gopala Menon -do- 7. Rema , d/o. Gopala Menon -do- 8. Hari, S/o. Gopala Menon -do- 9. Thankam, D/o. Narayani Amma, Kizhakke Kadangattil House, Ponnurunny Desom, Poonithura Village, Kanayannur Taluk 10. Radha, W/o. Vijayan, residing at Lakshmipuram Madom, Edappally North P.O., Kochi - 24 11. Balan, S/o. Thankam, residing at Kizhakke Kadangattil House, Vattekunnam Kara, Edappally North, Kochi - 24 Addl. respondents: 12. Madhukumar, S/o. Gopala Kurup, Rugmini Sadanam, Perunna, Changanassery 13. Remadevi, W/o. Madhukumar -do- -:3:- 14. P.P. Ajayakumar, S/o. Padmanabha Pillai @ Pappunni Pillai Padmavilasam Kara, Thrikkakara North, Addl. respondents 12 to 14 impleaded vide order dated 7-6-2000 in C.M.P. 6594/99. Name of the first respondent deleted from the Appeal as per Order dated 29-2-2008 in I.A. 879 of 2008 ADVS. SRI.A.BALAGOPALAN, SRI. C.K. ARAVINDAKSHA MENON AND SRI.K.C.CHARLES FOR R2 TO R8 SRI.N.NEELAKANDHAN NAMBOODIRI for R10 ADVS. M/S.ANANTHAKRISHNAN & N.K.SUBRAMANIAN FOR ADDL.R12 TO 14 THIS APPEAL SUITS HAVING BEEN FINALLY HEARD ON 04/08/2009, ALONG WITH RFA NO. 43 OF 2008 , CO NO. 18 OF 2009 AND CO NO. 19 OF 2009 THE COURT ON 27/08/2009 DELIVERED THE FOLLOWING: -:4:- Appendix Appellants' Exts: Ext.B11 - Gift deed Dated 7th Edavam 1096 M.E executed by Parvathy in favour of Paru and her children Respondents' Exts: Nil. CR V. RAMKUMAR, J. ......................................... A.S. No. 563 of 1999 & Cross Objection No. 19 of 2009 & R.F.A. 43 of 2008 & Cross Objection No. 18 of 2009 ......................................... Dated, this the 27th day of August 2009 JUDGMENT Defendants 3, 4, 7 and 9 to 14 in O.S. No. 631 of 1993 on the file of the first Addl. Sub Court, Ernakulam are the appellants in A.S. No. 563 of 1999. Defendants 15 to 17 are the appellants in R.F.A. No. 43 of 2008. The aforementioned suit was one for partition and separate possession of the plaintiffs' 8/16 shares over two items of immovable properties described in the plaint. Plaint A schedule item No. 1 is shown as having an extent of 70 ¼ cents. Plaint A schedule item No. 2 lying comprised in two survey numbers has a total extent of 3.51 acres. Plaint A schedule item No. 1 is in Poonithura Village and item No. 2 A.S. No. 563 of 1999 and R.F.A. 43 of 2008 -:2:- is in Thrikkakara North Village of Ernakulam District. PLAINTIFFS' CASE 2. The case of the plaintiffs can be summarised as follows:- Plaint schedule properties belonged to the Marumakkathayam tarvad of the plaintiffs 2 to 8 and defendants 1 to 14 known as Andipillil Tarvad. In the year 1950 a partition took place in the said tarvad as evidenced by Ext.A1 partition deed dated 1-11-1950 and plaint A schedule item No. I was allotted to the tavazhi of Parukutty Amma. The said partition was between defendants 1, 7 and 8 and Neelakanda Menon and their mother Parukutty Amma. The plaint A schedule item No. 2 was acquired by the tavazhi of Parukutty Amma as per Ext.A2 usfructory mortgage dated 7th Edavam 1096 (corresponding to the year 1921) executed by Parvathy Amma, the mother-in-law of Parukutty Amma. Plaintiffs 2 to 8 are the children of A.S. No. 563 of 1999 and R.F.A. 43 of 2008 -:3:- Padmavathy Amma who was one of the daughters of the first defendant Narayani Amma who in turn was one of the daughters of Parukutty Amma. Parukutty Amma and Padmavathy Amma are no more. Defendants 2 to 4 are the other children of the first defendant, Narayani Amma. Defendants 5 and 6 are the children of the 2nd defendant. Thus, plaintiffs 2 to 8 and defendants 1 to 14 are the members of the tavazhi of Parukutty Amma who was the common ancestress of the tarvad. The plaint A schedule properties belonged to the said tavazhi. The properties are in the joint possession of the plaintiffs 2 to 8 and defendants 1 to 14. The plaintiffs were given their share of income from the properties up to December 1991. The assignment deed executed by defendants 2 and 8 in favour of strangers are void and not binding on the plaintiffs. Eventhough the plaintiffs demanded partition and separate possession of their share the defendants have not acceded to their demand. The properties will fetch an annual income of A.S. No. 563 of 1999 and R.F.A. 43 of 2008 -:4:- Rs. 10,000/-. The plaint schedule properties may, therefore, be divided into 16 shares and the plaintiffs may be allotted 8 shares over the same with share of profits at the rate of Rs. 5,000/- per annum. THE DEFENCE 3. The suit was resisted by defendants 1,3,4,7, 9, 11 and 12 raising the following contentions:- The plaint allegation that the plaint A schedule item No. 1 property belonged to Andippillil Tarvad is false. It was the property belonging to Andippillil Krishnan Menon. The said Krishnan Menon gifted the property in favour of 11 persons as per a gift deed of the year 1099 ME (corresponding to the year 1924). Out of the 11 persons Ravunni Nair and Madhavi Amma died. The remaining 9 co-owners partitioned the properties as per Ext.A1 partition deed dated 1-11-1950. The plaint A schedule item No.I was allotted to defendants 1, 7 and 8 and their brother Neelakanda Menon and their mother Parukutty A.S. No. 563 of 1999 and R.F.A. 43 of 2008 -:5:- Amma. It was not a tavazhi property and, therefore, subsequently born children in the Andipillil tarvad have no right over the property. Plaint A schedule item No. 2 also did not belong to Andippillil tarvad. The said item belonged to Kandangad Sankaran Padmanabhan, the husband of Parukutty Amma and the father of defendants 1, 7 and 8 and deceased Neelakanda Menon. On the death of Sankaran Padmanabhan, the half share he had over the property devolved upon his wife Parukutty Amma and children, Narayani Amma (D1), Karunakara Menon (D8), Neelakanda Menon and Ammukutty Amma (D7). The other half share devolved on Sankaran Padmanabhan's mother Parvathy. She gifted her share to the wife and children of Sankaran Padmanabhan as per document No. 3177/1096 M.E. of S.R.O. Alangad. The plaintiffs have no right over the said property. The share of Neelakanda Menon in the suit properties was assigned in favour of the 8th defendant as per Ext.B1 sale deed of the year 1116 and B2 sale deed A.S. No. 563 of 1999 and R.F.A. 43 of 2008 -:6:- dated 21-10-1955. Parukutty Amma died in the year 1972. Thereafter as per Ext.B3 partition deed dated 28-10-1981 of S.R.O. Tripunithura, defendants 1, 7 and 8 partitioned the properties among themselves. 8th defendant Karunakara Menon assigned 10 cents of property in favour of the 15th defendant and his wife the 16th defendant as per sale deed. By his will dated 15-7-1989 Karunakara Menon bequeathed his property to his children who are defendants 10 to 14. The first defendant gifted her share over the properties to her daughter Kamalakshi @ Thankam the 2nd defendant as per Ext.B4 gift deed dated 4-3-1983. The 2nd defendant in turn assigned the same to her children namely defendants 5 and 6. Defendants 5 and 6 assigned the property to strangers. The plaintiffs have no right over the plaint schedule properties. The plaint allegation that the plaintiffs were given their share of income from the properties till December 1991 is false. The properties will not fetch Rs. 10,000/- per annum as alleged. At the most they may fetch A.S. No. 563 of 1999 and R.F.A. 43 of 2008 -:7:- Rs. 100/- per annum. The suit may be dismissed with costs. 4. The 5th defendant filed a written statement supporting the plaint averments and praying for partition and separate allotment of her share with profits from the suit properties. 5. The 13th defendant who is the daughter of the 8th defendant Karunakara Menon filed a written statement raising the very same contentions raised by defendants 1, 3, 4, 7 , 9 and 12. She further contended that plaintiffs 1 to 3 and Padmavathy Amma the wife of the first plaintiff and mother of the other Plaintiffs were aware of the execution of Ext.A1 partition deed and, therefore, the rights, if any, of the plaintiffs have been lost by adverse possession and limitation and that in the event of partition she may be given the value of improvements effected by her. 6. Defendants 15 to 17 filed a joint written statement raising the defences set up by other contesting defendants A.S. No. 563 of 1999 and R.F.A. 43 of 2008 -:8:- and further contended as follows:- Defendants 15 and 16 have purchased 10 cents of land from 8th defendant Karunakara Menon and 17th defendant has purchased 6.5 cents of land from the 2nd defendant Kamalakshy Amma @ Thankam as per document No. 3191 of 1991. The properties are not partible. In case the suit is decreed, the assignment in favour of defendants 15 to 17 may not be set aside. They have effected valuable improvements in the properties purchased by them. In the event of partition, they may be given the value of the improvements. The suit is barred by limitation and is to be dismissed with costs. THE TRIAL 7. The court below framed the following issues for trial:- i) Whether the suit is time barred ? ii) Whether the suit is bad for non-joinder of necessary parties ? iii) Whether the plaint schedule first item property A.S. No. 563 of 1999 and R.F.A. 43 of 2008 -:9:- was the property of Andippillil Taravadu ? iv) Whether the plaint schedule second item property was the property of Andippillil Taravadu ? v) Whether the alienations made by Neelakanda Menon are valid ? vi) Whether partition Deed No. 6143/1981 is binding on the plaintiffs ? vii) Whether the alienations made by defendants 1 and 2 are binding on the plaintiffs ? viii) Whether the alienation made by the 8 th defendant is binding on the plaintiffs ? ix) What is the share (if any) to which each of the co-owners is entitled in the plaint schedule properties ? x) What is the amount (if any) to which defendants 13 and 15 to 17 are entitled as value of improvements ? xi) What is the order as to costs ? 8. On the side of the plaintiffs the 6th plaintiff was examined as P.W.1 and Exts.A1 to A4 were got marked. On the side of the defendants the 3rd defendant was examined as DW1 and Exts. B1 to B10 were got marked. A.S. No. 563 of 1999 and R.F.A. 43 of 2008 -:10:- 9. The learned Subordinate Judge, after trial as, per judgment and decree dated 8-1-1999 passed a preliminary decree for partition as follows:- i) The plaint schedule properties will be divided by metes and bounds into 15 shares. ii) Defendants 1 to 7 and plaintiffs 2 to 8 are entitled to one share each. Additional defendants 9 to 14 together are entitled to one share. iii) The plaintiffs will be put in possession of their joint 7/15 share. iv) The fifth defendant will be put in possession of her share. v) The plaintiffs and fifth defendant are allowed to realise their share of income out of the shares of the other co-owners who will be liable proportionate to their shares. vi) The quantum of the share of income will be decided in the final decree proceedings. vii) The costs shall come out of the estate. The case is adjourned sine die”. It is the said preliminary judgment and decree which A.S. No. 563 of 1999 and R.F.A. 43 of 2008 -:11:- are assailed in these appeals. 10. I heard Advocate Sri. T.K. Venugopalan the learned counsel appearing for the appellants in A.S. 563/99, Advocate Sri. N.K. Subramonian , the learned counsel appearing for the appellants in R.F.A. 43 of 2008 and Advocate Sri. Charles the learned counsel appearing for the respondents/plaintiffs. ARGUMENTS OF THE CONTESTING DEFENDANTS 11. On behalf of the appellants in the two appeals the following submissions were made before me in support of the appeals:- An extent of 1.56 acres of land including the plaint A schedule item No. 1 admeasuring 70 ¼ cents belonged to Andippillil Krishnan Menon, a member of the plaintiff's tarvad. The said property was gifted by Krishna Menon in favour of the following 11 members of the tarwad:- i) Madhavi Amma ii) Ravunni Nair A.S. No. 563 of 1999 and R.F.A. 43 of 2008 -:12:- iii) Ayyappa Menon iv) Parameswara Menon v) Damodara Menon @ Govinda Menon vi) Raghava Menon vii) Parukutty Amma viii) Narayani Amma (D1) xi) Karunakara Menon (D8) x) Neelakanda Menon xi) Ammukutty Amma (D7) The above gift was not in favour of any tavazhi but to the named donees who were tenants -in-common. The plaint A schedule item No. 1 is in the erstwhile Cochin area. In the case of such a gift, even if both the donor as well as donees are Marumakkathayees, contrary to the views of the Madras and Travancore High Courts, the Cochin High Court has always held that the donees take the properties as co-owners or tenants-in-common. (See Kalianikutty Amma v. Devaki Amma – 1950 KLT 705 A.S. No. 563 of 1999 and R.F.A. 43 of 2008 -:13:- F.B.) Among the aforesaid 11 persons who were co- owners in respect of the plaint A schedule item No. I, Madhavi Amma and Ravunni Nair died. O.S. 77/1125 M.E. (corresponding to the year 1950) was a suit filed by Ayyappa Menon referred to above before the Anjikaimal District Court seeking partition of the aforesaid property. The surviving 8 co-owners were the defendants in the said suit. Ext.B9 is the preliminary judgment dated 11-8-1950 passed in the said suit. Pending the said suit the parties compromised and executed Ext.A1 partition deed dated 1- 11-1950. Ext.B7 compromise petition dated 15-11-1950 was also filed before Court. Ext.B8 final judgment and Ext.B10 final decree dated 17-11-1950 were passed by the court recording the compromise. Ext.B6 is the plaint in O.S. No. 77 of 1925 referred to above. In the said suit filed by Ayyappa Menon it was alleged that the property was purchased by the 11 co-owners referred to above and that defendants 1 to 3 therein viz., Parameswara Menon, A.S. No. 563 of 1999 and R.F.A. 43 of 2008 -:14:- Damodara Menon @ Govinda Menon and Raghava Menon were mismanaging the property and were creating encumbrances over the property by mortgaging the same in favour of strangers and 3rd defendant Raghava Menon was fraudulently getting back the property from the mortgagee. It was pending the said suit that Ext.A1 partition deed was executed as per which Ayyappa Menon who was the plaintiff therein was allotted property worth Rs. 150/- as branch No. I, Parameswara Menon was allotted property worth Rs. 200/- as branch No. II, Govinda Menon was allotted property worth Rs. 200/- as branch No. III, Raghava Menon was allotted property worth Rs. 400/- as branch No. IV and Parukutty Amma and her children were allotted the present A schedule item No. I i.e.70 ¼ cents worth Rs. 150/- as branch No. V. The B schedule to Ext.A1 partition deed enumerates the debts. It says that a sum of Rs. 300/- payable to Raghava Menon by virtue of Ext.A4 mortgage deed of 1120 M.E. is allotted to Raghava A.S. No. 563 of 1999 and R.F.A. 43 of 2008 -:15:- Menon. B schedule to Ext.A1 further shows that a sum of Rs. 150/- expended by Ayyappa Menon for conducting Ext.B1 suit is allotted to him and Rs. 31/- is allotted to him towards payment made to the jenmi Devaswom and Rs. 324/- and Rs. 95/- to the children of Ayyappa Menon due under a decree. Ext.A4 is the mortgage executed dishonestly by Parameswara Menon, Govinda Menon and Madhavi Amma as alleged in Ext.B6 plaint. Ext.A4 recites that Parameswara Menon and two others are executing the mortgage for and on behalf of the tarvad. By virtue of Secs. 53 and 54 of the Cochin Nair Act , written consent of the major members of the tarvad was necessary for alienating the tarvad property by way of mortgage. No such written consent had been obtained. So Ext.A4 mortgage was invalid and not binding on the tarvad. That was the reason why the mortgage debt under Ext.A4 was not allotted to the 5th branch but to Raghava Menon. From the very fact that the other family members were not A.S. No. 563 of 1999 and R.F.A. 43 of 2008 -:16:- made liable for the debts, it is clear that Ext.A4 mortgage was one executed dishonestly and not on behalf of the tarvad. The present suit is filed 43 years after Ext.A1. If as a matter of fact the plaint A schedule item No. I was a tavazhi property, Padmavathy Amma, the mother of plaintiffs 2 to 8 who died in the year 1966 would have claimed partition. She not only did not claim partition but was not allotted any share in Ext.B3 partition dated 28-10- 1981. Similarly, the plaint A schedule item No. 2 altogether admeasuring 3.51 acres belonged to Kandangattu tarwad of which Sankaran Padmanabhan, the husband of Parukutty Amma was a member. After the death of Padmanabhan his half right devolved on his widow Parukutty Amma and children and the other half right to his mother Parvathy Amma. The said Parvathi Amma gave a gift of her half right to Parukutty Amma and her children as per document No. 3177/1096 of S.R.O., Alangad which was produced before the court below on 2- A.S. No. 563 of 1999 and R.F.A. 43 of 2008 -:17:- 12-1996 but was not marked and has been marked in this appeal as Ext.B11. Ext.A2 is only a right to encumber the property for 630/- rupees given as a usufructury mortgage by Parvathy Amma to Parukutty Amma and her children. Since Sec. 22 of the Travancore Nair Act, 1100 M.E. as per which a gift or bequest by a Marumakkathayee husband to his wife and children will enure to the puthravakasam tavazhi of his wife and children has no application neither document No. 3177/1096 nor Ext.A2 can be treated as an acquisition by the tavazhi of Parukutty Amma so as to enure to the subsequently born members of the said tavazhi. Parvathi Amma who is the donor under document No. 3177/1096 M.E. and the mortgagor under Ext.A2 not being a father or husband the property dealt with under these documents will not enure to the puthravakasam thavazhi of Parukutty Amma and her children. The property will only enure to the named donees namely Parukutty Amma , the first defendant Narayani Amma, 7th A.S. No. 563 of 1999 and R.F.A. 43 of 2008 -:18:- defendant Ammukutty Amma and 8th defendant Karunakara Menon. The finding recorded by the court below that plaint A schedule item No. 2 enured to the tavazhi of Parukutty Amma is, therefore, unsustainable. As per Ext.B3 partition deed dated 28-10-1981, Narayani Amma the grandmother of plaintiffs 2 to 8 was allotted 12 ½ cents from plaint A schedule item No. I and 63 cents in the property comprised in Sy. No. 691/2 of plaint schedule item No. 2 and 12 cents in the property comprised in Sy. Nos. 690/I C of plaint A schedule item No. 2. The first defendant had gifted certain items to her daughter the 2nd defendant as per Ext.B4 sale deed of the year 1993. From out of the said property the 2nd defendant sold 6.5 cents to the 17th defendant as per Ext.B5 sale deed dated 20-1- 1993. Likewise, the 8th defendant was allotted 45 ¼ cents from the plaint A schedule item No. 1 and 2.03 acres from plaint A schedule item No. 2 as per Ext.B3 partition. He had sold 10 cents out of the property allotted to him and A.S. No. 563 of 1999 and R.F.A. 43 of 2008 -:19:- comprised in Sy. No. 691/2 to defendants 15 and 16 (husband and wife) as per document No. 3107/1989 S.R.O. Edappally. Merely because plaint A schedule item No. 2 is given to Parukutty Amma and her children it cannot be held that the mortgage enures to the share of the tavazhi of Parukutty Amma so as to entitle plaintiffs 2 to 8 to claim a share. In (Kunju Ponnamma Gouri Amma v. Parvathi Amma - 1969 KLR 902) it has been held that the Ist defendant therein and her two minor children who were the other members of her tavazhi to whom properties were allotted on per capita basis and included under one schedule would take the properties were allotted on per capita basis and included under one schedule would take the properties as tenants -in- common and that the properties would not enure to the tavazhi. There is no presumption that properties acquired by a junior member are tarvad properties. (See Kalliani Amma v. Rugmini - 1999 (3) KLT 98). It is only if the A.S. No. 563 of 1999 and R.F.A. 43 of 2008 -:20:- tarvad is possessed of sufficient nucleus with which the properties could have been acquired and the acquisition was made utilising the nucleus, can there be a presumption that the acquisition would enure to the tarvad (See Chenthamarakshan v. Kondath Damodaran - ILR 1970 (Kerala) 65). In case, this Court upholds the preliminary decree for partiion, since the impugned transfers were effected after 1-12-1976 they were not void attracting the decision of the Full Bench reported in Ammalu Amma v. Lakshmy Amma - 1966 KLT 32 (FB). Hence, in the event of partition 10 cents purchased by D15 and 16 from D8 may be allotted to D8 and 6.5 cents purchased by D17 from D2 may be allotted to D2 or his son D6 so that the transferees can work out their equities in the final decree proceedings. Eventhough the 13th defendant had pleaded adverse possession and limitation, the court below has not recorded any finding in that behalf. JUDICIAL RESOLUTION 12. I am afraid that I cannot agree with the above A.S. No. 563 of 1999 and R.F.A. 43 of 2008 -:21:- submissions made on behalf of the appellants. 13. Admittedly the parties belong to a Marumakkathayam tarvad by name Andippillil of Ponnurunni desom in Poonithura Village of Kanayannoor Taluk in Ernakulam District. . Item I of plaint A schedule is situated in Ponnurunni Desom and is known as Vadakke Andipilli paramba having an extent of 70 ¼ cents comprised in Survey No. 573/1 of Poonithura Village. Ponnurunni was admittedly a part of the erstwhile Cochin State. Plaint A schedule item No.