IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOTTATHIL B.RADHAKRISHNAN & THE HONOURABLE MR.JUSTICE P.BHAVADASAN WEDNESDAY, THE 10TH NOVEMBER 2010 / 19TH KARTHIKA 1932 RFA.No. 175 of 2005() ----------------------------- OS.54/2003 of PRINCIPAL SUB COURT,KOCHI .................... PLAINTIFF/APPELLANTS. ------------------------------------- 1. MERCY JOSEPH, W/O.LATE JOSEPH, ELAMKUNNAPPUZHA HOUSE, T.D.ROAD, P.V.LANE, LANE, ERNAKULAM, COCHIN 35. 2. PAUL JOSEPH, S/O.LATE JOSEPH, DO. DO. 3. SIGY SUNNY, D/O. DO. DO. 4. SAJU JOSEPH, S/O. DO. DO. 5. SOGI JOSEPH, D/O. DO. DO. BY SRI.V.R.VENKATAKRISHNAN, SENIOR ADVOCATE SRI.S.ANANTHAKRISHNAN SRI.N.K.SUBRAMANIAN RESPONDENT(S): ------------------------ 1. E.P.DEVASSYKUTTY, S/O.POULOSE, ELAMKUNNAPPUZHA, ESTERN STREET, NARAKKAL. 2. LISSY PAPPACHAN, W/O.LATE PAPPACHAN, ELAMKUNNAPPUZHA HOUSE, EASTERN STREET, NARAKKAL. 3. SINU PAPPACHAN, D/O.LATE PAPPACHAN, DO. DO. 4. BINU JOSEPH, D/O. DO. DO. THEKKAN HOUSE MELOOR P.O. CHALAKKUDY. 5. KOCHUTHRESSIA, W/O. VARGHESE, STANES TRADING COMPANY, KOLLAM. 6. MARY, W/O.MATHAI, CHAKIATH HOUSE, NEAR NARAKKAL HOSPITAL BUS STOP, NARAKKAL. R1 & R6 BY ADV.SRI.M.S.UNNIKRISHNAN R2 TO R4 BY ADV. SRI.G.SREEKUMAR (CHELUR) THIS REGULAR FIRST APPEAL HAVING BEEN FINALLY HEARD ON 26/10/2010, THE COURT ON 10/11/2010, DELIVERED THE FOLLOWING: sts THOTTATHIL B. RADHAKRISHNAN & P. BHAVADASAN, JJ. - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - R.F.A. No. 175 of 2005 - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 10th day of November, 2010. JUDGMENT Bhavadasan, J, Poulose and Annamma had four children, namely, Joseph, Devasykutty, Pappachan and Mary. Poulose had another daughter in his earlier marriage by name Kochuthressia. Poulose and Annamma are no more. So also Joseph and Pappachan. It seems that Annamma had executed Ext.A1 Will dated 7.3.1991. After the death of Annamma, the plaintiffs, who are the wife and children of late Joseph, one of the sons of Annamma laid a suit for partition. They claimed 1/3rd share over the suit properties. It was asserted in the plaint that Annamma Poulose was the owner of plaint A, B and D schedule properties and the buildings therein. A claim was made that Poulose was a kudikidappukaran R.F.A.175/2005. 2 in respect of D schedule property and late Pappachan purchased the same on behalf of the members of the family after the death of Poulose. 2. The suit was resisted by some of the defendants. The first defendant pleaded ignorance about the Will. However, he was willing to accept the Will if it was genuine and claimed 1/3rd share. His only anxiety was that his share may be given to him. 3. Stiff opposition was offered by defendants 2 to 4. They too pleaded ignorance about the Will. They had no dispute regarding plaint A schedule property. As far as plaint B schedule property is concerned, their stand was that the property, which has an extent of 24 cents belonged to Annamma, but the building therein belonged to late Pappachan and therefore the building was not available for partition. Plaint C schedule is a R.F.A.175/2005. 3 building in plaint D schedule property, which has an extent of 16 cents. As regards this item, it was contended that it exclusively belonged to Pappachan, who obtained assignment in his name and those items were not available for partition at all. Therefore , their stand was that plaint A schedule as well as 24 cents of land in plaint B schedule except the building and the land appurtenant thereto were available for partition and they sought for their share. 4. It appears that there was an amendment of the plaint and consequential additional written statement filed by the contesting defendants. 5. The sixth defendant filed a written statement contending that the Will is not genuine. She too claimed her share. However, the fifth defendant remained passive. R.F.A.175/2005. 4 6. The evidence consists of the testimony of P.Ws. 1 to 3 and documents marked as Exts.A1 to A8 from the side of the plaintiffs. The contesting defendants had D.W.1 examined and Exts. B1 to B4 marked. 7. On an appreciation of the evidence in the case, the court below chose to accept the case put forward by defendants 2 to 4. Accordingly, it was held that plaint A schedule and B schedule having an extent of 24 cents except the building therein and the land appurtenant thereto were available for partition. Consequentially. preliminary decree was passed. Aggrieved, the plaintiffs have come up in appeal. R.F.A.175/2005. 5 8. The sole question that arises for consideration is whether the finding of the court below regarding the non-availability of the building in plaint B schedule and C and D schedule properties for partition is justified. 9. As already noticed, the suit is based on Ext.A1 Will said to have been executed by Annamma. The court below found that the right of Annamma is confined to plaint A schedule property and the 24 cents comprised in plaint B schedule property except the building and the land appurtenant thereto. The court below also came to the conclusion that Annamma had no right whatsoever over plaint C and D schedule properties. R.F.A.175/2005. 6 10. Learned Senior Counsel appearing for the appellants severely attacked the finding of the court below as regards the non-availability of the building in plaint B schedule property and the land appurtenant thereto and plaint C and D schedule properties for partition. According to learned counsel, the court below has not addressed itself to the question really involved in the suit. The court below omitted to note that though the parties are Christians, they were living as a joint family and the acquisitions were all for and on behalf of the family. The conduct of the members of the family shows a shade of following Mithakshara law as would be evident from the various documents produced in the case. It is not in dispute, according to learned counsel, that the members were residing together and it is clear that all the acquisitions were for and on behalf of the R.F.A.175/2005. 7 family. Ext.A1 Will, will clearly show that the intention was that the acquisitions should go to the male members of the family and it was not intended that though the acquisitions were in different names, it exclusively belonged to those persons alone. It may look strange to say that Christian family is a joint family and that it has tarwad property etc. But nothing prevents the members of the Christian family from adopting such a mode of life, and one is to give expression to the intention of the members of the family while deciding the suit of the present nature. Accordingly, it is contended that the court below was not justified in declining to grant relief as regards the building in plaint B schedule property as also plaint C and D schedule properties. R.F.A.175/2005. 8 11. Per contra, learned counsel appearing for the contesting respondents pointed out that joint family and tarawad property etc. are unknown in Christian Law. May be that the members resided together. But the acquisitions were intended to be specific in nature and on going through the evidence, one cannot say that the acquisitions in the name of the persons were intended to be for the benefit of the members of the family especially the male members. There was nothing which prevented Annamma from getting assignment of the building in plaint B schedule and the plaintiffs are not able to offer any explanation for the assignment of the building in favour of Pappachan. In fact, according to learned counsel defendants 2 to 4 have a contention that the property was purchased in the name of Annamma using the funds of Pappachan and in fact the R.F.A.175/2005. 9 entire property belonged to Pappachan. As far as plaint C and D schedule properties are concerned, the learned counsel emphasized that there is nothing to indicate that late Poulose, the father of Pappachan and his brothers and sister had any kudikidappu right over the property. There is nothing to indicate that Annamma had contributed anything for putting up the building in plaint D schedule property. A perusal of Ext.A5, according to learned counsel, would clearly show that what was assigned was the tenancy right in respect of plaint D schedule property and it could not be said that the acquisition in the name of Pappachan was the kudikidappu right enjoyed by Poulose and was on behalf of all the members of the family. Learned counsel contended that the court below has clearly analysed the R.F.A.175/2005. 10 evidence in the proper perspective and no interference is called for with the judgment and decree of the court below. 12. Plaint A schedule property has an extent of 5 cents. It was infact a portion of 56 cents of property originally acquired by Annamma as per Ext.A2 dated 30.3.1966. Portions of the property were sold and what was left was only 5 cents. There is no dispute in this case at all that the said item is available for partition. The dispute in the case centers around the building in plaint B schedule property and plaint C and D schedule properties. 13. Annamma died on 21.1.1993. She left behind Ext.A1 Will. It is based on the Will that the claim is made by the plaintiffs. One may, for the present, take the Will as proved. Emphasize is laid on the recital in R.F.A.175/2005. 11 Ext.A1 Will to the effect that all the male children of Annamma and Poulose were residing together and they were enjoying the properties jointly. She also asserted in the Will that the buildings were put up by her. She then bequeathed the properties claimed by her to her three sons equally. She makes provision for payment of amounts to her daughter and also Kochuthressia, who is the daughter of Poulose in his earlier marriage. 14. The question would be whether Annamma had right over the building in plaint B schedule property and plaint C and D schedule properties. 15. The contention of defendants 2 to 4 is that 24 cents, which is shown as plaint B schedule was purchased by Pappachan in the name of Annamma as per Ext.B2 document dated 15.10.1971 On the same R.F.A.175/2005. 12 day, by another document Pappachan purchased the building situate in the said 24 cents of land in his as well as his wife's name. 16. Though defendants 2 to 4 would assert that the funds for the purchase of 24 cents covered by Ext.B2 document was provided by Pappachan, there is really no evidence in this regard. It could not be said that Annamma had no funds of her own to acquire the property. One should remember that she had acquired 56 cents of property, portions of which were sold and she was left with 5 cents. Considering this fact, it is difficult to say that she had no means of her own to purchase the property. However, one fails to understand that if as a matter of fact the property and the building were purchased utilizing her funds, why would the building be purchased in the name of Pappachan and his R.F.A.175/2005. 13 wife, the second defendant. It is significant to notice that the Will Ext.A1 does not refer to the building in plaint B schedule at all. 17. Learned counsel appearing for the appellants referred to the evidence of D.W.1. Attention was drawn to the statement made by D.W.1 to the effect that members of the family were residing together. Her evidence is to the effect that as far as 16 cents, that is D schedule, was concerned, the building tax was being paid in the name of Annamma. Attention is also drawn to the statement made by her that there was an old building in plaint D schedule property and the entire members of the family later shifted their residence to that building. It is therefore contended that the evidence is clear to the effect that all the properties were being jointly enjoyed by the members of the family. R.F.A.175/2005. 14 18. It is difficult to accept the above contention. As rightly pointed out by the learned counsel for the respondents, there is nothing to indicate that the acquisitions in the name of Pappachan and his wife as regards the building in B schedule and the acquisition of D schedule property with a building therein was intended to be for the benefit of the members of the family. It is significant to notice that there is absolutely no evidence in this case at all to show that Poulose had any kudikidappu right over the property, which was assigned in favour of late Pappachan and which is shown as plaint D schedule property in the present suit. Equally so is the contention regarding the construction of the building. Even though Annamma in her Will asserts that the building in D schedule was put up by her, there is no evidence in this regard at all. Of course, R.F.A.175/2005. 15 the plaintiffs also claimed that the building in B schedule was put up by Annamma. As noticed by the court below, there is no whisper about the building in Ext.A1 Will at all. The evidence clearly shows that Pappachan had adequate means of income. 19. It is true that P.W.1 says that Annamma had independent means of income. According to her, Annamma had rented out a building and she was getting Rs.1,200/- per month as rent. Except for her ipse dixit, there is no evidence in this regard. She pleads ignorance about the existence of the building in plaint B schedule property at the time of its purchase by Annamma and Pappachan. She however admits that in Ext.B4 document all the then existing members had joined for assigning the property. R.F.A.175/2005. 16 20. There is no acceptable explanation for the acquisition of the building in plaint B schedule property in the name of late Pappachan and his wife, the second defendant. There is no evidence for the plaintiffs that Pappachan at the relevant time did not have sufficient funds to acquire the same. In fact the evidence would disclose that he was doing stationary business. 21. May be that the members were residing together. But to say that the acquisitions were for and on behalf of the members of the family is going too far without clear evidence in that regard. It is also true that Pappachan may be the eldest male member in the family. But these facts do not by themselves lead to the conclusion that the acquisitions were intended for the benefit of the male members of the family. As rightly R.F.A.175/2005. 17 pointed out by the learned counsel for the respondents, joint family concept and the tarwad property etc are totally alien to Christian Law. 22. The contention taken by the appellants that a reading of the Will will indicate incidents of coparcenary status cannot be accepted for reasons already stated. 23. The plaintiffs have thus miserably failed to establish that Annamma had power of disposition over the building in plaint B schedule property and plaint C and D schedule properties. It was also contended that if Ext.A1 could not be treated as a Will, it would be construed as a family settlement and therefore it is to be given effect to. R.F.A.175/2005. 18 24. It is difficult to accept the above contention also. Ext.A1 has been executed only by Annamma and the other members of the family are not parties to the same. As long as she does not hold title to the entire property dealt with in Ext.A1 Will, effect cannot be given to the terms in respect to those items, over which she has no right. 25. It is significant to notice that even after the plaint was amended, there was no specific explanation as regards the acquisition of the building situate in plaint B schedule in the name of Pappachan and his wife, the second defendant. Ext.B4 would indicate that the parties were conscious about the infirmity in the Will with regard to the bequeath of plaint B, C and D schedule properties. True, Ext. B4 related to a portion of the property, which exclusively belonged to Annamma. R.F.A.175/2005. 19 But it is significant to notice that even the female members of the family had joined in the execution of Ext.B4. Ext.B4 is long after the death of Annamma. If one were to give effect to the Will, it was unnecessary for the female members of the family to join for assigning the property. This may not be of much significance, for, an explanation is offered that vendee insisted for the same. Whatever that be, as rightly noticed by the court below, there is want of evidence to come to the conclusion that the building in plaint B schedule property was either constructed by Annamma or belonged to her or it was a joint acquisition for and on behalf of the members of the family. So is the case with plaint C and D schedule properties. The court below was R.F.A.175/2005. 20 therefore perfectly justified in declining to grant relief with respect to the building in plaint B schedule and plaint C and D schedule properties. No grounds are made out to interfere with the preliminary decree passed by the court below. This Appeal is without merits and it is accordingly dismissed with costs. Thottathil B. Radhakrishnan, Judge P. Bhavadasan, Judge sb.