IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE PIUS C.KURIAKOSE TUESDAY, THE 9TH DECEMBER 2008 / 18TH AGRAHAYANA 1930 AS.No. 703 of 1998(A) --------------------- OS.460/1989 of PRL.SUB COURT,TRIVANDRUM .................... APPELLANT(S): 4TH DEFENDANT -------------- 1. SAROJINI THANKACHI ANANDA BHAVAN THUMPARA RISHIMANGALAM THIRUVANANTHAPURAM (DIED) ADDITIONAL RESPONDENTS 2. R.SUBRAMANIAN NAIR ANANDA BHAVAN THUMPARA, RISHI MANGALAM THIRUVANANTHAPURAM 3. S.SASINDRANATHAN THAMPI ANANDA BHAVAN THUMPARA, RISHI MANGALAM THIRUVANANTHAPURAM 4. S.THULASI BAI THANKACHI, ANANDA BHAVAN THUMPARA, RISHI MANGALAM THIRUVANANTHAPURAM 5. S.MOHANA KUMARAN THAMPI ANANDA BHAVAN, THUMPARA RISHIMANGALAM THIRUVANANTHAPURAM 6. S.INDUMATHY, THANKACHY ANANDA BHAVAN THUMPARA, RISHIMANGALAM THIRUVANANTHAPURAM AS.NO.703/98 7. S.PAREED KUMAR , ANANDA BHAVAN THUMPARA, RISHIMANGALAM THIRUVANANTHAPURAM 8. S.RENUKA BAI, THANKACHI ANANDA BHAVAN, THUMPARA RISHIMANGALAM, THIRUVANANTHAPURAM Additional respondents 2 to 8 impleaded as legal heirs of deceased appellant vide order dated 16-8-99 on C.M.P.No. 3517/99 BY ADV. SRI.T.K.ANANDA PADMANABHAN RESPONDENT(S): PLAINTIFF & DEFENDANTS 1, 2, 3, 5 AND 6 TO 11 --------------- 1. RANIKUMARI MALAMEL VEEDU T.C.41/545, III PUTHEN STREET SREEVARAHAM, MUTTATHARA PAKUTTY THIRUVANANTHAPURAM TALUK (DIED) 2. K.THANKAMMA, 'SAROJ' SASTHAMANGALAM JUNCTION THIRUVANANTHAPURAM (DIED) 3. K.G.RAMACHANDRAN , 'SAROJ' SASTHAMANGALAM JUNCTION THIRUVANANTHAPURAM 4. L.PADMAKUMARI, 'SANTHI NIVAS' GANDHARI AMMAN COIL ROAD THAMPANOOR, THIRUVANANTHAPURAM 5. L.SATHI BAI, THANKACHI 'LILLY DALE', METTUKADA THIRUVANANTHAPURAM (DIED) 6. L.VIJAYALEKSHMI THANKACHI 'PREMPRIYA', METTUKADA THIRUVANANTHAPURAM 7. VISWANATHAN THAMPI VETERINARY SURGEON 'VISWASREE' PUTHEN ROAD, VANCHIYOOR THIRUVANANTHAPURAM AS.NO.703/98 8. A.SULOCHANA THANKACHI T.C. 15/510, 'PRASANTHI' UDARASIROMANI ROAD VELLAYAMBALAM THIRUVANANTHAPURAM 9. A.INDIRA BAI THANKACHI 'GEETHANJALI', ELOOR NORTH UDYOGAMANDAL POST COCHIN 10. T.SUDHEER, T.C. 24/1617 METTUKADA, THIRUVANANTHAPURAM 11. T.SURESH, T.C.24/1617 METTUKADA, THIRUVANANTHAPURAM ADDITIONAL RESPONDENTS 12. MANOJ. R, AGED 31 YEARS S/O LATER SATHI BAI THANKACHI LILLY DALE, T.C. 24/936 METTUKADA, THYCAUD THIRUVANANTHAPURAM 14 13. MEENA RAJ.S., AGED 33 YEARS D/O --DO--- -DO- 14. MEERA RAJ.S., AGED 29 YERS D/O ---DO--- -DO- The above legal representatives of the deceased R5 are impleaded as additional R12 to R14 vide order dated 1016/03 on C.M.P.No. 2173/03 15. R.DAYAKUMARI, AGED 43 D/O RANIKUMARI MALAMEL VEEDU T.C. 40/548, 3RD PUTHEN STREET SREEVARAHAM, THIRUVANANTHAPURAM 16. R.KUMARI SOBHA, AGED 33, D/O RANIKUMARI -- DO - -DO- Additional R15 and R16 are impleaded as the legal heirs of the deceased R1 as per order dated 23-7-03 on I.A.No. 932/03 AS.NO.703/98 ADV. SRI.G.UNNIKRISHNAN SRI.S.V.RAJAN FOR R1 SRI.MVS.NAMBOOTHIRY FOR R1 SRI.S.V.RAJAN FOR R6,8,9 SRI.S.HEMANTH SANTHOSH FOR R6,8,9 SRI.S.ARUN RAJ FOR R1 SRI.M.BALAGOVINDAN FOR R10 & R11 SRI.M.R.SASITH FOR R10 & R11 SRI.S.V.RAJAN FOR ADDL.R15 & 16 SRI.B.PREMNATH (E) FOR ADDL.R15 & 16 THIS APPEAL SUITS HAVING BEEN FINALLY HEARD ON 09/10/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: JUDGMENT No representation for the appellant today also. Dismissed for default. 9-12-2008 Sd/-, PIUS.C.KURIAKOSE, JUDGE. ORDER ON C.M.P.NO.1608/01 IN A.S.NO. 703/98 DISMISSED. 9-12-2008 Sd/-, PIUS.C.KURIAKOSE, JUDGE HARUN-UL-RASHID, J. ----------------------------------- A.S.No.703 of 1998 - A --------------------------------- Dated this the 8th day of March, 2010 J U D G M E N T The 4th defendant in O.S.No.460 of 1989 on the file of the Principal Sub Court, Thiruvananthapuram, is the appellant. The suit is for partition. Plaintiff claimed 1/7th share. A preliminary decree was passed allotting 1/7th share each to the plaintiff and defendants 3, 8, 9 and 10 in the plaint schedule property. Aggrieved by the decree and judgment, the 4th defendant has preferred the appeal. The parties are hereinafter referred to as the plaintiff and defendants as arrayed in the suit. 2. The plaint schedule property is having an extent of 25½ cents of land in Vanchiyoor village. Plaint schedule property is the D schedule property in Ext.A1 partition deed. Ext.A1 partition deed was entered into between the sharers on 8.7.1984. Plaintiff is the wife of late Thrivikraman Thampi. Properties including plaint D schedule property are belonging to the thavazhi consists of Ananda Bai Thankachi, her children and grant children. Some items of properties are self acquired properties of A.S.No.703 of 1998 - A 2 her husband namely, late Puthuppally Krishna Pillai, the then Chief Justice of Travancore-Cochin High Court. 1st defendant is the wife of Gopinathan Thampi. 2nd and 3rd defendants are the wives of two sons of Ananda Bai Thankachi. 4th defendant is the daughter of Ananda Bai Thankachi. Defendants 5 to 7 are the children of another daughter by name, Leelavathy Thankachi. Thrivikraman Thampi, Gopinathan Thampi, Sundareshan Thampi, Leelavathy Thankachi and defendants 4, 8 and 9 are the brothers and sisters and are the children of late Puthuppally Krishna Pillai and late Ananda Bai Thankachi. In the partition deed dated 8.7.1984 marked as Ext.A1, the plaint schedule property, which is the D schedule property in the partition deed, was allotted to her children equally. The enjoyment of the property by the children was postponed till the death of Ananda Bai Thankachi who died on 7.7.1980. In Ext.A1 partition deed, the thavazhi property was divided among all the members of the thavazhi members. It is the plaintiff's case that 1/7th share was gifted to her as per gift deed No.608 dated 13.9.1962, marked as Ext.A2. Plaintiff filed the suit for partition and separate possession of her share. A.S.No.703 of 1998 - A 3 3. The 3rd defendant filed a written statement claiming her share in the property. The 4th defendant filed a written statement contending inter alia that all the properties except the plaint schedule property were partitioned under Ext.A1 deed; the D schedule property was excluded from partition; and that D schedule property was enjoyed and possessed by late Ananda Bai Thankachi till her death. 4th defendant denied the statement that D schedule property was allotted exclusively to her children. According to her, the plaint schedule property is available for partition among all the thavazhi members. Therefore, all the members of thavazhi are entitled to shares and they are necessary parties. It is contended that the suit is bad for non- jointer of necessary parties. It is also contended that Thrivikraman Thampi was not entitled to transfer by way of gift or sell his undivided interest in the tharavad property and therefore, the gift deed is unauthorised, invalid and ab-initio void. 4. The plaintiff and the contesting defendants adduced evidence. The oral evidence consists of PWs 1 to 3 and DW1. Exts.A1 to A3 and B1 to B3 are marked on the side of the plaintiff and defendants respectively. Ext.X1 is also marked. A.S.No.703 of 1998 - A 4 5. Respective contentions were examined by the court in detail. Ext.A1 is the partition deed dated 8.7.1984 executed by Ananda Bai Thankachi, her 7 children and her grand children. There were 17 members in the family at the time of Ext.A1 partition deed. The property scheduled as A to H were partitioned among the sharers. In the present case, we are concerned only with the D schedule property in Ext.A1 which is the plaint schedule property. Ananda Bai Thankachi died on 7.7.1980. In Ext.A1, D schedule property was allotted to her 7 children. The parties agreed that their mother namely, Ananda Bai Thankachi shall enjoy the property, take usufructs for her lifetime and was allowed to reside in the residential building, at the same time the property was allotted to her children. But the enjoyment of the property was postponed till the death of their mother. Since the plaintiff's husband was one of the 7 children, the plaintiff claimed that she is entitled to 1/7th share on the strength of the gift deed executed by her husband. Defendants 8 & 9 have admitted the execution of gift deed. Ext.A2 is the gift deed executed by the plaintiff's husband. Some of the defendants contended that the plaintiff is not the wife of A.S.No.703 of 1998 - A 5 Thrivikraman Thampi. According to them, the plaintiff is not the wife of late Thrivikraman Thampi, but one Bhanumathi Amma is his wife. The definite contentions of the 4th defendant is that 19 cents out of the 25½ cents in the D schedule property is the tharavad property and the remaining 5½ cents is the self acquired property of her husband. It is contended that Thrivikraman Thampi will not get 1/7th share over the 19 cents because subsequently born children will also get right over the 19 cents. 6. It is the plaintiff's case that once Ext.A1 partition deed was executed, the sub tharavad ceased to exist; at the time of Ext.A1, 17 persons were available in the thavazhi and the properties were partitioned among all the sharers. The properties were partitioned and scheduled as A to H. Going by the recitals in Ext.A1 partition deed the grand children who are minors at the time of partition are allotted separate properties. The court below observed that the contentions of the 4th defendant that minors are not sufficiently compensated by allotment has no force; and that the 4th defendant cannot turn around and say that minors have not got their due share in the A.S.No.703 of 1998 - A 6 properties. I have examined the relevant portions in Ext.A1 partition deed. The recitals in clause 19 shows that D schedule property was also included in the partition and the property was allotted jointly to the 7 children of late Ananda Bai Thankachi. Therefore, the court below rightly held that the contentions of the 4th defendant that the D schedule property was not included in the partition is unsustainable. 7. The court below also examined the question whether the plaintiff is the legally wedded wife of late Thrivikraman Thampi. The oral evidence of the respective sides were examined and discussed in detail. Only some family members namely, defendants 4, 10 and 11 contended that the plaintiff is not the legally wedded wife of late Thrivikraman Thampi. The circumstances and the evidence shows that the claim of 10th and 11th defendants that Bhanumathi Amma, their mother had married late Thrivikraman Thampi and they are the children of Thrivikraman Thampi had not been substantiated. The validity and execution of Ext.A2 gift deed was also challenged. The evidence of PWs 2 and 3 were examined to prove the execution and registration of gift deed coupled with the evidence tendered A.S.No.703 of 1998 - A 7 by PW1 relied by the court below in support of the proof of execution of Ext.A1 gift deed. Court below also perused Ext.A2, oral evidence tendered by the scribe, PW3, PW2 the officer from the Sub Registrar Office and the relevant entry in the Ext.X1 thump impression register in order to find that Ext.A1 was validly executed. The trial court observed that there is absolutely nothing to show that the gift deed had not come into force. The court below relied on the evidence of PW1 which would amply prove that there was acceptance of gift. 8. I have examined the contentions raised by the counsel for the appellant. I have discussed the oral and documentary evidence, the recitals in Exts.A1 and A2 and all the attended circumstances. All these show that the contentions raised by the 4th defendant in the suit has no merit and therefore, the court below rightly held that the contentions must fail and the plaintiff is entitled to a decree for partition. The appellant/4th defendant died pending appeal and the additional appellants 2 to 8 are impleaded as legal heirs of the deceased appellant. It is made clear that contentions of the legal heirs of the deceased appellant were considered in their capacity as legal heirs of 4th defendant A.S.No.703 of 1998 - A 8 alone. In the result, the appeal fails and it is accordingly, dismissed. No order as to costs. HARUN-UL-RASHID, JUDGE. bkn/-