IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE PIUS C.KURIAKOSE FRIDAY, THE 4TH JULY 2008 / 13TH ASHADHA 1930 RFA.No. 409 of 2004(E) -------------------------------- O.S. NO. 26/1994 OF I ADDL.SUB COURT,TRIVANDRUM .................... APPELLANT/DEFENDANT NO.1: ---------------------------------------------- PONNAMMAL HAMEED, SUNDRA VILASOM, VAZHUTHACAUD, TRIVANDRUM. BY ADV. SRI.G.S.REGHUNATH. RESPONDENTS/ PLAINTIFF & ADDL. 2ND DEFENDANT: ------------------------------------------------------------------------------- 1. NABEESATH BEEVI, D/O.MOHAMMD MEERA UMMAL, THOPPIL VEEDU, THENGUPATTANAM, VILAVANCODE TALUK, KANYAKUMARI DISTRICT. 2. M/S.DHANALAKSHMI BANK LTD. REGD.OFFICE AT THIRUVANANTHAPURAM, REP. BY ITS CHAIRMAN. ADV. SRI.S.VENKATASUBRAMONIA IYER(SR.) FOR R1, ADV. SRI.T.P.KELU NAMBIAR (SR.) FOR R1, ADV. SRI. M. SREEKUMAR FOR R1, SMT.S.JASMINE FOR R1, SRI.K.JAYAKUMAR FOR R1, SRI.P.B.KRISHNAN FOR R1, SRI.C.K.KARUNAKARAN,SC, FOR R2. THIS REGULAR FIRST APPEAL HAVING BEEN FINALLY HEARD ON 04/07/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: prv. PIUS C. KURIAKOSE, J. ----------------------------------------------- RFA. No. 409 OF 2004 ----------------------------------------------- Dated this the 4th day of July, 2008 J U D G M E N T First defendant in a suit for partition is the appellant. The plaintiff and the additional second defendant respectively are the respondents. The plaint schedule property is an extent of 26.631 sq. links of land together with buildings situated therein being the remainder portion of a larger extent of 73 ½ cents in survey Bno.12 of Thykkad Village in Thiruvananthapuram Taluk. The allegations in the plaint are that originally the property belonged to Venkitta Iyer Muthu Krishna Iyer. He obtained the same by virtue of sale deed No.1365/1089 Sri. Venkitta Iyer Muthu Krishna Iyer bequeathed the properties to his wife Gomathy Ammal Ponnammal as per gift deed No.137/1095. Upon the demise of Smt.Gomathy Ammal Ponnammal, the property devolved upon her only son Sundara Iyer. Sundara Iyer had two children, viz., Ponnammal (the appellant/defendant) and Muthu Krishnan. The case of the plaintiff is that Muthu Krishnan had five children and so they came to have 5/6th share each in the property while the defendant-appellant came to have the remaining 1/6th share. It is alleged in the plaint that during Muthu Krishnan's life time his children viz., Balaji, Meena and Sankaramoni assigned their 3/6th share in the property to the plaintiff by virtue of three sale deeds of the RFA. N0. 409/04 -2- year 1993. After the demise of Muthu Krishnan on 4-5-1992 the other two daughters, Muktha and Sankari also sold their 1/6th share to the plaintiff. Thus the claim is that the plaintiff is having 5/6th share in the entire plaint schedule property and partition and separate possession of 5/6th shares in the property was sought for on that basis. 2. The defendant filed written statement contending that the description of the plaint schedule property is wrong and mischievous. It was contended that the appellant and her brother Muthu Krishnan had sold away 4.68 cents of land together with building portions situated thereon to one Radha Devi in 1989 and that the balance property has been under the absolute possession and enjoyment of the appellant. It was pointed out that the appellant had constructed a building in the said property availing financial assistance of the Dhanalakshmi Bank (considering which contention the Dhanalakshmi Bank was impleaded as additional second defendant in the suit) It was further contended in the written statement that the balance schedule property was partitioned amongst the appellant, Muthu Krishnan and their mother Muthu Ammal in 1979 itself. Recording the oral partition an agreement was entered into between the three of them on 23-1- 1979 (Ext.B15). In that oral partition all the common properties of the parties including the plaint schedule property were partitioned. In Ext.B15 it is stated clearly that 2/3rd of the plaint schedule property has been allotted to the appellant and that the mother Muthu Ammal was allotted the remaining one-third which is described as item No.A RFA. N0. 409/04 -3- schedule 1 in the agreement. Muthu Krishnan was not given any property from the plaint schedule property at all. On the death of Muthu Ammal, the mother, her one-third share in the plaint schedule property devolved upon the appellant and her brother Muthu Krishnan in equal shares, each thus getting 1/6th shares in the whole of the property. Thus appellant came to have 5 out of 6 shares in the plaint schedule property while Muthu Krishnan was having only 1/6th share in the plaint schedule property. After deducting 2.25 cents of land sold away by him in the year 1989, the children of Muthukrishnan can get only the remaining portion of the 1/6th share which their father was having in the property. That undivided right alone can be sold by them to the plaintiff. It is also contended that the sale deed executed by Muthukrishnan in respect of 2.25 cents to Radha Devi covers his entire share in the plaint schedule property as the legal heir of his mother. Muthukrishnan having accepted the oral partition in the agreement of 1979 the plaintiff is not entitled to claim any property in excess of Sri.Muthukrishnan's 1/6th share. It was contended that since 1971 the plaint schedule property is in the absolute possession and enjoyment of the appellant as absolute owner excluding all others. There was no objection from anybody against the appellant's possession and enjoyment and the appellant has been in continuous and uninterrupted possession of the property. He has prescribed title by ouster and adverse possession. It was therefore prayed in the written statement that a decree be passed allowing 5/6th share in the RFA. N0. 409/04 -4- property to the appellant excluding 2.5 cents sold to Smt.Radha Devi. On the pleadings the following issues were settled for trial. 1. Whether the plaint description is correct? 2. Whether the plaintiff is having the share as alleged by her? 3. Whether the sale deed mentioned was executed by persons having no right? (regarding A1 and A2 sale deeds relied on by the plaintiff) 4. What order as to relief and costs ? In the light of issue No.1 the suit was got amended and that issue no longer survived in view of the amendment introduced in the plaint schedule description. After amendment the following additional issues were framed. Addl.Issue No.5. Whether the plaint schedule property is partible, if so, what is the rate of share each party is entitled? Addl. Issue No.6. Whether the suit is bad for partial partition? Addl. Issue No.7. Whether the suit is barred by adverse possession and limitation as contended by the defendant? 3. The evidence in the suit consisted of the oral testimonies of PW-1 Meeran Pillai, husband of the plaintiff and that of DW-1 the appellant-defendant. The documentary evidence on the side of the plaintiff consisted of Ext.A1 sale deed dated 7-3-1992 executed in favour of the plaintiff by Sankaramoni in her personal capacity as well as her capacity as power of attorney holder of Smt. Meena, Ext.A2 sale deed dated 2-5-1992 executed in favour of the plaintiff by RFA. N0. 409/04 -5- Sankaramoni in her personal capacity as well as in capacity of power of attorney holder for her brother Balaji, Ext.A3 sale deed dated 18-6- 1992 executed by Sankaramoni in favour of the plaintiff in her personal capacity as well as in capacity of power of attorney holder for her brother Balaji and Smt. Meena, Ext.A4 sale deed dated 4-11-1992 by Smt.Muktha in favour f the plaintiff, Ext.A5 sale deed dated 16-9- 1992 executed in favour of the plaintiff by Sankari, Ext.A6 sale deed dated 22-3-1989 executed by defendant Ponnammal in favour of Radhadevi, Ext.A7 sale deed 22-3-1989 executed by Muthukrishnan in favour of Radhadevi, Ext.A8 photocopy of tax receipt dated 3-4-1993 issued in respect of 26.631 ares of land in Sy. No.12/3 in favour of Ponnammal, Muthukrishnan, Sankaramoni, Balaji, Meena, Sankari and Muthulakhmi, Ext.A9 copy of Caveat Petition No.91/92 filed by the defendant before the Thiruvananthapuram Sub Court in anticipation of a suit to be filed by M/s. Kings Parry on the basis of a document executed by Balaji, Ext.A10 copy of common judgment in O.S.123/94 & O.S. 1176/95 filed by one Sukumaran Nair against Ponnammal,the defendant, Ext.A11 English translation of power of attorney dated 3-3- 1992 executed by Meena in favour of Sankaramoni prepared by Advocate Smt.Meena.A. appointed by the court as Commissioner for doing translation work together with the original which is in Tamil, Ext.A12 original of power of attorney executed by Balaji in favour of Sankaramoni, Ext.A13 certified copy of gift deed dated 14th Chingam 1095 M.E. Executed by Muthukrishnan in favour of his wife RFA. N0. 409/04 -6- Ponnammal, Ext.A14 wedding invitation card pertaining to the wedding of Muktha and Ext.A15 wedding invitation card pertaining to the marriage of Sankari. On the side of the appellant defendant the documentary evidence consisted of Ext.B1 copy of the plaint in OS. 1238/94, a suit filed before the Madurai Sub Court by Muktha arraying the first defendant as the first defendant, Ext.B2 copy of letter dated 9-6-1990 issued by Dhanalekshmi Bank Ltd. to the husband of the first defendant, Ext.B3 copy of another letter dated 19-2-1979 issued by Dhanalekshmi Bank to the first defendant, Ext.B4 letter dated 10-2- 1981 issued by Dhanalekshmi Bank to the first defendant regarding the proposal to shift the area office of the bank to the ground floor of the building constructed by the first defendant upon the suit schedule property, Ext.B5 letter dated 18-8-1972 issued by Dhanalekshmi Bank regarding the bank's offer to take on lease a building constructed upon the plaint schedule property, Ext.B6 copy of the letter dated23-2- 1981 issued by the appellant defendant to the Manager, Dhanalekshmi Bank regarding the lease arrangement in respect of the building constructed on the plaint schedule property Ext.B7 letter dated 29-10- 83 from Dhanalekshmi Bank to the appellant requesting for enhancement of rent, Ext.B8 copy of the letter dated 19-4-1979 from Dhanalekshmi Bank to the first defendant and her mother regarding the rental arrangement in respect of the building, Ext.B9 letter from District Collector, Trivandrum regarding allotment of cement for construction of building, Ext.B10 telegram from Dhanalekshmi Bank to RFA. N0. 409/04 -7- the appellant, Ext.B11 communication from Divisional Engineer, Telephones, Thiruvananthapuram regarding telephone connection applied for by the appellant in the building constructed on the plaint schedule property, Ext.B12 letter dated 18-9-1981 issued from Justice S.Padmanabhan, Madras High Court (uncle of the appellant) to the appellant and her mother inviting them to his Shastiyabdapurthi celebration preceded by Rudra Ekadesi, Ext.B13 letter from T.S. Krishnamoorthi Iyer, Senior Advocate, dated 18-7-1986 (uncle of the first defendant) regarding the proposal to sell a portion of the holding which was forming part of the plaint schedule property, Ext.B14 agreement dated 1-11-1961 executed between M.Sunderesh Iyer, S.Muthukrishnan and Ponnammal (father of the appellant, brother of the appellant and the appellant) incorporating a family arrangement regarding various items of properties including the plaint schedule property, Ext.B15 agreement dated 23-1-1979 executed between the appellant, her mother Muthu Ammal and brother Muthukrishnan incorporating the terms of oral partition between the parties, Ext.B16 letter from the Corporation of Trivandrum to Muthukrishnan directing him to apply in the prescribed format regarding change of ownership of the building situated on the plaint schedule property, Ext.B17 series of receipts issued by Trivandrum Corporation against remittance of property tax for the building situated in the plaint schedule, Ext.B18 series or receipt against payment of property tax issued by the Corporation of Trivandrum, Ext.B19 similar receipts issued by the RFA. N0. 409/04 -8- Trivandrum Corporation regarding remittance of property tax, Ext.B20 receipt against remittance of property tax by the appellant in respect of the building, Ext.B21 receipt against remittance of property tax for the building in question in favour of the appellant, Ext.B22 receipt against remittance of property tax in favour of the appellant, Ext.B23 receipt against remittance of property tax issued in favour olf Sundaresan, Ext.B24 letter from Trivandrum Corporation returning a cheque sent to the Corporation by the appellant, and Ext.B25 death certificate relating to the husband of the appellant issued by the Corporation. 4. The learned Subordinate Judge on an evaluation of the evidence in the light of the pleadings raised by the parties held on issue No.1 that as per the amended plaint, the plaint schedule description is correct. Under issue No.3 the learned Judge held that there is no merit in the contention of the defendants that the executants of Ext.A1 to A5 have no right over the property and accordingly answered that issue in favour of the plaintiff. As regards additional issue No.6 the court found that since the plaintiff is claiming interest only in the plaint schedule property, the present suit is not bad for partial partition. Additional issue No.7 was also answered by the learned Subordinate Judge against the defendant finding that no satisfactory evidence has been brought on record by the defendant. Issue No.2 and additional issue No.5 were considered together by the learned Subordinate Judge and answered those issues completely in RFA. N0. 409/04 -9- favour of the plaintiff and ultimately a preliminary decree for partition was passed directing partition of the properties into 12 equal shares and allotting 9 shares from out of the same to the plaintiff and holding that the defendant is entitled for 3 shares . Being aggrieved, the present appeal has been filed raising various grounds. 5. I have heard the submissions of Sri.G.S.Raghunath, learned counsel for the appellant and Sri.P.B.Krishnan, learned counsel for the first respondent and Sri.C.K.Karunakaran, learned standing counsel for Dhanalekshmi Bank. 6. Mr.Raghunath argued that it is clearly admitted and also proved by Ext.A13 that the plaint schedule property was obtained by Smt.Ponnamma Ammal as per a gift deed executed by her husband. Referring to commentaries on Hindu Law by Mayne Mr.Raghunath would submit that except Sulka (bride money) all other properties of a Hindu woman shall devolve on her heirs as detailed under paragraph 658 in Chapter 20 of of Mayne's work. He would therefore argue that Smt.Ponnamma Ammal, paternal grandmother of first defendant and Muthukrishnan obtained the plaint schedule property under Ext.A13 as her absolute property. The learned counsel argued that such a property obtained by a Hindu woman can never be ancestral property as envisaged by Mithakshara Law. The learned counsel would submit that upon demise of Smt.Ponnamma Ammal the property devolved upon her son Sundaresa Iyer. Reliance was placed on the judgment of the Supreme Court in Shamlal v. Amar Nath, AIR 1970 SC 1643 RFA. N0. 409/04 -10- (paragraph 5 of the judgment) by the learned counsel to argue that when his mother died, Sri.Sundaresha Iyer being her only son inherited the property as his absolute property. For elucidating the concept of ancestral property and coparcenary property Mr.Raghunath relied on Mayne's work itself. Reference was made by the learned counsel to judgment of Privy Council in Sellamani Ammal v. Thillai Amma & another, AIR 1946 PC 185, judgment of the Supreme Court in Madanlal Phulchand Jain v. State of Maharashtra, AIR 1992 SC 1254, Arunachala Mudalian v. Muruganatha Mudaliar, AIR 1953 SC 495 and also on the judgment of the Karnataka High Court in Vijaya Colege Trust v. Kumta Co-op. Arecanut Sales Society Ltd., AIR 1995 Karnataka 35. Coparcenary, the learned counsel argued, is a creature of Hindu Law and can never be created by agreement between persons and in this context learned counsel referred to the judgment of the Supreme Court in Narendraneth v. W.T. Commr., A.P. AIR 1970 SC 14. Since the property is neither ancestral property nor coparcenary property, Muthukrishnan cannot get a right by birth in the property which will remain as the absolute property of Sundaresa Iyer during Sundaresa Iyer's life time. Muthukrishnan cannot also acquire any right by birth on the property. Counsel argued that it had been clearly admitted in paragraph 2 of the plaint that the property was the absolute property of Sundaresa Iyer. If it is so, when Sundaresa Iyer died on 15-6-1977 the property can devolve only upon the legal heirs of Sundaresa Iyer as specified in class-I of Schedule to the Succession RFA. N0. 409/04 -11- Act as provided by Section 8 of the Act. Counsel submitted that Law contemplates only two kinds of properties to which the Hindu Succession Act applies. They are coparcenary property as recognised and provided by section 6 of the Hindu Succession Act and self acquired or separate property coming within the purview of section 8 of the Act. The plaint schedule property cannot be characterised as coparcenary property. Therefore the only provision of law governing succession to the plaint schedule property is section 8 of the Hindu Succession Act. Mr. Raghunath argued that upon demise of Smt.Muthu Ammal, her one-third share devolved equally upon the defendant and her brother Muthukrishnan. Thus the defendant came to have 2/3 + 1/6 = 5/6 shares as against Muthukrishnan's 1/6 share. Counsel conceded that if this court is not inclined to accept Ext.B6 oral partition Sri.Muthukrishnan and defendant will be entitled to ½ shares each in the property and the sale deeds relied on by the plaintiff can confer on the plaintiff at the most ½ share on the plaint schedule property. 7. Mr.Raghunath further argued that the contention that there has been blending of separate property with ancestral property and that the plaint schedule property was also brought into the common hotchpot of the Hindu Joint Family cannot be accepted. Ext.B14 only discloses an arrangement between Sundaresa Iyer and his children. All that was done under Ext.B14 was that Sri.Sundaresha Iyer converted his separate property which belonged absolutely to him as RFA. N0. 409/04 -12- property belonging in common to himself, his son and his daughter. Relying on Mayne's work, Mr.Raghunath argued that blending of separate properties into/with coparcenary properties is to be made in favour of the entire body of coparcenaries. Daughter, the defendant is not a coparcenar. The very junction of the daughter to Ext.B14 will show that the exercise done under Ext.B14 is not blending since blending is an exercise which can be done only by members of coparcenary who blend their separate property with the coparcenary property by throwing the separate properties into the common hotchpot of the joint family. Counsel relied on the judgment of the Supreme Court in Pushpa Devi v. I.T. Commr., New Delhi, AIR 1977 SC 2230 and Mallesappa v. Mallappa, AIR 1961 SC 1268 to expatiate his argument regarding blending. 8. Mr.P.B.Krishnan, learned counsel for respondent argued that Venkita Iyer, father of Sundaresa Iyer who acquired the property originally in the year 1089 was a Tamil Brahmin. According to him, Tamil Brahmins are governed by Mithakshara Law and relied on the judgment in Narayanan Nair v. Taluk Land Board, 1987(1) KLT 760 in that regard. He did not dispute that upon the demise of Smt.Gomathi Ammal, donee under Ext.A13 the property devolved upon Sundaresa Iyer. He would highlight Ext.B14 before me and submit that the document has been attested by two High Court Judges truly learned persons in Hindu Law and members and well wishers of the family. Ext.B14 according to him will reveal that the individual and exclusive RFA. N0. 409/04 -13- right which Sri.Sundaresa Iyer was having over the properties by virtue of his father's demise was blended with the family properties. Ext.B14 is to be read in its entirety. Ext.B14 refers “property belonging to parties 1 to 3” and “joint properties” and agreement to be hold good until a partition by metes and bounds is effected. The reference in page 2 of Ext.B14 to the ancestral properties held by the family according to Mr.Krishnan provides the nucleus for the blending of the property which is described in page No.3 as a common property. Mr.Krishnan also pointed out that as per Ext.B14, a right of maintenance and residence is granted to Smt.Muthu Ammal, wife of Sundaresa Iyer and mother of the other two parties which action is feature reminiscent of an arrangement in a Mithakshara family regarding the family properties. Mr.Krishnan submitted that Ext.B14 is an arrangement brought into existence at the instance of the highly respected legal experts who were attesters to that document for preventing mismanagement of the property by Sri.Sundaresa Iyer. The situation in the family at that time was such that the power of alienation and exclusive right which Sri.Sundaresa Iyer was having over the property had to be taken away and he was persuaded to give up such power. This is why the exclusive and individual right which Sri.Sundaresa Iyer was having over the suit property is voluntarily given up and the plaint schedule properties thrown into the common stock. Any arrangement in the nature of Ext.B14 should be governed by a special equity peculiar to a family arrangement and this court RFA. N0. 409/04 -14- should go to the farthest extent for giving effect to the terms of Ext.B14. Existence of an intention to blend separate properties with the nucleus of ancestral properties is a matter to be inferred and Mr.Krishnan relied on the judgment of the Supreme Court in Venkata Reddy v. Lakshmana, AIR 1963 SC 1601, K.V.Narayanan v. K.V.Ramgamadhan, AIR 1976 SC 1715 and of this court in Meenakshy v. Vellakutty, AIR 1991 Ker. 148 and Chidambara Iyer v. Rama Pattar, 1960 KLT 413. Mr.Krishnan would oppose the submissions of Mr.Raghunath that the very junction of a female member to Ext.B14 shatters the case of blending under Ext.B14. The Hindu Joint Family consists of coparceners as well as female members and for this concept Mr.Krishnan relied on the judgment of the Supreme Court in State of Maharashtra v. Narayana Rao Sham Rao, AIR 1985 SC 716. He argued on the basis of Mulla's commentaries on Hindu Law that the term coparcenary property and Hindu Joint Family properties are synonymous. The defendant is a party to Ext.B14 which is a family arrangement and a beneficiary thereunder. She is not entitled to turn around and repudiate the terms. Ext.B14 will hold the good till such time as division by metes and bounds is effected. 9. Mr.Krishnan would assail Ext.B15. He pointed out that Ext.B15 is not a document by which the properties are partitioned. Ext.B15 only recites an oral partition alleged to have taken place two years earlier, i.e., in the year around 1977-78. Ext.B15 confirms an alleged prior oral partition. Referring to the deposition of DW-1 given RFA. N0. 409/04 -15- at pages 22 and 23 and also the written statement filed by the defendant Mr.Krishnan argued that the recital in Ext.B15 that oral partition took place in 1977-78 stands falsified by the contentions in the written statement and testimony of PW-1. He highlighted that Ext.B15 was not produced along with the written statement. He would also highlight that in Exts. A6 and A7 assignment deeds to which the defendant is a party, there is no reference at all to Ext.B15. He submitted that it was admitted by the defendant that Ext.B15 has not been referred to in any subsequent document at all. Absolutely no explanation has been offered regarding this vital omission. Mr.Krishnan further argued that since Ext.B15 is executed after the commencement of Joint Hindu Family System (Abolition) Act, 1975 on 1-12-1976 the children of Muthukrishnan are also members of the undivided Hindu Family. Ext.B15 executed without the junction of Muthukrishnan's children cannot bind them. Mr.Krishnan also argued that DW-1 had admitted in her evidence that the derivation of title pleaded in Ext.B1, a suit in which title to the ancestral property was traced, was correct. 10. I have considered the rival submissions addressed at the Bar. I have gone through the entire evidence particularly, those items of evidence highlighted before me by the learned counsel in the light of the pleadings raised by the parties. A perusal of Ext.A13 will show that the plaint schedule property was obtained by Smt.Ponnamma Ammal under a gift deed executed by her husband. Having gone RFA. N0. 409/04 -16- through Mayne's Commentaries on Hindu Law, i.e., Chapter 20 dealing with “Sthreedhana” or woman's property I feel that the argument of Mr.Raghunath that the property obtained by Ponnamma Ammal under Ext.A13 is her absolute