IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.R.RAMAN & THE HONOURABLE MR. JUSTICE P.BHAVADASAN MONDAY, THE 25TH MAY 2009 / 4TH JYAISHTA 1931 AS.No. 363 of 1994(B) --------------------- OS.57/1991 OF PRL.SUB COURT, THALASSERY APPELLANTS/PLAINTIFFS: ---------------------------- 1. V.P. RUKHIYA, D/O. ABDU RAHIMAN, RESIDING AT RUKHIYA VILLA, TYHALASSERY AMSOM, VADIKKAKAM DESOM, NEAR CIVIL COURT, THALASSERY, DISTRICT. KANNUR. 2. V.P. NAZEERA, D/O.. V.P. RUKHIYA, (MINOR AGED 17 YEARS) DO.DO. 3. V.P. ASIF, S/O. RUKHIYA, (MINOR, AGED 15 YEARS), DO.DO. 4. V.P. NIZHAD, (MINOR AGED 10 YEARS), DO.DO. (MINOR APPELLANTS 21 TO 4 BY GUARDIAN AND MOTHER 1ST APPELLANT V.P. RUKHIYA.) BY ADVS. M/S. C.P. KUNHIKANNAN, KHALID, N.GOPINATHA PANICKER, R.O.MUHAMED SHEMEEM & T.P.SAJID RESPONDENTS/DEFENDANTS: 1. V.P.. BEEBI, BEEBI COTTAGE, THIRUVANGAD, TELLICHERRY. 2. V.P. MARIYU, JASMINE VILLA QUARTERS, CHETTAMCOON, TELLICHERRY. (DIED) 3. V.P. MAMMOO, AYYANOTH HOUSE, TELLICHERRY. 4. V.P. NAFEESSU, RAHATH MANZIL, P.O. MARANCHERI, VIA. PONNANI. 5. V.P.K. MAYAN, TEACHER, GOVT. HIGH SCHOOL, MANNA, BALIAPATTAM. A.S. 363/1994 2 6. V.P. AYSHA, LOVE DALE, NEAR I.T.I., NORTH BEYPORE, CALICUT. 7. V.P. AYSHABI, V.P. HOUSE, NEAR RAMAVILAS L.P. SCHOOL, MANNA, BALIAPATTAM. 8. V.P. ADBULKHADER, POST BOX NO. 1486, JADDAH (21434), SAUDI ARABIA. 9. V.P. KHADEEJA, POSTAL STORES DEPOT, FEROKE, CALICUT. 10. V.P. ABDULLA, POST BOX NO. 63, DUBAI CUSTOMS, DUBAI - U.A.E. 11. V.P. AHAMMED ASHRAF, INSPECTOR OF POST OFFICE, POST NEELESHWAR, PIN- 671 314. 12. V.P. HASHIM, POST BOX NO. 55321, DUBAI, U.A.E. 13. V.P.. HARIS, POST BOX NO. 63, DUBAI CUSTOMS, DUBAI - U.A.E. 14. V.P. FATHIMA, V.P. HOUSE, NEAR RAMAVILAS L.P. SCHOOL, MANNA BALIAPATTAM. 15. V.P. MAHAMOOD, ROHIN MECHINERY & EQUIPMENT, P.B. NO. 5229, DUBAI - U.A.E. 16. V.P. SAFEERA, V.P. HOUSE, NEAR RAMAVILAS L.P. SCHOOL, MANNA, BALIAPATTAM. 17. V.P. RAHEES, CANONE TRADING CORPORATION, P.B. NO. 1717, MUTTRAH, 114, SULTANATE OF OMAN. 18. V.P. SHAJIR (MINOR), BEEBI COTTAGE, THIRUVANGAD, TELLICHERRY. 19. V.P. NISHA (MINOR), C/O. V.P. KHADEEJA, POSTAL STORES, DEPOT, FEROKE, CALICUT. 20. V.P. ASHLI, (MINOR), DO. DO.DO 21. V.P. HARIS (MINOR), DO. DO.DO 22. V.P. SHAKEER, C/O. V.P. NAFEESSU, RAHATH MANZIL, P.O. MARANCHERI, VIA PONNANI. 23. V.P. SHAKKEELA, DO.DO. A.S. 363/1994 3 24. V.P. SAREENA, LOVE DALE, NEAR I.T.I., NORTH BEYPORE, CALICUT. 25. V.P. SAKEENA, DO.DO. 26. V.P. SAJITHA, DO. DO.. 27. V.P. JASEEM (MINOR), C/O. V.P. SAREENA, DO.DO. 28. V.P. JAMSHID (MINOR) DO. DO. 29. V.P. RASHIDA, (MINOR) DO.DO. 30. V.P. THABSHIN, (MINOR) DO.DO. 31. V.P. RINU, (MINOR) C/O. V.P. SAJITHA, DO.DO. 32. NAMSHID, (MINOR) C/O.. V.P. SHAKEELA, RAHAT MANZIL, P.O. MARANCHERI, VIA PONNANI. MINOR R18 BY GUARDIAN R7 AYISHABI. MINOR R19 TO 21 BY GUARDIAN, R9 KHADEEJA. MINOR R27 & 28 BY GUARDIAN R24 SAREENA. MINOR R 29 & 30 BY GUARDIAN R25 SAKEENA. MINOR R31 BY GUARDIAN R26 SAJITHA. MINOR R32 BY GUARDIAN R23 SHAKEELA. (IT IS RECORDED THAT 2ND RESPONDENT DIED AND HER LEGAL REPRESENTATIVES ARE RESPONDENTS 1,3,4,5 AND 6 ALREADY IN THE PARTY ARRAY, AS PER ORDER DATED 11.1.2001 VIDE MEMO CF NO. 14438/2000.) R1,R2,R5 & R6 BY ADVS. M/S. M.RAMESH CHANDER & M.S.MANIKANDAN R3 BY ADVS. M/S. T.A.RAMADASAN T.KRISHNAN UNNI, SENIOR ADVOCATE & C.M.MOHAMMED IQUABAL R4, R22 & R23 BY ADV. SRI.H.SIVARAMAN THIS APPEAL SUIT HAVING BEEN FINALLY HEARD ON 25/05/2009, ALONG WITH F.A.O. 220/2003, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: THOTTATHIL B. RADHAKRISHNAN & S.S.SATHEESACHANDRAN, JJ. --------------------------- A.S. No. 363 OF 1994 -------------------------- Dated this the 15th day of June, 2010 J U D G M E N T The plaintiffs in a suit for partition are the appellants. OS 9/46 was filed before the Sub Court, Thalassery by Beechumma, her younger sister Athumma and the children of Beechumma which included Beebiumma, and her younger siblings who were minors. Answering the suit for partition, it was held on agreement among parties under issue No.5 that properties of the Tharavad should be divided into 53 shares in all. It was thereby declared that the shares will be accordingly 53 in all and each member shall be entitled to get one share, the allotment being to individual members or groups as decided by the parties themselves. The properties that were sought to be partitioned were of a joint family governed by the provisions of the Mappila Marumakkathayam Act 17 of 1939. In terms of that legislation, individual members had the right to claim partition. The Thavazhi also had the right to claim partition. In case of division, either on a request for individual partition or for Thavazhi partition, the shares are determined as if the division is made on per capita basis. This is the effect of Section 17 of that Act. Once succession AS No.363/94 2 to property is obtained by an individual member on partition, subsequent devolution of the property is as governed by the Islamic law of Inherence, going by Section 18 of the Act. 2. On the basis of Ext.B1 preliminary judgment, Ext.B2 decree was passed. In doing so, it was directed that the properties available for partition except the Tharavad house and the site upper tenant thereto, that are necessary for convenient enjoyment of that Tharavad house, shall be divided by metes and bounds into 53 shares and each of the plaintiffs and the defendants 1 to 45 be entitled to get one share each, the allotment to be to individual members or group as decided by the parties themselves. This declaration of the shares by the preliminary decree, (Ext.B2), of which Ext.P1 is a judgment, shows that the court never proceeded to make any allotment in favour of any particular group or to make allotment of shares in groups. The quality of the allotment discernible from Exts.B1 and B2 is pure and simple, and allotment on per capita basis to the individual sharers. The court left it to the parties to decide as to whether they would take it for enjoyment collectively or individually. Following Ext.B2 preliminary decree, AS No.363/94 3 Ext.A2 final decree was passed. We may note at this point of time that the plaintiffs did not constitute a natural group in as much as the second plaintiff was the sister of the first plaintiff and the other plaintiffs were the children of the first plaintiff. Though there were other children for the common ancestors of plaintiffs 1 and 2, they were not included as plaintiffs and no claim was made as if it were on behalf of a group, say a Thavazhi. With this, when the matter reached the final decree stage, it appears that the second plaintiff who is the sister of the first plaintiff was taken off from being given an allotment along with the other plaintiffs. Accordingly plaintiffs No.1 and her children, plaintiffs No.3 onwards were jointly allotted share No.1 as per Ext.A4 share list in that suit. Resultantly Ext. A2 final decree was passed. 3. From the aforesaid materials it is crystal clear that the plaintiffs in Ext.A2 suit did not sue for any allotment in favour of Thavazhi. They were also not treated as a natural group for the purpose of allotment. The court specifically proceeded to make per capita division and allotment, leaving it to the sharers to enjoy the shares individually or in groups. AS No.363/94 4 4. With the aforesaid, what comes up before us is an appeal by the plaintiffs in a later suit, OS No.57 of 1991. They are the one among the daughters of Beevi, one of the daughters of Beechumma referred to above, and her children. The case projected by them is that the allotment of share No.1 in Ext.A4 share list following Ext.A2 decree made in favour of Beechumma and her children including Beevi in Ext.A2 suit was an allotment in favour of the Thavazhi consisting of Beechumma, Beevi and other children of Beechumma. Beevi is arrayed as first defendant in the suit. The contest comes from the other children of Beechumma who take the stand that the allotment in favour of Beechumma and her children in Ext.A2 decree was per capita, and not an allotment in favour of Thavazhi. 5. Though we may take it that it is always not necessary that a group should be a natural group for being identified as a Thavazhi as already noted above in Ext.A2 suit, the court never made any allotment as if it is in favour of any Thavazhi but left it to the parties to take it as in a group or on individual basis. Therefore, the question would be as to how the parties treated the allotment made in Ext.A2 suit in favour of Beechumma and her children. Did Beechumma and AS No.363/94 5 her children, the allottees of share No.1 under Ext.A4 list in Ext.A2 suit, treat that allotment as inuring to any particular group, which could be treated as a Thavazhi? The question is as to how the allottees, namely Beechumma and her children, treated the property. In considering this question, Ext.B4 and Ext.B5 stand to stare at the plaintiffs. The allottees in Ext.A2 suit, namely Beechumma and her children, going by Ext.B4 and Ext.B5 had entered into an earlier oral partition and thereafter reduced that partition into writing and had also transacted in relation to the property as if they belonged in ownership and not as Thavazhi property. With this significant material in favour of the contesting defendants, the plaintiffs cannot find their way to sustain the case that the suit property is Thavazhi property allotted to Beechumma and her children under Ext.A2 decree, or atleast, that they treated it so thereafter. 6. In the aforesaid premise, we do not find much substance in the argument on behalf of the appellants that the property in question has to be deemed to be thavazhi property. The decisions of this Court in Mary V. Bhasura Devi (1967 KLT 430 (FB) and Seetha v. Krishnan (1975 KLT 156(FB) as also the decision in Nullikkodan v. AS No.363/94 6 Ayisumma (2002 (3) KLT 883) cited at the Bar do not, in any manner, aid a conclusion in favour of the appellants. For the aforesaid reasons, we do not find any legal or factual error in the judgment and decree of the court below. In the result, this appeal fails and the same is dismissed. THOTTATHIL B. RADHAKRISHNAN, (JUDGE) S.S.SATHEESACHANDRAN, (JUDGE) vps AS No.363/94 7 THOTTATHIL B. RADHAKRISHNAN & S.S.SATHEESACHANDRAN, JJ. --------------------------- A.S. No. 363 OF 1994 -------------------------- J U D G M E N T Dated 15th day of June, 2010 AS No.363/94 8