IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE A.K.BASHEER & THE HONOURABLE MR. JUSTICE P.S.GOPINATHAN THURSDAY, THE 14TH OCTOBER 2010 / 22ND ASWINA 1932 AS.No. 34 of 1997(C) -------------------- OS.281/1993 OF SUBORDINATE JUDGE'S COURT,THALASSERY .................... APPELLANTS/DEFENDANTS 1 & 2: ---------------------------- 1. P.D.NANU BALAN, HOUSE NO.17/168, BANK ROAD, CALICUT. (DIED) 2. P.D. CHANDRASEKHARAN, SAHI VIHAR, GANDHI NAGAR COLONY, CHUNKAM, WEST HILL, CALICUT. (DIED) SUPPLEMENTAL APPELLANTS 3 TO 9 IMPLEADED: SUPPL.3. SUNANDA, W/O.P.D.NANU BALAN, NANDANAM 3/304A KARATT ROAD, WEST NADAKKAVU, CALICUT – 673 011. SUPPL.4. REMADEVI, D/O.LATE NANU BALAN, DO. DO. SUPPL.5. RAVIKUMAR, S/O. DO. DO. SUPPL.6. ROHIL DAS, S/O. DO. DO. SUPPL.7. RATNA RAJ, S/O. DO. DO. SUPPL.8. VALSA RAJ, S/O. DO. DO. SUPPL.9. RADHAKRISHNAN, S/O. DO. DO. SUPPLEMENTAL APPELLANTS 3 TO 9 IMPLEADED AS THE LEGAL REPRESENTATIVES OF THE DECEASED FIRST APPELLANT VIDE ORDER DATED 27/10/2006 ON IA.3778/2006. SUPPL. 10. SUSHEELA CHANDRAN, W/O.LATE P.D.CHANDRASEKHARAN, B-4 SASI VIHAR, GANDHI NAGAR COLONY, WEST HILL, CALICUT – 5. SUPPL.11. RAJANI, DO. DO. DO. SUPPL.12. ROMILA, DO. DO. SUPPL.13. RAJITHA, DO. DO. SUPPL.14. ANILKUMAR, S/O. DO. DO. SUPPL.15. ROOPA, D/O. DO. DO. SUPPLEMENTAL APPELLANS 1O TO 15 IMPLEADED AS THE LEGAL REPRESENTATIVES OF THE DECEAED SECOND APPELLANT VIDE ORDER DATED 27/10/2006 ON IA.3787/2006. BY ADV. SRI.R.PARTHASARATHY RESPONDENTS/PLAINTIFFS & DEFENDANTS 3 TO 6: ------------------------------------------ 1. KINATHI LAKSHMANAN, KINATHI HOUSE, PALAPARAMBA, KUTHUPARAMBA. 2. K.P. JAYALAKSHMI, TOURISM RESORTS PRIVATE LIMITED, OOTACAMUND, TAMIL NADU STATE. 3. K.P. RAJALAKSHMI, ASHIRWAD, SREEKRISHNAN TEMPLE LANE, AYYANTHOLE, THRISSUR. 4. KISHORE, TOURISM RESORTS PVT. LTD., OOTACAMUND, TAMIL NADU STATE. 5. SARVOTHAMAN, DO. DO. 6. RANJINI, ASHIRWAD, SREEKRISHNA TEMPLE LANE, AYYANTHOLE, THRISSUR. 7. SHALINI, DO. DO. 8. K.P. RAMADAS, ARATHI, MANIANGALAM, ERNAKULAM NORTH. 9. K.P.KRISHNADAS, NADUVIL HOUSE, A.K.XAVIER ROAD, COCHIN-5. 10. C. JANAKI, NEAR KINATHI HOUSE, PALAPARAMBA, KUTHUPARAMBA. 11. SAVITHRI VASUDEVAN, TKS 125 – F, FEBINA, NEAR THALIDAVU, KANNUR. Suppl.12. THATTANDAVIDA PUTHIYA VEETTIL KASIM, S/O.MAMMU HAJI, AGED 43 YEARS, RESIDING AT T.P.HOUSE, KOTTAYAM AMSOM, KINAVAKKAL DESOM, THALASSERY TALUK, KANNUR DISTRICT , PIN 670 643. SUPPLEMENTAL RESPONDENT NO.12 IMPLEADED VIDE ORDER DATED 27/10/2006 on IA.NO. 3431/2006. ADV. SRI.T.A.RAMADASAN SRI.K.V.SOHAN SMT.SREEJA SOHAN.K. DR.K.P.SATHEESAN FOR R3,6 & 7 SRI.K.K.GOPINATHAN NAIR FOR R3,6 & 7 SRI.M.R.JAYAPRASAD FOR R3,6 & 7 SRI.P.MOHANDAS (ERNAKULAM) FOR R3,6 & 7 SRI.MATHEW SUNNY FOR R3,6 & 7 THIS APPEAL SUITS HAVING BEEN HEARD ON 7/7/2009 AND 16/7/2010, ALONG WITH AS NO. 130 OF 1997, THE COURT ON 14/10/2010 DELIVERED THE FOLLOWING: A.K. Basheer & P.S.Gopinathan, JJ. - - - - - - - - - - - - - - - - - - - - - - - - - - - - A.S.Nos.34 & 130 of 1997 - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 14th day of October, 2010 Judgment Basheer, J: These two appeals are directed against the preliminary decree and judgment in a suit for partition. While A.S.No.34 of 1997 is at the instance of defendant Nos.1 and 2, the other appeal is by defendant No.6. The court below decreed the suit as prayed for directing partition of the plaint schedule property and allotment of 7 out of 13 shares to the plaintiffs and the remaining 6 shares to the defendants. 2. The crucial issue that came up for consideration in the suit was whether the plaint schedule property was thavazhi property as contended by the plaintiffs. The court below answered the above question in the affirmative and held that plaintiffs were entitled to 7 out of 13 shares. 3. The case of the plaintiffs may be briefly noticed: A.S.Nos.34 & 170/1997. : 2 : 4. The plaint schedule property with an old residential building, well etc. originally belonged to Perumpada Achu and his brother Kanaran. They assigned their right in the property in favour of Perumpada Chappila, Manni, Matha and Mathu through an assignment deed dated March 28, 1912. On the same day, the assignees (Smt.Chappila and others) mortgaged the said property to Perumpada Lakshmi and her three children viz., Suseela, Nanu (defendant No.1) and Vasu and handed over possession of the same to these mortgagees. The mortgage was for a period of 6 years and the mortgagees were permitted to effect improvements and take income therefrom. The mortgage was never redeemed by the mortgagors and therefore the mortgagees became absolute owners of the property. 5. It was contended by the plaintiffs that the A.S.Nos.34 & 170/1997. : 3 : plaint schedule property was enjoyed as a Marumakkathayam tharwad property eversince its acquisition. Lakshmi and her 5 children, including Bhaskaran and Chandrasekharan who were born after execution of the mortgage deed constituted by thavazhy tharwad. Smt.Lakshmi passed away in or about 1925. Suseela the only daughter of Lakshmi died in 1980. Plaintiffs and defendant Nos.3 and 4 are the children and grandchildren of late Suseela. Bharathan, another son of Suseela died in the year 1981. Defendant No.5 is the widow of deceased Bharathan. Thus the plaintiffs and defendants 3 to 5 are the members of thavazhy of late Suseela, daughter of Perumpada Lakshmi. As mentioned earlier, defendant Nos.1 and 2 are two of the four sons of Perumpada Lakshmi. Of the remaining sons, Vasudevan died in 1966. Defendant No.6 is his widow. A.S.Nos.34 & 170/1997. : 4 : The other son Bhaskaran died a bachelor in 1989. 6. According to the plaintiffs, defendant No.1 the eldest male member of the tharwad had been managing the property after the death of Lakshmi. There are three residential buildings in the property including the old tharwad house. The tharwad building was let out on rent to the Kerala State Electricity Board for a few years. Later, the Board vacated the building since it became dilapidated due to disrepair. Defendant No.1 became unable to look after and maintain the plaint schedule property due to old age. Further, he refused to share the income from the property to the thavazhi members. 7. Plaintiffs contended that the property was liable to be partitioned into 13 shares and each one of them was entitled to one share each (7/13). 8. Claim for partition was disputed and resisted A.S.Nos.34 & 170/1997. : 5 : only by defendants 1, 2 and 6. Defendant No.1 in his written statement contended that the plaint schedule property was never treated or enjoyed as a thavazhi property as alleged by the plaintiffs. The mortgage deed of the year 1912 (Ext.A1) was only a “simple mortgage” and possession was never handed over to the mortgagees. According to this defendant, the mortgage property was outstanding in the possession of a tenant on the strength of a registered marupat. Later, the tenancy right was surrendered by the tenant to the jenmi and the jenmom right which was subsequently sold in a Court auction was purchased by one Kunjiraman with the funds of the Dr.Kumaran, the father of defendant No.1. Later, Dr.Kumaran got the jenmom right of the property assigned in his favour from Kunjiraman on the strength of Ext.B2 assignment deed of the year 1923. Still later, in 1942 Dr.Kumaran A.S.Nos.34 & 170/1997. : 6 : executed Ext.B3 jenmom assignment deed in favour of his three male children viz., Nanu Balan (defendant No.1), Vasudevan and Chandrasekharan. Defendant No.1 asserted that there was no mention of thavazhi in any of the documents referred to above. He claimed 1/3rd share in the property. He conceded that defendant No.6 being the widow of his late brother Vasudevan, would be entitled to get 1/6th share and the remaining 1/3rd would go to defendant No.2. In short, he contended that the plaintiffs and defendants other than defendant Nos.2 and 6 had no right in the plaint schedule property. Alternatively it was also prayed by him that if it was found that the right under the mortgage deed of 1912 was still subsisting, only those persons mentioned in the said document would be entitled to claim any share. Suseela, the daughter of Lakshmi would be entitled to get 1/4th share which will A.S.Nos.34 & 170/1997. : 7 : devolve on her six children. He further contended that he would be entitled to get 1/5th share out of his mother's share in addition to 1/4th share as a co-owner. 9. The other contention raised by defendant No.1 was that the existing residential building in the plaint schedule building was constructed by him with his own funds and there was a specific understanding that it would be reserved in his favour in the event of partition. He further contended that no income had been obtained by him from the property at any point of time. 10. Defendant No.2 reiterated whatever had been stated by defendant No.1 in his written statement. But in his additional written statement it was contended by defendant No.2 that Section 4A of the Kerala Land Reforms Act had no application. Right of redemption was never exercised within the period of limitation or A.S.Nos.34 & 170/1997. : 8 : even thereafter. The contention that the property had vested absolutely on the strength of continued and uninterrupted possession was also disputed. It was further contended that the Court had no jurisdiction to decide the tenancy right claimed on the strength of Section 4A, in view of the bar under Section 125 of the Act. 11. Defendant No.6 (widow of Vasudevan) in her written statement supported the case of defendant Nos.1 and 2. and contended that the property was never enjoyed as a Marumakkathayam thavazy property. The property was acquired with the funds of Dr.Kumaran, to be enjoyed by his wife and children. She further contended that Lakshmi's 1/4th share in the property will alone assume the character of thavazhi, and Bhaskaran and Chandrasekharan, the two sons of Lakshmi, would get their respective shares only as A.S.Nos.34 & 170/1997. : 9 : members of the thavazhy of Lakshmi in respect of her 1/4th share. In short, defendant No.6 contended that if at all there could be a claim by the plaintiffs for partition of the property as thavazhy, it had to be limited to 1/4th share in that property. She claimed 12/44 share in the property which accrued to her late husband. 12. Defendant Nos.3 and 4, the grandchildren of Suseela and the only daughter of Lakshmi supported partition. Defendant No.5, the daughter in law of Suseela remained absent and she was set ex parte, The trial court framed the following issues: “1. Whether the plaint schedule property is a tavazhy property and whether the plaintiffs have share in it? 2. What are the correct shares in case of partition? A.S.Nos.34 & 170/1997. : 10 : 3. What are the reservations and equities? 4. Who is liable to pay share of profit and what is the quantum? Addl.5. Whether the plaintiffs are deemed tenants?” 13. Plaintiff No.1 was examined as Pw.1 and Exts.A1 to A4 were marked on the side of the plaintiffs. Defendant No.2 got himself examined as DW.1 and Exts.B1 to B3 were marked on the side of the defendants. The report and account submitted by the Advocate Commissioner were marked as Exts.C1 and C2. 14. As has been mentioned already, the court below repelled the contentions raised by the contesting defendants and held that the plaint schedule property was liable to be partitioned as claimed by the plaintiffs. The court below held that considering the nature of A.S.Nos.34 & 170/1997. : 11 : acquisition of the property and its enjoyment thereafter, it was liable to be partitioned among the plaintiffs and defendants, they being “successors in interest” of the thavazhy property. Plaintiffs and defendants 3 to 5 who are the members of thavazhy of late Suseela, the only daughter of Lakshmi, would be entitled to get 1/13 share each in the property, it was held. 15. It is contended by the appellants, who alone resisted partition, that the findings entered by the court below are totally illegal and erroneous. According to the appellants, the property was never acquired with an intention to be enjoyed as a thavazhi property and in fact it had never been enjoyed as a thavazhy property also. It is pointed out by learned counsel for the appellants that the property was mortgaged in favour of Lakshmi and her three children viz., Suseela, Nanu Balan (defendant No.1) and A.S.Nos.34 & 170/1997. : 12 : Vasudevan in the year 1912. If in fact the acquisition was intended to be for the benefit of thavazhy headed by Suseela, such an intention would have been made explicit in the document itself. Admittedly Suseela had 5 children. But the other two children viz., Bhaskaran and Chandrsekharan were not included in the mortgage deed. It is further contended by the learned counsel that the mortgaged property was outstanding in the possession of a tenant at the time of mortgage. The said tenant (Sri.Puthiyapurayil Aboobacker) had later surrendered his tenancy right to the Jenmi. The jenmom right was sold in court auction in execution of a decree in SC.No.1492/1911. In the court auction the jenmom right was purchased by one Kunjiraman with the funds made available by Dr.Kumaran, who later had assigned the jenmom right over the property in favour of his three sons viz., defendant No.1, A.S.Nos.34 & 170/1997. : 13 : Vasudevan and Chandrasekharan. Thus according to the learned counsel, the property exclusively belonged to defendant Nos.1, 2 and 6. At any rate, it can never be said that the property was being enjoyed as a thavazhi property. 16. The main plank of the above argument is that Lakshmi and her three children mentioned in Ext.A1 mortgage deed had never got possession of the property pursuant to the mortgage. According to the contesting defendants, the mortgaged property was outstanding in the possession of a tenant at the time of the mortgage. But a perusal of Ext.A1 mortgage deed will unambiguously show that the said contention is totally baseless and incorrect. It is seen recited in the said document, that the entire property including the building and other structures therein had been put in the possession of the mortgagees on the date of A.S.Nos.34 & 170/1997. : 14 : execution of the document itself. Therefore the contention that the property was outstanding in the possession of a tenant falls to the ground. 17. It is true that the document recites that one Aboobacker had been given the right to take usufructs (melpattom) from the property. It is seen further recited in the document that the melpattom right was liable to be terminated. For this purpose a notice signed by the mortgagors to be issued to the melpattomdar was also handed over to the mortgagees. The recitals in the above document will show that Aboobacker had no tenancy right in the property as alleged by the contesting defendants. More importantly, the contesting defendants had not adduced any evidence to show that the so called tenant, if any, had surrendered his tenancy right to the landlord. There is not even any semblance of evidence to substantiate the above A.S.Nos.34 & 170/1997. : 15 : contention. The appellants had not even pleaded as to when the tenant had surrendered his right, leave alone producing any document of surrender. Further, Exts.B2 and B3 on which heavy reliance had been placed by the appellants, will not show that Dr.Kumaran had obtained any possessory right over the property. It is evident from the pleadings of the appellant that Dr.Kumaran had purchased only jenmom right from one Kunjiraman on the strength of Ext.B2 document. This is explicit from the said document itself. Ext.B3 will also show that Dr.Kumaran had assigned only jenmom right over the property in favour of his three sons including defendant No.1. In short, there is nothing on record to show that the mortgagees mentioned in Ext.A1 (Lakshmi and her three children) had never been put in possession of the property pursuant to the creation of the mortgage. As mentioned A.S.Nos.34 & 170/1997. : 16 : earlier, Ext.A1 clearly established otherwise. 18. In this context it may be noticed that the contention of defendant No.1 is that he had constructed the residential building in the property using his own funds. This necesssarily means that he along with his mother, sister (Suseela) and others had always been in possession of the property. In the absence of any specific pleading as to when he and his brothers got exclusive possession of the property from the jenmi/owner after the so called surrender by the tenant, it can never be said that the mortgagees had not got possession of the property pursuant to Ext.A1. 19. The other contention raised by the appellants is that the acquisition of the property was not for the benefit of the thavazhi at all. In support of the above contention it was pointed out that all the children of Lakshmi were not included in Ext.A1 A.S.Nos.34 & 170/1997. : 17 : mortgage deed. But it is the admitted position that in the year 1912 when Ext.A1 mortgage deed was executed, Lakshmi had only three children viz., Suseela, Nanu (defendant No.1) and Vasudevan. The other two sons viz., Bhaskaran and Chandrasekharan were born subsequently. Still further, the recitals in Ext.A1 will show that the mortgage money had been contributed by Dr.Kumaran, the husband of Lakshmi, and father of the other mortgagees. There is specific reference to the payment made by Dr.Kumaran for the purpose of acquisition of this property to be enjoyed by his wife and then available children. The amount contributed by Dr.Kumaran is referred to in the document as “derived out of puthravakasam fund of Lakshmi and children”. That plaintiffs and defendants 3 to 5 are the members of the thavazhi of Suseela, the only daughter of Lakshmi was not at all in dispute. A.S.Nos.34 & 170/1997. : 18 : 20. The contesting defendants in their respective written statements have practically conceded that Suseela had at least mortgagee's right in the plaint schedule property. Their only contention was that the children and grandchildren of Suseela could not have claimed share in the plaint schedule property as though it was a thavazhy property. But going by the materials available on record, we have no hesitation to hold that the property was acquired by Dr.Kumaran and Lakshmi to be enjoyed by her children as a thavazhy property. We have no hesitation to hold that the contentions raised by the contesting defendants to deny the legitimate right of the lenial descendants of Suseela are totally without any merit or substance. 21. The court below had also referred to the oral testimony of defendant No.2 in the case, who was examined as DW.1. To a question in the course of A.S.Nos.34 & 170/1997. : 19 : cross examination, defendant No.2 had admitted that the Melpattomdar (Aboobacker) mentioned in Ext.A1 document had been given only the right to take usufructs. The court below had also noticed that defendant No.1 had never bothered to step into the witness box. It may be remembered that he was the only surviving beneficiary (mortgagee) available at the time of trial of the suit. 22. The court below had also referred to the order passed on additional issue No.5 relating to deemed tenancy. After considering the said issue the court below had held that the question of tenancy was not liable to be referred to the Land Tribunal. The said finding was never challenged by any of the parties at any point of time. The appellants have also not questioned the validity or correctness of the said finding in these two appeals.. Further it is on record A.S.Nos.34 & 170/1997. : 20 : that Dr.Kumaran had purchased the jenmom right from the Jenmi. Though in Ext.B3 Dr.Kumaran had referred to the names of only three of his male children, we are of the considered opinion that the jenmom right obtained by the Dr.Kumaran shall enure to the benefit of all his children including Suseela, the only female child. 23. The other contention raised by defendant No.1 was that he had constructed the residential building in the property with his own funds and that too with a specific understanding that it would be allotted to his share in the event of partition. But defendant No.1 did not adduce any evidence in support of the above contention. In that view of the matter, the court below had rightly rejected the above claim made by defendant No.1. 24. Yet another contention raised by defendant A.S.Nos.34 & 170/1997. : 21 : No.1 was that he had not been getting any income from the plaint schedule property to be shared among the other members. But this contention was repelled. Referring to Exts.C1 and C2 report and accounts submitted by the Advocate Commissioner, the court below directed that the quantum of share of profits of the parties can be decided in the final decree proceedings. Having considered the materials available on record, we are satisfied that the finding entered by the court below on issue No.4 does not call for any interference. 25. While dealing with issue No.2 the court below has, in our view, correctly, held that the plaintiffs are entitled to 7/13 shares (1/13 each). Similarly defendant No.1 to 6 are found entitled to get 1/13 shares each. Since it has already been found that the plaint schedule property is to be divided as A.S.Nos.34 & 170/1997. : 22 : thavazhy property among the thavazhi members, the finding entered by the court below on issue No.2 also does not call for any interference. 26. For the foregoing reasons it is held that the conclusions arrived at by the court below are totally legal and valid and eminently justified, in the facts and circumstances of the case. The decree and judgment are upheld. 27. The appeals are dismissed. In the facts and circumstances of the case, the parties shall suffer their respective costs. A.K. Basheer Judge. P.S. Gopinathan Judge. an.