IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.RAMKUMAR THURSDAY, THE 6TH NOVEMBER 2008 / 15TH KARTHIKA 1930 RSA.No. 522 of 2008() --------------------- AS.68/2007 of ADDL. DISTRICT COURT, PARAVUR OS.609/2003 of MUNSIFF COURT, PARAVUR .................... APPELLANT/APPELLANT/PLAINTIFF ------------------------------------------------------------- CHENDAMARAKSHAN, AGED 52, S/O DHAMODARAN PILLAI, VARAPUZHA VEEDU, KIZHAKKEPRAM MURI, KOTTUVALLY VILLAGE. BY ADV. SRI.P.N.RAMAKRISHNAN NAIR SRI.P.VISWANATHAN RESPONDENT(S): RESPONDENTS/DEFENDANTS ------------------------------------------------------------------------------- 1. PEETHAMBARAN, AGED ABOUT 50, S/O DHAMODARAN PILLAI, VARAPUZHA VEEDU, KIZHAKKEPRAM MURI, KOTTUVALLY VILLAGE. 2. LALITHAKUMARI, AGED ABOUT 60, W/O VENUGOPAL, KAMALADHALATHIL HOUSE, KIZHAKKEPRAM MURI, KOTTUVALLY VILLAGE. 3. AYYAPPAN PILLAI, AGED ABOUT 59, S/O DAMODHARAN PILLAI, VARAPUZHA HOUSE, KIZHAKKEPRAM MURI, KOTTUVALLY VILLAGE. 4. SUDHAKARAN PILLAI, AGED ABOUT 57, S/O DHAMODARAN PILLAI, VARAPUZHA HOUSE, KIZHAKKEPRAM MURI, KOTTUVALLY VILLAGE. 5. SARALAKUMARI, AGED ABOUT 49, W/O NARAYANAN NAIR, CHATHANKALA HOUSE, MANJUMMEL KARA, ELOOR VILLAGE. 2 6. APPUKKUTTAN, AGED ABOUT 47, S/O DHAMODARAN PILLAI, VARAPUZHA HOUSE, KIZHAKKEPRAM KARA, KOTTUVALY VILLAGE. 7. VISWAMBARAN, AGED ABOUT 45, S/O DHAMODARAN PILLAI, VARAPUZHA HOUSE, KIZHAKKEPRAM KARA, KOTTUVALY VILLAGE. 8. GOPALAKRISHNA PILLAI, AGED ABOUT 63, S/O NEELAKANTA PILLAI, KOZHIPARAMBIL HOUSE, ELAMKUNNAPUZHA VILLAGE. 9. SARIGA DEVI, AGED ABOUT 33, D/O PADHAMAKUMARI, KOZHIPARAMBIL HOUSE, ELAMKUNNAPUZHA VILLAGE. THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 06/11/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: V. RAMKUMAR, J. = = = = = = = = = = = = = R.S.A.No. 522 of 2008 = = = = = = = = = = = = = = Dated this the 6th day of November, 2008 JUDGMENT 1. The plaintiff in O.S.No.609 of 2003 on the file of the Munsiff's Court, North Paravur is the appellant in this second appeal. The said suit was one for partition and separate possession of the plaintiff's 1/9th share of the plaint schedule property which is 50 cents of land with a residential building situated at Kottuvally. 2. The following facts are either proved or admitted:- The parties are marumakkathayees. The common ancestress was one Nanikutty amma who had two sons by name Sankara Pillai and Thankappan Pillai and a daughter by name Rajamma. Rajamma had 11 children of whom plaintiff and defendants 1 to 8 are the survivors. The name of their Tharavad is Varapuzha Tharavad. In a Tharavad partition in the year 1950 evidenced by Ext.A1 partition deed dated 14.7.1950 an extent of 1.69 cents comprised in the C R.S.A.No.522 of 2008 2 Schedule thereof was alloted to Nanikutty Amma, her only daughter Rajamma and three children of Rajamma then alive namely defendants 2,3 and 4. Subsequently, as per Ext.B1 partition deed dated 24.6.1977, the alottees under the C schedule to Ext.A1 partition deed divided the properties allotting 9 cents of land to the present plaintiff under the G schedule thereof and the 50 cents of lands to defendants 1, 6,8 and 7 under the A Schedule thereto with a recital that on the death of Rajamma the property given under A schedule thereunder should go by survivorship to defendants 1,6,8 and 7. It was thereafter that the plaintiff filed the present suit for partition claiming 1/9 share contending that he was entitled to a share over the properties alloted to his mother under A Schedule to Ext.B1. The claim for partition was resisted by defendants 1,6,7 and 8 contending, inter alia, that as per the recitals in Ext.B1 partition deed the property alloted to the group under the A schedule thereunder would devolve on the survivors namely defendants 1,6,7 &8 and that the plaintiff was not entitled to any share as an heir of Rajamma. The said R.S.A.No.522 of 2008 3 contention has been accepted by the courts below who dismissed the suit filed by the appellant. Hence this second appeal. 3. The learned counsel for the appellant made the following submissions in support of the appeal:- In the absence of a relinquishment or release by the plaintiff of her right her inheritance to her mother's share over the plaint schedule property which is the property allotted to the mother under A Schedule to Ext.B1 partition was liable to be partitioned among the legal heirs of Rajamma. By a recital in Ext.B1 the property cannot devolve on defendants 1,6,7&8 alone on the death of Rajamma. Hence the court below were not justified in denying the plaintiff his 1/9th share which devolved on him under the Hindu Succession Act as an heir of Rajamma who died in the year 1992. 4. I am afraid that I cannot agree with the above submissions. If the position is examined strictly according to the legal position, the parties being Marumakkathayees, with R.S.A.No.522 of 2008 4 the coming into force of the Kerala Hindu Family System (Abolition) Act,1975 with effect from 1.12.1976 there should have been a disruption and statutory partition of the joint family as per which the plaintiff would have got only a negligible fraction of a share over the 1.69 acre of land allotted to the Thavazhy of Nanikutty Amma under the C Schedule to Ext.A1 partition deed dated 14.7.56. This is because Nanikutty Amma had other male children as also children born to her female children all of whom would be entitled to a share. In that event, the plaintiff would not have got the 9 cents of land which he got under the G schedule to Ext.A1 partition deed dated 19.6.1977. It was after retaining the said 9 cents with him that the plaintiff wants further share as a legal heir of his mother Rajamma to whom the present plaint schedule property was allotted under Ext.B1 partition deed along with defendants 6,7 and 8. In the light of the recitals in Ext.B1, on the death of Rajamma, the present plaint schedule property devolved on the survivors in the group namely defendants 1,6,7&8. The devolution of the property R.S.A.No.522 of 2008 5 should be in accordance with a recitals in Ext,B1 to which the plaintiff is a party. The plaintiff who has received a benefit under the document cannot question the recitals in the same document so as to claim a share over the property allotted to the group under the A schedule to Ext.B1. In that view of the matter I see no illegality with the conclusions reached by the courts below. No questions of law, much less any substantial question of law arises for consideration in this second appeal. The questions of law formulated in the memorandum of appeal do not arise for consideration in this second appeal which is accordingly dismissed in limine. Dated this the 6th day of November, 2008. V. RAMKUMAR, JUDGE sj