IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOTTATHIL B.RADHAKRISHNAN & THE HONOURABLE MR. JUSTICE P.BHAVADASAN TUESDAY, THE 2ND NOVEMBER 2010 / 11TH KARTHIKA 1932 AFA.No. 84 of 1993() ---------------------------- O.S. NO.308/1982 OF 2ND ADDL.SUB COURT KOZHIKODE ........ APPELLANT(S): APPELLANTS -------------------------------------------- *1. PAYYERI BHASKARAN, SON OF PAYYERI CHERIYA KANDAKUTTY, RESIDING IN BEYPORE AMSOM AND DESOM, KOZHIKODE TALUK.* (DIED) 2. KARTHIAYANI, WIFE OF PAYYERI CHOYIKUTTY, RESIDING IN BEYPORE AMSOM AND DESOM, KOZHIKODE TALUK. 3. LOKAPRAKASAN, SON OF PAYYERI CHOYIKUTTY RESIDING AT DO. DO. 4. JAYARAJAN, SON OF PAYYERI CHOYIKUTTY, RESIDING AT DO. DO. 5. LATHA, DAUGHTER OF DO., RESIDING AT DO.D O. 6. DAYAVATHI, DAUGHTER OF DO. DO. 7. P.RADHAKRISHNAN, SON OF AMBUJAKSHI, RESIDING AT DO. DO. 8. E.VENU, @ E.VENUGOPAL, RESIDING AT EDAKANDI HOUSE, PANTHEERANKAVU P.O., KOZHIKODE DISTRICT. 9. RANJITH (MINOR), S/O. E.VENU, DO. DO., REP.BY HIS FATHER E.VENU 8TH APPELLANT. A.F.A. 84/1993 *ADDL. APPELLANTS 10 TO 16 IMPLEADED 10. P.KAMALA, W/O. LATE BHASKARAN, AGED 84 YEARS, RESIDING AT PAYYERI HOUSE, P.O.BEYPORE, KOZHIIKODE 673 016. 11. P.BHAGYARATHNAM, AGED 55 YEARS, RESIDING AT PAYYERI HOUSE, P.O.BEYPORE, KOZHIIKODE 673 016. 12. MANORAMA, D/O. LATE BHASKARAN, AGED 52 YEARS, RESIDING AT THIPPLIKKATT KOZHIKODAN HOUSE, P.O. GOVINDAPURAM, KOZHIIKODE 16. 13. P.PRASANNA, D/O. LATE BHASKARAN, AGED 51 YEARS, RESIDING AT PAYYERI HOUSE, P.O.BEYPORE, KOZHIKODE 673 016. 14. KOMALAVALLY, D/O. BHASKARAN, AGED 48 YEARS,RESIDING AT MUTHIRAKKALLIAPARAMBA, P.O. NALLALAM, KOZHIIKODE 27. 15. RATNAKANTHI, D/O. LATE BHASKARNA, AGED 45 YEARS, RESIDING AT PAYYERI HOUSE, P.O.BEYPORE, KOZHIIKODE 673 016. 16. P.VIJAYALAKSHMI, D/O. BHASKARAN, AGED 49 YEARS, RESIDING AT EDAKKATT KOVILAKAM PARAMBA, SNEHA NIVAS, P.O. NORTH BEYPORE, KOZHIKODE- 15. *ADDL. APPELLANTS 10 TO1 6 ARE IMPLEADED AS LEGAL REPRESENTATIVES OF DECEASED IST APPELLANT VIDE ORDER DTD. 18.10.2010 IN IA. 2402/2010. BY ADV. SRI.V.V.SURENDRAN A.F.A. NO.84/1993 RESPONDENT(S): RESPONDENT ----------------------------------------------- 1. PRABHAKARAN, SON OF THAMBURANKANDY SANKARN, RESIDING AT NADUVATTOM AMSOM AND DESOM P.O., BEYPORE NORTH, KOZHIKODE. 2. PRABHAVATHI, DAUGHTER OF DO. RESIDING AT DO. 3. SETHU MADHAVAN, SON OF DO. RESIDING AT DO. 4. CHIRUTHAKUTTY, PULPARAMBIL, RESIDING AT IRINGALLUR AMSOM AND DESOM, P.O.GURUVAYOORAPPAN COLLEGE, KOZHIKODE 14. 5. N.K.SUBHADRA, THAZHATHUMKANDY HOUSE, NALLOOR AMSOM AND DESOM, POST FEROKE PIN 673 631. *6. SAROJINI, THIPPILIKKATTU KOZHIKODAN VEETTIL, BEYPORE AMSOM DESOM, POST BEYPORE, KOZHIKODE 15. (DIED) 7. SMITHA, DAUGHTER OF KRIPALINI, RESIDING IN NELLIKODE AMSOM DESOM, POTTAMMAN, P.O. NELLIKODE, KOZHIKODE. 8. AJITHA DAUGHTER OF KRIPALINI, RESIDING AT DO. DO. 9. AMBUJAKSHY, RESIDING IN VAKAYIL HOUSE, CHAVAKKAD P.O., BABY ROAD. 10. PADMAVATHY, RESIDING IN POOVINGAL HOUSE, P.O. KOLATHARA, KOZHIKODE. 11. EASWARI, RESIDING AT O.NO.213, GANESA GIRI, SOUTHERN RAILWAY, SHORNUR. 12. JAYADEVI, RESIDING IN DO. DO. 13. SUSEELA P., RESIDING AT PAYYERI HOUSE, P.O.BEYPORE, KOZHIKODE 15. *14. PAYYERI RAGHAVAN, SON OF CHANDU, RESIDING IN BEYPORE AMSOM AND DESOM, PO. BEYPORE, KOZHIKODE 15. (DIED). A.F.A. NO.84/1993 *15. PAYYERI RAMAN, SON OF SANKARANKUTTY, RESIDING AT PEYPORE AMSOM DESOM, P.O., BEYPORE, KOZHIIKODE 15. (DIED). 16. PAYYERI DAMODARAN, SON OF DO. DO. 17. PAYYERI NARAYANAN, SON OF KORAN, DO. DO. 18. PAYYERI SIVADASAN, SON OF APPUKUTTY, DO. DO. 19. SUBHADARA P., WIFE OF P. GANGADHARAN, RESIDING AT PAYYERI HOUSE, PALLITHOOMPU PARAMBA, BEYPORE P.O., CALICUT 15. 20. P.RAJANI, DAUGHTER OF DO. RESIDING AT DO. DO. 21. P.SAJINI, DAUGHTER OF DO. RESIDING AT DO. DO. 22. PAYYERI SAROJINI, DAUGHTER OF DO. RESIDING DO. 23. PAYYERI PEETHAMBARAN, SON OF PAYYERI DAMODARAN, PAYYERI HOUSE, P.O. BEYPORE, KOZHIKODE 15. 24. PAYYERI VISWAMBARAN, SON OF PAYYERI DAMODARAN, RESIDING AT DO. DO. 25. PAYYERI SIDHARTHAN, SON OF DAMODARAN, POST BOX NO.46495, ABU DHABI, U.A.E. 26. PAYYERI VIJAYA, PAYYERI HOUSE, P.O. BEYPORE, KOZHIKODE 15. ADDL. R27 TO R30 IMPLEADED. 27. P.VASANTHA, AGED ABOUT 58,W/O. LATE SUBRAMANIAN, THINNAPATTY, P.O., SARAKKA PILLIYOUR, AMAILUR. SALAM DISTRICT. 636 305. 28. VANAJAKSHI, AGED ABOUT 48 YEARS, D/O. LATE PAYYERI RAGHAVAN, NALUPURAKANDI HOUSE, P.O. BEYPORE, CALICUT 15. 29. P.PRASANNA, D/O. LATE PAYYERI RAGHAVAN, P.O. BEYPORE, CALICUT 15. A.F.A. NO.84/1993 30. P.VISWANATHAN, AGED ABOUT 45 YEARS, P.O.BEYPORE, CALICUT. 15. *ADDL. R27 TO R30 ARE IMPLEADED AS PER ORDER DTD. 11.3.04 IN CMP. 1907/1994 *ADDL. R31 TO 35 IMPLEADED 31. P.CHANDI, W/O. LATE PAYYERI RAMAN, P.O.BEYPORE, PALLITHUNDIL HOUSE, CALICUT 673 015. 32. K.T.SASIKALA, W/O. K.T.IMBICHI, KANNANTHURUTHI HOUSE, P.O.BEYPORE, CALICUT 673 015. 33. P.BABU, S/O. LATE PAYYERI RAMAN, PALLITHUNDIL HOUSE, P.O. BEYPORE,' CALICUT 673 015. 34. P.GERISH, S/O. LATE PAYYERI RAMAN, PALLITHUNDIL HOUSE, P.O.BEYPORE, CALICUT 673 015. 35. P.V.SALIM RAVEENDRAN, RESIDING AT PUTHUSSERY VALIYA VEEDU, PERIYAMBALAM P.O., PULIKKAL, MALAPPURAM DISTRICT. *ADDL. R31 TO R35 ARE IMPLEADED AS PER ORDER DT. 11.3.04 IN CMP. 2590/98 AS THE LEGAL REPRESENTATIVES OF THE DECEASED R 15.) *ADSDL. R6 TO R0 IMPLEADED 36. T.K.KARUNAKARAN, S/O.SAROJINI, RESIDING AT SAROJINI NIVAS, NORTH BEYPORE, CALICUT 15. 37. T.K.CHANDRA MOHAN, S/O. SAROJINI, RESIDING AT SAROJINI NIVAS, NORTH BEYPORE, CALICUT 15. 38. T.K.REGHUNATHAN, S/O. SAROJINI, RESIDING AT SAROJINI NIVAS, NORTH PEYPORE, CALICUT 15. A.F.A. NO.84/1993 39. V.MYTHILI, D/O. SAROJINI, RESIDING AT VELARAMBATH, VETTERANKANDY HOUSE, P.O. MANVM, AZCHAVATTOM, CALICUT 673 067. 40. T.K.MANOHARAN, S/O. SAROJINI, RESIDING AT THIPILIKOZHIKADAN VEETTIL, P.O. GOVINDAPURAM, CALICUT 673 016. R 36 TO R40 ARE IMPLEADED AS PER ORDER DT. 11.3.04 IN CMP. 5714/99 AS THE LEGAL REPRESENTATIVES OF THE DECEASED R6. R15 TO R19 TO 21 , 27 TO 31 BY SRI.K.P.DANDAPANI, SENIOR ADVOCATE R1 TO R3 BY ADVS. SRI.M.C.SEN R9 TO R13 BY SRI.SUNNY MATHEW R36 BY SRI.TOJANJ.VATHIKULAM R30 BY SRI.S.V.BALAKRISHNA IYER THIS APPEAL FROM FIRST APPEAL HAVING BEEN FINALLY HEARD ON 18/10/2010, ALONG WITH R.F.A. NO.298 OF 2007 THE COURT ON 02/11/2010 DELIVERED THE FOLLOWING: tss THOTTATHIL B. RADHAKRISHNAN & P. BHAVADASAN, JJ. - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - A.F.A. No. 84 of 1993 & R.F.A. No. 298 of 2007 - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 2nd day of November, 2010. JUDGMENT Bhavadasan, J , Defendants 1, 8 to 10, 13, 14, 16 and the legal representatives of the 12th defendant in O.S. 308 of 1982 before the Sub Court, Kozhikode, who suffered a preliminary decree for partition, which was confirmed by the first appellate court, are the appellants. The parties and facts are hereinafter referred to as they are available in R.F.A.298 of 2007. 2. In pursuance to the preliminary decree so passed, it appears that the final decree has been passed by the trial court as per the order in I.A. 3289 of 2002. A.F.A. 84 of 1993 is against the judgment and decree of the lower appellate court. R.F.A. 298 of 2007 is filed against the final decree. AFA.84/93 & RFA.298/07. 2 3. One Kandankutty had four sons. They are Chandu, Sankarankutty, Achuthan and Nayadi. The plaintiffs in the suit are the descendants of Nayadi. Defendants 1 to 25 are the descendants of Chandu. Defendants 26 and 27 are the descendants of Sankarankutty and defendant No.28 is the descendant of Achuthan. 4. It is an admitted fact that the plaint schedule properties originally belonged to Kandankutty. Pennutty, who is the wife of Nayadi, and her grand children are the plaintiffs. They laid the suit for partition on the basis that consequent on the death of Kandankutty, the property possessed and owned by him devolved on his four sons in equal shares. They therefore claimed 1/4th share over the suit property. 5. The suit was resisted by the defendants pointing out that Nayadi had left the place long ago and he had not been heard of for a long time and therefore he is presumed to be dead. At the relevant time, according to the AFA.84/93 & RFA.298/07. 3 contesting defendants, Pennutty, the wife of Nayadi had only a right of maintenance and as his daughter had already been given in marriage, she has no right over the suit property. There are also certain assignments made mention of as between the defendants. Pointing out that consequent on the death of Nayadi, the property devolved on his other brothers, they sought to non-suit the plaintiffs. 6. The trial court raised necessary issues for consideration. The evidence consists of the testimony of P.Ws.1 and 2 and documents marked as Exts.A1 to A3 from the side of the plaintiffs. The defendants had D.Ws. 1 to 3 examined and Exts.B1 to B3 marked. 7. On an appreciation of the evidence in the case, the trial court came to the conclusion that atleast in 1962 Nayadi was alive and therefore the plea of reversion was negatived. Consequently, a preliminary decree was passed as follows: “1. The plaint B schedule properties shall be divided into 260 equal share and out of AFA.84/93 & RFA.298/07. 4 that 65 such shares shall be allotted to plaintiffs 2 to 4. 2. that 45 such shares shall be allotted to defendants 5 to 7 and 21 jointly. 3. that the plaintiffs are entitled to get future mesne profits from the first defendants the quantum of which is left open to be determined at the time of the passing of the final decree. 4. that the cost of the suit shall come out of the estate, 5. that the plaintiffs are at liberty to make an application for passing a final decree.” 8. Two sets of defendants carried the matter in two separate appeals. Both the appeals were disposed of by a common judgment. The appellate court disagreed with the finding of the trial court that Nayadi was alive till 1962. Based on Ext.A3, the appellate court came to the conclusion that it could not be said that Nayadi was alive in 1962. However, it was found that assuming that Nayadi was dead as on the date of Ext.A3, by then Hindu Women's Right to Property Act came into force. Since Nayadi can be AFA.84/93 & RFA.298/07. 5 presumed to be dead subsequent to the commencement of the Act, Pennutty is entitled to a share. The said right acquired by Pennutty was widow's estate. That ripened into full estate as per Section 14 of the Hindu Succession Act and therefore the wife and the children of Nayadi are treated as co-owners. Though the appellate court disagreed with the reasoning of the trial court, the conclusion reached was the same, and that is, the plaintiffs are entitled to shares. Accordingly, the preliminary decree was confirmed. The appellate court decree is assailed. 9. Learned counsel appearing for the appellants pointed out that the findings of the courts below are incorrect and contrary to the evidence adduced in the case. According to him, Nayadi had left 60 years ago and he was not heard of thereafter. So that he should be presumed to have been dead much earlier than 1947. If that be so, as far as his share is concerned, that reverts to his brothers and the plaintiffs can have no manner of right. AFA.84/93 & RFA.298/07. 6 10. Both the courts below have considered this matter in detail. Though for different reasons, they have come to the identical conclusion that the plaintiffs are entitled to relief. As rightly noticed by the courts below, if a person's whereabouts are not known and he is not heard of for 7 years by persons who would have normally heard about him, then the presumption is that the said person is no more. But there is no presumption as to the date of his death. That is a matter for proof. In the case on hand, there is no proof as to when he died and the appellants rely on the presumption alone. It is significant to notice that in Ext.A3 executed by some of the parties to the suit, they recognized the right of the plaintiffs. It is therefore idle for the appellants now to contend that the plaintiffs had no manner of right over the suit property. 11. One is also unable to understand the theory of reversion. The property is admittedly the self acquired property of Kandankutty. It never had the character of AFA.84/93 & RFA.298/07. 7 ancestral property. Nobody has a case that during the lifetime of Kandankutty, his sons or grand sons had any right over the suit property. The trial court chose to believe P.W.2, who deposed that Nayadi had attended his marriage, which was in 1962, and thus granted a decree in favour of the plaintiffs. True, the first appellate court chose to disagree with the said finding, but on other grounds found that Pennutty and the daughter of Naydi respectively had obtained rights over the suit property. As rightly pointed out by the first appellate court, Ext.A3 clinches the issue. It is an admission by some of the persons, who are interested in the subject matter of the suit, regarding the rights of the plaintiffs. That is binding on them unless properly explained. There is no explanation offered. Even though there is no recital in Ext.A3 that Nayadi is no more, it is found that the executant of Ext.A3 accepted that Pennutty had rights over the suit properties. AFA.84/93 & RFA.298/07. 8 12. Though for different reasons, both the courts below have found that the plaintiffs are entitled to their shares and have granted them 65 out of 260 shares. 13. The appellants are unable to show any legal or factual infirmities in the conclusions reached by the two courts, though for different reasons. There is no merit in the contention that the plaintiffs have no manner of right over the suit property. 14. It was then contended by the learned counsel for the appellants that the courts below have not considered one vital aspect in this case. According to them, there was inter se transactions between the defendants with respect to the shares of those persons regarding the property involved in the suit and consequent to Exts.B2 and B3 it can be seen that defendants 5 to 7 and 21 have no manner of right over the suit property. 5. No such issue seems to have been raised by the trial court and there is no discussion also. There is AFA.84/93 & RFA.298/07. 9 nothing to show that this point was urged before the trial court. So is the case in the first appellate court also. It seems to have been urged for the first time before this court. It is not necessary to resolve this issue, which is an inter se dispute between the defendants, to grant relief to the plaintiffs. If those persons have assigned their shares to the other defendants, they can work out their remedies elsewhere. 6. It follows that there is no merit in A.F.A. 84 of 1993 and it is only to be dismissed. We do so. There will be no order as to costs. 7. The main ground urged in R.F.A. 298 of 2007 is that since A.F.A. 84 of 1993 is pending, final decree ought not to have been passed and the allocation is to be altered. Learned counsel for the appellants was unable to show that there was any irregularity or illegality in the allocation made in the final decree. On going through the memorandum of appeal, it is seen that the main ground taken is that passing AFA.84/93 & RFA.298/07. 10 of the final decree would vitiate the decision in the AFA. Now that AFA has been dismissed. Nothing more remains to be considered in RFA 298 of 2007. RFA 298 of 2007 is also dismissed. There will be no order as to costs. Thottathil B. Radhakrishnan, Judge P. Bhavadasan, Judge sb.