IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOTTATHIL B.RADHAKRISHNAN & THE HONOURABLE MR. JUSTICE P.BHAVADASAN MONDAY, THE 20TH SEPTEMBER 2010 / 29TH BHADRA 1932 AFA.No. 18 of 1992() ------------------ OS.97/1979 OF SUB COURT,THRISSUR JUDGEMENT/DECREE IN AS NO. 350/1982 DATED 11.09.1991 ............... APPELLANT – 3RD RESPONDENT : ------------------------------------------------ PUTHUMANA MEENAKSHI AMMA, ADOOR DESOM, IYYAL VILLAGE, POST VELLARAKKAD, VIA. ERUMAPETTY, THRISSUR DISTRICT. BY ADV. SRI.S.EASWARAN RESPONDENTS – APPELLANTS & RESPONDENTS 2 AND 4 TO 16 : -------------------------------------------------------------------------------------------- 1. PUTHUMANA KALLIANI AMMA, IYYALA VILLAGE, POST IYYAL, VIA. ERUMAPETTY, THRISSUR DISTRICT (DIED) *2. DAUGHTER LAKSHMIKUTTY AMMA, -DO- -DO- *R2 IS RECORDED AS THE LEGAL REPRESENTATIVE OF THE DECEASED IST RESPONDENT AS PER ORDER DATED 16.01.1996 ON MEMO. 3. SHANTHAKUMARI, D/O OF LAKSHMIKUTTY AMMA, -DO- -DO- 4. PARAMESWARAN, S/O. LAKSHMIKUTTY AMMA, -DO- -DO- 5. GOPINATH, S/O. LAKSHMIKUTTY AMMA, IYYALA VILLAGE, POST IYYAL, VIA. ERUMAPETTY, THRISSUR DISTRICT 6. USHADEVI (MINOR) BY GUARDIAN 2ND RESPONDENT. 7. RADHAMANI (MINOR) BY GUARDIAN 2ND RESPONDENT. 8. VIJAYAKUMARI (MINOR) GUARDIAN 3RD RESPONDENT. ...2/- AFA.No. 18 of 1992 -2- 9. MADHAVAN NAIR, S/O. NARAYANI AMMA, -DO- -DO- 10. KESAVAN NAIR, S/O. NARAYANI AMMA, -DO- -DO- 11. PARUKUTTY AMMA, IYYALA VILLAGE, PUTHUMATHUR DESOM, POST MARATHENGODE, ERUMAPETTY, THRISSUR DISTRICT. 12. NARAYANAN NAIR, -DO- -DO- 13. SAROJINI AMMA, -DO- -DO- 14. BHARGAVI AMMA, -DO- -DO- 15. UNNIKRISHNAN, IYYALA VILLAGE, PUTHUMATHUR DESOM, POST MARATHENGODE, ERUMAPETTY, THRISSUR DISTRICT. 16. RAMANI (MINOR) BY GUARDIAN 11TH RESPONDENT. 17. GOPALAN NAIR, VELLITHIRUTHY, CHOVVANNUR VILLAGE, POST MARATHENGODE, ERUMAPETTY, THRISSUR DISTRICT. 18. PADMANABHAN NAIR, -DO- -DO- 19. KUTTIKRISHNAN NAIR, -DO- -DO- 20. RAMANKUTTY NAIR, -DO- -DO- 21. AMMINI ALIAS MADHAVI AMMA, -DO- -DO- 22. KUNHUKUTTY ALIAS MOOKAMI AMMA, -DO- -DO- 23. KUNJUKUTTAN ALIAS SANKARAN NAIR, -DO- -DO- 24. APPUKUTTAN ALIAS MADHAVAN NAIR, -DO- -DO- 25. AMMU ALIAS DEVAKI AMMA, -DO- -DO- 26. ARAVINDAKSHAN, -DO- -DO- 27. SUMATHI, -DO- -DO- 28. PADMAVATHI, -DO- -DO- 29. PANKAJAKSHAN, -DO- -DO- 30. MURALEEDHARAN, -DO- -DO- ...3/- AFA.No. 18 of 1992 -3- 31. MALATHI (MINOR) BY GUARDIAN 21ST RESPONDENT HEREIN. 32. GIRIJAVALLABHAN (MINOR) BY GUARDIAN 21ST RESPONDENT. 33. JAYABHARATHI (MINOR) -DO- -DO- 34. SUNDARAN ALIAS NARAYANAN (MINOR) -DO- -DO- 35. RADHA -DO- -DO- 36. LALITHA (MINOR) BY GUARDIAN 22ND RESPONDENT. 37. SATHIANARAYANAN (MINOR) BY GUARDIAN 22ND RESPONDENT. 38. RAMACHANDRAN (MINOR) BY GUARDIAN 25TH RESPONDENT. 39. REMESH (MINOR) BY GUARDIAN 25TH RESPONDENT. 40. PUTHUMANA KUNHIKAVU AMMA, ADOOR DESOM, IYYAL VILLAGE, POST VELLARAKKAD, VIA. ERUMAPETTY, THRISSUR DISTRICT. 41. DO. BALAKRISHNAN NAIR, -DO- -DO- 42. DO. SAVITHRI AMMA, -DO- -DO- 43. DO. AMMU ALIAS JANAKI AMMA, -DO- -DO- 44. DO. MALATHI AMMA, -DO- -DO- 45. DO. NANDAN, -DO- -DO- 46. DO. SYAMALA, -DO- -DO- 47. DO. VIJAYAN (MINOR) BY GUARDIAN 42ND RESPONDENT. 48. DO. BABY (MINOR) BY GUARDIAN 42ND RESPONDENT. 49. DO. SREEDHARAN, -DO- -DO- 50. DO. PARAMESWARAN P. NAIR, DEEPAK, PATTERN WORKS, AURORA COMPOUND, QUARRY ROAD, BHANDUP, BOMBAY – 400 078. 51. KALLUR KIZHAKKETHIL SEKHARAN NAIR, IYYAL VILLAGE, ADOOR DESOM, POST VELLARAKKAD, VIA. ERUMAPETTY. 52. PUTHUMANA NARAYANI AMMA, IYYAL VILLAGE DESOM, POST IYYAL, VIA. ERUMAPETTY. ...4/- AFA.No. 18 of 1992 -4- 53. DO. VESU ALIAS MEENAKSHI (MINOR) GUARDIAN 52ND RESPONDENT. R2 TO R8, R20, R24, R25, R27, R28, R31, R33, R34, R38, R39 & R49 BY ADVS. SRI.R.K.MURALEEDHARAN SRI.R.PARTHASARATHY THIS APPEAL FROM FIRST APPEAL HAVING BEEN FINALLY HEARD ON 31/08/2010, THE COURT ON 20/09/2010 DELIVERED THE FOLLOWING: Mn “CR” THOTTATHIL.B.RADHAKRISHNAN & P.BHAVADASAN, JJ. ------------------------------------------------------------------------ AFA No.18 of 1992 ------------------------------------------------------------------------ Dated 20th September 2010 Judgment Bhavadasan, J. This appeal arises out of a suit for partition, in which the defendants suffered a preliminary decree at the hands of the appellate court. The parties and facts are hereinafter referred to, as they are available before the Trial Court. 2. The suit for partition was laid on the allegation that Ext.A2 acquisition by Madhavi Amma was for and on behalf of the thavazhi of which she was the eldest female member, at the relevant time. Defendants 2 and 3 are her daughters and the rest of the parties are her grand children. It is alleged that Ext.A2 acquisition by Madhavi Amma, was utilising the funds of the thavazhi and it has been treated as a thavazhi property as would be evident from Exts.A5 to A7. Since the plaintiffs did not intend to AFA No.18/1992 2 continue joint possession, they sought partition of the property, claiming 42 shares out of 55. 3. Except defendants 4, 6, 12 and 13, the other defendants contested the suit. According to them, the plaint schedule property is not available for partition. The contention taken was that Ext.A2 acquisition was the self acquisition of Madhavi Amma, utilising her own funds and that was never treated as a thavazhi property. Madhavi Amma had assigned that property in 1960 in favour of defendants 2 and 3. The claim of joint possession etc., are without any basis. They also contended that if at all the plaintiffs had any manner of rights, the same had been lost by adverse possession and limitation. Along with the above contentions, they also pointed out that the suit is bad for partial partition because the property covered by Ext.A1 document has not been included in the plaint. They, therefore, prayed for a dismissal of the suit. 4. The Trial Court raised necessary issues for consideration. The evidence consists of the testimony of AFA No.18/1992 3 PWs 1 to 3 and documents marked as Exts.A1 to A7 from the side of the plaintiffs. The defendants examined DW1 and had Exts.B1 to B51 marked. On an appreciation of the evidence, the Trial Court came to the following conclusions : (1) The acquisition under Ext.A2 was a self acquisition by Madhavi Amma. (2) The assignment in favour of defendants 2 and 3 by Madhavi Amma is good and binding. (3) Even if the plaintiffs and other sharers had any rights over the suit property, the same had been lost by adverse possession and limitation. 5. On the basis of the above findings, the suit was dismissed. The plaintiffs carried the matter in appeal as AS No.350/82 before this Court. The first Appellate Court, on a re-evaluation of the materials before it, came to the following conclusions : (1) The acquisition under Ext.A2 was a self acquisition of Madhavi Amma. (2) There was blending of the self acquired properties AFA No.18/1992 4 with the joint family properties and therefore, the plaint schedule property was available for partition. 6. On the basis of the above findings, the Trial Court decree was reversed and the suit was decreed, directing partition of the plaint schedule properties into 55 equal shares and allotment of 42 shares to the plaintiffs. The contesting defendants challenge the above Judgment and decree in this appeal. 7. The following questions of law are seen formulated in this memorandum of appeal : “1. In the absence of any pleading in the memorandum of appeal, was the learned Single Judge correct in passing a preliminary decree for partition on the ground notwithstanding Ext.A2 acquisition by Madhavi Amma being separate and her own acquisition, there was a blending of the property by Smt.Madhavi Amma with the thavazhi property being possessed and enjoyed as one ? 2. There was no contention at all by the plaintiffs in the appeal before the learned Single Judge that even if AFA No.18/1992 5 Ext.A2 was a separate acquisition by Smt. Madhavi Amma, nonetheless there is a blending of property with the thavazhi property enjoyed and possessed as one and therefore, liable for partition, was the learned Single Judge justified in law in passing a preliminary decree for partition, on the ground that notwithstanding the individual nature of Ext.A2 acquisition there was a blending of such property with the thavazhi property enjoyed and possessed as one by the thavazhi ? 3. The learned Single Judge on the evidence came to the conclusion in confirmation of the findings of the trial court that Ext.A2 acquisition in the name of Smt.Madhavi Amma was her self acquisition that Smt.Madhavi Amma was not the Karanavathi of the thavazhi at least at the time of Ext.A2 acquisition – in the absence of any evidence to the contrary and in the absence of any contention in that behalf by the plaintiffs, was the learned Single Judge justified in law in coming to the conclusion that Smt.Madhavi Amma threw the properties into the common stock enjoyed and possessed by the thavazhi as one ? AFA No.18/1992 6 4. Will the evidence on record especially Exts.A5, A6 and A7 support the conclusion that Smt.Madhavi Amma threw Ext.A2 property into the common stock possessed and enjoyed as one by the thavazhi whether the conclusions of the learned Single Judge based on Exts.A5, A6 and A7 that there was a blending of Ext.A2 property by Smt.Madhavi Amma possessed and enjoyed by the thavazhi as one ? 5. Was the conclusion of the learned Single Judge that the suit was maintainable, in the absence of a prayer for partition of Ext.A1 partition also in the absence of a prayer for partition of Ext.A1 partition also in the absence of any evidence on record that Exhibit A1 properties were lost by the thavazhi ? 6. Ext.A2 properties being assigned by Smt.Madhavi Amma as per document dated 30.09.1960 in favour of defendants 2 and 3 was the suit maintainable without the prayer for setting aside the said assignment in favour of defendants 2 and 3. Even assuming that the learned Single Judge justified in coming to the conclusion that there being no severance in status, execution of assignment deed by an undivided member AFA No.18/1992 7 of a Marumakkathayam thavazhi having no legal effect no legal right claimed on this document. Possession of defendants 2 and 3 being traceable to document of 30.09.1960 was not the suit then barred by adverse possession and limitation ?” 8. The learned counsel for the appellants pointed out that the first Appellate Court was not justified in coming to the conclusion that there has been a blending of the property acquired under Ext.A2 with the joint family property. The learned counsel went on to contend that there is no pleading in the plaint to that effect and even assuming there is some evidence in that regard, it cannot be looked into. All that was stated in the appeal memorandum was that the plaint schedule property has been impressed with the thavazhi character. Both the courts have concurrently found the acquisition under Ext.A2 was a self acquisition by Madhavi Amma. There is no cross objection against that finding by the plaintiffs and therefore, the said finding has become final. It was AFA No.18/1992 8 contended that the plea of blending was wrongly sustained by the first Appellate Court since there was no pleading and acceptable evidence in that regard, as already stated. In support of his contention, the learned counsel relied on the decisions in Venkatasubramania v. Easwara Iyer (AIR 1966 Madras 266), Venkata Reddi v. Lakshmama (AIR 1963 SC 1601) and D.S.Lakshmaiah v. L.Balasubramanyam (2003(1) SCC 310). 9. It is also contended that even assuming that the plaintiffs had any manner of right over the suit property, the same had been lost by adverse possession and limitation. Even in the reply notice sent by the defendants to the notice issued by the plaintiffs, it has been clearly mentioned that Madhavi Amma had assigned property in favour of defendants 2 and 3 in the year 1960 and being a registered document, the plaintiffs should be deemed to have notice of the transfer. It was thus contended that at least from 1960 onwards, defendants 2 and 3 have been in AFA No.18/1992 9 possession of the property to the exclusion of others and that is sufficient to constitute adverse possession and limitation. In support of the said contention, the learned counsel relied on the decision in Vasantiben Prahladji Nayak v. Somnath Muljibhai Nayak (2004(3) SCC 376). 10. It was contended that the defendants had pointed out that the property covered by Ext.A1 which is set apart to the share of Madhavi Amma and her children had not been included in the plaint though it was available for partition. Therefore, the suit was bad for partial partition. In support of the said contention, considerable reliance was placed on the decision in Kenchegowda v. Siddegowda (1994(4) SCC 294). Accordingly, it was stressed that the Judgment and decree of the first Appellate Court is unsustainable both on facts and in law. 11. The learned counsel for the respondents, on the other hand, pointed out that it is idle for the appellants to contend before this Court that the respondents in the AFA No.18/1992 10 appeal cannot urge the ground that Ext.A2 acquisition by Madhavi Amma was for and on behalf of the thavazhi. The learned counsel pointed out that though the said plea was not accepted by the first Appellate Court, the decree had gone in their favour. True, they could prefer a cross objection. But, it was not mandatory for them to do so in view of Order XLI Rule 22 CPC. It is also pointed out that in view of Order XVI Rule 33 CPC, this court is competent to pass such a decree as it deems fit and proper in the facts and circumstances of the case. In support of the said contention, reliance was placed on the decision in S.Nazeer Ahamed v. State Bank of Mysore (AIR 2007 SC 989) and Anilkumar Gupta v. Municipal Corporation of Delhi (AIR 2000 SC 659). 12. According to the learned counsel, the thavazhi of which Madhavi Amma was the senior-most family member at the relevant time, had obtained the property under Ext.A1 deed. Therefore, funds were AFA No.18/1992 11 available with the thavazhi. It is true that her son Govindan Nair was the Manager of the thavazhi property. But, there is nothing to show that Madhavi Amma had independent source of income. There is no whisper in the written statement filed by the contesting defendants that Madhavi Amma could command independent funds and thereby she had acquired the property covered by Ext.A2 in her own name. Therefore, the presumption is that the acquisition was for and on behalf of the thavazhi. This would be further clear from a reading of Exts.A5 to A7, so says the counsel. According to him, it is clear from the evidence on record that the acquisition under Ext.A2 was treated as a thavazhi acquisition and it was dealt with as such. The finding of the courts below that the property is the self acquired property of Madhavi Amma, is therefore, not correct either on facts or in law. The learned counsel further contended that the subsequent dealings with the property by the members of the thavazhi and Madhavi Amma clearly indicate that there was a blending of the property covered by Ext.A2 with the AFA No.18/1992 12 thavazhi property and therefore, at any rate, the findings of the first Appellate Court do not call for any interference. 13. The learned counsel for the respondents also pointed out that the claim of the contesting defendants at the time of evidence was that funds were provided by the husband of Madhavi Amma. If that be so, going by S.64 of the Cochin Nair Act, the acquisition will be deemed to be for and on behalf of the thavazhi. 14. As far as the contention based on adverse possession is concerned, according to the learned counsel for the respondents, a high degree of proof of ouster is necessary. It has to be clearly shown that the co-owner had been holding the property hostile to the title of the other co-owners and there is a clear ouster of other co- owners from the property. Merely because the contesting defendants had possessed the property for a long time and had taken the income therefrom, those acts do not lead to the conclusion that the rights of the other co-owners are barred by adverse possession and limitation. Reliance was AFA No.18/1992 13 placed on the decision in Saramma Ittoop v. Kunjamma Kuruvilla (ILR 2006(3) Kerala 272). According to the learned counsel, the plea based on partial partition is also unsustainable. It is not incumbent on the part of the person who sues for partition to include all the properties that may be available for partition. A suit for partition cannot be dismissed on that ground. Reliance was placed on the decision in Gopalan v. Vasu (1986 KLT 1100). 15. The first question that arises for consideration is whether the plaintiffs in the suit can raise the issue as to whether the acquisition under Ext.A2 is for and on behalf of the thavazhi. One may recall here that the findings of the Trial Court as well as the first Appellate Court is that the plaint schedule property is a self acquired property of Madhavi Amma. However, one cannot omit to note that the Appellate Court held in favour of the plaintiffs though the claim that the property covered by Ext.A2 was a thavazhi property went against them. As rightly pointed out AFA No.18/1992 14 by the learned counsel for the respondents the plaintiffs could not have preferred an appeal because the decree was in their favour. May be that they could have filed cross objections. But, in the light of order XL1 Rule 22 CPC, even if they do not prefer a cross objection, they can still support the decree on the ground which went against them in the lower court. Order XLI Rule 22 CPC reads as follows : “22. Upon hearing respondent may object to decree as if he had preferred separate appeal – (1) any respondent, though he may not have appealed from any part of the decree,may not only support the decree but may also state that the finding against him in the Court below in respect of any issue ought to have been in his favour and may also take any cross objection to the decree which he could have taken by way of appeal, provided he has filed such objection in the Appellate Court within one month from the date of service on him or his pleader of notice of the day fixed for hearing the appeal or within such further time as the Appellate Court may see fit to allow.” AFA No.18/1992 15 In the decision reported in Anilkumar Gupta v. Municipal Corporation of Delhi (AIR 2000 SC 659), it was held as follows : “17. In view of the recent Judgment of this Court in Ravindra Kumar Sharma v. State of Assam (1999) 7 SCC 435 : 1999 AIR SCW 3578 : (AIR 1999 SC 357), it is, in our opinion, open to the respondents to attack the adverse findings arrived at or observations made by the High Court, even if the respondents had not filed a separate appeal against that part of the judgment. Hence the respondents can contend that the finding or observation that their appointments were tainted was not correct. We have also condoned the delay in filing the Special leave Petition (CC 3960/99) and therefore for both reasons, it will be open to them to attack the said finding in the appeals of the appellants or as appellants in their own civil appeal arising out of SLP (CC 3960/99)” In the decision reported in S.Nazeer Ahmed v. State Bank of Mysore (AIR 2007 SC 989), it was held as follows : AFA No.18/1992 16 “The respondent in an appeal is entitled to support the decree of the trial court even by challenging any of the findings that might have been rendered by the trial court against himself. For supporting the decree passed by the trial court, it is not necessary for a respondent in the appeal to file a memorandum of cross-objections challenging a particular finding that is rendered by the trial court against him when the ultimate decree itself is in his favour. A memorandum of cross-objections is needed only if the respondent claims any relief which had been negatived to him by the trial court and in addition to what he has already been given by the decree under challenge.............. In an appeal against dismissal of suit, the appellant is entitled to challenge all the findings rendered against it by the trial court and seek a decree as prayed for in the plaint from the appellate court. Once appellant is found entitled to a decree on the basis of the reasoning of the appellate court, the suit could be decreed by reversing the appropriate findings of the trial court on which the dismissal of the suit was based. For this, no recourse to order XLI Rule 33 is necessary. Order XLI Rule 33 AFA No.18/1992 17 enables the appellate court to pass any decree that ought to have been passed by the trial court or grant any further decree as the case may require and the power could be exercised notwithstanding that the appeal as only against a part of the decree and could even be exercised in favour of the respondents, though the respondents might not have filed any appeal or objection against what has been decreed. There is no need to have recourse to Order XLI, Rule 33 of the Code in a case where the suit of the plaintiff has come up in appeal claiming a decree as prayed for by him in the suit.” 16. Apart from Order XLI Rule 22 CPC, the appellants can take the aid of Order XLI Rule 33 also. The said provision reads as follows : “33. Power of Court of Appeal – The Appellate Court shall have power to pass any decree and make any order which ought to have been passed or made and to pass or make such further or other decree or order as the case may require and this power may be exercised by the court notwithstanding that the appeal is as to part AFA No.18/1992 18 only of the decree and may be exercised in favour of all or any of the respondents or parties, although such respondents or parties may not have filed any appeal or objection and may where there have been decrees in cross-suits where two or more decrees are passed in one suit, be exercised in respect of all or any of the decrees, although an appeal may not have been filed against such decrees.” In the light of the above provisions, the contention raised on behalf of the appellants that the plaintiffs cannot be heard to say that the property acquired under Ext.A2 was for an on behalf of the thavazhi cannot be countenanced merely because there has been concurrent findings against them in that regard by the courts below. 17. It is not in dispute that Madhavi Amma and her children obtained property under Ext.A1 partition deed. The acquisition under Ext.A2 was subsequent to the partition under Ext.A1. True, she could not be in the management of the property though she was the eldest female member of the thavazhi. Her eldest son Govindan AFA No.18/1992 19 Nair was in the management of the property. It is also true that Ext.A2 is in the name of Madhavi Amma. The property has a considerable extent. A major portion of the sale consideration is appropriated towards a mortgage debt. The balance amount paid as per the deed comes to about Rs.78/-. It is significant to notice that Ext.A2 is silent about the source of funds. One must notice that Ext.A2 is of the year 1094 ME. The Cochin Nair Act came into force on 22.07.1938. It can be seen that at the time when Ext.A2 was entered into, the prestine Marumakkathayam Law was in force in full vigour. Knowing full well of the consequence of the acquisition, if the acquisition under Ext.A2 was to be a self acquisition, surely, there would have been an indication to that effect in the document itself. The conspicuous absence of the source of funds and also the fact that there was a nucleus available, from which funds could be raised for the acquisition, as would