IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.R.RAMAN & THE HONOURABLE MR. JUSTICE T.R.RAMACHANDRAN NAIR WEDNESDAY, THE 9TH JULY 2008 / 18TH ASHADHA 1930 AS.No. 311 of 1994() -------------------- OS.255/1989 of PRL.S.C.,THALASSERY .................... APPELLANT: ----------- MRS. SUSHEELA KARUNAKARAN (DIED. LRS. IMPLEADED) W/O. LATE K.K. KARUNAKARAN, AGED 70 YEARS, KAKKIRICHALIL HOUSE, MUZHATHADAM, KANNUR-2. ADDL.APPELLANTS: 2. PARIMALA N., D/O. LATE MYTHILI, SANTHOSH BHAVAN, THAVAKKARA, KANNUR. 3. PRASANNA N., DO. DO. 4. SETHU BHAI, DO. DO. 5. RAHANA, DO. DO. 6. SREEMATHI, DO. DO. 7. PUSHPAJA, DO. DO. (ADDL. APPELLANTS IMPLEADED AS L.RS. OF THE DECEASED SOLE APPELLANT VIDE ORDER DATED 15.3.2004 IN IA 744/2004) BY ADV. SRI.T.A.RAMADASAN,A.K.ALEX,K.ABOOTY RESPONDENTS: ------------- 1. K.K. BHARATHAN, S/O. LATE K. KUNHIRAMAN, AGED 65 YEARS, RETIRED ADDL. SUPDT. OF POLICE, 39 ANNA NAGAR ROAD, MADRAS-102.(DIED.L.RS. IMPLEADED) 2. K. YESODA, W/O. KUNHIRAMAN, RESIDING AT MUZHATHADAM, KAKKIRICHALIL HOUSE, KANNUR-2. (DIED) 3.K. KOUSALYA, DO. (DIED) 4. K.K. NARAYANAN, DEEPALAYAM, CIVIL STATION, RTD. PROJECT EVALUATION OFFICER, KANNUR-2. 5. M.P. JAYASREE, W/O. K.N. LAXAMAN, HOUSE NO.331, MIZHATHADAM, KANNUR. 6. RAJESH, DO. DO. 7. SIMMI, DO. DO 8. JAYESH (MINOR) REP. BY GUARDIAN MOTHER M.P. JAYASREE, DO. 9. P. PRABHAKARAN, SECTION SUPDT., OFFICE OF DEO, KANNUR-1. 10. MRS. GOURI PRABHAKARAN, DO. 11. K. GANGADHARA SHENOY, SENIOR MANAGER, CANARA BANK, CANTONMENT BRANCH, TRIVANDRUM. (IT IS RECORDED THAT RESPONDENTS 1 TO 4 ARE THE LEGAL REPRESENTATIVES OF DECEASED RESPONDNETS 2 AND 3 AS PER ORDER DATED 3.7.98 VIDE MEMO CF9638) SUPPL. 12: DR. RANI, W/O. LATE K.K. BHARATHAN, 39 'H' BLOCK, ANNA NAGAR EAST, CHENNAI – 600102. 13. DR. SHEELA, D/O. DO. (SUPPL. R12 AND R13 IMPLEADED AS LRS. OF DECEASED R1 VIDE ORDER DATED 22.2.08 IN IA 3490/07) BY ADV. SRI.E.VENUGOPALAN NAYANAR SRI.C.P.KUNJHIKANNAN FOR SRI.M.VIJAYAKUMAR FOR SRI.A.KUMAR FOR SRI.G.UNNIKRISHNON FOR SRI.C.M.ABRAHAM SRI.M.S.MANIKANDAN SRI.N.N.SUGUNAPALAN (SR.) FOR R.1 THIS APPEAL SUITS HAVING BEEN FINALLY HEARD ON 09/07/2008, THE COURT ON 09/07/2008 DELIVERED THE FOLLOWING: P.R.Raman & T.R. Ramachandran Nair, JJ. - - - - - - - - - - - - - - - - - - - - - - - - A.S.No.311 of 1994 - - - - -- - - - - - - - - - - - - - - - - - - - - Dated this the 9th day of July, 2008. JUDGMENT Ramachandran Nair, J. This appeal arises from a decree for preliminary partition. The appellant herein was the first defendant and pending the appeal, she died and appellants 2 to 7 have been impleaded as the legal heirs. 2. In this appeal the main points raised concern the finding that the plaint schedule property is not a tavazhi property and that the claim is lost by adverse possession. 3. The properties originally belonged to the plaintiffs' grandmother Thala who obtained the properties under kuzhikanam from the jenmi by registered Marupat in the year 1887. She died in 1928 and her rights devolved upon her two children, viz. K. Kunhiraman and K. Karunakaran. Kunhiraman died in the year 1936 and Karunakaran died in 1988. He had no issues also. The first defendant in the suit (original appellant herein) is his wife. 4. The plea that the properties are tavazhi properties was negatived by the court below on the ground that consequent on the death of the AS 311/1994 -2- mother, only two sons survived her and there were no female members to constitute the tavazhi. The parties are Thiyyas and followers of Marumakkathayee Law. Therefore, the contention that on the death of Thala, the property absolutely belonged to Karunakaran was negatived. 5. Now, the position has conclusively been settled by the Apex Court in the decision in Madhava Kurup v. Madhava Kurup {2006 (2) KLT 382 (SC)}. It was held that “if the descent is traceable only through females, in the absence of a female member, the Tavazhi must come to an end with no chance of there being a female member to continue the line. The rule of survivorship in such circumstances ceases to operate and the surviving male members, in the absence of a Tavazhi, must inherit the property as tenants in common, and share it equally.” In the light of the above binding judgment, we find that the finding rendered by the court below on that aspect has to be sustained. We do so. 6. The other point argued by the learned counsel is regarding adverse possession. Herein, adverse possession is claimed by a co-owner. To constitute ouster of a co-owner, proof of something more than mere exclusive possession and exclusive receipt of income is required. The court below, relying upon the decision of the Apex Court in Karbalai Beegum AS 311/1994 -3- v. Mohd. Sayeed (AIR 1981 SC 77), found that a clear ouster has to be pleaded and as the defendants have not pleaded ouster in the written statement, no such question can be considered at the time of argument. In that view of the matter, the issue was found in favour of the defendants. We find that the view taken by the court below is perfectly justified. It is beyond dispute that possession by a co-owner is presumed to be on behalf of other co-owners. There is no proper plea on that aspect and therefore nothing turns on that point also. Lastly, as regards the claim of defendants 3 to 9, who had purchased the properties from deceased Karunakaran, the court below had directed to allot those properties to the share of the first defendant as far as possible. No other issues have been raised. Therefore, confirming the preliminary decree, we dismiss the appeal. There will be no order as to costs. ( P.R.Raman, Judge.) (T.R. Ramachandran Nair, Judge.) kav/ AS 311/1994 -4- P.R.Raman & T.R. Ramachandran Nair, JJ. - - - - - - - - - - - - - - - - - - - - - - A.S.No.311 of 1994 - - - - - - - - - - - - - - - - - - - - - - JUDGMENT 9th July, 2008.