IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.BHAVADASAN MONDAY, THE 17TH OCTOBER 2011 / 25TH ASWINA 1933 AS.No. 681 of 1998(A) ---------------------------- OS.171/1989 of II ADDL.SUB COURT,THRISSUR .................... APPELLANTS / DEFENDANTS 2 TO 6 : - ------------------------------------------------------ 1. Dr. K. RADHAKRISHNAN, KANDAMPULLY HOUSE, NHAMENANGAD P.O., (NHAMANGHAT), VADAKKEKAD VILLAGE, CHAVAKKAD TALUK, TRICHUR DIST. 2. K. MAYADEVI, D/o. K. RADHAKRISHNAN, KANDAMPULLY HOUSE, NHAMENANGAD P.O., (NHAMANGHAT), VADAKKEKAD VILLAGE, CHAVAKKAD TALUK, TRICHUR DIST. 3. SHEEJA DEVI. K., D/o. K. RADHAKRISHNAN, KANDAMPULLY HOUSE, NHAMENANGAD P.O., (NHAMANGHAT), VADAKKEKAD VILLAGE, CHAVAKKAD TALUK, TRICHUR DIST. 4. K. SANTHOSH, S/o. Dr. K. RADHAKRISHNAN, KANDAMPULLY HOUSE, NHAMENANGAD P.O., (NHAMANGHAT), VADAKKEKAD VILLAGE, CHAVAKKAD TALUK, TRICHUR DIST. 5. Dr. K. CHANDRAMATHI, DISTRICT FAMILY WELFARE CHILD HEALTH OFFICER, RACE COURSE ROAD, COIMBATORE - 641 018. BY ADVS. SRI.S.CHANDRASENAN SRI.S.SAJITH SRI.P.K.SOMARAJAN AS.No. 681 of 1998(A) RESPONDENTS / PLAINTIFFS / DEFENDANTS 1,7 TO 11 IN O.S / RESPONDENTS: - ----------------------------------------------------------------------------------------------------------------- 1. K. KRISHNAKUMAR, S/o. Dr. K. ARAVINDAKSHAN, KANDAMPULLY HOUSE, SANTHIPURAM P.O., SREENARAYANAPURAM VILLAGE, KODUNGALLOOR TALUK, TRICHUR DIST. 2. K. ARAVINDAKSHAN, KANDAMPULLY HOUSE, SANTHIPURAM P.O., SREENARAYANAPURAM VILLAGE, KODUNGALLOOR TALUK. 3. Dr. K. SAROJINI, VYASAN'S CLINIC, PARIPPALLI P.O., QUILON DIST. 4. Mrs. SARASA CHANDRASEKHARAN, KANDAMPULLY HOUSE, RESIDING AT KUNNATHULLY HOUSE, KANJANI P.O., MANALUR VILLAGE, TRICHUR DIST. 5. ANILA MOHAN ALIAS SREEDEVI, D/o. (LATE) CHANDRASEKHARAN K., KANDAMPULLY HOUSE, RESIDING AT PAVAKULATH HOUSE, SHENOY's ROAD, KALOOR, COCHIN - 17. 6. GIRISH CHANDRAN, S/o. Dr. ARAVINDAKSHAN, KANDAMPULLY HOUSE, SANTHIPURAM P.O., SREENARAYANAPURAM VILLAGE, KODUNGALLOOR TALUK, TRICHUR DIST. 7. MAMMATHU HAJI (DIED), S/o. A. MOHAMMED HAJI, THALIKKASSERI P.O., NHAMANGHAT, ANJOOR VILLAGE, THALAPPALLY TALUK, TRICHUR DIST. * LEGAL HEIRS IMPLEADED ADDL R8. Smt. SAFIA, AGED 58 YEARS, WIDOW OF MAMMATHU HAJI, THALIKKASSERI HOUSE, ULLISSERY, NHAMANGHAT P.O., PIN - 679 563. ADDL R9. Sri. ASHRAF, AGED 36 YEARS, S/o. MAMMATHU HAJI, THALIKKASSERI HOUSE, ULLISSERY, NHAMANGHAT P.O., PIN - 679 563. ADDL R10. Smt. ASSEENA, AGED 34 YEARS, D/o. MAMMATHU HAJI, THALIKKASSERI HOUSE, ULLISSERY, NHAMANGHAT P.O., PIN - 679 563. AS.No. 681 of 1998(A) ADDL R11. Sri. KARIM, AGED 32 YEARS, S/o. MAMMATHU HAJI, THALIKKASSERI HOUSE, ULLISSERY, NHAMANGHAT P.O., PIN - 679 563. ADDL R12. Smt. SAMEERA, AGED 30 YEARS, D/o. MAMMATHU HAJI THALIKKASSERI HOUSE, ULLISSERY, NHAMANGHAT P.O., PIN - 679 563. * (THE ABOVE LEGAL HEIRS OF DECEASED R7 ARE IMPLEADED AS ADDITIONAL RESPONDENTS 8 TO 12 AS PER ORDER DATED 17.08.2011 IN I.A. NO. 276/07) BY ADVS. SRI. RENJI THAMPAN (Sr.) SMT.P.R.REENA FOR R2& 4-6 SRI.D.KRISHNA PRASAD FOR R7 SRI.D.NARENDRANATH FOR R7 THIS APPEAL SUITS HAVING BEEN FINALLY HEARD ON 17/10/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: DMR/- P.BHAVADASAN, J. - - - - - - - - - - - - - - - - - - - - A.S.No. 681of 1998 - - - - - - - - - - - - - - - - - - - - - - - Dated this the 17th day of October, 2011 J U D G M E N T The defendants 2 to 6, who suffered a preliminary decree for partition in O.S.No.171 of 1989 before the sub court, Thrissur are the appellants. 2. The parties and facts hereinafter referred to as they are available before the trial court. 3. Puppakkutti has two sons namely, Koppakkutty Vaidyar and Krishnan Vaidyar. The children of Koppakkutty Vaidyar are 1). Madhavanunni 2). Kunjooli 3). Ishnu Amma 4.) Dr.Bhargavi and 5).Dr. Sankaran. Madhavanunni is no more. His children are Dr.K.Aravindakshan(1st defendant), Dr.K.Radhakrishnan(2nd defendant), Dr.K.Chandramathi(6th defendant), Dr.K.Sarojini(7th defendant). He has another son namely Dr.K.Chandrasekharan, who is no more and his widow and daughter are 8th and 9th defendants. Dr.Aravindakshan who is the first defendant has two :2: A.S.No. 681of 1998 children K. Krishnakumar, who is the plaintiff and Girish Chandran who is the 10th defendant. 2nd defendant Radhakrishnan has two children namely Mayadevi, Sheejadevi and Santhosh are 3rd, 4th and 5th defendants. An assignee from the 2nd defendant is the 11th defendant. 4. Koppakutty Vaidyar and Krishnankutty Vaidyar by virtue of Exts.A1 and A2 partitioned their ancestral property and took their respective shares. The case of the plaintiff is that subsequently his grandfather Madhavanunni obtained property by virtue of a preliminary decree in O.S.No.1 of 1965 and in his hands property so obtained continued to be ancestral property. His father and he by virtue of their birth obtained a right in the property and Madhavanunni who was only the coparcener was entitled to a share in the property. 5. It is stated that Madhavanunni left the place in 1978 and was not thereafter his whereabouts are not known. He must therefore be presumed to be dead. The :3: A.S.No. 681of 1998 plaintiff claimed that he has 2/20 shares over the suit property and alleging that he did not wish to continue the join status laid the suit for partition for his share. 6. The 1st defendant, the father of the plaintiff remained expartee. The defendants 2 to 6 hotly contested the suit. According to them the property obtained by Madhavanunni by virtue of the decree in O.S.No.1 of 1965 is claimed as his self acquired property and he was free to deal with it as he wished and liked. The plaintiff did not acquire any right by birth in relation to the property obtained by Madhavanunni by virtue of decree in O.S.No.1 of 1965. Madhavanunni had executed several gift deeds and wills in respect of the property obtained by him after the decree. The gifts are taken effect and the parties are acted upon. After the disappearance of Madhavanunni and the presumption of death his will had come into effect and the parties have acted on the will also and had taken in possession of their respective properties. These actions, :4: A.S.No. 681of 1998 according to the defendants, are clear indications of the fact that the parties subsequent to the decree in O.S.No.1 of 1965 did not treat the property in the hands of Madhavanunni as an ancestral property but had conceded that thereafter he was holding the property as his own. On the basis of these contentions they prayed for the dismissal of the suit. The defendants 8 and 9 supported the plaintiff. 7th defendant remained exparte. 7. 11th defendant, who is an assignee form the 2nd defendant supported the 2nd defendant and sought to sustain the assignments in his favour. 8. On the above pleadings issues were raised by the trial court. The evidence consists of Exts.A1 to A9 marked from the side of the plaintiff. He did not examine any witnesses. The contesting defendants examined DWs.1 to 4 and had Exts.B1 to B5 marked. 9. On an appreciation of the evidence in the case, the trial court found that the properties obtained by :5: A.S.No. 681of 1998 Madahavanunni in pursuance to the decree in O.S.No.1 of 1965 continued to be ancestral in character in his hands and by virtue of the birth of plaintiff and others in the family they obtained a share in the property. The court below had earlier come to the conclusion that the parties are governed by Hindu Mithakshara Law as modified by custom. The court then found that Madhavanunni was incomepetent to assign his undivided share in the coparcenary property by way of gifts and therefore the gifts are invalid. It is also found that the will is also void. Accordingly a preliminary decree for partition was passed which reads as follows:- a) Plaintiff is allowed to get 2/20 shares out of plaint A and B schedule properties b) Plaintiff is allowed to file application for passing final decree for effecting partition and separate possession o his 2/20 share by metes and bounds. c) Plaintiff is allowed to realize his 2/20 share in mesne profits. d) The cost of the suit will be met out of the income from the assets. 10. The above preliminary decree that is assailed in this appeal. :6: A.S.No. 681of 1998 11. The learned counsel appearing for the appellant pointed out that the court below has misdirected both on facts and in law in passing a preliminary decree. From the facts and the conduct of the parties, the court below was not justified in coming to the conclusion that the property obtained by Madhavanunni in pursuance of the decree in O.S.No.1 of 1965 continued to be ancestral property. A perusal of the preliminary and final decree in the said suit will clearly reveal that it was not a division as contemplated under the personal law but the properties involved in the suit were divided into two halves, one half going to Madhavanunni and other half to the widow and children of Dr.Sankaran, who was the brother of Madhavanunni. It was pointed out that as early as some 1969,1970 etc Madhavanunni had executed gift deeds in favour of several of the parties in the suit and they had taken possession of the properties so gifted to them and had treated them as if it is their own. Some of the properties are gone into the :7: A.S.No. 681of 1998 possession of strangers also. The learned counsel went on to point out that Madhavanunni had executed a will by which he bequeathed the rest of the properties other than the ones covered by the gifts and after his death the will has also come into effect. The learned counsel pointed out that it is significant to notice that the plaintiff had laid a suit only after the death of the wife of Madhavanunni and that clearly shows the lack of bonafide in the suit. According to the learned counsel, finding of the court below that Madhavanunni held the property as ancestral property cannot be sustained. It is pointed out that in the partition evidenced by Exts.A2 and A3, there was disruption of the joint family and thereafter no coparcenary family system. 12. The learned counsel for the appellant pointed out that at any rate, the court below was not justified in holding that as the gift is invalid and the will is also void. The learned counsel also pointed out that there was no issue as such regarding the validity of the will or the gift and the :8: A.S.No. 681of 1998 issue was about whether they are genuine documents. On these grounds the judgment and decree are assailed. 13. The learned counsel appearing for the contesting respondents on the other hand chose to support the findings of the courts below. It is contended on behalf of the contesting respondents that even assuming that there was an unequal partition by virtue of the decree in O.S.No.1 of 1965 which may be as a result of the instruction given by Madhavanunni, cannot effect the rights of coparceners as long as property in the hands of Madhavanunni remains as ancestral property. The learned counsel drew attention of this court to the fact that the property which was a subject matter of division in O.S.No.1 of 1965 was ancestral property in which Madhavanunni had a share. The fact that he did not claim the shares of other coparcenars along with him does not mean that the other coparcenars lose their right. The learned counsel also drew attention of this Court to the fact that in O.S.No.1 of 1965, the sisters of :9: A.S.No. 681of 1998 Madhavanunni were also arrayed as parties but they were not allotted any shares, which would show that the property was treated as coparcenary property. Subsequent conduct of the parties as evidenced by Ext.A7 also would indicate that parties were well aware of the fact that the properties in the hands of Madhavanunni continued to be joint family property. The gift deed executed by Madhavanunni is not valid and share of plaintiffs cannot be affected. The learned counsel fairly conceded the finding that the will is invalid and void may not be sustainable and it may be good as far as the share which Madhavanunni had in the property. 14. It is not much disputed before this Court that parties are governed by Hindu Mithakshara Law modified by custom. The contention that the family was disrupted and the properties in the hands of Koppakutty Vaidyar and Krishnankutty Vaidyar which they acquired under Exts.A2 and A3 do not seem to be ancestral property cannot be accepted. A reading of the Exts. A2 and A3 will leave one in :10: A.S.No. 681of 1998 no doubt that the properties partitioned were ancestral properties along with the property which were self acquired by those two persons or in other words self acquired property were brought into a common hotch-potch and thereafter the division was made. Each person who takes share in the property takes it as ancestrl property. Once such a property is brought to common hotch-potch it is treated as the part of the family property, than subsequent division of the said property is in the nature of an ancestral property. 15. Even assuming that at the time of division there was only a coparcenar in one branch, the moment a son is born to him, his son gets a right by birth and property takes the character of a coparcenary property. If one needs authorities for the above proposition that is provided by the decisions reported in [ Narayana Prabhu and others V.Janardhana Mallan and others AIR 1974 Kerala 108 and Sher Singh and other Vs.Gamdoor Singh AIR SC :11: A.S.No. 681of 1998 1333 ] . Now one has to consider the effect and impact of decree in O.S.No.1 of 1965. That seems to have been a suit instituted by legal heirs of Dr.Sankaran who was one of the brother of Dr.Madhavanunni. They had three sisters. 16. Exts.A3 and A5 are the preliminary and final decree in the said suit. It is significant to notice that though the sisters were brought in as party array, they were not allotted any share. Of course there was a direction to pay a sum of Rs.2500/- by the plaintiff and the contesting defendant to each of the sisters. It is also true that even then when other coparcenar was alive, still they were not shown as the parties in the suit. But it was Madhavanunni who had to take up the contention that the suit is bad for non-joinder of necessary parties. Whatever that be a decree has been passed in the said suit which has become final. 17. Once it is found that in the partition suit the property obtained by Madhavanunni continues it's coparcenary character in his hand, the existing coparcenars :12: A.S.No. 681of 1998 and the subsequently born male children also acquire right by birth in that property. Mere fact that Madhavanunni did not agitate the claim of other coparcenars in O.S.No.1 of 1965 does not affect the right they obtained by birth. It is not in dispute that the property which were subject matter of partition suit O.S.No.1 of 1965 was the ancestral property in the hands of Madhavanunni and late Sankaran. That continues to be so even after the decree in the hands of Madhavanunni. Therefore the contention that some of the coparcenars then alive were not made parties to O.S.No.1 of 1965 and the property obtained by Madhavanunni has to be treated as self acquired property by virtue of decree cannot be countenanced. 18. Coming to the gift deeds executed by Madhavanunni, one can only to say that, that may not be binding on the plaintiff. It's genuineness need not be doubted but the legal capacity of Madhavanunni to execute a gift deed of his share in an undivided family is open to :13: A.S.No. 681of 1998 serious doubt. At any rate, the gifts cannot bind the plaintiff. 19. The lower court may not be justified in coming to the conclusion that the will is void. Going by the Section 30 of the Hindu Succession Act a coparcenar is capable of creating a testamentary document in respect of his share which is capable of disposal. To that extent the lower court may not be correct in saying that the will is bad in law. In fact there is no discussion regarding this aspect at all. Regarding the share bequeathed the extent which Madhavanunni could have been obtained on partition may be good. It is one thing to say that the will is invalid and quite another that only restricted rights could be bequeathed under the will. 20. It cannot be disputed that once the property is treated as ancestral the plaintiff has got 2/20th share. There is a contention that the donee is under various gift deeds have taken the possession of the property and they :14: A.S.No. 681of 1998 were assigned the properties to strangers and others. Unfortunately no serious contention was taken in that regard and there is no contention that the suit is bad for want of relief of recovery of possession. 21. Even when one goes to the recitals in Exts.A3 and A4, it can be seen that the properties can be treated as ancestral properties only. Ext.A7 which is brought to the notice of this Court by the learned counsel for the respondent also throws light in this regard. The properties that are the subject matter of Exts.A1 and A2 being the ancestral properties, the parties get right in property by virtue of birth and properties contiunes to be ancestral property. And that character could not changed in decree in O.S.No.1 of 1965. 22. Therefore it could not be said that the court below was wrong in coming to the conclusion that property in the hands of Madhavanunni continued to be ancestral property and the plaintiff was entited to 2/20th shares of the property. :15: A.S.No. 681of 1998 However the findings as regard to the will needs to be modified. 23. In the result, by confirming the preliminary decree passed by the court below, it is also held that the will said to have been executed by Madhavanunni Ext.B4 is good so far as the extent of property he could have disposed off by will as per Section 30 of the Hindu Succession Act. It is also pointed out by the learned counsel for the defendant that in equity his rights to be protected. He is an assignee from the second defendant. In the event of partition, if it is possible, the property assigned to him may be set apart to the second defendant. Accordingly this appeal is disposed as above and there will be no order as to costs. P.BHAVADASAN, JUDGE kkj