IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE PIUS C.KURIAKOSE TUESDAY, THE 23RD SEPTEMBER 2008 / 1ST ASWINA 1930 AS.No. 579 of 1999(D) --------------------- OS.683/1995 of III ADDL.SUB COURT, ERNAKULAM .................... APPELLANT(S): -------------- SMT.KARTHYAYANI AMMA, AGED 73 YEARS W/O PARAMESWARAN NAIR MANAYIL KEERIKKATT HOUSE, IRIMPANAM KARA, THIRUVANKULAM VILLAGE, KANAYANOOR TALUK. BY ADV.SRI.S.V.BALAKRISHNAN IYER SRI.K.JAYAKUMAR SRI.P.B.KRISHNAN RESPONDENT(S): --------------- 1. MADHAVAN NAIR, AGED 89 YEARS, S/O NANI AMMA, RESIDING AT CHOORAKKATTU HOUSE, IRIMPANAM KARA, THIRUVANKULAM VILLAGE, KANAYANNOOR TALUK (DIED) 2. NARAYANA PILLAI, AGED ABOUT 64 YEARS S/O PADMANABHA PILLAI, RESIDING AT ASWATHI HOUSE,. IRIMPANAM KARA, THIRUVANKULAM VILLAGE, KANAYANNOOR TALUK. ADDL. RESPONDENTS: 3. M.M. MENON, S/O LATE MADHAVAN NAIR, RESIDING AT XL/6422, 6051, T.D.ROAD, ERNAKULAM. 4. BALAKRISHNA MENON S/0 DO. RESIDING AT JANAKI NIVAS, NEAR POTTAYIL TEMPLE, EROOR PO., ERNAKULAM DISTRICT. 5. SIVARAMAN S/O DO. RESIDING AT MAYA NIVAS, NEAR MAKALIYAM TEMPLE, IRIMPANAM PO., ERNAKULAM DISTRICT. 6. MURALI S/O DO. RESIDING AT KEERIKKATTU HOUSE, (CHOORAKKATT) NEAR HILL PALACE NORTH GATE, IRIMPANAM PO., ERNAKULAM DISTRICT. 7. GANGADHARAN PILLAI, RESIDING IN DO. DO. 8. RAJU S/O GANGADHARAN PILLAI,IN DO. DO. 9. JAYAN, S/O DO. RESIDING IN DO. DO. DO. 10. BINDU D/O DO. IN DO. DO. 11. SUJATHA W/O LATE VENU, ADVOCATE, L.I.G. 560 PANAMPILLY NAGAR, ERNAKULAM, KOCHI-36. 12. ARUN S/O DO. IN DO. DO. NOW STUDYING FOR MBBS UNIVERSITY COLLEGE, PONDICHERRY. THE LEGAL REPRESENTATIVES OF THE DECEASED 1ST RESPONDENT ARE IMPLEADED AS ADDL. R3 TO R12 S PER ORDER DT. 3-4-08 IN IA.3368/07 ADV. SRI.S.SREEKUMAR FOR R2 SRI.P.K.SOYUZ FOR R2 THIS APPEAL SUIT HAVING BEEN FINALLY HEARD ON 23-9-08 THE COURT ON THE SAME DAT DELIVERED THE FOLLOWING: PIUS C. KURIAKOSE, J. ----------------------------------------------- A.S.No. 579 of 1999 ----------------------------------------------- Dated this the 23rd day of September, 2008 J U D G M E N T The plaintiff in a suit for partition and declaration being aggrieved by the decree dismissing the suit has preferred this appeal. As averred in the plaint, the plaintiff is the lineal descendant of Nani Amma who had two children, viz., Kochukutty Amma and Madhavan Nair. The plaintiff is the sole heir of Kochukutty Amma who died in 1988. After the death of Nani Amma her rights devolved on Kochukutty Amma and Madhavan Nair, the first defendant. During the life time of Nani Amma a partition was effected in the family vide document registered as partition deed No.1808/1124 M.E. (Ext.A1) of the Sub Registry, Tripunithura. Under that partition Smt.Nani Amma and Madhavan Nair were jointly allotted B-schedule properties while Kochukutty Amma and plaintiff were jointly allotted A-schedule properties. Upon the death of Smt.Nani Amma the children of plaintiff filed O.S. No. 207/1954 for setting aside A1 partition deed and for partition of the properties. The above suit was compromised. According to the plaintiff the effect of the compromise is a declaration that Ext.A1 partition deed is void. Accordingly, plaintiff contended that the first defendant Madhavan Nair does not have any exclusive right AS. N0. 579/99 -2- over the plaint schedule properties and as such the plaintiff is entitled to get ½ rights of the properties of Smt.Nani Amma. The first defendant sold 66.500 cents of property to the second defendant Narayana Pillai under Ext.A4 sale deed dated 10-4-1980. It is averred that the first defendant executed Ext.A4 concealing the fact that Ext.A1 partition deed was inoperative. It is also averred that the plaintiff was unaware of the execution of Ext.A4. It is alleged that the first defendant did not act in conformity with the compromise in O.S. No. 207/54. It is clear that the plaintiff's right in the plaintiff schedule property is yet to be decided and the plaintiff enjoys an undivided interest in the plaint schedule properties and that the first defendant has no right to execute Ext.A4 sale deed in favour of the second defendant. It is on the above allegations that the suit was instituted for a declaration that Ext.A4 is liable to be declared as void and for a partition. 2. The second defendant filed a detailed written statement contending that on execution of Ext.A1 partition deed Nani Amma and the first defendant formed one Thavazhi and upon the demise of Nani Amma, Nani Amma's share devolved on the first defendant. The plaintiff claimed that by virtue of the compromise in O.S. 207/54 AS. N0. 579/99 -3- (Ext.A3 is the compromise petition), Ext.A1 had become inoperative is denied. The averment that A4 has become null and void is stoutly refuted. It is claimed that the compromise decree passed in OS. 207/54 on the basis of Ext.A3 compromise petition will not in any way affect the first defendant's rights over the suit properties since Nani Amma's share if any devolved only upon the first defendant. Second defendant purchased the property from the first defendant for valuable consideration and made valuable improvements and put up additional structures in the property. Ext.A4 sale deed is valid, legal, proper and supported fully by consideration. It was also contended that if at all the plaintiff had any right over the plaint schedule property the same has been lost to him by ouster, adverse possession and limitation. The decree in O.S. 207/54 operates as res judicata against the plaintiff. Upon Nani Amma's demise her interest devolved only upon the first defendant. The first defendant filed separate written statement adopting the contentions raised by his assignor the second defendant. The learned Subordinate Judge formulated the following issues for trial. 1. Whether the plaint schedule property is partible? 2. Whether the plaintiff is entitled to the half share in the plaint schedule property? AS. N0. 579/99 -4- 3. Whether the 1st defendant has exclusive right over the plaint schedule property? 4. Whether the plaintiff is entitled for mesne profits? 5. Whether document No.1300/80 is valid, legal and for valuable consideration and is not non est in law or not? 6. Whether the suit is bad by res judicata? 7. Whether the defendant has perfected title by adverse possession and limitation? 8. Whether the denial of the averment that the partition deed No.1808/1124 M.E. Was declared null and void, is true? 9. Reliefs and costs. 3. The evidence in the case consisted of the oral testimonies of Pws. 1 and 2 and documents A1 to A6 on the side of the plaintiff. On the side of the defendants the evidence consisted of the oral testimony of DW-1 and documents Exts. B1 to B27. Ext. A1 is the partition deed No.1808/1124 of Tripunithura Sub Registry. A2 is the copy of the plaint in OS. 207/54 and A5 is the copy of the suit notice and A6 is the reply notice. Ext.B1 is the sanction for acquisition of immovable property given by the Flag Officer Commanding in Chief of Southern Naval Command to the second defendant. Ext.B2 is the permission given by the Chief of the Naval Staff to the second AS. N0. 579/99 -5- defendant for change of permanent home station to the building on the suit property. Ext.B3 is the application for change of ownership of the electric connection given to the building on the suit property in favour of the second defendant. Ext.B4 is power allocation for agricultural purpose in favour of the second defendant in respect of the suit property. Ext.B5 is the receipt issued by KSEB to the second defendant against payment of power charges. B6 is letter issued by the Assistant Accounting Officer, KSEB to the 2nd defendant. Ext.B7 is copy of leave application submitted by second defendant on 30-1- 1982. Ext.B8 is telephone bill issued to the 2nd defendant. Ext.B9 is the electricity bill. Ext.B10 to B13 are receipts issued by the Thiruvamkulam Panchayat against remittance of property tax for the building on the suit property. Exts.B14 to B17 are leave applications submitted on different dates. Ext.B18 is building tax notice issued by the Thiruvamkulam Panchayat to the second defendant. Exts.B19 and 20 are letters issued by NSS Karayogam, Irumpanam to the 2nd defendant. Ext.B21 is letter dated 29-6-87 issued by Naval Pay Office, Bombay to the second defendant. Ext.B22 is ration card. Ext.B23 is electoral card. Ext.B24 is notice issued by the President, Kerala State Karshaka Thozhilali Union to the second defendant. Ext.B25 is post AS. N0. 579/99 -6- office pass book issued by Irumpanam Post Office. Ext.B26 is letter dated 11-2-1994 issued by the plaintiff's son Unnikrishnan. Ext.B27 is certified copy of the document No.37 of 1955 of the Sub Registry, Tripunithura. The learned Subordinate Judge would appreciate the evidence adduced by the parties and considered issue Nos. 1 to 8 jointly. It was found that Ext.A4 document has conferred a valid title over the property to the second defendant. It was also found that even if it is assumed that the second defendant was having only co- ownership rights over the property then also the title claimed by the plaintiff is lost to the plaintiff by adverse possession and ouster. Thus all the issues were answered in favour of the plaintiff and accordingly the suit was dismissed with costs. 4. This appeal has been instituted raising various grounds. Inter alia it is urged that the decree passed pursuant to Ext.A3 compromise petition has resulted in nullification of Ext.A1 partition deed. It is urged in this context that Ext.A3 compromise has not been interpreted by the court below through the correct legal perspective. It is urged that the plaintiff retained membership in the Thavazhy of Nani Amma and hence is entitled to inherit the properties left behind by Nani Amma as a heir. It is urged that Ext.A1 partition deed has been AS. N0. 579/99 -7- construed wrongly by the court below. Had Ext.A1 been read as a whole the court below would have found that the stipulation therein that the plaintiff will not have any right over the property allotted to the Thavazhy of Nani Amma was ineffective. It is urged that issues 1 and 2 should have been considered separately and that those issues should have been found in favour of the plaintiff holding that the plaintiff is entitled for one-half share over the plaint schedule property. It is urged that findings on adverse possession and ouster have been entered by the court below in a very casual manner. There was no evidence to hold that the plaintiff had any notice regarding Ext.A4 document prior to the first week of December 1993 A plea of adverse possession and ouster requires concrete evidence for its establishment since the presumption is that co-owners hold jointly. 5. I have heard the submissions of Sri.S.V.Balakrishna Iyer, learned senior counsel for the appellant and Sri.S.Sreekumar, learned counsel for the second respondent second defendant. 6. Making submissions on the basis of the various grounds raised in the appeal memorandum Mr.S.V.Balakrishna Iyer drew my attention to Ext.A1 partition deed, A2 plaint, A3 compromise petition, A4 and B27, he referred to section 7 of the Hindu Succession Act and AS. N0. 579/99 -8- Section 59 of Cochin Nayar Act. He would cite the judgment of the Division Bench in Devaki v.M.V.Kumaran, AIR 1977 Ker. 110 as well as the judgment of this court in P.C.U. Menon v. K.N. Menon, AIR 1972 Ker. 198. 7. Sri.S.Sreekumar, learned counsel for the respondent was able to meet all the submissions of Mr.Balakrishna Iyer. He took me through the findings of the learned Subordinate Judge and would submit that the above findings have the support of binding judicial precedents such as judgment of the Division Bench in Bhavani Pilla v. Ammukutty Pilla, 1958 KLT 869 and the judgment of T.C.Raghavan, J. in Bhagavathy Amma & others v.Narayana Pillai, 1966 KLT 11. Very strong reliance was placed by Mr.Sreekumar on the judgment of the Supreme Court in T.Madhava Kurup v. T.C.Madhava Kurup, (2006) 4 SCC 399. I have made a reappraisal of the evidence which was adduced before the court below and have carefully scanned those items of the evidence to which my attention was drawn by the learned counsel in their submissions. I have examined the ratio of the various decisions cited at the Bar. 8. The finding of the trial court that Ext.A1 document of partition was not set aside by the compromise decree pursuant to Ext.A3 AS. N0. 579/99 -9- compromise petition and that the compromise decree not only did not disturb the partition deed but in effect reiterated the partition deed and made Sri. Unnikrishnan otherwise not a party to the partition deed to be bound by that deed is supported by the evidence and circumstance of this case. So also the learned Subordinate Judge's finding that the decree in OS. No. 207/54 operates as res judicata for the present suit and that the plaintiff's subsequent conduct entering into Ext.B27 partition deed on the basis of that decree shall estop the plaintiff from agitating the present claim is also supported by the evidence in the case. As ruled by the Division Bench in Bhavani Pillas case, (1958 KLT 869) once a Marumakkathayam tarwad becomes divided there will be no tarwad on behalf of which a divided member can sue. In 1966 KLT 11 it has been held, interpreting the provisions of Marumakathayam Law, that tavazhi exists always in relation to a tarwad and when a tarwad is partitioned into tavazhies, the tavazhies themselves become tarwads. Thus once Ext.A1 partition deed is upheld the plaintiff's claim for a share in the properties which had been allotted under Ext.A1 to the tavazhi of Nani Amma cannot be upheld since under A1 she had ceased to be a member of the original tavazhi and become member of a new tavazhi or tarwad in which Nani AS. N0. 579/99 -10- Amma had ceased to be a member. The judgment of the Supreme Court in Madhava Kurup's case in my opinion would decide the issue against the appellant. The case before the Supreme Court was one whether the parties were governed by Marumakkathayam Law of inheritance. The question which arose was whether the suit properties being tavazhi properties devolved on the two surviving male members of the tavazhi after the death of the last female member as co-owners, or whether the suit properties devolved upon one of them as the last surviving male owner by survivorship, who acquired the same as his absolute property. The Supreme Court held that while under the Hindu Law, descent is traced through males in the Marumakkathayam system of inheritance, it is traced through females. In the case of a Hindu joint family a single male coparcener may continue the coparcenary with his sons who may be born later, but in the absence of a female member a tavazhi cannot be continued by male members alone. It was also noticed that if the sole surviving member of the tavazhi is a female different considerations may arise. The Supreme Court would further 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 AS. N0. 579/99 -11- 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. When the findings of the learned Subordinate Judge are examined in the background of the exposition of the Marumakkathayam Law by the Honourable Supreme Court I become inclined to hold that those findings do not warrant any interference. The appeal will stand dismissed. (PIUS C.KURIAKOSE, JUDGE) ksv/