IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR TUESDAY, THE 7TH JUNE 2011 / 17TH JYAISHTA 1933 RSA.No. 367 of 2011() ------------------------------- AS.NO. 61/2002 of SUB COURT, PAYYANNUR OS.NO. 644/1998 of MUNSIFF'S COURT, THALIPARAMBA .................... APPELLANT APPELLANT/LRS. OF 2ND DEFENDANT --------------------------------------------------------------------------- 1. PALAKKIL MAVILA VALAPPIL BALAKRISHNAN (DIED). 2. M.T. DAKSHAYANI, W/O. LATE P.M.BALAKRISHNAN, PUNAKKUDA HOUSE, KALLIASSERI AMSOM,DESOM, ANCHAMPOODIKA(PO), KANNUR DISTRICT. 3. M.T. AJITHAN, S/O. LATE P.M.BALAKRISHNAN PUNAKKUDA HOUSE, KALLIASSERI AMSOM, DESOM, ANCHAMPOODIKA.P.O., KANNUR DISTRICT. 4. M.T.RAJITH, S/O. LATE P.M.BALAKRISHNAN, PUNAKKUDA HOUSE, KALLIASSERI AMSOM DESOM, ANCHAMPOODIA.P.O., KANNUR DIST. 5. M.T.SAJITH, S/O. LATE P.M. BALAKRISHNAN PUNAKKUDA HOUSE, KALLIASSERI AMSOM DESOM, ANCHAMPOODIKA (PO) KANNUR DISTRICT. BY ADV. SRI.V.RAMKUMAR NAMBIAR RESPONDENT(S): PLAINTFFS 1 & 2 & DEFENDANTS ---------------------------------------------------------------------------- 1. PALAKKIL MAVILA VALAPPIL RAGU RAJ, S/O. MEENAKSHI, AGED 34 YEARS, NALLAKENI THERU, EDAMALAI PETTY,PUTHUR.P.O.TIRUCHI-12, TAMIL NADU-620 012. 2. PALAKKIL MAVILA VALAPPIL BEENA KUMARI, AGED 32 YEARS,NALLAKENI THERU, NALLAKENI THERU, EDAMALAI PETTY, PUTHUR.P.O., TIRUCHI-12,TAMIL NADU-620 012. sts 2/- -2- R.S.A.NO.367/2011 3. PALAKKIL MAVILA VALAPPIL MEENAKSHI AMMA, D/O. NARAYANI AMMA, AGED 68 YEARS, NALLAKENI THERU, EDAMALAI PETTY, PUTHUR.P.O., TIRUCHI-12, TAMIL NADU-620 012. 4. PALAKKIL MAVILA VALAPPIL KUNHIH ROHINI (DIED). 5. KALIKKODAN PULLIYATH VEETTIL LOOLA AMMA (DIED). 6. K.P. ANITHA, D/O. LEELA, AGED 30 YEARS, JAGANATHAPURAM, III STREET, CHETPET, CHENNAI-31.PIN-600031 7. K.P. LALITHA, D/O. LEELA, AGED 30 YEARS, NO.30,JAGANATHAPURAM, III STREET, CHETPET, CHENNAI-31.PIN- 600 031 8. PALAKKIL MAVILA VALAPPIL RAGHUNATHAN, S/O. MEENAKSHI, AGED 50 YEARS, ASSISTANT DIRECTOR, PONMALA, CHERUVATHUR-PIN-671 313. 9. PALAKKIL MAVILA VALAPPIL JYOTHI KUMAR, S/O. MEENAKSHI, AGED 46 YEARS, B.S.N.L. THAYALANGUDI, KASARGODE-PIN- 671 531. LRS OF DECEASED RESPONDENTS 4 & 5 SUPPL: 10. CHANDRASEKHARAN,"SREESAKTHI", NEAR NARENDRA COLONY, PALLIKKUNNU.P.O., KANNUR DISTRICT-PIN- 670 004. 11. APARNA (MINOR), REPRESENTED BY FATHER, CHANDRASEKHARAN,"SREESAKTHI", NEAR NARENDRA COLONY, PALLIKKUNNU.P.O., KANNUR DISTRICT-PIN-670 004. BY THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 07/06/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: sts M.SASIDHARAN NAMBIAR, J ........................................... RSA .NO.367 OF 2011 ............................................ DATED THIS THE 7th DAY OF JUNE, 2011 JUDGMENT Legal heirs of the second defendant, who died subsequent to the preliminary decree passed by Munsiff Court, Taliparamba in O.S.644 of 1998 are the appellants. Plaintiffs are the defendants and legal heirs of the deceased defendant. The suit was filed for partition and separation of the share of respondents 1 and 2, the plaintiffs in the plaint A schedule immovable property and B schedule movable properties. The plaint A schedule property admittedly originally belonged to Sreedevi Amma. Narayani Amma is the daughter in law of Sreedevi Amma, being the widow of her son Govindan Nambiar. Deceased Narayanan Nambiar and defendants 1 to 3 are their children. Fourth defendant is the widow and defendants 5 and 6 are the children of Narayanan Nambiar. Plaintiffs and defendants 7 and 8 are the children of first defendant Meenakshi Amma. Admittedly, Sreedevi Amma executed Ext.A1 gift deed in favour of Narayani Amma and her then living children whereunder plaint A schedule property was gifted. Respondents 1 and 2 are claiming that as RSA 367/2011 2 under Ext.A1, the gift was in favour of the thavazhi of Narayani Amma, all her children and the descendants in the female line are entitled to a share and they along with defendants 7 and 8 are also members of the tavazhy and hence their share is to be separated. The second defendant in the written statement, contended that the plaintiff and defendants 7 and 8 who are the children of the first defendant have no right in the plaint A schedule property and they are not entitled to claim any share. It was contended that though under Ext.A1 gift deed executed in 1942, plaint A schedule property was gifted to Narayani Amma and her four children, it was never intended to be for the thavazhi property and therefore plaintiffs and defendants 7 and 8 are not entitled to claim any share. 2. Learned Munsiff on the evidence of PW1, DW1, Exts.A1 to A4, B1 to B4(h) and C1 granted a preliminary decree directing division of the plaint A schedule property into 24 equal shares and allotment of six such shares to the plaintiffs holding that defendants 1 to 3, 7 and 8 are entitled to get 3/24 shares each and defendants 4 to 6 together are entitled for 1/24 shares, holding that Ext.A1 gift was in favour of the thavazhi of Narayani Amma and therefore plaintiffs and defendants 7 and 8 who are RSA 367/2011 3 the children of the first defendant Meenakshi Amma, the daughter of Narayani Amma, are also entitled to equal share. It was also provided that tarwad house is to be alloted to the share of second defendant and as far as possible, the present possession of the properties shall be reserved to the respective sharers. Appellants being the legal heirs of deceased second defendant, filed A.S.61 of 2002 challenging the preliminary decree. Plaintiffs along with defendants 7 and 8 filed a cross objection challenging the reservation. Learned Sub Judge on re- appreciation of evidence, confirmed the preliminary decree and modified the reservation granted in favour of second respondent holding that equity and reservation can be considered at the time of passing the decree. It is challenged in the second appeal. 3. Learned counsel appearing for appellant was heard. 4. The argument of learned counsel is that though under Ext.A1, the properties were gifted by Sreedevi Amma to her daughter in law and her children, the finding of the courts below that the said gift is in favour of the thavazhi is not sustainable. It was pointed out that it is admitted that item No.2 of the property covered under Ext.A1 was subsequently transferred by the donees and even though 7th defendant was alive at the time of RSA 367/2011 4 execution of the assignment deed, 7th defendant was admittedly not a party and it establishes that the parties did not treat the plaint A schedule property as a thavazhi property. Though the learned counsel argued the other contentions raised in the appeal memorandum, I find that the only dispute is whether the gift under Ext.A1 is in favour of Narayani Amma and her four children named in Ext.A1 or for her thavazhi. 5. As rightly found by the courts below, Narayani Amma was the wife of the son of Sreedevi Amma. They are admittedly marumakkathayis. The property gifted under Ext.A1 is not to the daughter in law, but to the daughter in law and her children who constitute a thavazhi. As rightly found by the courts below, Ext.A1 makes it absolutely clear that the gift is in favour of the thavazhi of Narayani Amma and not to the mother and four children who were even born at that time. The fact that while assigning one of the items covered under Ext.A1, the daughter of the first defendant was not a party by itself will not show that it is not a gift to the thavazhi. In such circumstances, I find no substantial question of law involved in the appeal. It is dismissed. M.SASIDHARAN NAMBIAR, JUDGE lgk