IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE HARUN-UL-RASHID MONDAY, THE 20TH DECEMBER 2010 / 29TH AGRAHAYANA 1932 SA.No. 728 of 1995(C) ------------------------------ AS.52/1986 of SUB COURT,KOTTARAKKARA OS.119/1984 of MUNSIFF COURT, PUNALUR .................... APPELLANT(S): APPELLANT/ PLAINTIFF ---------------------------------------------------------- NARAYANAN NARAYANAN, VALLAMKUZHI VEEDU, THEKKECHERY, PATTAZHI DESOM VILLAGE, REP.BY NEXT FRIEND LEKSHMIKUTTY PANKAJAVALLY DO. BY ADVS. SRI.GEORGE VARGHESE(PERUMPALLIKUTTIYIL) SRI.K.G.DEVARAJAN SMT.V.SUJATHA SRI.A.R.DILEEP SMT.KAVITHA GANGADHARAN RESPONDENT(S): RESPONDENT ----------------------------------------------- *1. KUNJALI KALLYANI, VALLAMKUZHY VEEDU, THEKKETHERI, PATAZHI DESOM VILLAGE, KOTTARAKARA. 2. NARAYANAN RAGHAVAN, DO. DO. *3. NARAYANAN CHELLAPPAN, DO. DO.(DIED) R1 DIED LRS RECORDED. *IT IS RECORDEDTHAT RESPONDENT NO. 1 DIED AND APPELLANT AND RESPONDENTS 2 & 3 THE LRS OF DECEASED RESPONDENT NO. 1 AS PER ORDER DTD. 18.12.02 ON CMP. 2357/02. *R3 DIED LRS OF R3 IMPLEADED. 4. C.SASIDHARAN, VALLAMKUZHI VADAKKETHIL THEKKETHERI PATTAZHI DESOM, VILLAGE KOTTARAKARA. tss S.A. NO.728./1995 5. C.THULASIDHARAN, DO. DO. 6. T.CHANDRAMATHY, DO. DO. 7. SOBHANAKUMARI, DO. DO. 8. C.MADHUSUDHANAN, DO. DO. 9. L.THANKAMMA. *ADDL. R4 TO R9 ARE IMPLEADED AS THE LRS OF DECEASED R3 AS PER ORDER DTD. 2.8.2010 IN IA. 1884/2004. R1 & R2 SRI.V.N.ACHUTHA KURUP, SENIOR ADVOCATE R1 & R2 BY ADV. SRI.B.S.SWATHY KUMAR R5 BY ADV. SRI.BINDU SREEKUMAR THIS SECOND APPEAL HAVING BEEN FINALLY HEARD ON 20/12/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: tss HARUN-UL-RASHID, J. ------------------------ S.A.No.728 Of 1995 ---------------------- Dated this the 20th day of December, 2010. J U D G M E N T The following substantial questions of law are formulated in the appeal. 1. Are the plaint schedule properties are the sub- tarwad properties in the hands of the 1st defendant or her separate property. 2. Is the plaintiff entitled to 1/4th share in the plaint properties as per Section 32 of the Travancore Ezhava Act of 1101. 3. Are not the properties obtained by a Marumakkathayee female and her children before or after the date of the Travancore Ezhava Act of 1101 to be treated as the sub-tarwad property of the thavazhi of the donee and liable to be divided among the wife and each of the children in equal shares. 4. Are the dismissal of I.A.Nos.155/94 & 1556/94 by the lower appellate court justified on valid and legal grounds. 2. The plaintiff in O.S.No.119 of 1984 on the file of the Munsiff Court, Punalur is the appellant. The appeal is directed against the decree and judgment in A.S.No.52 of 1986 on the file S.A.No.728 Of 1995 ::2:: of the Sub Court, Kottarakkara. Suit was filed for partition. The trial court held that the plaint schedule item Nos.1 & 2 are not available for partition and therefore the plaintiff is not entitled to any reliefs sought for in the plaint. The lower appellate court confirmed the decree and judgment. Parties hereinafter are referred to as the plaintiff and defendants as arrayed in the suit. 3. According to the plaintiff plaint item Nos.1 & 2 devolved on the first defendant as her family property and plaintiff and first defendant are in joint possession and enjoyment of the property. The first defendant is the mother, plaintiff and defendants 2 & 3 are her children. The relief sought for in the plaint is to divide the property into 4 equal shares and to allot one such share to the plaintiff. The plaintiff pleaded that if any documents has been created by the defendants without the consent and participation of the plaintiff, such documents are void and cannot bind the rights of the plaintiff over the plaint schedule property. 4. Defendants 1 to 3 filed a joint written statement denying the plaint averments and prayed for dismissal of the suit. S.A.No.728 Of 1995 ::3:: According to the defendant plaint item No.2 was gifted by the first defendant to defendants 2 & 3 as per gift deed No.1366 dated 23.3.1964, marked as Ext.A1 in the case, that plaint item No.1 was also settled in favour of defendants 2 & 3 by the first defendant as per settlement deed No.2468 dated 20.6.1974, marked as Ext.A2. The first defendant and the plaintiff have life estate over item No.1 property as per the terms of the above said settlement deed. The defendants contended that in the light of the above said documents, the plaintiff and defendants are enjoying the properties and neither the plaintiff nor his friend has any right to challenge the right of the property. It is also contended that in the light of the aforesaid documents, the plaint schedule properties are not available for partition. It is also contended that the plaint schedule item No.1 is the self acquired property of the first defendant and after the suo motu proceedings of the Pattazhy Devaswom Settlement Officer in the year 1968, patta has been issued in favour of the 1st defendant as patta No.2421 dated 19.2.1964. It is also averred that assignment proceedings in favour of defendants 2 & 3 in view of S.A.No.728 Of 1995 ::4:: the gift deed have been initiated and patta has been issued in favour of the 3rd defendant on 23.7.1970 as patta No.6095. It is specifically contended that the plaintiff has has only a right of life estate along with the 1st defendant over the plaint schedule item No.1 property and the plaintiff is being maintained by defendants 2 & 3. 5. The trial court as well as the appellate court examined and appreciated the oral and documentary evidence adduced by the parties in support of their respective contentions. Oral evidence of PWs 1 to 3, DW1 & 2 and Exts.A1 to A5 were marked. 6. The question examined by trial court as well as the appellate court is as to whether the plaint schedule properties are partible, is the plaintiff entitled to a division and separation of 1/4th share as claimed by him and as to whether the documents executed by the first defendant in favour of defendants 2 & 3 is void or not. 7. The plaintiff is a deaf and dumb person, represented by his wife as next friend. PW1 is the next friend. PW1 testified S.A.No.728 Of 1995 ::5:: that item No.2 devolved on the first defendant as her share over her family property. The first defendant executed Ext.A1 gift deed in favour of defendants 2 & 3,who are the brothers of the plaintiff, Narayanan. According to PW1, first defendant mother has no right to executed such gift deed in favour of defendants 2 & 3 alone, that Ext.A1 cannot bind the share of the plaintiff and therefore the plaintiff is entitled to 1/4th share over the said item. The plaintiff also contended that in respect of item No.1, settlement deed has been executed by the first defendant in favour of defendants 2 & 3 as per Ext.A2. Plaintiff’s case is that both items jointly belongs to the plaintiff and defendants and therefore he is entitled to 1/4th share over the plaint items. 8. Ext.A2 takes in item No.1 property and Ext.A1 item No.2 property. The definite case of the plaintiff is that the plaint schedule properties are family properties of the first defendant, mother of the plaintiff and defendants 2 & 3, that the properties are being possessed and enjoyed by plaintiff and defendants 2 & 3 jointly, that the Pattazhy Devaswom Settlement Officer has issued patta in respect of the property in favour of the 1st S.A.No.728 Of 1995 ::6:: defendant for and on behalf of the family and that after the coming into force of the Joint Hindu Family System Abolition Act, the plaintiff and defendants are enjoying the property as co- owners. Ext.A2 relates to item No.1 property, patta has been issued by the Pattazhy Devaswom Settlement Officer as patta No.2421 in the name of the first defendant mother. Subsequently, the mother gifted the property to defendants 2 & 3 by virtue of Ext.A2 settlement deed. In Ext.A2 a reference has been made that 3rd son Narayanan is incapacitated being deaf and dumb and that defendants 2 & 3 shall maintain him also. Except the right to take income from the property, Narayanan, plaintiff who is the third son of the first defendant has no right to take any share over the plaint schedule property. Though the plaintiff contended that item No.1 property was purchased for and on behalf of the family utilizing the sale proceeds of 5 cents of nilam which she sold away to Madhavi Lekshmi, wife of one of the brothers of the plaintiff, the trial court as well as the appellate court disbelieved the said contention and held that item No.1 property is not available for partition since the same is the S.A.No.728 Of 1995 ::7:: self acquired property of the mother. The court accepted the evidence of mother as DW1. She testified before the court that item No.1 property was purchased with her own funds available with her by sale of 45 sovereign gold ornaments and therefore the item No.1 property was held as the self acquired property of the mother. Learned counsel for the appellant submitted that the testimonies of mother as DW1 was not correctly appreciated and the findings were entered without proper appreciation of relevant facts and materials on record. The learned counsel also submitted that the plaintiff has filed a petition for a direction to the defendants to produce the prior documents relating to item No.1 property. In spite of the direction issued by the court the defendants did not produce the document. In spite of that the court relying on the testimony of DW1 alone held that the item No.1 property is a self acquired property. The trial court as well as the appellate court interpreted Ext.A2 and held that item No.1 property is a self acquired property of the mother. In fact, Ext.A2 is the settlement deed executed by the mother in favour of the two children. In fact the prior documents by which the S.A.No.728 Of 1995 ::8:: mother got title to the property is very relevant for consideration. Without those documents in evidence it cannot be appropriate to reach a conclusion based on Ext.A2 settlement deed that item No.1 property is the self acquired property of the mother. 9. Ext.A1 is the gift deed executed by the mother in favour of defendant 2 & 3 gifting item No.2 property. It is recited in Ext.A1 that the property devolved on the mother as per partition deed No.4278/1112, that she got absolute right and title over the same. The mother as DW1 deposed before the court that item No.2 property originally belonged to her father. The question considered by the trial court is whether the property covered by Ext.A2 is the family property of the first defendant and whether item No.2 is available for partition. The parties admitted before the trial court as well as the appellate court that they are governed by Travancore Ezhava Act (Regulation 111 of 1100). Section 32 of the said Act provides that Makkathayam property governed by this Act is divisible among wife and children equally if acquired before the date of passing of this regulation. The regulation was passed on 13.4.1925. In Ext.A1 there is S.A.No.728 Of 1995 ::9:: reference to the partition deed of 1112. The appellant/plaintiff has produced the said partition deed of 1112 before the appellate court. A perusal of the partition deed of 1112 prima facie shows that item No.2 property was obtained by the first defendant mother by virtue of settlement deed No.755/1103. It is recited that by virtue of these two documents, parties to the partition deed acquired title over the properties covered by partition deed of 1112. Learned counsel for the appellant/plaintiff also brought to my notice that he has produced the settlement of 1103 referred to in the partition deed of 1112 before the lower appellate court along with I.A.No.1555/1994. According to him a combined reading of partition deed of 1112 r/w settlement deed of 1103 would clinches the issue and there is every reason for the fact finding courts to find that item No.2 property is the property acquired after the date of passing of Travancore Ezhava Act (Regulation 111 of 1100) and therefore is available for partition. The trial court held that the property is not available for partition mainly placing reliance on Ext.A1. The appellate court confirmed the finding regarding item No.2 placing reliance of the partition S.A.No.728 Of 1995 ::10:: deed of the year 1112 and the recitals in that documents which according to the learned Judge shows that the father of the first defendant settled the schedule property in favour of the first defendant and others as per settlement deed of 1780/1097. In fact the lower appellate court found against the plaintiff by placing reliance on partition deed which contains a reference to 1097 document. Learned Judge failed to notice the fact that two documents are referred in the 1112 partition deed, one is 1097 ME document and the other 1103 document. The question as to whether the item No.2 property is available for partition depends on the fact as to the date of acquisition of the property by the mother. If the mother acquired the property after the coming in to force of the Regulation, then, all the children are entitled to share equally along with mother. Learned counsel for the respondent/defendant submitted that the courts below ought to have considered the nature of the property as to whether it is a makkathayam property or marumakkathayam property. 10. In the result, in the light of the discussion made above, I am of the view that the matter requires a fresh S.A.No.728 Of 1995 ::11:: consideration by the court below. The trial court shall receive in evidence the documents produced by the plaintiff namely, partition deed of 1112 and the settlement deed of 1103. The parties shall be given an opportunity to adduce further evidence if any, The case shall be decided afresh after considering additional materials, if any produced. Since the suit is of the year 1984, the court below shall hear and dispose of the case within a period of nine months from the date of receipt of the records. Parties shall appear before the court below on 24.1.2011. The trial court shall dispose of the case afresh untrammeled by any of the observations made in this judgment. The appeal is disposed of as above. No order as to costs. HARUN-UL-RASHID, Judge. bkn/-