IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.BHAVADASAN MONDAY, THE 19TH SEPTEMBER 2011 / 28TH BHADRA 1933 AS.No. 442 of 1997() & CROSS OBJECTION -------------------- OS.94/1990 of ADDL. SUB COURT, THALASSERY .................... APPELLANT(S)/34TH DEFENDANT: ------------------------------------------------ KANDAN LAKSHMI AMMA, D/O. KUNHIRAMAN NAMBIAR, AGED 48 YEARS, NO OCCUPATION, RESIDING AT CHAVASSERI AMSOM, (DIED) VELIYAMBRA DESOM, TELLICHERRY TALUK. ADDL. APPELLANTS 2 TO 6 IMPLEADED. 2. KANDAN NARAYANAN NAMBIAR, S/O. LATE LAKSHMI AMMA, PR NAGAR P.O., VELIYAMBRA, THALASSERY KANNUR DISTRICT. 3. BALAKRISHNAN NAMBIAR, S/O. LATE LAKSHMI AMMA, RESIDING DO. 4. OMANA, D/O. LATE LAKSHMI AMMA, DO. 5. THANKAMANI, D/O. LATE DO. RESIDING DO. 6. PRABHAKARAN, S/O. DO. RESIDING DO. ADDL. APPELLANTS 2 TO 6 IMPLADED BEING THE LEGAL REPRSENTATIVES OF DECEASED SOLE APPELLANT AS PER ORDER DT. 3.11.2010 IN I..A. 266/2009. BY ADV. SRI CIBI THOMAS RESPONDENT(S)/PLAINTIFFS & D1 TO D33 AND D35: ------------------------------------------------------------------------ 1. KILIYANGAT PADUVILAN VANAKASHI, D/O. PADMINI AMMA, AGED 24 YEARS, OCCUPATION OT KNOWN, RESIDING AT KEEZHUR AMSOM, 34 PUNNAD DESOM, KATTEKANDAM POST, CHAVASSERY, TELLICHERRY TALUK. 2. BROTHER -DO- SATHYAN, AGED 22 YEARS, OCCUPATION NOT KNOWN, RESIDING -DO- 3. KILIYANGAT PADUVILAN DEVAKI AMMA, D/O. THAMBAYI ALIAS MADHAVI, AGED 86 YEARS, NO OCCUPATION, RESIDING AT -DO- 4. SISTER, -DO- MADHAVI AMMA, AGED 75 YEARS, -DO- 5. -DO- CHATHUKUTTY NAMBIAR, (DIED) S/O. LAKSHMI AMMA, AGED 72 YEARS, OCCUPATION NOT KNOWN, RESIDING -DO- 6. -DO- KAMALAKSHI AMMA, (DIED) D/O. LAKSHMI AMMA, 65 YEARS, NO OCCUPATION, RESIDING AT CHAVASSERI AMSOM, ULIYIL DESOM, KOMOTH TELLICHERRY TALUK. 7. SISTER -DO- NARAYANI AMMA, AGED 56 YEARS, NO OCCUPATION, RESIDING -DO- 8. SISTER, -DO- JANAKI AMMA, AGED 56 YEARS, NO OCCUPATION, RESIDING -DO- 9. 5TH DEFENDANT'S DAUGHTER -DO- SREEDEVI AMMA, AGED 37 YEARS, NO OCCUPATION, RESIDING -DO- 10. BROTHER K.P. CHANDRAN, AGED 32 YEARS, (DIED) POSTMAN, KILIYANGAT VEEDU, KUNNOTH, KILIYANTHARA POST 670 706. 11. BROTHER K.P. KUNHIKRISHNAN, POSTMAN, RESIDING AT KRISHNAKRIPA, KUNNOTH, POST KILIYANTHARA - 670 706. 12. SISTER K.P. PADMAJA, AGED 29 YEARS, TEACHER, RESIDING AT VINI VIHAR, RESIDING AT THEKKENPOYIL POST, THILLENKARI, VIA, MATTANNUR. 13. SISTER ANANDAVALLI, 26 YEARS, NO OCCUPATION, RESIDING AT -DO- -DO- 14. BROTHER -DO- RAJEEVAN, AGED 21 YEARS, NO OCCUPATION, RESIDING AT -DO- 15. BROTHER SAJEEVAN, AGED 20 YEARS, NO OCCUPATION, RESIDING AT -DO- 16. 7TH DEFNEDANT'S DAUGHTER K.P. JAYANTHI, AGED 18 YEARS, NO OCCUPATION, RESIDING AT KUNNOTH, POST KILIYANTHARA, TELLICHERRY TALUK. 17.SISTER, REEJA, MINOR 16 YEARS, RESIDING AT -DO- 18. SISTER BINDHU, MINOR 14 YEARS, RESIDING AT -DO- 19. 1ST DEFT'S DAUTHER K.P. KARTHIYAYANI AMMA, AGED 55 YEARS, NO OCCUPATION, TELLICHERRY TALUK, EDAVANA VEETTIL, KOLAYAD. 20. BROTHER, PADUVILAN KARUNAKARAN NAMBIAR, AGED 50 YEARS, COOLI, RESIDING AT EDAVANA VEEDU, KOLAYAD POST ARALAM, TELLICHERRY TALUK. 21. BROTHER -DO- BALAKRISHNAN NAMBIAR, AGED 45 YEARS, COOLI, KUNNUMMAL VEEDU, POST ARALAM. 22. SISTER -DO- K.P. PADMINI AMMA, AGED 42 YEARS, KILIYANGAD VEEDU, 34 PUNNAD, KEEZHUR AMSOM, POST PUNNAD, (DIED) VIA IRITTY, OCCUPATION NOT KNOWN. 23. 17TH DEFT'S DAUGHTER K.P. MEENAKSHI ALIAS OMANA AMMA, AGED 32 YEARS, POST ULIKKAL, HOUSE NO. 287, TELLICHERRY TALUK, OCCUPATION NOT KNOWN. 24. BROTHER K.P. NARAYANAN NAMBIAR, AGED 28 YEARS, COOLI, RESIDING AT EDAVANA VEEDU, KOLAYAD POST ARALAM, TELLICHERRY TALUK. 25. BROTHER K.P. PADMANABHAN NAMBIAR, AGED 26 YEARS, RESIDING -DO- , COOLI. 26. SISTER -DO- K.P. MADHAVI AMMA, AGED 24 YEARS, COOLI, RESIDING -DO- 27. BROTHER K.P. BALAKRISHNAN NAMBIAR, AGED 22 YEARS, NO OCCUPATION, RESIDING AT -DO- -DO- 28. BROTHER K.P. SUDHAKARAN NAMBIAR, AGE AND OCCUPATION NOT KNOWN, RESIDING AT -DO- -DO- 29. 2ND DEFENDANT'S SON K.P. GOVINDAN NAMBIAR, COOLI, RESIDING AT ANANTHOTH VEEDU, ELANOOR, P.R. NAGAR, POST MATTANNUR, AGE NOT KNOWN. 30. SISTER, K.P. SANTHA AMMA, AGD 42 YEARS, NO OCCUPATION, RESIDING AT CHEMMARASSERY PARAMBA. POST KAYANI, VIA, MATTANNUR. 31. SISTER K.P. JANAKI AMMA, COOLI, AGED 37 YEARS, RESIDING AT ANANTHOTH VEEDU, ELANOOR, POST P.R. NAGAR, VIA. MATTANNUR. 32. SISTER K.P. SAROJINI AMMA, COOLI, AGED 35 YEARS, RESIDING AT -DO- 33. BROTHER K.P. PREMAN, AGED 31 YEARS, COOLI, RESIDING -DO- -DO- 34. BROTHER K.P. SURENDRAN, TAILOR, AGED 27 YEARS, RESIDING AT -DO- 35. 28TH DEFENDANT'S DAUGHTER, K.P. THANKAMANI, AGED 23 YEARS, NO OCCUPATION, RESIDING -DO- 36. KANADAN KALLIANI AMMA, D/O. KUNHIRAMAN NAMBIAR, AGED 51 YEARS, NO OCCUPATION, RESIDING AT KEEZHUR AMSOM, PNNAD DESOM, TELLICHERRY TALUK. RESPONDENT NOS.17 AND 18 BEING REPRESENTED BY FATHER KUNNOTH GOPI, AS APPOINTED BY THE LOWER COURT AS PER ORDER IN I.A.1294/90. SUPPLEMENTAL RESPONDENTS 37 TO 43 IMPLEADED. 37. KANDAN SARADA, D/O. LATE CHATHUKUTTY NAMBIAR, RESIDING AT PUNNAD P.O., THALASSERY, KANNUR DISTRICT. 38. KANADAN BALAN, S/O. LATE CHATHUKUTTY NAMBIAR, -DO- 39. KANADAN SARASWATHY, D/O. LATE -DO- RESIDING -DO- 40. CHANDRAN, -DO- 41. OMANA, -DO- 42. PUSHPA, -DO- 43. THANKAMANI, RESIDING AT CHAVASSERY P.O,, THALASSERY, KANNUR DISTRICT. SUPPLEMENTAL RESPONDENTS 44 TO 46 IMPLEADED. 44. BHARGAVI, W/O,. LAE K.P. CHANDRAN KILIYANGAT, P.O. P.R. NAGAR, VELIYAMBRA, KANNUR DISTRICT. 45. K. SHINU CHANDRAN, S/O. LATE CHANDRAN, -DO- -DO- -DO- 46. K. SHIBU CHANDRAN, S/O. LATE CHANDRAN, -DO- -DO- -DO- SUPPLEMENTAL RESPONDENTS 47 & 48 IMPLEADED. 47. PADUVILAN SATHYAN, S/O. PADMINI AMMA, PUNNAD P.O., THALASSERRY, KANNUR DISTRICT. 48. PADUVILAN VANAJA, D/O. PADMINI AMMA, -DO- -DO- -DO- IT IS RECORDED THAT THE 6TH RESPONDENT DIED ON 3.7.2008 VIDE ORDER DT.3.11.2010 IN MEMO DT23.1.2009 C.F.546/09. SUPPLEMENTAL RESPONDENTS 37 TO 43 IMPLEADED BEING THE L.RS OF DECEASED 5TH RESPONDENT AS PER ORDER DT. 31.11.2009 IN I.A.268/2009. SUPPLEMENTAL RESPONDENTS 44 TO 46 IMPLEAED BEING THE L.RS OF DECEASED 10TH RSPONDENT AS PER ORDER DT. 31.11.2009 IN I.A.272/2009. SUPPLEMENTAL RESPONDENTS 47 & 48 IMPLEADED BEING THE LRS OF DECEASED 22ND RESPONDENT AS PER ORDER DATED 31.11.2009 IN I.A.270/2009. ADV. SRI.M.C.SEN, SENIOR ADVOCATE FOR R1, 2 SMT.VIDHYA. A.C FOR R1,2 THIS APPEAL SUIT HAVING BEEN FINALLY HEARD ON 19/09/2011 THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: P. BHAVADASAN, J. - - - - - - - - - - - - - - - - - - - - - - - - - - - A.S. No. 442 of 1997 & Cross Objection - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 19th day of September, 2011. JUDGMENT The 34th defendant in O.S.94 of 1990 of Sub court, Thalassery is the appellant. The parties and facts are hereinafter referred to as they are arrayed before the trial court. 2. The suit was one for partition. It may be worthwhile here to mention that there is another suit as O.S.189 of 1980 before the Munsiff's court, Kuthuparamba, which was also a suit for partition in respect of the very same properties involved in the present suit also, the only difference is that items 1 and 2 in O.S.189 of 1980 are items 2 and 1 in the present suit. 3. Admittedly the properties originally belonged to Chandu Nambiar. His wife was Thambayi and he had four children namely, Lakshmi Amma, Kunhiraman Nambiar, A.S.442/1997. 2 Devaki Amma and Madhavai Amma. The properties involved in this suit were taken on Kozhu marupattom arrangement from Kuzhumbil devaswom by Chandu Nambiar. It seems that he had executed a Will Ext.B1 dated 8.3.1924 bequeathing the properties in favour of his wife Thambayi and his son, who is none other than the father of defendants 34 and 35 in the present suit. However, by Ext.B8 dated 28.10.1924 Chandu Nambiar assigned plaint schedule item No.1 in favour of Kunhiraman Nambiar, who in turn executed a Marupattom evidenced by Ext.B9 dated 17.11.1924. Ext.B7 is the renewal deed executed by Kunhiraman Nambiar to the jenmi devaswom dated 5.6.1937. 4. The claim of the plaintiffs was that the properties in the hands of Thambayi was a puthravakasam property based on the Will and Ext.B8 dated 28.10.1924 in favour of Kunhiraman Nambiar had not taken effect. On the death of Chandu Nambiar the property devolved as the A.S.442/1997. 3 puthravakasam tavazhy and therefore they are entitled to 2/35 shares over the plaint schedule items 1 and 2. 5. We are mainly concerned with the defence set up by defendants 34 and 35. They disputed that plaint item No.2 belonged to the tavazhy and according to them it belonged to Kunhiraman Nambiar by virtue of Ext.B8 document dated 28.10.1924 and on his death it devolved on his mother and defendants 34 and 35. They contended that at best what the plaintiffs are entitled to was 1/4th share of the property which would devolve on Thambayi, the grandmother of defendants 34 and 35. They therefore contended that even accepting the case of the plaintiffs, they are entitled only to the share that would devolve on them as the legal heirs of Thambayi treating the share of property that would devolve on her as a tavazhy property. 6. On the above pleadings, issues were raised by the trial court. The evidence consists of the testimony of P.W.1 and documents marked as Exts. A1 to A3 from the A.S.442/1997. 4 side of the plaintiffs. The defendants had Exts. B1 to B9 marked. 7. The trial court found that the properties were enjoyed as tavazhy properties and plaint item No.2 was the exclusive property of Thambayi. In view of the evidence available in the case, the trial court passed a preliminary decree, which reads as follows: “(a) The plaint B schedule property are divided into 36 equal shares. The plaintiffs are entitled to get 2 shares and defendants 1 to 33 are entitled to 1/36 shares each and defendants 34 and 35 together are entitled to get 1/36 share. (b) The parties are also entitled to proportionate mesne profits which can be calculated at the time of final decree. (c) & (d) .......... ...........” 8. It is the above preliminary decree that is assailed in this appeal. 9. Before going further, one aspect may be noticed. The appeal was initially filed before the Sub Court, A.S.442/1997. 5 Thalasserry. One may recollect here that it has already been mentioned that there was another suit as O.S. 189 of 1980 before the Munsiff's Court, Kuthuparamba, which too was a suit for partition. From the preliminary decree in that suit, A.S.234 of 1985 was filed before the District Court, Tellicherry, which was disposed of by a common judgment. What is interesting is that plaint item No.2 in the present suit was plaint item No.1 in the earlier suit. From the lower appellate court decree, a Second Appeal was preferred before this court as S.A.72 of 1988. When it was pointed out that an appeal was pending against the judgment and decree in O.S.94 of 1990, where the issues were similar in nature, it appears that this court called for the appeal and the records in O.S. 94 of 1990 from the Sub Court, Thalassery to be heard along with S.A.72 of 1988. The appeal was renumbered before this court as A.S.442 of 1997. A.S.442/1997. 6 10. However it is seen that S.A. 72 of 1998 was disposed of by judgment dated 8.12.1998. 11. The issue that arises for consideration is whether the finding of the court below that item No.2 in O.S.94 of 1990 is puthravakasam property is justified. 12. Learned counsel appearing for the appellant relied heavily on the judgment in S.A.72 of 1988 and contended for the position that the said issue has been concluded in the said judgment, wherein it was held that item No.2 in the present suit exclusively belonged to Kunhiraman Nambiar and it is not a puthravakasam property as is now contended by the plaintiffs in the present suit. That finding has become final and in the light of that finding, the contention of defendants 34 and 35 before the court below is only to be accepted. 13. Sri.M.C. Sen, learned Senior Counsel appearing for the contesting respondents pointed out that quite a few of the documents which would throw A.S.442/1997. 7 considerable light on the contention that item No.2 in the present suit was treated as a puthravakasam property was not adverted to in S.A.72 of 1988 and the plaintiffs in the present suit were not parties to O.S.189 of 1980 and therefore the judgment therein is not binding on them. It was contended relying on Exts.A2 and B2 that it is very evident from the conduct of the parties that though there was an assignment deed in favour of Kunhiraman Nambiar by Chandu Nambiar, the property continued to be puthravakasam property or the parties treated the property as such. There is no justification therefore to hold that plaint item No.2 in the present suit belonged exclusively to Kunhiraman Nambiar. Learned counsel pointed out that Ext.A2 is of the year 1951 and Ext.B2 is of the year 1976. It is inconceivable that the defendants would have concocted documents at that point of time anticipating a suit in 1990. Finally it is contended that even assuming that there was an assignment in favour of Kunhiraman Nambiar, that had not A.S.442/1997. 8 taken effect and the parties acted on the basis of the Will and treated the property as puthravakasam tavazhy property. Viewed from that angle, learned counsel pointed out that there is no justification in interfering with the judgment and decree of the trial court. 14. Though the arguments look attractive at the first blush, on a close scrutiny it can found to be without substance and it is difficult to accept the same. It is not in dispute that plaint item No.2 in the present suit was plaint item No.1 in O.S.189 of 1980. It is true that the plaintiffs in the present suit were not parties to O.S.189 of 1980. But their predecessors in interest were parties. 15. It is true that by Ext.B1 dated 8.3.1924 Chandu Nambiar had executed a Will bequeathing the property in favour of Kunhiraman Nambiar and his wife Thambayi. The case of the contesting defendants, defendants 34 and 35, was that subsequent to the Will and before the death of Chandu Nambiar he executed an A.S.442/1997. 9 assignment deed Ext.B8 dated 28.10.1924 assigning plaint item No.2 to Kunhiraman Nambiar. They further pointed out that in turn by Ext.B7 dated 5.6.1937 Kunhiraman Nambiar had executed a marupattom deed. 16. It would have been only proper that this court should have heard the Second Appeal along with the first appeal so that the entire controversy could have been resolved in the appeals. But unfortunately, S.A.72 of 1988 was disposed of earlier and unfortunately for the present contesting respondents item No.2 in the present suit was the subject matter in the earlier appeal also. As already stated item No.2 in the present suit was item No.1 in the earlier suit, which resulted in S.A.72 of 1988. 17. Sri.M.C.Sen, learned Senior counsel, pointed out that being a suit for partition, this court may not be justified in taking the view that rights of the present plaintiffs were concluded in S.A.72 of 1988. It was also pointed out that several of the documents which were A.S.442/1997. 10 produced in the present suit and which had material bearing on the issue were not adverted to in S.A.72 of 1988 mainly because those documents were not produced in the said suit. Further, it is pointed out that the plaintiffs were minors at the relevant time and they were not parties to O.S.189 of 1980. 18. It may be true that the plaintiffs were not parties to O.S.189 of 1990. The documents produced in the present suit would show that the parties had at some point of time treated the property as puthravakasam property, and they were not produced in the earlier suit. However, this court while disposing of S.A.72 of 1988 had considered the very same contention. According to learned counsel, item No.2 in the present suit, which was item No.1 in O.S.189 of 1980, was not the separate property of Kunhiraman Nambiar, but was a puthravakasam property. This court accepted the finding of the trial court that it belonged exclusively to Kunhiraman Nambiar. A.S.442/1997. 11 19. One may refer to Section 11 Explanation VI of the Code of Civil Procedure, which reads as follows: “Explanation VI.- Where persons litigate bonafide in respect of a public right or of a private right claimed in common for themselves and others, all persons interested in such right shall, for the purposes of this section, be deemed to claim under the persons so litigating.” As already noticed, the predecessors in interest of the plaintiffs were parties to O.S.189 of 1980. It is also significant to notice that the very same contentions which were now urged before this court were urged in the earlier suit also. In other words, the plea that plaint item No.2 in the present suit did not exclusively belong to Kunhiraman Nambiar was agitated and found against in S.A.72 of 1988 by this court. The interest of the predecessors in interest of the present plaintiffs was identical and common to the present plaintiffs and the issue was considered by this court in the earlier litigation. It was found that plaint item A.S.442/1997. 12 No.2 in the present suit exclusively belonged to Kunhiraman Nambiar. Merely because the plaintiffs are not parties to the earlier suit cannot clothe them with better rights. 20. In view of the fact that the partibility of item No.2 in the present suit was found against in S.A.72 of 1988, this court does not feel that it is open for re-agitation in this appeal. 21. However, one fact has yet to be noticed. Even assuming that plaint item No.2 belonged exclusively to Kunhiraman Nambiar, on his death the property devolves on his mother, his wife and defendants 34 and 35. As far as the share that devolved on Thambayi, the mother of Kunhiraman Nambiar, is concerned, it is conceded that, the property acquires the character of tavazhy property and ofcourse the plaintiffs will be entitled to a share in that respect. For this purpose the matter has to be reconsidered by the trial court. A.S.442/1997. 13 In the result, this appeal is allowed, the impugned judgment and decree are set aside and the matter is remanded to the trial court for redetermining the share available to the plaintiffs consequent on the death of Thambayi on the basis that 1/4th share of Kunhiraman Nambiar in item No.2 devolved on Thambayi. The parties shall appear before the trial court on 11.10.2011. The trial court may make every endeavour to dispose of the suit as expeditiously as possible at any rate within six months from the date of appearance of the parties. The remand is only for the purpose of redetermining the share and not for any other purpose. The cross objection is dismissed. P. BHAVADASAN, JUDGE sb.