IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.BHAVADASAN MONDAY, THE 23RD MAY 2011 / 2ND JYAISHTA 1933 SA.No. 729 of 1996() -------------------- AS.81/1992 of SUB COURT, KASARAGOD AS.81/1992 of PRL.MUNSIFF, KASARAGOD .................... APPELLANTS/ ------------------------ RESPONDENTS 2 TO 5, 8 TO 11, 14, 16. 23, 24, 26 TO 28, 30 TO 40, 45, 47 TO 51, 53 TO 57 60, 61, 64, 65, 67 AND 68 AND LEGAL REPRESENTATIVES OF DECEASED 1ST RESPONDENT -------------------------------------------------------------------------- PLAINTIFFS 3 TO 6, 9 TO 12 AND DEFENDANTS 2, 4 12, 13, 15 TO 17, 19 TO 29, 34, 36 TO 40, 42, TO 46, 49, 50 53, 54, 56, 57 AND LEGAL REPRESENTATIVES OF 2ND PLAINTIFF -------------------------------------------------------------------------------------------- 1. SHANKARA, S/O.KUNHI 2. CHANDRAVATHI, D/O.KUNHI 3. DAMODARA BOLCHAPPADA, S/O.KUNHI 4. LEELA, D/O.KUNHI 5. UMAVATHI, D/O.CHANDRAVATHI, 6. SREELATHA, D/O.LEELA 7. RAMESH, S/O.LEELA 8. JAGANNATHA, S/O.JANAKI 9. MADHAVI, D/O.CHANDU 10. JANARDHANA. S/O.CHANDU 11. SUNDARA, S/O.UMBICHI 12. GANRSHA, S/O.UMBICHI 13. RATHNAM, D/O.UMBICHI 14. SUMATHI, D/O.UMBICHI 15. BHASKARA, S/O.CHERIAMMA -2- SA.No. 729 of 1996() ------------------------------- 16. MANU, 17. KUNHAMMA CHILDREN OF KORAPALU. 18. KORAGA 19. JANAKI 20. KAMALA 21. BHASKARA 22. CHANDRAVATHI CHILDREN 0F MANU 23. NARAYANA 24. SUNDARA 25. CHITHRA, D/O.KAMALA 26. ANITHA, D/O.CHANDRAVATHI 27. CHANDRA, S/O.KUNHAMMA 28. BHASKARA 29. SAROJINI Children of Janaki 30. MADHAVA 31. JANARDHANA 32. SAROJINI 33. SUSHEELA 34. BABY 35. GANESHA 36. RAJAN 37. UDAYAN 38. M.K.MANJUNATHA DAS 39. M.K.ARUNDATHI Children of Parvathi 40. M.K.SARASWATHI AMMA 41. KAMALA, WIDOW OF KUNHAMBU 42. SHOBHA Children of Kunhambu 43. PURUSHOTHAMA -3- SA.No. 729 of 1996() ---------------------------- 44. LEELA 45. K.KAMALAKSHA Children of Kunhikannan 46. PADMANABHA 47. BALAKRISHNAN 48. PUSHPA K. NO. IS RESIDING AT NARAYANA PATEL COMPOUND, RAMDAS NAGAR, KUDLU VILLAGE, KASARAGOD TALUK,, P.O. RAMDAS NAGAR . NOS.2 TO 7 ARE RESIDING AT UDYAVARA MADA, KUNJATHUR VILLAGE, KASARAGOD TALUK, P.O.MANJESHWAR. NO.8 IS RESIDING AT C/O.L.KUMARAN, KARIMBI VALAPPU, MULLERIA, KARADKA VILLAGE, KASARAGOD TALUK, P.O.MULLERIA. NO.9 IS RESIDING AT A . KESHAVA TAILOR , PAREKATTA ROAD, KUDLU VILLAGE, KASARAGOD TALUK, NO.10 IS RESIDING AT NEAR GOPALAKRISHNA TEMPLE, KUDLU VILLAGE, KASARAGOD TALUK , P.O.RAMDAS NAGAR . NOS.11 AND 14 ARE THE CHILDREN OF UMBICHI, RESIDING AT RAMDAS NAGAR, NEAR GOPALAKRISHNA TEMPLE, KUDLU VILLAGE , KASARAGOD TALUK, P.O.RAMDAS NAGAR. NO.15IS RESIDING AT DHAMBEL HOUSE, SHEDIGURI MANGALORE, D.K. NOS.16,19 TO 26 ARE RESIDING AT PATLA HOUSE. P.O. KAYYAL, UPPALA VILLAGE AND KASARAGOD TALUK. NO.17 IS RESIDING AT C/O. THIMMAPPU, LAKSHAM VEEDU, KUNDANGARADKA, KOIPADY VILLAGE , P.O.KUMBALA. NO.18 IS RESIDING AT BAJA KOODEL HOUSE IN ENMAKAJE VILLAGE, P.O.PERLA. NO.27 IS RESIDING AT C/O.THIMMAPPA, LAKSHAM VEEDU, KOIPADY VILLAGE , KASARAGOD TALUK, P.O.KUMBALA. NOS.28 TO 31 ARE RESIDING AT PRATAPNAGAR, MANGALPADY VILLAGE AND POST, KASARAGOD TALUK. NOS.32 TO 37 ARE RESIDING AT BAJAKOODEL IN ENMAKAJA VILLAGE, KASARAGOD TALUK, P.O.PERLA. NOS.38 IS AT C/O. S.S.S.L. S.J. COLLEGE, MUNDANAPALLI, P.O. KOLAR, KARNATAKA STATE. NO.39 IS TEACHER G.L.P. SCHOOL, KUNJATHUR, P.O. KUNJATHUR. NO.40 IS TEACHER, G.H.S. KUNJATHUR, P.O. KUNJATHUR, NO.40 IS TEACHER, G.H.S. KUNJATHUR, P.O.KUNJATHUR. NOS. 41 TO 43 ARE RESIDING AT KUNJATHUR VILLAGE AND POST, KASARAGOD TALUK. BY ADV. SRI.K.G.GOURI SANKAR RAI -4- SA.No. 729 of 1996() ----------------------------- RESPONDENT(S): -------------------------- APPELLANTS AND RESPONDENTS 6, 7, 12, 13, 15, 17 TO 22, 25, 29, 41 TO 44, 46, 52, 58, 59, 62, 63 AND 66 ------------------------------------------------------------------------------------------------------------------------- DEFENDANTS 59 TO 67 AND PLAINTIFFS 7, 8, 13, 14 AND DEFENDANTS 3, 6, 8 TO 11, 14 AND DEFENDANTS 3, 6, 8 TO 11, 14, 18, 30 TO 33, 35, 41, 47, 48, 51, 52 AND 58. ----------------------------------------------------------------------------------------------------------------------------- 1. K.V.KARUNAKARAN, S/O.MANIKKAM. 2. K.V.LAXMI, W/O.KRISHNAN 3. K.V.AMMINI ALIAS SHARADA, W/O.GOPALAKRISHNA MASTER 4. K.V.JANAKI, W/O.KANNAN 5. K.V.KARTHYAYINI, W/O.KRISHNAN. 6. K.V.CHANDRASHEKARA. 7. K.V.MADHUSUDHANA 8. GIRIJA, W/O.MADHAVAN 9. SEETHA,, W/O.YESHAVANTHA. NOS.1 TO 9 ARE CHILDREN OF MANIKKAM AND V.KRISHNAN, HINDUS, RESPONDENTS 1, 2, 4, 6 AND 8 ARE RESIDING AT VALIA VEEDU, CERAMICS ROAD, THALLANGARE VILLAGE AND POST NO.3 IS AT THEKKEPURAM, PARAKKATTA IN KUDLU VILLAGE, P.O. RAMDASNAGAR, KASARAGOD TALUK, NO.5 IS RESIDING AT BEERUGUDDE NEAR BAJANA MANDIR, MANGALPADY, P.O. MANGALPADY. NO.8 IS RESIDING AT MANGALORE UNIVERSITY COMPOUND, KONAJE, MANGALORE D.K., P.O. KONAJE. 10. JANAKI, DAUGHTER OF KUNHI ( DELETED) 11. RAJESHWARI, D/O.CHANDRAVATHI, -5- SA.No. 729 of 1996() -------------------------- * NO.10 IS RESIDING AT C/O.K.KUMARAN, KARIMBIL VALAPPU, KARADKA VILLAGE, P.O.MULLERIA, KASARAGOD TALUK, NO.11 IS AT UDYAVARA MADA, KUNJATHUR VILLAGE, P.O. MANJESHWAR, KASARAGOD TALUK. 12. HARISH , CHILDREN OF JANAKI 13. LOHITHAKSHA, RESIDING AT C/O.K.KUMARAN, KARIMBIL VALAPPU, KARADKA VILLAGE, P.O. MULLRIA, KASARAGOD TALUK 14. DAMODARAN V.V. , S/O.CHANDU, RESIDING AT L.I.G. 78 HOUSING COLONY, KAVOOR BONDEL, MANGALORE. * 15. PARVATHI (CHILDREN OF LATE * 16. KUNHAMBU (SHANKARA, RESIDING AT * 17.PADMANABHA UDYAVARA MADA, KUNJATHUR 18. SAVITHRI. VILLAGE, P.O. MANJESHWAR, KASARAGOD TALUK.) (DELETED) * 19. KUNHAMMA, CHILDREDN OF UMBICHI. (DELETED) * 20. MADHAVA, NO.19 IS RESIDING AT ASHOK NAGAR, MANGALORE, P.O. MANGALORE. NO.20 IS AT NEAR GOPALAKRISHA TEMPLE, KUDLU VILLAGE, KASARAGOD TALUK., P.O. RAMDAS NAGAR. (DELETED) * 21. PAVITHRA, S/O.UMBICHI, RESIDING AT NEAR GOPALAKRISHNA TEMPLE, KUDLU VILLAGE, KASARGOD TALUK, P.O.RAMDAS NAGAR. (DELETED) * 22. SHARADA, DAUGHTER OF CHERIAMMA, RESIDING AT B.KESHAVA DRIVER, VANIJYA THERIGE KARIALAYA, GANDHI NAGAR, BANGALORE . (DELETED) * 23. RAJESHA, S/O.CHANDRAVATHI, RESIDING AT PATLA HOUSE, KAYYAL POST, UPPALA BAYAR. ( DELETED) * 24. NARAYANAN (CHILDREN OF KUNHAMMA, 25 SRIDHARA RESIDING AT C/O. THIMMAPPA 26. JANAKI LAKSHAM VEEDU, KOIPADY * 27. GOPALAKRISHNA VILLAGE, KASARAGOD TALUIK. P.O. KUMBLA . (DELETED) * 28. HARISCHANDRA, S/O.JANAKI, RESIDING AT BAJAKOODEL, ENMAKAJE VILLAGE, KASARAGO D TALUK, P.O. PERLA. (DELETED). 29. RENUKA, D/O.SAROJINI, BAJAKOODEL HOUSE, ENMAKAJE VILLAGE, KASARAGOD TALUK, P.O. PERLA. 30. PAVITHRAREKHA, DAUGHTER OF SAROJINI, RESIDING AT BAJAKOODEL HOUSE, ENMAKAJE VILLAGE, KASARATOD TALUK. P.O. PERLA. -6- SA.No. 729 of 1996() ---------------------------- * 31. M.K.ANNAPPA DAS, S/O.PARVATHI, C/O.SHANKRANTHI AGARBATHI, 33 PILLAPPA LANE, NAGARTHPATE, BANGALORE 2. (DELETED). * 32. M.K.ISHWARA DAS, S/O.PARVATHI, 404, KAMAKSHI GOSHLA ROAD, MULUND (W), BOMBAY 80. (DELETED). 33. PRAFULLA, D/O.KUNHAMBU, RESIDING AT UDYAVARA MADA, KUNJATHUR VILLAGE, KASARAGOD TALUK, P.O. KUNJATHUR. RESPONDENTS 10, 15 TO 17, 19 T0 24, 27, 28, 31 AD 32 ARE DELETED FROM THE PARTY ARRAY, AS PER ORDER DATED 4.2.08 IN IA. 300/08. R2 TO R9 BY ADVS. SRI.S.V.BALAKRISHNA IYER, SENIOR ADVOCATE SRI.P.B.KRISHNAN THIS SECOND APPEAL HAVING BEEN FINALLY HEARD ON 23.05.2011 , THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: VK P. BHAVADASAN, J. - - - - - - - - - - - - - - - - - - - - - - - - - - - S.A. No. 729 of 1996 - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 23rd day of May, 2010. JUDGMENT The plaintiffs, who lost their partition suit before the lower appellate court are the appellants before this court. 2. The suit was one for partition. It is averred in the plaint that the plaintiffs and defendants are members of a Marumakkathayam thavazhy. Admittedly plaint schedule property belonged to Kunhi Kanna, who had two children and four grand children. The allegation in the plaint was that children of Kunhi Kanna constituted a tavazhy. Later on Sankaranmootha Chettiar became the Karanavan and after his death the property came into the possession of his nephew and niece, children of Chirudai, the only sister of Sankarnmootha Chettiar. It is alleged in the plaint that the members of the family used to assemble in the ancestral house to perform ceremonies. It is also alleged S.A.729/1996. 2 that the first defendant used to give a share of income to the plaintiffs and later the first defendant attempted to create records in his favour. On the basis of the said allegations the suit was laid for partition. 3. Among the defendants, only the first defendant contested the suit. He pointed out that the acquisitions by Kunhi Kanna and Sankaranmootha Chettiar were self acquisitions and the property never had acquired the character of tavazhy property. There is no common ancestry to show that there was any tavazhy or tarwad to which the property could have belonged. He therefore prayed for a dismissal of the suit. The first plaintiff died during the pendency of the suit and his legal representatives were brought on the party array as additional defendants 58 and 67. 4. Based on the said 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 side of the plaintiffs. The defendants had D.W.1 examined and S.A.729/1996. 3 Exts. B1 to B6 marked. The trial court seems to have been rightly impressed by Exts.A2 and B1 and held that the properties are tavazhy properties is established and accordingly granted a preliminary decree which reads as follows: “(1) In the result Sale Deed No.602 of 1955 of Kasaragod S.R.O.is declared null and void. (2) The plaintiffs are jointly entitled to 14/60 share in the plaint schedule property. (3) Defendants 2 to 4, 7, 8, 12 to 36, 39, 40, 45 to 48 are jointly entitled to 36/60 shares in the plaint schedule property. (4) The plaint schedule property will be divided by metes and bounds and the plaintiffs and defendants 2 to 4, 7, 8, 12 to 36, 39, 40, 45 to 48 will be put in separate possession of their respective shares. (5) The plaintiffs and defendants 2 to 4, 7, 8, 12 to 36, 39, 40, 45 to 48 are allowed to recover from the property of the 1st defendant that has come into the hands of additional defendants 58 to 67 mesne profits at the rate of Rs.1225/- and Rs.2100/- respectively for the period from S.A.729/1996. 4 6.2.1981 till they are put in separate possession of their shares. (6) Costs shall come out of the estate .” 5. The disappointed legal heirs of the first defendant took up the matter in appeal as A.S.81 of 1992 before the Sub Court, Kasaragod. The lower appellate court found that the plaintiffs had miserably failed to establish that there was a common ancestry. The lower appellate court also found that the suit property was the individual property of Sankara Chettiar. Accordingly, the lower appellate court reversed the judgment and decree of the trial court and dismissed the suit. 6. Notice is seen issued on the following questions of law: “A. Is not the finding of the lower appellate court that the geneology is not proved, opposed to and without considering the evidence of P.W.1 and D.W.1 and if so is not that finding vitiated for non- consideration of material evidence. S.A.729/1996. 5 B. Has not the lower appellate court committed an error of law in not referring to let alone considering the reasoning of the trial court holding that Ext.B1 is null and void. If so is the decision of the lower appellate curt opposed to law. C. Has not the lower appellate court committed an error of law in its construction of Exts.A1, A2, B1 and B2. D. Is not the decision of the lower appellate court bad for want of consideration of material evidence on record. E. In the facts and circumstances of the case is the decision of the lower appellate court sustainable?” 7. Learned counsel appearing for the appellants pointed out that the lower appellate court had misdirected itself both on facts and in law in coming to the conclusion that there is no evidence to show that the property involved in the suit is tavazhy property. Relying on Ext.A2 and the recital in Ext.B1 and also the fact that the vendee under S.A.729/1996. 6 Ext.B1 had come into possession on the status of the nephew of the original owner of the property it is contended that it is clear that the property was a tavazhy property. The lower appellate court, according to learned counsel, has missed these vital aspects. 8. Per contra, learned counsel for respondents contended that unless the plaintiffs were able to show that there was a common ancestry, from whom a thavazhy or tarwad could be presumed, the plaintiffs cannot succeed. The acquisition evidenced by Exts.A2 and B1 as would be clear from the recital, according to learned counsel are self acquisitions and it was not for and on behalf of the tavazhy. Ext.A2 cannot be treated as a document evidencing the fact that the properties are tavazhy properties. According to learned counsel the lower appellate court was therefore fully justified in coming to the conclusion that there was no evidence to show that the property ever belonged to the tavazhy or tarwad of the Marumakathayee. S.A.729/1996. 7 9. The extent of property involved in the suit was 56 cents comprised in R.S. No.40/4 of Kasaragod Taluk. It is not in dispute that the plaintiffs are the daughter and grand children of Chirudai, the mother of the first defendant. According to them, the property was acquired for and on behalf of the tavazhy consisting of Chirudai and therefore they are entitled to a share as per the Marumakkathayam Law. The only document on which some reliance was placed was Ext.A1 which would show that in the revenue records the entries were made in the name of the senior most male member of the alleged tavazhies. But that by itself is insufficient to characterise it as tavazhy property. A reading of paragraph 4 of the plaint would clearly show the same. It is specifically stated as follows: “Kunhikanna, the father of Shankara Mootha Chettiar, made over the property belonged to him, to his son Sankara Mootha Chettiar and daughter Chirudai, as per a Registered document in the year 1898, and they were in joint possession and S.A.729/1996. 8 enjoyment of the property as their thavazhy property. The property was acquired in the name of Shankara as he was the eldest member and Karanavan of his sister's thavazhy.” There is no averment or evidence in the case to show that the self acquired property was treated as the tavazhy property or it acquired the character of tavazhy so as to enable the plaintiff to claim a share in the property. As rightly noticed by the lower appellate court there is no whisper regarding the common ancestry and that it is stated that Sankaramootha Chettiar acquired the property as the karanavan of the thavazhy of his sister is inconceivable in law. A reading of Exts.A3 and B1 would clearly show that the acquisitions were self acquisitions and there is no indication in either of these documents to show that the acquisitions were for and on behalf of the tavazhy. The lower appellate court was justified in its approach in taking a different view with regard to the character of the property. S.A.729/1996. 9 10. Inspite of the best efforts, learned counsel for the appellants was unable to establish a common ancestry from whom the tavazhy could be evolved and also that the acquisition was for and on behalf of the tavazhy. The lower appellate court was therefore fully justified in the absence of anything to show that there is a common ancestry in finding that Exts.A2 and Ext.B1 are self acquisitions. There was no tavazhy in existence for and on behalf of which the acquisitions could have been made. In the result this appeal is without merits and it is only to be dismissed. I do so. There will be no order as to costs. P. BHAVADASAN, JUDGE sb.