Changaroth Lakshmi Amma vs Unknown

[Cites 8, Cited by 0]

Kerala High Court

Changaroth Lakshmi Amma vs Unknown

Defendants 6 to 9 in O.S.No.7/1996 of Sub Court, Quilandy are the appellants herein. The suit was one filed by the plaintiff, who is the 1st respondent herein for partition of the plaint schedule properties and allotment of 1/11 share in the plaint B schedule property with profits past and future with the following allegations:

The plaint A schedule is the geneology of the family. Plaint B schedule with other properties originally belonged to Marumakkathayam Thavazhi consisting of Alankottu Thekke Puthukkudi Pennuttiamma and others. The property belonged to the thavazhi was partitioned as per partition deed No.1341/1952 of Sub Registrar's Office, Naduvannur dated 27.7.1952 evidenced by Ext.A4 partition deed and plaint schedule property was allotted to group consist of Kunhamma Amma and defendants 1 and 6 as a unit constituting a sub thavazhi and they have been in possession and enjoyment of the same. S.A.No.523 of 2002 2 Kunhamma Amma had only two female children, who are defendants 1 and 6 and Kunhamma Amma was the daughter of Pennutty Amma. Kunhamma Amma was executant No.7 and defendant Nos.1 and 6 were the executant Nos.8 and 9 in the partition deed who were minors at that time and they were represented by their mother Kunhamma Amma. Kunhamma Amma died during April 1995 and defendants 1 and 6 inherited their mother's 1/11 share. Plaintiff and defendants 2 to 5 are the children of first defendant and defendants 7 to 9 are the children of 6th defendant. The Plaintiff and defendants 1 to 9 are the members of Kunhamma Amma's thavazhi as on 1st December, 1976 when the Kerala Joint Hindu Family System Abolition Act came into force. Defendants 10 and 11 are the transferees of portions of plaint B schedule property who obtained the same from the 1st defendant and the same is without the knowledge and consent of the plaintiff and it is not binding on him. They are in joint possession of the property. Plaintiff is entitled to 2/22 share and defendants 1 and 6 are entitled to 3/22 S.A.No.523 of 2002 3 share each and defendants 2 to 5 and 7 to 9 are entitled to 2/22 share each. There are two houses in the plaint schedule property occupied by defendants 6 to 11. They were liable to pay profits for the last three years as defendants 6 to 11 were enjoying the profits exclusively, without sharing the same with the plaintiff. Plaintiff did not want to continue joint possession. Though he wanted a partition, defendants 6 to 9 were amenable for the same. So plaintiff filed suit for partition and allotment of his share with past and future profits.

2. 1st defendant remained absent and ex parte.

3. Defendants 2 to 5 filed written statement admitting the claim of the plaintiff and seeking partition and allotment of their share with past and future profits for which they have paid separate court fee. They also contended that the houses in the property had to be divided without any reservation.

4. Defendants 6 to 9 filed joint written statement contending as follows:

The suit is not maintainable the properties are not in S.A.No.523 of 2002 4 joint possession as the plaintiff and defendants as alleged. They denied the allegation that the plaint schedule property belonged Marumakkathayam Thavazhi and the parties neither members of thavazhi nor Alankottu Thekke Puthukkudi Pennuttiamma and her descendants constituted any thavazhi. None of them lived together as members of the thavazhi or shared a common residence as thavazhi house. The properties were never treated as thavazhi property at any time. So it is not correct to say that the thavazhi properties were partitioned as per partition deed dated 27.9.1952. The properties were never treated as thavazhi properties. The properties were allotted to the joint shares of the allottees and they never treated this as thavazhy property but they have treated this as a co ownership property. Kunhamma Amma was not having any right in the property when she died. She assigned her rights in favour of 6th defendant as per registered document No.302/1974 dated 15.2.1974. Before assignment, the properties were partitioned among Kunhamma Amma and her children namely 1st S.A.No.523 of 2002 5 defendant and 6th defendant by metes and bounds as per partition deed dated 1.8.1972 and it was divided into three portions and allotted to the shares of the executants and respective sharers have taken absolute possession and treated the same as their individual property. Kunhamma Amma and 1st defendant were provided right of residence in the house included in item No.3 of the partition deed during their life. It was destroyed in the course of time before the death of Kunhamma Amma and a new house was constructed by the 6th respondent spending her own fund availing loan from the Kerala State Housing Board and so the house is not partiable. The allegation that the plaintiff has no intimation regarding the transfer in favour of defendants 10 and 11 is not correct. It is plaintiff's mother Karthiyaniamma who was a party to Partition Karar 1972 had assigned her share obtained in the Partition Karar of 1972 and she never objected the partition as well. She was allotted item No.2 in the karar and the 6th defendant was allotted item No.3 and Kunhamma Amma was allotted item No.1 and there S.A.No.523 of 2002 6 was an equitable partition as per the Partition Karar of 1972 and plaintiff's mother was granted a legitimate share. Even if it is assumed that plaintiff had acquired any right in the property by birth, partition of 1972 has to be considered as a partition among different branches and plaintiff is entitled to claim his share only in the property of his mother and in the event of partition if any has to be effected that can be done only in respect of item No.2 of Partition Karar which was allotted to the share of their mother. 1st defendant had assigned the property allotted to her to defendants 10 and 11 as per assignment deed dated 23.10.1976 and they have been in possession of the property since 1976. The allegation that two houses in the property were constructed with common funds belonged to the thavazhi is denied. The plaintiff's right if any is barred by adverse possession and limitation as respective allottees of 1972 partition have been in possession of the respective shares since the date of partition. Going by the age of the plaintiff, he was not even born on the date of partition and as such he is not S.A.No.523 of 2002 7 entitled to get any right. They are not co-owners as claimed. The plaintiff is not entitled to get any relief and if at all this court found that the property is partiable, then 6th defendant is entitled to get the house without valuation in equity. So they prayed for dismissal of the suit.

5. Defendants 10 and 11 filed joint written statement raising similar contentions raised by defendants 6 to 9. They have contended that after partition of 1952, Kunhamma Amma and defendants 1 and 6 entered into another partition and partitioned the property as per partition deed No.1356/72 and the plaint schedule property measuring 63 = cents was set apart to the share of 1st defendant and she assigned the same in favour of these defendants as per document No.2558/76 dated 23.12.1976 and they have been in possession of the property since then to the knowledge of the plaintiff and other children of 1st defendant. Their pleading of ignorance of 1972 partition is not correct and it is binding on them. The plaintiff is not entitled to seek for S.A.No.523 of 2002 8 partition without setting aside the partition deed of 1972 and it is barred by limitation. They are bona fide transferees for valid consideration and they effected valuable improvements in the property. They constructed compound wall on all four sides and thatched house in the property was repaired spending huge amount. It is partly tiled and partly reconstructed with concrete roof. In case of partition, improvements effected by the defendants have to be reserved in their favour and the property covered by the document has to be set apart to their share in equity. The plaintiff has no cause of action. He filed the suit as an experimental measure and he is not entitled to get any relief and they prayed for dismissal of the suit.

6. On the basis of the pleadings following issues were framed by the trial court for consideration:

"1. Whether the plaintiff and defendants 1 to 5 have any partiable interest in the property?

2. Whether Kunhamma Amma and her descendants were holding the property as thavazhi property ?"

3. Whether the deed of partition dated 1.8.1972 S.A.No.523 of 2002 9 is not binding on the plaintiff and defendants 1 to 5 ?

4. Whether Kunhamma Amma had any right over the properties, when she died ?

5. Whether the deed of assignment dated, 23.12.1996 is not binding on the plaintiff ?

6. Whether the defendants 6 to 9 are the sole owners of the house in their property ?

7. Whether the suit is barred by ouster and limitation ?

8. To what equities and reservations the parties are entitled to in the event of partition ?

9. Whether the plaintiff is entitled to get partition?

10. To what relief the plaintiff is entitled to get ?

11. What is the proper order as to costs ?

7. The plaintiff was examined as PW1, and Exts.A1 to A5 were marked on the side of the plaintiff. The 6th defendant was examined as DW1 and Exts.B1 to B20 were marked and Exts.X1(a) X1(b) and X2 marked were marked on the side of the defendants.

8. After considering the evidence on record, the trial court found that the plaint schedule property was allotted to a unit constituting a thavazhi of Kunhamma Amma and plaintiff and defendants 1 to 9 are entitled to get share in the property and Ext.X1 partition deed is not binding on the plaintiff and the suit property is partiable S.A.No.523 of 2002 10 and 6th respondent is not entitled to get the share of Kunhamma Amma as without partition in a joint family property she will not get any right by virtue of Madras Marumakkathayam Act and such an assignment is prohibited and as such she will not get any right other than the right she is entitled to get as a sharer. The trial court also found that defendants 10 and 11 are entitled, in equity to get allotment of portion having the house and improvements and the compound wall to be reserved in their favour without valuation and others are not entitled to get any reservation and passed a preliminary decree for partition as claimed in the plaint except the reservation made in favour of defendants 10 and 11.

9. Dissatisfied with the same, defendants 6 to 9 filed A.S.No.185/98 before the District Court, Kozhikode and the District Judge by the impugned judgment dismissed the appeal. Aggrieved by the same, the present second appeal has been filed by the dissatisfied appellants, who are defendants 6 to 9 in the trial court. While the appeal was admitted, the question of law raised S.A.No.523 of 2002 11 in the appeal memorandum has been formulated as the substantial question of law arise for consideration which reads as follows:

"1. Did not the courts below err in not finding that there has been a splitting up of Thavazhy under Exhibit A4 document ?

2. Does not the fact that in Exhibit A4 each share was valued at Rs.165/- and that defendants 1 and 6 and their mother were considered as three sharers under the document and were allotted property, the share value of which was calculated at Rs.495/-, indicate that there has been individual partition as between defendants 1 and 6 and their mother?

3. Is not the head of a sub thavazhy competent to represent the other members of the thavazhy in a partition ?

4. Did not the lower appellate court act illegally in dismissing I.A. No.1972 of 1999 and I.A.1167 of 2001?

5. Did not the courts below act illegally in not considering the plea of adverse possession and limitation ?".

10. Heard Sri.S.V.Balakrishna Iyer, learned senior counsel appearing for the appellant and Sri.V.V.Asokan, learned senior counsel appearing for the 1st respondent and Sri.V.K.Sivasankaran, learned counsel appearing for respondents 3 to 6 and Sri.P.U.Venu Nair, learned counsel appearing for respondents 7 to 9.

11. Learned senior Counsel appearing for appellants S.A.No.523 of 2002 12 submitted that courts below were not justified in coming to the conclusion that plaint B schedule property is a thavazhi property. The evidence of PW1 will go to show that it was never treated as thavazhi property and Pennuttiamma never acquired any property as ancestral property and the properties were never treated as thavazhi properties. A reading of partition deed of 1952 will go to show that it was not a tharawad property and it was not a tharawad partition and the property was allotted to three persons jointly without the incidents of any thavazhi nature and it was obtained by them as joint owners and they have partitioned the property in the year 1972. The 1st defendant, the mother of the plaintiff, never objected the same and she had assigned that property to defendants 10 and 11 as well. This is known to the plaintiff and defendants 2 to 5. Further, the suit is barred as other children of 1st defendant became major earlier, the suit has not been filed within three years of their attaining majority and as such it cannot be said that the suit is maintainable. Further, the 6th defendant had S.A.No.523 of 2002 13 obtained the right of Kunhamma Amma, which she obtained as per the partition deed of 1972 and as such by virtue of Section 43 of the Transfer of Property Act, the purchaser is entitled to get the share by doctrine of feeding the grant by estoppal and the courts below have not properly understood the legal principle on this aspect. Further from 1972 onwards, the respective sharers of the partition deed of 1972 were in possession of the properties and defendants 10 and 11 were in possession of the property assigned by the 1st defendant from 1976 onwards and these facts were known to the plaintiff and other children of 1st defendant and as such the courts below ought to have held that the rights if any of the plaintiff and defendants 2 to 5 are barred by adverse possession and limitation and ouster. The lower court also did not consider the question of allotment of the house in favour of the 6th defendant in spite of the fact that she had adduced evidence to prove that it was constructed by her by taking loan. He relied on the decision reported in Jumma Masjid Mercara S.A.No.523 of 2002 14 v.Kodimaniandra Deviah and Others [AIR 1962 SCC 847] in support of his case.

12. On the other hand, Sri.V.V.Asokan learned senior counsel appearing for the 1st respondent submitted that the reading of Ext.A4 partition deed and the evidence of PW1 will go to show that it was having the characteristic of tharawad partition and order in Ext.A3 also will go to show that it was treated as a joint family property and it was the reason why Kunhamma Amma and her children were allotted share as a group constituting a sub thavazhi and if a female member in a tharawad property obtained a share, then subsequently born children will get a share in the property by birth and so the courts below were perfectly justified in coming to the conclusion that it is a joint family property. Further, before partition, a member of the tharawad or thavazhi will not get any independent right of assignment and such assignment will not give any legal right. Since the assignment was between the members of thavazhi, it cannot be said that the purchaser is a bona fide purchaser and as such, the S.A.No.523 of 2002 15 6th defendant is not entitled to get the benefit of Section 43 of the Transfer of Property Act and relying on the decision of this Court, courts below was perfectly justified in denying the right to her.

13. He had also argued that, plaintiff and defendants 2 to 5 were minors at the time when 1972 partition was effected and since they are not parties to the partition deed, their right is not affected. They can ignore the partition deed and seek for partition. They need not seek for setting aside the document. There is no acceptable evidence adduced to prove the adverse possession or ouster so as to deny the partition of the property in favour of the plaintiff. So according to him, courts below were perfectly justified in decreeing the suit and no interference is called for as no substantial question of law arises for consideration. He had relied on the decisions reported in Mary v. Bhasura Devi 1967 KHC 172 and Achutha Menon v. Jaganatha Menon and Others [1983 KHC 212] in support of his case.

14. The other counsel supported the submission of S.A.No.523 of 2002 16 senior counsel who argued for the appellant and the 1st respondent respectively considering their contention in the lower court.

15. The case of the plaintiff in the plaint was that plaint B schedule property was part of thavazhi property known as Alankottu Thekke Puthukkudi thavazhi of Pennuttiamma and others and as per Ext.A4 partition deed, the properties were partitioned between Pennuttiamma and her brothers and her daughter Kunhamma Amma and children of Kunhamma Amma, who are defendants 1 to 6. The plaint schedule property was jointly allotted to combined share of Kunhamma Amma and defendants 1 and 6 who are her children and executants in Ext.A4 partition deed as a unit constituting a sub thavazhy and thereby they are entitled to get share in the property. This was denied by the defendants and according to them, it was not a tharavad partition and the property never treated as thravad properties and the property was allotted to three persons jointly and they have taken it as co-ownership property. They partitioned S.A.No.523 of 2002 17 the same as per Ext.X1(a) partition deed dated 1.8.1972 and thereafter Kunhamma Amma assigned her share allotted to her to the 6th defendant as per Ext.X2 assignment deed dated 05.12.74 and the first defendant assigned her share to defendants 10 and 11 as per Ext.B20 assignment deed. Thereafter purchase certificate was obtained by the 1st defendant and 6th defendant for the properties allotted to them as per Ext.B19 and Ext.X1

(b). So the plaintiff is not entitled to get any right.

16. It is true that in Ext.A4 partition deed, it was not mentioned that it is a tharawad partition or the property belonged to the tharawad. But it may be mentioned here that the properties were partitioned among Pennuttiamma, her brothers and her children and grand children in female line and that was how the property was partitioned and plaint B schedule property in that partition deed was allotted to a group consist of Kunhamma Amma and defendants 1 and 6 as a unit constituting a sub thavazi. Further it will be seen from Ext.A3 that the members of the tharawad or the said S.A.No.523 of 2002 18 thavazhi claimed that the property did not belong to Pennuttiamma alone but it is a joint family property and a claim petition was filed in an execution petition wherein this property was attached for realization of the amount due from Pennuttiamma and that claim petition was allowed. It is thereafter that the partition was effected in 1952. So it is clear from the conduct of the parties that it was intended to be given to a unit constituted a sub thavazhi and thereby it acquired the status of a joint family property.

17. In the decision reported in Mary v. Bhasura Devi 1967 KHC 172 = 1967 KLT 430 the full bench of this Court held that the nature of presumption that the property got by the female member in her tharavad partition should enure the benefit of her children, is much stronger than in the case of property given to her by her husband. Therefore under Marumakkathayam law, subsequently conceived child gets a right by birth in the property obtained by the mother for her separate share in the partition of the tharawad. It is further held that for S.A.No.523 of 2002 19 creation of ancestral property, there need not be any coparcenary or joint family. Marumakkathayam law is only a body of custom and usage which have received judicial recognition and not a school of Hindu law. So it is clear from the above dictum that whenever a property has been obtained by a female member in a partition, which is having a characteristic of ancestral property, then subsequently born children will get right in the property.

18. Further, under the Marumakkathayam law, if a unit consist of all members having a common ancestor and her descendants, then it will assume the character of a thavazhi and subsequently born children of the female members who constituted the thavazhi will get right in the property by birth till 1.12.1976 when Kerala Joint Hindu Family System Abolition Act came into force. By virtue of the above said enactment as on that date, the right of the parties is to be crystallised and from that day onwards the members of the Marumakkathayam thavazhi will become co-owners and there will be deemed to be a partition as on that date. So under such circumstances, S.A.No.523 of 2002 20 and also from the evidence available on record, courts below were perfectly justified in coming to the conclusion that plaint B schedule property is a property obtained by a thavazhi of Kunhamma Amma and her children and subsequently born children of female members in that group will get right in the property by their birth and children born upto 01.12.1976 will be entitled to get share in the property by virtue of their right of birth in that thavazhi.

19. The learned senior counsel appearing for the appellant submitted that by virtue of Ext.X1(a) partition deed, properties have been partitioned between the Kunhamma Amma and defendants 1 and 6 and equitable distribution of property has been done. Further without getting the document set aside, the plaintiff is not entitled to get a decree. It may be mentioned here that it is found that it is a thavazhi property and children of defendant 1 and 6 were not made parties to the partition deed. Since they are not parties to the partition deed, the same is not binding on them. They can ignore the S.A.No.523 of 2002 21 same. So there is no necessity to set aside the same by the person who is not a party to the partition deed. So there is no question of limitation arises. They can very well ignore the partition deed and file a suit for partition and seek allotment of their share.

20. The learned senior Counsel appearing for the appellants argued that the plaintiff and 1st defendant and other children namely, defendants 2 to 5 were aware of the fact that the property is being enjoyed independently by the allottes from 1972 onwards and no objection was raised in respect of the same. Further plaintiff's mother obtained purchase certificate in respective of the property allotted to her as per Ext.B19 and 6th defendant obtained purchase certificate in respect of the property obtained by her as per Ext.X1(b) and these facts were known to the plaintiff and others. From 1976 onwards, defendants 10 and 11 were in possession of the property which was assigned by the 1st defendant in their favour as per Ext.B20 document. So it can be presumed from these circumstances that the children of 1st defendant were S.A.No.523 of 2002 22 aware of the fact that allottes and purchaser were in possession of the property to the detriment of the right of other sharers and right if any of the plaintiff is barred by ouster and adverse possession and limitation.

21. It may be mentioned here that if it is found that, it is a thavazhi property and purchase certificate if any was obtained by the members of the thavazhi, then it will enure to the benefit of the thavazhi and then they cannot claim any independent right on that basis. Further, even if a co-owner assigns his right, the assignee will be entitled to get only that right and that will not amount to an act of adverse possession and that will not binding on others. Further the children of 1st defendant were minor at the time when Ext.X1(a) partition deed was entered into and they became major only later. The suit was filed within 12 years of their attaining majority. So under such circumstances, it cannot be said that the possession of the property by guardian or any one of the family members or assignees under them cannot be said to be detriment to the interest of the minors and the suit was S.A.No.523 of 2002 23 filed within twelve years of attaining majority of all the minors. So the submission made by counsel for the appellant that right if any of the plaintiff or children of the 1st defendant is barred by adverse possession and limitation or ouster has no footing.

22. The next contention raised by the senior counsel appearing for the appellant was that the 6th defendant had taken loan and reconstructed the house in the property and none had invested any amount. So she is entitled to get reservation of that house in equity without valuation. It is seen from the evidence of DW1 and Ext.B3 that 6th defendant had sent notice to the 1st defendant intimating the house in the property has been destroyed and she is going to reconstruct the house and no objection was raised by the 1st defendant regarding the same. Further, Ext.B2 will go to show that 6th defendant had applied for a loan to Kerala State Housing Board and the loan was granted. Since the 1st defendant was the senior member representing the group of the 1st defendant including her children and she did not raise any objection to the S.A.No.523 of 2002 24 construction of the house and on the basis of the conduct, the 6th defendant had raised funds and reconstructed the house, which is in the plaint schedule property now, she is entitled for reservation in equity. PW1 had also no case that they have spent any amount and they had not made any objection when the 6th defendant constructed the house. This aspect has not been considered by both courts. So considering the circumstances, there is some force in the submission made by the learned senior counsel appearing for the appellant that the 6th defendant is entitled to get reservation regarding the house in the plaint schedule which is in her possession in equity. So, 6th defendant is entitled to get allotment of the house in the portion where she is now residing without valuation to her share and the house and the appurtenant land required for convenient enjoyment of the house has to be allotted to her share as far as possible at the time of partition in equity.

23. The learned senior counsel appearing for the appellant also contended that 6th defendant is entitled to S.A.No.523 of 2002 25 get benefit under Section 43 of the Transfer of Property Act, even though Kunhamma Amma was not entitled to any right at the time when the sale deed was executed by her by virtue of Kerala Joint Hindu Family System Abolition Act, the right of Kunhamma Amma has been crystallised as on that date and on her death she is entitled to get that share, by virtue of the assignment, the 6th defendant is entitled to get that share.

24. The learned counsel appearing for the 1st respondent relied on the decision reported in Achutha Menon v. Jaganatha Menon and Others [1983 KHC 212] and argued that in the case of undivided tharawad, effect of transfer of specific interest in favour of karnavan through a release deed by the member of tharawad, it cannot be construed as relinquishment of joint interest resulting in loosing the right of partition. According to the learned counsel, unless the member of the joint family gets property by means and bounds, he is not entitled to sell his undivided share in the joint family property and the assignee will not get any right and in such S.A.No.523 of 2002 26 circumstances, the assignee is not entitled to get the benefit of section 43 of Transfer of Property Act as well.

25. Section 43 of the Transfer of Property reads as follows:-

"43. Transfer by unauthorised person who subsequently acquires interest in property transferred.- Where a person fraudulently or erroneously represents that he is authorised to transfer certain immovable property and professes to transfer such property for consideration, such transfer shall, at the option of the transferee, operate on any interest which the transferor may acquire in such property at any time during which the contract of transfer subsists.

Nothing in this section shall impair the right of transferees in good faith for consideration without notice of the existence of the said option."

26. This section says that at the time when a person transfers a property having no right in the property representing that he is the owner of the property and subsequently he became owner of the property, he is estopped from stating that by virtue of transfer no right has been vested in the transferee. The options has been given to the transferee as to whether he has to accept the same or not.

27. In this case, it cannot be said that there was no S.A.No.523 of 2002 27 partition at all. By virtue of Ext.X1(a) in 1972 Kunhamma Amma 1st defendant and 6th defendant partitioned the property and some portion of the property was allotted to Kunhamma Amma's share and after getting that property, she assigned the same in favour of the 6th defendant. It cannot be said that there was no severance in status among members at that time. But it may not reflect the real share of the person, if ultimately the partition deed was found not valid and not binding on the persons who were not parties to the same. So it cannot be said that there was no severance of status and partition by metes and bounds. It was on the basis of Ext.X1(a) partition deed, Kunhamma Amma had assigned her share to the 6th defendant on the belief that she is entitled to get so much share by virtue of Ext.X1(a) partition deed. But only by virtue of this decision in the suit, it was found that she is not entitled to get that much share and she is entitled to get only lesser share. Since the 6th defendant did not rescind the contract on that basis, she is entitled to get what ever share her assignor is entitled by virtue of S.A.No.523 of 2002 28 notional partition happened on account of the coming into force of Kerala Joint Hindu Family System Abolition Act with effect from 01.12.1976. This view has been supported in the decision reported in Sankara Pillai and another v. Kesavan (1976 KLT 491 (FB), Haridasa Menon v. Saraswathi Bai Amma (ILR 1975 (2) Kerala 461) and Ammalu Amma and others v. Lakshmi Amma and others (1966 KLT 32). So the dictum laid down in the decision reported in 1983 KHC is not applicable to the facts of this case.

28. Further in the decision reported in Jumma Masjid Mercara v.Kodimaniandra Deviah and Others [AIR 1962 SCC 847], considering the question of absolute bar under Section 6 (a) and the impact of Section 43 of Transfer of Property Act, the Apex Court has observed as follows:

"Where a person transfers property representing that he has a present interest therein, whereas he has, in fact, only a spes successionis, the transferee is entitled to the benefit of S.43, if he has taken the transfer on the faith of that representation and for consideration. (Para 18) Such a construction of S.43 has not the effect of S.A.No.523 of 2002 29 nullifying S.6(a). Section 6(a) and S.43 relate to two different subjects, and there is no necessary conflict between them. Section 6(a) deals with certain kinds of interests in property mentioned therein, and prohibits a transfer simpliciter of those interests. Section 43 deals with representations as to title made by a transferor who had no title at the time of transfer, and provides that the transfer shall fasten itself on the title which the transferor subsequently acquires. Section 6(a) enacts a rule of substantive law, while S.43 enacts a rule of estoppel which is one of evidence. The two provisions operate on different fields, and under different conditions, and there is no ground for reading a conflict between them or for cutting down the ambit of the one by reference to the other; both of them can be given full effect on their own terms, in their respective spheres. To hold that transfers by persons who have only a spes successionis at the date of transfer are not within the protection afforded by S.43 would destroy its utility to a large extent. (Para 9) Section 43 embodies a rule of estoppel and enacts that a person who makes a representation shall not be heard to allege the contrary as against a person who acts on that representation. It is immaterial whether the transferor acts bona fide or fraudulently in making the representation. It is only material to find out whether in fact the transferee has been misled. For the purpose of the section it matters not whether the transferor acted fraudulently or innocently in making the representation, and that what is material is that he did make a representation and the transferee has acted on it. Where the transferee knows as a fact that the transferor does not S.A.No.523 of 2002 30 possess the title which he represents he has, then he cannot be said to have acted on it when taking a transfer. Section 43 would then have no application, and the transfer will fail under S.6(a). But where the transferee does act on the representation, there is no reason why he should not have the benefit of the equitable doctrine embodied in S.43, however fraudulent the act of the transferor might have been."

29. Since 1st defendant is a party to Ext.X1(a) partition deed, she cannot now say that there was no partition and there was no allotment of share especially when she had assigned the property obtained by her to defendants 10 and 11 and she is estopped from contending that mother Kunhamma Amma by virtue of partition had not obtained any share. Since Kunhamma Amma had assigned the right obtained as per Ext.X1(a) partition deed by virtue of Ext.X3 assignment deed, what ever right Kunhamma Amma is entitled on partition as per law, 6th defendant is entitled to get that right, as it is not a case where anticipated share was sold and there was no severance of status among the sharers caused. So under such circumstances, the courts below were not justified in S.A.No.523 of 2002 31 denying the share of Kunhamma Amma to the 6th defendant and divided that share among defendants 1 and 6 equally. So to that extent the decree and judgment passed by the trial court as confirmed by the appellate court has to be set aside and the 1/11th share of Kunhamma Amma has to be allotted to the share of 6th defendant as she had obtained that right by virtue of assignment deed executed by Kunhamma Amma as per Ext.X3 document. So apart from her individual 1/11th share, she is entitled to get 1/11th share of her mother Kunhamma Amma also and thereby she is entitled to get 2/11 share in the property and 1st defendant entitled to get only her individual 1/11 share instead of 3/22 share declared by the courts below. So the preliminary decree and judgment passed by the trial court confirmed by the appellate court to the extent mentioned above as per this judgment has to be set aside and modified and following modified preliminary decree is passed:

The plaint schedule property has to be divided into 11 equal shares and one such share shall be given to the S.A.No.523 of 2002 32 plaintiff and one such share shall be given to 1st defendant and one such share each to be given to defendants 2 to 5 and 7 to 9 and 6th defendant is entitled to get 2/11 share.

The house which is now in the occupation of the 6th defendant in the property in her possession has to be allotted to her share without valuation at the time of partition. As far as possible the portion covered by the house and appurtenant land required for convenient enjoyment of the house shall be allotted to the share of the 6th defendant along with the share to the defendant 7 to 9 who are her children and on all other aspects the decree and judgment passed by the trial court are hereby confirmed. With the above modification of the preliminary decree and judgment passed by the trial court and confirmed by the first appellate court, the second appeal is allowed in part and disposed of accordingly. Considering the circumstances, the parties are directed to bear their respective costs in the second appeal.

K.RAMAKRISHNAN JUDGE rmm/5.08.2017

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Kerala High Court