Kerala High Court
Neelathupura Shaikoya, Neelathupura ... vs Monthrappallipadiopura Attakoya ... on 21 March, 2003
Equivalent citations: AIR2003KER344, AIR 2003 KERALA 344, (2003) 2 KER LJ 465
JUDGMENT A. Lekshmikutty, J.
1. Defendants 5 to 8 in O.S.No. 6 of 1982 on the file of the Sub Court, Lakshadweep are the appellants herein. The suit is filed by the plaintiff to declare that the gift deed executed by the first defendant in favour of defendants 5 to 8 is invalid and not binding on the plaintiff's thavazhi and for perpetual injunction against the defendants not to do anything on the basis of the gift deed and also for permanent injunction against defendants 1 to 4 from transferring the plaint schedule properties or other tharwad properties by way of executing gift deeds, assignments, lease, etc.
2. As per the plaint averments, the plaint schedule properties are the ancestral properties of Biyyammada tharwad of which the plaintiff, defendants 1 to 4 and 9th defendant are members. There are four sakhas to the Biyyammada tharwad and as per the agreement each sakhas are enjoying the income from the coconut trees in the Belliyazcha properties of the common tharwad as per a maintenance arrangement. Originally there were only three sakhas known as Biyyammada, Pokker Athiyammada and Monthrappalli. Subsequently Monthrappalli sakha was divided into two sakhas known as Monthrappalli and Monthrappalli padipura. The income of Monthrappalli sakha was then enjoyed by the above two sakhas. Though these four sakhas had the right to enjoy the income from the coconut threes and to plant new coconut trees and other improvements, the common tharwad properties had never been partitioned. When a sakha became extinct, the coconut threes set apart will revert back to the remaining sakhas. The Biyyammada sakha became extinct and the coconut trees set apart to that sakha were divided among the remaining sakhas. Similarly when Pokker Athiyyammada became extinct, the coconut trees set apart to that sakha devolved on the remaining sakhas. There is not right of alienation of the common tharwad properties. There were suits when some members on earlier occasions attempted to alienate the properties and those suits have been compromised accepting custom of the Islands. There were three Razi decrees in the year 1912, 1919 and 1933. As per the Razi decree, no one has any right to alienate the properties. Hence the suit is filed for declaration that the gift deed is not binding on the plaintiff's sakha and for an injunction against defendants 5 to 8 from doing anything in the property on the basis of the gift deed.
3. Defendants 1 and 5 to 8 filed a joint written statement denying the averments in the plaint. They denied that Biyyammada tharwad is a common tharwad and other sakhas are sakhas of Biyyammada tharwad. The allegation that the common tharwad properties were not partitioned and there were only arrangements for the purpose of enjoyment of the coconut trees as maintenance arrangement also was denied. The averments that the custom of the Island is that when one sakhas became extinct, the coconut trees allotted them will revert back to other sakhas is denied. The suit with respect to Pokker Athiyyammada is still pending. The alleged proceedings with respect to Biyyammada and Pokker Athiyyammada are not binding on defendants 1 to 8 or the plaint schedule properties. Defendants 1 to 8 are not parties to the suit regarding Pokker Athiyyammada. The properties exclusively belonged to Monthrappalli tharwad consisting of defendants 1 to 4. The properties now in the possession of defendants 5 to 8 as per the gift deed executed by the first defendant which absolutely belongs to him. The properties are partitioned as per partition deed dated 7-12-1980 among members of Monthrappalli tharwad. After partition, the respective parties are in absolute enjoyment of the properties allotted to them as owners. The first defendant has exclusive right in respect of the properties set apart to his share as per partition and he has absolute right of disposal. While so he had gifted the properties to defendants 5 to 8 on 10-3-1982. Monthrappalli and Monthrappalli Padippura tharwads have been orally partitioned in the year 1935. Plaint schedule properties exclusively belonged to Monthrappalli tharwad consisting of defendants 1 to 4. There is no custom as alleged in the plaint. As per the custom, the properties allotted as per partition can be disposed of by the allottees and the last surviving member can alienate the properties. From time immemmorial there is a custom of out right partition. The Monthrappalli sakha to which defendants 1 to 4 belonged, have absolute right of disposal of the properties as per custom and law of the Island. The other members of Monthrappalli Padippura are necessary parties and the plaintiff alone cannot maintain the suit.
4. On the basis of the pleadings, the court below framed three issues. The evidence in this case consists of the oral testimony of PW1 and DW1 and documents Exts. A1 to A23 and Exts. B1 to B8. The court below after appreciation of the evidence decreed the suit. Against the said judgment and decree, this appeal is preferred by defendants 5 to 8.
5. During the pendency of the suit, the first defendant and 9th defendant passed away. Defendants 5 to 8 are the children of late first defendant and the 10th defendant is the legal heir of 9th defendant. The case of the plaintiff is that the properties originally belonged to Biyyammada Tharwad. The plaintiff, defendants 1 to 4 and late 9th defendant are members of the said tharwad. There are four sakhas to this Biyyammada common tharwad. As per the maintenance agreement entered into between the parties, each sakhas are allotted coconut trees and they were in enjoyment of the same. It is the further case of the plaintiff that originally there were only three sakhas known as Biyyammada, Pokker Athiyyammada and Monthrappalli. Subsequently Monthrappalli tharwad was divided into two sakhas as Monthrappalli and Monthrappalli was enjoyed by these two sakhas, Monthrappalli and Monthrappalli Padippura. As per the plaintiff, nobody has any right to alienate the property. The only right is to take usufructus from the coconut trees. The ancestral properties are not partible and alienable. But the contention of the defendant is that the properties are not ancestral properties and absolute properties of defendants 1 to 4 and 9 and they have got right of alienation. The plaintiff is not competent to challenge the same.
6. To prove that the ancestral properties are not partible and alienable, the plaintiff relies on Exts.A2 to A4 Razi decrees. Whenever alienation were made some of the members of the sub tarwad, the (sic) were challenged by filling suits before the Court of (sic). Ext. A1 is the registration copy of the gift deed executed by deceased first defendant in favour of his wife and children. There are 18 items of properties. Ext.B2 is the original gift deed. Exts.A2 to A4 are the certified copies of the compromise decrees (Razi decrees) of the year 1912, 1919 and 1933 of the Court of Amin of Androth Island. Ext.A9 is the certified copy of the document No. 2/66, which is an assignment deed. Ext.A11 is the certified copy of another assignment deed by which some other properties of the common tharwad has been assigned by some of the members of the tharwad. Kunhikoya was the Karanavan of the common tharwad. The contention of the defendant is that the property did not belong to Biyammada tharwad. The plaintiff relies on Ext.A11 to show that the properties were ancestral tharwad properties and the coconut trees in the above properties were enjoyed by four sakhas, Biyyammada, Pokker Athiyyammada, Monthrappalli and Monthrappalli Padippura as per the maintenance agreement. It is the specified case of the plaintiff that no partition of the properties have been effected in the common tharwad. As per the custom followed in the Island, there is no partition of tharwad Belliyazcha properties and there was only maintenance arrangement to enjoy the income from the coconut trees for convenient enjoyment of the members of the sakhas. This document would further show that some of the members of the common tharwad has been alienated the properties and those documents were challenged by the members of the tharwad before the Court of Amin. Exts.A2 to A4 are the compromise decree entered into between the parties. As per the compromise, the parties accepted that the properties are not alienable. As per the contesting defendants, these documents would not show that the properties are not alienable and alienation was prohibited in the community in Androth Island. Ext.B1 is the original partition deed dated 7-2-1980 by which the defendants 1 to 4 have partitioned the properties of Monthrappalli tharwad to which they belonged and Ext.B2 is the original gift deed dated 18-3-1982. As per the gift deed the late first defendant gifted plaint items 1 to 18 to his wife and children. The defendants rely on Exts.B3 to B8 to prove that there was no custom as alleged by the plaintiff and the properties were enjoyed by the members as their absolute properties. They also deny that the properties were Belliyazcha properties. According to them, the properties enjoyed by Monthrappalli and Monthrappalli Padippura are thinkalazcha properties. Monthrappalli and Monthrappalli padippura had separate thinkalazcha properties and those properties were orally partitioned in 1935 and as per the partition, the first defendant has obtained items 1 to 18 in Monthrappalli tharwad of the year 1935. Those properties were gifted to defendants 5 to 8 as per Ext.B2. The plaintiff has no authority to question the document. From the documentary evidence adduced in this case it can be seen that Biyammada tharwad is the common tharwad and the tharwad has got several items of properties. 9th defendant is the senior most male member of plaintiff's sakha. Partition deed has been executed by Monthrappalli only in 1980. The definite case of the plaintiff is that as per the custom followed in the Island, there could not be any partition in respect of tharwad Belliyazcha properties and the members of the tharwad is only having a right to take usufructs from coconut trees allotted to them as per the arrangement. The first defendant was the senior most male member in Monthrappally. The only right of the first defendant and the members of his sakha have to enjoy the coconut trees and nobody has a right of alienation or dispose of the tharwad properties. The further case of the plaintiff is that when one sakha becomes extinct on the death of the last surviving member, right to take usufructs revert back to the members of the remaining sakhas and there was no outright partition. When assignment has to be effected regarding the common tharwad in respect of Belliyazcha properties, all the members of the tharwad including the minors represented by their guardian have to be joined. As per PW1, Biyyammada tharwad and Pokker Athiyyammada became extinct long back. Now there are only Monthrappalli and Monthrappalli padippura sakha.
7. Even though Ext.A2 to 4 would not show the custom prevalent in the Island of Androth, one thing is clear that whenever thrwad properties were alienated by some members of the tharawad, Suits were filed to set aside the alienation before the Court of Amin and the Civil Court and those cases were subsequently compromised between the parties. The decisions of the civil court including this Court accepted the custom followed in the Island. Ext.B2 gift deed is executed by late first defendant in favour of his wife and children in respect of item Nos. 1 to 18 in the plaint. These properties are originally belonged to Biyyammada tharwad cannot be disputed in the light of the evidence adduced by the plaintiff.
8. It is argued by learned counsel for the defendants that even if the case of the plaintiff is admitted, the plaintiff is not competent to question the alienation since there are other senior members in the sakhas. According to the defendants, even if the first defendant has a limited interest over the property, he can assign his limited right during his lifetime. So on the date of filing of the suit, the plaintiff is not competent to file the suit and it is premature. This argument of the learned counsel cannot be accepted since the late first defendant has parted with possession to defendants 5 to 8. In the decision reported in Buhari Koya v. Kasimkoya Haji (1979 (ILR) (1) Kerala 730), this Court observed that :
"The expression 'Partition has also to be understood in the background that property in the Island, at any rate, until recently, consisted of trees and not the land wherein they stood. If the right to the usufructs of the trees and not the land itself formed the basis of partition, the concept of partition in early times could not have taken in a division of the land where the trees stood. It is possible that when the number of members of individual tarwads increased, some of them started living separate from the main tarwad houses and by arrangement among the members, the members who left the tarwad houses must have taken with them particular properties for their maintenance."
9. Now the first defendant is no more. Even though the defendants contended that the oral partition has been entered into between Montrappalli and Monthrappalli Padippura, no evidence has been adduced by them to prove the same. There is absolutely no evidence to show that Monthrappalli tharwad is a separate tharwad which had no connection with Biyyammada tharwad. On the other hand Exts. A2 to A4 would clearly show that the alienations were challenged by the members of the tharwad an the representatives of the sakhas were entered into compromise. After the death of the first defendant, the right of enjoyment of the coconut trees will revert back to the other members of the sakha since 5 to 8 are not members of the sakha. Even though the defendants contended that they have effected an oral partition in 1935 and they were dealing with the properties as per the oral partition entered into by them, no evidence was adduced to substantiate the same. Exts.B1 partition deed was executed only in 1980. Even if Ext.A2 to A4 would not show what was the custom followed among the parties, it can be gathered from the Razi decrees that whenever alienation was made, it was challenged by the members of the sakha of tharwad. As per the Razi the parties agreed to surrender the properties to the tharawad and right of enjoyment of coconut trees were vested with the parties. If an outright partition was there among the Androth Island, naturally the properties would not be given back to the tharwad. It is admitted by the parties therein that they will not alienate the properties by sale mortgage etc.
10. The Gazetteer of India Lakshadweep by N.S. Mannadiar published in 1977 deals with property and inheritance in the islands at pages 97 and 98. It is stated therein that Androth and Kalpeni, division of properties is between branches or tavazhis of the family. A tavazhi does not possess the right to mortgage or sell the tarwad property so divided and has only the right to enjoy the income from property during the lifetime of the members of the tavazhi. That also would show that the members or the tavazhi or tharwad has no right of alienation of the tharwad properties. From the evidence adduced in this case, it can be seen that Biyyammada tharwad is the common tharwad. It was subsequently divided into three sakhas as Biyyammada, Pokker Athiyyammada and Monthrappalli. Subsequently Monthrappalli sakha was divided into two sakhas namely Monthrappalli and Monthrappalli Padippura. It has also come out in evidence that these properties are ancestral properties and therefore the members of the sakhas have no right of alienation, but they can only enjoy the usufructs from the coconut trees till their death. So the gift deed executed by the first defendant in favour of defendants 5 to 8 are invalid. Since the first defendant is no more, the right of enjoyment of the coconut trees will revert back to the other members of the sakhas.
11. The argument of the learned counsel for the appellants is that the suit filed by the plaintiff is premature also cannot be accepted since the possession was parted with and the assignees were in possession of the properties, the assignees can perfect title by adverse possession and limitation. If the senior members of the family were not challenging the document, any one can take appropriate steps to protect the properties. Admittedly, 9th defendant, who was the senior most member of the sub tharwad has not taken any steps to set aside the document. So even a junior member can challenge the alienation and the plaintiff is competent to file the suit.
On a perusal of the entire evidence, I find that the court below has rightly appreciated the evidence and decreed the suit. Hence the decree and judgment of the court below are confirmed and the appeal is dismissed. In the circumstances of the case the parties are directed to bear their respective costs.