Kerala High Court
Court vs And
Author: P.Bhavadasan
Bench: P.Bhavadasan
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE P.BHAVADASAN
TUESDAY, THE 16TH DAY OF JUNE 2015/26TH JYAISHTA, 1937
RSA.No. 991 of 2004
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AGAINST THE JUDGMENT IN AS 135/2002 of ADDITIONAL SUB
COURT, THALASSERY.
AGAINST THE JUDGMENT IN O.S. 125/1999 of MUNSIFF COURT,
KUTHUPARAMBA.
APPELLANT(S)/APPELLANTS( LEGAL HEIRS OF APPELLANT IN A.S.
AND RESPONDENTS 5, 7, 8/DEFENDANTS 5, 7 & 8 IN O.S.:
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NALINI AMMA (PLAINTIFF) DIED.
1. KURUMBUKKALIDATHIL KAITHERI
KANDOTH USHA, D/O. NALINI AMMA,
SREEVALSAM, PAZHASSI, AMSOM, NELLUNNI DESOM.
2. BROTHER K.K.MANOJ, RESIDING -DO-
3. BROTHER K.K.SATHEESH, RESIDING -DO-
BY ADV. SRI.CIBI THOMAS
RESPONDENT(S)/RESPONDENTS 1 TO 4,6 & 9 TO 14/DEFENDANTS 1
TO 4, 6 AND 9 TO 14:
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1. KURUMBUKKALIDATHIL KAITHERI KANDOTH BHARGAVI AMMA,
W/O. K.P.BALAN NAMBIAR, SREYAS,
NUCHIYAD AMSOM DESOM, P.O.MANIPPARA.
2. SISTER PADMAVATHI AMMA,
W/O. V.M.KRISHNAN NAMBIAR,
EDAMPARAMBATH HOUSE, PAYAM AMSOM,
KOLIKKADAVU DESOM, POST PAYAM.
3. SISTER CHANDRIKA AMMA,
W/O. P.V.GOVINDAN NAMBIAR,
PUTHENVEETTIL HOUSE, SIVAPURAM AMSOM,
MELUR DESOM, P.O.MELUR.
4. SISTER PARUKUTTY AMMA,
PALAPARAMBATH HOUSE, MUZHAKKUNNU AMSOM,
PALA DESOM, P.O.MUZHAKKUNNU.
5. BROTHER K.K.RAMESH, STORE KEEPER,
RESIDING -DO-
6. K.K.MINI,D/O. BALAN NAMBIAR,SREYAS,
NUCHIYAD AMSOM DESOM, P.O.MANIPPARA.
7. K.K.SINI,RESIDING -DO-
8. K.K.ANITHA, D/O.KRISHNAN NAMBIAR,
EDAMPARAMBATH HOUSE, PAYAM AMSOM, KOLIKKADAVU,
POST PAYAM.
9. SISTER K.K.PRAMEELA,RESIDING -DO-
10. SISTER K.K.SHEENA,RESIDING -DO-
11. K.K.UMESH,S/O. GOVINDAN NAMBIAR,
PUTHENVEETTIL HOUSE, SIVAPURAM AMSOM, MELUR DESOM,
POST MELUR.
R1,R3,R4,R6,R7 & R11 BY ADV. SMT.VIDHYA. A.C.,
R1,R3,R4 BY ADV. SRI.R.SURENDRAN
R5 BY ADV. SMT.T.J.SEEMA
THIS REGULAR SECOND APPEAL HAVING BEEN FINALLY
HEARD ON 16-06-2015, THE COURT ON THE SAME DAY
DELIVERED THE FOLLOWING:
- - -R.S.A.-No.-991-of - ----- - -
-P.-BHAVADASAN, J.
- - - -
Dated this the 16th day of- June, 2015.
- - - - - - - - - - - - 2004 - - -
JUDGMENT
The plaintiff, who sued for partition in respect of two items of property was non-suited with respect to item No.1. The appeal failed and hence this Second Appeal.
2. It is not in dispute that the properties in question were originally taken on lease by one Krishnan Nambiar. To be more precise, there were two items of property and item No.2 was found to be partible and there is no dispute regarding that item. The controversy is with regard to item No.1. Krishnan Nambiar, as per Ext.A2 gift deed, gifted the property to Ammu Amma and to her to be born children going by the wordings of Ext.A2. Plaintiff and defendants are siblings.
3. The plaintiff characterised the property obtained by Ammu Amma under Ext.A2 as thavazhy property and claimed partition on that basis.
R.S.A.No.991 of 2004 2
4. The defendants resisted the case on two grounds, (1), it is not a thavazhy property but it is a self acquisition of Ammu Amma and her children have no right and (2), Ammu Amma had independently obtained the oral lease and obtained a purchase certificate in her name and she was the absolute owner. At any rate, it was contended by the defendants that the claim that item No.1 was a thavazhy property cannot be countenanced.
5. On the above pleadings, issues were raised and parties went to trial. 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.Ws. 1 and 2 examined and had Exts.B1 to B7 marked. On an appreciation of the evidence in the case, as already stated, the trial court came to the conclusion that items No.1 cannot be treated as a thavazhy property and the Will executed by Ammu Amma, namely, Ext.B1, is good in law and she is capable of executing a testamentary document. Holding so, the plaintiff was R.S.A.No.991 of 2004 3 non-suited in respect of item No.1. Though an appeal was filed, that was dismissed.
6. Notice was issued on the following questions of law formulated in the memorandum of Second Appeal:
1. Whether the courts below were correct in law in holding that the plaint item No.1 is not partiable?
2. Whether appreciation of the courts below on Ext.A2 gift deed is not correct in law especially when a reading of the said gift deed clearly shows that the intention of the donor is that the property is to be enjoyed as thavazhy property?
3. Whether the courts below were correct in law in holding that Ammu Amma has right to bequeath the entire item No.1 by way of Ext.B2 will, overlooking Ext.A2 gift deed?
4. Whether appreciation of the courts below on oral and documentary evidence are correct in law?
7. Shri. Ciby Thomas, learned counsel appearing for the appellants contended that the courts below were in error R.S.A.No.991 of 2004 4 in holding that the property conveyed under Ext.A2 is not a thavazhy property. It is also pointed out that one of the contentions of the defendants was that Ext.A2 was a sham document and Ammu Amma did not derive any right by way of Ext.A2 independently. There is no issue regarding the character of Ext.A2 document and that has prejudiced the plaintiff to a considerable extent.
8. Learned counsel for the appellants relying on the decisions reported in Madhavi v. Kumaran (ILR 1970 Kerala
624), Kamalam v. Devaki (2006(2) K.L.T. 499), Prasanth v. Kalliani (2007(2) K.L.T. 992) and Sathyabhama Amma v. Taluk Land Board (1978 K.L.T. 359) contended that a gift in the nature of Ext.A2 enures to the benefit of thavazhy and the courts below were in error in holding otherwise.
9. Learned counsel for the respondents on the other hand pointed out that a reading of Ext.A2 leaves one in no doubt that it is not intended as a tavazhy property and it is intended to benefit the persons mentioned therein. It is also R.S.A.No.991 of 2004 5 highlighted that at the time of execution of Ext.A2 three children of Ammu Amma were also alive and they are not made beneficiaries under the gift. The beneficiaries under the gift are Ammu Amma and subsequently born children of Ammu Amma. If that be so, that does not constitute natural tavazhy and therefore, none of the decisions relied on by the learned counsel for the appellants apply to the facts of the case.
10. In the light of the fact that Ext.B1 Will bequeath plaint item No.1 to the legatees mentioned therein, the question of partition of item No.1 does not arise for consideration for the reason that each beneficiary consequent on the death of the testator can take possession of the property. Therefore, it is contended that there is no ground to interfere with the findings of the courts below.
11. Both the courts below have gone on to hold that the property in question cannot be treated as a tavazhy property. Of course, by no stretch of imagination Section 48 R.S.A.No.991 of 2004 6 of Madras Marumakkathayam Act applies to the facts of the case. Then the question is whether the property involved in the gift in favour of Ammu Amma by her father and to her children born subsequent to the date of execution of the gift deed can be treated as thavazhy property.
12. Before going to that question, it will be useful to go into the decisions cited by the learned counsel for the appellants. In the decision reported in Madhavi v. Kumaran (ILR 1970 Kerala 624) the gift was by two brothers in favour of the wife of their late brother and his two daughters. It was though contended that it could not be treated as a tavazhy property, on a scrutiny of the documents, the court went on to hold that since the group formed a natural thavazhy, it has to be treated as a tavazhy property. In the said decision, it was held as follows:
"The donors have expressed their intention that the property should be enjoyed by the three donees and the "santhanams" of Madhavi, the daughter. Thus the line of succession has been R.S.A.No.991 of 2004 7 indicated in the document itself. The document has to be read and construed as a whole and the intention of the donors has to be gauged from such construction, and that intention has to be given effect to. This is a puthravakasom or makkathayam gift in the normal or conventional sense and the devolution can only be on per capita basis."
13. In the decision reported in Sathyabhama v. Taluk Land Board (1978 K.L.T. 359), it was held as follows:
"4. I have therefore no hesitation in holding that the Taluk Land Board was in error in concluding that the properties obtained under the gift deed and the will from the maternal uncles of the revision petitioner were for the benefit of the revision petitioner individually merely for the reason that the gift and bequest apparently were in her name. The real test is as to whether a contrary intention to demolish the presumption that when a marumakkathayi makes a gift of bequest in favour of a niece it enures to the benefit of her thavazhi, not to her exclusively, is contained either in express terms or by necessary implication in the deeds of gift and bequest. In order to enable the Taluk Land R.S.A.No.991 of 2004 8 Board to decide this point on a careful consideration of the recitals in those documents, I set aside the impugned order, and direct the Taluk Land Board to consider the question afresh after giving reasonable opportunity to the revision petitioner to state and prove her case."
A reading of the decision shows that unless there are indications to the contrary, normally a gift by uncle to niece enures to the benefit of thavazhy. There applying the pristine law it was so. But in the case on hand, the property gifted is not intended to be a thavazhy property.
14. In the decision reported in Prasanth v. Kalliani (2007(2) K.L.T. 992) it was held as follows:
"19. The question whether there is a presumption under Marumakkathayam Law that the property given by husband to his wife and children or to his wife alone or to one or more of his children or the property given by an uncle to the niece or nieces, is a gift to the thavazhi has come up for decision before various courts. S.48 of Madras Marumakkathayam Act which came into force on 1- R.S.A.No.991 of 2004 9 8-1933, set at rest the question. Where a Marumakkathayi male bequeathes or makes a gift of any property or purchase any property in the name of his wife alone or his wife and one or more of his children by such wife together, such property is to be taken as thavazhi property by the wife, her sons and daughters by such person and the lineal descendants of such daughters on the female line unless a contrary intention appears from the Will or deed of gift. Apart from provisions of Marumakkathayam Act, there has always been a presumption with regard to the gift by the father to the wife and the children to be enjoyed in the female line or when a gift or bequeath is made in the name of niece or grandnieces, that the gift is for the thavazhi.
25. The legal position is now settled. When a bequest is made by the uncle of a marumakkathayam tharwad, in favour of his wife, or daughter or niece or grandnieces, the bequest is presumed to be not for them individually but shall enure to the benefit of their thavazhi. The question whether the gift or the bequest is for the benefit of the donees individually or shall enure to the R.S.A.No.991 of 2004 10 thavazhy is to be resolved on the intention of the donor or the testator. In the absence of specific stipulation that it is for the donees or the persons mentioned in the Will individually and as tenants in common, the normal presumption in consonance with the ordinary ideas and notions of people following Marumakkathayam Law is that the intention of the donor or the testator was that donees or the persons to whom the bequest is made shall hold the properties with all the incidents of tarwad property attached to it."
A reading of the decision in that case would show that it was a case where there was neither intention discernible from the document to show whether it was intended to give it to thavazhy nor there was any indication to show that the gift was to specified individuals therein. In that context, it was held that absence of any such recital would show that it is intended to benefit a particular person, it enures to the tavazhy.
R.S.A.No.991 of 2004 11
15. In the decision reported in Kamalam v. Devaki (2006(2) K.L.T. 499), it was held as follows:
"There is a presumption in cases where the gift or Will was in favour of the members of a natural that it enured to the thavazhi constituted by that group. That Devaki and all her children constituted a natural group cannot be disputed. The Will was executed in 1952. All the children of Devaki were not born at that time but the Will provided for them also to be benefited. Looking at the age of the children of Devaki, it can be seen that all the daughters of Devaki were not born at the time of execution of the Will. When the Will is in favour of a natural group, there is a presumption that it would enure to the benefit of the thavazhi. The trial court therefore found that all the members of the thavazhi are entitled to equal share and the property was directed to be partitioned accordingly. The mere absence of the word "thavazhi" in the Will excuted by Pokkinan by itself will not show that the properties were to be enjoyed as co-ownership property. It is also to be noted that in 1954 a registered partition deed was entered into as R.S.A.No.991 of 2004 12 evidenced by Ext.A2 wherein the plaintiff and her children obtained plaint B-schedule property as thavazhi property and the same is not in dispute. Therefore, the existence of a thavazhi consisting of the plaintiff and her children as early as in 1954 would itself show that when Pokkinan intended his daughter and all her children to be benefited by the Will, the intention was to benefit the thavazhi of Devaki and not the persons mentioned in the Will only."
Therefore, the contention was that since the word tavazhy was not used in the document and therefore, it cannot be construed as a tavazhy property.
16. It is well settled by now that use of the word tavazhy has no significance. The test to be applied is to see whether the bequeath or gift is to a natural tavazhy. If it is to a natural tavazhy, then it could be treated as tavazhy property.
17. In the case on hand, Krishnan Nambiar as per Ext.A2 dated 21.2.1949 gifted the property to his daughter Ammu Amma and the subsequent recital clearly shows that R.S.A.No.991 of 2004 13 the benefit is to be enjoyed by the children to be born to her after Ext.A2. It is significant to notice that at the time when Ext.A2 was executed, three daughters of Ammu Amma were alive and they are Nalini, Bhargavi and Padmavathi. Conspicuously Ext.A2 excludes them and confined the benefits to the children who are yet to be born to Ammu Amma. Therefore, it could not be said that gift is to a natural tavazhy. The result was to the effect that it enures to the benefit of Ammu Amma and to her subsequently born children. The recital clearly says that the then alive daughters of Ammu Amma were not beneficiaries under the deed. It clearly shows the intention of the donor. He did not intend it to be a tavazhy property.
18. In the light of the above facts, the courts below were justified in coming to the conclusion that item No.1 cannot be treated as tavazhy property. In the light of the fact that Ext.B1 Will specifically allots property with well defined boundaries, the question of partition does not arise for R.S.A.No.991 of 2004 14 consideration. The legatees can take possession of the property allotted to them in accordance with law.
This Second Appeal is disposed of as above.
P. BHAVADASAN,
sb. JUDGE.