Kerala High Court
Santhakumari,(Died) Legal Heirs ... vs Mohanan on 13 September, 2024
RSA NOS.960/2015 & 868/2017
1
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IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE M.A.ABDUL HAKHIM
FRIDAY, THE 13TH DAY OF SEPTEMBER 2024 / 22ND BHADRA, 1946
RSA NO. 960 OF 2015
AGAINST THE JUDGMENT & DECREE DATED 14.07.2015 IN AS NO.46
OF 2012 OF II ADDITIONAL DISTRICT COURT,THIRUVANANTHAPURAM
ARISING OUT OF THE FINAL DECREE/JUDGMENT DATED 06.12.2008 IN
I.A NO. 5512/05 IN OS NO.541 OF 1987 OF PRINCIPAL MUNSIFF COURT,
THIRUVANANTHAPURAM
APPELLANTS/APPELLANTS/DEFENDANTS 11 TO 15:
1 J SANTHAKUMARI,(DIED) (LEGAL HEIRS RECORDED)
KUNNUVILAKATHU VEEDU, KESAVADASAPURAM,
THIRUVANANTHAPURAM (THE APPELLANT NO.2 TO 5 ARE
RECORDED AS LEGAL REPRESENTATIVES OF DECEASED
APPELLANT NO.1 AS PER ORDER DATED 12.07.2023 IN
IA.3/2023)
2 S.L. RAJENDRAN
KUNNUVILAKATHU VEEDU, KESAVADASAPURAM,
THIRUVANANTHAPURAM
3 S.L. CHANDRABABU
KUNNUVILAKATHU VEEDU, KESAVADASAPURAM,
THIRUVANANTHAPURAM
4 S.L.VIJINDRAKUMAR
KUNNUVILAKATHU VEEDU, KESAVADASAPURAM,
THIRUVANANTHAPURAM
RSA NOS.960/2015 & 868/2017
2
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5 L.J.SOBHANAKUMARI
KUNNUVILAKATHU VEEDU, KESAVADASAPURAM,
THIRUVANANTHAPURAM
BY ADVS.
V.SURESH
G.SUDHEER
RESPONDENTS/RESPONDENTS/PLAINTIFFS & DEFENDANTS 2 TO 9:
1 MOHANAN, AGED 42 YEARS
SON OF RAGHAVAN NADAR, PULLIYATHUVILA PUTHEN VEEDU,
EDACODE, NEMOM, THIRUVANANTHAPURAM 695 001
2 SASI,AGED 40 YEARS
SON OF RAGHAVAN NADAR, ATTARIKATHU VEEDU,
KUNDAMANBHAGOM, PEYAD, VILAPPIL VILLAGE,
THIRUVANANTHAPURAM 695 001
3 R. DIVAKARAN, AGED 48 YEARS
MARUVILA PUTHEN VEEDU, MAVARATHALAKONAM MURI, ULLOOR
VILLAGE, THIRUVNANTHAPURAM 695 001
4 SAROJAM, AGED 50 YEARS
SON OF JANAKI, THOTTARIKATHU PUTHEN VEEDU, KANAKODE,
VATTAPPARA, THIRUVANANTHAPURM 695 001
5 JAYA, AGED 42 YEARS
MARUVILA PUTHEN VEEDU, MAVARATHALAKONAM MURI, ULLOOR
VILLAGE, THIRUVANANTHAPURAM 695 001
6 LEKSHMANAMMA, AGED 59 YEARS
PULLIYATHUVILA PUTHEN VEEDU, EDACODE, NEMOM,
THIRUVANANTHAPURAM 695 001
7 L.VIJAYAMMA, AGED 45 YEARS
MACHIVILAKOM VEEDU TC 22/225, KARAMANA PO, THALIYAL,
THIRUVANANTHAPURAM 695 001
8 K.THANKAMANI,(DIED) (LRS IMPLEADED)
RSA NOS.960/2015 & 868/2017
3
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AGED 40 YEARS
PULIYOTTUVILA PUTHEN VEEDU, EDACODE, NEMOM,
THIRUVANANTHAPURAM 695 001
9 DAISY, AGED 65 YEARS
UP XII/179 B, MANKULAM HOUSE, PAROTTUKONAM, NALANCHIRA,
THIRUVANANTHAPURAM 695 001
10 ANIL JOSE, AGED 40 YEARS
UP XII/179 B, MANKULAM HOUSE, PAROTTUKONAM, NALANCHIRA,
THIRUVANANTHAPURAM 695 001
11 AJITH JOSE AGED 38 YEARS
UP XII/179 B, MANKULAM HOUSE, PAROTTUKONAM, NALANCHIRA,
THIRUVNANTHAPURAM 695 001
12 ARUN JOSE, AGED 35 YEARS
UP XII/179 B, MANKULAM HOUSE, PAROTTUKONAM, NALANCHIRA,
THIRUVNANTHAPURAM 695 001
13 ADDL R13. SUMA SATHEESH
AGED 44 YEARS,D/O.LATE
K.THANKAMANI,KARTHIKA,EDACODU,NEMON
P.O.,THIRUVANANTHAPURAM,PIN-695 020.
14 ADDL.R14. SUDHARSHAVAKUMAR M.T.,
AGED 46 YEARS,S/O.LATE K.THANKAMANI,RESIDING AT
VISMAYAM,MARTHANPESHWALAM,KUZHIVILA,NARUVAMGODU
P.O.,THIRUVANANTHAPURAM-PIN-695 528. (LEGAL HEIRS OF
DECEASED 8TH RESPONDENT ARE IMPLEADED AS
ADDL.RESPONDENTS 13 AND 14 AS PER ORDER DATED 03.01.2022
IN IA.1/2021.)
R1 TO R3 BY ADVS.
BY SRI.ASWIN.P.JOHN
THOMAS ABRAHAM
SMT.MERCIAMMA MATHEW
ADDL.R13&R14 BY ADV. SRI. THOMAS ABRAHAM
THIS REGULAR SECOND APPEAL HAVING BEEN FINALLY HEARD ON
29.08.2024, ALONG WITH RSA.868/2017, THE COURT ON 13.09.2024,
DELIVERED THE FOLLOWING:
RSA NOS.960/2015 & 868/2017
4
2024:KER:69932
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE M.A.ABDUL HAKHIM
FRIDAY, THE 13TH DAY OF SEPTEMBER 2024 / 22ND BHADRA, 1946
RSA NO. 868 OF 2017
AGAINST THE JUDGMENT & DECREE DATED 07.08.2003 IN AS NO.116
OF 1996 OF I ADDITIONAL DISTRICT COURT, THIRUVANANTHAPURAM ARISING
OUT OF THE DECREE/JUDGMENT DATED 30.08.1994 IN OS NO.541 OF 1987 OF
PRINCIPAL MUNSIFF COURT, THIRUVANANTHAPURAM
APPELLANTS/APPELLANTS-LRS OF DECEASED 3RD RESPONDENT:
1 B.JYANAMMA
KUNNUVILAKATHU VEEDU,KESAVADASAPURAM,
THIRUVANANTHAPURAM-4
2 J.SANTHAKUMARI,(DIED) LRS RECORDED
KUNNUVILAKATHU VEEDU,KESAVADASAPURAM,
THIRUVANANTHAPURAM-4 (IT IS RECORDED THAT 2ND APPELLANT
IS DEAD AND THE APPELLANTS 3 TO 6 ARE RECORDED AS THE
LEGAL REPRESENTATIVES OF THE DECEASED 2ND APPELLANT AS
PER ORDER DATED 12.07.2023 IN IA.NO.2/2023).
3 S.L.RAJENDRAN,
KUNNUVILAKATHU VEEDU,KESAVADASAPURAM,
THIRUVANANTHAPURAM-4
4 S.L.CHANDRA BABU,
KUNNUVILAKATHU VEEDU,KESAVADASAPURAM,
THIRUVANANTHAPURAM-4
5 S.L.VIJENDRAKUMAR,
KUNNUVILAKATHU VEEDU,KESAVADASAPURAM,
THIRUVANANTHAPURAM-4
RSA NOS.960/2015 & 868/2017
5
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6 L.J.SOBHANAKUMARI,
KUNNUVILAKATHU VEEDU,KESAVADASAPURAM,
THIRUVANANTHAPURAM-4
BY ADVS.
V.SURESH
G.SUDHEER
RESPONDENTS/RESPNDENTS:
1 MOHANAN, PULIYATTUVILAKATHU PUTHEN VEEDU,EDACODE NEMOM
VILLAGE,NEYYATTINKARA TALUK,TRIVANDRUM.
2 SASI,ATTARIKATHU VEEDU,KUNDAMONBHAGOM,PEYAD VILAPPIL
VILLAGE,NEYYATTINKARA TALUK.
3 R.DIVAKARAN,MAVUVILA PUTHEN VEEDU,MAVARTHALAKONAM
MURI,ULLOOR,THIRUVANANTHAPURAM.
4 SAROJAM,D/O.JANAKI,THOTTARIKATHU PUTHEN VEEDU,KANAKKODE
VETTINAD MURI,VEMBAYAM VILLAGE, P.O.VATTAPPARA.
5 JAYA,D/O.SANTHA,MAVUVILA PUTHEN VEEDU,MAVARTHALAKONAM
MURI,ULLOOR,THIRUVANANTHAPURAM.
6 LEKSHMANAMMA,(DIED) LRS IMPLEADED
PULIYATTUVILA PUTHEN VEEDU,EDACODE,NEMOM
VILLAGE,NEYYATTINKARA TALUK,NEMOM P.O. (RESPONDENTS
1,2,3,7, 10 & 11 ARE RECORDED AS THE LEGAL HEIRS OF THE
DECEASED R6 AS PER ORDER DATED 01.11.2022 IN IA.3/2022.)
7 L.VIJAYAMMA,D/O.LEKSHMANAMMA,T.C.22/225,THALIYAL,THIRUVA
NANTHAPURAM,KARAMANA P.O.
8 K.THANKAMONY,(DIED) LRS IMPLEADED
D/O.LEKSHMANAMMA,PULIYATTUVILA PUTHEN
VEEDU,EDACODE,NEMOM VILLAGE,NEYYATTINKARA TALUK,NEMOM
P.O.
9 K.REGHUNATHAN,(DIED) LRS IMPLEADED
UP 11/17913,MANKULAM
HOUSE,PAROTTUKONAM,NALANCHIRA,THIRUVANANTHAPURAM-
15,NALANCHIRA P.O.
RSA NOS.960/2015 & 868/2017
6
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10 ADDL R10.SUMA SATHEESH, AGED 44 YEARS,
D/O.LATE K.THANKAMANI,KARTHIKA,EDACODU,NEMON P.O.,
THIRUVANANTHAPURAM,PIN-695 020.
11 ADDL.R11 SUDHARSAVAKUMAR M.T
AGED 46 YEARS
S/O.LATE K.THANKAMANI,RESIDING AT
VISMAYAM,MARTHANPESHWALAM,KUZHIVILA,NARUVAMGODU
P.O.,THIRUVANANTHAPURAM,PIN-695 528. (LEGAL HEIRS OF
DECEASED 8TH RESPONDENT ARE IMPLEADED AS
ADDL.RESPONDENTS 10 AND 11 AS PER ORDER DATED 03.01.2022
IN IA.1/2021.)
12 ADDL.R12. DAISY W/O K.REGHUNATHAN,UP X11/179-B,MANKULAM
HOUSE,PAROTTUKONAM,NALANCHIRA,THIRUVANANTHAPURAM-695
015,
13 ADDL.R13. ANIL JOSE UP X11/179-B,MANKULAM
HOUSE,PAROTTUKONAM,NALANCHIRA, THIRUVANANTHAPURAM-695
015,
14 ADDL.R14. AJITH JOSE UP X11/179-B,MANKULAM
HOUSE,PAROTTUKONAM,NALANCHIRA,
THIRUVANANTHAPURAM-695 015,
15 ADDL.R15. ARUN JOSE
UP X11/179-B,MANKULAM
HOUSE,PAROTTUKONAM,NALANCHIRA,THIRUVANANTHAPURAM-695
015, (LEGAL HEIRS OF DECEASED 9TH RESPONDENT ARE
IMPLEADED AS THE ADDL.R12 TO 15 AS PER ORDER DATED
01.11.2022 IN IA.1/2022.)
BY ADVS.
R1-R3, R5-R8, R10 &R11 BY SRI THOMAS ABRAHAM
R1-R2, R5 R8 BY SMT. MERCIAMMA MATHEW
THIS REGULAR SECOND APPEAL HAVING BEEN FINALLY HEARD ON
29.08.2024 ALONG WITH RSA.960/2015, THE COURT ON 13.09.2024,
DELIVERED THE FOLLOWING:
RSA NOS.960/2015 & 868/2017
7
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CR
JUDGMENT
(RSA Nos.960/2015 and 868/2017)
1. The above Regular Second Appeals arise from OS No.541/1987 of the Principal Munsiff's Court Thiruvananthapuram. OS 541/1987 was a suit for partition. RSA No. 868/2017 arises from the Preliminary Decree dt 30.08.1994 in the suit. RSA No. 960/2015 arises from the Final Decree dt. 06.12.2008 in I.A No. 5512/2005 in the suit. Both the Appeals are filed by the legal heirs of the Original 3rd defendant.
2. The parties are referred according to their status before the Trial Court.
3. The plaintiffs 1 & 2 filed the suit against the defendants 1 to 5 with the averments to the effect that the plaintiffs & the 2nd defendant are the sons of the 1st defendant, the 5th defendant is the daughter of the 2nd defendant, the 4th RSA NOS.960/2015 & 868/2017 8 2024:KER:69932 defendant is the Second wife of the 1st defendant. The plaintiffs and defendants 1,2, 4 and 5 are Hindu Nadars governed by the Hindu Mitakshara law of succession. The Plaint A Schedule Property having an extent of 44 cents is a portion of a larger extent having an area of 3.2 Acres, which originally belonged to Kutty Nadar, grandfather of the 1st defendant. The said Kutty Nadar had two sons, namely, Madan Nadar and Velayudhan Nadar. The 1st defendant is the son of Velayudhan Nadar. The property of Kutty Nadar was Hindu coparcenary property of which the plaintiffs are members. As per Ext.A1 Partition Deed dt. 18.05.1123 ME, the Plaint A Schedule Property having an extent of 44 cents was allotted to the 1st defendant. The 1st defendant took the property as belonging to the branch which he represented. The plaintiffs and the 2nd defendant have got equal right over the plaint schedule property by RSA NOS.960/2015 & 868/2017 9 2024:KER:69932 birth along with the 1st defendant. The 1st defendant gifted 10 cents in the plaint A schedule property to the plaintiffs' sister Vijayamma as per Ext.B8 dt 30.11.1961. Though the gift was made asserting the exclusive right by the 1st defendant the plaintiffs did not dispute the same since the 1st defendant did it in his capacity as the Manager of the family. The remaining property of 34 cents is in the plaint B schedule. As on the date of implementation of the Hindu Joint Family System Abolition Act there were four members in the coparcenary namely, the plaintiffs and the defendants 1 and 2. The 1st defendant had created some documents in respect of plaint B schedule property in favour of the defendants 3, 4 and 5 by asserting exclusive right with him. The said documents are not binding on the plaintiffs and their share in the plaint schedule property. The 1st defendant is entitled to alienate only to the extent RSA NOS.960/2015 & 868/2017 10 2024:KER:69932 of his ¼ share in the coparcenary property. The documents executed by the 1st defendant are null and void, and they are liable to be set aside. The prayer in the suit was for partition of the plaint B schedule property and to allot 2/4 share to the plaintiffs and to allot the share of the 1st defendant to the defendants 3,4, and 5 towards the properties alienated to them. Mesne profits @ Rs.500/- per annum was also claimed from the contesting defendants.
4. After the institution of the suit, the first defendant died on 06.05.1987. The additional defendants 6 to 8 were impleaded and the plaintiffs and the 2nd defendant were recorded as the legal heirs of the deceased 1st defendant. The additional 6th defendant is the wife, and the additional 7th & 8th defendants are the daughters of the 1st defendant.
5. Since 1/4 share of the 1st defendant in Plaint B Schedule Property devolved upon the plaintiffs, the 2nd defendant RSA NOS.960/2015 & 868/2017 11 2024:KER:69932 and additional defendants 6 to 8, the plaintiffs amended the prayer in the plaint for allotting 7/12 share to the plaintiff. A prayer to set aside all alienations created by the 1st defendant with respect to B schedule property beyond the extent of his ¼ share was also included. The additional 9th defendant was also impleaded as per order in IA No. 511/1991 as the alienee of a portion of plaint B Schedule property.
6. The 3rd defendant and the 4th defendant alone contested the suit.
7. The 3rd defendant filed a Written Statement opposing the suit prayers, contending, inter alia, that the plaintiffs and the 2nd defendant are not the legitimate children of the 1st defendant. The mother of the plaintiff is one Lakshmi Amma, and she is residing with her husband Kesavan, and they have three children. The 1st defendant never married RSA NOS.960/2015 & 868/2017 12 2024:KER:69932 the 4th defendant. The sisters of the plaintiffs, namely, the 7th and 8th defendants, are also not the legitimate daughters of the 1st defendant. The 1st defendant got B schedule property allotted as per Ext.A1 Partition Deed in his exclusive share and he had got absolute right of ownership over the same. Neither the plaintiffs nor the 2nd defendant got any right of share in the plaint schedule property by birth as alleged. There was no coparcenary, as alleged in the plaint. There was no joint family consisting of the plaintiffs and defendants 1 and 2, and hence, the Hindu Joint Family System Abolition Act has no effect on the plaint schedule property. The plaintiffs and 2nd defendant had no authority to question the documents executed by the 1st defendant which are valid and binding. It is true that the 1st defendant had executed Ext.B8 to the 7th defendant. The 1st defendant had also executed a sale RSA NOS.960/2015 & 868/2017 13 2024:KER:69932 deed for 3.75 cents to the 9th defendant. The 1st defendant executed Ext.B4 mortgage deed with respect to 3 cents in favour of the wife of the 2nd defendant, which was assigned by her in favour of the 3rd defendant as per Ext.B3. The 1st defendant executed Exts.A2/B5 and A3/B6 sale deeds in favour of the 3rd defendant selling 15 cents and 7 cents, thus the 3rd defendant is in absolute possession and enjoyment of the properties covered by the said documents. The 1st defendant also executed some fictitious documents in favour of the 4th defendant out of undue influence and coercion. The 3rd defendant is a bona fide purchaser for valuable consideration.
8. The 4th defendant filed a Written Statement opposing the suit prayers, contending, inter alia, that she is the absolute owner in possession of 8 cents out of the Plaint B Schedule Property by virtue of two Gift Deeds Nos. 3236/1974 and RSA NOS.960/2015 & 868/2017 14 2024:KER:69932 690/1982 executed by the 1st defendant, who was her husband. She had effected mutation and kept possession of the said 8 cents of property by paying land tax. At the instigation of the plaintiff, the 1st defendant ousted the 4th defendant from the house and restrained her from entering into the property. Though she filed OS 937/1986 for an injunction, the same was withdrawn to file a fresh suit. The plaint schedule property is not a coparcenary property, and the plaintiffs are not coparceners. It exclusively belonged to the 1st defendant, and he was keeping possession of the same as an absolute owner.
9. The Trial court decreed the suit, declaring that Exts. B5 and B6 Sale deeds in favour of the 3rd defendant and, Gift deed No.3236/1974 and Settlement Deed No. 690/1982 in favour of the 4th defendant executed by the 1st defendant in respect of plaint A schedule property as void and RSA NOS.960/2015 & 868/2017 15 2024:KER:69932 passing a Preliminary Decree dividing the plaint B schedule property into four equal shares and allotting two of such shares to the plaintiffs, one share each to the 1st defendant and the 2nd defendant. It is ordered that out of 1/4 share of the 1st defendant in the Plaint B schedule Property, 3.754 cents covered by Ext.B7 sale deed shall be excluded in favour of the addl. 9th defendant and the remaining extent in the share of the 1st defendant shall be divided into six equal shares allotting two such shares to the plaintiffs, one such share to the 2nd defendant, and one such share to the defendants 6 to 8, subject to payment of mortgage debt of Rs.8,000/- due to the 3rd defendant as per Ext.B3. The defendants 4 and 5 have no right or interest in Plaint A or B schedule properties. The plaintiffs are allowed to realise mesne profits from the date of the suit till the recovery of shares from the 3rd defendant, the RSA NOS.960/2015 & 868/2017 16 2024:KER:69932 quantum of which is to be determined in the final decree proceedings.
10. The legal heirs of the 3rd defendant filed AS No.116/1996 and the 4th defendant filed AS No. 125/1996 before the First Appellate Court challenging the Preliminary Decree passed by the Trial Court. The First Appellate Court dismissed AS No. 125/1996 and partly allowed AS No. 116/1996 modifying the Preliminary Decree passed by the Trial court that the alienations made by the 1st defendant with respect to Plaint B Schedule Property exceeding his ¼ share therein are not valid and are not binding on the plaintiffs share in the Plaint B Schedule property; that the direction to divide ¼ share belonging to the 1st defendant among his legal defendants is set aside; that alienations effected by Ext.B5 and B6 sale deeds shall be confined to the ¼ share due to the 1st defendant and that when the RSA NOS.960/2015 & 868/2017 17 2024:KER:69932 partition is effected, care shall be taken to include the properties covered by those title deeds in the share due to the 1st defendant.
11. RSA No. 868/2017 is filed by the legal heirs of the 3rd defendant challenging the Preliminary Decree of the Trial Court as modified by the First Appellate Court.
12. The legal heirs of the 3rd defendant were impleaded as additional defendants 11 to 15 in the suit.
13. The plaintiffs filed Final Decree Application as IA No.5512/2005 in OS No 541/1987 and the Trial court passed Final Decree dt. 06.12.2008 incorporating Ext.C1 and C1(a) Commission Report and Plan. As per the Final Decree, the 1st plaintiff, 2nd plaintiff, 2nd defendant and the legal heirs of the 3rd defendant are allotted plots having an extent of 5.680 cents each separately marked in Ext.C1(a) Plan. The defendants 11 to 15, who are the legal heirs of RSA NOS.960/2015 & 868/2017 18 2024:KER:69932 the 3rd defendant, filed AS No.46/2012 challenging the Final Decree before the First Appellate Court. The main contention in AS No.46/2012 was that the Trial Court ought not to have proceeded with the final decree proceedings when Regular Second Appeal against the Preliminary Decree is pending before this Court. The First Appellate Court dismissed AS No.46/2012 rejecting the said contention as per judgment dt. 14.07.2015, holding that the pendency of the appeal will not operate as an automatic stay of the proceedings.
14. RSA No.960/2016 is filed by the legal heirs of the 3rd defendant challenging the final decree passed by the Trial Court which is confirmed by the First Appellate Court.
15. Both the RSAs are remaining unadmitted in this Court.
16. Since the main challenge of the appellants in these Appeals is against the Preliminary Decree in the suit, RSA RSA NOS.960/2015 & 868/2017 19 2024:KER:69932 868/2017 is taken as the leading case. The fate of RSA No. 960/2015 is dependent upon the result of RSA No. 868/2017.
17. I heard the learned Counsel for the appellants Sri. V. Suresh and the learned Counsel for the respondents 1 to 3, 5, 8, 10, and 11, Sri. Thomas Abraham.
18. The learned counsel for the appellants challenged the Preliminary Decree on three specific grounds.
19. The first ground of challenge is that the plaint schedule property is not a coparcenary property. It was a coparcenary property of the coparcenary starting from the common ancestor Kutty Nadar. On execution of Ext.A1 partition deed 18.05.1123 ME, the character of the coparcenary property is lost and it became the individual property of the first defendant. Since it is the exclusive property of the 1st defendant, Exts.B5 and B6 documents RSA NOS.960/2015 & 868/2017 20 2024:KER:69932 executed by the 1st defendant in favour of the 3rd defendant is perfectly valid and legal. The plaintiffs and the 2nd defendant did not derive any birth right over the property covered by Exts.B5 and B6. The learned counsel for the appellants cited the decision of the Hon'ble Supreme Court in Bhagwan Dayal and another v. Reoti Devi [AIR 1962 SC 287] in support of his contention that on partition the coparcenary character of the property is lost. The counsel cited the decision of the Hon'ble Supreme Court in Kalyani v. Narayan [AIR 1980 SC 1173] to substantiate the proposition that there would be disruption in joint family status on partition of the joint family property.
20. The second ground of challenge is that the plaintiffs are not the children of the 1st defendant. Ext.A5 Extract from the School Admission Register would reveal that the father's name of the plaintiffs is not written in it, it was included by RSA NOS.960/2015 & 868/2017 21 2024:KER:69932 interpolation in a different handwriting. There is nothing on record to prove that the plaintiffs are the sons of the 1st defendant. Learned counsel cited the decision of the Hon'ble Supreme Court in Madan Mohan Singh v. Rajni Kant [(2010) 9 SCC 209] to bring out the proposition that even if a document is admissible the Court can still examine whether the entry contained therein has any probative value. The learned counsel contended that the probative value of Ext.A5 could be considered by this Court even if the same is a Certified Copy of the Admission Register which is admitted in evidence. The learned counsel cited the decision in Doddanarayana Reddi v. Jayarama Reddi [2020 (1) KLT OnLine 1212] and contended that Ext.A5 could not be relied on without examination of the official from the school. The learned counsel contended that the plaintiffs ought to have RSA NOS.960/2015 & 868/2017 22 2024:KER:69932 examined the Headmistress who issued a certified copy of Ext.A5, especially when it contains interpolations.
21. The third ground of challenge is that even assuming that the plaint schedule property is a coparcenary property, the Preliminary Decree is illegal and unsustainable in view of the amendment to section 6 of the Hindu Succession Act, 1956 by Hindu Succession (Amendment) Act, 2005, by which a daughter of a coparcener is made a coparcener along with the son. Learned Counsel pointed out that in view of sub-section (5) to S.6 and Explanation therein as interpreted by the Hon'ble Supreme Court in Vineeta Sarma v. Ragesh Sarma and others (2020) 9 SCC 1, the daughter gets right even in a case, where appeal against the preliminary decree is pending.
22. With respect to the first ground of challenge, the counsel for the contesting respondents contended that the plaint RSA NOS.960/2015 & 868/2017 23 2024:KER:69932 schedule property is admittedly an ancestral property derived by the 1st defendant as per Ext.A1 Partition Deed and on the birth of the plaintiffs and the 2nd defendant, they became coparceners along with the 1st defendant. The alienation made by the 1st defendant as per Exts.B5 and B6 in favour of the 3rd defendant without the consent of the plaintiffs and the 2nd defendant are invalid. The learned Counsel cited the decision of the Hon'ble Supreme Court in Rohit Chauhan v. Surinder Singh and others [(2013) 9 SCC 419] and Arshnoor Singh v. Harpal Kaur and others [(2020) 14 SCC 436] in support of his contentions.
23. With respect to the second ground of challenge that the plaintiffs are not the children of the 1st defendant, the learned counsel for the contesting respondents submitted that the Trial Court, as well as the First Appellate Court, considered the matter in detail and entered a specific RSA NOS.960/2015 & 868/2017 24 2024:KER:69932 finding that the plaintiffs are the children of the 1st defendant. The counsel invited my attention to the various Grounds raised and Questions of law framed in the Memorandum of Appeal and contended that no ground or question of law is raised challenging the finding of the Trial Court as well as the First Appellate Court that the plaintiffs are the children of the first defendant. In the absence of any challenge in the Appeal, the appellants could not argue that the plaintiffs are not children of the 1st defendant.
24. With respect to the third ground of challenge, the learned Counsel for the contesting respondents contended that the same is not a ground available for the 3rd defendant. It is a ground available to the daughters of the 1st defendant. The appellants could not be in any way aggrieved by the division of shares among the coparceners. RSA NOS.960/2015 & 868/2017 25 2024:KER:69932
25. On considering the rival contentions raised by the counsels, I am of the view that the Second and Third grounds of challenge raised by the Counsel for the appellant do not deserve consideration. With respect to the contention that the plaintiffs are not the children of the first defendant, the Trial Court considered this contention after framing the necessary issues in this regard and made a categorical finding that they are the children of the first defendant after considering the pleadings and evidence in the case. The First Appellate Court also considered the legality of the finding of the Trial court and found that the plaintiffs are the children of the first defendant after re- appreciating the pleadings and evidence in the case. It is a factual finding entered by the Trial court and the First appellate Court. As rightly pointed out by the counsel for the contesting respondents, the appellants have not raised RSA NOS.960/2015 & 868/2017 26 2024:KER:69932 any ground challenging the said findings of the Trial Court as well as the First Appellate Court. No question of law is framed with respect to the same. Even in the Statement of facts in the Memorandum of Appeal, no reference is made with respect to this contention. Appellants could not advance arguments on a ground which is not raised in the Appeal, unless the same is a pure question of law. In view of this, the appellants could not argue that the plaintiffs are not the children of the first defendant.
26. With respect to the contention that shares out of the plaint schedule property were not allotted to the female children of the first defendant as per the amended Section 6 of the Hindu Succession Act treating them as coparceners along with sons, such a contention is not available to the appellants. It is a contention available to the daughters of the 1st defendant alone. They have not challenged the RSA NOS.960/2015 & 868/2017 27 2024:KER:69932 Preliminary Decree or Final decree. The First Appellate Court has found that the 3rd defendant is entitled to get ¼ share of the first defendant. If the daughters of the first defendant are also included in the coparcenary, the share of the 1st defendant would be reduced to 1/6 consequently, the share of the 3rd defendant will also be reduced to 1/6 which would be detrimental to the appellants who are the legal heirs of the 3rd defendant. At any rate, the absence of allotment of shares to the daughters of the first defendant is a matter which is to be agitated by the daughters of the first defendant who are parties to the present proceedings.
27. The only remaining ground of challenge raised by the Counsel for the appellant which deserves for consideration is the first ground that the plaint B schedule property is not a coparcenary property and it is the exclusive property of the first defendant and hence Ext.B5 and B6 alienations RSA NOS.960/2015 & 868/2017 28 2024:KER:69932 made by the first defendant in favour of the third defendant is perfectly legal and valid.
28. The Mitakshara School of Law originated from Yajnavalkya Smrithi. The concept of coparcenary under the Mitakshara law is based on the religious duty of a man not to leave his family without means of subject. The concept is that " They who are born and they who are yet unbegotten and they who are still in the womb, require means of support. No gift or sale should there be made". " The ownership of father and son is coequal in the acquisitions of grandfather, whether land, corody or chattel." The Sale of coparcenary property is permitted only in the case of indispensable needs of the joint family.
29. A coparcenary is a narrower body of person within a joint family consisting of father, son, son's son, son's son's son. The property inherited by a male Hindu from his paternal male ancestor shall be a coparcenary property in his hands RSA NOS.960/2015 & 868/2017 29 2024:KER:69932 vis-a-vis his male descendants up to 3 degrees below him. It includes four generations. Under the pristine Mitakshara Law, no female can be a coparcener. The Mitakshara coparcenary is based on twin notions of a son's birthright and devolution of property by survivorship. The first incident of coparcenary is that a coparcener has an interest by birth in the joint family property until partition takes place. It is a settled law that the interest of a coparcener is not specified or fixed and it varies in case of births and deaths in the family. This is an unpredictable and fluctuating interest which may be enlarged by the death and diminished by the births in the family. Every coparcener has a right to be in joint possession and enjoyment of joint family property. There is a community of interest and unity of possession in coparcenary property. If a partition takes place, the interest is fixed, taking into RSA NOS.960/2015 & 868/2017 30 2024:KER:69932 account the number of members in the coparcenary as on the date of partition. Of course, with respect to the self- acquired properties of the Mitakshara coparcener father, he has absolute power of disposition.
30. It is a settled law that on partition, joint family status is dissolved. It severs unity of ownership among the family members. Nevertheless, the share of coparcenary property derived by each of the members of the joint family does not become his individual property. In the case on hand, it is true that on the partition of the coparcenary property as per Ext.A1, the members of the coparcenary, including the 1st defendant, got definite shares in the coparcenary property. Still, it will continue as ancestral property in his hands.
31. Before the implementation of the Hindu Succession Act of 1956, the law applicable to the family of the 1st RSA NOS.960/2015 & 868/2017 31 2024:KER:69932 defendant was the Hindu Mitakshara law. The appellant has no quarrel with respect to this. In the case on hand, the 1st defendant got ancestral property as per Ext.A1 Partition Deed and admittedly, the plaintiffs were born before the implementation of Hindu Succession Act. Such ancestral property could not be treated as his self-acquired property. The succession opened before the implementation of the Hindu Succession Act. The nature of the property will remain as coparcenary property even after the commencement of Hindu Succession Act in view of the Section 6 therein. After the Hindu Succession Act came into force, if a person inherits a property from his paternal ancestor, the said property becomes a self-acquired property and does not remain coparcenary property. In such case, as per Mitakshara law, the ancestral property derived by the 1st defendant as per Ext.A1 partition Deed RSA NOS.960/2015 & 868/2017 32 2024:KER:69932 is a coparcenary property, in which his sons will get birthright. It is true that the coparcenary pleaded in the Plaint is a coparcenary headed by the common ancestor Kutty Nadar and such coparcenary character is lost by Ext.A1 partition Deed as the unity of ownership and possession among the parties to Ext.A1 have come to an end. Still, the property derived by the 1st defendant would continue as a coparcenary property, and the 1st defendant and his male children would form a coparcenary. The question that arose in the suit is whether the plaint schedule property is a coparcenary property or not. The parties have joined on this issue by putting forward their respective contentions, and the Court adjudicated the question.
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32. My views in the preceding paragraph are fortified with decisions of the Hon'ble Supreme Court on the point which are discussed hereafter.
33. It is apposite to quote the relevant portions in Paragraph 12 of the Three Members Judges decision of the Hon'ble Supreme Court in C.N. Arunachala Mudaliar v.C.A.Muruganatha Mudaliar[AIR 1953 SC495].
"12..........The property of the grandfather can normal vest in the father. as ancestral property it, and when the father inherits such property on the death of the grandfather or receives it, by partition, made by the grandfather himself during his lifetime. On both these occasions, the grandfather's property comes to the father by virtue of the latter's legal right as a son or descendant of the former, and consequently, it becomes ancestral property in his hands.
RSA NOS.960/2015 & 868/2017 34 2024:KER:69932 But when the father obtains the grandfather's property by way of gift, he receives it not because he is a son or has any legal right to such property but because his father chose to bestow a favour on him which he could have bestowed on any other person as well. The interest which he takes in such property must depend upon the will of the grantor. A good deal of confusion, we think, has arisen by not keeping this distinction in mind. To find out whether a property is or is not ancestral in the hands of a particular person, not merely the relationship between the original and the present holder but the mode of transmission also must be looked to; and the property can ordinarily be reckoned as ancestral only if the present holder has got it by virtue of his being a son or descendant of the original owner. The Mitakshara, we think, is fairly clear on this point. It has placed the father's gifts under a separate category RSA NOS.960/2015 & 868/2017 35 2024:KER:69932 altogether and in more places than one has declared them exempt from partition."
34. It is useful to refer to the observations of another Three Members Judges decision of the Hon'ble Supreme Court in N.V.Narendranath v.Commissioner of Wealth Tax, Andhra Pradesh AIR1970 SC14. After referring to the decision of the Judicial Committee in Attorney General of Ceylon v.A.R.Arunachalam Chettiar [1957] A.C. 540 dealing with Mitakshara School of law, the Hon'ble Supreme Court held:
"9........................As pointed out by the Judicial Committee in Arunachalam's case, 1957 AC 540 (supra), it is only by analyzing the nature of the rights of the members of the undivided family, both those in being and those yet to be born, that it can be determined whether the family property can properly be described as "joint property of the undivided family."
RSA NOS.960/2015 & 868/2017 36 2024:KER:69932 Applying this test it is clear that though in the absence of male issue the dividing coparcener may be properly described in a sense as the owner of the properties, that upon the adoption of a son or birth of son to him, it would assume a different quality. It continues to be ancestral property in his hands as regards his male issue for their rights, which had already been attached to it, and the partition only cuts off the claims of the dividing coparceners. The father and his male issue still remain joint. The same rule would apply even when a partition had been made before the birth of the male issue or before a son is adopted, for the share which is taken at a partition by one of the coparceners is taken by him as representing his branch.............."
35. In Yudhishter v. Ashok Kumar [(1987) 1 SCC 204] the Hon'ble Supreme Court held:
RSA NOS.960/2015 & 868/2017 37 2024:KER:69932 "10. This question has been considered by this Court in Commr.
of Wealth Tax, Kanpur v. Chander Sen, 1986 (3) SCC 567 :
(AIR 1986 SC 1753), where one of us (Sabyasachi Mukharji, J.) observed that under the Hindu Law, the moment a son is born, he gets a share in father's property and becomes part of the coparcenary. His right accrues to him not on the death of the father or inheritance from the father but with the very fact of his birth. Normally, therefore, whenever the father gets a property from whatever source, from the grandfather or from any other source, be it separate property or not, his son should have a share in that, and it will become part of the joint Hindu family of his son and grandson and other members who form joint Hindu family with him. This Court observed that this position has been affected by S.8 of the Hindu Succession Act, 1956 and, therefore, after the Act, when the son inherited the property in the situation contemplated by S.8, he does not take RSA NOS.960/2015 & 868/2017 38 2024:KER:69932 it as Kar of his own undivided family but takes it in his individual capacity......."
36. In Shyam Narayan Prasad v. Krishna Prasad [2018(7) SCC 646] the Hon'ble Supreme Court held:
"12. It is settled that the property inherited by a male Hindu from his father, father's father, or father's father's father is an ancestral property. The essential feature of ancestral property, according to Mitakshara Law, is that the sons, grandsons, and great-grandsons of the person who inherits it acquire an interest and the rights attached to such property at the moment of their birth. The share which a coparcener obtains on partition of ancestral property is ancestral property as regards his male issue. After partition, the property in the hands of the son will continue to be the ancestral property, and the natural or adopted son of that son will take interest in it and is entitled to it by survivorship."
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37. In Rohit Chauhan (supra), the effect of partition of coparcenary property is considered. The facts are identical to the facts of the present case. The 2nd defendant (Gulabh Singh), who is the father of the plaintiff (Rohit Chauhan), got the property on partition of coparcenary property before the birth of the plaintiff. The 2nd defendant sold the property after the after the birth of the plaintiff. The plaintiff challenged the alienations by the 2nd defendant on the ground that it is the property of the coparcenary of the plaintiff and the 1st defendant. The Trial Court held that on the birth of the plaintiff, the property was coparcenary property. The First Appellate Court and the High Court found that on the partition, the coparcenary property loses its character, and it assumes the character of self-acquired property. The Hon'ble Supreme Court restored the judgment of the Trial Court after setting aside the RSA NOS.960/2015 & 868/2017 40 2024:KER:69932 judgments of the High Court and the First Appellate Court, finding that it was coparcenary property after the birth of the plaintiff. It is apposite to extract Paragraphs Nos. 11 and 14 of the said decision.
"11. We have bestowed our consideration to the rival submission and we find substance in the submission of Mr. Rao. In our opinion coparcenary property means the property which consists of ancestral property and a coparcener would mean a person who shares equally with others in inheritance in the estate of common ancestor. Coparcenary is a narrower body than the Joint Hindu family and before commencement of Hindu Succession (Amendment) Act, 2005, only male members of the family used to acquire by birth an interest in the coparcenary property. A coparcener has no definite share in the coparcenary property but he has an undivided interest in it and one has to bear in mind that it enlarges by deaths and RSA NOS.960/2015 & 868/2017 41 2024:KER:69932 diminishes by births in the family. It is not static. We are further of the opinion that so long, on partition an ancestral property remains in the hand of a single person, it has to be treated as a separate property and such a person shall be entitled to dispose of the coparcenary property treating it to be his separate property but if a son is subsequently born, the alienation made before the birth cannot be questioned. But, the moment a son is born, the property becomes a coparcenary property and the son would acquire interest in that and become a coparcener. ............
14. A person, who for the time being is the sole surviving coparcener as in the present case Gulab Singh was, before the birth of the plaintiff, was entitled to dispose of the coparcenary property as if it were his separate property. Gulab Singh, till the birth of plaintiff Rohit Chauhan, was competent to sell, mortgage and deal with the property as his property in the RSA NOS.960/2015 & 868/2017 42 2024:KER:69932 manner he liked. Had he done so before the birth of plaintiff, Rohit Chauhan, he was not competent to object to the alienation made by his father before he was born or begotten. But, in the present case, it is an admitted position that the property which defendant no. 2 got on partition was an ancestral property and till the birth of the plaintiff he was sole surviving coparcener but the moment plaintiff was born, he got a share in the father's property and became a coparcener. As observed earlier, in view of the settled legal position, the property in the hands of defendant no. 2 allotted to him in partition was a separate property till the birth of the plaintiff and, therefore, after his birth defendant no. 2 could have alienated the property only as Karta for legal necessity. It is nobody's case that defendant no. 2 executed the sale deeds and release deed as Karta for any legal necessity. Hence, the sale deeds and the release deed executed by Gulab Singh to the extent of RSA NOS.960/2015 & 868/2017 43 2024:KER:69932 entire coparcenary property are illegal, null and void. However, in respect of the property which would have fallen in the share of Gulab Singh at the time of execution of sale- deeds and release deed, the parties can work out their remedies in appropriate proceeding."
38. In Arshnoor Singh (supra) also the effect of partition of coparcenary property is considered. The question considered was whether the suit property was an ancestral coparcenary property of the father of the plaintiff, Dharam Singh and the whether the sale deeds executed by him are valid. The Trial Court decreed the suit holding that the suit property was an ancestral coparcenary property of Dharam Singh and the plaintiff and hence the sale deeds executed by Dharam Singh are null and void. It was confirmed by the First Appellate Court. The High Court set aside the concurrent judgments holding that the coparcenary RSA NOS.960/2015 & 868/2017 44 2024:KER:69932 property ceased to exist after the father of Dharam Singh partitioned the property among his three children including Dharam Singh. The Hon'ble Supreme Court set aside the judgment of the High Court and virtually allowed the suit holding that the plaintiff being a male coparcener in the suit property, the sale deeds effected by Dharam Singh are null and void. It is specifically held that the suit property which came to the share of late Dharam Singh through partition, remained coparcenary property qua his son - the plaintiff, who became a coparcener in the suit property on his birth i.e. on 22/08/1985 and that Dharam Singh purportedly executed the two Sale Deeds on 01/09/1999 in favour of Respondent No. 1 after the plaintiff became a coparcener in the suit property.
39. In view of the aforesaid discussion and the propositions of law laid down by the Hon'ble Supreme RSA NOS.960/2015 & 868/2017 45 2024:KER:69932 Court, the only possible conclusion is that the plaint B schedule property derived by the 1st defendant as per Ext.A1 Partition deed was a coparcenary property in the hands of the 1st defendant which is liable to be partitioned among the members of the coparcenary. No interference is required in the Preliminary Decree passed by the Trial Court which was modified by the First Appellate Court. RSA No. 868/2017 arising from the Preliminary Decree is liable to be dismissed. Since no additional contentions are raised in RSA No. 960/2015 arising from the Final Decree, it is also liable to be dismissed.
40. Accordingly, both the appeals are dismissed.
M A ABDUL HAKHIM, JUDGE jma