Kerala High Court
Arayath Koroth Suma vs Muvila Karunakaran Nambiar on 21 July, 2010
Author: P.Bhavadasan
Bench: P.Bhavadasan
IN THE HIGH COURT OF KERALA AT ERNAKULAM
SA.No. 655 of 1997(C)
1. ARAYATH KOROTH SUMA
... Petitioner
Vs
1. MUVILA KARUNAKARAN NAMBIAR
... Respondent
For Petitioner :SRI.O.RAMACHANDRAN NAMBIAR
For Respondent :SRI.T.A.RAMADASAN
The Hon'ble MR. Justice P.BHAVADASAN
Dated :21/07/2010
O R D E R
P. BHAVADASAN, J.
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S.A. Nos. 655, 656 & 738 of 1997
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Dated this the 21st day of July, 2010.
JUDGMENT
These appeals arise from two suits, namely, O.S.156 of 1987 and O.S. 59 of 1987 before the Munsiff's Court, Payyannur. O.S. 59 of 1987 was a suit for partition, while the other suit was one for injunction and permanent prohibitory injunction. Both the suits were decreed. Appeals were preferred as A.S. 98 of 1993 from the judgment and decree in O.S. 156 of 1987 by defendants 6, 7, 9 and 10, A.S.30 of 1993 against the judgment and decree in O.S. 59 of 1987 by defendants 6, 8, 9 and 10. In A.S. 98 of 1993 there are two cross appeals. In A.S. 30 of 1993 the seventh defendant filed a cross appeal. The appellate court heard the appeals together and disposed of them by a common judgment. Aggrieved by the judgment and decree of the lower courts, defendants 7, 9 and 10 have come up in appeal as S.A. No.655 of 1997. Aggrieved by the decree in A.S. S.A.655/97 & con.cases. 2 30 of 1993 defendants 6, 9 and 10 have come up in appeal as S.A. 656 of 1997 and aggrieved by the decree in A.S. 30 of 1993 plaintiffs 2 to 7 have come up in appeal as S.A.738 of 1997. The parties and facts are hereinafter referred to as they were available before the trial court.
2. As the facts in the two suits are interrelated, they are being dealt with in this common judgment.
3. Unnithiri and his wife Mani Amma had three children. They are Manikutty Amma, Janaki Amma and Narayanan Nambiar. Manikutty Amma had two children Madhavikutty Amma, who is the first plaintiff and Kunji Narayanan Nambiar. Kunii Narayanan Nambiar's legal heirs are defendants 14 to 16. Janaki Amma's legal heirs are defendants 1 to 5. Narayanan Nambiar's legal heirs are defendants 6, 9 and 10. Madhavikutty Amma had six children, who are plaintiffs 2 to 7 and late Satheesan. Late Satheesan's legal heirs are defendants 17 to 20. The second defendant, one of the children of Janaki Amma, died and his legal heirs were brought on the party array as defendants 21 S.A.655/97 & con.cases. 3 to 26. Another son of Janaki Amma, Gopinathan Nambiar is no more and his legal heirs are defendants 11 to 13.
4. According to the plaintiffs, Mani Amma and her children in the second marriage, Manikutty Amma's child late first plaintiff, late Janaki Amma's children constitute a separate puthravakasam tavazhi. Narayanan Nambiar being the eldest male member of the tavazhi, he used to manage the tavazhi properties and its affairs. Late Unnithiri executed Ext.A1 Will dated 17.11.1908 in respect of the plaint schedule property and died in 1924. According to the plaintiffs, consequent on the death of Unnithiri, the property devolved on the tavazhi consisting of defendants 1 to 5 and Narayanan Nambiar and the plaintiffs. By the said Will the property was bequeathed to children of Unnithiri and the children to be born in the female line. Narayanan Nambiar had executed a release deed in favour of Janaki Amma in respect of his rights over the plaint schedule property. Narayanan Nambiar was therefore not made a party to the suit. At present the second defendant is managing the S.A.655/97 & con.cases. 4 affairs of the tavazhi. The sixth defendant is the grand child of Narayanan Nambiar and even though she had no interest in the property, since it is learnt that Narayanan Nambiar had created certain documents in her favour and to avoid further complication she is also arrayed as a party. The seventh defendant is in management of the school. The plaintiffs are not inclined to continue in joint possession and seek partition. During the pendency of the suit, the first plaintiff died and plaintiffs 2 to 7 were brought on the party array.
5. The second defendant filed a written statement pointing out that the suit is not maintainable. The execution of the will by Unnithiri was admitted and so also devolution of the property. It is contended that the mother of the plaintiffs died prior to the testator and therefore the plaintiffs do not get any right in the property. It is also disputed that the property bequeathed by Unnithiri had the characteristics of a tavazhy property and it was contended that the legatees took the property as tenants in common. S.A.655/97 & con.cases. 5 Narayanan Nambiar had released his rights over the property in favour of Janaki Amma. Therefore the sole owner of the property is Janaki Amma. Before her death, Janaki Amma had assigned the property in favour of the second defendant and thereafter the second defendant is in possession and enjoyment of the property. In O.S. 271 of 1959 as well as O.S. 936 of 1960 the release deed executed by Narayanan Nambiar in favour of Janaki Amma was found to be genuine. Even though the second defendant is the owner of the school, the seventh defendant is its Manager. The claim that the property is puthravakasam property is incorrect. There is no tavazhi to which the property was bequeathed. On the basis of these contentions he prayed for a dismissal of the suit.
6. In the written statement filed by the sixth defendant, she too contended that the suit is not maintainable. The Will was admitted. She too joined hands with the second defendant in contending that since the mother of the plaintiff died prior to the death of the S.A.655/97 & con.cases. 6 testator, she derives no right over the property. She is therefore incompetent to institute the suit. It is claimed by her that the three buildings situate in the property had been constructed by Narayanan Nambiar by spending his own money. Narayanan Nambiar gifted 14 = cents of property in favour of the sixth defendant and her brother. Thereafter the brother of sixth defendant has released his undivided share in 14 = cents in favour of the sixth defendant. The respective beneficiaries are in possession and enjoyment of the property. The release deed relied on by the plaintiffs had not come into existence and property continued to be in the possession and enjoyment of Narayanan Nambiar. On the basis of these contentions she prayed for a dismissal of the suit.
7. The seventh defendant in his written statement went a step further and contended that neither the plaintiffs nor Manikutty Amma nor Unnithiri had any right over the suit property. He is unaware of the existence of the Will and whether the property is puthravakasam property or not. By S.A.655/97 & con.cases. 7 virtue of the release deed executed by Narayanan Nambiar, Janaki Amma had acquired the absolute interest over the property. A Lower Primary School has been functioning in the property for a long time and Janaki Amma was its Manager. Janaki Amma transferred the management of the school in favour of the seventh defendant and that has been approved by the educational authorities. The seventh defendant is the Manager of the School and the School is functioning in the plaint schedule property. He makes several claims that he had put up several buildings in the property and he had spend huge amounts for the same. Several other aspects were also stated, which are not very relevant for the purpose.
8. The 8th defendant in his written statement contended that at the time of death of Unnithiri, he and Janaki Amma alone were alive. Their sister Madhavikutty Amma was no more. That being the position, the plaintiffs, who claim to the legal heirs of Madhavikutty Amma cannot claim right over the property. Janaki Amma and the 8th S.A.655/97 & con.cases. 8 defendant took the property as co-owners and consequent on the death of Janaki Amma, her rights over the property devolved on her legal heirs. The registered release deed made mention of in the plaint did not come into force and had not been acted upon. The property remained in the possession of the 8th defendant. According to him, the suit is an experimental one and is liable to be dismissed.
9. In the separate written statements filed by 9th and 10th defendants, they admitted the existence of the Will. They joined hands with the other defendants. It was contended that since the mother of the plaintiffs died prior to the death of the testator, the plaintiffs derived no interest over the property. They also made mention of an assignment in their favour by Narayanan Nambiar. In the written statement of the 10th defendant, he sought rights over the property with reference to the deed said to have been executed by the 8th defendant.
S.A.655/97 & con.cases. 9
10. The 14th defendant also filed a written statement pointing out that the suit is not maintainable. He supported the plaintiffs to the extent that it was puthravakasam property. He claims 7/56 shares along with defendants 15 and 16.
16. O.S. 156 of 1987 was instituted by the 7th defendant in O.S. 59 of 1987. It was with respect to a school. According to him, the school cannot be partitioned and his rights cannot be interfered with. There are other aspects also, which are not very relevant for the purpose. That suit was resisted by the defendants in the said suit. In both the suits, the trial court raised necessary issues and both sides adduced evidence. On a consideration of the materials before it, the trial court decreed O.S. 59 of 1987 as follows:
"In the result, a preliminary decree for partition is passed directing the valuation of the plaint schedule properties excluding the improvements made by defendants 6 and 9 and to allot, the entire property to some or any of the S.A.655/97 & con.cases. 10 members of the family who offers the maximum value for the same and to give 7/17 shares of the value to the plaintiffs 2 to 7 or to allot the entire property to the plaintiffs 2 to 7 if they offers maximum value for the property. The person or persons receiving the property shall distribute the share of value of the defendants in the following manner:
Defendants 1, 3, 4, 5 and 8 One share each
Defendants 11 to 13 Together one share
Defendants 14 to 16 Together one share
Defendants 17 to 20 Together one share
Defendants 21 to 27 Together one share
The remaining one share shall be divided among the legal representatives of Janaki Amma (defendants 1, 3, 4 and 5 one share each and defendants 21 to 27 together the one share). Any of the defendants is also if willing, an acquire the share of the plaintiffs and pay the share of value to the plaintiffs if not willing to acquire the share of all the parties. If neither party is willing to acquire the properties, the properties can be sold by public auction. The parties are entitled to get their respective costs out of the estate. The suit is adjourned sine die."
S.A.655/97 & con.cases. 11
As regards O.S. 156 of 1987, a decree was passed in the following terms:
"In the result, it is decreed that the defendants 7 to 10 be restrained by a permanent prohibitory injunction from making any further construction of any building, wall or well in the plaint schedule property or in any way interfering with the possession of the plaintiff for the purpose of the school. They shall also pay cost of the proceeding to the plaintiff. The suit against the other defendants is dismissed."
17. The aggrieved parties, who have already been made mention of, carried the matter in appeals. The appellate court modified the decree in the following terms:
"In view of my findings above, A.S.30/93 is allowed in part as A.S.98/93 is dismissed. Cross Appeal in A.S.30/93 filed by 11th respondent is also dismissed. The cross appeal filed by the plaintiff in O.S. 156/87 in A.S.98/93 is allowed. The cross appeal in A.S.98/93 filed by respondents 5 to10 is allowed in part. On the basis of my discussion above the judgment of the trial courts are modified as follows: The plaintiffs in O.S.59/87 will S.A.655/97 & con.cases. 12 be entitled to 6/56 shares as claimed in the plaint. In O.S. 156/87 a decree for mandatory injunction also is granted as claimed in the plaint. The parties are directed to bear their costs."
18. Learned counsel appearing for the appellants raised two main contentions. According to them, the finding of the court below that the property is a puthravakasam property and it is a tavazhy property cannot be sustained in law. The other contention raised by some of the appellants is that the finding of the courts below that the 8th defendant had executed a release deed in favour of Janaki Amma and it was accepted by her and had come into effect cannot be sustained. Along with the above two contentions, a contention was also raised that the shares determined by the court below are incorrect.
19. There isno dispute regarding Ext.A1 Will said to have been executed by Unnithiri, or about its genuineness. The dispute is with regard to the interpretation of the following recital in the deed: S.A.655/97 & con.cases. 13
"
( ) , ( ), ( ) ......."
20. According to the appellants, the legatees under the document takes the property as co-owners. It was contended that since Manikutty Amma, the predecessor in interest of the plaintiffs died before the death of the testator, she got no rights over the property and the entire rights vest to Janaki Amma and Narayanan Nambiar. It was contended that by no stretch of imagination it could be said that the devolution of the property on the death of Unnithiri is a tavazhi. A contention was raised that a tavazhi cannot be created by the act of parties. It has to naturally arise. S.A.655/97 & con.cases. 14 Going by the terms of the Will it cannot be said that it enures to the benefit of tavazhi and the property is a puthravakasam property.
21. The contesting respondents submits that the recital is very clear. The intention was to benefit the tavazhi, even though the mother sands excluded. While the appellants placed reliance on the decision reported in Seetha v. Krishnan (1975 K.L.T. 156), the respondents placed reliance on the decision reported in Sivasankaran v. Lakshmi (1966 K.L.T. 327).
22. Gift or bequeath in favour of wife and children or grand children by a Marumakkathayee male has been subject of considerable debate. When there was a gift or will in favour of the wife or grand children alone, it could not be treated as a tavazhi property in their hands unless the intention was very clear. There was no doubt regarding the fact that if the gift or bequeath was in favour of the wife and children, they took it as a tavazhi property. On all occasions the decision as to whether the property is a S.A.655/97 & con.cases. 15 tavazhi property depend upon the interpretation of the document. In other words, the test seems to be the intention of the testator or donor as contained in the document.
23. After consideration of the various authorities till then, in the decision reported in Seetha v. Krishnan (1975 K.L.T. 156) it was held as follows:
"Under the rules of customary marumakkathayam law which were applicable in Malabar prior to the introduction of the Madras Marumakkathayam Act it is only in cases where the gift or acquisition is made in favour of a marumakkathayee woman and all her children or in the names of all the children who by themselves constitute a thavazhi (the mother being dead) that a presumption would arise that the acquisition is for the benefit of the tavazhi.
There is no scope for raising any such presumption in cases where the gift, bequest or acquisition is in favour of the wife alone or of the wife and some of the children alone leaving out the others. The underlying principle is that the presumption would e attracted only in cases S.A.655/97 & con.cases. 16 where the transaction is in favour of all the members of a group who constitute a natural tavazhi capable of acquiring and holding property."
However, in the decision reported in Sivasankaran v. Lakshmi (1966 K.L.T. 327) it was held as follows:
"The property gifted or bequeathed by a marumakkathayee male to his wife or to the wife and one or more of his children or to all his children by the wife is known as puthravakasam property in the Malabar area and makkathayam property in the Travancore area. The presumption under S.48 of the Madras Marumakkathayam Act is to enable to find out whether a bequest or gift by a marumakkathayee is to the individuals mentioned in the document or to the tavazhi. If the provisions of the document are clear that the bequest is either to the individuals or to the tavazhi, the presumption under S.48 does not arise. One it is found, either by the provisions of the document or by the presumption under S.48, that the property is bequeathed or gifted to the tavazhi, then the proviso to the section follows; and partition of such property is on the stirpital S.A.655/97 & con.cases. 17 principle. In this case, it may not be necessary to draw the presumption under S.48, because the provisions of the will are clear that the bequest is to the tavazhi. In such a case also the property is puthravakasam property and the proviso to S.48 will be attracted. It is not because the property is found to be of a particular class, puthravakasam property, by virtue of a particular presumption, but because it is property of that class, that the stirpital principle of partition is applied to it. Per capita division will apply only if the testator died prior to the commencement of the Act; and per stirpes division will apply if he died subsequently."
24. A reading of both these decisions will clearly show that the issue has to be determined with reference to the terms of the document.
25. The courts below have considered the above issue in considerable detail and have come to the conclusion that the property is taken by the legatees as tavazhi property. In fact the first appellate court has gone into this aspect in considerable detail. It has considered the facts and principles of the decision reported in Seetha's case S.A.655/97 & con.cases. 18 and then came to the conclusion that the said decision was rendered with reference to the facts of the said case. Both the courts below have held that the facts of the case have more resemblance with the facts dealt with in Sivasankaran's case and it was on that basis that they had come to the conclusion that it was tavazhi puthravakasam property.
26. It is true that the wife is excluded in the Will executed by Unnithiri, namely, Ext. A1. But the recital would show that after his lifetime the property is to devolve on the children subsequently born to him and then the children already existing and with the further recital that the property shall devolve on the children in the female line shows the intention of the testator. It is clear that what was intended by the testator is that the property should be treated as tavazhi property. As already noticed, the mother is excluded and therefore the contention is raised that there is no natural tavazhi and that the tavazhi cannot be created by the act of the parties. In the decision reported in S.A.655/97 & con.cases. 19 Sivasankaran's case identical recitals were considered by this court and this court had come to the conclusion that it is puthravakasam tavazhi property. Of course, in the case on hand death of Unnithiri was before the coming into force of Madras Marumakkathayam Act. But that does not matter because following the principles laid down in Sivasankaran's case there can be no manner of doubt as the property is puthravakasam property. The courts below were justified in concluding so.
27. Much objection was taken to the finding of the lower appellate court that the 8th defendant ceased to have any right over the property consequent on the execution of the release deed in favour of Janaki Amma. The trial court felt that it was unnecessary to go into that question since the defendants had not sought for partition of their separate shares. The trial court therefore confined its finding to the rights of the plaintiffs though it determined the shares due to the various parties as could be seen from the preliminary decree. The appellate court on the other hand was S.A.655/97 & con.cases. 20 considerably influenced by the fact that the release deed was the subject matter in an earlier suit evidenced by Ext.A6 and that concludes the issue regarding 8th defendant. The question is how far the finding is justified.
28. It is true that in Ext.A6, which is the judgment in O.S. 271 of 1959 and O.S. 936 of 1960, the issue involved was regarding the release deed executed by Narayanan Nambiar in favour of Janaki Amma.
29. It must be noticed that in the said case, Janaki Amma and Narayanan Nambiar were co-defendants. The stand taken in that case by Narayanan Nambiar was that he fell ill and when it was felt that he may not survive, the release deed was executed in favour of Janaki Amma. As he had recovered, the release deed had not come into effect and the property continued to be in the possession and enjoyment of Narayanan Nambiar. Janaki Amma supported him. However, the court found that the release deed had come into effect.
S.A.655/97 & con.cases. 21
30. It is extremely doubtful how far the said decision could be used against the 8th defendant and his legal heirs, namely defendants 6, 9 and 10 in this suit. There were no disputes inter se between Janaki Amma and Narayanan Nambiar and the said fact is evidenced by Ext.A6 and therefore it could not be said that the judgment is res judicata as between them. Defendants 6, 9 and 10 have clearly stated that Narayanan Nambiar had assigned the property in their favour and they had put up structures in the property. It is admitted by the seventh defendant also. It remains to be decided as to whether the issue regarding the release deed executed by Narayanan Nambiar is necessary to be considered in the present suit since as rightly noticed by the trial court the defendants have not claimed separate possession and partition and separate possession have been sought for only by the plaintiffs. S.A.655/97 & con.cases. 22
31. It is not possible to understand as to how the courts below have determined the shares. None of the parties could enlighten this court about the allotment of shares by both the courts. While the trial court applied its own method, the appellate court simply accepted what is stated in the plaint without ascertaining whether the shares are correct or not. True that the defendants had not claimed their separate shares. But that does not mean that the court is absolved from its duty of determining the correct shares. That has to be determined.
32. What now remains to be considered is the issue regarding the school. Both the courts below have come to the conclusion that the entire 50 cents is in the possession of the school. The conclusion drawn by both the courts below is that the buildings are confined to the 4 cents, the rest is being used as a play ground. S.A.655/97 & con.cases. 23
33. Strong objection is taken to this finding by the appellants, who say that even going by the evidence adduced by the 7th defendant, the present Manager, the school was handed over to him in pursuance of a kachit. If that be so, the kachit would show what was handed over to him. The 7th defendant had not been able to adduce much evidence to show that he has put up structures spending his own money. There is considerable controversy regarding the play ground. While the appellants would say that the school has no play ground, the courts below found that since the school cannot function without a play ground, necessarily the rest of the property must have been used as a play ground. For this purpose, they rely on an entry in Ext.A3, which is a photostat copy of the inspection report prepared by the educational authorities. According to the plaintiff in O.S. 156 of 1987, who is the 7th defendant in the other suit, consequent on the release deed said to have S.A.655/97 & con.cases. 24 been executed by 8th defendant in favour of Janaki Amma, Janaki Amma became the absolute owner. As already noticed, the issue has to be redetermined.
34. Before going further, one aspect may be noticed here. Learned counsel appearing for the appellants pointed out that if as a matter of fact, the property is puthravakasam tavazhi property, the issue whether Narayanan Nambiar could have released his rights remains to be determined. According to learned counsel, Narayanan Nambiar could not have assigned or release his undivided share in the tavazhi property and this aspect has not been considered by the courts below. There seems to be some force in the above contention. That aspect also needs to be gone into.
35. Coming back to the claim of the 7th defendant in O.S. 59 of 1987, the commission report shows that the 6th defendant has constructed a building in 4 cents of property given to her. It was also seen that certain other constructions were also made by certain other persons in S.A.655/97 & con.cases. 25 the property. The right of the 6th defendant and such other alienees from Narayanan Nambiar has to be determined with reference to the release deed. These aspects need re-consideration.
In the result, the following conclusions are arrived at:
i) The finding that the property involved in the suits is puthravakasam property is confirmed.
ii) The finding as regards the validity of the release deed said to have been executed by the 8th defendant in favour of Janaki Amma has to be re-determined by the court below.
iii) The shares due to the plaintiffs and any of the defendants, in case they are claiming, will have to be re-determined.
iv) The claim that the School has a play ground, which covers the entire suit property, will be re-determined.
S.A.655/97 & con.cases. 26 The appeals are allowed to the above extent, the judgments and decrees of the courts below are set aside, and to the above purpose the matter is remanded to the trial court for fresh consideration in accordance with law and in the light of what has been stated above. The parties shall appear before the trial court on 18.8.2010. The trial court will make every endeavour to dispose of the suits as expeditiously as possible, at any rate within six months from the date of appearance of the parties. There will be no order as to costs.
P. BHAVADASAN, JUDGE sb.