Kerala High Court
* Palattu Choyikutty (Died) Lrs ... vs Shyma on 15 October, 2025
2025:KER:76878
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE EASWARAN S.
WEDNESDAY, THE 15TH DAY OF OCTOBER 2025/23RD ASWINA, 1947
RSA NO. 448 OF 2014
AGAINST THE JUDGMENT AND DECREE DATED 07.02.2014 IN AS
NO.163 OF 2011 OF II ADDITIONAL DISTRICT COURT,
KOZHIKODE, ARISING OUT OF THE JUDGMENT AND DECREE DATED
27.07.2011 IN OS NO.1078 OF 2009 OF THE PRINCIPAL
MUNSIFF COURT-II, KOZHIKODE.
APPELLANTS IN R.S.A/APPELLANTS IN A.S./DEFENDANTS 1 & 2
IN SUIT:
1 PALATTU CHOYIKUTTY (DIED) LRS IMPLEADED
S/O.LATE KANDAN, NANGARYPUNATHIL HOUSE,
NELLIKODE AMSOM AND DESOM, KOZHIKODE TALUK,
PIN - 673 016.
2 PALATTU RAMADASAN
S/O.LATE KANDAN, NANGARYPUNATHIL HOUSE,
NELLIKODE AMSOM AND DESOM, KOZHIKODE TALUK,
PIN - 673 016.
*3 ADDL.A3: SHOJAN.N.P.,
AGED 50 YEARS, S/O.PALATTU CHOYIKUTTY,
NANGARYPUNATHIL HOUSE, NELLIKODE AMSOM AND
DESOM, KOZHIKODE TALUK AND DISTRICT,
PIN-673 016.
*4 ADDL.A4: SAJEESH,
S/O.PALATTU CHOYIKUTTY, NANGARYPUNATHIL HOUSE,
NELLIKODE AMSOM AND DESOM, KOZHIKODE TALUK AND
DISTRICT, PIN-673 016.
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R.S.A No.448 of 2014
2
*5 ADDL.A5: PRASEETHA.N.P.,
AGED 46 YEARS, D/O.PALATTU CHOYIKUTTY,
NANGARYPUNATHIL HOUSE, NELLIKODE AMSOM AND
DESOM, KOZHIKODE TALUK AND DISTRICT, PIN-673
016.
[LEGAL REPRESENTATIVES OF THE DECEASED FIRST
APPELLANT ARE IMPLEADED AS ADDL. APPELLANTS 3
TO 5 AS PER ORDER DATED 07.04.2025 IN IA
NO.1/2023 IN RSA NO.448/2014(C)]
BY ADVS.
SHRI.P.B.KRISHNAN (SR.)
SRI.SABU GEORGE
SRI.P.M.NEELAKANDAN
SRI.P.B.SUBRAMANYAN
RESPONDENTS IN R.S.A/APPELLANTS IN A.S/DEFENDANTS 1 & 2
IN SUIT:
1 SHYMA
D/O.LATE SAROJINI, PULIYATH HOUSE, ODUMBRA,
OLAVANNA AMSOM DESOM, KOZHIKODE TALUK AND
DISTRICT, PIN - 673 019.
2 SATHYABHAMA
D/O.LATE SAROJINI, POOLAKKAL PARAMBA, MATHRA,
OLAVANNA AMSOM AND DESOM, KOZHIKODE TALUK AND
DISTRICT, PIN - 673 019.
3 SYAMALA
D/O.LATE SAROJINI, PALAKKAL HOUSE, PORUTHIPPAL
PARAMBA, MATHRA,OLAVANNA AMSOM DESOM, KOZHIKODE
TALUK AND DISTRICT, PIN - 673 019.
4 SHEEBA
D/O.LATE SAROJINI, THAZHATHANGOLATH HOUSE,
NELLIKODE AMSOM, KOVOOR DESOM, KOZHIKODE TALUK
AND DISTRICT, PIN - 673 019.
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R.S.A No.448 of 2014
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5 SHEENA
D/O.LATE SAROJINI, THADAMTHOTTATHIL HOUSE,
OLAVANNA AMSOM AND DESOM, KOZHIKODE TALUK AND
DISTRICT, PIN 673 019.
6 DINESAN
S/O.LATE SAROJINI, MANAKKOTTU HOUSE, MATHRA,
OLAVANNA AMSOM AND DESOM, KOZHIKODE TALUK AND
DISTRICT, PIN 673 019.
7 KORAN (DIED)
S/O.SAMI, POOLAKKAL MANAKOTTU HOUSE, MATHRA,
OLAVANNA AMSOM AND DESOM, KOZHIKODE TALUK AND
DISTRICT, PIN - 673 019.
(AS PER ORDER DATED 22.09.2017 ON MEMO VIDE
CF.4945/2017 R1 TO R6 ARE RECORDED AS THE LEGAL
REPRESENTATIVES OF DECEASED R7).
8 K.V.DAMAYANTHI(DIED) LRS IMPLEADED
D/O.LATE KANDAN, THADANGATTUVAYAL,
KUNDOOPARAMBA, ERANHIKKAL DESOM, KOZHIKODE
TALUK AND DISTRICT, PIN - 673 303.
(APPELLANTS ARE EXEMPTED FROM IMPLEADING THE
LEGAL REPRESENTATIVES OF THE DECEASED 8TH
RESPONDENT AS PER ORDER DATED 07.04.2025 IN IA
NO.1/2025 IN RSA NO.448/2014(C)).
BY ADVS.
SMT.DEEPA
SHRI.K.JAYESH MOHANKUMAR
SRI.PUSHPARAJAN KODOTH
SRI.T.SETHUMADHAVAN (SR.)
SMT.VANDANA MENON
THIS REGULAR SECOND APPEAL HAVING BEEN FINALLY
HEARD ON 15.10.2025, THE COURT ON THE SAME DAY DELIVERED
THE FOLLOWING:
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R.S.A No.448 of 2014
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EASWARAN S., J
--------------------------------
R.S.A No.448 of 2014
-------------------------------
Dated this the 15th day of October, 2025
JUDGMENT
The defendants 1 and 2 in a suit for partition has come up before this Court, aggrieved by the concurrent findings of the Principal Munsiff Court-II, Kozhikode in O.S No.1078/2009 as well as the II Additional District Court, Kozhikode in A.S No.163/2011.
2. The brief facts necessary for the disposal of this appeal are as follows:-
The property described in item No.2 of the plaint schedule was set apart to the joint share of the mother of the plaintiffs late Sarojini, defendants 1 and 2 and their mother Janaki by virtue of a registered partition deed No.1993/1953 of SRO Chevayoor. Janaki died in October 2004 and Sarojini died on 20.02.2009. The parties are 2025:KER:76878 R.S.A No.448 of 2014 5 Thiyyas from malabar area, governed by Mitakshara Law. One Choyi obtained rights over the property by virtue of a lease deed. He had two children Kandan and Kuttappu. The plaintiffs and the defendants are the descendants of Kandan. On 07.08.1963, Ext.A1 partition deed was executed. Kandan had also one daughter named Damayanthi, who was neither made party to the partition deed nor was allotted any share. In 1963, the widow of Kandan, Janaki purchased the jenmam right along with defendants 1 and 2. In the year 1990, Janaki released her right over the plaint schedule property in favour of defendants 1 and 2 and accordingly defendants 1 and 2 had partitioned the property in the year 2002, between themselves. On 08.05.1955, the Sarojini was married off and for the purpose of the marriage, a mortgage was executed on 04.05.1955 and out of the mortgage, she was married off. Therefore, the plaintiffs contended that since the parties have themselves 2025:KER:76878 R.S.A No.448 of 2014 6 understood the true purport of the partition deed dated 07.08.1953, late Sarojini was certainly entitled for a separate possession of the property of her share. The defendants resisted the plea contending that since the jenmam right was obtained by late Janaki, she had absolute right title and interest over the property. It was further contended that since Sarojini had only a limited interest over the property and that she was married off prior to 07.06.1956, when the Hindu Succession Act, 1956, came into force, she thereafter cannot claim right title and interest over the plaint schedule property. On behalf of the plaintiffs, Ext.A1 was produced and PW1 was examined. On behalf of the defendants, Exts.B1 to B3 were produced and DW1 was examined Ext.B4 was also produced by defendants 1 and 2 before the First Appellate Court. The trial court on appreciation of the pleadings framed the following issues:-
1. Whether the plaintiff has co-ownership right over the plaint schedule property?
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2. If so, what is the quantum of shares to which parties are entitled?
3. Relief and cost?
3. On appreciation of oral and documentary evidence, the trial court held that, since late Sarojini had a specific share in the plaint schedule property by virtue of Ext.A1 partition deed dated 07.08.1953, her rights are not lost. Accordingly, the suit was decreed. Aggrieved, the defendants preferred A.S No.163/2011 and by judgment dated 07.02.2014, the appeal was dismissed, confirming the judgment and decree of the trial court. Hence the present appeal.
4. Heard Shri.S.V.Balakrishna Iyyer, the learned Senior Counsel, assisted by Shri.P.B.Subramanyan, learned counsel, appearing for the appellants and Shri.T.Sethumadhavan, the learned Senior Counsel, assisted by Smt.Preethi P.V., the learned counsel, appearing for the respondents.
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5. Shri.S.V.Balakrishna Iyyer, the learned Senior Counsel pointed out that, since the property was ancestral property in the possession and ownership of Kandan, the father of the defendants and the plaintiffs mother, Sarojini, the daughter does not have any right over the ancestral property. Therefore, merely because the name of late Sarojini was included in the partition deed, the legal heirs will not be entitled to claim any right. It is further contended that, since late Sarojini had only a limited interest over the property, she will not get any right once she is married off. Admittedly, late Sarojini was married on 08.05.1955 prior to the passing of the Hindu Succession Act. The fact that the 3rd defendant Damayanthi was not made a party to the partition deed, would clearly show that the female descendants of Kandan are not entitled to any share over the ancestral property.
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6. Per contra, Shri.T.Sethumadhavan, the learned Senior Counsel appearing for the respondents/plaintiffs would contend that the property at the hands of Kandan is not an ancestral property. Choyi, the grand father of defendants, had derived the property by virtue of a lease and therefore it cannot be construed as an ancestral property at the hands of Kandan and his brother Kuttappu. Irrespective of the customary law, when the parties entered into an agreement for partition, Sarojini should get the entire rights flowing out of the document. The absence of any plea of ouster, the courts below have correctly found that the plaintiffs are entitled for a preliminary decree for partition.
7. I have considered the rival submissions raised across the Bar, perused the judgments rendered by the courts below and also the records of the case.
8. While admitting the appeal on 11.04.2014, this Court framed the following substantial 2025:KER:76878 R.S.A No.448 of 2014 10 questions of law:-
(A) Is the lower appellate court right in holding that the suit property is not ancestral property in the hands of Kandan?
(B) Is a female member of a Thiyya Family of Malabar, married of prior to the advent of the Hindu Succession Act, 1956, entitled to lay claim to a share in the ancestral properties? (C) Has not the lower appellate court egregiously erred in proceeding as though the limited estate of Sarojini to maintenance had ripened into an absolute estate under Section 14 of the Hindu Succession Act, 1956 when the requirements in this regard are neither pleaded nor proved?
(D) Will not the assignment of jenm right, taken prior to the advent of the Kerala Land Reforms, 1963, extinguish the leasehold interest?
(E) Is not the question of rival claimants to the tenancy right liable to be referred to the Land Tribunal under Section 125(3) of the Kerala Land Reforms Act, 1963?
(F) Is not the right if any of Saroini and/or her legal representatives bared by adverse possession and ouster?
(G) Whether the Judgment and Decree of the lower appellate court are sustainable in law?
9. The first question to be considered by this Court is whether the right of Sarojini is lost because 2025:KER:76878 R.S.A No.448 of 2014 11 of her marriage prior to the advent of Hindu Succession Act, 1956. To answer this question, one must necessarily find out whether the property is ancestral at the hands of Kandan and Kuttappu. Read as may, this Court could not find any indication under Ext.A1 partition deed to hold that the properties at the hands of Kandan and Kuttappu were ancestral in nature. This is more so because, the derivation of title as found under Ext.A1 leaves no room for doubt that the properties were obtained through their father Choyi, under a registered lease executed in the year 1910. Therefore, the irresistible conclusion is that the property is not ancestral in nature.
10. Once this Court finds, that the property is not ancestral in nature, then it would be easier for this Court to answer the second substantial question of law framed by this Court. When Ext.A1 partition deed is read as whole, one can find there are two sets of sharers, a share allotted to Kuttappu and the other share allotted to 2025:KER:76878 R.S.A No.448 of 2014 12 the descendants of Kandan, who are parties 2 to 5 therein. While one half share was allotted to the 2 nd party therein, took the rest to the widow of Kandan, late Janaki, minor daughter Sarojini and defendants 1 and 2. One must remember that, if it was an ancestral property, late Janaki, would not have any right over the same, because, prior to 1956 when the parties are governed by Mithakshara Law, female heirs are not entitled to any share over the ancestral property and only in the absence of male descendants, the female heirs have a right by birth over the property of their father. Therefore, the fact that the parties were allotted equal shares, with parties 2 to 5 under Ext.A1, taking one share would necessarily presupposes that each of them had independent right. The exclusion of another female daughter of Kandan, the 3rd defendant is not a ground to hold that late Sarojini had only limited interest over the plaint schedule property.
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11. Yet another reason, why this Court must hold against the appellants is that regardless of the customary law then prevailing, namely, the Mithakshara Law, the parties have chosen their bargain into writing when a partition deed was executed. Therefore, when a right over the plaint schedule property is traced out to a partition deed, one cannot contend that the customary law will have effect over the written contract between the parties. It is not shown before me as to how dehors the partition deed, the customary law can be applied. It is in this context, this Court is not inclined to answer the third substantial question of law in favour of the appellants and therefore the irresistible conclusion is that the female heir of the Kandan, namely, late Sarojini had full right over the plaint schedule property.
12. Going forward to the other substantial questions of law framed by this Court, necessarily, the findings rendered as above by this Court will have an 2025:KER:76878 R.S.A No.448 of 2014 14 effect. Alternatively, what is pressed in service to deny the claim of the plaintiffs is the execution of Ext.B4 assignment deed, by which jenmam rights were assigned in favour of the defendants. In this context, this Court finds considerable force in the submissions of the Shri.T.Sethumadhavan, the learned Senior Counsel appearing for the respondents/plaintiffs that mere purchase of the jenmam rights by late Janaki and defendants cannot denude the rights of late Sarojini. Therefore, this Court is inclined to answer the fourth substantial question of law against the appellants.
13. As regards the plea that the question of tenancy ought to have been referred to the Land Tribunal, this Court finds that no issue was raised before the trial court and no such applications were preferred and therefore the said issue does not arises for consideration in the present appeal.
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14. It is last contended that what would be the nature of rights derived by late Sarojini. During the life time of Sarojini, the Sarojini did not claim any right over the property. This Court is not able to subscribe to the aforesaid argument for multiple reasons, the mere fact that Sarojini did not demand for partition during her life time, is not a ground to deny the rights of her legal heirs. When the claim raised by the plaintiffs is sought to be resisted by the defendants and during the course of such resistance, the courts find that the parties to Ext.A1 deed have understood and acted upon the said deed in a particular manner, then the parties cannot resile from their conscious act and contend otherwise to deny the rightful claim of a sharer. In Raghavan v. Chirutha [1991(2) KLT 385], this Court held that the subsequent act or conduct of the parties to a deed can be looked into. Paragraph 5 of the judgment is extracted as under:-
5. The only question canvassed at the time of the hearing is to the effect that the courts below 2025:KER:76878 R.S.A No.448 of 2014 16 erred in adverting to the subsequent conduct of the plaintiffs, evidenced by Exts. B15 to B20 to construe that Ext. A2 is a partition deed. The question is whether the subsequent act or conduct of the parties can be looked into to understand the true meaning of the words used in a deed. Subsequent act or conduct of parties to a deed can be looked into only when there is a doubt or ambiguity regarding the true meaning of the words used in the deed-particularly when acts are done shortly after the date of the instrument. See Godhra Electricity Co. Ltd. v.
State of Gujarat (AIR 1975 SC 32). In S.M Mohideen v. R.V.S. Pillai (AIR 1974 SC 740) the Supreme Court has stated in the case of ancient documents, the courts should be cautious to guard against warping of the issue by reference to subsequent conduct of the parties or their representatives, which may vary for imponderable reasons, bonafide or otherwise. It appears that the above normal rule is subject to a rider, that even in the absence of doubt or ambiguity, subsequent acts and declarations of the parties are admissible as evidence, against the party who made them, and not in his favour.-(Snell's Principles of Equity, 24th Edition, page 185), See also Shephard v. Cartwright (1955 AC. 431).
15. As regards the plea of adverse possession and ouster, this Court must notice that in the written statement filed on behalf of the defendants, no 2025:KER:76878 R.S.A No.448 of 2014 17 such plea has been raised. Therefore, the appellants cannot be permitted to raise the plea of adverse possession at this point of time.
Viewed in the above perspective, the concurrent findings rendered by the courts below does not call for any interference. Having answered the substantial questions of law framed in the appeal against the appellants, it is inevitable for this Court to hold that there is no merit in the appeal and accordingly this appeal fails and the same is dismissed. The parties shall suffer the respective costs.
Sd/-
EASWARAN S. JUDGE AMR