Kerala High Court
Komalavalli Amma vs Ambikadevi on 6 February, 2001
ORDER K.V. Sankaranarayanan, J.
1. The legal representatives of the plaintiff in O.S. No. 384/83 on the file of the Sub Court, Palakkad are the appellants.
2. The suit was one for partition. The plaint A schedule properties consisting of 90 cents of land in Survey No. 95/7 (R.S. No. 1/7) and 14 cents of land in Survey No. 95/6 (R.S. No. IF/6) belonged in jenm to Nanikutty Amma. She had 4 sons and one daughter. The plaintiff was one of the sons. First defendant was the only daughter and the second defendant was another son. Defendants 3 to 6 were the legal representatives of the eldest son Prabhakara Menon, who died before the institution of the suit. Another son Sivadas also died young, much before the suit. The children of the first defendant were subsequently impleaded as defendants 7 to 11 in the suit. The plaintiff claimed that the plaint A schedule immovable properties and B Schedule movables belonged to Nanikutty Amma exclusively. She died in 1963 leaving behind the plaintiff and defendants 1 to 6 as her legal representatives. He had claimed 1/4 share in the plaint schedule properties and conceded a share each for the first and second defendants, and defendants 3 to 6 together. Plaintiff's claim was supported by defendants 2 to 6. But, it was contested by the first defendant and her children defendants 7 to 11 who were supplementally impleaded. Defendants 1 and 7 to 11 contended that it was thavazhi property and defendants 7 to 11 were also entitled to a share each on per capita division.
3. Before the trial court, the plaintiff was examined as PW. 1 and the first defendant as DW.1. Exts. A1 to A9 documents were also marked. On a consideration of the evidence and the authorities, the learned Sub Judge held that plaint schedule properties were thavazhi properties and granted a decree for partition of a 1/9th share in favour of the plaintiff. Since the original plaintiff died after the decision, his legal representatives have filed this appeal.
4. I have heard learned counsel for the appellants who is supported by counsel for the second respondent. I have also heard counsel for respondents 1, 11 contesting the appeal.
5. The point for decision is whether the plaint A schedule properties were family properties as claimed. It is in evidence that the tarwad of Nanikutty Amma had some properties. There was a partition in the year 1948, by which Nanikutty Amma got 114 paras rent yielding land and Rs. 600/- in cash as the share due to her thavazhi consisting of herself, her 4 sons and the daughter. The eldest son Prabhakara Menon was employed from 1940onwards. The plaintiff was the second son. He was also employed in the Navy from 1941 onwards. Second defendant and the younger son Sivadasan were still students. It is stated that Sivadasan was studying in a polytechnic during and after 1948. First defendant was not married at that time. She got married only in 1958. The plaint A schedule properties were purchased by Nanikutty Amma by Exts. A1 and A2 in 1953. Both documents are dated 14.8.1953. Ext. A1 is regarding plaint A schedule item No. 1. The consideration shown is Rs. 4,300/-. Out of this Rs. 1,450/- is shown as paid in advance. Rs. 1,655/- paid in cash and the balance approximately Rs. 1,195/- reserved for discharge of the encumbrances and on the property. The consideration for Ext. A2 regarding plaint A schedule item No. 2 is only Rs. 500/-. That document shows an advance payment of Rs. 50/- and a cash payment of Rs. 92/-, balance Rs. 358/- being reserved for discharge of encumbrances. The other documents produced show that the liabilities were discharged soon thereafter by Ext. A3 and A4 in August, 1953 itself and receipts were obtained by Nanikutty Amma. None of these documents give any indication as to the source of money for the acquisition of properties. The plaintiff's case is that Nanikutty Amma purchased the properties with the funds supplied by himself and his elder brother Prabhakara Menon. On the other hand, the first defendant's contention is that the mother had purchased the properties with the savings from the thavazhi property and the amount received at the time of partition remaining with her. It is admitted by both sides when Nanikutty Amma's thavazhi got divided in 1948 they had no residential house. They stayed for sometime in her sisters' house, the only doubt being whether any amount was paid as rent to the sister during that period. It is also in evidence that Nanikutty Amma purchased a plot of land in Kammanthara in or about 1950 and it was disposed of in 1955. The related documents are not produced by the parties. It is also agreed on both sides that Nanikutty Amma's husband was living with her. He could have brought only some amounts from his family once in an year or so. Neither party had a case that any amount belonging to the father was used for the acquisitions. Nanikutty Amma had to meet the expenses of herself, her husband and the three children at home and a servant at the time when Exts. Al and A2 purchases were made. The first defendant as DW. 1 has admitted that the plaintiff and the elder brother Prabhakara Menon were sending some amounts to the mother. But her case is that it was being utilised for day to day expenses and for the education of Sivadasan the deceased brother in the polytechnic. The plaintiff could not by his evidence make out that the funds utilised for the purchase were actually supplied by himself or his brother. There is nothing to indicate that Nanikutty Amma preserved the amounts sent by the sons separately and utilised it for the purchases. The plaintiff has a case that 114 paras of paddy received as rent for the family property was not sufficient for the day to day needs of the family itself. It would, at best, have been sufficient to pull on for 7 to 8 months only and so, there was no sufficient joint family nucleus for purchase of the properties. But it is pointed out for the first defendant that at the time of partition, Nanikutty Amma had received some cash also. The only evidence is that she spent Rs. 200/- for purchase of another property in Kummanthara and the balance amount must have been with her. It is also contended that there will be some surplus out of the paddy rent received which could have gone for purchase of the properties. So, all that is made out by the evidence is that Nanikutty Amma had some funds supplied by the two sons. She had also the income from the family properties. Possibly, she was not differentiating the funds that came to her hands from the different sources and whatever she could save must have been utilised for the purchases. The question is whether in such circumstances the property should be treated as thavazhi property or the individual property of Nanikutty Amma. The learned Sub Judge has noticed a number of decisions on the subject. But the decisions in Mangal Singh v. Harkesh (AIR 1958 Allahabad 42) and a Division Bench judgment of this Court in Narayanan Nair v. Parukutty Amma & Ors. (1960 KLJ 44) appear to be most appropriate. In the Allahabad decision, it is held as follows:
"The general rule which is common to Mitakshara and Daya Bhag both appears to be that whatever may be the extent of the contribution of the acquiring member himself out of his self-acquired fund if he lake's the aid of any portion of joint or ancestral properly in acquiring the property, however, small that aid may be, the property so acquired assumes the character of joint family property and cannot be claimed by him as a self-acquisition. The extent of his self-acquisition."
6. In the decision of this Court noted above, it is held that:
"Where there is a mixing up of the family funds and separate funds the presumption is, that the latter is merged in the former. The real question is what is the true conclusion to be drawn, when people united, by bonds of close relationship and living as a joint family, draw for the joint family expenses out of a fund enriched by other contributions. I f the members of a Malabar tarwad confuse the income of their joint properties with their separate propertes, their intention presumably is, that the properties acquired with such mixed-up funds are for the tarwad".
Going by the above dictum, the acquisitions by Nanikutty Amma by Exts. A1 and A2 must be held to be for the thavazhi itself. So, the learned Sub Judge was justified in accepting the first defendant's case that it should be treated as thavazhi property while effecting a division.
7. It is pointed out for the first defendant that she is residing in the house building in plaint schedule item No. 1. The evidence shows that after her marriage in 1958, she stayed with her husband in places of his employment for some period and has later started residence in the plaint schedule item No.1 from the late 70's. The others are living away. Defendants 3 to 6 are in Malaysia. The plaintiff was also in Malaysia for some period. The recitals in Ext. A1 show that at the time of purchase in 1953, the house building in the property was in a dilapidated condition. Thereafter, it has been renovated or reconstructed. It is fairly clear from the evidence of the first defendant herself that the plaintiff and his elder brother Prabhakara Menon could have substantially contributed for reconstruction of the building also. The first defendant had some claims for more recent improvements in the building, which have been negatived by the trial court. Rightly so when the plaintiff and the other brother had contributed substantially for the construction or renovation of the building itself. The trial court has also left open the question of allotment of the building to the final decree stage. No interference is called for in those aspects also.
8. In the light of the above discussion, the appeal fails and is dismissed. However, there will be no order as to costs.