Kerala High Court
K. Janaki Amma vs M.P.K.Raghavan Nambiar on 2 July, 2008
Bench: P.R.Raman, T.R.Ramachandran Nair
IN THE HIGH COURT OF KERALA AT ERNAKULAM
AS.No. 711 of 1992()
1. K. JANAKI AMMA
... Petitioner
Vs
1. M.P.K.RAGHAVAN NAMBIAR
... Respondent
For Petitioner :SRI.KODOTH SREEDHARAN
For Respondent :SRI.R.PARTHASARATHY
The Hon'ble MR. Justice P.R.RAMAN
The Hon'ble MR. Justice T.R.RAMACHANDRAN NAIR
Dated :02/07/2008
O R D E R
P.R.RAMAN &
T.R.RAMACHANDRAN NAIR,JJ.
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A.S.NO.711 OF 1992
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Dated this the 2nd day of July, 2008
JUDGMENT
Raman,J.
Appellants are the plaintiffs in O.S.No.135/1988 on the file of the Subordinate Judge's Court, Vadakara. That is suit for partition. As per the plaint allegations, Meethale Veettil Kaitheri Kelu Nambiar, who was the Karnavan of the tarwad, gave an oral lease of the plaint schedule properties to one Sreedevi Amma. She was none other than the Karnavan's sister. Sreedevi Amma had five children; Kunhirairu Nambiar, Kunhikrishnan Nambiar, Narayani Amma, Sankaran Nambiar and Rayarappan Nambiar. Sreedevi Amma died in 1955. Kunhirairu Nambiar pre-dedceased Sreedevi Amma. Kunhikrishnan Nambiar died in 1964. Defendants 14 to 16 are his children. Narayani Amma also died in 1986. Ist Plaintiff and defendants 1 and 2 are her children. Plaintiffs 2 to 5 are the children of the lst plaintiff. -2- A.S.No.711/1992 Defendants 3 to 6 are the children of the 2nd defendant. 7th Defendant is the wife of deceased Sankaran Nambiar. 17th Defendant is the wife of deceased Rayarappan Nabiar and Defendants 18 to 21 are his children. Meenakshi Amma is the 8th defendant. Defendants 9 to 13 are her children. Meenakshi Amma and her children were impleaded as parties. They claimed absolute right over a portion of item 1 and so it is contended as not available for partition.
2. According to the plaintiffs, item 1 was the subject matter of an oral lease in favour of Sreedevi Amma. Item 2 to 4 of the plaint schedule property were leased out by Kelu Nambiar as Karnavan, in favour of Sreedevi Amma as per registered Marupat No.1549/1927 dated 16/6/1927. Thus items 1 to 4 were in possession and enjoyment of Sreedevi Amma till her death and after her death in 1955 the right devolved upon her thavazhy. Kunhikrishnan Nambiar and Rayarappan Nambiar died prior to the commencement of the Kerala Joint Hindu Family System -3- A.S.No.711/1992 Abolition Act and hence their wives and children are not entitled to claim any right over the thavazhy or tharwad properties. Sankaran Nambiar died issueless in 1986 and his sole representative is his wife, the 7th defendant. Narayani Amma died in 1986 and her children are already in the party array. Plaintiffs and defendants 1 to 6 are members of the thavazhy of Sreedevi Amma and they were all born prior to 1/12/1976, Thus altogether 13 member in the thavazhy of Sreedevi Amma as on 1/12/1976 and each of them having 1/3 share over the plaint schedule property. They were holding the property as tenants in common on the day on which the Act was in force. The 7th defendant as legal representative of deceased Sankaran Nambiar is entitled 1/13 share. It is their case that after the Kerala Joint Hindu Family System Abolition Act, the properties have become co-ownership properties. Hence, seeking partition they issued notice to the lst defendant to which a reply was sent by him stating incorrect facts which give rise to the cause of action for instituting the suit for -4- A.S.No.711/1992 partition. The lst defendant contended in the written statement that neither plaintiffs 2 to 5 nor defendants 3 to 6 are having any title over the plaint schedule items. He also denied the allegation that in 1955 the rights over the properties of deceased Sreedevi Amma devolved upon her thavazhy. As per the provisions of the Marumakkathayam Law, the rights of properties of Sreedevi Amma devolved upon her legal representatives i.e. children only and in turn their rights devolved upon their legal representatives as per the provisions of the Hindu Succession Act. According to him, as per the lease deed mentioned in the plaint, Sreedevi Amma was having exclusive title and possession over the plaint schedule properties. They also disputed the claim in the plaint regarding the allotment of shares. The assessment of the shares by the plaintiff is also denied. It is contended that the plaint schedule properties are not thavazhy properties and they were never held and enjoyed as thavazhy properties. Sankaran Nambiar was managing the properties as a co-owner and the -5- A.S.No.711/1992 defendant has never managed the property. The remaining portion of the plaint schedule properties, after excluding those portions, which were transferred by Sreedevi Amma, were held and enjoyed by her four children exclusively. After the death of Kunhikrishnan Nambiar and Rayarappan Nambiar, Narayani Amma was in possession and management of the properties. On 1120 Sreedevi Amma granted an oral lease in respect of item 1 known as Muthunneri paramba in favour of the lst defendant with a stipulation for payment of Rs.20/- as purappad and possession was also handed over. Thus, he is in possession and enjoyment of the property. The tenancy right in favour of the lst defendant was accepted and acknowledged by the legal representatives of Sreedevi Amma and a purchase certificate was also obtained as per proceedings in SMC. 1/1985 of the Land Tribunal, Purameri. Thus, item 1 is not liable to be partitioned. Item 2 and and the remaining portion of item 3 excluding 2 plots in it were outstanding in the possession of tenants under Sreedevi Amma -6- A.S.No.711/1992 and at the time of her death she was in possession of 2 plots in item 3 of the plaint schedule properlty. The tenants in respect of items 2 and 3 of the plaint schedule properties are necessary parties to the suit. The two plots in item 3 and item 4 of the plaint schedule property jointly belonged to four children of the Sreedevi Amma. The allegation regarding gift deed in respect of 42 cents in item 1 of the plaint schedule properties is denied. The 2nd defendant supported the case of the plaintiffs. Defendants 3 to 6 also supported the case of the plaintiffs. Defendants 8, 10, 11 and 13 in their joint written statement contended that a portion of item 1 of the plaint schedule property exclusively belonged to themselves along with 12th defendant and is not liable to be partitioned. After the death of Sreedevi Amma, her rights over the item 1 of the plaint schedule property devolved upon her legal representatives. In the additional written statement filed by the lst defendant it was contended that item 1 of the plaint lschedule property was never held and enjoyed as thavazhy property and by -7- A.S.No.711/1992 virtue of the registered partition karar No.1495/1959 the properties which belonged to Sreedevi Amma and her thavazhy were partitioned. But item 1 of the plaint schedule property was not included in that partition karar. Further there is no mention about the property in that karar. The right if any of the plaintiffs and defendants 2 onwards over item 1 of the plaint schedule property are barred by adverse possession and limitation. The Court guardian of the 12 defendant filed a written statement supporting the contentions raised by defendants 9, 10, 11 and 13. Defendants 14 and 16 in their written statement disputed the descriptions and measurements of the plaint schedule properties. They admit the oral lease in respect of item 1 in favour of Sreedevi Amma. They also admitted the acquisition of items 1 to 4 in favour of Sreedevi Amma as per the Marupat mentioned in the plaint. According to them, after the death of Sreedevi Amma, her rights over the properties devolved upon her legal representatives . They disputed the shares assessed in the plaint. -8- A.S.No.711/1992 The 15th defendant filed a written statement contending that after the death of Sreedevi Amma her rights over the properties devolved upon her thavazhy. Defendants 17 to 21 in their written statement contended that Rayarappan Nambiar was having 1/13 share over the plaint schedule property and after his death it is devolved upon these defendants. Above is the summary of the contentions raised by the parties. Further details contained in the plaint and in the written statement are not necessary for disposal of this appeal and hence they are not stated.
3. The trial court framed necessary issues for trial. One of the issues is as to whether the plaint schedule properties are thavazhi properties and whether the rights of Sreedevi Amma have devolved upon her descendants as thavazhy property. As regards item 1, an issue was raised as to whether the said item was leased out by Sreedevi Amma to the 1st defendant and whether the lst defendant has a valid tenancy right over item 1.
4. The evidence consists of oral testimony of PW-1 and -9- A.S.No.711/1992 Ext.A1 to A7 and Exts.B1 to B23 besides Ext. X1 were also marked in this case.
5. The court below found that plaintiffs are not entitled to challenge the validity of the proceedings of the Land Tribunal, Purameri, since they are claiming right under Narayani Amma, who was already a party in the proceedings before the Land Tribunal. It was the specific contention of the plaintiffs that Sreedevi Amma herself obtained item 1 as per an oral lease from the Karnavan Kelu Nambiar. The lst defendant on the other hand admits the oral lease in favour of in favour of Sreedevi Amma. He further contended that Sreedevi Amma in turn granted an oral lease in his favour on payment of Rs.20/- as purappad. Thereafter, by applying before the Land Tribunal, a certificate of purchase was also obtained by him. There is no dispute that there was a proceedings before the Land Tribunal and a purchase certificate was also obtained by the lst defendant. Though it is contended by the appellants that if item 1 is a thavazhy property, -10- A.S.No.711/1992 necessarily the plaintiffs are entitled to the share of the property and therefore in the absence of the plaintiffs being made as a party to the Land Tribunal Proceedings, it will not bind them and the purchase certificate was obtained behind their back cannot validly take away the right for partition of that item. We are unable to agree with the contention of the appellants in this regard. In the Land Tribunal proceedings admittedly Narayani Amma was made a party and the plaintiffs are the only children of Narayani Amma, who claim under her. In such circumstances, it is too late for them to contend that the purchase certificate obtained by the lst defendant in which Narayani Amma was a party will not bind them. The purchase certificate obtained by the lst defendant is a document of title statutorily recognized by law and unless there is any convincing evidence, there is no reason to hold that such certificate issued by a competent Land Tribunal, after making the children of Sreedevi Amma as parties to the above proceedings, in any way vitiated. In such circumstances, -11- A.S.No.711/1992 the finding that item No.1 is not available for partition is confirmed.
6. As regard the remaining items 2 to 4 are concerned, they are the subject matter of registered Marupat executed by Sreedevi Amma in favour the then Karnavan of the family that is produced as Ext.A1 in the case. The recitals contained in Ext.A1would clearly show that the properties were taken on Marupat by Sreedevi Amma not only for her exclusive benefit but also for the benefit of her children. It is stated thus:
'' .''
7. This is a clear indication that the properties obtained by her from the Tharwad as per lease arrangment enure to the benefit of her tavazhy. Ext.A7 is an arrangement between Keloth Raghavan Nambiar, Janaki Amma and Sarojini Amma all of whom are children of Narayani Amma. In Ext.A1 there is an admission by the parties that the properties dealt with in the karar -12- A.S.No.711/1992 belonged to Keloth thavazhy properties and admittedly the plaint schedule items were the subject matter of the karar. Of course, there is nothing to show that the said document was acted upon subsequently. But regarding the character of the properties are concerned, the admission by all the members who are signatory thereto would bind them and they are estopped from contending that items 2 to 4 are not keloth thavazhy properties. Now we refer the document Ext.A1 produced in A.S.No.565/1993 between some of the parties, who were also heard together. But since the parties are different and the subject matter also is different, we have dealt with the same by separate judgment. We may notice that Ext.A1 produced in the said case is a registered partition karar between the members of the thavazhy then in existence. Admittedly, the plaint schedule items in the present suit are not the subject matter of the said partition karar. According to the court below, the very fact that the plaint items are not included in the said properties as an indication of the fact -13- A.S.No.711/1992 that these are not thavazhy properties; but are the self acquired properties of Sreedevi Amma. According to the learned counsel for the appellant, the inference drawn by the court below is erroneous. According to them, the properties which was the subject matter of 1959 partition karar, were the properties bequeathed by Sreedevi Amma as per her Will and set apart to the different legatees, who were members of different thavazhies. If the plaint schedule properties were self acquired properties of Sreedevi Amma, necessarily this would have also been an item included in the Will and subsequently in 1959 partition karar also. On the contrary, the execution of these items from 1959 partition karar is a strong indication that these properties were not treated as a separate properties of Sreedevi Amma at any point of time and on the other hand this was treated as belonged to thavazhy of Sreedevi Amma. Hence, she could not have dealt with these properties as her separate property and so not bequeathed by the Will or forming an item in that karar referred -14- A.S.No.711/1992 to. We find great force in the said argument. There is no reason why the plaint properties if were also separate property and exclusively belonged to Sreedevi Amma, are not dealt with in 1959 partition karar. Further as per Ext.A7 produced in the case to which we have already made reference would also clearly show that these properties were obtained by Sreedrevi Amma from the Tharwad to enure to the benefit of her thavazhy and therefore these are partible as thavazhy properties. The finding entered into by the court below is therefore wrong land we set aside the same.
8. The learned counsel for the respondents however placed reliance on Ext.A6 a judgment in O.S.No.22/85, a prior suit instituted by the plaintiff and contended that it was admitted in the plaint in paragraph 1 that the suit properties therein which are thavazhy properties are subject matter of a partition karar in the year 1959 and the contention is that the plaintiffs are hence estopped from contending that it is a thavazhy property. The -15- A.S.No.711/1992 learned counsel for the appellants on the other hand would contend that admittedly, Ext.A6 relates to a property allotted as per partition karar of 1959 and parties therein were only the members of the said thavazhy to whom the plaint schedule properties included therein were allotted and therefore reference to thavazhy is only to that sub-thavazhy of the parties therein and not to the thavazhy of Sreedevi Amma. On a reading of Ext.A6 we find that there is force in this contention. What was sought to be partitioned as per Ext.A6 was only an item of property allotted to the parties as plaintiffs and defendants in O.S.No.22/85 and the parties herein were not necessary parties in the earlier suit. Therefore, there is no admission contra to what is contained in the plaint allegation.
9. In view of the above finding, the shares to be allotted to the parties have to be worked out separately and how and to what shares each one of them is entitled to is a matter on which both sides could address their submissions before the court below. For -16- A.S.No.711/1992 this purpose we remand the matter to the trial court. Since the mesne profits are also decreed by the court below, needless to say that the mesne profits will also be worked out according to the reallotment of the shares.
The appeal is allowed partly.
Parties shall appear before the court below on 4/8/2008.
P.R.RAMAN, Judge.
T.R.RAMACHANDRAN NAIR, Judge.
kcv.
-17- A.S.No.711/1992
P.R.RAMAN & T.R.RAMACHANDRAN NAIR, J.
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A.S.NO.711 OF 1993
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JUDGMENT 2nd July, 2008