Kerala High Court
O.S.Karunakaran Pillai,(Died) Lhrs ... vs Sarasakumar on 14 August, 2025
RSA NO.200 OF 2018 1 2025:KER:61200
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE EASWARAN S.
THURSDAY, THE 14TH DAY OF AUGUST 2025 / 23RD SRAVANA, 1947
RSA NO. 200 OF 2018
AGAINST THE JUDGMENT AND DECREE DATED 16.11.2017 IN AS NO.111
OF 2004 OF SUB COURT, CHERTHALA ARISING OUT OF THE JUDGMENT AND DECREE
DATED 30.03.2004 IN OS NO.398 OF 1989 OF ADDITIONAL MUNSIFF COURT,
CHERTHALA
APPELLANTS/RESPONDENTS 5 & 34 TO 36 :
1 O.S.KARUNAKARAN PILLAI,(DIED) (LHRS IMPLEADED)
S/O.LEKSHMI AMMA, ONEZHUTHU, THEVARVATTOM MURI,
THYCATTUSSERRY VILLAGE, CHERTHALA TALUK,
PIN-688528.
2 OMANA
W/O.LEKSHMANAN PILLAI, KATTUVELITHARA,
THEVARVATTOM , THYCATTUSSERRY VILLAGE,
CHERTHALA TALUK, PIN-688528.
3 SURESH
S/O.LEKSHMANAN PILLAI, KATTUVELITHARA,
THEVARVATTOM , THYCATTUSSERRY VILLAGE,
CHERTHALA TALUK, PIN-688528.
4 PRIYA
D/O.LEKSHMANAN PILLAI, KARTHIKA,
CMC-17, CHERTHALA, PIN-688552.
ADDL. APPELLANTS 5 TO 9
5 VALSALA,
AGED 65 YEARS
W/O.LATE KARUNAKARAN PILLAI,
ONEZHUTHU,THEVARVATTOM MURI,
THYCATTUSSERRY VILLAGE,CHERTHALA TALUK,
PIN-688528.
RSA NO.200 OF 2018 2 2025:KER:61200
6 SANTHOSH,
AGED 48 YEARS
S/O.LATE KARUNAKARAN PILLAI,ONEZHUTHU,
THEVARVATTOM MURI,THYCATTUSSERRY VILLAGE,
CHERTHALA TALUK,PIN-688528.
7 VINOD,
AGED 45 YEARS
S/O.LATE KARUNAKARAN PILLAI,ONEZHUTHU,
THEVARVATTOM MURI,THYCATTUSSERRY VILLAGE,
CHERTHALA TALUK,PIN-688528.
8 RAJESH,
AGED 41 YEARS
S/O.LATE KARUNAKARAN PILLAI,ONEZHUTHU,
THEVARVATTOM MURI,THYCATTUSSERRY VILLAGE,
CHERTHALA TALUK,PIN-688528.
9 PRATHEESH,
AGED 39 YEARS
S/O.LATE KARUNAKARAN PILLAI,ONEZHUTHU,
THEVARVATTOM MURI,THYCATTUSSERRY VILLAGE,
CHERTHALA TALUK,PIN-688528.
(LEGAL HEIRS OF DECEASED APPELLANT NO.1 ARE IMPLEADED AS
ADDITIONAL A5 TO A9 AS PER ORDER DATED 13.08.2024 IN
IA.NO.2 OF 2018)
BY ADVS.
SRI.R.AZAD BABU
SRI.P.C.CHACKO
SMT.REJITHA RAJAN
RESPONDENTS/APPELLANTS 2, 4 TO 10 & RESPONDENTS 1 TO 4, 7 TO 17, 19
TO 33 & LRS OF DECEASED 18TH RESPONDENT :
1 SARASAKUMAR
S/O.PADMAVATHYAMMA, KARUMAKKIL PUTHEN VEEDU,
POOCHACKAL, PANAVALLY VILLAGE,
CHERTHALA TALUK, PIN-688526.
2 THILAKAVATHY
D/O.PADMAVATHYAMMA, - DO -
3 RAJANI
D/O.PADMAVATHYAMMA, - DO -
4 MOHANAN
S/O.PADMAVATHYAMMA, - DO -
RSA NO.200 OF 2018 3 2025:KER:61200
5 GEETHA
D/O.PADMAVATHYAMMA, - DO -
6 K.H.SARADA
W/O.ANANDAKUMAR, CHITTEZHATHU,
FROM PUTHEN PURAYIL, THEVARAVATTOM MURI,
THYCATTUSSERY, CHERTHALA TALUK, PIN-688528.
7 ANITHA
D/O.ANANDAKUMAR, -DO-
8 ANIL
S/O.ANANDAKUMAR, -DO-
9 AJAYAPPAN
S/O.KUTTAN PILLAI, ONEZHATHU,
THEVARAVATTOM MURI,THYCATTUSSERY,
CHERTHALA TALUK, PIN-688528.
10 SARALA
W/O.VENUKUTTAN OF - DO-
11 AJITH
S/O.VENUKUTTAN OF - DO-
12 ANJALY
D/O.VENUKUTTAN OF - DO-
13 SAROJINI AMMA
D/O.LAKSHMI AMMA, ONEZHATHU,
THEVARAVATTOM MURI,THYCATTUSSERY,
CHERTHALA TALUK, PIN-688528.
14 ASOKAN
S/O.KUTTAN PILLAI, ONEZHATHU,
THEVARAVATTOM MURI,THYCATTUSSERY,
CHERTHALA TALUK, PIN-688528.
15 DIVAKARAN
S/O.NARAYANAN, MAPPILATTUVEEDU,
THEVARAVATTOM MURI,THYCATTUSSERY,
CHERTHALA TALUK, PIN-688528.
16 PRABHAKARAN PILLAI
S/O.SANKARA PILLAI, VALIYAVEETTIL,
PALLIPURAM MURI, PALLIPURAM VILLAGE,
CHERTHALA TALUK, PIN-695316.
17 CHANDRAN PILLAI
S/O.SANKARA PILLAI, VALIYAVEETTIL,
PALLIPURAM MURI, PALLIPURAM VILLAGE,
CHERTHALA TALUK, PIN-695316.
RSA NO.200 OF 2018 4 2025:KER:61200
18 K.P.THOMAS @ APPACHAN
THAKIDIPURAM, POOCHACKAL,
CHERTHALA TALUK, PIN-688526.
19 K.P.VARGHESE
KUNNAM VEEDU, MANNAPPURAM,
THEVARAVATTOM MURI, THYCATTUSSERY VILLAGE,
CHERTHALA TALUK, PIN-688528.
20 NARAYANAN NAIR
NARAYANA MANDIRAM, PANAVALLY MURI,
PANAVALLY VILLAGE, CHERTHALA TALUK,
PIN-688566.
21 NOUSHAD
NOUPHIL COOL BAR, POOCHACKAL,
PANAVALLY VILLAGE, CHERTHALA TALUK,
PIN-688526.
22 ALI AKBAR
VALICHIRA, POOCHACKAL,
PROPRIETOR, KAVITHA SOUNDS, POOCHACKAL,
PANAVALLY VILLAGE, CHERTHALA TALUK,
PIN-688526.
23 KUTTAPPAN
PROPRIETOR, PROPRIETOR, KAVITHA SOUNDS,
POOCHACKAL, PANAVALLY VILLAGE,
CHERTHALA TALUK, PIN-688526.
24 GIRIJA CHITTEZHATHU
THEVARAVATTOM MURI,
THYCATTUSSERY VILLAGE,
CHERTHALA TALUK, PIN-688528.
25 ABDUL RAHIMAN MUHAMMED KUNJU
RAHMANIA CYCLE WORKS, POOCHACKAL,
CHERTHALA TALUK, PIN-688526.
26 SUDHEER
ONEZHATHU, THEVARAVATTOM MURI,
THYCATTUSSERY VILLAGE, CHERTHALA TALUK,
PIN-688528.
27 K.P.MATHEW
KUNNAM VEETTIL, THEVARAVATTOM MURI,
THYCATTUSSERY VILLAGE, CHERTHALA TALUK,
PIN-688528.
RSA NO.200 OF 2018 5 2025:KER:61200
28 MOHANAN
CHONAPPALLIL, PALLIPPURAM MURI,
PALLIPPURAM VILLAGE, CHERTHALA TALUK,
PIN-695316.
29 SUDHEESH
CHONAPPALLIL, PALLIPPURAM MURI,
PALLIPPURAM VILLAGE, CHERTHALA TALUK,
PIN-695316.
30 SUSHAMA
CHONAPPALLIL, PALLIPPURAM MURI,
PALLIPPURAM VILLAGE, CHERTHALA TALUK,
PIN-695316.
31 SUJATHA
CHONAPPALLIL, PALLIPPURAM MURI,
PALLIPPURAM VILLAGE, CHERTHALA TALUK,
PIN-695316.
32 GOPI
ELIKKATTUVELI, THYCATTUSSERY,
CHERTHALA TALUK, PIN-688528.
33 SURESH
ELIKKATTUVELI, -DO -
34 RUKMINI
ELIKKATTUVELI, THYCATTUSSERY,
CHERTHALA TALUK,PIN-688528.
35 SUNILKUMAR
ELIKKATTUVELI, THYCATTUSSERY,
CHERTHALA TALUK,PIN-688528.
36 VALSALA
ELIKKATTUVELI, THYCATTUSSERY,
CHERTHALA TALUK,PIN-688528.
37 LALITHA
ELIKKATTUVELI, THYCATTUSSERY,
CHERTHALA TALUK,PIN-688528.
38 SUDHA
ELIKKATTUVELI, THYCATTUSSERY,
CHERTHALA TALUK,PIN-688528.
RSA NO.200 OF 2018 6 2025:KER:61200
*39 THAJUDHEEN (DIED)(LRS IMPLEADED)
S/O.MAMMU, MANGALATHAYA RAHIM MANZIL,
THEVARVATTOM MURI, THYCATTUSSERY,
CHERTHALA TALUK, PIN-688528.
*40 RAMLATH (DELETED)
D/O.MAMMU OF -DO-
(RESPONDENT NO.40 IS DELETED FROM THE PARTY ARRAY AT THE
RISK OF THE APPELLANTS AS PER ORDER DATED 20/06/2025 IN
IA NO.2/2025 IN RSA 200/2018.)
41 BASHEER
S/O.MAMMU OF -DO-
42 JAMAL
S/O.MAMMU OF -DO-
43 NAZEEMA
D/O.MAMMU, RAHIM MANZIL, THYCATTUSSERY,
POOCHACKAL, CHERTHALA TALUK, PIN-688526.
44 RAHIM
S/O.MAMMU OF -DO-
ADDL.R45 SAJITHA
W/O LATE THAJUDHEEN, SIJINSIL,
MANAPPURAM P.O., CHERTHALA - 688 558.
(SOLE LEGAL REPRESENTATIVE OF THE DECEASED 39TH
RESPONDENT IS IMPLEADED AS ADDITIONAL RESPONDENT 45, AS
PER ORDER DATED 24/02/2025 IN I.A.NO.2/2024 IN RSA
NO.200/2018.)
R9 TO R12 BY ADVS.
SHRI.V.N.MADHUSUDANAN
DR.V.N.SANKARJEE
SRI.S.SIDHARDHAN
SMT.R.UDAYA JYOTHI
SRI.M.M.VINOD
SMT.M.SUSEELA, FOR R13, R14 AND R26
THIS REGULAR SECOND APPEAL HAVING COME UP FOR HEARING ON
29.07.2025, THE COURT ON 14.8.2025 DELIVERED THE FOLLOWING:
RSA NO.200 OF 2018 7 2025:KER:61200
"C.R"
EASWARAN S., J.
--------------------------------
R.S.A. No.200 of 2018
------------------------------------------
Dated this the 14th day of August, 2025
JUDGMENT
The appellants herein are respondent Nos.5 and 34 to 36 in A.S. No.111 of 2004 on the files of the Sub Court, Cherthala. The appeal before the first appellate court arose from the judgment and decree in O.S. No.398 of 1989 of the Additional Munsiff Court, Cherthala. The suit was one for the declaration of title and for partition.
2. The brief facts necessary for the disposal of this appeal are as follows:
The plaintiffs 1 and 2 and defendants 4 and 21 are the children of the 3 rd defendant by name, Sarojini Amma. Leskhmi Amma, the mother of Sarojini Amma, is no more. Defendant No.1 (Karunakaran Pillai), defendant No.2 ( Laskhmanan Pillai), and defendant No.3 (Sarojini Amma) are the children of Lekshmi Amma. The 5th defendant, Sankara Pillai is the brother of Lekshmi Amma. The plaint A schedule property consists of 24 cents in Survey No.38/13, 37/4A, 37/4B and 37/6A of Thykkattussery Village, was allotted to the share of the sakha tarwad of Lekshmi Amma by virtue of the partition deed RSA NO.200 OF 2018 8 2025:KER:61200 No.1264/1108 ME. The said property was subsequently partitioned among the sakha members by virtue of a partition deed in the year 1109 ME, and 8½ cents of property described as 'A' schedule was allotted to the share of one Parvathi Amma and her children, by name Sankaran and Leskhmi. The plaint B schedule property having an extent of 9 ½ cents was allotted to the share of Kalyaniamma and her children. While so, Parvathi Amma and Sankaran, who are the sharers along with Lakshmi Amma over the plaint A schedule property, had released their rights in favour of Leskhmi Amma and her children. But, in the release deed, the survey number of the property was mistakenly stated as 38/15 instead of describing it as survey 38/13, 37/4A, 37/4B and 37/6A. Though in the document, it is stated that the property has an extent of 18½ cents, they had actually obtained only 14 cents. The plaint B schedule property, having an extent of 11 cents comprised in survey No.38/15 of the same village, was allotted to the share of Sankaran Pillai and Ayyappan Pillai by virtue of partition deed No.1264/1108 ME. They had executed a mortgage deed (Nadappupanayadharam) in favour of one Kochu Parvathi Amma of Karumakkil Puthenveedu by virtue of deed No.1406/1108 ME. While so, Leskhmi Amma purchased the right of the mortgagee, Kochu Parvathi Amma, over the plaint B schedule property by virtue of deed No.273/1121 ME, and, thereafter, she was in absolute and exclusive possession and enjoyment of the plaint B schedule property till her death. After RSA NO.200 OF 2018 9 2025:KER:61200 her death, the plaint B schedule property devolved upon the plaintiffs and defendants 1 to 4 by way of succession. The executants of the mortgage deed had lost the right of redemption due to the efflux of time. The plaint C schedule property is having an extent of 39¾ cents comprised in survey No.58/3 of the Thycattussery village also absolutely belonged to Leskhmi Amma by virtue of sale deed No.3392/1951 and 1780/1953 and that, after the death of Leskhmi Amma, the property also devolved upon the plaintiffs and defendant Nos.1 to 4 by succession. The plaint A, B, and C schedule properties are thus in co- ownership of the plaintiffs and the defendants 1 to 4. It is further alleged that the 5th defendant was managing the affairs as an agent of the plaintiffs and defendants 1 to 4. Alleging that the defendants Nos.1, 2 and 5 are misappropriating the income from the plaint schedule property, the suit for partition was filed.
Defendants 1 to 4, 7, and 9 to 32 appeared before the trial court. The defendants 5, 6, and 8 were set ex parte. Defendants 1 and 2 resisted the suit, contending that the suit had been instituted at the instigation of the 3rd defendant. Defendant Nos.1 to 3 and 5 had effected partition of the Tarwad properties, including the properties scheduled in the plaint, by virtue of partition deed No.3057/1976, and ever since the partition, the parties were enjoying their respective shares. The plaintiffs were born after the enactment of the Kerala Joint Hindu Family System (Abolition) Act, 1975, and hence are not entitled to claim any right over the plaint RSA NO.200 OF 2018 10 2025:KER:61200 schedule properties. The partition between defendants 1 to 3 and defendant No.5 having been effected in the year 1976, substantial improvements have been made, and the plaintiffs are not entitled to get any mean profits. The 7th defendant, who is an intermediary, resisted the suit, contending that Sarojini Amma had instituted O.S. No.290 of 1988 against the 7th defendant. The plaintiffs have no bona fides in instituting the suit, and that the plaint schedule properties are lying in common is also denied. The mother of the 7th defendant had purchased the plaint schedule property by sale deed No.189/1110 ME, and the property is actually located in Survey No.38/15 of the Thycattussery village, but it was mistakenly described as lying in Survey No.38/13 in the previous deeds. Subsequent to the partition deed in 1108 ME, the properties were again partitioned in 1109 ME. The members of the Sakha of the Tarwad of the plaintiffs have title only over the property comprised in survey No.38/13, and that the property located immediately on the eastern side of 9½ cents belonged to the 7th defendant. The 7th defendant further preferred a counterclaim to declare her right over the B schedule property in the plaint, and it is also challenged by the plaintiffs. The present suit is to circumvent any decree that is likely to be passed in the earlier suit. Therefore, the right, title, and interest of the 7th defendant over the counterclaim property is sought to be declared. The defendants also filed a written statement to the counterclaim, opposing the claim of the counterclaim plaintiffs. On behalf of the plaintiffs, RSA NO.200 OF 2018 11 2025:KER:61200 Exts.A1 to A11 were marked, and PW1 was examined. On behalf of the defendants, Exts.B1 to B11 were marked. Exts.C1 to C1 series were marked as Court exhibits. No oral evidence was adduced on the side of the defendants. On the basis of the pleadings and documentary evidence, the trial court framed the following issues for consideration:
1. Is the suit maintainable ?
2. Whether the plaintiffs are entitled to get a decree for declaration of title over plaint B schedule property (reframed)?
3. Whether the plaint schedule properties are partible ? If so are the plaintiffs entitled to get any share ?
4. Is the counter claim petitioner (7th defendant) entitled to declare her title over 9 ½ cents in plaint B schedule property (reframed)?
3. Is the claim of adverse possession and limitation raised by the 20th defendant is true and correct ?
6. Whether the share of profits sought for is allowable ? If so it's quantum ?
7. Reliefs and costs.
3. On appreciation of the oral and documentary evidence, the trial court proceeded to pass a preliminary decree directing the partition of the plaint schedule property and allotting the plaintiffs' 2/7 share of the plaint schedule properties. The quantum of mense profits was relegated to the final decree proceedings. While holding so, the right, title and interest over the plaint C RSA NO.200 OF 2018 12 2025:KER:61200 schedule property in favour of Leskhmi Amma was also upheld by the trial court since consequent to the death of Sankara Pillai, the entire plaint schedule property devolved upon the Leskhmi Amma who was the 'Karanavathy' of the 'Tarwad' and therefore the property devolved to the benefit of the other members of the 'Thavazhi'. Though the defendants 1 and 2 filed a written statement, they remained ex parte. Defendants 5, 6, and 8 were also set ex parte since they failed to appear before the trial court on receipt of the summons. Aggrieved by the judgment and decree, the 7th defendant, Smt. Padmavathy Amma approached the Sub Court, Cherthala in A.S. No.111 of 2004. On receipt of the summons in the appeal, respondents 5 and 6 (namely the 1st and 2nd defendants) filed a cross objection questioning the judgment and decree of the trial court. Pending appeal, the 6th respondent/defendant No.2 in the suit died, and his legal heirs were impleaded as respondents Nos.34 to 36. By judgment dated 16.11.2017, the Sub Court dismissed the appeal and the cross objection. Aggrieved by the aforesaid judgment, the cross objectors have come up in the present appeal. This Court, on 19.02.2018, admitted the appeal on the following substantial questions of law:
" 1. Were not the courts below in error in holding that the plaint schedule properties are tarwad properties ignoring the intrinsic evidence in the form of the recitals in the title deeds that the same are self acquisitions?
2. Whether the court below was in error in ignoring documentary proof as to the nature of the properties and relying upon extraneous RSA NO.200 OF 2018 13 2025:KER:61200 evidence to find that the properties are tarwad properties?"
4. Heard Sri. P.C. Chacko, the learned counsel appearing on behalf of Sri. Azad Babu, the learned counsel appearing for the appellants and Dr. Sankarjee, the learned counsel appearing for the respondents 9 to 12. There is no representation on behalf of the other respondents when the matter is taken up for hearing.
5. The learned counsel appearing for the appellants submitted that the trial court failed to appreciate the contents of the documents, which unequivocally show that the acquisition of the property by Leskhmi Amma was a self- acquisition and not for the benefit of the 'Thavazhi'. The trial court went wrong in analysing the flow of title of the parties based on the documents and evidence in the present case. The trial court ought to have found that, the plaintiffs are not entitled to maintain the suit in respect of the plaint schedule property. It is further pointed out that insofar as the plaint schedule properties are concerned, with the members of the 'Tarwad' of Leskhmi Amma, a partition was executed in the year 1976, and therefore, the joint status was severed and the plaintiffs cannot claim right, title and interest over the property of the other defendants. Extensive reliance is placed on the contents of the title documents to raise an objection as regards the findings of the trial court that the acquisition by Leskhmi Amma was for the benefit of the 'Thavazhi'. At any rate, it is pointed out that as far as the RSA NO.200 OF 2018 14 2025:KER:61200 plaint C schedule property is concerned, it is a self-acquired property of the husband of Smt. Leskhmi Amma and under no stretch of imagination, the same could be held to be partible. It is further submitted that, the property of a female hindu would devolve only in terms of Section 14 of the Hindu Succession Act, and, therefore, the right of survivorship is lost consequent to the promulgation of the Hindu Succession Act, 1956. He further pointed out that, in terms of Section 7 of the Kerala Joint Hindu Family System (Abolition) Act, the properties of a 'Marumakkathayi', who dies interstate will be governed by Section 17 and not by right of survivorship. These crucial aspects have been completely lost sight of by the trial court as well as the first appellate court while decreeing the suit. In support of his contentions, the learned counsel relied on the following judgments of the Supreme Court as well as this Court.
1. Madhavi Amma v. Kalliani Amma [1988 (2) KLT 964]
2. Mathevan Pillai v. Neelakanta Pillai, Bhagavathi Pillai Thankachi [1952 KHC 132]
3. Chellamma Kamalamma v. Narayana Pillai [1993 (1) KLT 174 (FB)]
4. Achuthan Nair v. Chinnammu Amma and Others [AIR 1966 SC 411]
5. Kalianikutty Amma v. Devaky Amma [1950 KHC 54] RSA NO.200 OF 2018 15 2025:KER:61200
6. Leela Amma and Others v. Aravindaksha Menon and Others [2012 KHC 169 (DB)]
7. S. Subramanian vs. S. Ramasamy and Others [2019 (6) SCC 46]
8. S.K. Bhikan, S/o SK Noor Mohd. Vs. Mehamoodabee, W/o SK Afzal and Others [2017 (5) SCC 127]
9. Mahant Dhangir and Another v. Madan Mohan and Others [1987 KHC 785]
10. Arunachala Gounder (dead) by Legal Representatives vs. Ponnusamy and Others [2022 (11) SCC 520]
6. Per contra, Dr. V.N. Sankarjee, the learned counsel for the respondents 9 to 12, raised a preliminary objection regarding the maintainability of the appeal. According to the learned counsel, the present appellants are defendants 1 and the legal heirs of the 2nd defendant, who remained ex parte before the trial court. Pertinently, the defendants 1 and 2 filed a written statement and then remained ex parte and therefore did not adduce any oral or documentary evidence and hence cannot be heard to contend that the findings of the trial court are vitiated. It would have been perfectly open for them to file an appeal against the judgment and decree of the trial court, notwithstanding the fact that they had remained ex parte. However, they did not file an appeal, and a cross-objection was preferred in an appeal against the judgment and decree by the 7th defendant. The appeal, as far as RSA NO.200 OF 2018 16 2025:KER:61200 the 7th defendant is concerned, was only in relation to an extent of property in the plaint B schedule property, and therefore the cross objection can only relate to qua the appeal by the 7th defendant and not to reopen the judgment and decree in respect of plaint A and C schedule properties. In support of his contention, the learned counsel relied on the decision of the Supreme Court in Panna Lal vs State of Bombay and Others [1963 KHC 648] and also the decision of the Division Bench of the Madhya Pradesh High Court in Shazadi Begum vs. Vinod Kumar and Another [1978 KHC 1717]. It is further contended that the parties are admittedly governed by Marumakkathayam law. There is a presumption as regards the acquisition by Lekshmi Amma for the benefit of the 'Thavazhi'. In support of his contention, the learned counsel relied on the decision of the Supreme Court in Ramachandran vs. Vijayan [2024 KHC 6645]. Though the learned counsel did not dispute the proposition that, as far as the construction of a document is concerned, the same may amount to a substantial question of law, and it is not possible to read the documents in question as one conferring the right of Leskhmi Amma alone. A reading of the release deed would show that the release in respect of the property has been given to Leskhmi Amma, along with her minor children, and therefore, Leskhmi Amma forms a 'Thavazhi' by herself along with her children. Insofar as the plaint C schedule property is concerned, according to Dr. Sankarjee, the learned counsel for the respondents 9 to 12, no RSA NO.200 OF 2018 17 2025:KER:61200 doubt, the plaint C schedule property stood in favour of Sankaran Pillai, the husband of Leskhmi Amma, but, consequent to the death of Sankaran Pillai, the property devolved on Leskhmi Amma and later, to the benefit of the members of the 'Thavazhi'. Therefore, the learned counsel submitted that the trial court as well as the first appellate court have rightly appreciated the evidence on record and concurrently found that the plaintiffs are entitled to a decree for partition. The substantial question of law, even if framed by this Court, need not be necessarily answered in favour of the appellants in the light of the fact that no independent appeal has been preferred by the appellants against the judgment and decree, and thus the appeal by itself was not maintainable, and accordingly prayed for dismissal of the appeal.
7. I have considered the rival submissions raised across the Bar and have perused the records, and also the judgments rendered by the trial court as well as the first appellate court.
8. On the basis of the arguments advanced across the bar, especially touching upon the maintainability of the appeal, this Court framed the additional substantial question of law for consideration.
" Whether the cross objection preferred by the defendant herein was maintainable in an appeal preferred by the 7th defendant, the scope of which was confined to one item of property alone"
RSA NO.200 OF 2018 18 2025:KER:61200
9. Two issues that need to be addressed by this Court in this judgment while answering the first and second substantial questions of law.
"a. Whether, on the construction of the document, is it possible to infer that the properties devolved upon Smt. Lekshmi Amma has the characteristics of a self-acquired property, or the acquisition is for the benefit of 'Thavazhi'."
Addressing this issue would automatically answer the questions of law framed by this Court at the time of admission. However, this Court needs to address another issue.
"b) Whether the cross objection out of which the present regular second appeal arises was maintainable at all before the first appellate court."
10. Pertinently, the issue regarding the maintainability of the appeal was never addressed before the first appellate court, but that by itself will not denude the authority of this Court to go into the said question, especially since it certainly has a bearing on the outcome of the present appeal. Therefore, notwithstanding the framing of the questions of law, this Court, in exercise of its power under sub- section (5) of Section 100 of the Code of Civil Procedure framed the above question of law.
11. This Court will address the maintainability of the appeal before RSA NO.200 OF 2018 19 2025:KER:61200 incidentally pronouncing upon the other substantial questions of law framed by this Court, since it touches the very existence of the appeal before the lower appellate court.
12. Section 96 of the Code of Civil Procedure (C.P.C) deals with an appeal from the original decree. Section 96 reads as under:
96. Appeal from original decree:
(1) Save where otherwise expressly provided in the body of this Code or by any other law for the time being in force, an appeal shall lie from every decree passed by any Court exercising original jurisdiction to the Court authorized to hear appeals from the decisions of such Court.
(2) An appeal may lie from an original decree passed ex parte . (3) No appeal shall lie from a decree passed by the Court with the consent of parties.
(4) No appeal shall lie, except on a question of law, from a decree in any suit of the nature cognizable by courts of small causes, when the amount or value of the subject-matter of the original suit does not exceed [ten thousand rupees].
13. On a reading of Section 96 of the C.P.C., it appears that the scope of an appeal under Section 96 will have to be confined to the challenge raised against an original decree, though passed ex parte. This necessarily means that it would apply only to the extent the person is aggrieved. Order 41 Rule 1 speaks about the 'Form of an appeal', and Rule 2 states about the 'grounds which may be taken RSA NO.200 OF 2018 20 2025:KER:61200 in appeal'. The entitlement to prefer a cross objection or cross appeal is contained under Order XLI Rule 22, which reads as under:
"22. Upon hearing, respondent may object to decree as if he had preferred a separate appeal.
(1) Any respondent, though he may not have appealed from any part of the decree, may not only support the decree [but may also state that the finding against him in the Court below in respect of any issue ought to have been in his favour;
and may also take any cross-objection] to the decree which he could have taken by way of appeal, provided he has filed such objection in the Appellate Court within one month from the date of service on him or his pleader of notice of the day fixed for hearing the appeal, or within such further time as the Appellate Court may see fit to allow.
Explanation-
A respondent aggrieved by a finding of the Court in the judgment on which the decree appealed against is based may, under this rule, file cross-objection in respect of the decree in so far as it is based on that finding, notwithstanding that by reason of the decision of the Court on any other finding which is sufficient for the decision of the suit, the decree, is, wholly or in part, in favour of that respondent.
(2) Form of objection and provisions applicable thereto- Such cross-objection shall be in the form of the memorandum, and the provisions of rule 1, so far as they relate to the form and contents of the memorandum of appeal, shall apply thereto.
RSA NO.200 OF 2018 21 2025:KER:61200
(3) [xxx]
(4) Where, in any case in which any respondent has under
this rule filed a memorandum of objection, the original appeal is withdrawn or is dismissed for default, the objection so filed may nevertheless be heard and determined after such notice to the other parties as the Court thinks fit.
(5) The provisions relating to appeals by indigent persons shall, so far as they can be made applicable, apply to an objection under this rule."
14. A glance at Order XLI Rule 22 will show that the respondent in an appeal is no doubt entitled to raise an objection against a part of the decree, notwithstanding the fact that he has preferred an appeal. But, in addition to that, he is given the liberty to file a cross appeal. Though, it may appear that the entitlement to prefer a cross objection is not circumscribed by any conditions, it is not so. The cross objection preferred by the appellants herein could have been stated to be perfectly maintainable if the 7th defendant had appealed against the judgment and decree as a whole. Pertinently, the rights of the 7 th defendant and also the plaintiffs and the appellants herein do not go together. It must be remembered that the 7th defendant had raised an independent right over the plaint B schedule property by virtue of a sale deed which was not found in her favour. Be that as it may, after the dismissal of the appeal, in the absence of any further appeal carried forward before this Court by the 7th defendant, the issue as regards RSA NO.200 OF 2018 22 2025:KER:61200 the entitlement of the 7th defendant has to be rested there.
15. Coming back to the sustainability of a cross objection in an appeal which is limited to an independent right claimed by the 7 th defendant, can it be said that a cross objection seeking to reopen the entire findings qua the plaintiffs and defendants 1 and 2 is the prime consideration to be bestowed upon by this Court. In Panna Lal vs. State of Bombay and Others [AIR 1963 KHC 648], the Constitution Bench of the Supreme Court considered the scope of Order XLI Rule 22 of the Code of Civil Procedure. Paragraph No.18 of the aforesaid judgment reads as under :
In our opinion, the view that has now been accepted by all the High Courts that Order 41, R. 22 permits as a general rule, a respondent to prefer an objection directed only against the appellant and it is only in exceptional cases, such as where the relief sought against the appellant in such an objection is intermixed with the relief granted to the other respondents, so that the relief against the appellant cannot be granted without the question being re- opened between the objecting respondent and other respondents, that an objection under Order 41, Rule 22 can be directed against the other respondents, is correct.
Whatever may have been the position under the old S. 561, the use of the word "'cross-objection" in Order 41 Rule 22 expresses unmistakably the intention of the legislature that the objection has to be directed against the appellant. As Rajammannar C. J., said in ILR 1950 Mad. 874:AIR 1950 Mad. 379(FB) "The legislature by describing the objection which could be taken by the respondent as a "cross-objection" must have deliberately adopted the view of the other High Courts. One cannot treat an objection by a respondent in which the appellant has no interest as a cross-objection. The appeal is by the appellant against a respondent, the cross objection must be RSA NO.200 OF 2018 23 2025:KER:61200 an objection by a respondent against the appellant".
We think, with respect, that these observations put the matter clearly and correctly. That the legislature also wanted to give effect to the views held by the different High Courts that in exceptional cases as mentioned above an objection can be preferred by a respondent against a correspondent is indicated by the substitution of the word "appellant" in the third paragraph by the words "the party who may be affected by such objection."
16. The Supreme Court unequivocally held that the use of the word cross objection under Order XLI Rule 22 expresses unmistakably the intention of the legislature that the objection has to be directed against the appellants. This decision was followed by the Bench decision of the Madhya Pradesh High Court in Shazadi Begum vs. Vinod Kumar and Another [1978 KHC 1717], which held that Order XLI Rule 22 cannot be directed against the other respondents. Paragraph Nos.6 & 7 of the judgment read as under:
6. The respondent Gani Mohammad has also filed a cross-
objection against the decree by the trial Court. The cross- objection pertains to the rate of interest awarded against Gani Mohammad. In our opinion, the cross-objection is not maintainable under Order 41, Rule 22, C.P.C. In this connection reference may be made to Pannalal v. State of Bombay, AIR 1963 SC 1516 wherein their Lordships have been pleased to lay down that Order 41, Rule 22 permits, as a general rule, a respondent to prefer an objection directed only against the appellant and it is only in exceptional cases such as where the relief sought against the appellant in such an objection is intermixed with the relief granted to the other respondents, so that the relief against the appellant cannot be granted without the question being reopened between the objecting respondent and other respondents that an objection under Order 41, Rule 22 can be directed against the other respondents. Such is not the situation in the present case.
RSA NO.200 OF 2018 24 2025:KER:61200 No relief is sought against the appellant who has no interest in the cross-objection and, therefore an objection under Order 41, Rule 22 cannot be directed against the other respondents. In this view of the matter, the cross-objection under Order 41, Rule 22, C.P.C. by the respondent Gani Mohammad is not maintainable.
7. Mr. K. S. Agarwal submitted, in the alternative, that relief may be granted to his client under Order 41, Rule 33, C P.C. This submission, in our opinion, is also devoid of substance. In Pannalal v. State of Bombay (AIR 1963 SC 1516) (supra) it was also observed that the wide wording of Order 41, Rule 33 was intended to empower the appellate court to make whatever order it thinks fit, not only as between the appellant and the respondent but also as between a respondent and a respondent. It empowers the appellate court not only to give or refuse to the appellant by allowing or dismissing the appeal but also to give such other relief to any of the respondents as 'the case may require'.
17. However, Sri. P.C. Chacko, the learned counsel for the appellants, raised a different perspective on the issue. According to the learned counsel, in a cross objection preferred by the appellant, the lower appellate court could have certainly invoked the powers under Order XLI Rule 33 and set aside the judgment and decree to the extent it goes contrary to the evidence and law. However, this Court is afraid that the said contention cannot be accepted. Order XLI Rule 33 no doubt enables the court to pass any decree and make any order in favour of all or any of the respondents or parties, although such respondents or parties may not have filed an appeal. The power under Order XLI Rule 33 cannot be understood as one enabling the appellate court to exercise an unlimited power to set naught a decree by reopening the entire findings of the trial court, notwithstanding the RSA NO.200 OF 2018 25 2025:KER:61200 fact that the aggrieved party has not filed an appeal. Accepting the contentions of the learned counsel for the appellant would lead to an anomalous situation where, as soon as an appeal is preferred, the appellate court would be given unbridled power to sit over the judgment of the trial court notwithstanding the fact that the aggrieved party has not preferred an appeal. It is not possible to read such a wide power under Order XLI Rule 33.
18. The power under Order XLI Rule 33 has to be understood, enabling the appellate court to exercise its discretionary powers to modify a decree against the non-appealing parties also. In order to exercise the said power, there should be an appeal as against the entire findings of the trial court and not confined to a part of the decree. Although, it is possible to infer that while considering the appeal against a part of the decree, the first appellate court finds that, the decree is to be set aside and, as a result of the setting aside the decree, it will result an inconsistent decree against the respondents who are not appealed, may exercise the power under Order XLI Rule 33 can be exercised and the decree against the non-appealing parties can also be set aside. Similarly, in an appeal against a part of the decree, the appellate court modifies the decree, which would also result in an inconsistent decree; it is possible to have the power exercised. But, it would be wholly inappropriate to hold that the power under Order XLI Rule 33 enables the first appellate court to revisit the entire findings of the trial court, as against a RSA NO.200 OF 2018 26 2025:KER:61200 person who has not appealed against the portion which he is aggrieved. This Court is not persuaded to hold that the legislature intended to give such wide power to the appellate court to revisit the entire findings of the trial court, notwithstanding the fact that the party who is aggrieved by such findings has not appealed. Therefore, it is inevitable for this Court to hold that the cross objection preferred by the appellant was not maintainable before the first appellate court. Accordingly, the question of law framed by this Court is answered in favour of the respondents.
19. Normally, as a result of answering the above questions of law in favour of the respondents, the entire scope of the appeal will collapse. However, in order to ascertain whether there is any scope for interference as far as the other questions are concerned, this Court decided to test the arguments of the learned counsel for the appellants. The primary argument raised by the learned counsel for the appellant is regarding the devolution of title over the properties covered by Ext.A3 release deed. A cursory glance at the contents of Ext.A3 would show that all other sharers had relinquished the rights over the plaint schedule property in favour of Lekshmi Amma and her minor children. It is indisputable that the parties are governed by pristine Marumakkathayam law prior to its abolishment by the Kerala Joint Hindu System (Abolition) Act, 1975. That be so, it is inescapable to conclude that the properties devolved upon Lekshmi Amma were RSA NO.200 OF 2018 27 2025:KER:61200 solely for the benefit of the Thavazhi.
20. The learned counsel appearing for the appellants would point out that the property in question is that of Lekshmi Amma, who was governed by the Marumakkathayam law, and therefore, on the death of 'Marumakkathayi', the property will devolve upon the interstate succession in terms of Section 17 of the Hindu Succession Act. However, it is pertinent to note that the defendants 1 and 2 had no such case before the trial court. They remained ex parte. Even if they are entitled to raise the aforesaid plea, it must be noted that the evidence adduced by the parties in this case does not persuade this Court to hold that the properties held by Lekshmi Amma were self-acquired properties and therefore, on her death, the provisions of Section 17 of the Hindu Succession Act would apply. It is also indisputable that the plaintiffs were born before 1.12.1976. If that be so, they cannot be denied the right by birth. Section 17 of the Hindu Succession Act will not apply inasmuch as the plaintiffs derived their right under Section 3 of the Kerala Joint Hindu Family System (Abolition) Act, 1975. That being so, there is no merit in the contention of the learned counsel for the appellants that the properties would devolve upon the heirs of Lekshmi Amma, going by the provisions of Section 14 of the Hindu Succession Act, 1956.
21. As far as the application of Section 14 of the Hindu Succession Act is concerned, it is nobody's case that the properties were devolved only in the order RSA NO.200 OF 2018 28 2025:KER:61200 of succession under Section 14. On the contrary, even during the lifetime of Lekshmi Amma, the parties reduced their bargain in writing by virtue of a partition deed in the year 1976. The larger question before this Court is whether the said partition deed is binding upon the plaintiffs. Inasmuch as this Court has found that the plaintiffs were born prior to 1.12.1976, the execution of the partition deed amongst the members of the Thavazhi of Lekshmi Amma, excluding the plaintiffs, is not binding upon them. Therefore, the findings of the trial court on this point do not require any interference.
22. It is next contended that the construction of the document, which itself qualifies as a question of law, should persuade this Court to hold that the acquisition of the plaint schedule properties by Lekshmi Amma is a self-acquired property and therefore the plaintiffs have no claim for partition. No doubt, the learned counsel for the appellants is right in contending that a construction of a document by itself forms a substantial question of law for consideration by this Court. Hence, this Court had proceeded to look into the contents of the documents in question in order to find out whether the acquisition made by Lekshmi Amma was on her own or on behalf of the Thavazhi. In order to dispel any doubt as regards the devolution of property into the hands of Lekshmi Amma, it will be worthwhile to extract the opening part of Ext.A3.
" ആയിരത്തിത ൊള്ളൊയിരത്തി അൻപത്തിഅഞ്ചു മൊർച്ചുമൊസം പതത്തൊൻപ ൊം ിയ്യ ി ത ക്കൊട്ടുശേരി വിശലേജ് RSA NO.200 OF 2018 29 2025:KER:61200 ശ വർവട്ടംമുറിയിൽ ഓശേഴത്തുനിന്ും കിഴശക്ക ഓശേഴത്തു ചിറയിൽ ൊമസിക്കും പട്ടൊർയ്യ സ്ത് ീ പൊർവ്വ ി അമ്മ മകൾ ഗൃഹശ ൊലി മുപ്പ ുവയസ്സുള്ള ലക്ഷ്മി അമ്മയുശേയും േിയൊളുതേ മക്കളും തമനറുകളും വിദ്യൊഭ്യൊസക്കൊറരും േങ്കരപ്പിള്ളയുതേ അനന്തരവരുമൊയ പ ിനൊലുവയസ്സു കരുേൊകരൻ പത്തുവയസു സശരൊ നി എഴുവയസ്സുലക്ഷ്മേൻ ഇവരുശേയും ശപർക്കു േിയിൽ േി ൊ ി അയ്യപ്പൻപിള്ളയുതേ അനന്തരവൻ കച്ചവേം മുപ്പത്തൊറുവയസ്സുള്ള േങ്കരപ്പിള്ളയും േിയൊന്റെ മൊ ൊവ് േിയിൽ സ്ത് ീശ വി അമ്മ മകൾ ഗൃഹശ ൊലി അറുപത്തി ഒന്ു വയസ്സുള്ള പൊർവ്വ ി അമ്മയും കൂേി എഴു ിതക്കൊേുത്തകൂട്ടവകൊേഒഴിവുമുറി അരൂക്കുറ്റി സബ്ബ് ര ിസ്ത് ൊഫീസുവക ൧൦൯ തല ൨൩൧൦ നമ്പർ ര ിസ്ത് ഭ്ൊഗ ഉേമ്പേി ്പകൊരം നമ്മൾക്കു ഏ പട്ടികയൊയും ്കയ വി്കയ സർവ്വ സവൊ ്ന്തമൊയും ്പശ യകം ിരിച്ചുകിട്ടിനമ്മൾതകവേം വച്ചും കരം തകൊേുത്തും വകനിർത്തുബൊധ്യ ീർത്തും തവക്കം ര ിസ്ത് ിൽ ൧൧൧൨ൽ ൧-❩൦ പുസ്ത കം ൩൧-❩൦ വൊലയം ൮൩ മു ൽ വേങ്ങളിൽ ൩൧൯൩-❩൦ നമ്പരൊയി ഒഴിഞ്ഞു വൊങ്ങിയും അനുഭ്വിച്ചുവരുന് ൊയ ൊതഴ വിവരിക്കുന് വസ്ത ുവകകളിൽ ഞങ്ങൾക്കുള്ള ആറിൽ രണ്ടു പകരി അവകൊേം നിങ്ങൾക്കു ഒഴിഞ്ഞു ന് ിന് ്പ ിഫലം രുവൊൻ നിശ്ചയിച്ച രൂപ ൧൦൦ ഈ രൂപ നൂറും നിങ്ങശളൊേു മുൻ വേ പല ിൽ പറ്റിയിട്ടുള്ള വക ശരണ്ട ൊതകവക വച്ചു പറ്റി ശബൊദ്ധ്യതപ്പട്ടു തകൊണ്ടു ്പസ്ത ൊപ വസ്ത ുവകകളിൽ ഞങ്ങൾക്കുള്ള സർവ്വൊവകൊേവും ബൊധ്യ യും -- േങ്കരപ്പിള്ള RSA NO.200 OF 2018 30 2025:KER:61200 ഒപ്പ് പർവ്വ ിഅമ്മ ഒപ്പ്- ੨ - വിട്ടു നൊളി ു തകവേതപ്പേുത്തി നേപ്പൊക്കി ഒഴിഞ്ഞു ന്ിരിക്കയൊൽ നേന്ും സർക്കൊർ കരം നിങ്ങളുതേ ശപരിൽ കൂട്ടി ീർത്തും ശപരു മൊറി പട്ടയം പിേിച്ചും ്കയ വി്കയ സർവ്വസവ ്ന്തശത്തൊേു കൂേി എന്ൊളും അനുഭ്വിച്ചു തകൊള്ളത്തക്കവണ്ണം സമ്മ ിച്ചും ഭ്ൊഗ ഉേമ്പേിയും മുൻ ്പമൊേങ്ങളും ഇത ൊന്ിച്ചു ന്ും എഴു ിത്തന്ിരിക്കുന്ു. ''
23. A reading of the above would dispel any doubt, as regards the manner in which the property is devolved upon Lekshmi Amma. Read as may, this Court could not construe that the document as one giving absolute right in favour of Lekshmi Amma, which would entitle her to take the properties in question on her own. On the contrary, the property did devolve upon the Thavazhi of Lekshmi Amma along with Sankara Pilla, Karunakaran Pillai, Sarojini, and Lakshmanan. Once the property devolved upon the Thavazhi of Lekshmi Amma, it assumes the character of a joint property at the hands of the Thavazhi of Lekshmi Amma. It is in this context, this Court should consider the decision of the Supreme Court in Ramachandran vs. Vijayan [2024 KHC 6645] wherein, the Supreme Court approved the minority view of the Full Bench of this Court in Mary Cheriyan v. Bhargavi Pillai Bhasura Devi [1967 SCC Online Ker. 68] in which, paragraph No.43 is extracted hereunder for reference:
43. Turning our attention back to the instant facts, it is not in dispute that Parukutty Amma and her descendants formed a RSA NO.200 OF 2018 31 2025:KER:61200 thavazhi and had received the scheduled properties under item No.1 collectively. As we have already noticed above, the divergence of opinion between the minority and majority was in respect of single female(s) receiving property in partition. That obviously is not the case here. All five Judges appear to be ad idem when it comes to property being received at partition by females and members of her thavazhi. Since the properties were received by the thavazhi and not by a woman who is single, the property is unquestionably tharwad property. Para 55 of the dissenting view expressed by Govindan Nair, J. captures as to how groups inherit property post-partition and how such property continues to hold tharwad characteristics. It runs as under:
"55. It is true that a tarwad need not always break up into its ultimate components; there may be branch divisions or some members may continue joint and continue to hold property and there may be several such groups and there can be a mixture of individuals holding property obtained on partition along with groups who hold jointly property allotted to each of those groups. The distinction to notice is that those groups hold property allotted to each group jointly. No member of that group has any separate interest which he can claim as his own. His interests in the property allotted to the group is of an identical nature as the interests he had in the entire tarwad property before partition. In other words, the group holds the property with all the incidents of tarwad property as joint property. It is because property is so held as joint tarwad property that future tarwad members born in that group take an interest in the property allotted to that group."
(Emphasis supplied)
24. Therefore, as soon as Lekshmi Amma acquired the property by virtue of Ext.A3 release deed, at that time, she did not constitute a single-member Thavazhi, but, at that time, along with her children and also the mother of the plaintiffs/the 3rd defendant had certainly formed a separate Thavazhi by itself.
25. In Rohit Chauhan v. Surinder Singh [(2013) 9 SCC 419], the Supreme Court had an occasion to consider the effect of the partition of an RSA NO.200 OF 2018 32 2025:KER:61200 ancestral property. The Supreme Court held that, though the property received as share in a family partition would be considered as a separate property qua the relatives of the sharer, as soon as he marries and the moment a son is born, the property becomes a coparcenary property, and the son would acquire an interest in that property. Paragraph No.11 of the decision reads as under:
"11. ....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 the commencement of the 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 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."
26. This Court finds no reason as to why the aforesaid principle cannot be applied in a case of a joint family governed by the Marumakkathayam Law. Instead of the 'karanavar', it is the 'karanavathy' in a Marumakkathayam family who adorns the roles of the eldest member of the family. It is not disputed before this Court that Lekshmi Amma was the eldest female member of the Tarwad.
RSA NO.200 OF 2018 33 2025:KER:61200
27. In Kalyani (dead) by L.Rs Vs Narayanan and others [(1980) Supp SCC 298] the Supreme Court explaining the concept of 'tarwad" under the Marumakkattyam Law held that once the property is described as 'tarwad' property, the presumption as regards joint family exits. In the present case, defendants 1 and 2, having remained ex parte, miserably failed to prove that Lekshmi Amma, along with them, did not remain in joint and the acquisitions in her favour were self-acquired. Certainly, in the nature of the evidence adduced by the plaintiffs, this Court is not persuaded to hold that, the acquisitions by Lekshmi Amma were not for the Thavazhi. Thus, the plaintiffs who were born prior to 1.12.1976 were certainly entitled to claim a right over the properties by survivorship, and therefore, the partition deed executed in the year 1976 is not binding upon them.
28. This leads to a final issue to be addressed by this Court. As far as the plaint C schedule property is concerned, the appellants contend that it was purchased by Sankara Pillai and therefore it is a self-acquired property of Sankara Pillai, and therefore Lekshmi Amma had an independent right over the property, and thus the plaintiffs cannot claim any right, title, and interest over the property. But the fact remains that, after the death of Sankara Pillai, the property devolved upon Lekshmi Amma, consequently to the benefit of the Thavazhi. If, as contended by defendants 1 and 2/the appellants herein, that the death of Sankara RSA NO.200 OF 2018 34 2025:KER:61200 Pillai was after 1976, then property would have devolved on Lekshmi Amma independently, thereby excluding the plaintiffs from claiming any partition. However, in order to establish the said fact, it was incumbent upon the defendants to have adduced evidence. The plaintiffs had discharged the initial burden of proving that the property covered by C schedule to the plaint, also devolved upon the Thavazhi of Lekshmi Amma by inheritance, thereby, entitling the members of the Thavazhi to claim the benefit of the properties. In the absence of any contra evidence, the trial court as well as the first appellate court were perfectly justified in decreeing the suit as claimed for. So also, in view of the conscious act of the defendants 1 and 2 in not participating in the proceeding before the trial court and failing to independently question the findings of the trial court, this Court is not persuaded to answer the substantial questions of law framed as 1 and 2 in their favour.
As an upshot of these discussions, this Court finds that the appellants have not made out a case for interference. Accordingly, the appeal fails, and the same is dismissed. Respondents will be entitled to the costs of these proceedings.
Sd/-
EASWARAN S.
JUDGE
NS
RSA NO.200 OF 2018 35 2025:KER:61200
APPENDIX OF RSA 200/2018
PETITIONER ANNEXURES
ANNEXURE KERALA KAUMUDI DATED 26/1/2025
RESPONDENT ANNEXURES
ANNEXURE I TRUE COPY OF THE I.A. NO.4/2025 DATED 21.1.2025
FILED BY THE ADDITIONAL APPELLANTS IN F.D.A.
NO. 1115/2005 IN O.S. NO. 398/1989 ON THE FILE
OF THE ADDITIONAL MUNSIFF'S COURT, CHERTHALA
ANNEXURE II TRUE COPY OF THE I.A. NO.5/2025 DATED 27.3.2025
FILED BY THE ADDITIONAL APPELLANTS IN F.D.A.
NO. 1115/2005 IN O.S. NO. 398/1989 ON THE FILE
OF THE ADDITIONAL MUNSIFF'S COURT, CHERTHALA