AFA Nos. 52 & 67 of 1992

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE V.CHITAMBARESH & THE HONOURABLE MR. JUSTICE SATHISH NINAN FRIDAY, THE 2ND DAY OF MARCH 2018 / 11TH PHALGUNA, 1939 AFA.No. 52 of 1992 AGAINST THE JUDGMENT IN LAA.NO.200/1985 OF HIGH COURT OF KERALA DATED 19-11-1991 AGAINST THE JUDGMENT IN LAR.NO.11/1981 OF II ADDL. SUB COURT, KOZHIKODE DATED 29-06-1985 ## APPELLANTS/RESPONDENTS 4 TO 6: 1. ACHAYIYATH SARADA, D/O. KELU, KANAKKANCHERI, KALOOR ROAD, CALICUT-7. (DIED) 2. ACHAYIYATH DEVAKY AMMA, D/O. KELU, MANIYEDATH, NEAR KALLAI R.S. POST, PANNIYANKARA.(DIED) 3. ACHAYIYATH KAMALA, D/O. KELU, AYYAKANDI, JAYASTYLU, KARIMPANAPALAM, CALICUT. (DIED) SUPPLEMENTAL APPELLANTS: 4. M.K. SUJATHA, AGED 58 YEARS, D/O. LATE ACHAZHIYATH SARADA, KANAKKANCHERY, KALOOR ROAD, CALICUT – 7. 5. K.P.SUGANTHI, D/O. LATE ACHAZHIYATH SARADA, AGED 55 YEARS, RESIDING AT DO. DO. 6. S. SARANJANI, D/O. DO. AGED 53, RESIDING AT DO. DO. 7. K. PANKAJAKSHAN, S/O. DO. AGED 48, RESIDING AT DO. DO. 8. E. JAYADEEP KUMAR, S/O. LATE ACHAZHIYATH KAMALA, AGED 40 YEARS, 5/1656, JAYASHYLA, NEAR KARIMPANAPALAM, S.V.COLONY ROAD, CALICUT – 673 006, KALATHILKUNNU AMSOM DESOM. 9. SOBHANA, W/O. M.C.SREEDHARAN, AGED 54 YEARS, SUVARNA, 3/435-A, P.C.ROAD, WEST NADAKKAVU, CALICUT-11. 10. SASIKALA, W/O. O.SUBRAMANIAN, AGED 48 YEARS, KALA MADATHIL HOUSE, KUTHIRAVATTOM POST, CALICUT – 16, KOTTULY AMSOM PARAYANCHERI DESOM. 11. SEETHALA, W/O. SIVADAS, AGED 50 YEARS, SISIRAM, HOUSE NO.28/2216-B, MELANADANGAL PARAMBU, NELLIKODE P.O., CALICUT – 6, NELLIKODE AMSOM AND DESOM. 12. SHYLAJA, W/O. DAYANANDHAN, AGED 46 YEARS, KANDALATH HOUSE, PUTHIYANIRATH, ELATHUR POST, ELATHUR AMSOM AND DESOM. AFA52/1992 -2- 13. MOHAN RAJAN, S/O. LATE ACHAZHIYATH DEVAKY, MANIYEDATHU HOUSE, H.NO.21/235, KALLAYI POST – 673 003, PANNIYAMKARA AMSOM AND DESOM, KOZHIKODE DISTRICT. (THE LEGAL REPRESENTATIVES OF THE DECEASED 1ST APPELLANT ARE IMPLEADED AS SUPPLEMENTAL APPELLANTS 4 TO 7 AS PER ORDER DT.14.12.1998 IN C.M.P.7052/1998) (THE LEGAL REPRESENTATIVES OF THE DECEASED THIRD APPELLANT ARE IMPLEADED AS SUPPLEMENTAL APPELLANTS 8 TO 12 AS PER ORDER DATED 6.6.2007 IN I.A.954/2004). (THE LEGAL HEIR OF THE DECEASED 2ND APPELLANT IS IMPLEADED AS 13TH SUPPLEMENTAL APPELLANT AS PER ORDER DT.3.6.2014 IN I.A.NO.1607/2012) A4 TO A13 BY ADVS.SRI.G.SHRIKUMAR (SR.) SMT.M.A.ZOHRA RESPONDENTS/APPELLANT & RESPONDENTS 1, 2, 7 TO 19: 1. A.SHANMUGHAM, S/O. CHOYI, KASABA AMSOM, KARYAKUNNU DESOM, KOZHIKODE TALUK. (DIED) 2. THE SPECIAL TAHSILDAR, L.A., KOZHIKODE. 3. THE DISTRICT COLLECTOR, KOZHIKODE. 4. ACHAZHIYATH JAYARAMAN, S/O. CHOYI, 17/101, NEAR S.K.TEMPLE, CALICUT. (DIED) 5. ACHAZHIYATH LEELA, MANIKKAN VEEDU, NEAR WATER TANK, PUTHIYARA, CALICUT-4. (DIED) 6. -DO- BHARATHI, EAST OF STADIUM, CALICUT-4. (DIED) 7. -DO- NALINI, MUNDERI HOOUSE, MAVOOR ROAD, NEAR K.S.R.T.C. BUS STAND, CALICUT. (DIED) 8. -DO- SREENIVASAN, S/O. DAMODARAN, KOLANGARAKATH HOUSE, PUTHIYANGADI, CALICUT. 9. C.M.SAKUNTHALA, W/O. CHERUKUDY MATTIVAYALIL DAMODARAN, P.O. ELATHUR, CALICUT DISTRICT. (DIED) 10. MANIYIL PADMINI, KODICHURA, KUTTIKKATTOOR, VIA MAVOOR, CALICUT. (DIED) 11. LALITHA, W/O. VENGALATH VASUDEVAN, KOZHIKODE P.O., CHALAPPURAM, CALICUT – 2. 12. M. SHYAMALA, C/O. MADAYI SREENIVASAN, ERAINPALAM POST, PHED ROAD, CALICUT. AFA52/1992 -3- 13. ADICHIKKAT SIVADASAN, KALOOR ROAD, MANKAV, CALICUT. (DIED) 14. ADICHIKKAT LOHITHAKSHAN ALIAS UNNI, OPPOSITE KALOOR ROAD, MANKAVU, CALICUT. 15. ADICHIKKAT RAMESHAN, KOZHIKODE P.O., CHALAPPURAM, CALICUT – 2. - ADDITIONAL RESPONDENTS: 16. SAVITHRI, W/O. SHANMUGHAN, ACHAZHIYATH HOUSE, NEAR SREEKANTESWARA TEMPLE, KOZHIKODE-1. 17. RANJAN, S/O. SHANMUGHAN, RESIDING AT DO. DO. 18. SANJAY, S/O. DO. RESIDING AT DO. DO. 19. SREEJITH, S/O. DO. RESIDING AT DO. DO. DO. 20. MINI, D/O. DO. RESIDING AT DO. DO. DO. 21. HYMAVATHI, D/O. LEELA, THATTANKANDI MANIKKAN VEEDU, NEAR WATER TANK, POST PUTHIYARA, CALICUT – 4. 22. VIJAYAKUMARI, W/O. T. KRISHNAN, RESIDING DO. 23. T.M. SUBRAMANIAN, S/O. ANDIKUTTY, DO. DO. 24. T.M. RAMARAJAN, S/O. ANDIKUTTY, CHINNAMPARAMBIL HOUSE, CHALIKKAVATTOM ROAD, POST VENNALA, COCHIN-25. 25. T.M. VASANTHAKUMARI, NO.2, GANGAIYAMMAN KOVIL STREET, ROYAPETTAH, MADRAS-14. 26. VEERASENAN, S/O. NALINI, MUNDERI HOUSE, NAYKOOTTIL PARAMBU, NEAR T.V.S., MAVOOR ROAD, KOZHIKODE-1. 27. MAHITHA, D/O. NALINI, RESIDING AT DO. DO. DO. 28. SAJITH, S/O.NALINI, RESIDING AT DO. DO. 29. SHYLAJA, W/O. SIVADASAN, ADICHIKKATT HOUSE, KALOOR ROAD, KOZHIKODE-7. 30. SAJEESH, S/O. SIVADASAN, RESIDING AT DO. DO. 31. RAJEESH, S/O. SIVADASAN, RESIDING AT DO. DO. 32. SAJINI, MINOR AGED 16, D/O. SIVADASAN, RESIDING AT DO. REPRESENTED BY MOTHER AND GUARDIAN 29TH RESPONDENT SHYLAJA. 33. VINODINI VIJAYA RAJ, D/O. LATE MANIYIL PADMINI, 'LEKSHMI', THUMPAPADAM NILAM PARAMBA, KOLLATHARA P.O., KOZHIKODE, KERALA. AFA52/1992 -4- 34. PREETHY UDAYESAN, W/O. LATE UDAYESAN, KARUVAPURATH HOUSE, MOORKKANADU, PANTHEERANKAVU POST, KOZHIKODE – 673 019, KERALA. 35. LIKHY (MINOR), D/O. LATE UDAYESAN, AGED 12, KARUVAPURATH HOUSE, MOORKKANADU, PANTHEERANKAVU POST, KOZHIKODE – 673 019, REP. BY GUARDIAN AND MOTHER PREETHY UDAYESAN. 36. DAYACHITRA (MINOR), AGED 8, D/O. LATE UDAYESAN, KARUVAPURATH HOUSE, MOORKKANADU, PANTHEERANKAVU POST, KOZHIKODE – 673 019, REP. BY GUARDIAN AND MOTHER PREETHY UDAYESAN, W/O. LATE UDAYESAN. 37. SETHUMADHAVAN, S/O. LATE C.M. SAKUNTHALA, NADUVALAPPIL HOUSE, ELATHOOR POST, KOZHIKODE DISTRICT – 689 643. 38. SNEHAPRABHA, W/O. RATNASINGH, ODUKKATHIL HOUSE, VENGERI POST, KOZHIKODE DISTRICT – 673 010. 39. REENA SASIDHARAN, W/O. LATE SASIDHARAN, C/O. V.M. RAJEESH, SAITEERTH, 26/1146 B, GOVINDAPURAM POST, KOZHIKODE DISTRICT – 673 016. 40. RAKHI SASIDHARAN, D/O. LATE SASIDHARAN, C/O. V.M. RAJEESH, SAITEERTH, 26/1146 B, GOVINDAPURAM POST, KOZHIKODE DISTRICT – 673 016. 41. AISHWARYA SASIDHARAN, D/O. LATE SASIDHARAN, C/O. V.M. RAJEESH, SAITEERTH, 26/1146 B, GOVINDAPURAM POST, KOZHIKODE DISTRICT – 673 016. 42. NAVAJYOTH SHANKAR SASIDHARAN, S/O. LATE SASIDHARAN, C/O. V.M. RAJEESH, SAITEERTH, 26/1146 B, GOVINDAPURAM POST, KOZHIKODE DISTRICT – 673 016. 43. PREMALATHA, AGED 72 YEARS, W/O. BALACHANDRAN, MUNJOLI HOUSE, NEAR KUTHIRAVATTOM HOSPITAL, KUTHIRAVATTOM PO, KOZHIKODE – 16. 44. JAYAVALLI, AGED 70 YEARS, W/O. RAVEENDRAN, 'SWAROOP', CHULLIYODE ROAD, KOTTULI PO, KOZHIKODE – 16. 45. URMILA, AGED 67 YEARS, W/O. SIVARAMAN, 'GANGALAYAM', PURERIMMAL HOUSE, EDAKKARA, PAVANDOOR PO, KOZHIKODE – 28. 46. SATHEESAN E., AGED 62 YEARS, EDACHALIL HOUSE, NEAR THAVAKKULAM JUMA MASJID, ARAKKINAR PO, KOZHIKODE – 28. 47. DR. RAJANI SIVAN, AGED 60 YEARS, NELLILOT VEEDU, UDAYA NAGAR PO, NELLIKKODE, KOZHIKODE – 16. AFA52/1992 -5- 48. HAREESH E., AGED 56 YEARS, EDACHALIL HOUSE, PATTAMVEEDUPRAMBA, KUTHIRAVATTOM PO, KOZHIKODE – 16. 49. MURALI E., AGED 54 YEARS, EDACHALIL HOUSE, 'SREENANDANAM', VARIYATH PULPARAMBIL, UMMALATHUR, VELLIPARAMBA PO, KOZHIKODE -08. (ADDITIONAL RESPONDENTS 16 TO 20 ARE IMPLEADED AS THE LEGAL REPRESENTATIVES OF THE DECEASED 1ST RESPONDENT AS PER ORDER DT.27.2.2018 IN C.M.P.NO.1722/1998) (ADDITIONAL RESPONDENTS 21 TO 25 ARE IMPLEADED AS THE LEGAL REPRESENTATIVES OF THE DECEASED 5TH RESPONDENT AS PER ORDER DT.27.2.2018 IN C.M.P.NO.1265/1998) (ADDITIONAL RESPONDENTS 26 TO 28 ARE IMPLEADED AS THE LEGAL REPRESENTATIVES OF THE DECEASED 7TH RESPONDENT AS PER ORDER DT.27.2.2018 IN C.M.P.NO.1676/1998) (ADDITIONAL RESPONDENTS 29 TO 32 ARE IMPLEADED AS THE LEGAL REPRESENTATIVES OF THE DECEASED 13TH RESPONDENT AS PER ORDER DT.27.2.2018 IN C.M.P.NO.1719/1998) (ADDITIONAL RESPONDENTS 33 TO 36 ARE IMPLEADED AS THE LEGAL REPRESENTATIVES OF THE DECEASED 10TH RESPONDENT AS PER ORDER DT.27.2.2018 IN I.A.NO.1382/2006) (ADDITIONAL RESPONDENTS 37 TO 42 ARE IMPLEADED AS THE LEGAL REPRESENTATIVES OF THE DECEASED 9TH RESPONDENT AS PER ORDER DT.27.2.2018 IN I.A.NO.1761/2012) (ADDITIONAL RESPONDENTS 43 TO 49 ARE IMPLEADED AS THE LEGAL REPRESENTATIVES OF THE DECEASED 6TH RESPONDENT AS PER ORDER DT.27.2.2018 IN I.A.NO.1644/2017) (ADDITIONAL 29TH RESPONDENT IS APPOINTED AS THE GUARDIAN OF THE ADDITIONAL 32ND MINOR RESPONDENT AS PER ORDER DT.27.2.2018 IN C.M.P.NO.1347/1998) [4TH RESPONDENT DIED. HIS LEGAL HEIRS ARE ALREADY ON THE ARRAY OF PARTIES IN THE CONNECTED APPEAL, AFA.NO.67/1992 REPRESENTED BY ADV. E. NARAYANAN AND HENCE THEY NEED NOT BE IMPLEADED AS _EO NOMINE_ PARTIES IN THIS APPEAL, VIDE ORDER DT.27.2.2018 IN AFA.NO.52/1992] R2 & R3 BY SENIOR GOVT. PLEADER SRI.K.B.RAMANAND R15 & R29 TO R32 BY ADV. SRI.K.MOHANA KANNAN R16 TO R18 BY ADV. SRI.A.P.CHANDRASEKHARAN R24 BY ADV. SRI.K.P.DANDAPANI (SR.) ADV. SRI.MILLU DANDAPANI ADV. ROY THOMAS (MUVATTUPUZHA) R43 TO R49 BY ADV. ROY THOMAS (MUVATTUPUZHA) R33 BY ADV. SRI.C.KHALID R37 TO R40 BY ADV. SRI.BABU SHANKAR THIS APPEAL FROM FIRST APPEAL HAVING BEEN FINALLY HEARD ALONG WITH AFA.NO.67/1992 ON 27.2.2018, THE COURT ON 2.3.2018 DELIVERED THE FOLLOWING: ## “CR” ## V. CHITAMBARESH & SATHISH NINAN, JJ. = = = = = = = = = = = = = = = = = = = = = = = = ## AFA.Nos.52 & 67 of 1992 = = = = = = = = = = = = = = = = = = = = = = = = Dated this the 2[nd] day of March, 2018 ## Judgment ## Chitambaresh, J. 1.A dispute arose as regards the apportionment of compensation for the extent of 115 sq. ft. of land acquired by the Government which led to LAR No.11/1981 on the file of the Court of the Subordinate Judge of Kozhikode. The property forms part of about 1 acre of land purchased by three brothers by name Choyi, Kelu and Damodaran under Ext.A1 sale deed dated 25.6.1930. Choyi was at that time employed as a Post Master in a post office, Kelu as a Jamedar in a telegraph office and Damodaran as a Teacher in a school explicit from the recitals. Choyi died on 2.12.1933 AFA52 & 67/1992 -: 2 :- leaving behind his three sons and two daughters as his legal heirs who are impleaded as Claimant Nos.11 to 15 in the land acquisition reference. Kelu died on 28.4.1954 leaving behind his four daughters as his legal heirs who are impleaded as Claimant Nos.7 to 10 in the land acquisition reference. Damodaran died on 3.11.1954 leaving behind one daughter and a son who are impleaded as Claimant Nos.16 and 17 in the land acquisition reference answered by the Court of the Subordinate Judge. It appears that Claimant Nos.11, 12 and 17 who are the two sons of Choyi and one son of Damodaran subsequently executed Ext.A6 partition deed dated 4.10.1979 amongst themselves. The land of extent 115 sq. ft. which is the subject matter of the acquisition forms part of the property allotted to Claimant No.12 in Ext.A6 partition deed. - 2.The Court of the Subordinate Judge by judgment dated - 29.6.1985 held that the compensation amount is to be AFA52 & 67/1992 -: 3 :- divided into three equal shares one of which will go to Claimant Nos.7 to 10 exclusively. This was challenged by Claimant No.12 in LAA.No.200/1985 contending that he alone is entitled to the compensation for land acquisition on the strength of Ext.A6 partition deed. The learned single Judge has accepted this plea holding that the property belongs to the joint family of the three brothers over which the sons alone have right as co-parceners. The learned single Judge has allowed LAA.No.200/1985 by the impugned judgment which is challenged by Claimant Nos.8 to 10 and the legal heirs of Claimant No.7. It is reported that Claimant No.13 died on 14.11.1991 only after the hearing of LAA.No.200/1985 on 13.11.1991 and hence there could be no abatement of the appeal. No exception can also be taken to the maintainability of the Letters Patent Appeals then in view of the authoritative pronouncement in Sharada Devi v. State of Bihar [(2002) 3 SCC 705]. AFA52 & 67/1992 -: 4 :- ## 3.We heard the following counsel: i. K. Mohanakannan for legal heirs of Claimant No.7. ii.M.A.Zohra for Claimant Nos.8 to 10. iii.T.Krishnanunni(Sr.) - E. Narayanan for Claimant No.11. iv.K.Jayesh Mohankumar for Claimant No.12. v. Millu Dandapani for Claimant No.13. vi.C.Khalid for Claimant No.15. 4.There is neither pleading nor any proof that the income from an ancestral property formed the nuclei with the aid of which the three brothers - Choyi, Kelu and Damodaran - acquired the property under Ext.A1 sale deed. There was no joint tenancy or family business or any other tharwad property to indicate that the three brothers were part of a joint Hindu family as is contended. The recitals in the deed on the other hand point out that the three brothers who are the assignees AFA52 & 67/1992 -: 5 :- had independent income from different avocations in different stations. Their separate salary was obviously the source for sale consideration in Ext.A1 sale deed and they pooled their money to buy a single plot of land instead of three different property. It necessarily follows that the property so purchased under Ext.A1 sale deed is the self acquisition of the three brothers with independent effort and does not partake the character of joint family property. There is no question of blending as nobody has a case that the self acquisition of the three brothers were thrown into a common hotchpot in order to infer that the property acquired the character of joint family property. The presumption that the family continues to be joint until the contrary is proved stands rebutted in the facts and circumstances of the case. The mere fact that anyone of the brothers might have constructed a residential house therein is insufficient to uphold any community of interest or jointness as is attempted to be projected. AFA52 & 67/1992 -: 6 :- 5.Reliance was placed on Ext.A6 partition deed to contend that other property have also been dealt with thereunder indicative of the fact that the parties treated the same as joint family property. But it should be borne in mind that only Claimant Nos.11, 12 and 17 are parties to Ext.A6 partition deed and the other Claimants being not executants are not bound by the same. Any recital could be incorporated in a subsequent partition deed executed by a few of the legal heirs in order to defeat the legitimate claim of the other legal heirs of the brothers. The decision in Kelukutty and others v. Mammad and others [1972 KLT 725(SC)] is distinguishable on facts as is evident from the following observations therein: “From these decisions, it is clear that Thiyyas of former Calicut Taluk were governed by the customary law known as Makkathayam. Further as AFA52 & 67/1992 ## -: 7 :- per the Makkathayam rule of inheritance, an undivided brother of a deceased person succeeded to the self acquired property of the deceased in preference to the wife and daughter of the deceased. If that is so, the daughter's son who comes after them under the general Hindu law cannot have a superior claim unless a custom to that effect is pleaded and proved.” (emphasis supplied) The plea in essence is that the brothers of Kelu succeeded to the estate in preference to his daughters even if it is his self acquired property since the parties are Thiyyas of former Calicut Taluk. The above decision may have relevance only if Kelu remained as an undivided brother of the thavazhi which had tharwad property whereas the indications are otherwise that Kelu was a divided brother. We reiterate that there was no community of interest or joint status between Kelu and his brothers and therefore the share of Kelu should devolve on his daughters who are Claimant Nos.7 to 10. AFA52 & 67/1992 -: 8 :- 6.We set aside the judgment of the learned single Judge and declare the share of the parties over the compensation amount as follows: i. Claimant Nos.7 to 10 = 1/3[rd] share. ii.Claimant Nos.11 to 15 = 1/3[rd] share. iii.Claimant Nos.16 & 17 = 1/3[rd] share. The Appeals against First Appeal are allowed. No costs. Sd/- - V. CHITAMBARESH, JUDGE Sd/SATHISH NINAN, JUDGE Sha/260218