A.S. Nos. 752 of 1995 and 17 of 1996 (Ahmedkutty Puthalath v. Thankamani and others)

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE P.B.SURESH KUMAR** **&** **THE HONOURABLE MRS. JUSTICE M.B. SNEHALATHA WEDNESDAY, THE 10[TH] DAY OF JULY 2024 / 19TH ASHADHA, 1946 AS NO. 752 OF 1995** **AGAINST THE JUDGMENT AND DECREE DATED 23.12.1994 IN OS NO.182 OF 1990 OF ADDITIONAL SUB COURT-II, KOZHIKODE** ## **APPELLANT/4TH DEFENDANT:** **AHMEDKUTTY PUTHALATH ADVOCATE, AGED 40 YEARS, S/O.T.MOIDEEN KOYA VAIDYAR** **BY ADV.M.P.MOHAMMED ASLAM** ## **1ST RESPONDENT,RESPONDENTS 2 TO 4,RESPONDENTS 5 TO 11/PLAINTIFF,DEFENDANTS 1 TO 3,DEFENDANTS 5 TO 11:** - **1 THANKAMANI AGED 44 YEARS, W/O. KRISHNAN, RESIDING IN ELATHOOR AMSOM DESOM OF KOZHIKODE TALUK.** - **2 VISALAKSHI AGED 66 YEARS W/O. DECEASED SANKARAN (DEAD) - DO -** - **3 BEENA VIJAYAN, 35 YEARS, D/O. SANKARAN.** - **DO -** - **4 A.LAKSHMI 68 YEARS D/O. RARICHAN** - **DO -** - **5 IMBICHIAHAMMED KOYA 40 YEARS S/O. HUSSAIN - DO -** - **6 SARFUDEEN M 43 YEARS S/O . HASSAN KOYA HAJI - DO -** - **7 A.K.MOOSA 58 YEARS** ## A.S. Nos.752 of 1995 and 17 of 1996 -: 2 :- **S/O. ABOO - DO - 8 ABDURAHIMAN(DIED) 55 YEARS S/O. ABDULLA KOYA - DO - IT IS RECORDED THAT RESPONDENT NO.8 DIED AND HIS LEGAL REPRESENTATIVES ARE ALREADY IN THE PARTY ARRAY AS RESPONDENTS NOS.9 TO 11, VIDE ORDER DATED 10.7.2024 IN MEMO DATED 2.4.2019. 9 ABDULLA KOYA 28 YEARS S/O. ABDURAHIMAN - DO - 10 AYISHABI 21 YEARS D/O. ABDURAHIMAN - DO - 11 SHAKKEELA 23 YEARS D/O. ABDURAHIMAN - DO - BY ADVS. SRI.P.G.RAJAGOPALAN, SRI.K.MOHANA KANNAN, SMT.M.A.ZOHRA SRI.V.V.SURENDRAN, SRI.P.A.HARISH** **THIS APPEAL SUIT HAVING BEEN FINALLY HEARD ON 28.06.2024, ALONG WITH AS NO.17/1996, THE COURT ON 10.07.2024 DELIVERED THE FOLLOWING:** A.S. Nos.752 of 1995 and 17 of 1996 -: 3 :- ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT** **THE HONOURABLE MR. JUSTICE P.B.SURESH KUMAR** **&** **THE HONOURABLE MRS. JUSTICE M.B. SNEHALATHA** **WEDNESDAY, THE 10[TH] DAY OF JULY 2024 / 19TH ASHADHA, 1946 AS NO. 17 OF 1996** **AGAINST THE JUDGMENT AND DECREE IN OS NO.182 OF 1990 DATED 23.12.1994 OF THE SUB COURT,KOZHIKODE** **APPELLANT/2ND DEFENDANT:** **BEENA VIJAYAN D/O.SANKARAN, CHETTIPARAMBATH, KACHERY AMSOM, NADAKKAVU.P.O., KOZHIKODE-11. BY ADVS SMT.M.A.ZOHRA SRI.K.MOHANA KANNAN** ## **RESPONDENTS/PLAINTIFF AND DEFENDANTS 3 TO 11:** - ***1 P.K.THANKAMANI(DIED) W/O.PARAPPURATH KUNDILERY KRISHNAN, VAYALIL, CHETTIKULAM, ELATHUR AMSOM, ELATHUR P.O., KOZHIKODE.** - ****2 ARANGIL LAKSHMI (DIED) D/O.RARICHAN, KANARA VILAS (ARANGIL), CHETTIKULAM, ELATHUR P.O., KOZHIKODE.** - **3 PUTHALATH AHAMMEDKUTTY ADVOCATE, S/O.T.MOIDEENKOYA VAIDYAR, "JAITHRA", NADAKKAVU, KOZHIKODE.** - **4 IMBICHAMMED KOYA S/O.HUSSAIN, "JASMIN", CHETTIPPARAMBU, NADAKKAVU.P.O., KOZHIKODE-6.** - **5 SURFUDEEN S/O.HASSANKOYA HAJI, VELUTHEDATHUKANDY, NADAKKAVU, KOZHIKODE-11.** ## A.S. Nos.752 of 1995 and 17 of 1996 ## -: 4 :- |**#6**<br>**7**<br>**8**<br>**9**<br>**10**<br>****ADDL**<br>**R11**<br>****ADDL**<br>**R12**<br>****ADDL**<br>**R13**<br>****ADDL**<br>**R14**<br>****ADDL**<br>**R15**<br>****ADDL**<br>**R16**<br>****ADDL**<br>**R17**<br>****ADDL**<br>**R18**|**A.K.MOOSA (DIED)**<br>**S/O.ABU, “BAITHOOL NAFEES” NADAKKAVU, KOZHIKODE-**<br>**11. (DIED ADDITIONAL R19 TO R25 IMPLEADED)**<br>**ABDUREHIMAN M**<br>**S/O.ABDULLAKOYA, CHETTIPPARAMBATHU, 1/4790,**<br>**P.O.NADAKKAVU, KOZHIKODE-11.**<br>**ABDULLAKOYA**<br>**S/O.ABDUREHIMAN, CHETTIPPARAMBATHU, 1/4790,**<br>**P.O.NADAKKAVU, KOZHIKODE-11.**<br>**AYISABI**<br>**D/O.ABDURAHIMAN, CHETTIPPARAMBATHU, 1/4790,**<br>**P.O.NADAKKAVU, KOZHIKODE-11.**<br>**SHAKKEELA**<br>**D/O.ABDURAHIMAN, CHETTIPPARAMBATHU, 1/4790,**<br>**P.O.NADAKKAVU, KOZHIKODE.**<br>**SUPPLEMENTAL RESPONDENTS**<br>**A.RAMABHAI**<br>**D/O LATE LAKSHMI, ARANGIL HOUSE, ELATHUR (P.O),**<br>**KOZHIKODE.**<br>**A.PADMINI**<br>**D/O. LATE LAKSHMI, ARANGIL HOUSE, ELATHUR (P.O),**<br>**KOZHIKODE.**<br>**A.BALAMANI**<br>**D/O. LATE LAKSHMI, ARANGIL HOUSE, ELATHUR (P.O),**<br>**KOZHIKODE.**<br>**A.KRISHNAVENI**<br>**D/O. LATE LAKSHMI, ARANGIL HOUSE, ELATHUR (P.O),**<br>**KOZHIKODE.**<br>**A.KARUNAKARAN**<br>**S/O LATE LAKSHMI, ARANGIL HOUSE, ELATHUR (P.O),**<br>**KOZHIKODE.**<br>**M.K.KARUNAKARAN**<br>**H/O.LATE SATHYABHAMA.A, "BHAMAS", ELATHUR (P.O),**<br>**KOZHIKODE.**<br>**M.K.RAJA KARAN**<br>**S/O.LATE SATHYABHAMA.A, "BHAMAS", ELATHUR (P.O),**<br>**KOZHIKODE.**<br>**M.K.SREEJA KARAN**<br>**D/O.LATE SATHYABHAMA.A, BHAMAS, ELATHUR (P.O),**<br>**KOZHIKODE.**| |---|---| ## A.S. Nos.752 of 1995 and 17 of 1996 -: 5 :- |**#ADDL**<br>**R19**<br>**#ADDL**<br>**R20**<br>**#ADDL**<br>**R21**<br>**#ADDL**<br>**R22**<br>**#ADDL**<br>**R23**<br>**#ADDL**<br>**R24**<br>**#ADDL**<br>**R25**<br>***ADDL**<br>**R26**|****LEGAL HEIRS OF THE DECEASED R2 ARE IMPLEADED**<br>**AS SUPPLEMENTAL RESPONDENTS 11 TO 18, AS PER**<br>**ORDER DATED 25.2.16 IN IA 4223/07.**<br>**ADDITIONAL RESPONDENTS 19 TO 25 IMPLEADED:**<br>**SIDHIQ**<br>**AGED 65 YEARS**<br>**S/O.MOOSA, BYTHOOL NAFEESA, KARIKAMKULAM,**<br>**P.O.KARAPARAMBA, KOZHIKODE- 673010.**<br>**JAMAL,**<br>**AGED 64 YEARS**<br>**S/O.MOOSA, AL-AKSA, KOTTARAM ROAD, P.O**<br>**ERANJIPALAM KOZHIKODE- 673006.**<br>**ASHARAF,**<br>**AGED 62 YEARS**<br>**S/O.MOOSA, ASHIYANA, P.O.VENGERI, KOZHIKODE**<br>**DISTRICT 673 001.**<br>**MAJEED,**<br>**AGED 53 YEARS**<br>**S/O.MOOSA, HINNUS, ASOKAPURAM, P.O. KOZHIKODE**<br>**DISTRICT.**<br>**SHEREEF**<br>**AGED 44 YEARS**<br>**S/O.MOOSA, NAFEESAS, RARICHAN ROAD, ERANJIPALAM**<br>**P.O., KOZHIKODE- 673006**<br>**RASIYA,**<br>**AGED 50 YEARS**<br>**D/O.LATE MOOSA, AL-ABRAR, NADAKKAVU P.O.,**<br>**PULICKAL LANE, KOZHIKODE DISTRICT - 673 011.**<br>**ZAREENA,**<br>**AGED 46 YEARS**<br>**D/O.LATE MOOSA, ARFA, PANAYAMPARAMBA,**<br>**ERANJIPALAM P.O., KOZHIKODE- 673 006.**<br>**# LEGAL HEIRS OF DECEASED 6TH RESPONDENT ARE**<br>**IMPLEADED AS ADDITIONAL RESPONDENTS 19 TO 25**<br>**VIDE ORDER DATED 2.3.18 IN IA 320/17**<br>**MANOJKUMAR P.K**<br>**AGED 56 YEARS, S/O.LATE KRISHNAN, PARAPPURATH**<br>**KUNDILERI, PATTAYATTU PARAMBA, ANANDAPURAM, PO**<br>**ELATHUR, KOZHIKODE DISTRICT-673303**| |---|---| ## A.S. Nos.752 of 1995 and 17 of 1996 -: 6 :- ***ADDL MAHESH KUMAR P.K R27 AGED 54 YEARS, S/O.LATE KRISHNAN, PARAPPURATH KUNDILERI, PATTAYATTU PARAMBA, ANANDAPURAM, PO ELATHUR, KOZHIKODE DISTRICT-673303 *ADDL MANJULA KRISHNAN P.K. R28 AGED 51 YEARS, W/O PREMPRAKASH, PUTHUKKUDY, PATTERI, SBI COLONY ROAD, KOTTOOLI, KUTHIRAVATTOM(PO), KOZHIKODEDISTRICT-673016 * LEGAL HEIRS OF DECEASED RESPONDENT NO.1 ARE IMPLEADED AS ADDITIONAL RESPONDENTS NOS.26 TO 28 VIDE ORDER DATED 10.07.2024 IN IA NO.1/2022. BY ADVS. SRI.M.GOPIKRISHNAN NAMBIAR SRI.V.V.SURENDRAN SRI.R.CHETHAN KRISHNA SMT.BINDUMOL JOSEPH SRI.K.K.KRISHNANKUTTY SRI.P.M.PADMANABHAN SRI.P.M.MOHAMMED SHAREEF SRI.K.K.M.SHERIFF SRI.B.S.SYAMANTHAK SMT.SUJITHRA PRAKASH SRI.MILLU DANDAPANI SRI.P.G.RAJAGOPALAN** **THIS APPEAL SUIT HAVING BEEN FINALLY HEARD ON 28.06.2024, ALONG WITH AS NO.752/1995, THE COURT ON 10.07.2024 DELIVERED THE FOLLOWING:** A.S. Nos.752 of 1995 and 17 of 1996 -: 7 :- ## P.B.SURESH KUMAR & M.B.SNEHALATHA, JJ. ----------------------------------------------- A.S. Nos.752 of 1995 and 17 of 1996 & Cross Objection in A.S.No.17 of 1996 ----------------------------------------------- Dated this the 10th day of July, 2024 ## JUDGMENT ## P.B.Suresh Kumar, J. The above appeals arise from O.S No.182 of 1990 on the files of the Court of the Subordinate Judge, Kozhikode. Among the appeals, A.S.No.17 of 1996 is preferred by the second defendant in the suit and A.S.No.752 of 1995 is preferred by the supplemental fourth defendant in the suit. Parties are referred to in this judgment, unless otherwise mentioned, as they appear in the suit. 2. The suit was one for partition of two items of properties. Among them, item 1 was a joint family property held by one Rarichan and item 2 was a self acquired property A.S. Nos.752 of 1995 and 17 of 1996 ## -: 8 :- of Matha, the wife of Rarichan. Rarichan died in the year 1952. Matha predeceased Rarichan. Rarichan and Matha had three children namely, Chathukutty, Sankaran and Lakshmi. Plaintiff is the daughter of Chathukutty. The first defendant is the wife of Sankaran and the second defendant is the daughter of Sankaran. The third defendant is Lakshmi, the daughter of Rarichan and Matha. 3. The case set out by the plaintiff in the plaint as regards item 1 property is that on the death of Rarichan, the same devolved on his three children and on the death of her father, namely, Chathukutty, she being the sole heir of Chathukutty, his share over the property devolved on her. As regards item 2 property, the case of the plaintiff is that on the death of Matha, the same devolved on her children; that the third defendant later transferred her rights over the property to Rarichan and on the death of Rarichan, 1/3rd of the 1/3rd right over the property also devolved on Chathukutty and on the death of Chathukutty, the 1/3rd right over the property inherited by Chathukutty directly from his mother and 1/3rd of the 1/3rd A.S. Nos.752 of 1995 and 17 of 1996 **==> picture [27 x 8] intentionally omitted <==** right inherited by Chathukutty from Rarichan came to be vested in her. 4. The trial court dismissed the suit insofar as it relates to item 1 property holding that the same is the joint family property held by Rarichan and since Rarichan was governed by Hindu Mithakshara Law at the time of his death, the said property devolved only on the remaining male members of the joint family namely, his male children, Chathukutty and Sankaran and on the death of Chathukutty, his rights devolved on the surviving male member of the joint family namely Sankaran, as Chathukutty was also governed by Hindu Mithakshara Law at the time of his death. As far as item 2 property is concerned, the trial court accepted the case set out by the plaintiff and held that she is entitled to 1/3[rd] right as also 1/3[rd] of 1/3[rd] right over the property. Accordingly, a preliminary decree declaring the said right of the plaintiff was passed. The second defendant and the supplemental fourth defendant are aggrieved by the said preliminary decree. A.S. Nos.752 of 1995 and 17 of 1996 -: 10 :- 5. A cross objection is preferred by the plaintiff in A.S.No.17 of 1996 as regards the decree passed against her in respect of item 1 property. 6. Third defendant died pending appeal and her legal representatives have come on record as additional respondents in the appeals. 7. Heard the learned counsel for the second defendant, the additional fourth defendant as also the learned counsel who is representing the plaintiff and the legal representatives of the deceased third defendant. 8. Inasmuch as item 1 property is undisputedly the joint family property held by Rarichan and since Rarichan was governed by Hindu Mithakshara Law at the time of his death, we do not find any infirmity in the finding rendered by the trial court that the plaintiff has not acquired any right in that property on the death of Rarichan. The cross objection preferred by the plaintiff, in the circumstances, is only to be dismissed. 9. Item 2 property being one purchased by a Hindu female prior to the Hindu Succession Act, the same would fall A.S. Nos.752 of 1995 and 17 of 1996 **==> picture [34 x 8] intentionally omitted <==** only in the category 'Stridhana' and it would devolve on the death of the purchaser only on her daughter/s, the third defendant [See Hindu Law by Mulla, 22nd Edition, Page 226]. There cannot be any doubt to the proposition that a female inheriting Stridhana acquires only a limited ownership in the property and on her death, it passes not to her heirs, but only to the next Stridhana heirs of the female from whom she inherited it [See Hindu Law by Mulla, 22nd Edition, Page 238]. In the case on hand, the next Stridhana heirs of Matha are the female children of the third defendant. But, it is seen that the third defendant transferred the limited ownership over item 2 property during her life time itself to her father Rarichan as per Ext.B21 release deed in the year 1932. Inasmuch as the third defendant had only limited ownership over the property, she was empowered to transfer the property only if there was a legal necessity. Needless to say, had the transfer been supported by a legal necessity, Rarichan would become absolute owner of the property and the reversioners would be precluded from assailing the validity of the transfer. In the absence of any challenge against Ext.B21 by the reversioners A.S. Nos.752 of 1995 and 17 of 1996 **==> picture [34 x 8] intentionally omitted <==** namely the daughters of third defendant either at the time when the transfer was made or on the death of the third defendant, according to us, it cannot be said that the said alienation was not supported by a legal necessity. Even assuming that the alienation aforesaid was not supported by a legal necessity, it binds the transferor namely the third defendant although it does not bind the reversioners [See Kalawatibai v. Soiryaba i, (1991) 3 SCC 410]. Such an alienation is not void, but only voidable at the instance of the reversioners. It has to be challenged by the reversioners. In the case on hand, the reversioners have not challenged Ext.B21 nor did they claim any right over the property till date on that basis. As noted, the suit was filed only by the daughter of Chathukutty who does not have any right over item 2 property. 10. The learned counsel representing the plaintiff and the daughters of the third defendant contended that daughters of third defendant are certainly entitled to make a claim against item 2 property in this appeal, for the appeal is a continuation of the suit for partition in respect of that property. We are unable to accept this argument. Inasmuch as they had A.S. Nos.752 of 1995 and 17 of 1996 **==> picture [34 x 8] intentionally omitted <==** not challenged the alienation made by the third defendant, they cannot be heard to contend that they are in joint possession of the property to claim partition, which is a sine qua non for instituting a suit for partition. In the said view of the matter, the impugned judgment granting a preliminary decree in favour of the plaintiff in respect of item 2 property is unsustainable in law. The appeals are therefore, allowed and the impugned judgment is set aside. The cross objection in A.S.No17 of 1996 is dismissed. Sd/P.B.SURESH KUMAR, JUDGE. Sd/M.B.SNEHALATHA, JUDGE. Mn