C.P. Hariharan and Others v. C.H. Padmanabhan and Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE A.HARIPRASAD** **TUESDAY ,THE 09TH DAY OF OCTOBER 2018 / 17TH ASWINA, 1940** **AS.No. 708 of 2000** **AGAINST THE JUDGMENT AND DECREE DATED 09-03-2000 IN OS 492/1991 of ADDL.SUB COURT, PALAKKAD** ## **APPELLANTS/PLAINTIFFS :** |**1**|**C.P. HARIHARAN, S/O C.H.PADMANABHAN,**| |---|---| ||**34/1, RAMAKRISHNAPURAM, III STREET,**| ||**WEST MAMBALAM, MADRAS, PIN - 600 033.**| |**2**|**C.P BALLAKRISHNAN,**| ||**-DO- -DO- -DO-**| |**3**|**KUMARI C.P PARVATHY,**| ||**D/O C.H PADMANABHAN,**| ||**-DO- -DO- -DO-**| |**4**|**C.P RUGMINI,**| ||**-DO- -DO- -DO-**| |**5**|**K.R.SAVITHRI,**| ||**W/O C.H.PADMANABHAN,**| ||**-DO- -DO- -DO-**| ||**BY ADVS.**| ||**SRI.S.ANANTHAKRISHNAN**| ||**SRI.N.K.SUBRAMANIAN**| ## **RESPONDENTS 6, 7 & 8/DEFENDANTS 1, 4, 5, 6, 7, 8, 9 & 10 :** - **1 C.H. PADMANABHAN, DOOR NO.1/547, CHATHAPURAM AGRAHARAM, PUTHUR AMSOM, PALAKKAD TALUK.** - **2 GUPTHI DEVI, NO.40, EXHUKKADAL AGRAHARAM MADURAI.** - **3 T.SANTHI DEVI, -DO- -DO- -DO-** - **4 M/S.SOUTH INDIAN BANK LTD., MADURAI.** A.S No.708 of 2000 2 - **5 M/S. BANK OF BARODA, MAIN BRANCH, MADURAI.** - - **6 C.H.SEETHALAKSHMI (DIED), NO.26, 16TH MAIN MANESWARA BLOCK GEE, BANGALOORE.** - **7 C.H.MEENAKSHI, NO.2, ALAGESAN ROAD, SAI BABA COLONEY, COIMBATORE.** ## **8 C.H.VISALAKSHI, SREE VALSAM, RAMACHANDRA COLONY, PALAKKAD.** - **ADDL.9 SREENIVASAN, 37, ANNAI INDIRA NAGAR, I.O.B COLONY, BHARATHIAR UNIVERSITY, MARUDAMALAI, COIMBATORE- 641 046.** - **ADDL.10 MOORTHY, NO.26, 16TH MAIN MANESWARA BLOCK GEE, BANGALORE - 560 026.** - **ADDL.11 USHA, NO.26, 16TH MAIN MANESWARA BLOCK GEE, BANGALORE - 560 026.** - **ADDL.12 MEENU, NO.26, 16TH MAIN MANESWARA BLOCK GEE, BANGALORE - 560 026.** - **DEATH OF 6TH RESPONDENT RECORDED VIDE ORDER DATED 2-3-16 ON MEMO DATED 29-7-14 BEARING CF 4175/14.** - **LRS OF DECEASED SIXTH RESPONDENT ARE IMPLEADED AS ADDL.R9 TO R12 VIDE ORDER DATED 11-07-2018 IN I.A NO.539/2016.** **BY ADVS.** **MS.MEENA & SRI.SAJU.S.A FOR R2 & R3. SRI.K.K.JOHN, SC, SOUTH INDIAN BANK SRI.KRISHNA PRASAD.S FOR R6 TO R8 SRI.A.R.NIMOD, SRI.P.S.APPU & SRI.T.C.SURESH MENON FOR ADDL.R9 TO R12.** **THIS APPEAL SUITS HAVING BEEN FINALLY HEARD ON 09.10.2018, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** A.S No.708 of 2000 3 ## A.HARIPRASAD, J. -------------------------------------- A.S No.708 of 2000 -------------------------------------- Dated this the 9th day of October, 2018 ## J U D G M E N T Plaintiffs in O.S No.492 of 1991 before the Court of Subordinate Judge, Palakkad, are the appellants. Defendants are the respondents. 2. Heard the learned counsel for the appellants and respondents. 3. Brief facts necessary for resolution of the dispute are as follows : Plaintiffs 1 to 4 are the children of the first defendant and fifth plaintiff. Defendants 2 and 3 are the parents of defendants 1, 8, 9 and 10. Plaintiffs and defendants 1 to 3 constituted a Mithakshara co-parcenary. The family was owning agricultural lands and a hotel by name Sree Shanmugha Lunch Home, Madurai. The hotel was being managed by the A.S No.708 of 2000 4 defendants 1 and 2 for the family. According to the plaint averments, the hotel was established by spending joint family funds. B schedule house was purchased and renovated by using family funds. Ancestral house at Chathapuram Village was also renovated by using joint family funds. According to the plaintiffs' case, joint family amounts were utilized for acquisition of plaint A, B and C schedule properties and for the development of Shanmugha Lunch Home. Since defendants 1 to 3 ill-treated the plaintiffs, they had to leave B schedule house and seek shelter with the mother and brothers of the fifth plaintiff. In spite of repeated demands for partition of assets, the defendants did not heed to their request. Hence the suit for partition. 4. Defendants 1 to 3 filed a written statement admitting the relationship between the parties. According to the defendants, plaintiffs and defendants 1 to 3 are not members of a Hindu Mithakhara Joint Family. They further contended that family was not holding agricultural A.S No.708 of 2000 5 lands and hotel as contended in the plaint. It is their definite case that the hotel at Madurai was not established by using joint family funds. C schedule deposits were not acquired from out of the joint family funds and are not partible. Second defendant's father C.H.Padmanabhan Iyer died long before the marriage of the fifth plaintiff. On his death, his properties devolved upon the second defendant and he, by his own efforts, purchased the properties. There was no ancestral property worth yielding any income. The second defendant by his small savings started Shanmugha Lunch Home, Madurai. Subsequently, his business developed and he acquired some properties and improved the houses. Second defendant's father gave his right over the property as per Ext.B(1) settlement deed of the year 1960. Plaintiffs 1 to 4 have no right over the plaint schedule property. Fifth plaintiff along with her children left house on her own will. The suit is liable to be dismissed with cost. 5. Defendants 4 and 5 filed a written statement contending that A.S No.708 of 2000 6 the suit is not maintainable. According to them, B schedule property was self-acquired property of the second defendant. He acquired the property as per Ext.B3 document of the year 1952. The property was assigned by the second defendant in favour of defendants 1 and 3 as per Ext.B2 of the year 1962. Later, the first defendant and third defendant sold the property for value as per Ext.A4 and Ext.B4 of the year 1990 in the name of defendants 4 and 5. They are bona fide purchasers for value. At any rate, the properties covered by Exts.A4 and B4 are not available for partition. 6. Defendant No.8 filed a written statement contending that the defendants 8 to 10 are daughters of defendants 2 and 3. According to them, they are entitled to get equal share over the properties of their parents. Movable properties were also liable to be partitioned. 7. On the basis of the pleading, following issues were raised by the trial court : “1. Whether the plaintiff is entitled to get any decree for partition ? A.S No.708 of 2000 7 ## 2. Reliefs and costs ? Addl.Issue No. 3. Whether the Will set up by the first defendant is valid and genuine ? 4. What are the assets available for partition ? 5. What is the share due to each parties in the event of partition ?” 8. One witness was examined on the side of the plaintiffs and three witnesses on the side of the defendants. Exts.A1 to A4 series and Exts.B1 to B5 are the documents marked. 9. It is brought to the notice of this Court that the first defendant in the suit had filed A.S No.550 of 2000 before this Court challenging the judgment and decree. The appeal was later dismissed for non-prosecution and the dismissal has become final. 10. Even though an additional issue was raised regarding genuineness of Ext.B5 Will, the finding by the trial court that Ext.B5 was not proved has become final as there is no challenge against that finding. 11. Learned counsel for the appellants strongly contended that the A.S No.708 of 2000 8 court below seriously erred in determining the rights of parties. According to him, the properties partake the character of joint family properties and therefore the plaintiffs are entitled to get share in the family property. Finding otherwise by the court below is illegal. It is therefore forcefully argued by the learned counsel for the appellants that the appellants are entitled to get share in plaint B and C schedule properties. It is also contended that the share given to defendants 8 to 10 in plaint A schedule property is also incorrect since it was found to be a co-parcenary property. 12. In order to reinforce the argument, reliance is placed on Ext.A1, a registered document of the year 1939. Ext.A1 would show that a large extent of property was purchased by Padmanabhan Iyer, who was the father of the second defendant and grandfather of the first defendant. Learned counsel contended that the nucleus of joint family started from Ext.A1 properties. The moment first defendant was born to the second A.S No.708 of 2000 9 defendant, a co-parcenary was set in place by operation of law and the property become co-parcenary property. However, this contention is strongly denied by the defendants 4 and 5 and also by the contesting defendants. 13. Learned Sub Judge considered the scope of the contentions regarding acquisition of properties pursuant to Ext.A1 purchase. The following observations in paragraph 14 and 15 are extracted hereunder : “14. As per the available evidence deceased second defendant established the hotel at Madurai while his father was alive. Ext.A1 property was the self acquired property of Padmanabha Iyyer. There is no reliable evidence before the court that the joint family had other source of income and the second defendant utilised that source for establishing hotel at Madurai. The self-acquired property can be blended with the joint family property. In order to prove blending there must be evidence regarding unequivocal intention on the part of the member of A.S No.708 of 2000 10 the joint family to renounce his interest in the property in favour of the family. Mere fixing once own property with that of the joint family may by itself be not sufficient to lead one to inference that the member has thrown his our acquisition into the common hotch pot. It is not mere existence of nucleus that casts a burden on a member of a family in possession thereof to prove that acquisition in his name are his own. The nucleus must be of such a character as to form the basis for further acquisition. The burden of proving that acquisition are once own would be cast only when there is proof of such a sufficiency of nucleus as laid down by the High Court of Kerala in SA 1186 of 1968 reported in 1971 KLT SN page 32 and 33. On a scrutiny of the evidence before this court I find no convincing proof to arrive at a conclusion that Harihara Iyyer blended the hotel business with the joint family. Similarly there is no evidence that Padmanabha Iyyer blended Ext.A1 properties with the joint family. From the A.S No.708 of 2000 11 above discussions I find that the hotel namely Shanmugha lunch home at Madurai was the selfacquisition of second defendant Harihara Iyyer. The B schedule property was purchased by Harihara Iyyer in his name and there after settled the property in the name of his wife 3rd defendant and son first defendant. Defendants 4 and 5 have purchased the property from them. Ext.B3 is the document by which 2nd defendant acquired B schedule property. Ext.B3(a) is the transliteration copy of Ext.B3. Ext.B2 is the document No.1197/1962 executed by second defendant in favour of his wife and son. Ext.A4 and B4 are the two assignment deeds in favour of defendants 4 and 5. In these documents there is a recital that the first defendant is executing the document on his behalf as well as on behalf of his minor son's. According to plaintiff that indicates that the property is a joint family property and plaintiffs 1 and 2 have got right over the said property. In Ext.B2 and B3 there is a recital to enjoy the A.S No.708 of 2000 12 properties by the son's grand son's and so on. The defendants 1 to 3 would content that these recitals are the wording of the document writers and it will not create right in the property. On the basis of the above recitals defendants 3 and 4 insisted for execution of the document on behalf of the minors and under that circumstance the document was executed on behalf of minors, according the argument of the first defendant. Plaintiff would contended that the recital in Ext.B2 that the properties are to be enjoyed by the first defendant and his legal heirs would indicate that the property was not given absolutely to the first defendant but to his son's as well. On a reading of Ext.B2 and B3 would clearly shows that it is only usually recite in the document and no significance can be attached to that recitals because such recitals are in Ext.B3, by which 2nd defendant acquired the property. In order to claim right over the properties, plaintiffs 1 and 2 have no pre-existing right over the B schedule A.S No.708 of 2000 13 properties and mere recital or execution of the document by the first defendant will not confer any right upon them. Thus I find that the plaintiffs have no right over the B schedule property. 15. A schedule property is the property on which ancestoral home of plaintiffs and defendants situates. Ext.B1 settlement deed shows that the southern portion of the property was purchased by the second defendant in the name of his father. The northern portion which was owned by the family and the southern portion covered by Ext.B1 was converted into a compound and the house in the property was renovated. By virtue of Ext.B1, second defendant's father Padmanabha Iyyer settled his right over the property to 2nd defendant. All these acts indicates blending of Ext.B1 property and treating the entire property as the joint family property. Thus I find that first plaintiff has got right over plaint A schedule property by birth and plaintiffs 2 to 4 have got right of maintenance. Plaintiffs 4 and 5 have also got right A.S No.708 of 2000 14 to get marriage expenses from the first defendant and his right over the property subject to the charge with regard to the claims of plaintiffs 2 to 4. Admittedly 5th plaintiff was employed and there is no convincing evidence that she is now unemployed. From available evidence it is not possible to find that fifth plaintiff is entitled to get maintenance from the first defendant.” (sic) 14. Learned counsel for the appellants contended that the above findings of the court below are incorrect. From the evidence adduced by PW1, it cannot be discerned that the property purchased as per Ext.B3 in the year 1952 and the subsequent gift as per Ext.B2 are in the nature of co-parcenary properties. The court below cannot be faulted for entering a finding that the case set up in the plaint regarding formation of a co-parcenary was not established in respect of these properties. 15. Since the original documents are written in Tamil, this Court got a translation of these documents in English. It is submitted by the A.S No.708 of 2000 15 learned counsel appearing for the parties that the translations do not show in clear terms the existence of a co-parcenary in respect of Exts.B2 and B3 properties. 16. Learned counsel for the appellants relying on certain recitals in Exts.A4 and B4 contended that mentioning of the existence of minors in these documents and further mentioning that the documents were executed for and on behalf of them is an indication that they had a right over the property. In the absence of any reliable material on record to find that there was a co-parcenary in existence which acquired the property, mere admission in Exts.A4 and B4 will not confer any title on the persons mentioned in the document, if they had no legitimate right over the property. Therefore, for this reason alone, claim of the plaintiffs cannot be sustained. It is therefore clear from the evidence on record that the plaintiffs' claim to get share in plaint B schedule property by contending that it belonged, at one point of time, to a co-parcenary was turned down A.S No.708 of 2000 16 by the court below for well founded reasons, I find no reason for interference. In so far as, plaint C schedule bank deposits are concerned, it appears that the finding of the court below is incorrect. It declined the relief in favour of the plaintiffs for the following reasons : “16. Plaint C schedule properties are compensation received from the land tribunal, invested insecurities amounting to Rs.50,000/-. Value of jewellery Rs.75,000/- value of Silver vessel Rs.25,000/-. The investments with sixth and seventh defendants amounting Rs.4,50,000/-. According to PW1 Ext.A1 properties in the possession of Padmanabha Iyyer was joint family properties. Income from the properties are partible according to her. In answer to this issue I have found that Ext.A1 property is the self-acquired property of deceased Padmanabha Iyyer. The above properties devolved upon the 2nd defendant on the death of Padmanabha Iyyer. More over PW1 has no idea as to how much amount the defendants have received as compensation from the land tribunal. She A.S No.708 of 2000 17 herself admitted that there are documents available before the land tribunal to prove the quantum of compensation and the person who received the compensation. In view of my earlier findings the compensation amount received by the second defendant in his exclusive property and not liable to be partition. Plaintiffs have also claimed partition of jewellery and silver vessels worth Rs.1 lakh. According to her she gave her ornaments to the family. The jewelleries of 2nd defendant are with the first defendant and it is also partible. First of all there is no convincing proof before the court that the 5th plaintiff entrusted her ornaments to defendants 1 to 3. The existence of silver vessels is also not proved. The ornaments of 3rd defendant is partible only among her legal heirs. Plaintiffs will not come under the schedule of legal heirs of 3rd defendant. Therefore those articles are not partible among the plaintiff and defendants. More over the existence of those ornaments are not proved before the court.” (sic) A.S No.708 of 2000 18 17. PW1 asserted that Ext.A1 properties were in the possession of Padmanabhan Iyer and out of the income therefrom the amounts were generated. However, that was not relied on by the court below for the reasons mentioned above. She has also made a claim in respect of the jewellery belonging to the third defendant. It was denied saying that the plaintiffs are not legal heirs of third defendant. In respect of the cash lying in deposits in various banks, it appears that there is no evidence to find that the amounts did not belong to the joint family. Therefore, I find that the plaintiffs also should be given a share in the amounts in proportion to the share given to them in respect of plaint A schedule. It is seen from the judgment that defendants 8 to 10 are given due shares in plaint A schedule properties as well as in C schedule movables (cash). 18. The court below for valid reasons found that plaint B schedule property covered by Exts.B4 and A4 are not available for partition. I find no reason to interfere with the findings of the court below A.S No.708 of 2000 19 in this regard, except to the extent of granting a share to the first plaintiff in respect of plaint C schedule in accordance to her share in respect of plaint A schedule property. 19. The decision relied on by the learned counsel for the defendants 8 to 10 in Danamma @ Suman Surpur and Another v. Amar and Others (2018 (1) K.H.C 583) , the ratio in the decision has no application to this case. In the result, the appeal is partly allowed. The finding of the court below that plaint B schedule property is not available for partition is confirmed. Plaint A schedule shall be divided into 16 equal shares and the first plaintiff shall be allotted two such shares. The first defendant is entitled to get 5 out of 16 shares in plaint A schedule and the defendants 8 to 10, each are entitled to 3 out of 16 shares in the property. Fixed deposit in the name of the defendants shall be divided in the same share as mentioned above and two such shares shall be given to the first plaintiff. A.S No.708 of 2000 20 Rest of the reliefs granted are hereby confirmed. Quantum of amounts spent for marriage expenses and maintenance, if any, claimed by plaintiffs 3 to 5 shall be decided in the final decree proceedings, depending on the quality of evidence and in accordance with law. Since the translation was done at the instance of this Court by Adv.Sarojini, a sum of Rs.5,000/- (Rupees five thousand only) shall be paid to her as remuneration. The amount shall be paid by defendants 4 and 5. Appeal disposed accordingly. All pending interlocutory applications will stand closed. A. HARIPRASAD, JUDGE. amk