Dr. C. Kallianikutty and C. Leelavathi v. Meera Unnikrishnan and Sreenivasan C.

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR. JUSTICE B.KEMAL PASHA TUESDAY, THE 3RD DAY OF JANUARY 2017/13TH POUSHA, 1938 RSA.No. 504 of 2010 (B ) ------------------------ AGAINST THE ORDER/JUDGMENT IN AS 304/2007 of I ADDITIONAL SESSIONS COURT, KOZHIKODE DATED 28-10-2009 AGAINST THE ORDER/JUDGMENT IN OS 13/2006 of SUB COURT, KOYILANDY DATED 24-08-2007 APPELLANTS/APPELLANTS IN AS/DEFENDANTS 2 & 3 IN OS: ------------------------------------------------------------------------------------- 1. DR.C.KALLIANIKUTTY, AGED 60 YEARS, D/O.LAKSHMIKUTTY AMMA, RESIDING AT "PRATHEEKSHA", P.O.VADAKARA, VATAKARA TALUK, KOZHIKODE DISTRICT. 2. C.LEELAVATHI, AGED 61 YEARS, D/O.LAKSHMIKUTTY AMMA, RESIDING AT "RAJASREE", MELADI, P.O.PAYYOLI, KOYILANDY TALUK, KOZHIKODE DISTRICT. BY ADVS.SRI.K.LAKSHMINARAYANAN SMT.SATHYASHREE PRIYA RESPONDENTS/RESPONDENTS IN AS/PLAINTIFF & 1ST DEFENDANT IN OS: ----------------------------------------------------------------------------------------------------------- 1. MEERA UNNIKRISHNAN, AGED 48 YEARS, D/O.MADHAVAN NAIR, RESIDING AT "SIJOSH", P.O.THIKKODI, THRIKKOTTUR AMSOM, DESOM, KOYILANDY TALUK, KOZHIKODE DISTRICT. 2. SREENIVASAN.C, AGED 54 YEARS, S/O.MADHAVAN NAIR, RESIDING AT "SIJOSH", P.O.THIKKODI, THRIKKOTTUR AMSOM, DESOM, KOYILANDY TALUK, KOZHIKODE DISTRICT. R1 BY ADV. SRI.K.RAKESH ROSHAN SMT.THUSHARA.V THIS REGULAR SECOND APPEAL HAVING BEEN FINALLY HEARD ON 03-01-2017, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## **[CR]** ## **B. KEMAL PASHA, J.** ````````````````````````````````````````````````````````````` R.S.A. No.504 of 2010 B ````````````````````````````````````````````````````````````` _Dated this the 3[rd] day of January, 2017_ ## **J U D G M E N T** ~ ~ ~ ~ ~ ~ ~ ~ ~ The suit is one for partition of plaint schedule item Nos.1 and 2 properties. The said properties are item No.1 and item No.4 in Ext.A1 partition deed dated 17.09.1998. Properties included in Ext.A1 originally belonged to late Madhavan Nair. Madhavan Nair acquired the said properties through assignment deed No.1079/1962. Madhavan Nair died in the year 1992. The plaintiff in the suit, who is the 1[st] respondent herein, and the 1[st] defendant, who is the 2[nd] respondent herein, were born to Madhavan Nair through his first wife. First wife is no more. On the death of his first wife, Madhavan Nair married Kamaladevi. After the death of Madhavan Nair, the 1[st] respondent, the 2[nd] RSA.504/2010 : 2 : respondent and Kamaladevi jointly executed Ext.A1 partition deed on 17.09.1998. Item No.1 and 1/3[rd] right over item No.4 property in Ext.A1 was allotted to the share of Kamaladevi. Item No.2 and 1/3[rd] right over item No.4 was allotted to the share of the 2[nd] respondent, who is the 1[st] defendant. Item No.3 property and 1/3[rd] right over item No.4 was allotted to the share of the 1[st] respondent herein, who is the plaintiff. Subsequently, Kamaladevi died on 08.08.2002. According to the 1[st] respondent, she along with the 2[nd] respondent are the only persons entitled to inherit the said property devolved on Kamaladevi by virtue of Section 15(1) (b) of the Hindu Succession Act, 1956. By arraying the appellants herein as defendants 2 and 3, the suit was filed. 2. It is the case of the plaintiff that by colluding with the revenue officials, the appellants could manage to obtain tax receipts in respect of the properties allotted to Kamaladevi in their favour. It is on that ground, the plaintiff has arrayed them as defendants 2 and 3 in the suit. RSA.504/2010 : 3 : 3. The appellants contended that they are in exclusive possession of the properties allotted to Kamaladevi through Ext.A1, after the death of Kamaladevi. According to them, either the 1[st] respondent or the 2[nd] respondent has no manner of right or possession over the plaint schedule properties and, therefore, the same is not partible. It is their case that on the execution of Ext.A1 partition deed, there occurred severance of tenements and the parties did never remain as tenants in common. It is also contended that the appellants are 'Marumakkathayees' and, therefore, they are entitled to the property alloted to Kamaladevi through Ext.A1 by virtue of Section 17 of the Hindu Succession Act, 1956. It has been further contended that the plaintiff has not sought for better relief and, therefore, they are not entitled to any decree. The learned counsel for the appellants has relied on the decision of the Bombay High Court in _**Balkrishna Bhagwanji Lohi and Others v. Prakash Sheshrao Lohi and Others** [2015 KHC_ RSA.504/2010 : 4 : _1166]_ , wherein it was held that once partition is effected, there occurs severance of jointness of the properties and the properties allotted to the parties in partition become their separate properties. 4. The plaintiff has not mounted the box. The 2[nd] defendant was examined as DW1. Another witness was examined on the part of the appellants as DW2. The trial court found that Section 17 of the Hindu Succession Act has no application and further found that even though Ext.A1 was executed among the 1[st] respondent, 2[nd] respondent and late Kamaladevi, the property could only be treated as a property inherited from the husband of Kamaladevi by her and, therefore, respondents 1 and 2 are the only persons, who are entitled to the property and consequently, the trial court decreed the suit in terms of the plaint. The matter was taken up in appeal through A.S. No.304/2007. The first appellate court has also upheld the judgment and decree passed by the trial court. RSA.504/2010 : 5 : 5. The question of law to be decided is as to whether Section 15 of the Hindu Succession Act, 1956 or Section 17 of the Hindu Succession Act, 1956 is the provision applicable with regard to the properties in question. The learned counsel for the appellants has canvassed an argument that as and when Ext.A1 partition deed was executed among respondents 1, 2 and Kamaladevi on 17.09.1998, the properties ceased to be the properties inherited from Madhavan Nair, and therefore, Section 15 of the Hindu Succession Act has no application. Section 15 of the Hindu Succession Act says- “15. **General rules of succession in the case of female Hindus** .--(1) The property of a female Hindu dying intestate shall devolve according to the rules set out in Section 16,-- (a) firstly, upon the sons and daughters (including the children of any pre-deceased son or daughter) and the husband; RSA.504/2010 : 6 : - (b) secondly, upon the heirs of the husband; - (c) thirdly, upon the mother and father; - (d) fourthly, upon the heirs of the father; and - (e) lastly, upon the heirs of the mother. (2) Notwithstanding anything contained in sub-section(1),-- (a) any property inherited by a female Hindu from her father or mother shall devolve, in the absence of any son or daughter of the deceased (including the children of any predeceased son or daughter) not upon the other heirs referred to in sub-section (1) in the order specified therein, but upon the heirs of the father; and (b) any property inherited by a female Hindu from her husband or from her father-in-law shall devolve, in the absence of any son or daughter of the deceased (including the children of any pre-deceased son or daughter) not upon the other heirs referred to in subsection (1) in the order specified therein, but upon the heirs of the husband.” 6. According to the learned counsel for the RSA.504/2010 : 7 : appellants, on the execution of Ext.A1, the parties ceased to be tenants in common and even in respect of item No.4 property in Ext.A1, which is item No.2 in the plaint, the parties became co-owners and the individual rights of the parties were crystallised in respect of that property also. The argument is that after the execution of Ext.A1, the plaint schedule properties became the separate properties of Kamaladevi. 7. _Per contra,_ the learned counsel for the 1[st] respondent has argued that even if Ext.A1 partition deed is executed, the property in question could only be treated as properties inherited from Madhavan Nair, who was the husband of Kamaladevi, and, therefore, Section 15(1)(b) of the Hindu Succession Act will come into play. It has been further argued that any of the parties cannot be treated as ' _Marumakkathayees_ ', and Section 17 has no application because of the execution of Ext.A1 in the year 1998, long after the Joint Family (Abolition) Act has come into force. RSA.504/2010 : 8 : 8. Ext.A1 says that the parties to the said document have divided the properties. Separate possession was also given to the parties as far as item Nos.1, 2 and 3 in Ext.A1 are concerned. With regard to item No.4 in Ext.A1, it is true that the parties became co-owners and their right to shares have been crystallised. The question to be decided is whether the character of the property will be changed on the execution of Ext.A1. As per Section 15(2)(b) of the Hindu Succession Act, 1956, what has been stated is “any property inherited by a female Hindu from her husband”. Therefore, what has to be decided is whether the properties in question can be included within the category of “any property inherited by a female Hindu from her husband”. Admittedly, the property was inherited by Kamaladevi as well as respondents 1 and 2 from Madhavan Nair. It is the further admitted case that Kamaladevi was the second wife of Madhavan Nair. Therefore, in spite of the execution of Ext.A1, it can be considered that it is a property inherited by RSA.504/2010 : 9 : Kamaladevi from her husband. Mere execution of Ext.A1 will not, therefore, change the character of the property. The property continues to be one inherited by Kamaladevi from her husband. 9. Even if it is admitted that it is a separate property owned by Kamaladevi on account of the execution of Ext.A1 in the year 1998, the appellants cannot claim any benefit through Section 17 of the Hindu Succession Act, 1956. Even if it is the separate property of Kamaladevi, as per Section 15(1)(b) of the Hindu Succession Act, it will devolve upon the heirs of the husband. The heirs of the husband are, no doubt, respondents 1 and 2. 10. Regarding the other argument that the plaintiff has not sought for better relief even when the appellants are claiming possession over the properties, it has to be noted that Ext.B6 cuts the root of their case relating to possession. Ext.B6 is a complaint preferred by the appellants before the police. It has been clearly stated in Ext.B6 that when they RSA.504/2010 : 10 : attempted to enter in the property for plucking coconuts, they were obstructed and restrained by respondents 1 and 2 herein and they were not permitted to pluck coconuts and therefore, they had to go back. It is further admitted by DW1 in box that there is a building situated in plaint item No.2 property, which is item No.4 in Ext.A1, and respondents 1 and 2 herein are in possession of that property and they are residing in the building situated in that property. As far as item No.1 property is concerned, Ext.B6 shows that respondents 1 and 2 are not permitting the appellants to enter in the property. Of course, it is stated in Ext.B6 that prior to that, they were enjoying the properties and they used to pluck coconuts. Even in such case, it could only be considered that they were persons, who were in possession of the property and who were subsequently thrown out of possession. In such case, they could have had recourse to Section 6 of the Specific Relief Act, 1963. The learned counsel for the appellants has, by relying on RSA.504/2010 : 11 : the decision in _**Vasudeva Kurup v. Ammini Amma** [1964 KLT 468],_ argued that the appellants could well maintain a suit for injunction. In this particular case, they have not sought for any such relief. 11. Even according to DW2, when he along with the appellants tried to enter in the property for plucking coconuts, they were obstructed by respondents 1 and 2 and they were sent back. Through Ext.B6, the appellants had sought for assistance from the police to enter in the property. From the versions of DW2, it has clearly come out that still they are not in possession of the property and they are not enjoying the property. DW2 has clearly stated that for the last six years prior the date of his examination, the appellants had not been plucking coconuts from the property. In such case, it cannot be contended that the suit is bad because of the fact that the plaintiff has not sought for a relief of recovery of possession. Only when the appellants are in actual physical possession of the property, the plaintiff RSA.504/2010 : 12 : had to seek a relief of recovery of possession. 12. From all the above, this Court is satisfied that there is absolutely nothing to interfere with the concurrent findings entered by the trial court as well as the lower appellate court. This Second Appeal, therefore, fails and is only to be dismissed, and I do so. In the result, this Regular Second Appeal stands dismissed. The parties shall suffer their respective costs. Sd/- **(B.KEMAL PASHA, JUDGE)** aks/03/01 _// True Copy //_ _PA to Judge_