FAO (RO) No. 359 of 2013 & CO 60/2014, High Court of Kerala at Ernakulam

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE A.HARIPRASAD** **THURSDAY ,THE 14TH DAY OF FEBRUARY 2019 / 25TH MAGHA, 1940** **FAO (RO).No. 359 of 2013** **AGAINST THE JUDGMENT DATED 26-09-2013 IN AS 229/2008 of DISTRICT COURT, THRISSUR** ## **APPELLANT/2ND RESPONDENT/2ND PLAINTIFF:** **RAMACHANDRAN, AGED 59 YEARS** **S/O.KUTTAPPAN @ KRISHNA MENON, KUNNAMVELLATHERI HOUSE AND PATTAYATHU, LAKSHMIKUTTY AMMA, MUNDATHICODE VILLAGE, TALAPPILLY TALUK, THRISSUR DISTRICT.** **BY ADVS. SRI.RENJITH THAMPAN (SR.) SMT.P.R.REENA** **RESPONDENTS/APPELLANTS AND RESPONDENT NO.1 AND 3 TO 13/1ST PLAINTIFF & DEFENDANTS:** - **1 NANDAKUMARAN, 56 YEARS, KAMMANGATTU HOUSE, PERAMANGALAM, THRISUR REP. BY POWER OF ATTORNEY HOLDER VINODINI AMMA, KAMMANANGATTU HOUSE, PERAMANGALAM, THRISSUR, PIN – 680545** - **2 VINODINI AMMA, 52 YEARS, KAMMANANGATTU HOUSE, PERAMANGALAM, THRISSUR, PIN-680545.** - **3 NARAYANANKUTTY, 55 YEARS, KAMMANANGATTU HOUSE, PERAMANGALAM, THRISSUR REP. BY POWER OF ATTORNEY HOLDER VINODINI AMMA, KAMMANANGATTY HOUSE, PERAMANGALAM, THRISSUR, PIN-680545** - **4 VIJAYALAKSHMI, AGED 60 YEARS, D/O.AMMINI KUNJIKKAVU AMMA, KUNNAMVELLATHERI HOUSE, MUNDAHICODE VILLAGE, TALAPPILLY TALUK, REP. BY POWER OF ATTORNEY HOLDER VINODINI AMMA, KAMMANANGATTU HOUSE, PERAMANGALAM, THRISSUR, PIN-680545.** **FAO (RO).No. 359 of 2013 & CO 60/2014** 2 - **5 K.SASIDHARAN, AGED 58 YEARS, S/O.AMMINI & KUNJIKKAVU AMMA, KUNNAMVELLATHERI HOUSE, MUNDATHICODE VILLAGE, TALAPPILLY TALUK, NOW RESIDING AT U.S.G.MIDDLE EST LTD., DAMAN, SAUDI ARABIA, K.S.A., REP. BY POWER OF ATTORNEY HOLDER VINODINI AMMA, KAMMANANGATTU HOUSE, PERAMANGALAM, THRISSUR, PIN – 680545** - **6 NARAYANANKUTTY, AGED 62 YEARS, S/O.KUTTAPPAN @ KRISHNA MENON, KUNNANVELLATHERI HOUSE AND PATTAYATHU, LAKSHMIKUTTY AMMA, MUNDATHICODE VILLAGE, TALAPPILLY TALUK, THRISSUR DISTRICT, PIN – 680595** - **7 PARAMESWARA MENON, AGED 50 YEARS, S/O. RAMAN NAIR, FLAT P.PANCHARATHNAM APARTMENT, KAMARAJ SALAI, VIRUGAMPAKKAM, MADRASS – 600092** - **8 THANKAMANI AMMA, AGED 58 YEARS, D/O. KUNNAMVELLATHERI KOCHAMMU, MUNDATHICODE VILLAGE, TALAPPILLY TALUK, PIN – 680595** - **9 UNNI MENON & BALAKRISHNA MENON (DIED), S/O. KUNNAMVELLATHERI KOCHAMMU, MUNDATHICODE VILLAGE, TALAPPILLY TALUK, PIN-680595** - **10 KESAVAN MENON (DIED), S/O. KUNNAMVELLATHERI KOCHAMMU, MUNDATHOCODE VILLAGE, TALAPPILLY TALUK, PIN-680595** - **11 SARADAMMA, AGED ABOUT 68 YEARS, W/O.UNNIMENON @ BALAKRISHNA MENON, MUNNAMVELLATHERI HOUSE, MUNDATHICODE VILLAGE, TALAPPILLY TALUK, PIN – 680 595** - **12 KARTHYAYANI, AGED 51 YEARS, D/O. UNNI MENON @ BALAKRISHNA MENON, KUNNAMVELLATHERI HOUSE, MUNDATHICODE VILLAGE, TALAPPILLY TALUK, THRISSUR DISTRICT, PIN – 680 595** - **13 RADHAKRISHNAN, AGED ABOUT 48 YEARS, S/O. UNNI MENON @ BALAKRISHNA MENON, KUNNAMVELLATHERI HOUSE, MUNDAHICODE VILLAGE, TALAPPILLY TALUK, THRISSUR DISTRICT, PIN-680595** **FAO (RO).No. 359 of 2013 & CO 60/2014** - **14 RAMANI AMMA, AGED ABOUT 68 YEARS, W/O.KESAVAN MENON, THOTTAPPILLY HOUSE, PERAMANGALAM P.O., MUNDOOR, THRISSUR – 680 541** - 15 **ASHA, AGED ABOUT 42 YEARS, D/O.KESAVAN MENON, THOTTAPPILLY HOUSE, PERAMANGALAM P.O., MUNDOOR, THRISSUR-680541.** - 16 **SINDHU, AGED ABOUT 40 YEARS, D/O.KESAVAN MENON, THOTTAPPILLY HOUSE, PERAMANGALAM P.O., MUNDOOR, THRISSUR-680541.** - 17 **RAMDAS, AGED ABOUT 38 YEARS, S/O.KESAVAN MENON, THOTTAPPILLY HOUSE, PERAMANGALAM P.O., MUNDOOR, THRISSUR-680541.** **R1,R2,R4,R5,R11 TO R17 BY ADVS.** **SRI.P.B.KRISHNAN SRI.P.B.SUBRAMANYAN SRI.P.M.NEELAKANDAN SRI.SABU GEORGE** **R6 BY SMT.SURYA BINOY** **THIS FIRST APPEAL FROM ORDER - REMAND ORDER HAVING BEEN FINALLY HEARD ON 14.02.2019, ALONG WITH CO.60/2014, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** 3 **FAO (RO).No. 359 of 2013 & CO 60/2014** 4 **IN THE HIGH COURT OF KERALA AT ERNAKULAM THE HONOURABLE MR. JUSTICE A.HARIPRASAD** **THURSDAY ,THE 14TH DAY OF FEBRUARY 2019 / 25TH MAGHA, 1940 CO.No. 60 of 2014 IN FAO (RO). 359/2013** ## **CROSS OBJECTORS – RESPONDENTS 2,4,5 AND 14 TO 17 IN FAO** - **1 VINODINI AMMA KAMMANANGATTU HOUSE, PERAMANGALAM, THRISSUR, PIN-680545.** - **2 VIJAYALAKSHMI D/O.AMMINI KUNJIKKAVU AMMA, KUNNAMVELLATHERI HOUSE, MUNDATHICODE VILLAGE, TALAPPILLY TALUK, REPRESENTED BY POWER OF ATTORNEY HOLDER VINODINI AMMA, KAMMANANGATTU HOUSE, PERAMANGALAM, THRISSUR, PIN-680545.** - **3 K.SASIDHARAN S/O.AMMINI & KUNJIKKAVU AMMA, KUNNAMVELLATERI HOUSE, MUNDATHICODE VILLAGE, TALAPPILLY TALUK, NOW RESDIDING AT U.S.G.MIDDLE EST LTD., DAMAN, SAUDI ARABIA, K.S.A., REPRESENTED BY POWER OF ATTORNEY HOLDER, VINODINI AMMA, KAMMANGATTU HOUSE, PERAMANGALAM, THRISSUR.** - **4 RAMANI AMMA W/O.KESAVA MENON, THOTTAPPILLY HOUSE, PERAMANGALAM P.O., MUNDOOR, THRISSUR-680541.** - **5 ASHA D/O.KESAVA MENON, THOTTAPPILLY HOUSE, PERAMANGALAM P.O., MUNDOOR, THRISSUR-680541.** **FAO (RO).No. 359 of 2013 & CO 60/2014** 5 **6 SINDHU D/O.KESAVA MENON, THOTTAPPILLY HOUSE, PERAMANGALAM P.O., MUNDOOR, THRISSUR-680541.** **7 RAMDAS** **S/O.KESAVA MENON, THOTTAPPILLY HOUSE, PERAMANGALAM P.O., MUNDOOR, THRISSUR-680541.** **BY ADV. SRI.P.B.KRISHNAN** ## **RESPONDENT/APPELLANT IN FAO:** **RAMACHANDRAN** **S/O.KUTTAPPAN @ KRISHNA MENON, KUNNAMVELLATHERI HOUSE AND PATTAYATHU LAKSHMIKUTTY AMMA, MUNDATHICODE VILLAGE, TALAPPILLY TALUK, THRISSUR DISTRICT.** **BY ADVS.SRI.RANJITH THAMPAN (SR) SMT.P.R.REENA** **THIS CROSS OBJECTION/CROSS APPEAL HAVING BEEN FINALLY HEARD ON 14.02.2019, ALONG WITH FAO (RO).359/2013, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **FAO (RO).No. 359 of 2013 & CO 60/2014** 6 ## **JUDGMENT** Heard the learned counsel for the appellant and learned Senior Counsel appearing for the respondents. 2 This appeal is directed against the judgment and decree passed by the learned District Judge, Thrissur, in A.S.No.229 of 2008. That appeal was filed against the judgment and decree in O.S.No.422 of 2000 on the file of the Court of Munsiff, Wadakkanachery. Suit is one for partition. 3. Plaint case, in brief, are as follows: Plaint schedule property admittedly belonged to one Kunjikavu Amma. It has come out in evidence that she died before 1084 ME (corresponding to 1909 AD). It is also worthy to note that except the basic tax register (Ext.A1) in the name of Kunjikavu Amma's daughter Parukutty Amma, nobody has produced any document of title to substantiate the fact the property belonged to Kunjikavu Amma. However, that is an admitted fact. Kunjikavu Amma had six children by name, Parukutty Amma, Kochammu Amma, Lakshmi Amma, Raman **FAO (RO).No. 359 of 2013 & CO 60/2014** 7 Menon, Janaki Amma and Krishnan Menon. It is also an admitted case that Parukutty Amma, Raman Menon and Janaki Amma died issue less. Plaintiffs are the children of deceased Krishnan Menon. Contesting defendants are the children and grand children of deceased Kochammu Amma and Lakshmi Amma. The plaintiffs claimed that they are entitled to get 1/3[rd] share in the property as the property has to be divided into three equal shares. 4. The suit is opposed by the defendants by contending that the property belonged to _thavazhi_ of Kunjikavu Amma. It is not the separate property of Kunjikavu Amma, and her children had acquired a right by birth according to the pristine Marumakkathayam law, which was in force at that time, as the parties belonged to Hindu Nair community. Krishnan Menon, being the son of Kunjikavu Amma, had only one share. Rest of the shares will have to be divided among other legal heirs of Kunjikavu Amma's children. 5. The trial court, after considering the evidence adduced before it, decreed the suit allowing the plaint claim. The contesting defendants took up the matter in appeal before the lower appellate court. **FAO (RO).No. 359 of 2013 & CO 60/2014** 8 6. Substantial questions of law arising in this appeal are as follows: _1. Was the first appellate court correct in holding that even the separate property of a marumakkathayi female, will become a thavazhi property on her death ?_ _2. What is the law of inheritance that applies as regards the separate property of a marumakkathayi female on her death before the commencement of Cochin Nairs Act 1095 ME ?_ _3. Is there is any presumption that on the death of a marumakkathayi female her property becomes joint family property, inherited by the thavazhi members, on female line ?_ 7. Learned District Judge, after considering the evidence on record, entered a finding that there are indications that the property belonged to the _thavazhi_ of deceased Kunjikavu Amma, and her children therefore could have had a right by birth, according to the Marumakkathayam law prevailed at that time. It therefore took the view that non-impleadment of necessary parties enumerated in paragraphs 10 to 12 would affect the quality of adjudication of the case. For arriving at this conclusion, reliance **FAO (RO).No. 359 of 2013 & CO 60/2014** 9 was placed on _**C.Kamalamma v. Narayana Pillai [1993 (1) KLT 174]**_ rendered by a Full Bench of this Court. The lower appellate court, considering the dictum in _**Kamalamma's**_ case, held that the question as to whether the property belonged to _thavazhi_ of Kunjikavu Amma or was it her individual property, has to be decided with the necessary parties on record. For that purpose, the case had been remanded to the trial court for a fresh adjudication, after impleading all the necessary parties. 8. Although the learned counsel for the appellant tried to attack the remand order, after hearing the learned counsel on both sides, I find no reason to interfere with the remand order, as the claim in the plaint that the property exclusively belonged to Kunjikavu Amma, cannot be accepted without revetting attention on that issue after impleading all the parties. The Cross Objection filed by the contesting respondents raised a plea of ouster, adverse possession and limitation. However, no opinion is expressed on those contentions because that is also a matter to be decided by the trial court at the time of considering the issues on merits. In the result, the appeal is dismissed, confirming the order of **FAO (RO).No. 359 of 2013 & CO 60/2014** 10 remand passed by the District Judge, Thrissur in A.S.No.229 of 2008 and the Cross Objection is disposed by directing the trial court to consider all the issues at the time of disposal of the suit. The parties shall appear before the trial court on 11.03.2019 and the trial court shall dispose of the matter within a period of four months from the date of appearance of the parties. All pending interlocutory applications will stand dismissed. **Sd/-** **A.HARIPRASAD** JV **JUDGE**