Gopalan Anirudhan v. Lasitha and others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT :** **THE HONOURABLE MR. JUSTICE P.BHAVADASAN** **MONDAY, THE 31ST JANUARY 2011 / 11TH MAGHA 1932** **SA.No. 814 of 1997(E)** **-------------------------------** **AS.128/1991 of SUB COURT,ATTINGAL OS.226/1989 of MUNSIFF COURT,VARKALA** **....................** ## **APPELLANT(S): 2ND RESPONDENT/2ND DEFENDANT** **----------------------------------------------------------------------------** **GOPALAN ANIRUDHAN, SINDHU NILAYAM, PANANTEMUKKU, NILAKKAMUKKU, KADAKKAVOOR VILLAGE, FROM THENGUVILA VEEDU.** **BY SMT.V.P.SEEMANDINI, SENIOR ADVOCATE BY ADVS.SMT.K.R.KRISHNAKUMARI SRI.M.S.UNNIKRISHNAN SRI.V.B.HARI NARAYANAN** ## **RESPONDENT(S): APPELLANT/PLAINTIFFS & LEGAL HEIRS OF IST DEFENDANT ------------------------------------------- 3RD & 4TH DEFENDANT.** **1. LASITHA, D/O. SUGANDHI, THENGUVILA VEEDU, HAVING ALSO KAITHAKUZHI VEEDU, KURAKKANNI DESOM, VARKALA VILLAGE .** **2. SMITHA D/O. SUGANDHI, THENGUVILA VEEDU, HAVING ALSO KAITHAKUZHI VEEDU, KURAKKANNI DESOM, VARKALA VILLAGE.** **3. M.S.MOHAN LAL, S/O. MADHAVAN, KARUKKANNI DESOM,VARKALA VILLAGE.** **4. GOPALAN CHANDRASENAN, THENGUVILA VEEDU, KARUKKANNI DESOM, VARKALA VILLAGE, AT PRESENT AT KRISHI BHAVAN THEKKENADA, VAIKOM KOTTAYAM DIST.** **5. A.SUGANDHI, THENGUVILA VEEDU, KURAKKANNI DESOM, VARKALA VILLAGE** **tss** ## **S.A. NO.814/1997** - ***6. DEVAKI SUSEELA, TENGUVILA VEEDU, KURUKANNI DESOM, VARKALA VILLAGE * (DIED)** **7. SOMANATHAN SUSHAMMA, ROSY NIVAS, KURAKKANNI VARKALA.** **8. SOMANATHAN JAYASREE, ROSY NIVAS, KURAKKANNI DESOM, VARKALA.** **9. SOMANATHAN GEETHA, ROSY NIVAS, KURAKKANNI DESOM, VARKALA.** **10. SOMANATHAN PAVITHRAN, ROSY NIVAS, KURAKKANNI, DESOM, VARKALA.** **11. SOMANATHAN PAVANAN, ROSY NIVAS, KURAKKANNI DESOM, VARKALA VILLAGE.** **12. SOMANATHAN ROSY, ROSY NIVAS, KURAKKANNI DESOM, VARKALA VILLAGE.** **13. SOMANATHAN VINAYAN, ROSY NIVAS, KURAKKANNI DESOM, VARKALA VILLAGE.** **14. SOMANATHAN LAISA, ROSY NIVAS, KURAKKANNI DEOSM, VARKALA VILLAGE.** ***IT IS RECORDED THAT R6 WHO IS ONE OF THE LEGAL HEIRS OF THE DECEASED IST DEFENDANT REMAINED EXPARTE BEFORE THE LOWER APPELLATE COURT AND AS THERE IS SUBSTRACT REPRESENTATION AS WELL FURTHER NOTICE TO IMPLEAD THE LEGAL HEIRS OF R6 IS FOUND UNNECESSARY AS PER ORDER DT. 3.11.2010 IN IA. 2855/2010.** **BY ADVS. SRI.G.UNNIKRISHNON SRI.G.P.SHINOD SRI.P.V.RAMESH SHANKAR R4 BY SMT.LEKSHMY RAMANATHAN** **THIS SECOND APPEAL HAVING BEEN FINALLY HEARD ON 31/01/2011 , THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **tss** ## **P.BHAVADASAN, J.** ------------------------------------SA No.814 of 1997 ------------------------------------Dated this the 31[st] day of January 2011 ## Judgment The second defendant in OS No.226/89 before the Munsiff's Court, Varkala, is the appellant. The suit was one for partition. The parties and facts are hereinafter referred to as they are available before the trial court. 2. It is seen that during the pendency of the appeal, the 6[th] respondent died and her legal heirs have been brought on the party array. 3. Devaki had six children, namely, Somanathan, Suseela, Arundhathi, Anirudhan, Chandrasenan and Chakrapani. Arundhathi predeceased Devaki, leaving behind her only daughter Suganthi. On 09.10.1967, a registered document was executed by Devaki and her children, settling the sub-tharawad properties of Devaki and her husband Gopalan. Ext.A1 is the said document. By Ext.A1, Somanathan and Suseela SA No.814/97 2 took their respective shares and the others decided to hold the property jointly. In the year 1987, as evidenced by Ext.A2, the plaint schedule property was partitioned among the others, including Suganthi. 4. Suganthi had two children, who are plaintiffs 1 and 2. The third plaintiff is their father. With the execution of Ext.A1 document dated 09.10.1987, a disruption in the joint status of the family was brought about and the division of shares was effected without allotting separate shares to plaintiffs 1 and 2. It may be remembered here that at the time of execution of Ext.A1 partition deed, Suganthi was a minor and she was represented by her grandmother Devaki. 5. Two minor children of Suganthi laid the suit, claiming 1/7 share pointing out that even after the execution of Ext.A1 document, the families of Devaki, Chakrapani, Anirudhan, Chandrasenan and Suganthi continued the joint status of the family. SA No.814/97 3 6. The second defendant resisted the suit. According to him, after the execution of Ext.A1, there was a total disruption in the joint status of the family and thereafter, the property set apart to Devaki, Chakrapani, Anirudhan, Chandrasenan and Suganthi was in the nature of tenancy in common and not joint tenancy. If that be so, according to him, from the date of the said settlement deed, the parties in the said deed have become absolute owners of their respective shares and they were enjoying it independently after effecting mutation. So, the plaintiffs have no right over the plaint schedule property because plaintiffs 1 and 2 were born after the date of the said settlement deed. Defendants 2 and 4 supported the plaintiffs. 7. On the above pleadings, necessary issues were raised by the trial court. The evidence consists of the testimony of PWs 1 to 6 and documents marked as Exts.A1 to A8 from the side of the plaintiffs. The fourth defendant was examined as DW1. No documents were marked from SA No.814/97 4 the side of the defendants. 8. The trial court, on an evaluation of the evidence in the case, came to a conclusion that Ext.A1 brought about a total disruption in the joint status of the tharawadu. The appellate court went on to hold that after the execution of Ext.A1 document, Devaki and her other children were holding the property as tenants in common. Relying on the decisions reported in D _**amodharan v. Kumaran**_ (1951 KLT 424) and _**Sinnammu Amma v. Narayanikutty Amma**_ (1967 KLT 521), the suit was dismissed. 9. The aggrieved plaintiff took up the matter in appeal as AS No.128/91 before the Sub Court, Attingal. The appellate court differed from the trial court and held that the shares set apart to the group consisting of Devaki and others continued to be the sub-tharawadu property and by virtue of their birth, plaintiffs 1 and 2 automatically got shares in the suit property, they having been born before SA No.814/97 5 1976. The lower appellate court placed heavy reliance on the decision in _**Cheriyan v. Bhasira Devi**_ (1967 KLJ 529). Accordingly, the judgment and decree of the trial court was reversed and a preliminary decree was granted in favour of the plaintiffs, directing division of the property into seven equal shares and allotment of two such shares to the plaintiffs. The said judgment and decree are assailed before this court. 10. Notice is seen issued on the following questions of law : (a) When does the severance of status of a Marumakkathayee tharawadu take effect ? Whether it takes effect on the very date on which the members of that tharawadu execute a registered deed partitioning the tharawadu property among themselves or will the severance be postponed till a division of the tharawadu property is actually effected by metes and bounds ? - (b) Whether the female members in a Marumakkathayee tharawadu born long subsequent to the disruption of the SA No.814/97 6 jointness of the tharawadu, by a partition deed executed by all the living members of the tharawadu will get any right in the tharawadu property ? (c) Whether provisions of the “Kerala Joint Hindu Family System (Abolition) Act, 1975 is applicable in the matter of succession in respect of female members born in a Marumakkathayee family in between 18.06.1956 and 01.12.1976 ? (d) The law of Succession as on which date should be taken into consideration in the matter of devolvement of the right to the new born children in Marumakathaym tharawadu - whether it is the law as on the date of death of the head of the thavazhy or the law as on the date of birth of the junior member in one unit of that thavazhy ? - (e) Whether in the facts of this case, by Ext.A1 deed, the joint nature of the sub-tharawadu property of the first defendant Devaki is disrupted and whether respondents 1 and 2 can have any right over the plaint schedule property ? ” SA No.814/97 7 11. The learned counsel for the appellant pointed out that the lower appellate court has erred in law and on facts, in coming to the conclusion that after the execution of Ext.A1 document, the joint status of the tharawadu continued by Devaki and group of persons and they were holding the property as joint tenants. According to the learned counsel, a reading of Ext.A1 will leave one in no doubt that there was a total disruption in the joint status of the tharawadu. The mere fact that the shares available to some of the parties were proposed to be enjoyed jointly in future, does not mean that the joint status is no more and that as far as they are concerned, the joint status continued. They were holding the property as tenants in common. If that be so, the two children subsequently born to Suganthi cannot claim any right over the suit property. The learned counsel drew the attention of this court to the decision reported in _**Damodharan v. Kumaran**_ (supra) in support of his contentions. SA No.814/97 8 12. Per contra, the learned counsel for the respondents pointed out that the lower appellate court has considered the evidence in detail and has reached the right conclusion. 13. It was contended that it is true that Ext.A1 says that the share due to each one of the parties is being considered, but that has necessarily to be so, in order to determine the shares available to Somanathan and Suseela, who decided to walk away from the common tarwad. There is nothing to show that after the partition in 1967, the group consisting of Devaki and her children, namely, Chakrapani, Anirudhan, Chandrasenan and Suganthi had separate properties in their names. The joint status of the tharawadu continued to be retained and enjoyed by them commonly as joint tenants. It is also pointed out that Devaki and the group of persons under her, formed the common tharawadu. If that be so, according to the learned counsel, the children born to SA No.814/97 9 Suseela had automatically got their share in the suit property. 14. Essentially, the question revolves upon the interpretation to be given to the statement in Ext.A1. It appears that Devaki had obtained properties in a partition of the year 1114 ME. Her husband had also acquired some properties before Ext.A1 was executed. Devaki and her children decided to pool the properties and effect division. The relevant statement in Ext.A1 reads as follows : “ഈ വ�ധമ�ളള പട�കവസ���കള അവക�ശകകമ� അന�സര�ച� ഭ�ഗ�ച� സ�കര��ന�സരണ� വസ��� ��ര�ചചട!ക�ന�� ഓരര�ര �തര�ചടയ�� ഭ�വ�രകശയസ�ന�� വസ���കള!ചട അഭ�വ'ദ�ക�� നല��ചണന� ന�� �*ര �മ�ന�ച കപക�ര� രവണച,ടവര�ചടയ�� രന�'�-ത�ല വസ���കചള �ല�പ���ല�പ� രന�ക� വ�ല വച � സ�കര��ന�സരണ� വ*��ചചട �ത��ല ഒന�� കക�യ�ചട ഓഹര�ക� എട�ത വസ��� ഒന�� ക പട�കയ�യ�� സബ� �ട!�ബത�ല�� കപര��ക സ-ത�ല�� രണ! മ��ല അഞ�വചര കക�കളക�� SA No.814/97 10 ബ�ല�� സ �ഗന�ക�� സ�ദ�രകണ ഓഹര�ക � എട�ത വസ�� � രണ�� പട�കയ�യ �� ആറ�� കക�ക�� ബ�ല�ന�:ളക �� രണ�ന� സ-ത�കള�ല�� സ�ദ�രകണ ഓഹര�ക� എട�ത വസ��� മ!ന�� പട�കയ�യ�� അട�യ�ല പട�ക ര;രത� പട�ക വസ�� �കള�ല നമ �ക�� പരസ�പര ബ�ല�ന�:ളക�� ഉളള ക!ടവക�ശ� വ�ടരത� പട�ക�ന �സരണ� സ�ര�വക�ശ� സ�പ�ച�ര�ക�ന��� ഇ�ന �സര�ച� ഓരര� പട�കയ�� കക�കള ഇന �മ��ല കകവശ� വചന�ഭവ�ച�� കര� �*രത �� രപ�ക �വരവ� ച;യ��� പടയ� പ�ട�ച�� എചനയ�ക�� സകലവ�ധ സ-��കA�ന�:രള�ട� ക!ട� നടന�ചക�ളള�ന��ന� പ!രBമ�യ� സമ��ച�ര�ക�ന���” It is the above clause, which is relied on by the learned counsel for the appellant for contending that by no stretch of imagination, it could be said that after the execution of Ext.A1, the jointness of the tharawadu continued and that the subsequent born children in the female line will automatically get their share in the property. SA No.814/97 11 15. The learned counsel emphasised that a reading of Ext.A1 will leave one in no doubt that the shares were calculated on a per capita basis and it cannot be said they they were holding the property as joint tenants thereafter. 16. Unfortunately for the appellant, it cannot be so. It is true that in Ext.A1, it is stated that the shares of each person is to be calculated. That was necessary to ascertain the shares of Somanathan and Suseela. After they were given their shares, Devaki and her other children continued the joint status of the tarwad and held the properly jointly. The second defendant, who was the contesting defendant, had not gone in the box at all. He has not given any evidence to show that after the execution of Ext.A1, the group of persons, consisting of Devaki and others who were given in the second schedule under Ext.A1 did not continue the joint status and they were holding the property as tenants in common. SA No.814/97 12 17. It is true that in the decision reported in _**Damodharan v. Kumaran**_ (supra), it was held as follows : “To use the language of the decision itself, the true nature of a document was to be determined not by the name given to it but by the operative and substantial portions thereof. That decision emphasis three features as indicative of an intention to divide. They are (1) the absence of a provision for a common karanavan, (2) a per capita distribution of the assets and liabilities among the several disintegrating units, and (3) the permanency of the arrangement.” 18. In the decision reported in _**Sinnammu Amma v. Narayanikutty Amma**_ (supra), it was held as follows : “Once a partition takes place in a marumakkathayan tarwad, the jointness of the tarwad is disrupted and therefater, the members SA No.814/97 13 of the tarwad would only be tenants-in-common of such properties as might have been left our of the partition for any reason. Stated as a rule of presumption, liable to be rebutted, there can be no exception to this proposition, but cannot be accepted as an invariable rule of law. There is nothing in law to prevent the members of a marumakkathayam tarwad from executing a partition deed dividing only some of their tarwad properties and the allottees taking their shares as their separate properties while at the same time providing for the continuance of the joint status of their tarwad and for holding the remaining properties as undivided tarwad properties. Partition consists in defining shares of the members in the joint property and a physical division of the property is not necessary. Once the shares are defined, there is a severance of SA No.814/97 14 the joint status. The parties may then make a physical division of the property or they may decide to live together and enjoy the property in common. But the property ceases to be joint immediately the shares are defined and thenceforth the parties hold it as tenants-incommon. There can be a division in status among the members of a tarwad by definement of shares which is technically called 'division in status or an actual division among them by allotment of specific property to each one of them which is described as division by metes and bounds.” 19. There can be no dispute that if there is actual division of the tarwad and a few people thereafter decide to hold their properties obtained separately and set apart separately jointly, it may not constitute a separate thavazhi at all. The presumption normally is that the property is allotted to that thavazhi and in that case, the SA No.814/97 15 subsequently born children in the female line will automatically get a right of share in the property. In the case on hand, the group consisting of Devaki and her children and grandchildren, had been set apart in the second schedule. 20. One may now refer to Ext.A2 also whereby Devaki and other children partitioned the property among them which they got under Ext.A1. There is a recital in Ext.A2 which reads as follows : “നമ�ചട ഓഹര�ക� ക!ട�യ� രണ�� ന�പര പട�കയ�യ� ��ര�ച�ക�ട� സരDസ-��കA�മ�ളള��� ക!ട�യ� കകവശ� വച� കരവ�� �*രത� അന�ഭവ�ച�വര�ന��� 5891 ന�കപ� �ണര,ര�ല ചക�ണ��മ�ക�ന�.” The above recital clearly shows that the persons who obtained the property, included in the second schedule, continued to hold the properties as joint tenants. 21. The decision relied on by the lower appellate court in _**Damodharan v. Kumaran**_ (supra) may not have any application on the facts of this case. That was a case, SA No.814/97 16 where the issue considered was whether a family in which partition is effected, will continue to hold the property as joint property to give right to children born subsequently. When a property is set apart to a family member, a child born subsequently to her gets a right by birth, in the property. That principle can have no application to the present case. However, as already noticed, a reading of Exts.A1 and A2 will leave one in no doubt that even after the division of shares, Devaki and her children continued the joint status of the family. If that be so, the lower appellate court was perfectly justified in decreeing the suit. No substantial questions of law arise for consideration in this appeal. 22. The result is that the second appeal is devoid of any merits and it is accordingly dismissed. However, there will be no order as to costs. SA No.814/97 17 23. This court is given to understand that Chandrasenan and Devaki are no more. Their share will devolve on their legal heirs in accordance with law. **P.Bhavadasan, Judge** sta SA No.814/97 18