Kanakamma and others v. Sarasamma

RFA.345/2006 1 # **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MRS. JUSTICE SHIRCY V.** **FRIDAY, THE 29TH DAY OF NOVEMBER 2019 / 8TH AGRAHAYANA, 1941** **RFA.No.345 OF 2006(E)** **AGAINST THE JUDGMENT IN OS 80/2003 DATED 15-06-2004 OF SUB COURT, CHERTHALA** ## **APPELLANTS/PLAINTIFFS:** |**1**|**KANAKAMMA, AGED 67,**| |---|---| ||**D/O.PARAMESWARAN, SOUPARNIKA, AROOR MURI,**| ||**AROOR VILLAGE.**| |**2**|**VIJAYAKUMARI, AGED 56,**| ||**W/O.SARATHCHANDRAN PILLAI,**| ||**KANDATHIL PARAMBIL, FROM ROHANI,**| ||**KULASEKHARA MANGALAM MURI,**| ||**KULASEKHARAMANGALAM VILLAGE.**| |**3**|**SUDHA, AGED 49,**| ||**W/O.CHANDRASEKHARAN PILLAI, FROM ROHANI,**| ||**KULASEKHARA MANGALAM MURI,**| ||**KULASEKHARAMANGALAM VILLAGE.**| |**4**|**REMA, AGED 46,**| ||**W/O.SREEKUMAR FROM ROHANI,**| ||**KULASEKHARA MANGALAM MURI,**| ||**KULASEKHARAMANGALAM VILLAGE.**| |**5**|**SARADAMMA, AGED 72 YEARS,**| ||**W/O.LATE SREEDHARAN PILLAI FROM ROHANI,**| ||**KULASEKHARA MANGALAM MURI,**| ||**KULASEKHARAMANGALAM VILLAGE.**| ||**BY ADVS.**| ||**SRI.K.JAYAKUMAR (SR.)**| ||**SRI.N.AJITH**| ||**SMT.GEETHA P.MENON**| ||**SRI.P.B.KRISHNAN**| ||**SRI.P.M.NEELAKANDAN**| ||**SRI.R.SURAJ KUMAR**| ||SRI. HARIKRISHNAN M| RFA.345/2006 2 ## **RESPONDENT/DEFENDANT:** **SARASAMMA, AGED ABOUT 61 YEARS, PURATHEZHATHU VEETTIL, AROOR MURI, AROOR VILLAGE.** **R1 BY ADV. SRI.P.GOPAL R1 BY ADV. SRI.P.G.PARAMESWARA PANICKER SR.** **THIS REGULAR FIRST APPEAL HAVING BEEN FINALLY HEARD ON** **15-11-2019, THE COURT ON 29-11-2019 DELIVERED THE FOLLOWING:** RFA.345/2006 3 ## **JUDGMENT** **Dated this the 29th day of November 2019** Aggrieved and dissatisfied with the judgment and decree in O.S. 80 of 2003 on the file of the Subordinate Judge, Cherthala, the plaintiffs have come up with this appeal. 2. The parties are referred to as the plaintiffs and the defendants as per their ranking before the court below. 3. Facts of the case relevant for disposal of this appeal in brief are as follows: The plaint schedule property which consists of 1 acre 15 cents originally belonged to one Sankaran Raman as per a registered sale deed of the year 1052 ME. After his death, the property devolved upon his children Narayanan, Govindan and Ittichirutha. Thereafter Narayanan and Govindan RFA.345/2006 4 assigned their rights in the property in favour of Ittichirutha and her children namely, Parameswaran, Raman, Narayanan and Kallyani (Jr.). Later Raman and Narayanan expired. The properties after the death of Ittichirutha devolved on her son Parameswaran and her daughter Kalyani. Parameswaran had three children by name Kanakamma, Sreedharan Pillai, and Kamalamma. Kamalamma expired issue-less. Kanakamma is the 1[st] plaintiff, and Sreedharan Pillai's wife Saradamma is the 5[th] plaintiff. The Plaintiffs 2 to 4 namely, Vijayakumari, Sudha and Rema, are the children of Sreedharan Pillai and Saradamma, the 5[th] plaintiff. Kalyani, the daughter of Ittichirutha, had two daughters by name, Santhamma and Sarasamma. Santhamma died intestate and Sarasamma is the defendant in the suit. After the death of Raman and Narayanan, their property devolved on Parameswaran, and RFA.345/2006 5 Kalyani (brother and sister of Raman and Narayanan). Parameswaran had 15/24 shares in the plaint schedule property and Kalyani had 9/24 shares. Parameswaran's right over the property devolved on his wife and children. After the death of Sreedharan Pillai, the son of Parameswaran, his right devolved on the 5[th] plaintiff, his wife and the plaintiffs 2 to 4, their children. Some of the property was acquired for construction of the National Highway. The plaintiffs are entitled to get share over the plaint schedule property and hence the suit for partition. 4. The suit was resisted by the defendants interalia contending that the parties to the suit belonged to Pattarya community. They follow Marumakkathayam law of inheritance. Sankaran Raman acquired the property for enjoyment of the thavazhy under his wife Kalyani and Kalyani was in possession RFA.345/2006 6 of the property as the karanavathi of the family. Though the sale deed was in the name of Sankaran Raman, he acquired the property for the benefit of the sub tarwad of his wife and children and he had only nominal right over the property. In fact after the death of Kalyani, as per settlement deed 1073 M.E, the property which stood in the name of Sankaran Raman was given to his children, Narayanan, Govindan and Ittichirutha. Narayanan and Govindan by executing document No. 416/1085 M.E, have relinquished their rights in favour of Ittichirutha's thavazhy. Ittichirutha has title and possession over the property. She did not have a son by name Govindan and the averment in the plaint is not correct. 5. By virtue of Marumakathayam system, the property belonged to the thavazhy of Kalyani and she got right on her birth. When Parameswaran died, his interest in the RFA.345/2006 7 sub tarwad lapsed by survivorship to the sub tarwad of Senior Kalyani. At the time of Parameswaran's death, the only surviving member in the thavazhy was Junior Kalyani and he had no heritable right to devolve on his wife and children. There were three kudikidappukars in the property and one had shifted and the other two obtained purchase certificates under the Kerala Land Reforms Act. The plaint schedule property is not liable to be partitioned and the plaintiffs are not entitled to claim any share over the property, was the stand taken by the defendants. 6. Before the court below, the plaintiffs did not adduce any oral evidence, but Exts. A1 to A3 were marked. For the defendants, DW1 was examined and Exts. B1 to B6 were marked. 7. The court below framed the necessary issues and RFA.345/2006 8 held that the parties follow Marumakathayam law of inheritance and the death of Paramesaran was before the commencement of Hindu Succession Act and his interest devolved on Kallayni and then to the defendant and so the plaintiffs have no right over the plaint schedule property. Thus the suit was dismissed. The said judgment and decree are under challenge. 8. Heard Adv. S.V. Balakrishna Iyer, the learned Senior Counsel for the appellants/plaintiffs and Adv. P.G. Parameswara Panicker, the learned Senior Counsel for the respondent/defendant. 9. Partition is sought for with respect to 1 acre 15 cents scheduled in the plaint. Out of the total extent, admittedly a certain extent of land was acquired for the construction of National Highway. The parties to the litigation RFA.345/2006 9 belong to 'pattarya community' and according to the defendant, the members of this community are following Marumakkathayam Law for inheritance. To buttress the said argument the learned counsel for the defendant placed reliance on the decision of this court in Sreedharan Pillai v. Narayana Pillai (1959 KHC 175) wherein it was observed that the members of 'Pattarya community' are following pristine Marumakkathayam Law of inheritance. The same was the finding in Kochunarayana Pillai v. Kumara Pillai (1962 KLT 379) another case between the members of that community. Again this Court in S.A. 275 of 1993 between one J anaki Amma and others v. Padmanabha pillai and others held that Pattyara community is governed by well pristine Marumakkathayam law of inheritance. Therefore, it is well settled that the members of Pattarya community follow RFA.345/2006 10 Marumakkathayam law of inheritance. 10. In chapter II (Tharwad and its management) of ' Marumakkathayam and Allied Systems of Law in the Kerala State ' by K.S. Sreedhara Variar, it is stated as follows: “A Marumakkathayam joint family is called a Tharwad. It consists of a female ancestor, her children, her daughter's children, her daughter's daughter's children and all such other descendants, however remote, in the female line. The male descendants themselves are its members but their children are not. A person belongs to the Tharwad of his or her mother only and Tharwad membership arises by birth in the family. A female member of a Tharwad does not change her family by marriage unlike in the other systems which follow the agnatic line of descent. Every member of a Marumakkathayam Tharwad, whether male or female, is comparable with the coparcener of a joint Hindu family with respect to the principal incidents of birth – right and survivorship. Each member of a Tharwad acquires an interest in the Tharwad properties RFA.345/2006 11 by reason of his or her birth alone, and when any member dies, the interest of that member devolves upon the other members of the Tharwad. Thus the interest of every member of a Tharwad is a fluctuating factor, it increases by deaths of other members and gets reduced by new births in the Tharwad.” 11. Ext. A1 is the certified copy of the sale deed dated 24.1.1052 M.E. executed by Ittiyathi K.E., Ittiyathi Cherukkan and Ittiyathi in favour of Sankaran Raman. Ext. A1, reveals that the acquisition of property was by Sankaran Raman. Sankaran Raman had married Kallyani and their children are Narayanan, Govindan and Ittichirutha. As referred above, Parameswaran, Raman and Narayanan are the sons of Ittichirutha and( junior) Kallyani was her daughter. The 1[st] plaintiff is claiming right over the property as the legal heirs of Parameswaran who died intestate and the plaintiffs 2 to 5 are claiming share as the legal heirs of Sreedharan Pillai, RFA.345/2006 12 the son of Parameswaran, who also expired. It is pertinent to note that Sankaran Raman, while holding the property, had executed Ext.B1, a registered Udampady on 22.2.1073 M.E. of SRO Cherthala in favour of his two sons, Raman Narayanan, Raman Govindan and daughter Ittichirutha. Ext.B1 reveals that after the death of his wife Kallyani, by executing a deed, he had gifted the property in favour of his three children. Ext. A2 is a sale deed dated 23.2.1085 M.E. executed by Raman Narayanan and Raman Govindan in favour their sister Ittichirutha and by executing the said document they have assigned their rights in the property in favour of Ittichirutha and their right and interest in the property obtained by them as per Ext.B1 executed by the father Sankaran Raman were given in favour of their only sister Ittichirutha. In this document, there is a specific recital to the effect that the RFA.345/2006 13 property was assigned to them by Sankaran Raman. Thus the property was assigned in favour of Ittichirutha. Admittedly, Raman and Narayanan, the sons of Ittichirutha expired and her another son Parameswaran and daughter Kallyani were the legal heirs of Ittichirutha on her death. The children of Parameswaran are Kanakamma, the 1[st] plaintiff, Sreedharan Pillai and Kamalamma. Admittedly, Kamalamma died issueless. The 5[th] plaintiff is the wife of Sreedharan Pillai and the plaintiff 2 and 4 are the children of Sreedharan Pillai. The question to be looked into is whether the property is liable to be divided among the plaintiffs and the defendant, who is the sole legal heir of Junior Kallyani. As the parties are following Marumakkathyam law of inheritance, whether the 1[st] plaintiff, as the legal heir of Parameswaran and the plaintiff 2 to 5 as the legal heirs of Sreedharan Pillai, the son of RFA.345/2006 14 Parameswaran, are entitled to get shares, is the question to be looked into. 12. The definite case of the defendant is that as the parties are followers of Marumakkathayam law, the acquisition of right by birth survives and no member will have any definite share and their rights will be fluctuating and hence Parameswaran had no definite or specific share. The learned counsel for the defendant stressed that the Hallmark of Marumakkathayam Law is acquisition of right by birth, survivorship, impartibility, the members of the tarwad having no right to claim partition and having no heritable or alienable right in tharwad property. Their right is only to get maintenance from the tarwad. As soon as a child is born to a female member of the tharwad that child will become a member of the tarwad and it will get a share in the tharwad RFA.345/2006 15 property. If a member dies, his or her right devolves by survivorship on the other members of the tharwad. Formerly, before passing enactments modifying the law even self acquired or separate properties of a member of the tharwad lapsed to his or her thavazhi. The share did not devolve on his/her personal heirs. 13. By Ext.B1 it could be seen that though the document is styled as an udampady, it is in fact a gift deed by which all the children of Sankaran Raman namely, Narayanan, Govindan and Ittichirutha are gifted with the property having an extent of 1 acre 15 cents. Later, by Ext. A2 sale deed dated 23.10.1985 M.E. Narayanan and Govindan surrendered/relinquished their interest in the property to their sister Ittichirutha. After execution of Ext. A2 Kallyani was born to Ittichirutha and thus she has become a member of the sub RFA.345/2006 16 tharwad and obtained right over the property. Later Raman and Narayanan, the children of Ittichirutha expired and the surviving members were only Parameswaran and Kallyani. When Parameswaran expired, the sole surviving member of the sub tharwad was Kallyani. Santhamma and Sarasamma were born to Kallyani and on the death of Santhamma, the sole surviving member of the sub tharwad was Sarasamma, the defendant. Per contra the plaintiffs' case is that, when Parameswaran died, his right devolved upon the 1[st] plaintiff and Sreedharan Pillai as Kamalamma, their sister died issueless. As Marumakkthayam Law is applicable to the parties, his right devolved on the existing member of the sub tharwad by survivorship, i.e. to Kallyani. According to the defendant, the death of Parameswaran was much before the Hindu Succession Act on 17.6.1956. The contention raised by RFA.345/2006 17 the defendant that Parameswaran died before the commencement of the Hindu Succession Act has not been denied by the plaintiffs. So also no evidence was adduced to rebut the said fact. Therefore his right will devolve on the sole surviving member i.e.Kallayani. 14. It is to be noted that Ext.B2 dated 25.4.1115 M.E. (11.12.1942) is the sale deed executed by one Swaminathan and another in favour of one Vava. This document would indicate that the 39 cents of land in Sy. No.12/1B involved in the document was outstanding on oral lease with Parameswaran on an annual rent of Rs.3/-. By this document, it is further revealed that the right of Parameswaran over the property lapsed and Kallyani, the sister of Parameswaran, got the leasehold right as a member of the tharwad. This would indicate the fact that death of RFA.345/2006 18 Parameswaran was before 1943. Ext. B3 is a will deed executed by one Krishna Pillai, the husband of Kallyani, the sister of Paramewara Pillai. In this deed also, there is recital to the effect that the daughter of Ittichirutha, Kallyani, his wife, was having three brothers and they expired. This document was executed on 17.8.1951. So, Exts. B2 and B3 would show that the death of Parameswaran was before the commencement of the Hindu Succession Act on 17.6.1956. If only the death of Parameswaran was after the commencement of the Hindu Succession Act, his share in the sub tharward would devolve on his heirs as provided under Section 8 of the Hindu Succession Act. But as it has come out in evidence that Parameswaran died before the commencement of Hindu Succession Act, his right and interest went by survivorship to his sub tharward and that is on Kallyani. Hindu Succession Act RFA.345/2006 19 which came into force abrogates every other system of inheritance,but the death of Parameswaran was much before the commencement of Hindu succession Act. So, the plaintiffs cannot claim any share over the property as the legal heirs of Parameswaran. As referred above, the plaintiffs did not adduce any evidence to prove that Parameswaran was alive even after the commencement of the Hindu Succession Act and his right devolved upon the plaintiffs on his death. Therefore, on the death of Paramewaran his right over the tarwad property went by survivorship and Kallyani, his sister was the surviving member and after her death it devolved upon her daughter, the defendant. As referred above, no reliable and convincing evidence was adduced by the plaintiffs to prove that the death of Parameswaran was after the commencement of the Hindu Succession Act so as to claim any right over the RFA.345/2006 20 property as the legal heirs of Parameswaran. It is pertinent to note that the plaintiffs have approached the court claiming share almost after 67 years of the death of Parameswaran. The evidence available on record would further reveal that Kalyani had never shared the income of the property with others. When a portion of the property was acquired for the purpose of NH -47 the entire compensation was taken by the defendant as the revenue officials have recognized her as the owner of the property. It is also the case of the defendant that about 4.063 cents of land out of the total extent had been sold by the defendant and at that time also there was no objection from the side of the legal heirs of Parameswaran. So also when purchase certificate was issued to the tenants by the Land Tribunal, the legal heirs of Parameswaran did not participate in the proceedings and they were not made as parties to the RFA.345/2006 21 litigation. All these facts would also reveal that the legal heirs of Parameswaran never raised any claim for share, after his death and there was also no sharing of income between the parties. According to the learned senior counsel for the defendant even if the plaintiff had any right it was lost by ouster which could be presumed. The plaintiffs have also failed to adduce any oral evidence to substantiate their case. Though the learned senior counsel for the plaintiffs canvassed for a remand of the case, I do not find any justifiable ground for the same. 15. On a meticulous evaluation of the aforesaid evidence available on record, it could be seen that the court below has rightly found that the plaint schedule properties are not liable to be partitioned among the plaintiffs and the defendant, as prayed for. RFA.345/2006 22 In the light of foregoing discussion, I find no merit in the appeal which thus fails and is accordingly dismissed. The parties shall bear their respective costs. Sd/SHIRCY V JUDGE sb