Kesava Pillai Bhavanendran Nair v. Kamalakshmy Pillai Sarojini Amma and Mathevan Pillai Sukumaran Nair

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT :** **THE HONOURABLE MR. JUSTICE P.BHAVADASAN** **THURSDAY, THE 16TH JUNE 2011 / 26TH JYAISHTA 1933** **SA.No. 470 of 2000(E)** **--------------------------** **AS.1013/1994 of SUB COURT,NEYYATTINKARA OS.1201/1989 of PRL.MUNSIFF COURT,NEYYATTINKARA** **....................** ## **APPELLANT(S):1ST RESPONDENT/PLAINTIFF** **-----------------------------------------------------** **KESAVA PILLAI BHUVANENDRAN NAIR, K.B.BHAVAN, MANGALAM, MANGALAM DESOM, PONMANA VILLAGE, KALKULAM TALUK, KANYAKUMARY DISTRICT.** **BY ADV. SRI.G.S.REGHUNATH** ## **RESPONDENT(S): APPELLANTS & RESPONDENTS 2 TO 8/DEFENDANTS 1 AND 2 & DEFENDANTS** **----------------------------------------------------------------------------------** **1. KAMALAKSHMY PILLAI SAROJINI AMMA, BHAGAVATHYVILA, MELE PUTHENVEEDU, KULSTHOOR DESOM, KULATHOOR PAKUTHY.** **2. MATHEVAN PILLAI SUKUMARAN NAIR, VADAKKE NADUTHATTU PUTHEN VEEDU, KANJIKUZHY KARODE DESOM, KARODE VILLAGE.** - **3. GOURI PILLAI SARASAMMA, ENIKARA PUTHEN VEEDU, CHERUVALLI KATTAKAL, KARAKULAM, THIRUVANANTHAPURAM, FROM PAKAPPAZHINJI VEEDU, KULATHOOR DESOM, KULATHOOR PAKUTHY.(DELETED)** - **4. GOURI PILLAI BHAGEERATHI AMMA, ANANDAKRISHNA TEA SHOP MAKER, PALLICHAL DESOM PALLICHAL VILLAGE, HAVING ALSO PAKAPPAZHINI VEEDU OF DO. DO.(DELETED)** ## **svs** **...........2/-...** **...2...** ## **S.A. NO.470/2000** - **5. GOURI PILLAI KRISHNANMMA, PRASAD BHAVAN, T.C.36/23, VALLAKKADAVU, THIRUVANANTHAPURAM, HAVING ALSO PAKAPPAZHINJI VEEDU, DO. DO.(DELETED)** - **6. GOURI PILLAI LELITHAMMA, KIZHAKKE PAKAPPAZHINJI VEEDU,KULATHOOR DESOM, KULATHOOR VILLAGE. (DELETED)** - **7. GOURI PILLAI OMANA AMMA, NADAKKAVU PUTHEN KATTUVILA VEEDU, VILAVAMKODE TALUK, KANYAKUMARI DISTRICT, FROM PAKAPPAZHINJI VEEDU OF DO. DO. (DELETED)** - **8. GOURI PILLAI PADMAVATHY AMMA, KIZHAKKE PAKAPPAZHINJI VEEDU, KULATHOOR DESOM, KULATHOOR PAKUTHY.(DELETED)** ## *** 9. RAGHAVAN PILLAI PADMANABHAN NAIR OF DO. DO.(DELETED)** - **RESPONDENTS 3 TO 9 ARE DELETED FROM THE PARTY ARRAY OF THE SECOND APPEAL AT THE RISK OF THE APPELLANT AS PER ORDER DATED 25/01/2011 IN I.A. NO.191/2011.** **THIS SECOND APPEAL HAVING BEEN FINALLY HEARD ON 09/06/2011, THE COURT ON 16/06/2011 DELIVERED THE FOLLOWING:** **svs** ## **ORDER ON C.M.P. NO.1668/2000** ## **IN** ## **S.A. NO.470/2000** ## **DISMISSED** **16/06/2011 SD/- P.BHAVADASAN, JUDGE /TRUE COPY/ P.A. TO JUDGE.** **==> picture [19 x 7] intentionally omitted <==** **----- Start of picture text -----**<br> svs<br>**----- End of picture text -----**<br> ## **P. BHAVADASAN, J.** - - - - - - - - - - - - - - - - - - - - - - - - - - - S.A. No. 470 of 2000 - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 16th day of June, 2011. ## **JUDGMENT** Plaintiff is the appellant. The suit was one for declaration, partition and other consequential reliefs. 2. The suit related to plaint A schedule items 1 and 2 and C schedule items 1 to 3. According to the plaintiff, plaint A and C schedule properties and C schedule building were portions obtained by Gouri Pillai as per partition deed of 1105. She sold plaint A schedule item Nos. 1 and 2 and C schedule item Nos. 2 and 3 and C schedule item No.1 building in favor of the plaintiff as per sale deed dated 5.7.1989. Accordingly, the plaintiff is in possession and enjoyment of the plaint schedule property. It was alleged that the defendants have no manner of right over the plaint schedule property. Items 1 to 3 in B schedule were admittedly in joint possession. As far as those properties are 2 concerned, it was conceded that it was partible. Since the defendants were trying to trespass into the property which exclusively belongs to the plaintiff, the suit was filed. 3. Defendants 1 and 2 resisted the suit. According to them, A schedule property is 67 cents which belonged to Gouri Pillai and it is a tarawad property. Defendants 1 and 2 are the children of Kamalakshi Pillai, who was the daughter of Gouri Pillai. Accordingly it is contended that the property belonged to Kamalakshy Pillai as it is a tarawad property. Therefore they claimed 1/10[th] share. The partition deed of 1972 was disputed. According to them, that had no force in law. The specific contention was that Kamalakshy Pillai had 1/8[th] share and the sale deed dated 5.6.1989 cannot confer absolute right on the plaintiff. On these grounds, they prayed for a dismissal of the suit. On the basis of the above pleadings issues were raised by the trial court. The evidence consists of Exts.A1 to A4(a) marked from the side of the plaintiff. The defendants S.A.470/2000. 3 had D.Ws.1 to 3 examined and Ext.B1 marked. Exts.C1 and C1(a) are the commission report and plan. 4. On an appreciation of the evidence, the case of the plaintiff was accepted and a decree was passed by the trial court in the following terms: _“The plaintiff's title over plaint A schedule item Nos. 1 and 2 and C schedule item Nos. 1 to 3 including the buildings is declared and that no declaration is granted in respect of possession over these properties, the plaintiff is allowed to recover possession of any part of the paint A schedule items 1 and 2 properties and C schedule items 1 to 3 including the building portions from the defendants 1 and 2 in case they are found to be in possession at the final decree stage._ _The plaintiff is allowed to partition the oodukur right over plaint B schedule items 1 and 3 properties and get separate possession of C schedule items 2 and 3 including C schedule item No.1 building separated from the oodukur enjoyment along with the other part of the properties by the defendants 3 to 9. The plaintiff will apply for passing final decree together with_ S.A.470/2000. 4 _the commission application for partition of the oodukur right over paint C schedule items 1 to 3 from B schedule items and 3. The plaint D one prayer for putting up of boundary will be considered at the final decree stage.”_ 5. Defendants 1 and 2 carried the matter in appeal as A.S.1013 of 1994 before the Sub Court, Neyyattinkara. The Sub Court allowed the appeal and the suit was dismissed. Hence the plaintiff has come up before this court. 6. Notice is seen issued on the following questions of law: - _“a) Are the plaint schedule properties Sub Tarwad_ - _properties as contended by the defendants?_ _b) Is the interpretation of Ext.B1 by the lower court correct and valid?_ _c) If the plaint schedule properties are the self acquisition of Narayani Pillai, can it become Sub Tarwad properties as contended by defendants?_ _d) Court below failed to note that as per B1 Gouri Pillai obtained absolute right over plaint schedule_ S.A.470/2000. 5 _property as B1 can only be treated as a gift deed/settlement deed in favour of Gouri Pillai as far as plaint schedule properties are concerned._ _e) A gift or bequest by a female to her daughter will not become sub tarwad properties._ _f) Has the lower court correctly applied the law applicable to the case.”_ 7. Learned counsel appearing for the appellant contended that only one aspect needs to be considered in this appeal, i.e., the true nature and purport of Ext.B1. If as a matter of fact it is to be found that it is a partition deed as found by the lower appellate court, then the appeal is to be rejected. If on the other hand it is found that it is a settlement deed, then the trial court decree will have to be restored. 8. According to the plaintiff Ext.B1 executed by Gouri Pillai and others can be treated only as a settlement deed and cannot be teated as a partition deed in the true sense of the term. It is evident that the self acquired S.A.470/2000. 6 properties of Narayani Pillai were distributed among herself and her children and her children had no pre-existing right. If that be so, it could not be treated as a partition deed. If Ext.B1 is a settlement deed, then Ext.A2 dated 5.7.1989, the sale deed executed by Kamalakshy Amma in favour of Bhuvanendran Nair is valid. 9. Ext.B1 is a document of the year 1105. The executants are one Narayani Pillai and her children namely, Narayana Pillai, Kesava Pillai, Bhagavathi Pillai, Gouri Pillai and Chellamma Pillai. The document is styled as a partition deed. One cannot omit to note the following recital in the said document: “പട�കവസ���കള നമ�ല ഒന�� കക�യ�ട� സ�യ�ര���വ�� ആയ�� ഒന�� കക�ന�ള���വട� സര�സ���ന മ�യ� �ട"റ അധ&ന�യ�ല വ�'� കകക�� � ട)യ���� ഒന�� കക�യ�� ഏ��ന�� �ജ�സ�ററര ഒറ�പ�� ഒറ�ക�� �� ” .. അന�ഭവ�'�വ��ന��മ�ക�ന� Further down, it is again stated as follows: S.A.470/2000. 7 “... ഒന�� കക�യ�ട� സ�യ�ര���മ�യ പട�ക വസ���കടളയ�� ടകട��ങടളയ�� ��ട1 പറയ�ന വ വസകള അന�സ��'� ഭ�ഗ�'���ക�ന��മ�ക�ന�.” 10. According to the learned counsel appearing for the appellant, it is very evident that the self acquired properties of Narayani Pillai were being distributed among her children and it could not be treated as a partition deed though nomenclatured as a partition deed. Learned counsel relied on the decision reported in **Arumughom Pillai v. Janardhana Panicker** (1959 K.L.J. 970) and contended that the property involved in Ext.B1 can be treated as the self acquired property of Narayani Pillai. 11. If as a matter of fact, the properties obtained by the respective executants under Ext.B1 cannot be treated as one obtained on partition, then of course it could not be said that the property in the hands of Narayani Pillai and her children acquired the characteristic of sub tharawad property. S.A.470/2000. 8 ## 12. It will be useful to refer the decision reported ## in **K. Gopalan v. Mathu** (1991(2) K.L.J. 718) it was held as follows: _“The bequest in this case is in favour of five daughters who by themselves do not constitute a tavazhi. Properties were bequeathed under the will executed by the mother who had bequeathed properties to her two sons under the same testament. A presumption that the bequest is in favour of a natural group capable of forming a tavazhi by themselves cannot therefore be drawn. There is thus no scope for invoking the presumption that the property was intended to be taken by the five daughters with the incidents of tarwad property.”_ ## 13. In the decision reported in **Kodakkadan Nani** ## **v. Kodakkadan Madhavi** (I.L.R.1976(1) Kerala 68) it was held as follows: _“Generally speaking, barring instances of blending and lapse, members of a marumakkathayam community cannot be said to_ 9 _be holding property as a tarwad or tavazhi unless they have by birth rights in the property (or in the funds with which the property is acquired). Under Section 25 of the Madras Marumakkathayam Act (Madras Act XII of 1933) on the death intestate of a marumakkathayam female her self-acquired or separate property devolves in the order and according to the rules contained in sections 26 to 29 both inclusive. The proviso to section 26 makes Explanation 1 to Section 20 applicable to such a case. Explanation 1 to section 20 lays down that descendants of a daughter, daughter's daughter or other female descendants in the female line shall not be entitled to any share if the daughter, daughter's daughter, or other descendant is alive at the time of the death of the intestate. This means that they inherited property not as tavazhy property but as tenants-incommon._ _The theory of de facto guardianship is not available so far as Marumakkathayam law is concerned. The exception to the rule is not with reference to the character or nature of the property but an exception particularly with reference to followers of Hindu Mitakshara Law.”_ S.A.470/2000. 10 14. In the decision reported in **Kallianikutty Amma v. Devaky Amma** ( 1950 K.L.T. 705) it was held as follows: _“When a gift is given to specified person, in the absence of an express or necessarily implied intention to the contrary, the Cochin High Court has always held that he donees take the properties as co-owners or tenants-in-common even though the donees or both the donor and donee may belong to a marumakkathayam community.”_ 15. It is therefore evident that if the intention is to give the property to the persons named therein individually, then it cannot be treated as sub-tarwad property in the hands of beneficiaries. 16. As already noticed, the question would be whether the transaction effected as per Ext.B1 is a partition or is only a settlement. In the case of partition, it is well settled that the executants have pre-existing rights. When 11 no pre-existing right vests in favour of the executants of the document, and the rights are being created for the first time in the document, it cannot be treated as a partition, but can be treated only as a gift or settlement. The reason is that the rights are being created for the first time and there are no pre-existing rights in favour of the executants. It will be useful to refer to the decision reported in **Ramaswami Pattamali v. Lekshmi** (1962 K.L.T. 243) wherein it was held as follows: _“Partition, in common as well as legal parlance, denotes a division of properties among co-sharers or joint tenants. A transaction by which property belonging to one is given or alloted to another can in no sense be a partition.”_ 17. Then the question that arises for consideration is whether the self-acquired property of Narayani Pillai, which is the subject matter of Ext.B1, can be treated as the tarawad property. There is no question of blending because no other tarwad property is dealt with S.A.470/2000. 12 under the document. The properties which exclusively belonged to Narayani Pillai or in other words the self-acquired properties of Narayni Pillai alone were the subject of Ext.B1. It will be useful to refer to the decision reported in **Cheetha alias Ammukutty v. Sankarankutty Nair** (1958 K.L.T. 547) to understand what constitute blending. In the said decision, it was held as follows: _“There can be no blending of the 1[st] defendant's 1/5[th] share in the properties in favour of the entire group unless it is shown that there is a voluntary throwing by the owner into the common stock with the intention of abandoning all separate claims upon it. Mere dealing with self-acquisitions as joint family property is not sufficient but an intention must be shown to wave his claims with full knowledge of his right to it as his separate property.”_ 18. A reading of Ext.B1 leaves one in no doubt that the properties dealt with under Ext.B1 were the self-acquisitions of Narayani Pillai and Narayani Pillai divided S.A.470/2000. 13 the properties among herself and her children to avoid future family dispute. It is very evident from a reading of the document itself that the executants, other than Narayani Pillai, had no pre-existing rights over the properties dealt with under Ext.B1 and rights in favour of the children of Narayani Pillai were being created for the first time under Ext.B1. If that be so, the properties could never be treated as the tarawad or sub tarwad properties. 19. The trial court has held that Ext.B1 cannot be treated as a partition deed. However, the lower appellate court felt that since the document is nomenclatured as a partition deed, nothing further needs to be looked into and it can be treated as a partition deed of the tarwad. 20. It is well settled that it is not the nomenclature of the document that matters, but the substance of the document. It is asserted in no less terms that the properties dealt with under Ext.B1 are self-acquired properties of Narayani Pillai and in the exclusive enjoyment and possession of Narayani Pillai and that being divided S.A.470/2000. 14 among herself and her children for the reasons mentioned in the document. As already noticed, the children had acquired rights for the first time as per the document and they had no pre-existing right over the same. The lower appellate court was therefore not justified in coming to the conclusion that Ext.B1 is a partition deed. There can be no doubt that the properties dealt with under Ext.B1 were self acquired properties of Narayani Pillai and the properties obtained by the children of Narayani Pillai under the document can only be treated as the self-acquired properties. The result is that the judgment and decree of the lower appellate court is clearly unsustainable in law and it is only to be reversed. I do so restoring the judgment and decree of the trial court. There will be no order as to costs. **P. BHAVADASAN, JUDGE** sb.