Kolappala Pathumma and others v Pazhukoth Kadeessumma and others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT :** **THE HONOURABLE MR. JUSTICE P.BHAVADASAN** **MONDAY, THE 20TH JUNE 2011 / 30TH JYAISHTA 1933** **SA.No. 551 of 1996()** **------------------------------** **AS.145/1991 of PRL.SUB COURT,THALASSERY OS.559/1988 OF PRL.MUNSIFF COURT,KANNUR** **....................** ## **DEFENDANTS 5 TO 12/APPELLANT(S): APPELLANTS** ## **----------------------------------------------------------------------------** **1. KOLAPPALA PATHUMMA W/O.AYUB, OTTAPEEDIKA, PUZHATHI AMSOM, EDACHERRY DESOM, KANNUR DT.** **2. KOLAPPALA SUBAIDA, D/O. PATHUMMA, DO. DO.** **3. KOLAPPALA SARAF, D/O. DO. DO.** **4. KOLAPPALA NASEEMA, D/O. DO. DO.** **5. KOLAPPALA RAFEEQUE, S/O. DO. DO.** **6. KOLAPPALA NAZEEB, S/O. DO. DO. (MINOR).** **7. KOLAPPALA SHEFEENA, D/O. DO. (MINOR).** **8. KOLAPPALA SHEMEENA, D/O. DO. DO.(MINOR).** ## **(MINORS GUARDIAN APPELLANT NO.2.** - **BY SRI.V.R.VENKATAKRISHNAN, SENIOR ADVOCATE BY ADVS. SRI.S.ANANTHAKRISHNAN SRI.N.C.JOSEPH SRI.S.ANANTHAKRISHNAN SRI.N.K.SUBRAMANIAN** **RESPONDENT(S): 1 TO 6,8 TO 26.** **-------------------------------------------------** **1. PAZHUKOTH KADEESSUMMA, D/O. KAMAL,** **NEAR MANIKKOTH HOUSING COLONY, PUZHATHI AMSOM AND DESOM, KANNUR DT.** **2. PAZHUKKOTH AYSHA, D/O. KAMAL, DO. DO.** ## **S.A. NO.551/1996** **3. PAZHUKKOTH SALIM, S/O. DO. DO.** **4. PAZHUKKOTH YUNAZ, S/O. DO. DO.** **5. KOLAPPALA MUHAMMAD, S/O. MOOSA, PUZHATHI AMSOM, KAKKAD DESOM, P.O.KAKKAD, KANNUR DT.** **6. KOLAPPALA YAKUB, (BORN DEAF AND DUMP), S/O. AYUB, OTTAPEEDIKA, PUZHATHI AMSOM EDACHERRY, DESOM, KANNUR DISTRICT, THROUGH GUARDIAN AND NEXT FRIEND 5TH RESPONDENT.** **7. KOLAPPALA MAJEED, S/O. DO. DO.** - ***8. VELLARIKANDATHIL MARIYUMMA, W/O. KUNHIMOIDEEN, SADIRIPALLI, P.O.KAKKAD, KANNUR. (DIED).** **9. VELLARIKKANDATHIL AFSATH, D/O. KUNHIMOIDEEN, DO. DO.** **10. VELLARIKKANDATHIL, SUHARA, DO. DO.** **11. KUTTIPALLAKATH NABEESSA, W/O.MUHAMMED, PUZHATHI AMSOM KAKKAD DESOM, P.O.KAKKAD KANNUR DISTRICT.** **12. KUTTIPALLAKATH KHALID, DO. DO.** **13. KUTTIPALLAKATH NIZAR, DO. DO.** **14. KUTTIPALLAKATH MUBARAK, DO. DO.** **15. KUTTIPALLAKATH SULAIKA, DDO. DO.** **16. KUTTIPALLAKATH RABI, D/O. DO. DO.** **17. KUTTIPALLAKATH NAZAR, S/O. DO. DO.** **18. KUTTIPALLAKATH RAHIMATH, D/O. DO. DO.** **19. MULLOLI ROULA, W/O. KOLAPPALA HAMZA, PUZHATHI AMSOM, KAKKAD DESOM, KANNUR DT.** **20. NAZEEMA, D/O. ROULA, DO. DO.** **21. HABEEB, S/O . DO. DO.** **tss** ## **S.A. NO.551/1996** **22. NAZHARI, S/O. DO. DO.** **23. SAREENA, D/O. DO. DO.** **24. RIYAS, S/O . DO. DO.** **25. REMEEZ, D/O. DO. DO.** *** RESPONDENTS 9 AND 10 ALREADY IN THE PARTY ARRAY ARE RECORDED AS THE LEGAL REPRESENTATIVES OF DECEASED 8TH RESPONDENT AS PER ORDER DTD. 7.3.2011 IN MEMO BEARING CF. 1417/11 DTD. 25.2.2011.** **R1 TO R4 BY ADVS. SRI.M.RAMESH CHANDER, SRI.V.RAMKUMAR NAMBIAR.** **THIS SECOND APPEAL HAVING BEEN FINALLY HEARD ON 13/06/2011, THE COURT ON 20/06/2011 DELIVERED THE FOLLOWING:** **tss** ## **P. BHAVADASAN, J.** - - - - - - - - - - - - - - - - - - - - - - - - - - - ## S.A. No. 551 of 1996 - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 20th day of June, 2011. ## **JUDGMENT** Defendants 5 to 12 in O.S. 559 of 1988 before the Munsiff's Court, Cannanore are the appellants. The parties and facts are hereinafter referred to as they are available before the trial court. 2. The suit was one for partition. Plaintiffs are the legal heirs of late Kamal, who was one of the children of Ayub and Ayishumma. Plaint B schedule property belonged to Ayub. On the death of Ayub, the property devolved on his wife and children. Consequent on the death of Ayishumma, her rights devolved on her children, namely, defendants 2 to 5 and late Kamal. Consequent on the death of Kamal, his rights devolved on the plaintiffs. The plaint makes mention of the derivation of title to the suit property. Kamal died in the year 1986. The plaintiffs do not wish S.A.551/1996. 2 to continue the joint possession and therefore the suit was laid. 3. The suit was resisted by defendants 1 to 4 and 16, who filed a joint written statement. They disputed the plaintiffs' claim for partition. According to them, item No.5 was gifted by Ayub to his wife and children, namely, Moideenkutty, Kamal, Mahamood and defendants 2 and 3. In 1954 Ayshumma said to have assigned the property to Kolappala Pathumma. It belonged exclusively to the fifth defendant in the suit. The predecessor-in-interest of the plaintiffs had assigned his right over plaint item No.5. They have raised various other contentions. Since this appeal is concerned only with item No.5, the pleadings regarding that are being referred to. They contended that plaint item No.5 was not available for partition. 4. Defendants 5 to 12 have filed a written statement almost similar to the written statement of defendants 1 to 4. Defendants 13, 15 and 14 supported the plaintiffs. Defendants 19 to 23 also filed a written S.A.551/1996. 3 statement pointing out that they had no right over the suit property. 5. On the basis of the above pleadings, issues were raised by the trial court. The evidence consists of the testimony of P.W.1 and documents marked as Exts.A1 to A8 from the side of the plaintiffs. The contesting defendants examined D.Ws. 1 and 2 and had Exts.B1 to B11 marked. The trial court found that the properties are partible and passed a preliminary decree as follows: _“In the result plaint B schedule items are found partible among plaintiffs and defendants. Item one of the plaint schedule property shall be divided into 9 equal shares. The plaintiffs together are entitled to 2/9 such shares. Defendants 2 to 4 are entitled to 2/9 shares each. Defendant No.5 is entitled to 1/9 share._ _Item 2, 3 and 4 shall be divided into 1620 equal shares. The plaintiffs are together entitled to 150/1620 shares. the 1[st] defendant is entitled to 126/1620 shares. The defendants 2, 3, 4 are entitled to 150/1620 shares each. D5 is entitled to 129/620 shares. D6, 7, 8, 9, 10, 11 and 12 are_ 4 _entitled to 108/1620 shares each. D16 is entitled to 9.1620 shares. Item No.5 shall be divided into 648 shares. D2 also is entitled to 171 out of 648 shares. D5 is entitled to 306/648 shares. Defendants 13, 14 and 15 and defendants 17 to 23 are not entitled to any shares._ _The defendants who are found to be entitled to shares shall not be allotted any shares since they have not paid court fee. The plaintiffs are entitled to share of mesne profits from items 1 and 5 from the 5[th] defendant from the date of plaint till recovery of possession of their share. Plaintiffs are also entitled to share of mesne profits from items 2, 3 and 4 from D1 from the date of plaint till recovery of possession of their shares._ _The quantum of mesne profits is left open to be decided in the final decree proceedings._ _The costs of this suit shall come out of the estate. The plaintiffs are at liberty to apply for final decree for partition of the properties into metes and bounds.”_ S.A.551/1996. 5 6. Defendants 5 to 12 preferred an appeal as A.S. 145 of 1991 against the preliminary decree before the Sub Court, Thalassery. Before the lower appellate court the contest was limited to item No.5, which the fifth defendant claims exclusively belonged to her. The lower appellate court found the claim of the appellants to be untenable and dismissed the appeal confirming the judgment and decree of the trial court. Hence this Second Appeal. 7. Notice is seen issued on the following questions of law: _“A. Were the courts below justified in holding that item No.5 of the plaint schedule property was available for partition in view of the fact that the rights of Kamal have been sold by Ext.B2, a document validly executed by a person competent to execute the same._ _B. In view of the recital in Ext.B2 itself that Kamal and another possess a sound mind, apart from being a deaf and dumb, is not the mother competent to act as guardian when the transaction is supported by family necessity and when it was a prudent transaction._ S.A.551/1996. 6 _C. If the Muslim Marumakkathayam Act of 1939 were to apply, is the mother competent to act as a guardian of Kamal whose mental condition was unsound as per the document itself._ _D. Is not the suit barred by limitation and the adverse possession and ouster in view of the long possession admittedly retained by the 5[th] defendant and also in view of the subsequent conduct by which portion of item No.5 have been dealt with by transaction giving undisputed ownership and possession._ ” 8. As already stated, the dispute is confined to item No.5. While the plaintiffs claimed that Kamal had right over item No.5 also, the contesting defendants would say that Kamal along with others, who had rights over the property, had assigned the same and at the time of death, Kamal retained no rights over plaint item No.5. Ayub got the property as per Ext.A2 dated 1.3.1927. By Ext.A3 dated 12.8.1930 Ayub executed the gift deed in favour of Ayishumma and five others, among whom Kamal also 7 S.A.551/1996. figured as one of the beneficiaries. The short case put forward by the plaintiffs was that being a tarwad property Kamal could not have assigned his share and any assignment by him or on his behalf is invalid in law. The contesting defendants would say that by Ext.B2 dated 21.9.1954 Ayishumma and her children including late Kamal had assigned plaint item No.5 to Pathumma. 9. A perusal of Ext.B2 shows that Kamal was characterised as a deaf and dumb and mentally incapacitated person and he was represented by his mother Ayishumma. 10. Both the courts below found that Ayishumma could not have acted as the guardian of Kamal going by the personal law governing the parties since his father was alive. Both the courts below are of the opinion that father alone could have acted as the guardian for and on behalf of Kamal and that Ext.B2 assignment, as far as late Kamal was concerned, was not valid and was not binding on the plaintiffs and they are entitled to a share. S.A.551/1996. 8 11. Learned counsel appearing for the appellants pointed out that both the courts below have erred in omitting to note Mappila Marumakkathayam Act and Pristine Marumakkathayam Law. According to learned counsel, Mappila Marumakkathayam Act of 1939 does not exclude the Pristine Marumakkathayam Law and it is kept in tact. Pristine Marumakkathayam Law governs the parties and it enables the mother to act as guardian for the minor under certain contingencies. Learned counsel went on to point out that Ext.B2 will clearly show that the assignment was made by Ayshumma and others for tarwad necessity. Referring to Section 14 of the Mappila Marumakkathayam Act, 1939 it was contended that the statute recognizes mother acting as the guardian. Learned counsel drew the attention of this court to the decision reported in **Mariyumma v. Kunhaisumma** (1958 K.L.T. 627), wherein it was held that Shariat Act does not override the Mappila Marumakkathayam Act. Learned counsel also referred to the decision reported in **Lakshmanan v. Kama** l (AIR 1959 S.A.551/1996. 9 Kerala 67) wherein a similar view was taken. Learned counsel for the appellants pointed out that undue importance should not be given to the pleadings in the case and it is sufficient if the parties were able to understand the case they have to meet. If that be so, the case put forward by the contesting defendants was clear to the effect that Kamal had no subsisting right over plaint item No.5 and the plaintiffs are put on guard by the contesting defendants. Learned counsel also relied on the decision reported in **Bansidhar v. Shaligram** (AIR 1976 SC 460) and **Ram Sarup Gupta v. Bishun Narain Inter College** (AIR 1987 SC 1242). Reliance was also placed on the decision reported in **Manjushri v. B.L. Gupta** (AIR 1977 SC 1158) wherein the principle regarding construction of pleadings was emphasized. 12. Learned counsel appearing for the respondents contended that he had no quarrel with the legal proposition put forward by the learned counsel for the appellants. However, learned counsel went on to point out S.A.551/1996. 10 that one cannot altogether ignore the pleadings which form the foundation on which the case is built. Learned counsel went on to point out that parties go to trial with the issues raised in mind and the issues arise out of the pleadings. After having taken a definite stand in respect of Ext.B2 and after having contested the matter in two courts and lost, the appellants have now put forward a new case which has no foundation in the pleadings and in the evidence. Learned counsel pointed out that Section 14 of the Mappila Marumakkathayam Act, 1939 enables the mother to act as a guardian in the case of partition and in the case on hand Ext.B2 is an assignment deed said to have been executed by Kamal. Learned counsel went on to point out that the stand in the written statement of defendants 5 to 12 was that Kamal had executed Ext.B2 along with others and not that Ayishumma, the mother of Kamal, who is seen to have represented Kamal, is competent to do so. There is no pleading also to the effect that the sale deed Ext.B2 was made for tarward necessity. There is no evidence in that S.A.551/1996. 11 regard also. The respondents are taken by surprise by the present contention taken by the appellants. If there was a pleading to that effect in the written statement of defendants 5 to 12, an issue would have been raised in that regard and the plaintiffs would have had an opportunity to meet the case of the contesting defendants. Even then the question arises how far the mother could act as the guardian for a minor muslim child when the father is alive, even if they follow Marumakkathayam Law. 13. Paragraph 5 of the plaint deals with item No.5. It is specifically averred that it belonged to Ayub, who obtained under partition and Ayub had gifted the same as per Ext.A3 dated 12.8.190 in favour of his wife and children. One of the children was Moideenkutty, who is no more. On his death his rights devolved on his mother and defendants 2 to 5, Kamal and Mahamood. Ayishumma died in the year 1984 and after the death of Kamal his rights devolved on the plaintiffs. 12 S.A.551/1996. 14. In reply defendants 5 to 12 had filed the written statement. The allegation in the plaint is met in paragraph 8 of the written statement. It is seen mentioned that as per Ext.B2 dated 21.9.1954 Ayishumma and her children including Kamal assigned the property to the fifth defendant. The definite case of the plaintiffs is that Kamal had executed Ext.B2 along with others. Nowhere in the written statement it is mentioned that Kamal was represented by his mother and that she was competent to do so. The case now put forward by the appellants finds no place in their written statement. 15. One may now refer to Ext.B2. The recital relied on by the learned counsel for the appellant reads as follows: “ഞങള�ട� ന�ത� ച�ലവ�ടലക�ണ�യ ക�� ത�ര��ന വവണ� ഇന� ഞങള ന�ടന���ട��ക� വ�ങ� ട��ധ�ച���ടക�ണ� ട"ല�#�� സ%ത�അത�ടല.......” S.A.551/1996. 13 16. Going by the recital, the appellants could have contended that the assignment was for tarwad necessity. But for reasons best known to them they have not chosen to take such a contention and chose to contend that Kamal had executed Ext.B2 along with others. As already noticed, there is no mention that the mother had exercised the right of sale for tarwad necessity and she was competent to represent Kamal, who was deaf and dumb and was mentally incapacitated. A reading of the trial court judgment and the lower appellate court judgment does not indicate that the ground now taken before this court was ever urged before those courts. 17. Even assuming that mother, apart from Section 14, could act as guardian in cases of necessity going by the Pristine Mappila Marumakkathayam Law, there is no such case set up in the written statement. The recital in Ext.B2 regarding the necessity may be of help to the appellants. But that by itself is not conclusive. If it was put in issue, the plaintiffs could have had an opportunity to show S.A.551/1996. 14 that the claim of necessity shown in Ext.B2 is false and there is no necessity at that point of time. The issue as to whether the assignment was for tarwad necessity cannot be treated to be a pure question of law as now contended by the learned counsel for the appellants. At any rate, it is a mixed question of fact and law. There can be no doubt that the said plea should have had foundation in the pleadings. 18. It is not in dispute that except in circumstances made mention of in Mappila Marumakkathayam Act, 1939, and also Pristine Marumakkathayam Law, mother could not have acted as guardian when father was alive. The decisions relied on by the learned counsel for the appellants are of no help in the facts and circumstances of this case. However liberally the pleadings may be construed, it will not help the appellants for the simple reason that there is absolutely no mention of the present case set up either in the written statement of the appellants or in the evidence adduced by them. S.A.551/1996. 15 19. It is not in dispute that as per the Muslim Personal Law as long as father is alive, the mother cannot act as natural guardian. It is the said fact which had persuaded the court below to take the view that Ext.B2 executed by Ayishumma for herself and also on behalf of her two minor children including Kamal cannot be treated as valid as far as Kamal is concerned. Therefore according to the courts below his share is available for partition. The appellants were unable to show that the courts below have erred in any manner in reaching the above conclusion. No question of law, much less any substantial question of law arises for consideration in this Second Appeal. This Second Appeal is without merits and it is accordingly dismissed. There will be no order as to costs. ## **P. BHAVADASAN, JUDGE** sb.