High Court of KeralaSingle Judge2019-12-16Appeals dismissed; decrees affirmed; No costs.

K.P. Madhavan (deceased) and others vs Lakshmikutty and others

Case / Petition Number:RSA No. 6 of 2010; RSA No. 7 of 2010

Case Details & Bench

Court: High Court of Kerala
Hon'ble Judges: P. Somarajan
Judgment Date: 2019-12-16
Court Decision / Holding: Appeals dismissed; decrees of Trial Court and First Appellate Court upheld; No costs.
Final Disposition: Appeals dismissed; decrees affirmed; No costs.

Parties to the Case

Appellants / Petitioners

K.P.Madhavan (deceased) S/O. Late Pazhanimala
Dileep Kumar
Ramesh
Radhakrishnan
Sajani
Jayasree
Pushpashree
Nandakumari

Respondents

Lakshmikutty W/o. Late TheyyelAN, Kunathupura, Edathara AMSOM, Palakkad Taluk
Venugopalan S/O. Late TheyyelAN & Lakshmikutty
Mohandas S/O. Late TheyyelAN & Lakshmikutty
Bhaktavalsalan S/O. Late TheyyelAN & Lakshmikutty
PrabhalochambiKa D/O. Late TheyyelAN & Lakshmikutty
Josina D/O. Late TheyyelAN & Lakshmikutty
Gresina D/O. Late TheyyelAN & Lakshmikutty
Shobhana D/O. Late TheyyelAN & Lakshmikutty
Madhavi (Deleted) D/O. Late Pazhanimala

Legal Representation & Advocates

Counsels for Petitioners

• Sri.N.Subramaniam
• Sri.P.T.Girijan
• Sri.M.S.Narayanan
• Smt.Usha Narayanan

Counsels for Respondents

• Sri.P.Santhalingam Sr.
• Sri.S.Sharan

Case Synopsis & Summary

This Regular Second Appeal (RSA Nos. 6 of 2010 and 7 of 2010) arises from partition and injunction suits concerning properties titled in the Palakkad region, Kerala. The leading case OS 357/1997 concerned a suit for partition with respect to the B schedule property, where a preliminary decree for partition was granted by the Trial Court and the suit was dismissed to the extent of the A schedule. The connected suit OS 205/2000 sought a permanent injunction against trespass, which was decreed by both the Trial Court and the First Appellate Court. The appellants, legal representatives of the deceased K.P. Madhavan, contend that Ext.A2 (1954) — which placed the jenmom right in the name of the husband of the first defendant — and subsequent partitions deprive co-owners of their rights and that omission to include a property in a partition deed cannot disentitle a co-owner. The respondents argue Ext.A2 represents a bona fide transfer in personal name and that the A schedule property was rightly excluded from partition, with Ext.A3 (1970) formalizing partition. The High Court relies on Section 90 of the Indian Trusts Act, 1882 to explain that the manager of the family is a trustee and rights accrue to all members, but finds Ext.A2 derogatory of co-owners’ rights. The Court ultimately dismisses both appeals, upholding the decrees of the subordinate courts and confirming the suit’s dismissal on the identified fault, with no costs.

Provisions of Law Cited

Section 90, Indian Trusts Act, 1882

Legal Doctrines & Maxims

Doctrine: The manager of a Hindu Undivided Family is a trustee for the family; rights acquired by the manager enure to all co-owners (Section 90, Indian Trusts Act, 1882).

Submissions & Arguments

Contentions of Appellants / Petitioners

The appellants contend that omission to include a particular property in a partition deed among co-owners should not disentitle the right over the omitted property; reliance on Raman v. Somanathayyan (1973 (KLT) short notes 32) to support the proposition that a partition deed need not enumerate all properties for co-owners’ rights to vest. They argue that Ext.A2, though executed in the name of the husband of the 1st defendant, did not extinguish co-owners’ rights and that the family’s jenmom rights accrue to all as trustees under the Indian Trusts Act, and thus partition should reflect equitable sharing.

Contentions of Respondents

The respondents maintain Ext.A2 represents a valid, personal transfer to the husband and that the partition as per Ext.A3 (1970) relates to the available properties; they contend that the A schedule property was not includable in partition and that the suit for partition cannot succeed on the facts presented. They rely on established partition deeds and the legal effect of intervening transfers to argue for upholding the decrees that dismiss the partition suit and grant injunction, as applicable.

Cited Precedents (1)

Case Name	Citation	Treatment	Explanation
Raman v. Somanathayyan	1973 (KLT) short notes 32	Mentioned Only	Cited to support the appellant’s argument on partition, but the Court does not rely on it as the decisive basis for its judgment.

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Extracted Judgment Text

Exact text extracted from official judgment records.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE P.SOMARAJAN** **MONDAY, THE 16TH DAY OF DECEMBER 2019 / 25TH AGRAHAYANA, 1941** ## **RSA.No.6 OF 2010** **AGAINST THE JUDGMENT AND DECREE IN AS 170/2006 DATED 13-11-2009 OF DISTRICT COURT, PALAKKAD** - **AGAINST THE JUDGMENT AND DECREE IN OS 357/1997 DATED 27-06-2006 OF PRINCIPAL SUB COURT, PALAKKAD** ## **APPELLANT/APPELLANT/PLAINTIFF:** - **1 K.P.MADHAVAN, (DIED) S/O.LATE PAZHANIMALA, KUNNATHUPURA, EDATHARA AMSOM, PALGHAT TALUK AND DISTRICT.** - **ADDL. 2 DILEEP KUMAR, S/O.LATE K.P.MADHAVAN, KUNNATHUPURA, EDATHARA AMSOM, PALGHAT TALUK AND DISTRICT.** - **ADDL. 3 RAMESH, DO** - **ADDL. 4 RADHAKRISHNA, DO** - **ADDL. 5 SAJANI, D/O.LATE K.P.MADHAVAN.** - **ADDL. 6 JAYASREE D/O.LATE K.P.MADHAVAN.** - **ADDL. 7 PUSHPASHREE, D/O.LATE K.P.MADHAVAN.** **ADDL. 8 NANDAKUMARI, W/O.LATE K.P.MADHAVAN.** **(ADDL.APPELLANTS 2 TO 8 ARE IMPLEADED AS THE LHRS OF THE DECEASED SOLE APPELLANT AS PER THE ORDER DATED 03.12.2010 IN IA.3143/2010.)** **BY ADVS. SRI.N.SUBRAMANIAM SRI.P.T.GIRIJAN SRI.M.S.NARAYANAN SMT.USHA NARAYANAN** RSA.6/2010& RSA.7/2010 2 ## **RESPONDENTS/RESPONDENTS/DEFENDANTS 1 TO 7:** - **1 LAKSHMIKUTTY W/O.LATE THEYYELAN, KUNNATHUPARA, EDATHARA AMSOM, PALAKKAD TALUK.** - **2 VENUGOPALAN, S/O.LATE THEYYELAN& LAKSHMIKUTTY, DO. DO.** - **3 MOHANDAS, S/O.LATE THEYYELAN & LAKSHMIKUTTY, DO. DO.** - **4 BHAKTHAVALSALAN, S/O.LATE THEYYELAN & LAKSHMIKUTTY, DO. DO.** - **5 PRABHALOCHANAMBIKA, D/O.LATE THEYYELAN & LAKSHMIKUTTY, DO. DO.** - **6 JOSINA, D/O.LATE THEYYELAN & LAKSHMIKUTTY DO. DO.** - **7 GRESINA, D/O.LATE THEYYELAN & LAKSHMIKUTTY, DO. DO.** - **8 SHOBHANA, D/O.LATE THEYYELAN & LAKSHMIKUTTY, DO. DO.** - **9 MADHAVI , (DELETED) D/O.LATE PAZHANIMALA, AYYAMPATHYKALAM,** **THATTAMANGALAM VILLAGE, CHITTOOR TALUK, PALGHAT DISTRICT.** **(RESPONDENT NO.9 IS DELETED FROM THE PARTY ARRAY AT THE RISK OF THE APPELLANT AS PER THE ORDER DATED 24.09.2010 IN IA.2424/2010.)** **R1 BY ADV. SRI.P.SANTHALINGAM SR. R1 BY ADV. SRI.S.SHARAN** **THIS REGULAR SECOND APPEAL HAVING BEEN FINALLY HEARD ON 16.12.2019, ALONG WITH RSA.7/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE P.SOMARAJAN** **MONDAY, THE 16TH DAY OF DECEMBER 2019 / 25TH AGRAHAYANA, 1941** ## **RSA.No.7 OF 2010** **AGAINST THE JUDGMENT AND DECREE IN AS 171/2006 DATED 13-11-2009 OF DISTRICT COURT, PALAKKAD** **AGAINST THE JUDGMENT AND DECREE IN OS 205/2000 DATED 27-06-2006 OF PRINCIPAL SUB COURT, PALAKKAD** ## **APPELLANT/APPELLANTS/DEFENDANTS:** - **1 K.P.MADHAVAN, (DIED) S/O.LATE PAZHANIMALA, KUNNATHUPURA, EDATHARA AMSOM,, PALGHAT TALUK AND DISTRICT.** **(FIRST APPELLANT DIED AND APPELLANTS 2 AND 3 ARE RECORDED AS THE LEGAL REPRESENTATIVES OF DECEASED 1ST APPELLANT AS PER ORDER DATED 10.12.2010 IN MEMO BEARING CF.7887/2010.)** - **2 DILEEP KUMAR SO.K.P.MADHAVAN -DO- -DO-** - **3 RAMESH SO.K.P.MADHAVAN -DO- -DO-** **BY ADVS. SRI.N.SUBRAMANIAM SRI.P.T.GIRIJAN SRI.M.S.NARAYANAN SMT.USHA NARAYANAN** ## **RESPONDENT/RESPONDENTS/PLAINTIFFS:** - **1 LAKSHMIKUTTY, W/O.LATE THEYYALAN,KUNNATHUPURA, EDATHARA AMSOM, PALAKKAD TALUK.** - **2 VENUGOPALAN S/O.LATE THEYYELAN & LAKSHMIKUTTY, -DO- -DO-** - **3 MOHANDAS S/O.LATE THEYYELAN & LAKSHMIKUTTY, -DO- -DO-** RSA.6/2010& RSA.7/2010 4 - **4 BHAKTHAVALSALAN S/O.LATE THEYYELAN & LAKSHMIKUTTY, -DO- -DO-** - **5 PRABHALOCHANAMBIKA D/O.LATE THEYYELAN & LAKSHMIKUTTY, -DO- -DO-** **R1 BY ADV. SRI.P.SANTHALINGAM SR. R1 BY ADV. SRI.S.SHARAN** **THIS REGULAR SECOND APPEAL HAVING BEEN FINALLY HEARD ON 16.12.2019, ALONG WITH RSA.6/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** RSA.6/2010& RSA.7/2010 5 ## **JUDGMENT** The plaintiff in the leading case in O.S.No.357/1997 came up with this appeal aggrieved by the decree and judgment of both the Trial Court and the First Appellate Court. The leading case is for partition. The suit was decreed in part by the Trial Court granting a preliminary decree of partition with respect to the 'B' schedule property and the suit was dismissed in so far as 'A' schedule is concerned. In appeal the dismissal was confirmed. The other suit was filed with respect to 'A' schedule property for the grant of permanent prohibitory injunction against trespass. That suit was decreed by both the courts below. Aggrieved by the said decree and judgment, the plaintiff in the leading case who is the defendant in the connected suit came up with this appeal. 2. With respect to the 'A' schedule there are two items, which according to the plaintiff, is the subject of Ext.A1 Mortgage deed No.1105 of the year 1951. It was obtained in the name of the husband of RSA.6/2010& RSA.7/2010 6 1[st] defendant, one Theyyelan, in his status as the Manager of the family. By utilizing the said status, he had purchased jenmom right over the property in the year 1954 under Ext.A2. 3. The defendants contested the suit _inter alia_ contenting that Ext.A2 deed of the year 1954 is a pakka sale of entire right, title and interest over the property and it was purchased in the personal name of Theyyelan by paying valid consideration. The properties available for partition, were partitioned in the family in the year 1970, evidenced by Ext.A3, in which the plaintiff was a signatory. It was also contended that 'A' schedule property is not included in the partition as it was not available for partition. There is no omission in Ext.A3 in including any partible property available at that time. 4. Based on the decision rendered by this Court ## in **Raman v. Somanathayyan (1973 (KLT) short notes 32)** it was submitted by the the appellant that, omission to include a particular property in a partition deed among the co-owners will not dis-entitle the right RSA.6/2010& RSA.7/2010 7 over the property omitted to be incorporated in the earlier partition. 5. In the instant case there is an intervening document Ext.A2 of the year 1954, by which entire right, title and interest over the property was purchased in the name of husband of 1[st] defendant. Earlier he had obtained a mortgage right over the property under Ext.A1 document of the year 1951. Thereafter, he had purchased the entire right, i.e., the jenmom right over the property in his personal name under Ext.A2. By virtue of section 90 of Indian Trust Act, 1882 whatever right acquired by the Manager of the family, who would be a trustee for the family **,** would enure to the benefit of all the family members. But, Ext.A2 document, an intervening document seen executed in derogation of the right, title and interest of all co-owners in the year 1954. A simple suit for partition alone cannot be maintained in the above said circumstances. There is no substantial prayer in the suit for declaration of the alleged right, title and interest obtained by the plaintiff over the 'A' schedule property. No other RSA.6/2010& RSA.7/2010 8 substantial question of law brought to the notice of this court. Both the appeals are dismissed, confirming the decree and judgment of both the courts below dismissing the suit on the above said defect. No costs. **==> picture [32 x 12] intentionally omitted <==** **P.SOMARAJAN** **JUDGE** SPV //TRUE COPY// PA TO JUDGE