K.V. Surendran v. K.V. Chenthamarakkshan and others

AS.No.386 OF 2002 1 ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MRS. JUSTICE SHIRCY V.** **FRIDAY, THE 20TH DAY OF DECEMBER 2019 / 29TH AGRAHAYANA, 1941** ## **AS.No.386 OF 2002** **AGAINST THE JUDGMENT AND DECREE IN OS 417/1996 DATED 08-02-2001 OF PRINCIPAL SUB COURT, PALAKKAD** ## **APPELLANT/4TH DEFENDANT:** **K.V.SURENDRAN AGED 61 YEARS S/O VELAYUDHAN,KONAYATH HOUSE, MANKARA, PALGHAT** **BY ADVS.** **SRI.GRASHIOUS KURIAKOSE (SR.) SRI.K.M.KURIAN** ## **- RESPONDENTS/PLAINTIFF AND DEFENDANTS 1 3** **1 K.V.CHENTHAMARAKSHAN S/O LATE VELAYUDHAN,KONAYATH HOUSE, MANKARA, PALGHAT** **2 K.V.VISHALAKSHI, W/O. VELAYUDHAN,KONAYATH HOUSE, MANKARA, PALGHAT 3 SOUDAMINI, D/O. VELAYUDHAN,KONAYATH HOUSE, MANKARA, PALGHAT 4 PADMINI, D/O. VELAYUDHAN, KONAYATH,HOUSE, MANKARA, PALGHAT.** **R1-3 BY ADV. SRI.T.C.SURESH MENON** **THIS APPEAL SUITS HAVING BEEN FINALLY HEARD ON 18-11-2019, THE COURT ON 20-12-2019 DELIVERED THE FOLLOWING:** AS.No.386 OF 2002 2 ## JUDGMENT The 4[th] defendant in a suit for partition filed as O.S.417/1996 before the Sub Court, Palakkad challenging the preliminary decree has filed this appeal. 2. The plaintiff had filed the suit for partition of the plaint A and B schedule properties claiming 1/5[th] share over the same. It is the case of the plaintiff that Velayudhan, his father was the owner in possession of the plaint A and B schedule properties. On his death it devolved upon his wife, the first defendant and his children, ie; the plaintiff and the defendants 2 to 4. The properties were partitioned in the year 1995 and A schedule was set apart in common as D schedule in the partition deed. B schedule properties are movable properties kept in the house situated in the plaint A schedule property. The plaintiff and the defendants were entitled for 1/5 share each, was the case of the plaintiff, pleaded by him. 3. The defendants 1 to 3 did not contest the matter and remained absent. The fourth defendant alone contested the case. It was contended by him that the plaint A schedule AS.No.386 OF 2002 3 property was an item of property set apart to the share of Velayudhan as per partition deed No.588/1958. Thereafter, Velayudhan acquired some property and all those properties were partitioned in the year 1973 as per document No.1677/73 of S.R.O., Parli. The plaintiff had sold some items of property out of the share set apart to him and the second defendant had also sold certain extent of property. The remaining properties were partitioned in the year 1995 as per document No.399 of S.R.O, Parli. Some properties were purchased out of the funds of the family in favour of defendants 1 and 2. But those properties were not included in the above partition. During 1995 partition the plaintiff agreed to surrender his right in favour of the fourth defendant on or before 10.10.1996 on payment of Rs.1 lakh by him. But the possession of the properties were handed over to the plaintiff since he was not having sufficient funds and he could not get surrender from the plaintiff. Defendants 1 and 4 and the wife of the 4[th] defendant were residing in the plaint schedule property. Later, the 1[st] defendant shifted from the house. The suit is bad for partial partition, hence liable to be dismissed. 4. Before the court below plaintiff was examined as AS.No.386 OF 2002 4 PW1 and Ext.A1 was marked. The 4[th] defendant was examined as DW1 and Ext.B1 was also marked. The court below after evaluating the evidence concluded that the plaint schedule property is liable to be partitioned. 5. In this appeal, the 4[th] defendant has raised a claim which has not been raised in the suit that the plaint A schedule property being an ancestral coparcenary joint family property, all the parties are not entitled to 1/5[th] share each. In fact the plaintiff and the 4[th] defendant are entitled to 6/15 each and the defendants 1 to 3 are entitled to 1/15 share each. 6. Heard the learned counsel for the appellant/fourth defendant as well the first respondent/plaintiff. 7. The plaint A schedule property is immovable property and plaint B schedule are movable properties. The claim of the plaintiff for partition of the properties into five equal shares was allowed by the court below. Admittedly, the parties are Hindus belonging to Ezhava Community following Hindu Mithakshara Law. It is the case of the plaintiff that in the partition effected in the year 1995 (Ext.A1) plaint A schedule property were set apart as a common property, including the same as D schedule. Partition is sought for with respect to the AS.No.386 OF 2002 5 said property along with the plaint B schedule movables. 8. The main contention raised by the contesting defendant is that the suit for partition is bad for partial partition. But it is pertinent to note that he had set up a different case which was not pleaded in the written statement that the plaint A schedule property being ancestral coparcenary joint family property, the plaintiff and the fourth defendant are entitled to get 6/15 share each and the defendants 1 to 3 are entitled to get 1/15 share each. At the outset it is to be noted that no such plea was raised by the 4[th] defendant in the suit. In fact, the only contention raised was that the suit was bad for partial partition as some properties were omitted to be included in partition. The contention raised by him is that in the year 1958 Velayudhan, his father along with his brothers and mother effected partition in respect of ancestral family property through partition deed 558/1958 of S.R.O, Parli, whereby the A schedule property was set apart to the share of Velayudhan's branch and subsequently the male members of the family born before 1970 became coparcener of A schedule property and therefore the contention that the property is liable to be partitioned among the plaintiff and the defendants equally are AS.No.386 OF 2002 6 not correct. It is well settled that no evidence can be looked into upon a plea never put forward by a party as the pleading is the foundation of the suit. As DW1, the 4[th] defendant had contended that in the year 1973 Velayudhan their father effected settlement of some of the properties belonging to the family and at that time the plaintiff and the fourth defendant were minors and a common property was set apart as F schedule property. Velayudhan died on 18.1.1986. After his death partition was effected in the year 1995 and D schedule ,which was F schedule in 1973 settlement deed was set apart as common property. So the plaintiff is claiming share in A schedule property which is D schedule, the common property. But the contention raised by the 4[th] defendant is that as the plaintiff and himself being the male members of the family born prior to 1970 alone have right over the plaint schedule property by birth along with Velayudhan. 9. The learned counsel for the 4[th] defendant would further argue that due to the enactment of the Joint Hindu Family Abolition Act there is no coparcenary in the State of Kerala after 1.12.1976 and the properties have the effect of automatic partition and the coparceners alone are having right AS.No.386 OF 2002 7 over the property. So being the male members of the family Velayudhan, the plaintiff and the 4[th] defendant alone are entitled to get share over the property and their share would be 1/3 and so on the death of Velayudhan, his 1/3[rd] right alone will be available for partition and the defendants 2 to 4 would get 1/15 share each over the property. So in short, it was contended that the plaintiff as well the 4[th] defendant are entitled to get 6/15 share each over the plaint schedule property and the defendants are entitled to get 1/15[th] share in 1/3[rd] share of Velayudhan. As mentioned earlier no such contention was raised in the suit and the only contention, was that the suit was bad for partial partition. 10. Per contra, the plaintiff placed reliance on the decision of the Apex Court in **Danamma @ Sumar Surpur and another v. Amar and others (2018 (1) KHC 583)** wherein it was held that law relating to a joint Hindu family governed by the Mithakshara law had undergone unprecedent changes. The said changes have been brought forward to address the growing need to merit equal treatment to the nearest female relatives, namely daughters of a coparcener. The section stipulates that a daughter would be a coparcener AS.No.386 OF 2002 8 from her birth, and would have the same rights and liabilities as that of a son. The daughter would hold property to which she is entitled as a coparcenery property, which would be construed as property capable of being disposed of by her either by a will or any other testamentary disposition. These changes have been sought to be made on the touchstone of equality. 11. So as per Section 6 of Hindu Succession Act, 1956 the daughter of a coparcener shall by birth become a coparcener in her own right in the same manner as the son and the amended provisions recognized rights of coparcener's daughters since birth. In short, it was held that the rights of coparceners emanate and flow from birth (now including daughters) is evident by sub section (1)(a) and b of Section 6 of the Hindu Succession Act. It is important to note that Para nos.23 and 24 of **Dhanamma's** case reads as follows:- “23. The law relating to a joint Hindu family governed by the Mitakshara law has undergone unprecedented changes. The said changes have been brought forward to address the growing need to merit equal treatment AS.No.386 OF 2002 9 to the nearest female relatives, namely daughters of a coparcener. The section stipulates that a daughter would be a coparcener from her birth, and would have the same rights and liabilities as that of a son. The daughter would hold property to which she is entitled as a coparcenary property, which would be construed as property being capable of being disposed of by her either by a will or any other testamentary disposition. These changes have been sought to be made on the touchstone of equality, thus seeking to remove the perceived disability and prejudice to which a daughter was subjected. The fundamental changes brought forward about in the Hindu Succession Act, 1956 by amending it in 2005, are perhaps a realization of the immortal words of Roscoe Pound as appearing in his celebrated treaties. The Ideal Element in Law, that “the law must be stable and yet it cannot stand still. Hence all thinking about law has struggled to reconcile the conflicting demands of the need of the stability and the need of change.” 24. S.6, as amended, stipulates that on and from the commencement of the amended Act, 2005, the daughter of a coparcener shall by birth become a coparcener in her own right in the same manner as the son. It is apparent that the status conferred upon sons under the old section and the old Hindu Law was to treat them as coparceners since birth. The amended provisions now statutorily recognizes the rights of coparceners of daughters as well since birth. The section uses the words in the same manner as the AS.No.386 OF 2002 10 son. It should therefore be apparent that both the sons and the daughters of a coparcener have been conferred the right of becoming coparceners by birth. It is the very factum of birth in a coparcenary that creates the coparcenary, therefore the sons and daughters of a coparcener become coparceners by virtue of birth. Devolution of coparcenary property is the later stage of and a consequence of death of a coparcener. The first stage of a coparcenary is obviously its creation as explained above, and as is well recognized. One of the incidents of coparcenary is the right of a coparcener to seek a severance of status. Hence, the rights of coparceners emanate and flow from birth (now including daughters) as is evident from sub-section (1)(a) and (b).” 12. So under Section 6 of the Act the daughter of the coparcener has been made as a co-parcener by birth in her own right in the same manner as the son of a coparcener. The argument of the learned counsel for the 4[th] defendant that Dhanamma's case based on the amendment to Hindu Succession Act 2005, is not applicable as the preliminary decree under challenge was passed before 2005. But here in 1995 partition A schedule was set apart as common, to which the plaintiff and defendants are co-owners in joint possession. Ext.A1 is the partition deed of the year 1995 by which all the AS.No.386 OF 2002 11 parties to the suit partitioned the property and the subject matter of partition is the D schedule kept as common. Partition is sought for on the basis of Ext.A1, the suit document. In 1995 partition all the parties joined together and partitioned the property equally among them and the daughter of the coparcener has same rights bestowed on the son of a coparcener and it was without excluding the female members of the family. Equal share was given to the male and female members and 'D' schedule was set apart as common. The said property is sought to be partitioned, to which each had an inherent title. Therefore the argument (without pleadings) that the law applicable before Amendment Act 2005, disentitle from claiming equal shares, is of no merits in the given set of facts and evidence. It is also to be noted that no evidence was adduced to prove that the plaintiff agreed to surrender his right to the 4[th] defendant on payment of one lakh on or before 10.10.1996. D schedule which is A schedule is liable to be partitioned among the parties and therefore all the parties are entitled to equal share in A schedule . The contention that the 4[th] defendant is entitled to 6/15[th] share as that of the plaintiff need not be considered in absence of specific pleadings in the AS.No.386 OF 2002 12 suit. In view of the above findings, it is clear that the present appeal is liable to be dismissed as there is no merits in the contention raised by the 4[th] defendant/appellant. Consequently, the appeal is dismissed. The parties shall bear their respective costs. Pending application(s) if any will also stand dismissed. Sd/- 20.12.2019. SHIRCY V JUDGE smm