L.A.A.No.509/2013 & conn.

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE C.T.RAVIKUMAR & THE HONOURABLE MR. JUSTICE K.P.JYOTHINDRANATH TUESDAY, THE 7TH DAY OF JUNE 2016/17TH JYAISHTA, 1938 LA.App..No. 509 of 2013 ( ) ---------------------------AGAINST THE JUDGMENT IN LAR 355/2003 of II ADDL.SUB COURT,THIRUVANANTHAPURAM DATED 29-05-2008 APPELLANT(S):CLAIMANTS 12, 13 AND 14 ---------------------------------------------- - 1.R.SARASWATHY, AGED 55 YEARS D/O.LATE GOPALAKRISHNA IYER, SREEKUMARA SADANAM KIDAYAKERAKONAM, VENPALAM P.O, ARALUMOODU (VIA) NEYYATTINKARA ## 2.R.GEETHA THANKOM @ NAZEEMA AGED 53 YEARS, LOVELY COTTAGE,T.C NO.20/1317, MANGAD LANE KUNJALUMOODU JUNCTION, THIRUVANANTHAPURAM ## 3.R.REVATHY, AGED 45 YEARS D/O.LATE GOPALAKRISHNA IYER T.C.NO.20/2688, KARAMANA,THYCAUDU VILLAGE, THIRUVANANTHAPURAM BY ADV. SRI.R.S.KALKURA RESPONDENT(S):CLAIMANTS 2, 5 TO 11 AND 15 TO 17 & RESPONDENT ------------------------------------------------------------------------------ - 1.G.HARIHARAN, 45-A, PERUMAL WEST CAR STREET THIRUNELVELI JUNCTION, TAMILNADU ## 2.P.JANARDHANA IYER, AGED 66 YEARS - W/O.LATE J.PARAMESWARA IYER AND LATE L.BHAGAVATHY AMMAL RESIDING AT BGI, LAND MARVEL GARDEN, PILLIYAR KOVIL STREET RAJAJI NAGAR, THIRUVANIYUR, CHENNAI-600641, FROM TC 20/1877 KARAMANA, THYCAUD VILLAGE, THIRUVANANTHAPURAM ## 3.N.RAJALAKSHMI, AGED 72 YEARS, - W/O.LATE R.NAMBIRAJAN AND D/O.LATE J.PARAMESWARA IYER AND LATE L.BHAGAVATHI AMMAL. RESIDING AT NO.26-B, RAMS FLAT NO.7, RAMAMOORTHY STREET, NEHRU NAGAR, CHROMEPET, CHENNAI-600044 FROM TC 20/1877, THYCAUD VILLAGE, THIRUVANANTHAPURAM - 4.R.LEKSHMI @ BABY, AGED 70, D/O. LATE GOPALAKRISHNA IYER 1/5, 1ST CROSS, YATHARA STREET, VIRUGAMBAKAM,CHENNAI-600092 - 5.G.RAJANKOM, AGED 66, S/O.LATE GOPALAKRISHNA IYER NO.1A, AGRAMAR STREET, VIRUTHUNAGAR, TAMIL NADU - 6.R.VANAJA, AGED 64, D/O.LATE GOPALAKRISHNA IYER TC 26/2688, KARAMANA,THYCAUDU VILLAGE, THIRUVANANTHAPURAM ## 7.R.PADMA, AGED 62, D/O.LATE GOPALAKRISHNA IYER TC 20/2688, KARAMANA,THYCAUDU VILLAGE, THIRUVANANTHAPURAM. ## 8.R.SEETHA, AGED 60, D/O.LATE GOPALAKRISHNA IYER,32, REDDY ROYAL AGRAHARAM, ROLONGRAHAM KUMBHAKONAM, TAMIL NADU - *9.ANANDANARAYANAN, AGED 64, - D/O.LATE GOPALAKRISHNA IYER TC 20/2688, KARAMANA,THYCAUDU VILLAGE, THIRUVANANTHAPURAM - *10.RAJALAKSHMI, AGED 59 YEARS D/O.LATE GOPALAKRISHNA IYER TC 2O/2688, KARAMANA,THYCAUDU VILLAGE, THIRUVANANTHAPURAM *11.HARIHARAN AGED 56 YEARS D/O.LATE GOPALAKRISHNA IYER TC 20/2688, KARAMANA,THYCAUDU VILLAGE, THIRUVANANTHAPURAM ## 12.THE STATE OF KERALA, REPRESENTED BY THE DISTRICT COLLECTOR, THIRUVANANTHAPURAM *ADDRESS OF R9 TO R11 CORRECTED ## 9.ANANDANARAYANAN NO.16/4, SOUTH STREET AZHAKIYAPANYPURAM, KANYAKUMARI DISTRICT. 10.RAJALAKSHMI NO.16/4, SOUTH STREET AZHAKIYAPANYPURAM, KANYAKUMARI DISTRICT. 11.HARIHARAN, NO.16/4, SOUTH STREET AZHAKIYAPANYPURAM, KANYAKUMARI DISTRICT. CAUSE TITLE AMENDED BY INCORPORATING THE CORRECT ADDRESSES OF THE RESPONDENTS 9 TO 11 WHO WERE ADDITIONAL CLAIMANTS 15 TO 17 BEFORE THE COURT BELOW VIDE ORDER DATED 5/10/2013 IN I.A.1486/13 IN LAA NO. 509/13. R1 BY ADV. SRI.V.SURESH R1 BY ADV. SRI.G.SUDHEER R5-R7 BY ADV. SRI.D.KISHORE R,R BY ADV. SRI.BASANT BALAJI R,R BY ADV. SRI.R.MANOJ THIS LAND ACQUISITION APPEAL HAVING BEEN FINALLY HEARD ON 07-06-2016, ALONG WITH LAA. 1008/2008, LAA. 1895/2008 & CO.86/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## **C.T. RAVIKUMAR &** ## **K. P. JYOTHINDRANATH, JJ.** **========================== L.A.A.No.509 OF 2013, L.A.A. Nos.1008 & 1895 OF 2008 and Cross Objection No.86 OF 2009 ==========================** Dated this the 7[th] day of June, 2016 ## **JUDGMENT** _Ravikumar, J._ The captioned appeals arise from the same judgment and decree passed by the Court of 2[nd] Additional Sub Judge, Thiruvananthapuram in LAR No.355 of 2003. The cross objection is filed by respondents 3, 7, 8 and 9 in L.A.A.No.1895 of 2008. We have heard them jointly and they are being disposed of by this common judgment. A succinct narration of the following facts leading to the captioned appeals and the cross objection is inevitable for their proper disposal. 2.The parties in all these appeals and cross objection are successors of one Gopalakrishna Iyer. The bone of contentions in **L.A.A.509/2013 & conn.** 2 these appeals and cross objection is regarding the right to get share in the compensation in respect of a property having an extent of 5.85 Ares comprised in Survey No.1725/10 of Thycaud Village in Thiruvananthapuram Taluk acquired for the purpose of widening road from Karamana to Killippalam reach. The claimants felt aggrieved and dissatisfied with the quantum of compensation granted by the Land Acquisition Officer. There was also dispute regarding the apportionment of the compensation awarded. Evidently, the reference from which these appeals arose, germane from a reference made by the Land Acquisition officer under section 31(2) of the Land Acquisition Act. Going by the order of reference, it is evident that out of 5.85 Ares of land, Gopalakrishna Iyer was entitled to get compensation in respect of 2.925 Ares and he was paid compensation, therefor. The rest of the property belonged to his brother Sanakara Iyer who was a bachelor and died intestate. The parties to the reference required adjudication under section 31(2) of the Land Acquisition Act as to how the compensation payable in respect of that **L.A.A.509/2013 & conn.** 3 property should be apportioned. While considering those aspects, it is apposite to refer to certain other facts, as well. The property acquired actually belonged to one Gopalakrishna Iyer senior. He got three sons and three daughters namely, Harihara Iyer, Padmanabha Iyer, Kanaga Iyer, Parvathy Ammal, Seethammal and Ammalu Amal. After the death of Gopalakrishna Iyer, his children executed Ext.A1 partition deed No.2831/1115 ME of Chala Sub Registry. As per the same, their sisters were allotted some money. Harihara Iyer was allotted A schedule property in Ext.A1. The property which was acquired is a portion of that share which was allotted to Harihara Iyer. Harihara Iyer died in the year 1944. He got four children; two sons and two daughters. Gopalakrishna Iyer Junior and Sankara Iyer are the sons and Seethai Ammal and Bhagavathy Ammal are the daughters. Sankara Iyer, Seethai Ammal and Bhagavathy Ammal were the original claimants. As per the impugned judgment, `9,41,722/- was directed to be paid to Gopalakrishna Iyer Junior and taking into account the dispute regarding the apportionment, an amount of **L.A.A.509/2013 & conn.** 4 `10,70,487/- was deposited before court and it is essentially apportioning the said amount to the persons who are entitled to shares out of it, that the reference was made. 3.During the pendency of the reference, Gopalakrishna Iyer Junior, Bhagavathy Ammal and Seethai Ammal died. Their legal heirs got impleaded as additional claimants. On their appearance, they filed statements. After hearing the rival claims, the reference court passed the impugned judgment. Going by the same, the apportionment was ordered as hereunder:- Claimant's 7 to 14 are entitled to ¼ share in coparcenary property and 1/9[th] share initiated by their father 1[st] claimant. What is entitled to additional claimant's 7 to 14 and more has been obtained by their father as in the case of 2[nd] claimant Harihara Iyyar. The deposited amount of Rs.10,70,487/- is entitled to Seetha Ammal and Bhagavathy Ammal. Now they are no more and their legal heirs, additional claimant's 5 and 6 are entitled to ½ of that amount Rs.5,35,243/(2,67,622/- each) and additional claimants 15, 16 and 17 are entitled to the balance amount of Rs.5,35,243/-(Rs.2,23,578.67 paise each). Additional claimant's 5 and 6 and additional claimant's 15, 16 and 17 are allowed to withdraw **L.A.A.509/2013 & conn.** 5 the deposited amount as explained above less process charges. It is aggrieved by the said judgment that the captioned appeals and cross objection are filed. 4.We have heard Sri.D.Kishore, the learned counsel appearing for the appellants in L.A.A.1895/2008, Sri.V.Suresh, the learned counsel appearing for the appellants in LAA 1008 of 2008, Sri.N.J.Mathews appearing for the first respondent and Sri.Basant Balaji appearing for the fifth respondent in LAA 1008 of 2008, Sri. R.S Kalkura, learned counsel for the appellants in LAA 509 of 2013 and Sri..Manoj R. Nair, the learned counsel appearing for the cross objectors (claimants 6, 15-17). We have also heard the learned Government Pleader. 5.Though a bare perusal of the impugned judgment would make it appear that it is a simple case of apportionment, in troth, it carries **L.A.A.509/2013 & conn.** 6 many complicated questions. The main contention advanced on behalf of the appellants in the captioned appeals is that the property which was acquired was a part of coparcenary property. It is further contended that the appellants belonged to an undivided Hindu family governed by Mitakshara Law. It is the further contention that after the death of Harihara Iyer, in respect of the property, there were only four co-parceners namely, Gopalakrishna Iyer Jr., Sankara Iyer and sons of Gopalakrishna Iyer namely Hariharan and Rajangom. It is the further contention that in respect of coparcenary property, in terms of Mithekshara law which is governing an undivided Hindu family, only the male members have a right on it by birth. It is to be noted that even much prior to the acquisition of the property in question, Sankara Iyer died. The learned counsel appearing for the appellants contended that going by the theory of survivalship, the property which belonged to Sankara Iyer vested with the surviving co-parceners i.e., Gopalakrishna Iyyer Jr., Hariharan and Rajamgom. Admittedly, prior to the death of Sankara Iyer in the year 1983, the Kerala Joint Hindu **L.A.A.509/2013 & conn.** 7 Family Systems (Abolition) Act, 1976 came into force with effect from 1.4.1976. It is not in dispute that with the coming into force of the said Act, joint Hindu family system was abolished and by virtue of the operation of section 4 thereunder, joint tenancy was replaced by tenancy in common. Section 4(1) of the Act reads thus: “ **4.Joint tenancy to be replaced by tenancy in common:-** (1)All members of an undivided Hindu Family governed by Mitakshara Law holding any coparcenary property on the day this Act comes into force shall with effect from that day, be deemed to hold it as tenants-incommon as if a partition had taken place among all the members of that undivided Hindu Family as respects such property and as if each one of them holding his or her share separately as full owner thereof: Provided that nothing in this sub-section shall affect the right to maintenance or the right to marriage or funeral expenses out of the coparcenary property or the right to residence, if any, of the members of an undivided Hindu Family, other than persons who have become entitled to hold their shares separately, and any such right can be enforced as if this Act had not been passed. 6.In the light of the aforesaid provision, the learned counsel **L.A.A.509/2013 & conn.** 8 appearing for the appellants contended that the impact of the said section is nothing but crystalisation of the rights as a coparcenary in the concerned coparcenary property. Needless to say that by virtue of the said provision, such members were entitled to enjoy that property along with alienable right. It is contended that in such circumstances, but for the fact that Sankara Iyer was a bachelor and issueless, the coparcenary property belonged to him could have been inherited by his legal heirs. But, since he was a bachelor and issueless, according to the learned counsel for the appellants, the ¼ share of Sankara Iyer in the erstwhile coparcenary property alone was available for partition. In other words, the compensation payable in respect of that share alone is available for apportionment among others. In fact, that is the precise contention of the learned counsel Sri.V. Suresh appearing for the appellant in LAA.1008/2008, the second claimant. The learned counsel Sri.R.S.Kalkura appearing on behalf of the appellants in LAA 509/2013 endorsed the contention raised on behalf of the appellants in LAA 1008/2008 to the extent that their family was **L.A.A.509/2013 & conn.** 9 an undivided Hindu family governed by Mithekshara law. The claimants 6, 15-17 virtually resisted the said contention. But it is to be noted that a cross objection was filed only in LAA 1895/2008 and they have not filed any cross objection in the other appeals. In fact, they are the legal heirs of the sisters of Gopalakrishna Iyer Junior; namely Seetha Ammal and Bhagavathy Ammal. They resisted the claims and contentions of the appellants. The sum and substance of the contention of the cross objectors is that the finding of the reference court that the property in question was coparcenary property is not correct and legally sustainable. According to them, it is incorrect to say that they entitled only to get a share from out of the share that was available to Sankara Iyer. In other words, according to them, they got a legal right to get their due share in respect of compensation granted towards the entire property. The learned counsel Sri.V.Suresh contended that Hariharan as also the erstwhile co-paceners are entitled to get ¼ of the erstwhile coparcenary property in addition to 1/9 of the share which was obtained by their father **L.A.A.509/2013 & conn.** 10 Gopalakrishna Iyer Junior from out of the share of Sankara Iyer. 7.To buttress the said contention, the learned counsel Sri.V.Suresh relied on the decisions of the Full bench of this Court in **Chellamma Kamalamma v. Narayana Pillai [1993(1) KLT 174 (FB)]** . The learned counsel has also relied on the decision of the learned Single Judge of this Court in **Chiru Amma & others v. Kunhikrishnan Nambiar** [ **1987(1) KLT 331]** and in **Babu v. Arunapriya [2012 (4) KLT 487]** . A scanning of the contentions raised by the learned counsel in the light of the aforesaid decisions would reveal that the attempt is to canvass the position that Hindu Family could not have any entitlement to the erstwhile co-parcenary property and that position had not changed going by section 4 of the Kerala Joint Hindu Family Systems (Abolition Act). As noticed hereinbefore, the contention is that the deeming partition going by the said provision is only among the co-parceners. In other words, according to the learned counsel, virtually, the impact of the said **L.A.A.509/2013 & conn.** 11 section is that it put an end to survivalship. The learned counsel relied on the decision in **Babu's** case (supra), to contend that the amendment to section 6 of Hindu Succession Act with effect from 9.9.2005 is inconsequential within the State of Kerala as the co-parcenary system virtually came to an end and the joint tenancy was replaced by tenancy in common with the coming into force of Kerala Joint Hindu Family Systems (Abolition Act) even before 9.3.2005. In other words, according to the learned counsel, in the strict sense, due to the aftermath of the Abolition Act, no coparcenary property was available for partition when the amendment to section 6 was brought into force. It is to buttress the said point that the aforesaid decision was relied on. 8.Per contra, the learned counsel appearing for the cross objectors contended that the provision under section 4 in the Kerala Hindu Joint Family Systems (Abolition Act) has to be construed in such a manner to mean that going by the same, a partition has to be effected among the members of the Hindu Family which would take **L.A.A.509/2013 & conn.** 12 in the rights even of the female members of such family. A scanning of the contentions of the appellants in LAA 1895/2008 would reveal that virtually, an inter se conflict-in-interest exists among them. It is to be noted that one of the appellants therein viz., Rajamgom is the son of Gopalakrishna Iyer Jr. If he got no case that the property which was acquired was part and parcel of earlier coparcenary property, he could not claim ¼ share out of it. The precise case of the fourth appellant who was the 10[th] claimant before the reference court was that her father Gopalakrishna junior executed a Will in her favour and by virtue of it, she alone is entitled to get the compensation to which Gopalakrisha Iyer is entitled to. At this juncture, the learned counsel Sri.V.Suresh appearing for the appellant in LAA 1008/2008 submitted that the said claimant has already instituted a suit for partition of the rest of the properties in A schedule in Ext.A1 partition deed. The learned counsel further submitted that in that suit, the 10[th] claimant filed a written statement taking up the contention that the entire property belonging to Gopalakrishan Iyer Junior i.e., their father, was **L.A.A.509/2013 & conn.** 13 given to her by executing Ext.B1 Will referred as such therein. In this context, it is to be noted that the claim made by 10[th] claimant based on the said Will was also considered by the reference court. A bare perusal of the impugned judgment would reveal that the claim under the Will was not actually considered with application of mind and at the same time, the reference court entered into the finding with respect to the legality of the said Will. Without any discussion at all, the reference court found that the said Will is a fabricated one. The rival contentions as expatiated above are adverted to, solely for the purpose that such crucial and factual contentions were made by the respective parties even before the reference court and in fact, such questions are inevitable to be considered for the purpose of deciding the entitlement of the parties to get a share in the compensation awarded. At the same time, a bare perusal of the impugned award would reveal that there is conspicuous absence of any detailed consideration of such aspects. Whether the property acquired was part and parcel of erstwhile coparcenary property, what is the impact of section 4 of the Kerala **L.A.A.509/2013 & conn.** 14 Joint Hindu Family Systems (Abolition Act), whether the amendment brought to section 6 of the Hindu Succession Act got any reflection as regards the rights of the female of an earlier undivided Hindu family, were not at all considered in the light of the relevant provisions as also in the light of the binding precedence. So also, the crucial question regarding validity of Ext.B1 Will was not properly considered. Certainly, without such consideration, a finding to the effect that it was a fabricated one should not have been entered into. In this context, it is to be noted that the arguments advanced before this Court would reveal that the legality of the said Will is virtually the subject matter in a pending suit between the parties. As a matter of fact, the said suit, viz., OS 27/08 is now pending before the 2[nd] Additional Sub Court, Thiruvananthapuram. There cannot be any doubt with respect to the fact that the contentions raised by the learned counsel on either side in the light of the aforementioned provisions of law is also the binding precedence would undoubtedly go to show that such questions which are referred hereinbefore, are inevitably to be **L.A.A.509/2013 & conn.** 15 considered for arriving at an adjudication under section 31(2) as to the entitlement towards the amount of compensation for the entire property i.e., 5.85 Ares. When such crucial aspects are not pointedly considered, we have no hesitation to hold that an appellate interference is called for. It is also relevant to note that the reference court has arrived at a finding that claimants 7 to 14 are entitled to ¼ share in co-parcenary property in addition to 1/9 share inherited by their father, the first claimant. Needless to say that there is absolute absence of any discussion supporting such a finding. The upshot of the aforesaid discussions is that despite the involvement of such important questions of law intertwined with facts, they were not at all formulated and considered by the reference court. In such circumstances, all the parties submitted that it is only proper for this Court to remand the case to the reference court so as to enable the reference court to formulate such question appropriately and also to afford ample opportunity to all the parties to raise their respective contentions. It is contended that in the absence of formulation of such **L.A.A.509/2013 & conn.** 16 questions, it cannot be feasible for this court to frame such questions and to consider them at the first instance. We are of the view that the said contention raised by the parties are having considerable force. That apart, we found that the order for apportionment passed by the reference court is obviously not strictly in terms of the conclusions arrived at. For all these reasons, we are of the considered view that L.A.R.No.355/2003 has to be remanded to the reference court for a fresh consideration in accordance with law. To enable such consideration, the impugned award dated 29.5.2008 in L.A.R.No.355/2003 passed by the Court of the Additional Judge-II, Thiruvananthapuram is set aside. Taking note of the fact that the reference is of the year 2003, the reference court shall make all earnest endevaour to dispose of the matter as expeditiously as possible. Since it is now evident that OS 27/2008 wherein the legality of the Will which is referred to in the impugned judgment as Ext.B1 is to be considered, it is only apposite for the reference court to adopt the requisite and recognized modality so as to avoid the divergent **L.A.A.509/2013 & conn.** 17 findings. The appeals and cross objection are disposed of. The appellants and petitioners in the cross objection are entitled to get refund of the court fee. There will be no order as to costs. **Sd/C.T. RAVIKUMAR (JUDGE)** **Sd/-** **K. P. JYOTHINDRANATH (JUDGE)** **spc/** **L.A.A.509/2013 & conn.** 18 **C.T. RAVIKUMAR, J.** **JUDGMENT September, 2010** **L.A.A.509/2013 & conn.** 19