M.K. Dathan v Thankamani @ Lakshmi Amma and others (RFA No. 438 of 2014)

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **C. R.** **THE HONOURABLE MR. JUSTICE SATHISH NINAN MONDAY, THE 6[TH] DAY OF NOVEMBER 2023 / 15TH KARTHIKA, 1945** **RFA NO.438 OF 2014** **AGAINST THE JUDGMENT & DECREE IN OS 72/2007 OF SUB COURT, THODUPUZHA** **-----** ## **APPELLANT/DEFENDANT NO.11:** M.K.DATHAN,AGED 52 YEARS,S/O.BHARGAVI AMMA AND MARIYIL KRISHNAN NAIR,MARIYIL HOUSE, THODUPUZHA VILLAGE, PIN -685584. BY ADVS. SRI.T.V.GEORGE SRI.JIMMY GEORGE P. GOPALAKRISHNAN A.N.RAJAN BABU ## **RESPONDENTS/PLAINTIFFS AND DEFENDANTS 1 TO 10, 12 & 13:** 1 THANKAMANI @ LAKSHMI AMMA, **[DIED]*[4]** AGED 64 YEARS,W/O.RAMACHANDRAN NAIR, PULICKAL HOUSE, LALAM VILLAGE, PALA KARA, MEENACHIL TALUK-686577. 2 THARA,D/O.RAMACHANDRAN NAIR, AGED 37 YEARS, PULICKAL HOUSE, LALAM VILLAGE, PALA KARA, MEENACHIL TALUK-686577. 3 RAHUL,AGED 31 YEARS,S/O.RAMACHANDRAN NAIR, PULICKAL HOUSE, LALAM VILLAGE, PALA KARA, MEENACHIL TALUK-686577. 4 RADHAMANI AMMA, **[DIED]*[4]** AGED 72 YEARS,D/O.BHARGAVIAMMA, ARACKAL HOUSE, THODUPUZHA VILLAGE,THODUPUZHA TALUK, NOW RESIDING AT A.K.RADHAMANIAMMA, MAHARAJA SHOPPING COMPLEX, NEAR K.S.R.T.C BUS STAND, MYSORE - 573 001. 5 P.S.SANJEEV, AGED 42 YEARS,S/O.SIVARAMANPILLA, ARACKAL HOUSE, THODUPUZHA VILLAGE, THODUPUZHA TALUK, NOW RESIDING AT P.S.SANJEEV, MAHARAJA SHOPPING COMPLEX, NEAR K.S.R.T.C BUS STAND, MYSORE - 573 001. 6 P.S.RENJIT,AGED 39 YEARS,S/O.SIVARAMANPILLA, ARACKAL HOUSE, THODUPUZHA VILLAGE, THODUPUZHA TALUK, NOW RESIDING AT P.S.RENJIT, MAHARAJA SHOPPING COMPLEX, NEAR K.S.R.T.C BUS STAND, MYSORE - 573 001. **RFA NO. 438 OF 2014 -2-** |7|P.S.ANURADHA, AGED 37 YEARS,D/O.SIVARAMAN PILLA, ARACKAL| |---|---| ||HOUSE, THODUPUZHA VILLAGE, THODUPUZHA TALUK NOW RESIDING AT| ||P.S.ANURADHA MAHARAJA SHOPPING COMPLEX, NEAR K.S.R.T.CBUS| ||STAND, MYSORE - 573 001.| |8|KRISHNAN NAIR,**[DIED *1]**| ||AGED 68 YEARS,S/O. MARIYIL KRISHNAN NAIR, ARACKAL HOUSE,| ||THODUPUZHA VILLAGE, THODUPUZHA KARA, 68 5584.| |9|SUSHEELA DEVI, AGED 60 YEARS,D/O. KRISHNAN NAIR, ARACKAL| ||HOUSE, THODUPUZHA VILLAGE, THODUPUZHA KARA, NOW RESIDING AT| ||A.K. SUSEELA DEVI, REVATHI HOUSE, MANKUZHI ROAD, TOLL GATE,| ||EDAPPALLY - 682024.| |10|SUNIL, AGED 34 YEARS,S/O. ARAVINDAN NAIR, ARACKAL HOUSE,| ||THODUPUZHA VILLAGE, THODUPUZHA KARA, NOW RESIDING AT SUNIL,| ||REVATHI HOUSE, MANKUZHI ROAD, TOLL GATE, EDAPPALLY - 682024.| |11|GITHENDRAN, AGED 32 YEARS,S/O. ARAVINDAN NAIR, ARACKAL HOUSE,| ||THODUPUZHA VILLAGE, THODUPUZHA KARA NOW RESIDING AT SUNIL,| ||S/O. ARAVINDAN, MANKUZHI ROAD, TOLL GATE, EDAPPALLY - 682024.| |12|LALITHA KUMARI, AGED 54 YEARS, D/O. BHARGAVI AMMA, THODUPUZHA| ||VILLAGE, THODUPUZHA KARA, NOW RESIDING AT LALITHAKUMARI A.K,| ||KOENG OIL FACTORY, ANAKAHALLY P.O, KARNATAKA STATE - 573 003.| |13|M.K. PRASAD, AGED 54 YEARS,S/O. MARIYIL KRISHNAN NAIR AND| ||BHARGAVI AMMA, THODUPUZHA VILLAGE, THODUPUZHA TALUK, NOW| ||RESIDING AT M.K. PRASAD, MAHARAJA SHOPPING COMPLEX, NEAR| ||K.S.R.T.C BUS STAND, MYSORE - 573001.| |14|THE BRANCH MANAGER,PUNJAB NATIONAL BANK, THODUPUZHA - 685584.| |15|PRESIDENT KANJIRAMATTOM MAHADEVASHETRAM, KANJIRAMATTOM,| ||THODUPUZHA 68 55 84.| ## ***[1] ADDL. RESPONDENTS 16 & 17** ADDL R16 VIJAYAKUMARI AMMA K .S.,AGED 68 YEARS, W/O.LATE KRISHNAN NAIR, MARIYIL HOUSE,THODUPUZHA. ADDL R17 SMT. ANITHA K NAIR, AGED 47 YEARS, D/O.LATE KRISHNAN NAIR, MARIYIL HOUSE. ## ***[1 ] [LEGAL HEIRS OF THE DECEASED R8 ARE IMPLEADED AS ADDL.R16 & R17 IN THE APPEAL VIDE ORDER DATED 13/02/2023 IN IA 2/2018.]** **RFA NO. 438 OF 2014 -3-** ## ***[2] ADDL. RESPONDENTS 18 & 19** - **[3 ]** ADDL R18 SMT.RESHMI ARAVIND, AGED 86 YEARS,D/O.SUSHEELA DEVI, ARACKAL HOUSE, RESIDING AT "REVATHI HOUSE" MANKURSHI ROAD, TOLLGATE, EDAPPALLY, PIN -682024. **[DELETED]** ADDL R19 SRI.RAMACHANDRAN NAIR, AGED 86 YEARS, PULICKAL HOUSE, LALAM VILLAGE, PALA KARA, MEENACHIL TALUK, PIN-686575. ## ***[2 ] [THE LRS OF THE DECEASED R9 ARE IMPLEADED AS ADDL.R18 & R19 IN THE APPEAL VIDE ORDER DATED 13/2/2023 IN IA 5/2022]** ## **[THE ORDER DATED 13/2/2023 IN IA 5/2022 WILL STAND SUO MOTU CORRECTED VIDE ORDER DATED 06/11/2023 IN IA 5/2022 AS THE LR OF THE DECEASED R9 IS IMPLEADED AS ADDL.R19 IN THE APPEAL]** ## ***[4 ] [IT IS RECORDED THAT RESPONDENTS 1, 4 DIED AND THEIR LEGAL REPRESENTATIVES ARE RESPONDENT 19 AND RESPONDENTS 5 TO 7 IN THE PARTY ARRAY RESPECTIVELY AS PER JUDGMENT DATED 06.11.2023 IN RFA 438/2014]** BY ADVS. P. HARIDAS - R1 TO R3 BIJU HARIHARAN - R1 TO R3 BALACHANDRAN R.B. - R1 TO R3 RENJI GEORGE CHERIYAN - R1 TO R3 SHIJIN P.C. - R1 TO R3 RSHIKESH HARIDAS - R1 TO R3 S.V.BALAKRISHNA IYER (SR.) - R4 TO R7 & R13 P.B.KRISHNAN - R4 TO R7 & R13 P.B.SUBRAMANYAN - R4 TO R7 SABU GEORGE - R4 TO R7 NEELAKANDAN P.M. - R4 TO R7 P.K.VIDYA SAGAR - R8 P. CHANDY JOSEPH - R8 SANTHEEP ANKARATH` - R14 G. SREEKUMAR - R15 THIS REGULAR FIRST APPEAL HAVING COME UP FOR HEARING ON 06.11.2023, ALONG WITH CO.111/2014 & CO 80/2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE SATHISH NINAN** **C. R.** **MONDAY, THE 6[TH] DAY OF NOVEMBER 2023 / 15TH KARTHIKA, 1945** ## **CO NO. 111 OF 2014** **AGAINST THE JUDGMENT & DECREE IN OS 72/2007 OF SUB COURT, THODUPUZHA** **----** ## **- CROSS OBJECTORS RESPONDENTS 4 TO 7 & 13 IN RFA:** 1 RADHAMANIAMMA, D/O BHARGAVIAMMA, AGED 72, ARACKAL HOUSE, THODUPUZHA VILLAGE, THODUPUZHA TALUK, NOW RESIDING AT MAHARAJA SHOPPING COMPLEX, NEAR KSRTC BUS STAND, MYSORE573001. 2 P.S.SANJEEV, S/O SIVARAMAN PILLA, AGED 42, ARACKAL HOUSE, THODUPUZHA VILLAGE, THODUPUZHA TALUK, NOW RESIDING AT MAHARAJA SHOPPING COMPLEX, NEAR KSRTC BUS STAND, MYSORE573001. 3 P.S. RENJIT, S/O SIVARAMAN PILLA, AGED 39, ARACKAL HOUSE, THODUPUZHA VILLAGE, THODUPUZHA TALUK, NOW RESIDING AT MAHARAJA SHOPPING COMPLEX, NEAR KSRTC BUS STAND, MYSORE573001. 4 P.S. ANURADHA, D/O SIVARAMAN PILLA, AGED 37, ARACKAL HOUSE, THODUPUZHA VILLAGE, THODUPUZHA TALUK, NOW RESIDING AT MAHARAJA SHOPPING COMPLEX, NEAR KSRTC BUS STAND, MYSORE573001. 5 M.K. PRASAD, S/O MARIYIL KRISHNAN NAIR AND BHARGAVI AMMA, AGED 54, THODUPUZHA VILLAGE, THODUPUZHA TALUK, NOW RESIDING AT MAHARAJA SHOPPING COMPLEX, NEAR KSRTC BUS STAND, MYSORE573001. BY ADVS. SRI.S.V.BALAKRISHNA IYER (SR.) SRI.P.B.KRISHNAN NEELAKANDAN P.M. SABU GEORGE ## **RESPONDENTS/APPELLANT AND RESPONDENTS 1 TO 3, 8 TO 12, 14 AND 15 IN RFA:** 1 M.K.DATHAN, S/O BHARGAVI AMMA, AND MARIYIL KRISHNAN NAIR, AGED 52, MARIYIL HOUSE, THODUPUZHA VILLAGE, PIN-685584. **CO NO. 111 OF 2014 -2-** |2|THANKAMANI @ LAKSHMIAMMA, W/O RAMACHANDRAN NAIR, AGED 64,| |---|---| ||PULICKAL HOUSE, LALAM VILLAGE, PALA KARA, MEENACHIL TALUK,| ||PIN-686575.| |3|THARA, D/O RAMACHANDRAN NAIR, AGED 37, PULICKAL HOUSE, LALAM| ||VILLAGE, PALA KARA, MEENACHIL TALUK, PIN-686575.| |4|RAHUL, S/O RAMACHANDRAN NAIR, AGED 31, PULICKAL HOUSE, LALAM| ||VILLAGE, PALA KARA, MEENACHIL TALUK, PIN-686575.| |5|KRISHNAN NAIR, S/O MARAYIL KRISHNAN NAIR, AGED 68, ARACKAL| ||HOUSE, THODUPUZHA VILLAGE, THODUPUZHA KARA, PIN – 685584.| |6|SUSHEELA DEVI, D/O KRISHNAN NAIR, AGED 60, ARACKAL HOUSE,| ||THODUPUZHA VILLAGE, THODUPUZHA KARA, NOW RESIDING AT REVATHI| ||HOUSE, MANKUZHI ROAD, TOLL GATE, EDAPPALLY-682024.| |7|SUNIL, S/O ARAVINDAN NAIR, AGED 34, ARACKAL HOUSE, THODUPUZHA| ||VILLAGE, THODUPUZHA KARA, NOW RESIDING AT REVATHI HOUSE,| ||MANKUZHI ROAD, TOLL GATE, EDAPPALLY-682024.| |8|GITHENDRAN, S/O ARAVINDAN NAIR, AGED 32, ARACKAL HOUSE,| ||THODUPUZHA VILLAGE, THODUPUZHA KARA, NOW RESIDING AT REVATHI| ||HOUSE, MANKUZHI ROAD, TOLL GATE, EDAPPALLY-682024| |9|LALITHAKUMARI, D/O BHARGAVI AMMA, AGED 54, THODUPUZHA| ||VILLAGE, THODUPUZHA KARA, NOW RESIDING AT LALITHAKUMARI AK,| ||KOENG OIL FACTORY, ANAKAHALLY PO, KARNATAKA STATE-573003.| |10|THE BRANCH MANAGER, PUNJAB NATIONAL BANK, THODUPUZHA-685584| |11|PRESIDENT, KANJIRAMATTOM MAHADEVAKSHETHRAM, KANJIRAMATTOM,| ||THODUPUZHA, PIN-685585.| 1 BY ADVS. SRI.T.V.GEORGE - R1 JIMMY GEORGE - R1 P. HARIDAS – R2 TO R4 BIJU HARIHARAN – R2 TO R4 BALACHANDRAN R.B. – R2 TO R4 RENJU GEORGE CHERIYAN – R2 TO R4 SHIJIN P.C. – R2 TO R4 RSHIKESH HARIDAS – R2 TO R4 C.K.VIDYA SAGAR - R5 P. CHANDY JOSEPH - R5 SRI.SANTHEEP ANKARATH - R10 G. SREEKUMAR - R11 **CO NO. 111 OF 2014 -3-** THIS CROSS OBJECTION HAVING COME UP FOR HEARING ON 06.11.2023, ALONG WITH RFA.438/2014 AND CONNECTED CASES, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **C. R.** **THE HONOURABLE MR. JUSTICE SATHISH NINAN MONDAY, THE 6[TH] DAY OF NOVEMBER 2023 / 15TH KARTHIKA, 1945** **CO NO. 80 OF 2020** **AGAINST THE JUDGMENT & DECREE IN OS 72/2007 OF SUB COURT, THODUPUZHA** **-----** ## **CROSS OBJECTORS/RESPONDENTS 1 TO 3** 1 THANKAMANI @ LAKSHMIAMMA, W/O RAMACHANDRAN N AIR, AGED 64 YEARS, PULICKAL HOUSE, LALAM VILLAGE, PALA KARA, MEENACHIL TALUK, PIN-686575. 2 THARA, D/O RAMACHANDRAN NAIR, AGED 37 YEARS, PULICKAL HOUSE, LALAM VILLAGE, PALA KARA, MEENACHIL TALUK, PIN-686575. 3 RAHUL, S/O RAMACHANDRAN NAIR, AGED 31 YEARS, PULICKAL HOUSE, LALAM VILLAGE, PALA KARA, MEENACHIL TALUK, PIN-686575. BY ADVS. P.HARIDAS SRI.BIJU HARIHARAN SRI.R.B.BALACHANDRAN SRI.RENJI GEORGE CHERIAN SRI.P.C.SHIJIN SRI.RISHIKESH HARIDAS ## **RESPONDENTS/APPELLANT & RESPONDENTS 4 TO 15 IN RFA AND LRS OF DECEASED** ## **6TH RESPONDENT:** 1 M.K.DATHAN, S/O BHARGAVIAMMA & MARIYIL KRISHNAN NAIR, AGED 52 YEARS, MARIYIL HOUSE, THODUPUZHA VILLAGE, PIN-685584. 2 RADHAMANIAMMA, D/O BHARGAVIAMMA, AGED 72 YEARS, ARACKAL HOUSE, THODUPUZHA VILLAGE, THODUPUZHA TALUK, NOW RESIDING AT MAHARAJA SHOPPING COMPLEX, NEAR KSRTC BUS STAND, MYSORE573001. 3 P.S. SANJEEV, S/O SIVARAMAN PILLAI, AGED 42, ARACKAL HOUSE, THODUPUZHA VILLAGE, THODUPUZHA TALUK, NOW RESIDING AT MAHARAJA SHOPPING COMPLEX, NEAR KSRTC BUS STND, MYSORE573001. **CO NO. 80 OF 2020 -2-** |4|P.S. RENJITH, S/O SIVARAMAN PILLAI, AGED 39 YEARS, ARACKAL| |---|---| ||HOUSE, THODUPUZHA VILLAGE, THODUPUZHA TALUK, NOW RESIDING AT| ||MAHARAJA SHOPPING COMPLEX, NEAR KSRTC BUS STAND, MYSORE-| ||573001.| |5|P.S. ANURADHA, D/O SIVARAMAN PILLAI, AGED 37 YEARS, ARACKAL| ||HOUSE, THODUPUZHA VILLAGE, THODUPUZHA TALUK, NOW RESIDING AT| ||MAHARAJA SHOPPING COMPLEX, NEAR KSRTC BUS STAND, MYSORE-| ||573001.| |6|KRISHNAN NAIR, S/O MARIYIL KRISHNAN NAIR, AGED 68 YEARS,| ||ARACKAL HOUSE, THODUPUZHA VILLAGE, THODUPUZHA KARA, PIN –| ||685584**(DIED 31.01.2018, HIS LEGAL REPRESENTATIVES ARE**| ||**RESPONDENTS 14 & 15 HEREIN.)**| |7|SUSHEELA DEVI, D/O KRISHNAN NAIR, AGED 60 YEARS, ARACKAL| ||HOUSE, THODUPUZHA VILLAGE, THODUPUZHA KARA, NOW RESIDING AT| ||REVATHY HOUSE, MANKUZHI ROAD, TOLL GATE, EDAPPALLY PIN-| ||682024.| |8|SUNIL, S/O ARAVINDAN NAIR, AGED 34 YEARS, ARACKAL HOUSE,| ||THODUPUZHA VILLAGE, THODUPUZHA KARA, NOW RESIDING AT REVATHY| ||HOUSE, MANKUZHI ROAD, TOLL GATE, EDAPPALLY, PIN – 682024.| |9|GITHENDRAN, S/O ARAVINDAN NAIR, AGED 32 YEARS, ARACKAL HOUSE,| ||THODUPUZHA VILLAG,E THODUPUZHA KARA, NOW RESIDING AT REVATHY| ||HOUSE, MANKUIZHI ROAD, TOLL GATE, EDAPPALLY, PIN-682024.| |10|LALITHAKUMARI, D/O BHARGAVIAMMA, AGED 54 YEARS, ARACKAL| ||HOUSE, THODUPUZHA VILLAGE, THODUPUZHA KARA, NOW RESIDING AT| ||LALITHAKUMARI AK, KOENG OIL FACTORY, ANAKAHALLY PO, KARNATAKA| ||STATE-573003.| |11|M.K.PRASAD, S/O MARIYIL KRISHNAN NAIR & BHARGAVIAMMA, AGED 54| ||YEARS, THODUPUZHA VILLAGE, THODUPUZHA TALUK, NOW RESIDING AT| ||MAHARAJA SHOPPING COMPLEX, NEAR KSRTC BUS STAND, MYSORE-| ||573001.| |12|THE BRANCH MANAGER, PUNJAB NATIONAL BANK, THODUPUZHA-685584.| |13|PRESIDENT, KANJIRAMATTOM MAHADEVAKSHETHRAM, KANJIRAMATTOM,| ||THODUPUZHA PIN-685585.| |14|VIJAYAKUMARI AMMA K.S.,W/O LATE KRISHNAN NAIR, ARACKAL HOUSE,| ||THODUPUZHA VILLAGE, THODUPUZHA KARA, PIN-685584.| **CO NO. 80 OF 2020 -3-** 15 ANITHA K. NAIR, D/O LATE KRISHNAN NAIR, ARACKAL HOUSE, THODUPUZHA VILLAGE, THODUPUZHA KARA, PIN-685584. BY ADVS. T.V.GEORGE - R1 JIMMY GEORGE – R1 S.V.BALAKRISHNA IYER – R1 TO R 5 & R11 P.B.KRISHNAN – R2 TO R5 & R11 P.B.SUBRAMANIYAN – R2 TO R5 NEELAKANDAN P.M. – R2 TO R5 SABU GEORGE – R2 TO R5 P.K.VIDYA SAGAR - R6 P. CHANDY JOSEPH - R6 SANTHEEP ANKARATH – R12 G. SREEKUMAR – R13 THIS CROSS OBJECTION HAVING COME UP FOR HEARING ON 06.11.2023, ALONG WITH RFA.438/2014 AND CONNECTED CASES, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: **C. R.** ## **SATHISH NINAN, J.** **= = = = = = = = = = = = = = = = = = R.F.A. No.438 of 2014, Cross Objection Nos.111 of 2014 & 80 of 2020** **= = = = = = = = = = = = = = = = = = Dated this the 6[th ] day of November, 2023** **==> picture [116 x 10] intentionally omitted <==** The preliminary decree in a suit for partition is under challenge by the 11[th] defendant. 2. The plaintiffs and the defendants are the successors of one Bhargavi Amma who was a member of one Arackal Tarwad. The plaint schedule consists of 13 items of properties. The plaintiffs claim the properties to be family/thavazhi properties and seek for partition. 3. The 11[th] defendant(the appellant), who is the son of Bhargavi Amma claimed the properties to be the separate property of their mother Bhargavi Amma. He claimed exclusive title over plaint item Nos.5 and 6 on the strength of Exts.B3 and B4 Settlement Deeds, items 10 and 11 on the strength of Ext.B2 Gift Deed and item 7 under Ext.B5 Will, all executed by Bhargavi Amma. It was RFA No.438/2014, C O Nos.111/2014 & 80/2020 -: 2 :- also contended that, plaint item No.8 is not partible since Bhargavi Amma had alienated the same to the 13[th] defendant under Ext.A10 Sale Deed. 4. The trial court held plaint item Nos.1 to 4 and 12 to be family properties. Plaint item Nos.5 to 11 and 13 were held to be the self acquisitions of Bhargavi Amma. The trial court held against Exts.B2 Gift Deed, Exts.B3 and B4 Settlement Deeds and Ext.B5 Will. It is aggrieved thereby that the 11[th] defendant is in appeal. 5. Heard Sri.T.V.George and Jimmy George the learned counsel for the appellant, Sri.S.V.Balakrishna Iyer, the learned Senior Counsel and Sri.P.Haridas, learned counsel on behalf of the contesting respondents. 6. The points that arise for determination are :- _(i) Are plaint item Nos.1 to 4 and 12 the family properties of Bhargavi Amma ?_ RFA No.438/2014, C O Nos.111/2014 & 80/2020 - -: 3 :- - _(ii) Are plaint item nos.5 to 11 and 13 the self acquisitions of Bhargavi Amma ?_ - _(iii) There being no specific challenge against Ext.A10 Sale Deed, are the plaintiffs entitled to seek for partition ignoring the document ?_ - _(iv) Can Exts.B3 and B4 Settlement Deeds hold good in respect of the properties covered thereunder if the properties included therein are found to be family properties ?_ - _(v) Did Bhargavi Amma have the right to execute Ext.B2 Gift Deed, if the properties covered thereunder are family properties ?_ - _(vi) Proof of Ext.B5 Will executed by Bhargavi Amma ?_ 7. Firstly I proceed to consider whether plaint item Nos.1 to 4 and 12 are the family properties of Bhargavi Amma. For an easy understanding of the status of parties the genealogical tree is given hereunder :- RFA No.438/2014, C O Nos.111/2014 & 80/2020 -: 4 :- **==> picture [499 x 329] intentionally omitted <==** Karthiyayani Amma is the mother of Bhargavi Amma, the predecessor-in-interest of the plaintiffs and defendants. In the year 1122 M.E, Ext.A1 Partition Deed was executed between Karthiyayani Amma and her children. In the said partition, 'A' schedule property was allotted to Karthiyayani Amma and 'D' schedule property was allotted to Bhargavi Amma. Karthiyayani RFA No.438/2014, C O Nos.111/2014 & 80/2020 -: 5 :- Amma executed Ext.A2 Will, registered as No. 5 of 1960, bequeathing the property to Bhargavi Amma. In _**Narayani Amma v Parameswaran Pillai 1963 KLT 630**_ a Division Bench of this Court relying on the full bench of the TravancoreCochin High Court in _**Paravathi Amma Kalliani Amma v Padmanabha Pillai Krishna Pillai 1956 KLT 803(FB)**_ held that, a gift in favour of a marumakkathayee would enure to the taravad/tavazhy. It is not in dispute that the properties obtained by Bhargavi Amma in Ext.A1 family partition and also from her mother Karthiyayani Amma under Ext.A2 Will are imprinted with the nature of family properties. Items 1 to 4 are family properties and the trial court has rightly held so. 8. Now I proceed to consider the nature of plaint item Nos.5 to 11 properties, as to whether they are family properties or the self acquisitions of Bhargavi Amma. RFA No.438/2014, C O Nos.111/2014 & 80/2020 -: 6 :- 9. Plaint item Nos.7 and 8 were acquired by Bhargavi Amma under Ext.A5 document No.1503 dated 15.07.1988 and plaint item No.9 was acquired by her as per Ext.A6 document No. 1060 dated 28.03.1994. The acquisition under Exts.A5 and A6 being after the abolition of joint family system, there could be no dispute that the acquisitions thereunder are the self acquisitions of Bhargavi Amma. 10. That leaves us with plaint item Nos.5,6,10 and 11. Plaint item No.5 was purchased by Bhargavi Amma under Ext.A3 Sale Deed No.2214 dated 05.11.1964. Plaint item No.6 was purchased by Bhargavi Amma under Ext.A4 document bearing No.1876 of 1974 dated 06.09.1974. Plaint item Nos.10 and 11 were obtained by Bhargavi Amma as per Ext.A8 document No.3009 dated 22.05.1962 as included in item Nos.1 and 2 respectively, in the document. To contend that item Nos.5, 6, 10 and 11 are RFA No.438/2014, C O Nos.111/2014 & 80/2020 -: 7 :- family properties the plaintiffs would urge that, at the time of the acquisitions under Exts.A3, A4 and A8, Bhargavi Amma was the Karanavathi of the Tarwad and that the acquisitions were utilising family funds. Therefore, the said properties partake the character of family properties, it is contended. An extent of 795 Sq. links in Sy. No.195/2 is likewise acquired by Bhargavi Amma under Ext.A9 dated 31.08.1959, from its allottee in Ext.A1 partition is shown as part of plaint item No.1, and the same is item No.1 in Ext.B2 gift deed, dated 02.06.1973, extended by Bhargavi Amma in favour of defendant No.11. The same is also contended to be a family property. On the other hand the 11[th] defendant-appellant would contend that, the 5[th] defendant who was the eldest son in the family was the Karanavan. It was also contended that the acquisitions were made by utilising the income obtained from the RFA No.438/2014, C O Nos.111/2014 & 80/2020 -: 8 :- business of Bhargavi Amma by the rearing and sale of cows and hen. 11. The 11[th] defendant-appellant was examined as DW2. In his cross-examination he deposed that the eldest brother Krishnan Nair, who is the 5[th] defendant, was employed at Hindustan Company at Bangalore during the period from 1957 to 1983. He further deposed that, their father died in the year 1985 and that on the death of the father the 5[th] defendant came to the Tarwad and got involved in his business. At paragraph 3 of the written statement of the 11[th] defendant it is stated that till the death of the father Krishnan Nair in February 1984, he was in possession of and managing the family properties. The averments read thus, “`mÀ-¤-hn-b-½-bv¡pw k-´m-\-§Ä-¡p-am-bn e-`n-¨ h-kvXp-¡Ä `mÀ-¤-hn-b-½-bp-sS `À-¯mhm-b am-cn-bnð Ir-jvW³ \m-bÀ ssIh-iw h-¨v Sn-bm³ a-cn-¡póXphsc (1984 s^-{_p-hcn) B-Zm-b-sa-Sp-¯v Sn h-kv-Xp-¡Ä A-`n- RFA No.438/2014, C O Nos.111/2014 & 80/2020 -: 9 :- hr-²n-s¸-Sp-¯nbpw Sn-bm-sâ tPm-en-bnð \nópw Iq-Sn e- `n-¨ h-cp-am-\w-sImïv Sn-bm³ X-sâ `m-cybpw a-¡-sfñmh-scbpw kw-c-£n¨pw h-kv-Xp-¡Ä t\m-¡n \-S-¯n-bpw h-ón-cp-óXmWv. Sn h-kv-Xp-¡-fnð \n-ópap-Å h-cp-am-\w Sn-bm-sâ k-´m-\-§-fp-sS hn-Zym-`ymkw, hn-hm-lw ap-Xem-b-h-bp-sS B-h-iy-¯n-\m-bn Iq-Sn Sn-bm³ hn\n-tbm” Kn-¨n-«p-Å-Xp-am-Ipóp. . It was reiterated in his chief examination. The above would indicate that, the 5[th] defendant was not available for management of the Tarawad, and he could not have been and was not acting as the Karanavan of the Tarwad. Under such circumstances when the senior most member was not available for management, who was acting as the defacto Karanavan is a question of fact _(_ _**See Kuttikrishnan Nair v Mdhavan Nair 1959 KLJ 213)**_ . Section 2(7) of the Travancore Nair Act, 11 of 1100 reads thus, _“Karanavan means the senior major male member of the tarwad in whom the headship of the tarwad, the right of management of its affairs and possession of the properties thereof, are vested in law and, in the absence of such male_ RFA No.438/2014, C O Nos.111/2014 & 80/2020 -: 10 :- _member, the senior major female member.”_ 12. On the evidence since it has come out that the 5[th] defendant, whom the appellant claims to be the karanavan, was at Bangalore in connection with his employment from the year 1957 to 1983 or 85, and on the pleading referred to supra that Krishnan Nair(the father) was possessing and enjoying the properties, and also in the light of the acquisitions having been made in her name, the probable conclusion is that, Bhargavi Amma was acting as the Karanavathi and that the affairs were being carried out through her husband Krishnan Nair. 13. In _**Achuthan Nair v. Chinnamu Amma AIR 1966 SC 411,**_ the Apex Court held, _“But it is settled law that if a property is acquired in the name of the Karanavan, there is a strong presumption that it is a tarwad property and that the presumption must hold good unless and until it is rebutted by acceptable evidence.”._ RFA No.438/2014, C O Nos.111/2014 & 80/2020 -: 11 :- The Apex Court held that, possession of nucleus and the income therefrom are material facts for consideration. 14. I proceed to analyse the source/nucleus for acquisition of items 5, 6, 10 and 11 under Exts.A3, A4 and A8 documents. At the time of such acquisitions, Bhargavi Amma was possessed of item Nos.1 to 4 and 12 properties as obtained under Ext.A1 Partition Deed and Ext.A2 Will. As regards the acquisition of properties by Bhargavi Amma, DW2 at paragraph 4 of his chief affidavit stated :- “ F-ómð A-½ `mÀ-¤-hn-b-½ Ióp-Im-enI-sf h-fÀ-¯nbpw tImgn, B-Sv F-ónh-sb h-fÀ-¯nbpw a-äpw Sn-bm-fpsS kz´-am-bn h-cp-am-\w Dïm¡n-bn-cpóp. A-§-s\-bpÅ Sn-bm-fp-sS kz-´-am-b h-cp-am-\w sImï-p am{Xw A-½bp-sS t]-cnð Sn-bm-fp-tS-Xm-bn h-kv-Xp h-I-IÄ k-¼m-Zn¨n-«p-Å-XmWv. Aѳ- F-s´-¦nepw kw-Jy sIm-Sp-¯n-cpsó-¦nð X-só A-Xv AÑ-sâ kz-´w ap-X-enð \nópw A-½-¡m-bn am{Xw Sn-bm-fp-sS C-ãw t]m-se hn\n-tbm-Kn¡p-ó-Xn-\v sIm-Sp-¯n-cp-óXmWv. .....” RFA No.438/2014, C O Nos.111/2014 & 80/2020 -: 12 :- Therefore, the claim is that, the acquisition of properties by Bhargavi Amma was by utilising the income that was obtained from the rearing and sale of cows, hen etc. In cross-examination he would say that he has only hearsay information regarding the same (tIm-gn h-fÀ¯-epw ]-ip h-f-À-¯epw ]d-ªp tI-«n-cpóp). There is no evidence regarding the income derived from the business whereas, as admitted by DW2, there were buildings in plaint item Nos.1 and 2 family properties which were occupied by tenants. Therefore, definitely there was income from the family properties. 15. It is the contention of the 11[th] defendantappellant that, their father Krishnan Nair was a teacher and had income from his salary. Here it is pertinent to note the evidence of the 11[th] defendant as DW2. At paragraph 3 of the chief affidavit it is stated thus :- RFA No.438/2014, C O Nos.111/2014 & 80/2020 -: 13 :- “..... A½-¡v Sn `m-K-{]-Im-cw In«n-b h-kv-Xp-¡Ä Sn-bmfp-sS `À-¯m-hv (R-§-fp-sS Aѳ) `m-K-]-{X-Im-ew apXð ssIh-iw h-¨v t\m-¡n-b-t\z-jn-¨v B-Zm-bw F-Sp¯p hóp. A-Ñ-sâ A-²ym-]I tPm-en-bnð \n-óp-Å h-cp-am-\hpw AÑ-\v Ip-Spw-_-¯nð \nópw In-«n-bn-cpóXpw Sn-bm³ k-¼m-Zn-¨n-cp-óXpam-b h-kv-Xp-¡fnð \n-óp-ap-Å h-cp-am-\w sImï-v A-ѳ hf-sc AwK-§-fp-Å R-§-fp-sS Xmh-gn Ip-Spw-_-¯n-sâ sN-e-hpIÄ \-S-¯p-Ibpw a-¡-fp-sS hn-Zym-`ym-k Im-cy-§Ä \-S-¯p-Ibpw sN-bv-Xp h-ón-«p-Å-XmWv. .....” He admits that there was income from the family properties, but his case is that it was not sufficient for maintenance of the family. It is also contended that the properties were being managed by their father, and that the properties obtained by Bhargavi Amma were being looked after by him. 16. DW2 also added that, the amounts given by Krishnan Nair to his wife Bhargavi Amma is her separate property and the acquisition of properties utilising RFA No.438/2014, C O Nos.111/2014 & 80/2020 -: 14 :- the said funds amounts to self acquisitions. When admittedly there was income from the family properties, assuming that any amounts received by Bhargavi Amma from her husband and also from the business if any conducted by her were also utilised for acquisition of properties, it could only be considered that the separate income has been brought into the common family pool, blending it with family income, thus making the acquisition as one on behalf of the family. The parties were very much aware of the system of law prevalent at the relevant time. If they intended to acquire the property for themselves, without inuring it to the Thavazhi, nothing stood in the way of the acquisitions being made in the name of Krishnan Nair or the children. 17. In the circumstances as noticed above, it could only be concluded that the acquisitions made under RFA No.438/2014, C O Nos.111/2014 & 80/2020 -: 15 :- Exts.A3, 4, 8 and 9 documents were, for and on behalf of the family and are family properties. 18. As regards the plaint item No.13, there is no document produced by either side to indicate regarding the nature of acquisition. The availability of the property is not in dispute. In the absence of any material to show the nature of the property, that it is the self acquisition, it is only proper to hold it to be a family property. 19. Having held plaint items 1 to 6 and 10 to 13, to be family properties, I proceed to discuss on the validity of the transactions made by Bhargavi Amma regarding the same, before and after the commencement of the Joint Family Abolition Act on 01.12.1976. 20. Section 39 of The Travancore Nair Act reads thus :- _“Nature of right to tarwad property before partitionUntil partition, no member of the tarwad shall be deemed to_ RFA No.438/2014, C O Nos.111/2014 & 80/2020 -: 16 :- _have a definite share in tarwad property liable to be seized in execution nor shall such member be deemed to have any alienable or heritable interest therein”._ In _**Ammalu Amma and Ors v. Lakshmy Amma (1966 KLT 32)**_ a Full Bench of this Court held that, in an undivided marumakkathayam family none of the members have an alienable interest over the family property. Since the family remained joint, Bhargavi Amma did not have any right of alienation. Ext.B2 Gift Deed executed by Bhargavi Amma in favour of the 11[th] defendant-appellant is dated 02.06.1973. The said Gift Deed takes in the 795 sq. links included in plaint item No.1 acquired by Bhargavi Amma under Ext.A9, and item Nos.10 and 11 as included in item Nos.2 and 3 therein. Since Bhargavi Amma did not have any alienable interest as on the said date, no interest could pass thereunder to the 11[th] defendant. Thus it could only be held that, the 11[th] RFA No.438/2014, C O Nos.111/2014 & 80/2020 -: 17 :- defendant did not obtain title over the 795 Sq. links in plaint item No.1 mentioned above, and plaint item Nos.10 and 11, under Ext.B2 Gift Deed. Though the trial court has refused to accept Ext.B2 for other grounds, I do not consider it necessary to deal with the correctness of the reasonings since, though for varying reasons, this Court has also held that the 11[th] defendant has not acquired any rights under Ext.B2. Therefore, plaint item Nos.10 and 11 are liable to be partitioned. 21. As regards plaint item Nos.5 and 6 acquired under Exts.A3 and A4 documents of the year 1964 and 1974 respectively, Bhargavi Amma executed Exts.B3 and B4 Settlement Deeds in favour of the 11[th] defendantappellant. Though arguments are advanced on the mental capacity of Bhargavi Amma as on the date of execution of the said deeds, noticeably, the plaint does not RFA No.438/2014, C O Nos.111/2014 & 80/2020 -: 18 :- contain any relief challenging Exts.B3 and B4. Having executed the documents, neither Bhargavi Amma nor her legal heirs could raise any contention against the documents without seeking appropriate declaratory relief or for setting aside the documents as the case may be. The collateral challenge sought to be urged cannot be maintained. _(See_ _**Dhurandhar Prasad Singh v. Jai Prakash University, AIR 2001 SC 2552 ).**_ 22. However, with regard to item Nos.5 and 6 there is yet another issue. It has already been held that they are family properties. The rights of Bhargavi Amma over the same got crystallized only on 01.12.1976 with the advent of the Joint Family Abolition Act. As on the said date there has been a deemed partition/ crystallisation of shares, per capita. Therefore, Bhargavi Amma has a share over the properties. However, under Exts.B3 and B4 she purported to convey the entire RFA No.438/2014, C O Nos.111/2014 & 80/2020 -: 19 :- plaint item Nos.5 and 6 to the 11[th] defendant. Exts.B3 and B4 operates only in respect of the share held by Bhargavi Amma as on 01.12.1976. Therefore, the said items are liable to be partitioned as family properties and the share of Bhargavi Amma over the same is liable to be allotted towards the share of the 11[th] defendant in addition to the share that he is otherwise entitled for. 23. Now what remains is the properties dealt with by Bhargavi Amma under Ext.B5 Will dated 01.06.2005. The properties dealt with under Ext.B5 Will are item Nos.1 to 4,7,9,12 and 13. 24. The genuineness of Ext.B5 Will is disputed by the plaintiffs. The challenge against the Will is urged in paragraph 11 of the plaint. According to the plaintiffs, they came to know about the Will from a communication dated 19.01.2006 sent from the Punjab RFA No.438/2014, C O Nos.111/2014 & 80/2020 -: 20 :- National Bank enclosing a copy of the Will. In paragraph 10 of the plaint, it is averred that a reply was given to the Bank challenging the genuineness of the Will. It has been contended that the Will is claimed to have been executed under suspicious circumstances. Bhargavi Amma was residing with the 11[th] defendant. Major portion of the assets has been bequeathed to the 11[th] defendant under the Will. Only negligible portion of the assets have been given to the other children. In the year 2005, Bhargavi Amma was 91 years old and did not have sufficient physical or mental health. The 11[th] defendant was in a position of active confidence to Bhargavi Amma. On these contentions the plaintiffs challenge Ext.B5 Will. 25. To prove the Will, one among the attestors was examined as DW3. In the chief-examination, the witness has deposed thus :- RFA No.438/2014, C O Nos.111/2014 & 80/2020 -: 21 :- “amXm-hv F-tóm-Sv \nÀ-t±-in-¨ {]-Im-cw Rm³ H-cp hnð]{Xw X-¿m-dm¡n. A-XmWv A1. A-Xnð Rm³ km£n-bmWv. `mÀ-¤-hn-b-½ hnð-]-{X-¯nð H-¸n«-Xv Rm³ Iï-n-cpóp. A1 hnð]-{X-¯n-se km-£n-Ifm-b Rm\pw N-{µ-ti-Jc³-\m-b-cpw km-£n-I-fm-bn H-¸n-Spó-Xv hnð]-{X IÀ¯mhm-b `mÀ-¤-hn-b-½-bp-sS ap-¼m-sI Sn-bm-fp-sS Im¬sI B-bn-cpóp.” It is important to note that DW3 does not depose that the other attestor saw the executant signing the Will. No doubt, in terms of Section 68 of the Evidence Act, due attestation of the Will can be proved by examining one of the attestors. It is not necessary that both the attesting witnesses should be examined. However, the one attesting witness who is examined must depose regarding due attestation by the other witness also. _**(** See_ _**Janki Narayan Bhoir v. Narayan Namdeo Kadam, (2003) 2 SCC 91)**_ . The evidence of DW3 as noted above, does not state that the other attestor saw the executant signing the Will. RFA No.438/2014, C O Nos.111/2014 & 80/2020 -: 22 :- Therefore, it could only be held that Ext.B5 Will has not been proved as mandated under law. 26. The learned counsel for the appellant made a plea that the matter may be remanded back to the trial court affording an opportunity to prove the Will in compliance with the requirements under Section 68 of the Indian Evidence Act. The plea is not liable to be accepted for reasons more than one; firstly, Order XLI Rules 23 and 23A which provide for remand, contemplate a remand only in the specified circumstances enumerated thereunder. Under Order 41 Rule 23, a remand could be made when trial court had disposed of a suit on a preliminary point and the decree is reversed in appeal, or in a case where the appellate court interferes with the decree and judgment of the trial court and considers it necessary in the interests of justice to order a further trial. Under Order XLI Rule 23A, a RFA No.438/2014, C O Nos.111/2014 & 80/2020 -: 23 :- remand is contemplated when the decree and judgment of the trial court is interfered with in appeal and the appellate court considers it necessary to have a retrial. None of the situations as above arise in the present case. 27. In the case of a Will, it is for the propounder to prove the Will and dispel all the suspicious circumstances surrounding its due execution. Ext.A5 Will was registered at the house. Bhargavi Amma was residing along with the 11[th] defendant-appellant. It is not in evidence as to who helped Bhargavi Amma for preparation, execution and registration of the Will. It is not in evidence as to who gave the necessary assistance to Bhargavi Amma to enable house registration. Who arranged the witnesses, is not in evidence. Ext.B5 Will is dated 01.06.2005 and Bhargavi Amma died on 03.01.2006. RFA No.438/2014, C O Nos.111/2014 & 80/2020 -: 24 :- 28. Relying on the judgment of the Apex Court in _**H.Venkatachala Iyengar v. B.N. Thimmajamma AIR 1959 SC 443**_ , the learned Senior Counsel for the respondent would contend that the dispositions made under Ext.B5 Will is apparently unfair and hence liable to be discarded. Major chunk of the properties dealt with thereunder have been bequeathed to the 11[th] defendant and only a negligible portion is bequeathed to the other children. The disposition being unfair, the Will is not liable to be upheld, it is contended. As per Ext.B5 Will, plaint item Nos.1 to 4 were bequeathed in favour of all the children of Bhargavi Amma, plaint item No.7 having an extent of 1.30 acres is bequeathed to the 11[th] defendant, plaint item No.9 having an extent of 25 cents is bequeathed to the 6[th] defendant, plaint item No.12 having an extent of 15 cents is bequeathed jointly to defendants 5 and 10, and plaint item No.13 RFA No.438/2014, C O Nos.111/2014 & 80/2020 -: 25 :- having an extent of 40 cents is bequeathed to the 5[th] defendant. Merely because a larger extent of property was given to the 11[th] defendant by itself does not make it an unfair disposition. As has been held by the Apex Court in _**Mahesh Kumar v. Vinod Kumar, (2012) 4 SCC 387,**_ the very purpose of execution of a Will is to interfere with the normal rule of succession. The mere fact that a larger extent of property was given to one among the children or that some of them were excluded, by itself, is not a ground to hold against the Will. 28. The fact that Bhargavi Amma was not so hail and healthy is apparent from the fact that the registration was done at home. As noticed earlier, Bhargavi Amma was aged 91 years at the time of execution of the Will. She died six months after execution of the Will. The mental capacity of Bhargavi Amma was challenged by the plaintiffs. The allegation of, position of active RFA No.438/2014, C O Nos.111/2014 & 80/2020 -: 26 :- confidence and the 11[th] defendant having prevailed over Bhargavi Amma, cannot be easily brushed aside. As noticed earlier, it is not in evidence as to who aided Bhargaviamma in the execution of the Will and arranged house registration. The trial court appreciated all these circumstances and held that the suspicious circumstances surrounding the execution of the Will has not been duly explained by the propounder. The finding arrived at by the trial court is based on materials and is a plausible one. There is no material to interfere with the same. 29. Therefore, on the above reasons, I concur with the finding of the trial court that Ext.B5 Will has not been duly proved. Resultantly, the properties covered under Ext.B5 Will is also available for partition. 30. Respondents 1, 4, 8 and 9 in the Appeal, who are respectively Plaintiff No.1, Defendant No.1, RFA No.438/2014, C O Nos.111/2014 & 80/2020 -: 27 :- Defendant No.5 and Defendant No.6 died pending the Appeal and their legal representatives are impleaded/ recorded and all of them are in the array of parties. Respondent No. 19 is the legal representative of the 1[st] plaintiff-Respondent No.1. Defendants 2 to 4- Respondents 5 to 7 are the legal representatives of deceased 1[st] defendant-4th respondent. Respondents 16 and 17 are the legal representatives of the 5[th] defendant-Respondent No.8. Respondent No.18 is the legal representative of the 6[th] defendant-9th respondent. Their shares devolve on their legal heirs. 31. On the above discussions, the decree and judgment of the trial court are set aside and preliminary decree is passed declaring that:- (i) Plaint item Nos.1 to 6 and 10 to 13 are family properties and are available for partition. (ii) As on the date of the commencement of the RFA No.438/2014, C O Nos.111/2014 & 80/2020 -: 28 :- Kerala Joint Hindu Family Abolition Act, 1976 (ie., 01.12.1976), there were 15 members in Arackal Tarawad of which the common ancestress was Bhargavi Amma. Therefore, Tarawad properties are to be partitioned into 15 shares. (iii) Bhargavi Amma who had 1/15 share as on 01.12.1976 died prior to the suit. Her 1/15 share, except in items 5 and 6, would devolve by intestate succession on her personal heirs. - (iv) As regards plaint items 1 to 4 and 10 to 13, the share of Bhargavi Amma - 1/15 share (same as 42/630 shares) devolved on her 7 children equally, who are Defendant No.1, Defendant No.5 Plaintiff No.1, Defendant No.6, Defendant - No.9, Defendant No.10 and Defendant No.11. Since Defendant No.1, Defendant No.5, RFA No.438/2014, C O Nos.111/2014 & 80/2020 -: 29 :- Plaintiff No.1 and Defendant No.6 died pending this Appeal, their individual share (ie., 1/15 same as 42/630 shares) together with the fractional share inherited from their mother would devolve on the legal heirs of each of them. Thus reckoned, the parties are entitled to share in items 1 to 4 and 10 to 13 as hereunder: |(a)|Respondent No.2 (Plaintiff No.2)|:|58/630| |---|---|---|---| |(b)|Respondent No.3 (Plaintiff No.3)|:|58/630| |(c)|Respondent No.5 (Defendant No.2)|:|58/630| |(d)|Respondent No.6 (Defendant No.3)|:|58/630| |(e)|Respondent No.7 (Defendant No.4)|:|58/630| |(f)|Respondent No.10 (Defendant No.7)|:|58/630| |(g)|Respondent No.11 (Defendant No.8)|:|58/630| |(h)|Respondent No.12 (Defendant No.9)|:|48/630| |(i)|Respondent No.13 (Defendant No.10)|:|48/630| RFA No.438/2014, C O Nos.111/2014 & 80/2020 -: 30 :- ||(j)<br>Appellant (Defendant No.11)<br>:<br>48/630| |---|---| ||(k)<br>Respondent No.16 (LR of Defendant No.5) :<br>24/630| ||(l)<br>Respondent No.17 (LR of Defendant No.5) :<br>24/630| ||(m)<br>Respondent No.18| ||(Addl. LR of Defendant No.6)<br>:<br>16/630| ||(n)<br>Respondent No.19| ||(Addl. LR of plaintiff No.1)<br>:<br>16/630| |(v)|The share of Bhargavi Amma in plaint items 5| ||and 6 vests with the 11thdefendant under| ||Exts.B3 and B4 documents.| |(vi)|Plaint Items 5 and 6 are to be divided into 15| ||shares, and Defendant No.11 shall be allotted| ||the 1/15 share (same as 42/630 shares) of| ||Bhargavi Amma, in view of Ext.B3 and Ext.B4 in| ||addition to his individual share of 1/15. The| ||shares of the parties over the items 5 and 6| ||are:-| RFA No.438/2014, C O Nos.111/2014 & 80/2020 -: 31 :- ||(a)|Respondent No.2 (Plaintiff No.2)|:|56/630| |---|---|---|---|---| ||(b)|Respondent No.3 (Plaintiff No.3)|:|56/630| ||(c)|Respondent No.5 (Defendant No.2)|:|56/630| ||(d)|Respondent No.6 (Defendant No.3)|:|56/630| ||(e)|Respondent No.7 (Defendant No.4)|:|56/630| ||(f)|Respondent No.10 (Defendant No.7)|:|56/630| ||(g)|Respondent No.11 (Defendant No.8)|:|56/630| ||(h)|Respondent No.12 (Defendant No.9)|:|42/630| ||(i)|Respondent No.13 (Defendant No.10)|:|42/630| ||(j)|Appellant (Defendant No.11)|:|84/630| ||(k)|Respondent No.16 (LR of Defendant No.5) :||21/630| ||(l)|Respondent No.17 (LR of Defendant No.5) :||21/630| ||(m)|Respondent No.18||| |||(Addl. LR of Defendant No.6)|:|14/630| ||(n)|Respondent No.19||| |||(Addl. LR of plaintiff No.1)|:|14/630| |(vii)|Plaint items 7, 8 and 9 are the|||separate| ||properties of Bhargavi Amma.|||| RFA No.438/2014, C O Nos.111/2014 & 80/2020 -: 32 :- (viii) Item No.8 is not available for partition, the same having been alienated in favour of the 13[th] defendant under Ext.A10. |(ix)|Items 7 and 9 are available for partition.| |---|---| ||Plaint item Nos.7 and 9 devolve on the| ||personal heirs of Bhargavi Amma namely, her 7| ||children - Defendant No.1, Defendant No.5| ||Plaintiff No.1, Defendant No.6, Defendant| ||No.9, Defendant No.10 and Defendant No.11. The| ||parties are entitled to the following shares| ||in respect of items 7 and 9:| ||(a)<br>Respondent No.2 (Plaintiff No.2)<br>:<br>2/42| ||(b)<br>Respondent No.3 (Plaintiff No.3)<br>:<br>2/42| ||(c)<br>Respondent No.5 (Defendant No.2)<br>:<br>2/42| ||(d)<br>Respondent No.6 (Defendant No.3)<br>:<br>2/42| ||(e)<br>Respondent No.7 (Defendant No.4)<br>:<br>2/42| ||(f)<br>Respondent No.10 (Defendant No.7)<br>:<br>2/42| RFA No.438/2014, C O Nos.111/2014 & 80/2020 -: 33 :- ||(g)|Respondent No.11 (Defendant No.8)|:|2/42| |---|---|---|---|---| ||(h)|Respondent No.12 (Defendant No.9)|:|6/42| ||(i)|Respondent No.13 (Defendant No.10)|:|6/42| ||(j)|Appellant (Defendant No.11)|:|6/42| ||(k)|Respondent No.16 (LR of Defendant No.5) :||3/42| ||(l)|Respondent No.17 (LR of Defendant No.5) :||3/42| ||(m)|Respondent No.18||| |||(Addl. LR of Defendant No.6)|:|2/42| ||(n)|Respondent No.19||| |||(Addl. LR of plaintiff No.1)|:|2/42| |(x)|Equities to be worked out at the final|||decree| ||proceedings.|||| Accordingly, the appeal is dismissed and the Cross Objections are allowed. Sd/- **SATHISH NINAN** **JUDGE** kns/- //True Copy// P.S. to Judge RFA No.438/2014, C O Nos.111/2014 & 80/2020 -: 34 :- As per the order dated 15.01.2024 in I.A. No.1/2024 the following corrections are incorporated in the judgment dated 06.11.2023 in RFA 438/2014. (i) The age of Addl. Respondent No.18 (Smt.Reshmi Aravind) is corrected as “39 years” in the place of “86” years”. (ii) That Addl. Respondent No.18 (smt.Reshmi Aravind) is an additional legal representative of deceased Respondent No.9 (iii) The noting “(DELETED)” at the end of the cause title of Addl. Respondent No.18 is cancelled. (iv) That Addl. Respondent No.19 is an additional legal representative of deceased Respondent No.1 Sd/Joint Registrar ## **APPENDIX OF RFA 438/2014** PETITIONER ANNEXURES Annexure A1 TRUE COPY OF THE DIARY OF THE MOTHER OF THE PETITONER Annexure AII TRUE COPY OF THE LAND TAX RECEIPT ISSUED BY THE VILLAGE OFFICE FOR THE YEAR 1983-1984 Annexure AIII TRUE COPY OF THE LAND TAX RECEIPT ISSUED BY THE VILLAGE OFFICE FOR THE YEAR 1998-1999 -----