High Court of KeralaSingle JudgeAppeal dismissed.

M.P.KUNHILAKSHMI AMMA and others v. M.P.KARTHIAYANI AMMA and others

Case / Petition Number:SA.No.19 of 2003 (B)

Case Details & Bench

Court
High Court of Kerala
Hon'ble Judges
  • P. Somarajan
Judgment Date
2020-01-20
Court Decision / Holding
Appeal dismissed. No costs.
Final Disposition
Appeal dismissed.

Parties to the Case

Appellants / Petitioners

  • M.P.KUNHILAKSHMI AMMA
  • ARUNKUMAR
  • RAJ KUMAR

Respondents

  • M.P.KARTHIAYANI AMMA
  • M.P. RAJAGOPALAN
  • M.P. MADHAVAN NAIR
  • M.P. JANAKI AMMA
  • M.P. RUGMINI AMMA
  • M.P. VASANTHAKUMARI
  • M.P. SEEMA RAMDAS
  • M.P. VENUDHARAN
  • M.P. SAJEEVAN
  • M.P. ASA JAYARAM
  • M.P. SANTHOSH BABU
  • M.P. VINOD KUMAR
  • M.P. SREENARAYANAN
  • SAROJINI AMMA
  • POTTEKKAT JAYALAKSHMI
  • PATHAMANA NECHIKKATTIL KARTHIAYANI AMMA
  • P.N. SREEKUMAR
  • P.N. INDIRA
  • P.N. SREEPRAKASH
  • SAROJA
  • C.VIJAYALAKSHMI
  • RAVEENDRAN
  • HARINARAYANAN

Legal Representation & Advocates

Counsels for Petitioners

  • • G.S. Reghunath

Counsels for Respondents

  • • Anil Sivaramann
  • • Anish S. Ambady
  • • Bijimol Jose
  • • Preethy Karunakaran
  • • Sanjana R. Nair
  • • Boby Mathew
  • • K. Meera
  • • T.N. Manoj
  • • R. Rajesh Kormath

Case Synopsis & Summary

The Kerala High Court heard SA No.19 of 2003 (B) as a second appeal arising from a partition suit. Plaintiffs 1–3 sought a 1/24th share in B schedule properties, challenging a preliminary decree that allocated 45/2880 share in item 1 and 1/24th share in item 2 to the plaintiffs. The defendants claimed the property was acquired by six persons in their individual capacities, not as family property. Ext.A1 (1950) shows title in six names; Ext.A3 (1960) contains statements by one co-owner but does not bind all co-owners. The appellants argued that under the Kerala Joint Hindu Family System (Abolition) Act, 1975, the Tharavadu property should be treated as family property and all heirs are entitled. They relied on Karthyayini Amma v. Parukutty Amma (1957 KHC 41) to support that family funds or benefit define property as family property, notwithstanding some co-owners’ absence from the purchase documents. The respondents argued the property was procured by six individuals, with no clear evidence that family funds or collective benefit defined the asset as family property; Madras Marumakkathayam Act, Section 48 was cited but not applicable given the facts. The court concluded no substantial question of law was involved and, applying the cited precedents, held the property did not become family property due to lack of clear familial funding or purpose. The appeal was dismissed, with no costs.

Provisions of Law Cited

Kerala Joint Hindu Family System (Abolition) Act, 1975Section 48 of the Madras Marumakkathayam Act

Legal Doctrines & Maxims

  • Karthyayini Amma v. Parukutty Amma (1957 KHC 41)
  • Thayyullathil Kunhikannan and others v. Thayyullathil Kalliani and Ors. (AIR 1990 Kerala 226)

Submissions & Arguments

Contentions of Appellants / Petitioners

The appellants contended that the B schedule property constitutes a family property, acquired under the Tharavadu framework, and that all family members were entitled to equal shares under the Kerala Joint Hindu Family System (Abolition) Act, 1975. They argued Ext.A1 shows title in six persons, not all relevant family members joined, yet the property should be considered family property if funded by the family or acquired for the family’s benefit. They relied on Karthyayini Amma v. Parukutty Amma (1957 KHC 41) to support their position and invoked Section 48 of the Madras Marumakkathayam Act to argue that property acquired by a husband in the name of his wife and children could be family property. Ext.A3 and the lease-related assertions were argued as binding on all co-owners only if there was a binding admission of family ownership. respondents: The respondents argued that Ext.A1 demonstrates the property was purchased in the names of six individuals, not necessarily funding or benefit of the entire family, and there was no evidence that family funds were used for acquisition. They submitted that Section 48 does not apply here since no arrangement showed the property as family property. The court’s reasoning leaned on the absence of binding family-wide funding or intent, and the admissions in Ext.A3 do not bind non-consenting co-owners. The decision cited Thayyullathil Kunhikannan and Thayyullathil Kalliani to distinguish that precedent from the present facts.

Cited Precedents (2)

Case NameCitationTreatmentExplanation
Karthyayini Amma v. Parukutty Amma1957 KHC 41PositiveCited as the legal proposition that property status as family or not depends on more than mere title; if funds and use indicate family property, it may be so; used to support the notion that family property characterization requires broader evidence.
Thayyullathil Kunhikannan and others v. Thayyullathil Kalliani and Ors.AIR 1990 Kerala 226DistinguishedCourt states this decision will not assist appellants and distinguishes it from the present facts.

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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 20TH DAY OF JANUARY 2020 / 30TH POUSHA, 1941** ## **SA.No.19 OF 2003 (B)** **AGAINST THE DECREE & JUDGMENT DATED 10-06-2002 IN AS No.27/1991 OF DISTRICT COURT, MANJERI** ## **AGAINST THE DECREE & JUDGMENT DATED 19-10-1990 IN OS No.195/1988 OF MUNSIFF COURT, MANJERI** ## **APPELLANTS – APPELLANTS - PLAINTIFFS:** - **1 M.P.KUNHILAKSHMI AMMA, D/o DEVAKI AMMA, T.C.3/2000, “SREE SABARI”, L.I.C. LANE E., PATTOM,, THIRUVANANTHAPURAM.** - **2 ARUNKUMAR, S/o M.P. KUNHILAKSHMI AMMA, RESIDING AT DO. DO.** - **3 RAJ KUMAR, DO. DO.** **BY ADV. SRI.G.S.REGHUNATH** ## **RESPONDENTS – RESPONDENTS 3 TO 5 & 7 TO 22 - DEFENDANTS:** - **1 M.P.KARTHIAYANI AMMA, D/o NARAYANI AMMA, PUTHEN KOVILAKAM, P.O. NILAMBUR, MALAPPURAM DISTRICT.** - **2 M.P. RAJAGOPALAN, S/o KARTHIAYANI AMMA, DO. DO.** - **3 M.P. MADHAVAN NAIR, S/o AMMU ALIAS LAKSHMI AMMA, SAROJANJALI, THAMPANANGADI, P.O. PANDIKKAD, VIA. MANJERI, MALAPPURAM. (DIED, LRs IMPLEADED)** - **4 M.P. JANAKI AMMA, (DIED, LRs RECORDED), D/o AMMU ALIAS LAKSHMI AMMA, GOKUL, VETTIKKATTIRI DESOM, VALLUVANGAD DESOM, P.O. PANDIKKAD, ERANAD TALUK,, MALAPPURAM DISTRICT.** **(RESPONDENTS 8 TO 10 ARE RECORDED AS THE LEGAL HEIRS OF DECEASED 4TH RESPONDENT AS PER ORDER DATED 28.10.2019 IN IA.1/2019.)** - **5 M.P. RUGMINI AMMA, (DIED, LRs RECORDED), D/o AMMU ALIAS LAKSHMI AMMA, PANTHALATHODI HOUSE, VETTIKKATTIRI DESOM, DO. DO.** S.A.No.19 of 2003 2 **(RESPONDENTS 11 TO 13 ARE RECORDED AS THE LRs OF DECEASED 5TH RESPONDENT AS PER ORDER DATED 01.11.2019 IN IA.2/2019.)** - **6 M.P. VASANTHAKUMARI, D/o DEVAKI AMMA, "SREE VALSAM", ANGADIPPURAM, PERINTALMANNA, MALAPPURAM DISTRICT.** - **7 M.P. SEEMA RAMDAS, D/o VASANTHAKUMARI, DO. DO.** - **8 M.P. VENUDHARAN, S/o JANAKI AMMA, QUARTERS NO.280 A, HEMAMBIKA NAGAR, RAILWAY COLONY, PALAKKAD.** - **9 M.P. SAJEEVAN, S/o JANAKI AMMA, 1253, LODHI ROAD COMPLEX, NEW DELHI-110 003.** - **10 M.P. ASA JAYARAM, D/o JANAKI AMMA, THARAVAD, MANNARAKONAM, P.O. VATTIYOORKAVU, TRIVANDRUM.** - **11 M.P. SANTHOSH BABU, S/o RUGMINI AMMA, PANTHALATHODI HOUSE, VETTIKKATTIRI DESOM,, VALLUVANAD AMSOM, P.O. PANDIKKAD, ERANAD TALUK, MALAPPURAM DISTRICT.** - **12 M.P. VINOD KUMAR, S/o RUGMINI AMMA, DO. DO.** - **13 M.P. SREENARAYANAN, S/o RUGMINI AMMA, DO. DO.** - **14 SAROJINI AMMA, WIFE OF LATE M.P. NARAYANAN NAIR, AISWARYA, VETTIKUTH, NILAMBUR AMSOM, ERANAD TALUK, MALAPPURAM DISTRICT. (DIED, LR RECORDED)** **(RESPONDENT No.15 IS RECORDED AS THE LEGAL REPRESENTATIVE OF DECEASED 14TH RESPONDENT AS PER ORDER DATED 01.11.2019 IN IA.3/2019.)** - **15 POTTEKKAT JAYALAKSHMI, D/o M.P. NARAYANAN NAIR, DO. DO.** - **16 PATHAMANA NECHIKKATTIL KARTHIAYANI AMMA, W/o LATE M.P. SANKARAN NAIR, RESIDING AT "PRASANTH", VETTIKKATTIRI AMSOM, VALLUVANAD DESOM, P.O. PANDIKKAD, ERANAD TALUK, MALAPPURAM DISTRICT.** - **17 P.N. SREEKUMAR, S/o LATE M.P. SANKARAN NAIR, DO. DO.** S.A.No.19 of 2003 3 - **18 P.N. INDIRA, D/o LATE M.P. SANKARAN NAIR, DO. DO.** - **19 P.N. SREEPRAKASH, S/o LATE M.P. SANKARAN NAIR, DO. DO.** **ADDITIONAL R20 TO R23 IMPLEADED** > **ADDL. C.JAYASREE, D/o LATE SRI.M.P.MADHAVAN NAIR,** > **R20 'SAROJA', TC 15/227, UDARASHIROMANI ROAD, VELLAYAMBALAM, TRIVANDRUM.** > **ADDL. C.VIJAYALAKSHMI, D/o LATE SRI.M.P.MADHAVAN NAIR,** > **R21 AA 118, SANTHI COLONY, ANNA NAGAR, CHENNAI,TAMILNADU.** > **ADDL. RAVEENDRAN, S/o LATE SRI.M.P.MADHAVAN NAIR,** > **R22 AMBANANGADI HOUSE, VETTIKATHIRI AMSHAM, VALLUVANGAD DESOM, ERANAD TALUK, MALAPPURAM.** > **ADDL. HARINARAYANAN, S/o LATE SRI.M.P.MADHAVAN NAIR,** > **R23 SAROJA, T.C.15/227, UDARASHIROMANI ROAD, VELLAYAMBAM, TRIVANDRUM.** **(ADDL. R20 TO R23 ARE IMPLEADED BEING THE LRs OF DECEASED R3 AS PER ORDER DATED 05.03.2012 IN IA.1633/2007).** **R1, R2 BY ADV. SRI.ANIL SIVARAMAN R3 BY ADVS. SRI.ANISH S.AMBADY SMT.BIJIMOL JOSE SMT.PREETHY KARUNAKARAN SMT.SANJANA R.NAIR R5, R12 & R13 BY ADVS. SRI.BOBY MATHEW SMT.K.MEERA R7 BY ADV. SRI.T.N.MANOJ R3, R20 AND R23 BY ADV. SRI.R.RAJESH KORMATH** **THIS SECOND APPEAL HAVING BEEN FINALLY HEARD ON 20.01.2020. THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** S.A.No.19 of 2003 4 ## **JUDGMENT** The plaintiffs 1 to 3 came up with a suit for partition claiming 1/24[th] share over item Nos.1 and 2 of 'B' schedule property. But a preliminary decree was granted fixing 45/2880 share to the plaintiffs out of 'B' schedule item No.1 and 1/24[th] share in 'B' schedule item No.2, against which this appeal by the plaintiffs. 2. The plaintiffs claim that 'B' schedule item No.1 property is a family property and that at the time when 1975 Act [the Kerala Joint Hindu Family System (Abolition) Act, 1975] came into force, there were 21 members in the family including the plaintiffs. As such, each of them is entitled to 1/24[th] share over the 'B' schedule item Nos.1 and 2. It was contested by the defendants 5, 6, 9 and 10 and claimed that it is a property acquired by six persons in their individual capacity and not a family property. 3. Ext.A1 is the document of title of the year 1950 stands in the name of six persons. Nothing mentioned in the document with respect to acquisition of property in the name of family or utilization of any fund thereof. It is an admitted fact that at the time when the property was purchased, the first defendant was alive. He is the son of S.A.No.19 of 2003 5 Kallyani Amma, but not joined as a purchaser in Ext.A1 document. In fact, Ext.A1 document was not executed in the name of all existing members in the family at that time. By relying on the legal proposition laid down in **Karthyayini Amma v. Parukutty Amma ( 1957 KHC 41)** , it was contended that it is not necessary that all the members of the family should join as beneficiary under the document of purchase so as to show the nature of property as the one acquired by the family. There may not be any quarrel with the legal position settled. But it should be established that the property was purchased in the name of the family, by utilizing the fund of the family or acquired for the benefit of family, without which it will not get the character of family property. The property acquired by some of the members of Tharavadu out of their individual earnings cannot be termed as a family property. The legal position was very much settled by the abovesaid decision. 4. Section 48 of the Madras Marumakkathayam Act was also relied on by appellants that unless there is contrary intention, the acquisition either by way of bequest, gift, sale or by any other means by the husband in the name of his wife and children should be treated as the property of Thavazhi. But no such case was advanced by the plaintiffs S.A.No.19 of 2003 6 in the plaint. Such a contention was raised based on the admission made by some of the defendants that in so far as the acquisition of property in the name of Ammu @ Lakshmi Amma and her son under Ext.A1 document is concerned, the sale consideration came out of the funds of her husband. But the document is totally silent about it. No such case was advanced by the plaintiffs in their plaint. It will not have any binding force to the other defendants. Further, the property was purchased in the name of six persons and there is no material to show that in so far as some of the purchasers are concerned, the consideration is from some other person other than the beneficiary under the document. There is nothing in the document to show any such payment of consideration by a person who is not a party to the document. Hence Section 48 of the Madras Marumakkathayam Act will not come into play. 5. The recital contained in Ext.A3 document of the year 1960 was also relied on by the appellants. But it was executed by one among the six persons who are the co-owners of the property who purchased the property in their individual name. The representation or admission made by one among the six persons would not have any binding force on the other persons. In Ext.A3 document nothing was S.A.No.19 of 2003 7 mentioned with respect to the nature of property or nature of acquisition. But he had executed the document transferring his entire right, title and interest over the property, which stands for whatever interest held by him over the property. That does not mean that there is an admission by that person regarding the nature of property as family property. Such an adventurous interpretation cannot be permitted even for a moment. Yet another contention was also raised that what is covered by Ext.A1 document is only a leasehold right and not the jenmom right over the property and that there is reference in Ext.A3 document that the property was outstanding on lease with the family. According to the defendants, it is a mistake committed by one among the co-owners while executing Ext.A3 and it has no binding force on other co-owners. There is no satisfactory evidence to show that the property was outstanding on lease with the family at the time when Ext.A1 document was executed. If there was any existing leasehold right over the property at the time when Ext.A1 document was executed, it would have found a place in the document itself. On the other hand, going by Ext.A1 document, it is clear that what they have purchased is the entire right, title and interest over the S.A.No.19 of 2003 8 property without referring any subsisting lease either with the family or with any other person. The legal position settled by a Division Bench of this Court in **Thayyullathil Kunhikannan and ..... v. Thayyullathil Kalliani and Ors. ( AIR 1990 Kerala 226)** hence will not give any assistance to the appellants. No substantial question of law involved. The appeal fails, dismissed. No costs. ## **Sd/-** **P.SOMARAJAN** **JUDGE** DMR/-