N. Ammukutty Amma & Others v. Prabhakaran & Others

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.R.RAMAN & THE HONOURABLE MR. JUSTICE V.K.MOHANAN FRIDAY, THE 4TH APRIL 2008 / 15TH CHAITHRA 1930 AS.No. 7 of 1992(B) - ------------------OS.115/1985 of PRL.SUB COURT, KOZHIKODE .................... APPELLANT: ----------- 1. N.AMMUKUTTY AMMA, D/O. NEEKAMPURATH PARU AMMA. 2. DEVADASAN, S/O. AMMUKUTTY AMMA. 3. MOHANDASAN, S/O. AMMUKUTTY AMMA. 4. SOMASUNDARAN, S/O. AMMUKUTTY AMMA. 5. PRAKASAN, S/O. AMMUKUTTY AMMA. 6. JAYALATHA, D/O. AMMUKUTTY AMMA. 7. BIJESH, S/O. AMMUKUTTY AMMA. (APPELLANTS ARE RESIDING AT NEEKAMPURATH HOUSE, KODAL AMSOM AND DESOM, PANTHEERANKAVU VILLAGE, KOZHIKODE TALUK). - BY ADV. SRI.D.KRISHNA PRASAD - SRI.P.SHRIHARI SRI.P.G.PARAMESWARA PANICKER (SR.) RESPONDENTS: - ------------- - 1 PRABHAKARAN, S/O. NEEKAMPURATH PARU AMMA, RESIDING . AT KODAL AMSOM AND DESOM, KOZHIKODE TALUK. 2. PADMAVATHI AMMA, , D/O. NEEKAMPURATH PARU AMMA, RESIDING AT NADUVATTAM AMSOM AND DESOM, KOZHIKODE TALUK. 3. RADHA, D/O. NEEKAMPURATH PARU AMMA, RESIDING AT MEPARAMBATH HOUSE, VELLAYIKODE AMSOM AND DESOM, KOZHIKODE TALUK. 4. GANGADHARAN, S/O. NEEKAMPURATH PARU AMMA, RESIDING AT KODAL AMSOM AND DESOM, KOZHIKODE TALUK. 5. RADHAKRISHNAN, S/O. THE LATE N. KUNHILAKSHMI AMMA, RESIDING AT KODAL AMSOM AND DESOM, KOZHIKODE TALUK. AS 7/92. -2- 6. SASIDHARAN, S/O. THE LATE N.KUNHILAKSHMI AMMA, RESIDING AT KODAL AMSOM AND DESOM, KOZHIKODE TALUK. 7. PREMALATHA, D/O. THE LATE N.KALLIANIKUTTY AMMA, RESIDING AT PATTANCHAIVAL, ROOM NO.E 1/16 HANUMAN NAGAR, KANDIVALLY, EAST BOMBAY - 400 101. 8. JAYAPRAKASHAN, S/O. THE LATE N. KALLIANIKUTTY AMMA, RESIDING AT NADUVATTAM AMSOM AND DESOM KOZHIKODE TALUK. 9. MURALEEDHARAN, S/O. RADHA AMMA, RESIDING AT MEPARAMBATH HOUSE, VELLAYIKODE AMSOM AND DESOM, KOZHIKODE TALUK. 10. SARASWATHI AMMA, D/O. LATE N.NARAYANIKUTTY AMMA, RESIDING AT ULLADAMKUZHIYIL HOUSE, KODAL AMSOM AND DESOM, KOZHIKODE TALU. 11. CHANDRAMATHI AMMA, D/O. LATE N.NARAYANIKUTTY AMMA, RESIDING AT THEKKE VALAPPIL VEETTIL, KOZHIKODE TALUK. 12. SREEDHARAN NAIR, S/O. LATE N.NARAYANIKUTTY AMMA, RESIDING AT THEKKE VALAPPIL VEETTIL, KOZHIKODE TALUK. 13. JANARDHANAN, S/O. LATE N.NARAYANIKUTTY AMMA, RESIDING AT THEKKE VALAPPIL VEETTIL, KOZHIKODE TALUK. 14. MURALEEDHARAN, S/O. LATE N.NARAYANIKUTTY AMMA, DO. DO. 15. VIJAYARAGHAVAN, S/O. SARASWATHI AMMA, RESIDING AT ULLADAMKUZHIYIL HOUSE, KODAL AMSOM AND DESOM, KOZHIKODE TALUK. 16. VASANTHAKUMARI, D/O. SARASWATHI AMMA, RESIDING AT ULLADAMKUZHIYIL HOUSE, KODAL AMSOM AND DESOM, KOZHIKODE TALUK. 17. JAYAPRAKASH, S/O. SARASWATHI AMMA, RESIDING AT ULLADAMKUZHIYIL HOUSE, KODAL AMSOM AND DESOM, KOZHIKODE TALUK. AS 7/92. -3- 18. VINODH KUMAR, S/O.SARASWATHI AMMA, DO. DO. 19. MEPARAMBATHU VEETTIL PARU AMMA, W/O. LATE N.GOVINDAN NAIR, RESIDING AT MEPARAMBATHU HOUSE, VELLAYIKODE AMSOM AND DESOM, KOZHIKODE TALUK. 20. MEPARAMBATH VEETTIL DEVAKI AMMA (DIED) D/O,. MEPARAMBATH VEETTIL PARU AMMA, RESIDING AT MEPARAMBATH HOUSE, VELLAYIKODE AMSOM AND DESOM, KOZHIKODE TALUK. 21. MEPARAMBATH VEETTIL PADMANABHAN NAIR, RESIDING AT DO. DO. 22. KUZHIKANDATHIL JANAKI AMMA,,(DIED) W/O. LATE N.KARUNAKARAN NAIR, RESIDING AT KUZHIKANDATHIL HOUSE, VELLAYIKODE AMSOM AND DESOM, KOZHIKODE TALUK.(LRS IMPLEADED) 23. KUZHIKANDATHIL KALLIANI AMMA, (DIED) D/O. N.KARUNAKARAN NAIR, RESIDING AT KUZHIKANDATHIL HOUSE, VELLAYIKODE AMSOM AND DESOM, KOZHIKODE TALUK. (LRS IMPLEADED) 24. KUZHIKANDATHIL BALAKRISHNAN NAIR, S/O. .N. KARUNAKARAN NAIR, RESIDING AT KUZHIKANDATHIL HOUSE, DO. DO. 25. KUZHIKANDATHIL GOVINDANKUTTY NAIR, S/O. N.KARUNAKARAN NAIR, RESIDING AT KUZHIKANDATHIL HOUSE, DO. DO. 26. PUNATHIL DEVAKI AMMA, (DIED) W/O. THE LATE N.CHEROOTTY NAIR, RESIDING AT PUNATHIL HOUSE, KODAL AMSOM AND DESOM, KOZHIKODE TALUK. 27. PUNATHIL SANTHAKUMARI AMMA, D/O. PUNATHIL DEVAKI AMMA, RESIDING AT DO. DO. DO. 28. PUNATHIL RADHA AMMA, D/O. PUNATHIL DEVAKI AMMA, RESIDING AT PUNATHIL HOUSE, DO. DO. AS 7/92. -4- 29. LAKSHMIKUTTY AMMA, D/O. PUNATHIL DEVAKI AMMA, RESIDING AT PUNATHIL HOUSE, DO. DO. 30. PUNATHIL LEELA AMMA, D/O. PUNATHIL DEVAKI AMMA, RESIDING AT PUNATHIL HOUSE, DO. DO. - 31 KOZHIKKAL JANAKY AMMA, W/O. LATE NARAYANAN NAIR, RESIDING AT THOTTATHIL HOUSE, P.O. CHERUKULATHU, VIA MEDICAL COLLEGE, KOZHIKODE. TALUK. 32. SARADHA AMMA, D/O. KOZHIKKAL JANAKY AMMA, RESIDING AT THOTTATHIL HOUSE, P.O. CHERUKULATHU, VIA MEDICAL COLLEGE, KOZHIKODE. TALUK. 33. PADMINI AMMA, D/O. KOZHIKKAL JANAKI AMMA, RESIDING AT THOTTATHIL HOUSE, P.O. CHERUKULATHU, VIA MEDICAL COLLEGE, KOZHIKODE. TALUK. 34. SATHIABHAMA, D/O. KOZHIKKAL JANAKI AMMA, RESIDING AT THOTTATHIL HOUSE, P.O. CHERUKULATHU, VIA MEDICAL COLLEGE, KOZHIKODE. TALUK. 35. E.K. UNNEERI @ BHASKARAN S/O. KALIKUTTY, RESIDING AT OLAVANNA AMSOM, KODAL DESOM, KOZHIKODE TALUK. 36. SHOBANA, W/O. UNNEERI @ BHASKARAN, RESIDING AT OLAVANNA AMSOM, KODAL DESOM, KOZHIKODE TALUK. 37. V. JOSE, S/O. VAZHAPPILLY THOMAS, RESIDING AT OLAVANNA AMSOM, KODAL DESOM, KOZHIKODE TALUK. 38. K. BABURAJ, RESIDING AT OLAVANNA AMSOM, AND DESOM, KOZHIKODE TALUK. - (ADDL.RESPONDENTS 39 TO 43 IMPLEADED) AS 7/92. -5- ADDL. R.39 : GOVINDANKUTTY NAIR. ADDL.R 40: RADHA ADDL. R.41:SREEDHARAN. ADDL R.42:SREENIVASAN. ADDL R43: KRISHNANKUTTY. (THE ABOVE RESPONDENTS ARE THE CHILDREN OF MEPARAMBATH VEETTIL DEVAKI AMMA, RESIDING AT MEPARAMBATH HOUSE, VELLAYIKKODE AMSOM AND DESOM, KOZHIKODE TALUK.) THE ABOVE ADDL.RESPONDENTS 39 TO 43 ARE IMPLEADED AS LEGAL REPRESENTATIVES OF THE DECEASED 20TH RESPONDENT VIDE ORDER DT.6-82003 IN CMP101/2002. ADDL. R.44: : KUZHIKANDATHIL SULOCHANA. ADDL R45: KUZHIKANDATHIL KARUNAKARAN NAIR. ADDL.R 46: KUZHIKANDATHIL SAUDAMINI. ADDL.R47: KUZHIKANDATHIL RADHA. (THE ABOVE RESPONDENTS ARE RESIDING AT KUZHIKANDATHIL HOUSE, VELLAYIKODE AMSOM AND DESOM, KOZHIKODE TALUK.) THE ABOVE ADDL. R44 TO R47 ARE IMPLEADED AS THE LEGAL REPRESENTAIVES OF THE DECEASED R22 VIDE ORDER DT.18-9-2006 ON CMP 3053/04. R26 DIED AND RESPONDENTS 27, 28, 29 AND 30 ARE RECORDED AS LEGAL REPRESENTATIVES OF THE DECEASED 26TH RESPONDENT AS PER ORDER DATED 12-3-08 VIDE MEMO DATED 11-3-08. 1393/08. SUPPL.R48: NANUKUTTAN NAIR, S/O. KALLIANI AMMA, KUZHIKANDATHIL HOUSE, VELLAYIKKODE AMSOM AND DESOM, KOZHIKODE TALUK. - SUPPL.R49: PREMADASAN, S/O. KALLIANI AMMA, DO-DOSUPPLR .50: PANKAJAKSHI, D/P. KALLIANI AMMA, DO. -DOSUPPL.R 51: RADHAKRISHNAN, S/O. KALLIANI AMMA, DO DO. (THE ABOVE RESPONDENTS 48 TO 51 ARE IMPLEADED AS THE LRS OF THE DECEASED R23 VIDE ORDER DT.5-7-07 IN I.A.4050/06 BY ADV. SRI.D.NARENDRANATH FOR R1,R2,R4 TO R6, R8, R22 TO R34. SRI.M.C.SEN (SR.) & SRI.SREELAL N.WARRIER FOR R3, R9 TO R21, R35 AND R36. SRI.M.P.SREEKRISHNAN SMT.SHAHNA KARTHIKEYAN THIS APPEAL SUIT HAVING BEEN FINALLY HEARD ON 04/04/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## **P.R.RAMAN & V.K.MOHANAN,JJ.** ---------------------------------------------- A.S.N0.7 OF 1992 ---------------------------------------------Dated, 4[th] April, 2008. ## **JUDGMENT** ## **Raman,J.** Plaintiffs are the appellants. The suit is one for partition and separate possession of 7/29 shares of the plaint B schedule property of item Nos. 1 to 3. 2. According to the plaint averments, plaintiffs and defendants 1 to 18 are members of an ancient Nair Marumakkathayam tarwad by name `Nikampurath tarwad'. Defendants 19 to 34 are legal heirs of deceased male members of the tarwad who died after the commencement of the Hindu Succession Act, 1956. Defendants 19 to 21 are legal heirs of deceased Govindan Nair; defendants 22 to 25 are legal heirs of deceased Karunakaran Nair; defendants 26 to 30 are legal heirs of deceased Cherootty Nair and defendants 31 to 34 are legal heirs of deceased Narayanan Nair. According to the plaintiffs, item No.1 of the plaint B Schedule property was assigned by the then tarwad karanavan, namely, Kunhikrishnan Nair for and AS 7/92 **-:2:-** on behalf of the tharwad and as karanavan of the tharwad. The earlier kanam deed was renewed by registered kychit No.926 of 1985 by Cherootty Nair, the subsequent karanavan of the tharwad, likewise in the same manner for and on behalf of the tarwad. Later Cherootty Nair and his nephew, late Govindan Nair, renewed the earlier kanam right by registered deed No.3451/1922 and the property was vested in the tarwad. Item Nos. 2 and 3 of the plaint B schedule was assigned by the said Kunhikrishnan Nair for the tarwad as per registered kanam kychit No.3318 of 1888. Later Kunhikrishnan Nair died. The then karanavan, Cherootty Nair renewed the same for the tarwad as per Ext.A3 registered kanam kychit No.2740/1923. While he was in possession, he died, and the subsequent karanavan Govindan Nair renewed it in his capacity as the karanavan of tarwad and for the benefit of the tarwad vide registered kanam deed No.2389/1950. The said properties were in the joint possession of tarwad members. As already stated, plaintiffs and defendants 1 to 18 are members of the tarwad. According to the plaintiffs, there were 29 members in the tarwad before the Joint Hindu Family Abolition AS 7/92 ## **-:3:-** Act and after the Hindu Succession Act came into force by virtue of Under section 7 of the Hindu succession Act, a partition is deemed to have been effected on the dates of deaths of the said members and their respective shares would devolve on their personal legal heirs. On the date of commencement of the Joint Hindu Family system (Abolition) Act, 1975 (Act 30 of 1976) including the shares of said deceased male members, there were 29 sharers for tarwad property. Plaintiffs 1 to 7 are entitled to 7/29 shares. Defendants 1 to 18 each entitled to 1/29 shares; defendants 19 to 21 together entitled 1/29 share, defendants 22 to 25 together entitled 1/29 share; defendants 26 to 30 together entitled 1/29 share; defendants 31 to 34 together entitled 1/29 share. Defendants 35 and 36 are the assignees of portions of B Schedule item No.1 from the 20[th] defendant, the former 10 cents and the latter 13 ¾ cents respectively. The properties sought to be partitioned are plaint B schedule items 1 to 3. Plaint schedule item 1 is garden land, the total extent of which was originally 7.5 acres. Portions of this land had been given on Charthu to others by former Karanavans and hence what was AS 7/92 **-:4:-** available for partition is only the balance extent. Plaint B schedule item 1 is described as : “ഉള�ടന ക�ഴ�പറന� ഏററ�പറന� ക�ട�യ�ളത�ല ച�ര�� കക�ട��� പപ�യത� കഴ�ച� ബ�ക�.” Plaint B schedule items 2 and 3 are paddy lands,by name “ '' നര�ന�രങ� ന�ല! . Exts.A1 and A4 are the title deeds in respect of plaint B schedule items which are kanom renewal by registered deeds. Exts.A1 and A2 relate to Plaint B schedule item 1 and Exs.A3 and A4 relate to items 2 and 3 plaint B schedule property. As is known there is no dispute that kanam is only a form of tenancy given by the landlord in favour of the tenant and on the expiry of the original period, it is being renewed subsequently. The terms and conditions of kanam are contained in the deed itself regarding payment to be made by tenants to the landlord. According to the plaintiff, since the properties originally belonged to tarwad as is evidenced by the renewal of kanam by respective karanavans from time to time, the properties are joint properties entitled to be partitioned. AS 7/92 ## **-:5:-** 3. Defendants 1, 2 and 4 to 8 in the written statement contended that they are entitled to 7/29 shares with mesne profits. According to them they are not taking income from the property and are in joint possession along with other defendants. Defendants 3, 9 to 18 filed joint written statement contending that no tarwad is in existence as averred in the plaint. So the suit is not maintainable. They denied that plaint B schedule properties were belonged to the tarwad or were in the possession of tarwad karanavan. According to them, it is not correct to say that Govindan Nair was the next karanavan because he had an elder brother named Appu Nair, and no property is partible by plaintiffs and defendants. Certain portion of item (1) was assigned by Govindan Nair in 1930 and that was bequeathed to defendants 1 and 21. Out of the property partitioned and obtained by 21[st] defendant, 10[th] defendant purchased some portion as per assignment deed No.2825/1974. Thus Govindan Nair and his heirs were in possession openly and without interruption. Even if the plaintiffs had any claim right over the property, that is lost by adverse possession and limitation. Item AS 7/92 ## **-:6:-** Nos.2 and 3 belong to defendants 19 to 21. They prayed for their separate possession if the court finds that the properties are partible. 4. Defendants 19, 20 and 21 filed written statement raising similar contentions. 5. Defendants 26 to 30 in their joint written statement supported the claim of the plaintiffs for partitioning and allotting their separate shares. Defendants 31 to 34 also filed separate written statement and claimed their share. Defendants 22 to 25 claimed for partition and their separate share. Defendants 35 and 36 filed separate written statement stating that the extent of item No.1 of the plaint B schedule property is 3 acre 48 cents and it is not the tarwad property of plaintiff and defendants; but was the self acquired property of Govindan Nair. The contention of defendants 35 and 36 are similar to the contentions raised by other contesting defendants. It is further contended by them that the 35[th] defendant purchased 10 cents of property from item No.1 and he was in possession and enjoyment of the property as absolute owner. 36[th] defendant purchased 13 ¾ cents in item No.1. Those AS 7/92 **-:7:-** properties are not partible. 6. Admittedly, the plaintiffs and defendants 1 to 18 are members of the tarwad and entitled to partition. some of the aforesaid parties and male members died and legal heirs were already brought on record who are entitled to the respective shares succeeding the estate of the shares of their predecessors. 7. The trial court framed 12 issues for consideration based on the pleadings. 8. The evidence consisted of the oral testimony of PW1; DWs 1 to 3 and documentary evidence Ext.A1 to A7 and Ext.B1 to B42. 9. The trial court found that the plaint A schedule genealogy is not correct and complete. It is also found that portion of item (1) of the plaint B schedule property was not tarwad property of plaintiffs and defendants 1 to 18 as alleged and it is the self acquisition and is in possession of Nikampurath Govindan Nair. It is also held that title of defendants 19 to 21 over item No.1 of the plaint B schedule property is lost by adverse possession and limitation. According to the court below, defendants 19 to 21 have AS 7/92 ## **-:8:-** obtained property as per the document executed by Govindan Nair since 1963 onwards. They have obtained patta in respect of the properties assigned in their favour as evidenced by Exts. B31 and B33. The property as per Ext.A5 was partitioned in 1974 by Ext.B1. Plaintiffs were also parties in Ext.B1 and they obtained the property. According to the court below, that circumstances show that Govindan Nair treated plaint B schedule property as his self-acquired property and after Ext.B1 partition, each sharer is enjoying their respective share. According to the court below, the remaining property available for partition is not correctly stated and no decree could be passed for partition of an undefined and unspecified item. In the result, the suit was dismissed, however, without cost. Aggrieved thereby, the appellants preferred this appeal. 10. The first question that falls for consideration is as to whether item (1) of plaint B Schedule is a joint tarward property of plaintiffs and defendants 1 to 18 or a self acquired property of Govindan Nair. According to the plaintiff, the plaintiffs and defendants 1 to 18 are members of undivided Nair tarwad known AS 7/92 ## **-:9:-** as Nikampurath tarwad. Item(1) of plaint B schedule was assigned by Kunhikrishnan Nair, the karanavan of the tarwad for and on behalf of the tarwad and as karanavan of the tarwad. The earlier kanam deed was renewed by Cherooty Nair, the subsequent karanavam of the tarwad in the year 1985. Ext.A1 is the registration copy of Kanam Assignment deed document No.926 dated 9-3-1985. Originally, the total extent was 7.5 acres. Admittedly, portions of the property were assigned by the former karanavans on charthu to others. What is the actual extent thus assigned by way of charthu is not stated in the plaint and complete. However, the plaintiffs limit their claim for partition only to the remaining extent available in item B less what is assigned earlier by former karanavans. At this stage, we need not take the trouble of calculating the actual extent available since this is a matter to be determined in the final decree proceedings. Therefore what has to be considered is as to whether item (1) of plaint B schedule is a tarwad property. This property in B schedule is described in Ext.A1 as : AS 7/92 **-:10:-** “ഉള�ടന ക�ഴ�പറന� ഏററ�പറന� ക�ട�യ�ളത�ല ച�ര�� കക�ട��� പപ�യത� കഴ�ച� ബ�ക�.” The plaint B schedule items 2 and 3 are admittedly paddy lands by name “നര�ന�രങ� ന�ല!” Ext. A1 is executed by Cherootty Nair in favour of the Jenmi. It is described as kanam kychit. It is further recited that the scheduled items were originally in the name of his karanavan Kunhikrishnan Nair. The kanam amount is 2 rupees 12 anas. This renewal deed is executed by Cherootty Nair in favour of the Jenmi. Admittedly, the executant had taken advantage of the kanam amount already paid by the previous karanavan as a consideration for the renewal under Ext.A1. Consequently, there is no substantial change in the kanam amount as such. These two aspects would indicate that the succeeding karanavan has only renewed the deed in favour of the Jenmi on the expiry of the original period for which the property was outstanding in tenancy with the Tarwad. Ext.A2 is a document of the year 1922. This document executed by the Jenmi of the property jointly in favour of Cherootty Nair and Govindan Nair, his nephew. It is the same property covered by AS 7/92 **-:11:-** Ext.A1 that is again renewed in favour of the Cherootty Nair and Govindan Nair. (Here also there is no change in the kanam amount). The contention now raised on behalf of the respondent is that either in Ext.A1 or A2 there is nothing to indicate that the property was taken on assignment under kanam right for and on behalf of the Tarwad and that according to the respondent it would only indicate that the property is taken by tenants in their personal capacity or in their individual name. We are unable to accept this contention. Admittedly, before Ext.A1, the property was outstanding on tenancy with the tarwad. It was only after the expiry of the original period that Ext.A1 was executed by way of renewal of deed by succeeding karanavan, namely, Cherooty Nair. Kanam amount is the same in Ext.A1 and A2. Admittedly, kanam amount was paid even prior to Ext.A1 by karanavan and the property was taken on lease by tarwad. Thus the nucleus, namely the kanam amount paid by the tarwad continues to remain with the landlord and what was done by Exts.A1 and A2 was mere renewals without paying any further amount or after surrender by the earlier kanam amount in faovour of the tarwad. AS 7/92 **-:12:-** Thus the renewal enure to the tarwad and they were not taken by the executants in their individual capacity. 11. As regards item Nos 2 and 3 of B schedule covered by two documents Exts.A3 and A4, Ext.A3 is the kanom deed executed by Cherooty Nair. The kanam amount is 6 rupees and 4 anas which is the same amount paid by the prior karanavan as per kychit No.3318/1888. The recitals contained in Ext.A3 show that there was no surrender or fresh lease but it is only a renewal of the lease for a further period for the same kanam amount. Ext.A4 is dated 30-9-1950 which is executed by Govindan Nair. The description of Govindan Nair is 'Kaikaryakarthavu'. This is a document executed in favour of Govindan Nair by Jenmi and there is a clear recital that the earlier kanam deed was in favour of the then karanavan - late Cherootty Nair for the kanam amount of 6 rupees and 4 anas and reference is made to Ext.A3 in this connection. Therefore, there cannot be any dispute that Cherootty Nair was the previous karanavan who had taken assignment in his capacity as the karanavan for and on behalf of the tarwad and later, the succeeding karanavan Govindan Nair in whose favour, AS 7/92 ## **-:13:-** the Jenmi had renewed lease for a further period. These four documents therefore would clearly show that the property covered by Exts.A1 and A2 in respect of item (1) of B schedule as well as Exts.A3 and A4 were taken on lease by the then karanavamn for and on behalf of the tarwad and not in their individual name. It is seen from Ext.A3 that even prior to the execution of Ext.A3 renewal deed by Cherootty Nair, he was in possession of the property. Such possession is based on registered kanam deed 1318/1888 executed by the previous karanavan and on terms and conditions stipulated therein. Kanam deed No.3318/1888 was executed by the previous karanavan Kunhikrishnan Nair. The plaintiffs have a case that the previous karanavan Kunhikrishnan Nair is the Kunhikrishnan Nair referred to in Ext.A1 and this is specifically averred by the plaintiffs in paragraph III(3) of the plaint, and it is not denied by any of the defendants. However, Cherooty Nair took Ext.A3 renewal for the same kanam amount as already noted above. We have already noticed that after the death of Cherooty Nair, the kanam is renewed in the name of the Govindan Nair, who was AS 7/92 **-:14:-** the succeeding karanavan and husband of the 19[th] defendant and father of defendants 20 and 21. Ext. A4 is the renewal deed in favour of Govindan Nair executed by the karanavan of the jenmi. This is only for continuation of the possession of the previous karanavan. Ext.A4 would show that the karanavan did not incur any further expenditure for taking the renewal. Therefore, on a consideration of the above aspects, we have no hesitation to hold that the kanam was taken by the karanavanan for and on behalf of the tarwad and so not to be treated as their self acquired property. When a property is acquired in the name of karanavan, the presumption is that it is a tarwad property and the presumption holds good unless and until it is rebutted by acceptable evidence. Reference may be made to the decision of the Apex Court in **Achuthan Nair v. Chinnammu Amma** (A.I.R.1966 S.C.411). 12. However, it has to be clarified that an extent of 2.50 acres was owned by the tarwad described as Neekampurathu Parambu where there was a tarwad house. Ext.A6 was executed by the karanavan Cherootty Nair in respect of the said paramba in AS 7/92 **-:15:-** favour of his nephew Govindan Nair in 1916 which stipulates that Govindan Nair redeemed the earlier panayams. Govindan Nair stated to have redeemed those panayams and obtained possession of the Neekampurath paramba. An extent of 1.50 acres of land out of the plaint B schedule item 1 is also given by way of Charthu by Cherootty Nair in the year 1907. The description contained in the plaint itself would show that the plaintiff was claiming partition only the property described in the plaint schedule less what has been given by way of Charthu. Therefore, both the Neekampurath Paramba and 2.5 acres and 1.50 acres in the plaint schedule item (1) is not included for the purpose of partition. We are only making this aspect clear so as to avoid future dispute. Ext.A5 is the Will executed by Govindan Niar in respect of two items of properties. Item 1 was the Neekampurath Paramba which he obtained under Ext.A6 and item 2 was the 1.50 acres of B schedule item 1 which he got under Ext.B27 sale deed. Govindan Nair bequeathed item 1 by Ext.A5 Will to his nephew and nieces who are parties 1 to 21 in the Will. The 22[nd] party in Ext.A5 was Padmanabhan Nair, son of Govindan Nair, who is the AS 7/92 ## **-:16:-** 21[st] defendant in the suit. Item 2 in the said Will i.e., 1.50 acres of plaint B schedule item 1 obtained by Govindan Nair as per Ext.B27 was bequeathed by him jointly in favour of party Nos.12 and 22 in Ext.A5. This would reveal that Govindan Nair was dealing with the properties as self-acquired property and does not form part of the property available for partition. 13. Learned Counsel appearing for the respondents Sri.M.C.Sen contended that survey numbers mentioned in Ext.A2 are 132/8, 133/1 and 128 whereas in Ext.B34 partition between the legal representatives of Govindan Nair namely his wife, son and daughter who are defendants 19 to 21, the subject matter of partition is the property comprised in 134/1, R.S.35/1B which is having an extent of 1.95 acres. True, that property in Sy.No.132/5 and 133/1 of an extent of 75 cents is also included in the said partition. The argument is that so long as Sy. 131/1 is not included in Ext.A2, this cannot be treated as tarwad property available for partition. Sri P.G.Paramesewara Panicker (senior counsel) appearing for the appellant would contend that while the parties have traced title, they have referred to Ext.A2 only and AS 7/92 **-:17:-** therefore the fact that different survey numbers mentioned does not show that the property dealt with in Ext.B34 is a different property other than covered by Ext.A2. Admittedly, the total extent covered by Ext.A2 is 7.50 acres of which 1.50 acres covered by deed No.1327. Another extent of 1 acre 19 ½ cents that is outstanding with Aboobacker and another extent 46 ½ outstanding with Karunakaran are liable to be excluded from partition. If so, only the balance is available for partition, i.e.4.33 acre. But even this is in dispute by the respondents contending that the total extent available under Ext.A2 is only 3 ½ acres instead of 7 acres. But going by the document Ext.A2, the total extent is 7 acres 50 cents. What is actually available is a matter to be decided in the final decree. The contention based on Ext.B34 and the difference in the survey numbers made mention however, does not appear to be tenable since we are not proposed to go into details regarding the survey numbers and the extent available in Ext.A2. Ext.A2 is a kanam assignment deed in favour of tarwad, the total extent , going by the description, is available for partition. If as a matter of fact, parties to Ext.B34 traces AS 7/92 ## **-:18:-** their title, nothing of this sort is made mention in A2. As a matter of fact though Ext.B34 is executed by Govindan Nair, which deals with self acquired property, it is not the case of the contesting respondents that Sy.No.134/1 is the property made mention of in the Will. If so, it is up to them to give evidence as to how they got title in respect of Sy.No.134/1. At any rate for the limited purpose of the present suit for partition we only say that the property covered by Ext.A2 is available for partition, the extent of which is to be decided at the time of final decree. 14. Coming to the shares to be allotted, there is no dispute between the parties. Accordingly, we reverse the decree passed by the court below. There will be a preliminary decree for partition. Plaintiffs 1 to 7 together entitled to 7/29 shares; defendants 1 to 18 each entitled to 1/29 shares; defendants 19 to 21 together entitled to 1/29 share; defendants 22 to 25 together are entitled to 1/29 share; defendants 26 to 30 together are entitled to 1/29 share and defendants 31 to 34 together are entitled to 1/29 share. 15. It was stated by the learned counsel for the appellant AS 7/92 **-:19:-** that the property transferred by assignment in favour of defendants 35, 36 and 37 are also available for partition. True that the transaction as such may not bind the appellant, but it is for the appellant to agitate the said issue in other appropriate proceedings. This we say because following the decision of the Division Bench in **Sarojini Amma v. Pappi Amma** (1973 KLT 148) wherein it is held that there cannot be a partition of the property in the hands of the trespassers unless it is reduced to possession of the joint family. If the sale deed is not binding on the plaintiffs, necessarily the assignee has to be treated as trespasser. Therefore applying the above principle, partition cannot be granted as it is not in joint possession. 16. It was then contended that the suit is hit by adverse possession. As rightly pointed out by the Sr.Counsel Sri P.G.Parameswara Panicker, the contesting defendants are legal representatives of Govindan Nair who are co-sharers as respect the share of Govindan Nair. If so, their joint possession with others will in no way bar the claim for partition by the plaintiffs nor any question of adverse possession as against co-sharers AS 7/92 ## **-:20:-** would arise. further plea of adverse possession arises only when the plaintiff's title is admitted by the respondents. In this case defendants are disputing the title of the plaintiffs. In the result, the suit is decreed and a preliminary decree is passed as stated earlier. The suit is allowed as above. No costs. ## **P.R.RAMAN, JUDGE.** **V.K.MOHANAN, JUDGE.** kvm/- AS NO.7/1992 **==> picture [26 x 9] intentionally omitted <==** Judgment dated 4.4.2008 in A.S NO.7/1992 vide order dated 22.7.2014 in I.A.No.1580/2014 in A.S No.7/1992. 16[th] sentence of paragraph 13 (page 18, lines 8 & 9) is corrected and substituted with the sentence “It is held that the properties covered by Exts.A2 and A4 are available for partition. The extent of property available for partition from the properties covered by Ext.A2 is to be decided at the time of final decree.” The figures shown as '1985' in the 4[th] and 5[th] sentences of paragraph 10(page '9', lines 5 and 7 ) of the judgment are corrected and substituted with the figures '1895'. 6[th] sentence of paragraph 12 (page 15, lines 9 to 11) is corrected and substituted with the sentence “Therefore, both the Neekampurath Paramba having an extent of 2 acres and 5 cents and 1.50 acres in plaint B Schedule item 1 is not included for the purpose of partition”. Registrar (Judicial)