Nambiath Karthiyani and Nedumpullikkkudi Prabhakaran v. Nedumpullikkkudi Lalitha, Savithri and Gangadharan

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE SATHISH NINAN WEDNESDAY, THE 21[ST] DAY OF FEBRUARY 2024 / 2ND PHALGUNA, 1945 RFA NO. 118 OF 2006 (F)** **AGAINST THE JUDGMENT AND DECREE DATED 26.11.2005 IN OS 112/1999 OF SUB COURT, SULTHANBATHERY** **-----** ## **APPELLANTS:** 1 NAMBIATH KARTHIYANI, **[DIED]*** AGED 76 YEARS, W/O.VELAYUDHAN, NEDUMPULLIKKUDI HOUSE, PONGINICHIKALLOOR VILLAGE, PULPADY DESOM, VYTHIRI TALUK, KARANI.P.O., WAYANADU DISTRICT. 2 NEDUMPULLIKKUDI PRABHAKARAN, AGED 59 YEARS, S/O.VELAYUDHAN, NEDUMPULLIKKUDI HOUSE, PONGINICHIKALLOR VILLAGE, PULPADY DESOM, VYTHIRI TALUK, KARANI.P.O., WAYANADU DISTRICT. *** [IT IS RECORDED VIDE ORDER DATED 04.10.2018 THAT 1ST APPELLANT DIED. THE 2ND APPELLANT AND THE RESPONDENTS IN THE APPEAL ARE THE LEGAL REPRESENTATIVFES OF THE DECEASED 1ST APPELLANT VIDE MEMO DATED 22.09.2018.]** BY ADV SRI.S.K.BALACHANDRAN ## **RESPONDENTS:** 1 NEDUMPULLIKKUDI LALITHA AGED 52, W/O.M.N.SIVAN, MADATHETHU KUDI HOUSE, PULIKKALKKUNNU, PONGINICHIKALLOR VILLAGE, PULPADY DESOM, KAMBALAKKAD.P.O. 2 NEDUMPULLIKKUDI SAVITHRI AGED 44, W/O.K.N.VIJAYAN, KURIKKAPARAMBIL HOUSE, PURAKKADI VILLAGE & DESOM, KOLAGAPPARA.P.O., BATHERI TALUK. **RFA NO. 118 OF 2006 -2-** 3 NEDUMPULLIKKUDI GANGADHARAN, AGED 55 YEARS, S/O.VELAYUDHAN, PONGINICHIKALLOR, VILLAGE, PULPADY DESOM, VYTHIRI TALUK, KARANI.P.O., WAYANADU DISTRICT. BY ADVS. SAMSUDIN PANOLAN – R1 TO R3 SRI.Y.M.BALAGOPAL – R3 SRI.P.V.JYOTHI PRASAD – R1,R2 MILAN RACHEL MATHEW – R1 TO R3 LIRA A.B. - R1 TO R3 THIS REGULAR FIRST APPEAL HAVING COME UP FOR HEARING ON 21.02.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## **SATHISH NINAN, J.** **= = = = = = = = = = = = = = = = = = R.F.A. No.118 of 2006** **= = = = = = = = = = = = = = = = = = Dated this the 21[st] day of February, 2024** ## **J U D G M E N T** The preliminary decree in a suit for partition is under challenge by defendants 1 and 2. 2. The plaintiffs are the sisters of defendants 2 and 3. The first defendant is their mother. She died pending the appeal. 3. The plaint schedule property belonged to Velayudhan, the predecessor-in-interest of the plaintiffs and the defendants - husband of the first defendant and father of plaintiffs and defendants 2 and 3. Plaintiffs are the daughters and defendants 2 and 3 are the sons. 4. The property originally belonged to Ikkoran, the father of Velayudhan. On his death, the property vested with Velayudhan as per a partition karar claimed to have been entered into on 17.06.1976. The title of Velayudhan R.F.A. No.118 of 2006 -: 2 :- is not in dispute. 5. Velayudhan died on 16.09.1999. When the plaintiffs claimed partition, defendants 2 and 3 claimed that the entire properties were given to them by Velayudhan under various assignments. The plaintiffs contend that the documents are not binding on them. It is accordingly that the suit is filed claiming partition. 6. The trial court held that the plaint schedule property is ancestral property and that the assignments are not binding on the plaintiffs; that the plaintiffs have not relinquished their right over the properties and that the documents are not binding on their interests. Accordingly, a preliminary decree for partition was passed. 7. I have heard Sri.S.K.Balachandran, learned counsel for the appellants and Sri.T.Sethumadhavan, the learned Senior Counsel for the respondents. R.F.A. No.118 of 2006 -: 3 :- ## 8. The point that arises for determination is :- “ _Is the finding of the trial court that the plaintiffs have interest over the plaint schedule properties entitling them to claim partition, correct in law ?”_ 9. It is not in dispute that the properties originally belonged to Ikkoran, father of Velayudhan. Velayudhan obtained title over the same as per a partition karar entered into between the sons of Ikkoran on 17.06.1976. The first limb of the argument of the learned Senior Counsel is that, treating the properties as coparcenary property, in view of the amended Section 6 of the Hindu Succession Act, the female children are also coparceners. Thus the plaintiffs who were born prior to 01.12.1976 are also entitled for share in the property. 10. This Court has in _**Babu v. Ayillalath Arunapriya 2012 (4) KHC 445**_ held that, in Kerala, consequent on the Joint Family Abolition Act which came into force on R.F.A. No.118 of 2006 -: 4 :- 01.12.1976, joint family ceased to exist and that, the amended Section 6 which applies only to joint family surviving as on the date of coming into force of the amended provision, has no significance. Therefore, the argument based on Section 6 of the Hindu Succession Act (as amended on 5th September, 2005), fails. 11. It is next contended by the learned Senior Counsel that, in the written statement at paragraph 4 it is pleaded that the parties are Travancore Ezhavas. Section 32 of the Travancore Ezhava Act provides that the wife and daughters shall have equal shares in partition of the Makkathayam property. Therefore the plaintiffs are also entitled for share, it is urged. _“_ _**32. Makkathayam property divisible among wife and children equally.-** Except where a contrary intention is expressed in the instrument of gift or bequest, if any, Makkathayam property acquired after the date of the passing of this Regulation shall be liable to be divided among the wife and each of the children in equal shares :_ R.F.A. No.118 of 2006 -: 5 :- _Provided that, in the partition of Makkathayam property, the issue how-low-so-ever of a deceased child shall be entitled to only such share as the child itself, if alive, would have taken.”_ A reading of the above shows that it only declares the shares of the wife and children in the event of partition of Makkathayam property. The same has no application to the case at hand. Velayudhan had during his life time executed Exts.B6, B7, B8, B10, B11, B25 and B26 assignments and also Ext.B9 Will dealing with the properties. 12. Therefore, the plaintiffs failed to establish their right to claim partition. The trial court has not considered the aforesaid aspects. The decree and judgment of the trial court are thus liable to be interfered with. R.F.A. No.118 of 2006 -: 6 :- Resultantly, the appeal is allowed. The decree and judgment of the trial court are set aside. The suit will stand dismissed. No costs. Sd/- **SATHISH NINAN JUDGE** kns/- //True Copy// P.S. to Judge