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## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT :** **THE HONOURABLE MR. JUSTICE P.BHAVADASAN** **WEDNESDAY, THE 30TH NOVEMBER 2011 / 9TH AGRAHAYANA 1933** **SA.No. 261 of 1999(F)** **-------------------------------** **AS.44/1993 OF ADDITIONAL SUB COURT, ALAPPUZHA OS.839/1984 OF PRINCIPAL MUNSIFF COURT, CHERTHALA** **....................** ## **APPELLANTS/RESPONDENTS 4, 6, 7 & 8/DEFENDANTS 4, 6, 7 & 8:** **------------------------------------------------------------------------------------------------** **1. PRABHAKARAN JAGANNADHAN, THEKKE CHUNGATH, KIZHAKKUM MURI, CHERTHALA.** **2. PRABHAKARAN SUGUNAN, THEKKE CHUNGATH, KIZHAKKUM MURI, CHERTHALA.** **3. JANAKI AMMA USHA KUMARI, THEKKE CHUNGATH, KIZHAKKUM MURI, CHERTHALA.** **4. JANAKI AMMA MOLI, THEKKE CHUNGATH, KIZHAKKUM MURI, CHERTHALA.** - **BY ADV. SRI.S.P.ARAVINDAKSHAN PILLAY, SRI.PIRAPPANCODE V.S.SUDHIR.** ## **RESPONDENTS/APPELLANTS/PLAINTIFFS & DEFENDANTS 2, 3, 5 & 9:** - **-------------------------------------------------------------------------------------------------------** **1. PRAKASINI, D/O.MAHASENAN, MANCHEETHARAYIL, KIZHAKKUM MURI, KOKKOTHAMANGALAM VILLAGE, CHERTHALA.** **2. VINOD KUMAR SEN, S/O.MAHASENAN, MANCHEETHARAYIL, KIZHAKKUM MURI, KOKKOTHAMANGALAM VILLAGE, CHERTHALA.** **3. JAYASENAN, S/O.MAHASENAN, MANCHEETHARAYIL, KIZHAKKUM MURI, KOKKOTHAMANGALAM VILLAGE, CHERTHALA.** ## **SA.No. 261 of 1999(F)** **4. JANAKI AMMA SUBHADRA, KUZHIVELI VEEDU, CHALIKKAVATTOM, VENNALA P.O., ERNAKULAM,** **5. JANAKI AMMA SURAJA KUMARI, SARADALAYAM, THEKKE CHUNGATH, KIZHAKKUM MURI, CHERTHALA.** **6. PRABHAKARAN SUNDARESAN, THEKKE CHUNGATH, KIZHAKKUM MURI, CHERTHALA.** **7. SALILAKUMARI, D/O.SUPRABHA, KUZHIVELI VEEDU, CHALIKKAVATTOM, ERNAKULAM.** **R1 TO R3 BY ADV. SRI.P.R.VENKETESH. SRI.P.R.RAJA. R6 BY ADV. SRI.R.LAKSHMI NARAYAN, SMT.R.RANJINI.** **THIS SECOND APPEAL HAVING BEEN FINALLY HEARD ON 30/11/2011,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **rs** ## **P.BHAVADASAN, J.** ------------------------------------SA No.261 of 1999-F ------------------------------------Dated this the 30[th] day of November 2011 ## Judgment Disappointed defendants 4, 6, 7 and 8, who suffered a decree at the hands of the lower appellate court in a suit for partition, are the appellants. The parties and facts are hereinafter referred to as they are available before the trial court. 2. Shorn off unnecessary details, plaint A schedule property is said to have been obtained by the sakha, of which the plaintiffs and defendants are members, pursuant to Ext.A1 partition deed dated 05.11.1105 M.E. Plaint B schedule is also said to have been subsequently alloted to their sakha. Plaint A schedule property was allotted to Parvathy and her children namely, Janaki and Damodaran. Damodaran died as a bachelor. Janaki is the first defendant and defendants 2 to 8 are the children of SA 261/99 2 Janaki. Claiming that after the commencement of the Joint Hindu Family (Abolition) Act in 1976, the plaintiffs are entitled to 3/12 share in the property, the suit was laid. 3. The first defendant alone resisted the suit. It was claimed that the plaint schedule properties are the separate properties of the defendants. It was disputed that B schedule property was acquired utilising the income derived from the tarwad property. There was also a contention regarding the capacity of the guardian to represent a minor which is not very relevant in the present context. Suffice is to say that the defendants prayed for dismissal of the suit. 4. On the basis of the above pleadings, issues were raised. Evidence consists of the testimony of PWs 1 to 4 and documents marked as Exts.A1 to A8 from the side of the plaintiffs. The defendants had DW1 examined and Exts.B1 to B7 marked. Ext.C1 is the commissioner's report. SA 261/99 3 5. On an appreciation of the evidence in the case, the trial court came to the conclusion that there is no evidence to show that the property acquired under Ext.A1 is a tarwad property and accordingly dismissed the suit. 6. The aggrieved plaintiff carried the matter in appeal as AS No.44/93 before the Sub Court, Alappuzha. The lower appellate court chose to differ from the view taken by the trial court and came to the conclusion that Plaint A schedule property is a tarwad property and B schedule property was acquired utilising the funds of the tarwad property and therefore, it qualifies to be a tarwad property. The lower appellate court allowed the appeal and passed a preliminary decree as follows : “In the result, I find that the findings of the trial court regarding the issues 1 to 3 are wrong. Therefore, the decree and judgment of the lower court is set aside and the preliminary decree for partition is passed as follows : SA 261/99 4 - 1) The plaint schedule property shall be divided into 13 equal shares and allot 3 shares to plaintiffs 1 to 3 together. Out of the remaining shares, the deceased 2[nd] defendant would be entitled to get 2/12 shares and same devolved upon the defendants 2 to 8. Thus, defendants 2 to 8 are entitled to get 9/13 shares together. - 2) The 9[th] defendant is entitled to get 1/13 shares. - 3) Separate allotment shall be made on payment of requisite court fee. The question of mesne profits is relegated to the final decree stage. - 4) Plaintiffs and defendants who pay the requisite court fee are entitled to apply for passing of final decree.” It is the above decree that is assailed in this appeal. Notice is seen issued on the following questions of law raised in the second appeal : SA 261/99 5 (i) Is it not mandatory for the plaintiffs to establish that they are governed by the Marumakkathayam Law, to maintain the suit for partition ? (ii) Whether the lower appellate court is justified in passing a preliminary decree, allotting three shares to the plaintiffs on the assumption that the plaint schedule properties are thavazhi properties of plaintiff and defendant when there is absolutely no pleading or materials to establish that the parties to the suit are marumakkathayees ? iii) Whether there is anything to hold in Ext.A1 that the properties belong to the thavazhi of the plaintiff ? iv) In view of the acquiescence of the next friend of the plaintiffs in the recitals of Ext.B4 that the properties are not thavazhi properties, is the suit maintainable ? v) Whether the court below is justified in casting burden on the defendants appellants to establish that Ext.A8 property was not purchased with the funds of the tarwad in spite of the recitals contained therein to the effect that they are the self acquired properties ? SA 261/99 6 ` 7. The learned counsel for the appellants pointed out that the lower appellate court was not justified in coming to the conclusion that the acquisition under Ext.A1 is a tarwad property when it is clear from a reading of Ext.A1 that the properties were self acquired properties. It was also contended that on the death of Damodaran, which was after the coming into force of the Joint Hindu Family (Abolition) Act, his rights devolved on Janaki and if that be so, Ext.A7 to that extent is good in law. The learned counsel also pointed out that the lower appellate court was not justified in coming to the conclusion that the death of Parvathi must have occurred prior to 1956. It was for the plaintiff to establish that fact by adducing acceptable evidence in that regard. On these grounds, the judgment and decree of the lower appellate court are assailed. 8. The learned counsel for the respondents, on the other hand, pointed out that a reading of Ext.A1 will leave one in no doubt that the tarwad properties were 7 SA 261/99 divided into two i.e. plaint A and B schedule properties. Plaint B schedule was allotted to the branch consisting of the plaintiffs and the defendants. The lower appellate court has rightly held that the properties are thavazhi properties. The learned counsel also pointed out that the lower appellate court has taken note of the death of Damodaran and so the findings arrived at by the lower appellate court are fully justified. As regards the death of Parvathy, it was contended that there was no contention in the written statement that she died subsequent to 1956. 9. The trial court has chosen to dismiss the suit holding that there was no evidence to show that the properties are thavazhi properties. Obviously, that finding does not appear to be correct. A reading of Ext.A1 leaves one in no doubt that the properties are thavazhi properties. May be the properties which were the subject matter of partition under Ext.A1 might have been self acquired properties, but it is clear from a reading of Ext.A1 that the tarwad properties are self acquired and the properties were SA 261/99 8 pooled which were divided between the thavazhies, allotting separate properties to each thavazhi. Therefore, the lower appellate court was fully justified in coming to the conclusion that the property covered by Ext.A1 is a thavazhi property. 10. Plaint B schedule property was acquired utilising the income derived from plaint A schedule property after the thavazhi concerned had acquired the property of its own. There was enough income for the persons to acquire properties utilising those funds. The learned counsel relied on the decision reported in **Kalliyani Amma v. Lekshmi Amma** (1967 KLT 637), wherein it has been held as follows : “When it is proved or admitted that a tarwad possessed sufficient nucleus with the aid of which the Karanavan might have made the acquisition, the law raises a presumption that it is tarwad property and onus is shifted to the SA 261/99 9 party alleging self-acquisition to establish that the property was acquired without the aid of he said nucleus. Where a person was the Karanavan of a tarwad and he had separate funds of his own and there were also tarwad funds available and a transaction was put through with funds which could have been drawn from either source in the absence of definite evidence, the law steps in with a presumption and the party to the transaction is presumed to have acted for the benefit of the tarwad whose interests he was under a duty to protect rather than that he has acted for his own benefit.” 11. Since it has been shown that the tarwad had nucleus to purchase the property, the presumption is that the property was purchased utilising the said funds. There was no attempt from the part of the appellants to establish that it is otherwise. The lower appellate court was, SA 261/99 10 therefore, fully justified in holding that plaint B schedule property was also available for partition. 12. As far as the death of Parvathy is concerned, as rightly contended by the learned counsel for the respondents, there is no pleading in the written statement to the effect that the death of Parvathy has effect on the devolution of property on the date of her death. Of course, the lower appellate court has presumed that Parvathy must have died before 1956, which may not be fully legal. Whatever that be, there was no contention in the written statement that subsequent to the death of Parvathy after 1956, the mode of devolution would change and the shares would differ. The appellants cannot be heard to contend for such a position as there is no averment in the written statement in that regard so that the plaintiff could answer the said claim. Such a claim is conspicuously absent in the written statement and in the absence of a pleading to that effect, there are no grounds to interfere with the findings of the lower appellate court that Parvathy might SA 261/99 11 have died before 1956. The lower appellate court has considered all the materials in considerable detail and has come to the conclusion that properties are available for partition. The result is that this second appeal is without any merits whatsoever and it is liable to be dismissed. I do so. However, there will be no order as to costs. ## **P.Bhavadasan, Judge** sta SA 261/99 12