Padmanabhan Jithendran (deceased) and others v. Padmanabhan Ambika Devi and Anandavally and others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** ## **THE HONOURABLE MR.JUSTICE N.K.BALAKRISHNAN** **TUESDAY, THE 2ND DAY OF JULY 2013/11TH ASHADHA, 1935** ## **SA.No. 247 of 2001 ( )** ## **-----------------------** **AGAINST THE JUDGMENT IN AS 13/1997 of DISTRICT COURT,KOLLAM DATED 23-10-2000** **AGAINST THE JUDGMENT IN OS 1136/1990 of ADDL.MUNSIFF COURT, KOLLAM DATED 13-10-1995** **APPELLANT(S): ------------------------** **1. PADMANABHAN JITHENDRAN, PALETH VEEDU, MAYYANAD CHERI, ERAVIPURAM VILLAGE, KOLLAM TALUK (DIED)** **ADDL. APPELLANTS** **2. SUSEELA, AGED 55 YEARS, W/O.PADMANABHAN JITHENDRAN** **3. SKYLARK, AGED 36 YEARS, S/O.PADMANABHAN JITHENDRAN** **4. SINIYA, AGED 33 YEARS, D/O.PADMANABHAN JITHENDRAN** **5. SINOLIN, AGED 29 YEARS, S/O.PADMANABHAN JITHENDRAN** - **ALL RESIDING AT PALETH HOUSE, KARIKKUZHI, MAYYANAD P.O., KOLLAM DISTRICT** **ADDITIONAL APPELLANTS 2 TO 5 ARE IMPLEADED BEING LEGAL HEIRS OF THE DECEASED APPELLANT AS PER ORDER DATED 15.3.2011 IN I.A. NO.708/2011.** **BY ADVS.SRI.A.P.CHANDRASEKHARAN (SR.) SMT.PRABHA R.MENON** **SRI.PUSHPARAJAN KODOTH SRI.M.KRISHNAKUMAR(MOHANKUMAR ASSOCIATES SRI.K.JAYESH MOHANKUMAR** **RESPONDENT(S):** **----------------------------** **1. PADMANABHAN AMBIKA DEVI, GOVT. SERVANT, KOZHITHODATHU VEEDU, PANDARANDU MURI, THATTAMALA P.O., ERAVIPURAM VILLAGE, KOLLAM TALUK.** **...2** ## **SA.No. 247 of 2001 ( )** **-2-** **2. PADMANABHAN ANANDAVALLY, GOVT. SERVANT, RESIDING AT M.V.M. BUNGLOW, CHAVARCODE, PARIPPALLY VILLAGE FROM PALETH VEEDU, MAYYANAD CHERRY, ERAVIPURAM VILLAGE, KOLLAM TALUK.** **R1 BY ADVS. SRI.C.P.SUDHAKARA PRASAD (SR.) SRI.ELVIN PETER P.J. SRI.M.V.THAMBAN** **THIS SECOND APPEAL HAVING BEEN FINALLY HEARD ON 02-07-2013, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ## **J U D G M E N T** **Respondent's counsel present. No representation for the appellant. Taken up again, still no representation. Hence, dismissed for default.** ## **Sd/-** ## **N.K. BALAKRISHNAN, JUDGE** ## **//TRUE COPY//** ## **P.A. TO JUDGE** **JJJ** ## **N.K.BALAKRISHNAN, J.** ========================== **S.A. No. 247 of 2001** =================================== **Dated this the 13[th] day of August, 2013** ## **JUDGMENT** This second appeal is filed by the plaintiff in a suit for partition. The plaintiff/appellant contended that the plaint A schedule property measuring 28½ cent and other properties were partitioned as per Ext.A1 partition deed dated 17[th] Edavam, 1122 (almost corresponding to 1947) and as per that partition deed, the aforesaid 28 ½ cent was allotted to Saraswathi the mother of the plaintiff (Jithendran) and defendants (Anandavally and Ambikadevi) as item No.3 of Ext.A1. Subsequently the plaintiff's mother Saraswathi died and as such the plaintiff contended that he has to get 1/3 share in the plaint schedule property and that defendants are entitled to get the remaining 1/3 share each. Since the request for partition made by the plaintiff was not heeded to, the suit was laid. 2. Defendants, who are the sisters of the plaintiff resisted the suit contending that the plaint A schedule property is the thavazhai property and so the plaintiff is not entitled to get S.A.No.247 /2001 2 1/3 share of the said property. It is further contended that the first defendant is having 4 children and the second defendant is having 3 children and so including those seven members and the plaintiff and defendant 1 and 2, the total would come to 10 and so the plaintiff is entitled to get only 1/10 share. 3. Before the trial court, plaintiff and one witness were examined as PW1 and PW2 and Exts.A1 to A10(a) were marked. One witness was examined on the side of the defendants as DW1 and Exts.B1 to B4 were marked. 4. The trial court after considering the pleadings and evidence found that since the tharvad was partitioned as per Ext.A1 there was a per capita division and so as on the date of Ext.A1 the plaintiff had ¼ share. But subsequent to the death of Saraswathi, her ¼ share devolved upon the plaintiff and the defendants 1 and 2 and as such the plaintiff is entitled to get 1/3 share. The defendants contend that the allotment as per Ext.A1 was that the thavazhai consisting of Saraswathi, the plaintiff, defendants 1 and 2 and the children born through the females and as such the plaintiff is entitled to get only 1/10 share but that plea was negatived by the trial court. As against the same, S.A.No.247 /2001 3 the defendants filed separate appeals before the lower appellate court. As per a common judgment the lower appellate court reversed the finding of the trial court and held that the allotment of Ext.A1 was to the Sub tharvad of Saraswathi, who is the mother of the plaintiff and the defendants. It was further held that the children born through the female members are also entitled to get shares in the thavazhi property and thus it was found that as on 1/12/1976, when The Kerala Joint Hindu Family System (Abolition) Act, 1975 (Act 30 of 1976) came into force, there were ten members in the Thavazhi of which the plaintiff was one and accordingly preliminary decree was modified directing division of the plaint A schedule property into ten equal shares and to allot one such share to the plaintiff. Aggrieved by the same, the plaintiff has filed this second appeal. 5. Following substantial questions of law have been framed: 1. Whether in a partition deed, the number of total individual shares has been calculated and such four shares are granted to the mother and her three minor children without specifying that the allotment is to a thavazhi constituted by the S.A.No.247 /2001 4 mother and children, could the Court enter a finding that such allotment is to a Thavazhi and that the children born to the female members of that Thavazhi are entitled to shares in the property allotted ? 2. When four shares are allotted together to a four member natural group, could it be found that they are not holding the property as co-owners but only as Thavazhi members ? ## 3. Would not an allotment of shares computed on a per capita basis to a group comprising mother and her three minor children be co-ownership property in the hands of the mother and children and each minor child's share as on the date of allotment be fixed and protected ? 6. It is vehemently argued by the learned counsel for the appellant that there is nothing in Ext.A1 to indicate that the allotment of plaint A schedule property was to a Thavazhi consisting of Saraswathi and her three children. It is further submitted that since the names of the plaintiff, the first and second defendant were specifically mentioned as the sharers and since it is also found that the total number of sharers as on the date of Ext.A1 was 16, it can never be said that the allotment of S.A.No.247 /2001 5 the plaint A schedule property herein was to the Thavazhi of Saraswathi and her three named children. It is further argued by the learned counsel that the parties were admittedly governed by the provisions of Ezhava Act 1100 (Travancore) Regulation III of 1100. ## Sec.4(3) defines Thavazhi of a female: “Thavazhi of a female” means a group of persons consisting of that female and her issue how low-so-ever in the female line, or such of that group as are alive. Sec.4(4) defines Thavazhi of a male: “Thavazhi of a male” means the thavazhee of his mother. Sec.4(5) defines Collateral Thavazhees: “Collateral Thavazhees” are Thavazhees of females who, though descended from a common ancestress, do not stand in the direct line of ascent or descent from one another. Sec.4(6) of that act defines Tharwad: “Tarwad” means and includes all the members of a Marumakkathayam family, with community of property. 7. It is vehemently argued by the learned counsel for the appellant that the finding entered by the lower appellate court that the allotment of the property to Saraswathi and her three children is to the Sub Tharvad is unsustainable. But that S.A.No.247 /2001 6 argument is stoutly opposed by the learned counsel for the respondents, who points out that four persons to whom the property was allotted as per Ext.A1 were members of a Marumakkathayam family, with community of property. As per Ext.A1 the property in question was allotted to the group of four persons. The recitals in Ext.A1 would show that the plaint A schedule property mentioned herein and other properties belonged to tharvad and that the persons mentioned therein and their children then constituted a tharvad and thus the properties were subjected to partition. 8. The learned counsel for the appellant would submit that the recitals in the document that it was divided into 16, adopting per capita division would only indicate that each of those persons had obtained a specific and definite share. But at the same time, it is also seen that the whole property was divided into six schedules and that the third item mentioned therein was allotted to Saraswathi and her children jointly. 9. The contention raised by the appellant that there would be only a collateral Thavazhi as defined under Sec.4(5) of the Act cannot be accepted. Since the allotment was made to S.A.No.247 /2001 7 Saraswathi and her three children, being a group, the thavazhi character still continued and so the contention that the plaintiff, who was one among the four sharers in respect of the plaint schedule property as on the date of Ext.A1, is entitled to get ¼ share cannot be sustained. It is argued by the learned counsel for the appellant that had a partition suit been filed immediately after Ext.A1, then since the plaintiff, his mother Saraswathi and the two sisters alone were there, the plaintiff could have obtained ¼ share and similarly, immediately after the death of Saraswathi and before children were begotten through the sisters certainly, the plaintiff could have obtained 1/3 share. But that is not a reason to say that there was no Sub Tharvad or Thavazhi with the community of property. Since admittedly, the parties were following the system of Marumakkathayam inheritance and since they were governed by Ezhava Act 1100, the contention that there was no Sub tharvad after Ext.A1 partition cannot be sustained. As has been defined under Sec.4 (6) tharvad means and includes all members of a Marumakkathayam family with community of property. Since the descendants line how-low-so ever in the female line, would S.A.No.247 /2001 8 become members of the thavazhi of a female there can be no doubt that the children of Anandavalli and Ambikadevi would certainly be members of the thavazhi. Marumakkathayam means the system of inheritance in which descent is traced in the female line. Therefore, the children born through Anandavalli and Ambikadevi are to be treated as the members of the thavazhi or Sub tharvad. 10. The learned counsel for the respondents has also relied upon the decisions of this court in **Cherukunnon Shantha vs. Kallakandi Sahadevan & others (2011(2) KLT 1031)** in support of his submission that the property allotted as per a partition to its members even if it be on per capita basis, they would take them as a group subject to the rights of the children born to the female members in the group till the commencement of The Kerala Act 30 of 1976. The aforesaid decision was rendered while interpreting Sec.38 of the Madras Marumakkathayam Act and other provisions of that Act. The property, alleged to be of a natural group consisting of mother and children on partition of the tharvad property, would still partake the character of a thavazhi property, according to the S.A.No.247 /2001 9 learned counsel for the respondent. It is submitted by the learned counsel that though Sec.38 of the Madras Marumakkathayam Act as amended by Kerala Act 26 of 1958 was the point for consideration in **Shantha's case** , the principle that the property allotted in division of Tharvad to its members, on the basis of per-capita share, even if taken by a group, must be treated to have been taken as tenants in common and not as joint tenants but subject to the rights of the children born to the female member in the group till the commencement of Kerala Act, 30 of 1976 is applicable to this case since the parties to the suit were following Marumakkathayam system of inheritance. It is argued by the learned counsel for the respondents that under Marumakkathayam and allied systems of law a person becomes a member of tharvad only through his mother. There is no dispute regarding the fact that the issue of male children do not belong to their Tharvad, but to the Tharvad of their consorts. The Marumakkathayam tharvad consists of a mother and her male and female children and the children of those female children. Since Ext.A1 makes it clear that the allotment of plaint A schedule property herein was to the group of four persons, S.A.No.247 /2001 10 namely, Saraswathi and her three children, the contention that it does not belong to the Sub tharvad or thavazhi cannot be accepted. Hence, the lower appellate court was perfectly correct in holding that the children born through Anandavalli and Ambikadevi are also members of that Sub tharvad and as such, the preliminary decree passed by the trial court was rightly modified by the lower appellate court directing division of the property into ten equal shares and to allot one such share to the plaintiff/ appellant. 11. In view of what have been stated above all the questions raised are answered against the appellants. In the result, this R.S.A is dismissed as stated above. Sd/- **N.K.BALAKRISHNAN, JUDGE** das // True copy // PA to Judge