P.K. Krishna Kumari Amma and others v. Kamalakshi Amma Valsamma and others

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR. JUSTICE A.HARIPRASAD TUESDAY, THE 4TH DAY OF APRIL 2017/14TH CHAITHRA, 1939 SA.No. 476 of 1999 (F) ---------------------- AGAINST THE JUDGMENT AND DECREE DATED 07-12-1998 IN AS NO. 35/1996 of SUB COURT, THIRUVALLA AGAINST THE JUDGMENT AND DECREE DATED 31.01.1996 IN OS NO.457/1986 of MUNSIFF COURT, THIRUVALLA ## APPELLANTS-APPELLANTS-PLAINTIFFS. - ------------ 1. P.K.KRISHNA KUMARI AMMA, PUTHILETHU HOUSE, THELLIYOOR, EZHUMATTOR, MALLAPPALLY. 2. RAJESH MOHANAN, DO. DO. 3. RAJI MOHANAN (MINOR) AGED 16 YEARS. MINOR REPRESENTED BY MOTHER 1ST APPELLANT. ## BY ADV. SMT.P.V.KOCHUTHRESIA ## RESPONDENTS-RESPONDENTS-DEFENDANTS: ------------- 1. KAMALAKSHI AMMA VALSAMMA, C/O.K.S.PILLAI PLOT NO.197, CO-OPERATIVE COLONY, BOKARO DISTRICT, BIHAR-827001. - *2. RAJENDRA PRASAD, THEKKUMKATTIL PUTHEN VEEDU, THELLIYOOR P.O., THIRUVALLA (DIED) 3. SUBRAMONIAN NAIR (T.V.S.NAIR) NOW RESIDING AT P.B.BOX NO.2086, AJMAN, UAE. 4. GEETHA KUMARI ALIAS GEETHA VIJAYAN, C/O.P.N.V.PILLAI, QR-TYPE-III/3, SEMINAR HILLS, NAGPUR, MAHARASTRA. 5. PUSHPA, LEKSHAM VEEDU, NEERETUPURAM, THIRUVALLA-689571. 6. PREM, C/O.K.S.PILLAI, PLOT NO.197, CO-OPERATIVE COLONY, BOKARO, BIHAR-827001. 7. GEETHA S., C/O.K.S.PILLAI, PLOT NO.197, CO-OPERATIVE COLONY, BOKARO, BIHAR-827001. SA NO.476 OF 1999 2 *ADDL.R8. SMT.GEETHA PRASAD, W/O.LATE RAJENDRA PRASAD, RESIDING AT THEKKUMKATTIL PUTHENVEEDU, THELLIYOOR P.O., THIRUVALLA. ADDL.R9. KRIAN PRASAD, S/O.LATE RAJENDRA PRASAD, DO. DO. ADDL.R10. ARCHANA PRASAD, D/O.LATE RAJENDRA PRASAD, DO. DO. ADDL.R8 TO 10 ARE IMPLADED BEING THE LRS' OF THE DECEASED 2ND RESPONDENT VIDE ORDER DATED 25.1.12 IN IA 1198/11. ADDL.R8 TO R10 BY ADV. SRI.M.BALAGOVINDAN THIS SECOND APPEAL HAVING BEEN FINALLY HEARD ON 30.03.2017, THE COURT ON 04-04-2017 DELIVERED THE FOLLOWING: ## **A.HARIPRASAD, J.** ## **-------------------------------------S.A. No.476 of 1999** **-------------------------------------Dated this the 4[th] day of April, 2017** ## **JUDGMENT** This second appeal is preferred by the plaintiffs in O.S.No.457 of 1986 on the file of the Court of Munsiff, Thiruvalla. The suit is one for partition of the properties. Trial court decreed the suit partly by finding that a portion of plaint item No.1 and item Nos.2 and 4 are liable to be partitioned and also that item No.3 is not partiable. Feeling aggrieved, the plaintiffs preferred an appeal before the Court of Subordinate Judge, Thiruvalla. Lower appellate court reconsidered the whole issues and agreed with the trial court. The appeal was dismissed confirming the preliminary decree passed by the trial court. Hence the plaintiffs are in appeal. 2. Heard the learned counsel for the appellants and contesting respondents. 3. Brief facts: As per the plaint averments, the properties shown as item Nos.1 to 4 in plaint schedule were acquired by Kamalakshiamma. Mohanan Pillai, predecessor-in-title of the appellants, was son of Kamalakshiamma through her first husband. Appellants are wife and children of deceased Mohanan Pillai. 1[st] defendant in the suit was the 2 S.A No.476 of 1999 second husband of Kamalakshiamma and defendants 2 to 6 are the children born to Kamalakshiamma through 1[st] defendant. Later 2[nd] defendant died and her legal representatives are impleaded as additional defendants 7 and 8. Plaintiffs claimed 1/6[th] right as legal representatives of deceased Mohanan Pillai in the properties originally belonged to Kamalakshiamma. Kamalakshiamma along with her siblings obtained the properties by virtue of 'ഉടമട�' (settlement deed), which is marked as Ext.A3. It was executed in the year 1954. Thereafter the properties were exchanged as per Exts.A1 and A2. The appellants contended that all the plaint schedule properties are available for partition as they exclusively belonged to Kamalakshiamma. 4. Defendants 1 to 3 contested the suit and others remained exparte. According to the contesting defendants, item Nos.1 and 3 are not partiable. They contended that item No.1 in the plaint schedule was already transferred by Kamalakshiamma to her sister Ponnamma as per Ext.B1. It is therefore contended that 32 cents in item No.1 is not partiable. It is further contended that the extent of item No.2 is only 17 cents. Item No.2 was acquired by Kamalakshiamma as per Ext.A2 document. In respect of item No.3, the defendants contended that Kamalakshiamma got title by virtue of Ext.A1 document. Later, she transferred the same to her husband (1[st] defendant) as per Ext.B2 document. Hence item No.3 is not partiable 3 S.A No.476 of 1999 as the property had been transferred by the 1[st] defendant in favour of deceased 2[nd] defendant. In respect of item No.4, it is contended that the property was purchased by Kamalakshiamma in the joint names of Prasannakumar, Valsamma and herself and therefore, subsequently born children are also entitled to a share in the property. It is therefore contended that 2[nd] defendant's children are also entitled to a share in item No.4. According to the contesting defendants, the plaintiffs are entitled to 1/8[th] share in item No.4. 5. Originally the suit was decided without any oral evidence. That was challenged in appeal before the lower appellate court. Lower appellate court set aside the trial court's judgment and decree and remanded the case. Thereafter in the second round of litigation, one witness each was examined on both side. Exts.A1 to A3 and B1 to B8 were marked. 6. Substantial question of law raised at the time of admission reads as follows: _“Whether separate share obtained by a nair female member or property acquired by her by exchange of such property could be treated as separate property of such female member or does not such property partake the character of sub tarwad property conferring rights on all members existing and subsequently born in such sub tarward?”_ 4 S.A No.476 of 1999 7. Learned counsel for the appellants vehementally argued that courts below are wrong because the legal rights accrued to Kamalakshiamma and on her death, to her son Mohanan Pillai, have not been properly considered. Ext.A3 document would show that it is a settlement deed executed by Kamalakshiamma's mother Kalyaniamma in the name of her children including Kamalakshiamma and Ponnamma. The properties were allotted to her children with absolute right. It has come out in evidence that subsequently Kamalakshiamma and Ponnamma exchanged properties as per Exts.A1 and A2. Ext.A1 is the same document which is marked as Ext.B1. Thereafter an item of property was transferred by Kamalakshiamma in favour of her second husband (1[st] defendant) as per Ext.B2. Learned counsel for the appellants contended that this document never created any right in favour of 1[st] defendant for two reasons. Firstly, Kamalakshiamma was coerced to execute a document under compelling circumstances. Secondly, the properties obtained by Kamalakshiamma by virtue of Ext.A3 document partakes the character of a sub thavazhy property and therefore she alone could not have assigned the same. Regarding the first contention that she was compelled to execute a document in favour of her 2[nd] husband, there is no material to accept it. In respect of the second contention, learned counsel for the appellants relied on a decision reported in **Madhukumar v. Gopala Menon** 5 S.A No.476 of 1999 **(2009 (4) KLT SN 20)** . The principle of which reads as follows: _“Under the Hindu Mithakshara Law the share which a co-parcener obtains on partition of ancestral property as regards his male issues is also ancestral in character and they take an interest in such property by birth whether they are in existence at the time of the partition or are born subsequently. The property in his hands has the incidents of right by birth and survivorship. The same principle has always been applied in the case of Marumakkathayee female obtaining property on partition of ancestral property with the only difference that members in a joint Hindu Marumakkathayam family descent lineally from a common ancestress and by virtue of the matrilineal system of inheritance female members and their female descendants enjoy the status analogous to that of co-parceners under the Hindu Marumakkathaym Law. But the three degree rule of Mitakshara law founded on religious obligation is not applicable to Marumakkathayam law. Thus, the property of a Marumakkathayam tarvad enures for the benefit of its members who may be added in the future by births into the family in the female line, the new members getting forthwith a right by birth in the property. Therefore, under the customary Marumakkathayam law a subsequently conceived or born child gets a right by birth in the property_ 6 S.A No.476 of 1999 _obtained by its mother by way of her separate share in the partition of her ancestral properties. In other words, after partition of the ancestral property the share allotted to female in her hands continues to retain its character as tarvad property.”_ The above principles have no application to this case for the reason that nature and character of the property settled in the name of Kamalakshiamma and each of the beneficiaries in Ext.A3 could only be as their separate properties and not thavazhy properties. Therefore, the contention that Kamalakshiamma had no exclusive right to assign property to the 1[st] defendant cannot be sustained. Not only that, the assignment deed in favour of 1[st] defendant executed by Kamalakshiamma was not challenged in a manner known to law. Therefore, this contention also has to fail. 8. Courts below have correctly analysed the evidence to find that plaint item No.3 is not available for partition. In respect of plaint item No.4, it was seen that a portion of plaint item No.1 is included in plaint item No.4. Learned counsel for the contesting respondents supported the judgments of the courts below finding that the entire evidence have been correctly analysed and the courts below came to the correct conclusion. I accept the contention of the learned counsel for the respondents. Insofar as the contention raised by the learned counsel for the plaintiffs that the identity of plaint item No.1 was not properly established is concerned, it is a matter 7 S.A No.476 of 1999 which can be decided at the time of final decree proceedings. It is settled law that the property with definite description, including the extent, could only be divided in a final decree proceedings. Therefore, the question of identity, if at all there is any dispute, can be decided at the stage of final decree proceedings. 9. On an anxious consideration of the facts and legal principles, I find no infirmity in the judgments passed by the courts below. The substantial question of law raised is decided against the appellants/plaintiffs for the reason that the nature and character of property devolved on Kamalakshiamma will show that it was her personal property and she validly exchanged the same during her life time. No merit is seen in the appeal. In the result the appeal is dismissed. All pending interlocutory applications will stand dismissed. ## **A. HARIPRASAD, JUDGE.** **cks** 8 S.A No.476 of 1999 ## **A.HARIPRASAD, J.** **S.A.No.476 of 1999** ## **JUDGMENT** **4[th] April, 2017**