Puthaneedikayil Thamassikkum Edathikandiyil Lakshmi and others v. Edathikandiyil Mohanan and others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR.JUSTICE P.BHAVADASAN** **MONDAY, THE 9TH DAY OF JANUARY 2012/19TH POUSHA 1933** **SA.No. 235 of 1998 (C)** **---------------------AS.27/1995 of ADDL. D.C. KOZHIKODE- II OS.15/1994 of SUB COURT, VADAKARA** ## **APPELLANT(S):** **------------** **1. PUTHANEEDIKAYIL THAMASSIKKUM EDATHIKANDIYIL LAKSHMI, D/O KELU, KAVILUMPARA, VADAKARA.** **2. EDATHIKANDIYIL BALAN, S/O KELU -DO- -DO- (DIED) (LRs IMPLEADED AS ADDL.RESPONDENTS 6 TO 9)** **3. KOLANGARETH THAMASIKKUM EDATHIKANDIYIL SAROJINI, D/O KELU. -DO- -DO-** - **BY ADV. SRI.K.P.DANDAPANI (SR.)** ## **RESPONDENT(S):** - **--------------** **1. EDATHIKANDIYIL MOHANAN, S/O KUMARAN, KAYAKODI AMSOM, KOOTOORA DESOM, VADAKARA TALUK** **2. EDATHIKANDIYIL KUMARAN, S/O KELU, -DO- -DO-** **3. EDATHIKANDIYIL SASIDHARAN, S/O KUMARAN, -DO- -DO-** **4. EDATHIKANDIYIL VINODAN, S/O KUMARAN, -DO- -DO-** **5. EDATHIKANDIYIL SUGATHAN, S/O KUMARAN, -DO- -DO-** ## **SA.No. 235 of 1998 (C)** - **ADDL 6. BABY, W/O LATE BALAN, AGED 56 YRS, KAYPPURATHUTHAZAHAM, THIRUTHIYAD, CALICUT 673004.** **7. BABITHA, D/O LATE BALAN, AGED 30 YEARS, -DO- -DO-** **8. BASHITHA, D/O LATE BALAN, AGED 27 YEARS, -DO- -DO-** **9. BABEESH, S/O LATE BALAN, AGED 25 YEARS, -DO- -D0-** - **ADDL R6 TO R9 ARE IMPLEADED BEING THE LRs OF DECEASED 2ND APPELLANT AS PER ORDER DATED 10.03.11 IN IA NO: 2746/2008.** ## **R5 BY SRI.S.V.BALAKRISHNA IYER (SR.)** **SRI.P.B.KRISHNAN** **THIS SECOND APPEAL HAVING BEEN FINALLY HEARD ON 09-01-2012, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **BKA** **P. BHAVADASAN, J. -----------------------------------------S.A. NO. 235 OF 1998 -----------------------------------------Dated this the 9[th] day of January, 2012** ## **J U D G M E N T** Defendants 2 to 4 in OS No: 15/1994 before the Trial Court are the appellants herein. During the pendency of the appeal, 2[nd] appellant died and his legal representatives are impleaded as additional respondents 6 to 9. The parties and facts hereinafter referred to as they are arrayed before the trial court. 2. The suit is one for partition. Original acquisition of the property was by one Kanisan Kanaran by Ext B4, Registered Lease Deed of 1922. On the death of Kanaran, his right devolved on his sons namely, Kelu, Rayarappan, Chandu and Raman, as parties are governed by Hindu Mithakshara Law. By Ext.A1 of the year 1946, Kelu renewed the lease deed on behalf of the joint family. By S.A. NO. 235 OF 1998 - 2 - Ext.B3 dated 26.07.1956, the family property was partitioned by the sons of Kanisan Kanaran namely Kelu, Rayarappan, Chandu and Raman. As per Ext.B2, the plaint schedule property was allotted to the branch of Kelu. That consisted of Kelu, Plaintiff and defendants 1, 3, 5 & 7 and they acquired joint rights in the property. According to the plaintiff, he did not wish to continue joint possession and sought partition claiming 4/28 share. 3. Defendants 2 to 3 resisted the suit claim. They disputed that the nature of the property is joint family property. It is pointed out by them that Chirutha, daughter of Kanaran also was given a share as per Ext.B3 and that would show that property was not treated as joint family property. They also relied on Ext.B1 judgment in OS No:38/1990 to dispute that the property in the hands of Kelu had the characteristics of ancestral property. They, therefore, prayed for dismissal of the suit. S.A. NO. 235 OF 1998 - 3 - 4. Trial court raised necessary issues for consideration. No oral evidence was adduced by either side. Only Ext.A1 is marked for the plaintiff. Exts.B1 to B4 were marked from the side of the defendants. 5. Based on the evidence, the trial court came to the conclusion that the property in the hands of Kelu, who acquired it by partition deed, had the characteristics of ancestral property and therefore the plaintiff is entitled to get 4/28 shares. Accordingly, the suit was decreed. The aggrieved defendants carried the matter in AS No: 27/1995 of the District Court, Kozhikode. The lower appellate court on independent consideration of evidence and law applicable concurred with the trial court and dismissed the appeal. That brings the aggrieved defendants before this court. S.A. NO. 235 OF 1998 - 4 - ## 6. Notice has been issued on the following ## substantial questions of law. “i) Whether the plaint schedule property is a Hindu Joint Family property, as alleged? ii) Whether the parties to the Suit are followers of the Hindu Mithakashara Law? iii) Whether on the facts and circumstances of the case, the finding of the Courts below that the plaintiff can enforce partition is correct? iv) On the facts and circumstances of the case, whether the shares allotted to the parties to the Suit are correct? v) In view of the execution of the decree in EP No:127/1993 in OS No:38/1990 on the file of the Sub Court, Vadakara, whether the present Suit itself is maintainable?” 6A. The learned counsel appearing for the appellant brought to the notice of this Court Exts.B3 and B1, and contended that by virtue of these documents, it would be clear that the property was not treated as joint family property and the parties, who took the property acquired by Ext.B3 document, were treated as tenants in common and not as joint tenants. Stress was laid on the fact that at the time of Ext.B3, Kelu had not made his children parties to the deed and that indicates that the properties were not treated as ancestral property. Allocation of property to Chirutha as S.A. NO. 235 OF 1998 **==> picture [22 x 10] intentionally omitted <==** per Ext.B3 also betrays the claim of the plaintiff. These aspects have not been properly considered by the Court below and the decision was wrong. 7. According to the learned counsel for the respondent merely because a share is given to a female that does not change the character of the property. At the time of execution of Ext.B3, Kelu had male children and as Kelu obtained the property by virtue of partition which was the acquisition by his father, it was ancestral property in his hands. In the decisions in **Saraswathi Ammal v. Anantha Shenoi (1965 KLT 141) and Narayana Prabhu v. Janardhana Mallan & Others (1973 KLR 665),** it was pointed out that if a Hindu male obtaining property by way of partition holds it as ancestral property, if he has male children as on that date. 8. Such male issues have a right by birth in the S.A. NO. 235 OF 1998 - 6 - property so acquired by their father. It is thereafter held as joint family property. Even assuming that on the date of partition, a joint sharer has no male issues and if subsequently a male issue is born to him, the property became joint family property. The birth of a subsequent male child changes the character of the property held till then as his separate property by a sharer. 9. It is also contended that acquisition by Ext.B2 document by Kelu can be treated only in the capacity as a manager of the family at the relevant time. The family had property which generated income. Therefore, at the relevant time, i.e. at the time of Ext.B2, there was the nucleus from which Kelu could get enough income to acquire property. It is contended that there was no attempt to show that Ext.B2 acquisition was intended to be self acquisition. It is therefore contended that the Courts below were justified in decreeing the suit. S.A. NO. 235 OF 1998 - 7 - 10. It is contended that at the moment when a son is born or if a son is already alive, the property acquired by one of the sharer in a partition holds the property as a joint family property and his sons acquire a right by birth in the property. 11. After having heard the counsel on both sides and after having perused the records before this Court, it is found that no grounds have been made out to interfere with the decree of the Courts below. 12. It is true that the acquisition was originally by Kanaran. But after his death, the lease was renewed by Kelu, who then was admittedly the senior most member of the family. It is also true that by virtue of Ext.B3 partition deed, a share was given to Chirutha, daughter of Kanaran which may appear to be inconsistent with the normal rule of S.A. NO. 235 OF 1998 - 8 - partition in a Hindu Mithakshara family. But merely because a share is given to Chirutha, that does not changes the character of the property. ## 13. In **Saraswathi Ammal v. Anantha Shenoi** ## **(1965 KLT 141)** wherein it was held as follows; “A mitakshara father has absolute right of disposition over his self-acquired property to which no exception can be taken by his male descendants. The property of the grandfather himself can normally vest in the father as ancestral property if and when the father inherits such property on the death of the grandfather or receives it, by partition, made by the grandfather himself during his life time. On both these occasions the grandfather's property comes to the father by virtue of the latter's legal right as a son or descendant of the former and consequently it becomes ancestral property in his hands.” 14. The same view was taken in **Narayana Prabhu v.** **Janardhana Mallan & Others (1973 KLR 665)** in the 5[th] edition at page 288 in paragraph 223. It is acquired as follows; “Held:- Any property obtained by a person governed by the Hindu Mitakshara Law from S.A. NO. 235 OF 1998 - 9 - his ancestors must be ancestral property in his hands and the sons in the family will have right by birth to such property.” 15. The principle laid down in the above decisions leave one in no doubt that the property in the hands of Kelu had the characteristics of ancestral property in which his male children and male grand children acquired right by birth. 16. As rightly pointed out by the learned counsel for the respondents, Ext.B1 judgment cannot have any impact on the right of the plaintiff for a simple reason that it was after the commencement of the Joint Family Hindu Abolition Act, 1996. Each member existing in the family then had independent and distinct share. Coming to the acquisition under Ext.B2, one may refer to the principle laid down in decision reported in **Achuthan Nair v. Chinnammu Amma & Others** ( **1966 SCC 411),** wherein it was held as follows; S.A. NO. 235 OF 1998 - 10 - “Under Hindu law, when a property stands in the name of a member of a joint family, it is incumbent upon those asserting that it is a joint family property to establish it. When it is proved or admitted that a family possessed sufficient nucleus with the aid of which the member might have made the acquisition, the law raises a presumption that it is a joint family property and the onus is shifted to the individual member to establish that the property was acquired by him without the aid of the said nucleus. This is a well settled proposition of law. But the principle is not applied to acquisition of properties in the name of a junior member of a tarwad (anandravan) under the Marumakkathayam law. There is no presumption either way and the question has to be decided on the facts of each case. In the case of a property acquired in the name of the karnavan, however, there is a strong presumption that it is a tarwad property and the presumption holds good unless and until it is rebutted by acceptable evidence. ILR 36 Mad 304 and AIR 1918 Mad 1367 and AIR 1926 Mad 643 and AIR 1947 Mad 137 and AIR 1925 Mad 430(2), Ref. to.” 17. Therefore, when a property is acquired in the name of a 'Karanavar', there is strong presumption that it is a 'Tharavadu' property, especially, when it is shown there is a nucleus to generate income. It cannot be disputed that at the relevant time, Kelu was the senior most male member of the family and also that there was sufficient income from S.A. NO. 235 OF 1998 **==> picture [29 x 9] intentionally omitted <==** the family property. It was, these factors which had persuaded the Courts below to hold that the acquisition under Ext.B2 was for and on behalf of the family. 16. The Courts below have appreciated the evidence in the proper manner and applied the correct law. The appellant was unable to show that the judgment and decrees of the Courts below suffer from any legal or factual infirmities warranting interference under Section 100 of the Code of Civil Procedure. The result is that the second appeal is without any merit and is liable to be dismissed. I do so confirming the judgment and decrees of the Courts below. However, there will be no order as to costs. ## **P. BHAVADASAN, JUDGE** bka/-