Puthillam Rasheed and others v. Thatttakkada Hameed and others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE P.SOMARAJAN** **TUESDAY, THE 06TH DAY OF AUGUST 2019 / 15TH SRAVANA, 1941** ## **RSA.No.1212 OF 2006(C)** **AGAINST THE DECREE & JUDGMENT DATED 20-06-2006 IN AS No.388/2004 OF DISTRICT COURT, KOZHIKODE** **AGAINST THE DECREE & JUDGMENT DATED 12-12-2003 IN OS No.4/1994 OF MUNSIFF COURT, AMINI** ## **- - APPELLANTS IN R.S.A APPELLANTS IN A.S. PLAINTIFFS IN SUIT:** - **1 PUTHILLAM RASHEED, S/o PUTHILLAM NAFEESA, ELECTRICITY DEPARTMENT SERVANT, AMINI ISLAND, U.T. OF LAKSHADWEEP.** - **2 PUTHILLAM NAFEESA, D/o PUTHILLAM AYSHA, AMINI ISLAND, U.T. OF LAKSHADWEEP.** - **3 PUTHILLAM MUTHUKOYA, S/o PUTHILLAM NAFEESA IN -DO- -DO-.** - **4 PUTHILLAM SUHRA, D/o DO- IN -DO- -DO-.** - **5 PUTHILLAM CHERIYABI, D/o -DO- IN -DO- -DO-.** - **6 PUTHILLAM ATTABI, D/o -DO- IN -DO--DO-.** - **7 PUTHILLAM AYSHABI, D/o -DO- IN -DO--DO-** - **8 PUTHILLAM SAFARULLAKHAN, S/o PUTHILLAM SUHRA, MINOR AGED 16 IN -DO- -DO-.** - **9 PUTHILLAM MASEENA, D/o DO- MINOR AGED 14 IN -DO- (MINORS 8 AND 9 REPRESENTED BY THEIR GUARDIAN KILLICHODA AHAMMED, AMINI ISLAND, U.T. OF LAKSHADWEEP). (APPELLANTS 2 TO 9 ARE REPRESENTED BY THEIR POWER-OF-ATTORNEY HOLDER APPELLANT No.1, PUTHILLAM RASHEED)** **BY ADVS.SRI.S.V.BALAKRISHNA IYER (SR.) SRI.K.JAYAKUMAR (SR.) SRI.P.B.KRISHNAN** RSA.No.1212 OF 2006(P) 2 **RESPONDENTS IN R.S.A – RESPONDENTS 2 TO 22, 25, 27 TO 50 IN A.S. - DEFENDANTS 2 TO 22, 25, 27 TO 50 IN SUIT:** - **1 THATTAKKADA HAMEED, S/o PALALAM ATTAKOYA, AGRICULTURAL OFFICER, AMINI ISLAND, U.T. OF LAKSHADWEEP.** - **2 THATTAKADA HYRUNNISA, D/o -DO- IN -DO-DO-** - **3 THATTAKADA ATTABI, D/o -DO- IN -DO--DO-.** - **4 NOORBHAVAN SAFIYA, D/o -DO- IN -DO--DO-.** - **5 NOORBHAVAN CHERIYANI, D/o DO- IN -DO- -DO-.** - **6 NOORBHAVAN KUNHIBI, D/o DO- IN -DO- -DO-.** - **7 NOORBHAVAN HAVVA, D/o THATTAKADA HYRUNNISA IN -DO- -DO-.** - **8 NOORBHAVAN NOORUL AMEED, S/o DO- IN -DO** - **9 NOORBHAVAN ANVER, S/o DO- IN -DO- -DO-.** - **10 NOORBHAVAN ISHAN, S/o DO- MINOR AGED 17, IN -DO- REPRESENTED BY HIS GUARDIAN MOTHER RESPONDENT No.2, HYRUNNISA.** - **11 PALALAM SAJITHA, D/o THATTAKKADA ATTABI IN -DO- -DO-.** - **12 PALALAM SAROMMA, D/o -DO- IN -DO- -DO-.** - **13 PALALAM SALEEM, S/o DO- IN -DO- -DO-.** - **14 PALALAM HANEEFA, S/o DO- IN -DO--DO-.** - **15 PALALAM RUKSANA, D/o DO- MINOR AGED 14, IN -DO- -DO-, REPRESENTED BY HER GUARDIAN MOTHER, RESPONDENT No.3, THATTAKADA ATTABI IN -DO- -DO-.** - **16 NOORBHAVAN PAVEENA PARSANA, D/o SAFIYA, MINOR, AGED 14 IN -DO-, REPRESENTED BY HER GUARDIAN MOTHER, 4[th] RESPONDENT, SAFIYA IN -DO- -DO-.** - **17 NOORBHAVAN SATHAR, S/o CHERIYABI, AGED 15 IN -DOREPRESENTED BY HIS GUARDIAN MOTHER RESPONDENT No.5, CHERIYABI IN -DO- -DO-.** RSA.No.1212 OF 2006(P) 3 - **18 NOORBHAVAN FATHIMA SULFATHAR, D/o CHERIYABI, MINOR AGED 12 IN -DO- -DO-, REPRESENTED BY HER GUARDIAN MOTHER CHERIYABI, RESPONDENT No.5, IN -DO- -DO-.** - **19 NOORBHAVAN PAVEENA PARVEEN, S/o KUNHIBI, AGED 13 IN -DO- -DO-, REPRESENTED, BY HIS GUARDIAN MOTHER, RESPONDENT No.6,KUNHIBI IN, -DO- -DO-.** - **20 PUTHILLAM SAYED MUKARI, S/o SAKEENA, TEACHER IN AMINI ISLAND, U.T. OF LAKSHADWEEP.** - **21 PUTHILLAM SIRAJ (DIED, LRs RECORDED), S/o DO- COCONUT FARMER IN -DO-.** **(APPELLANTS AND RESPONDENTS 20,24 TO 39 AND 41 TO 45 IN THE RSA ARE RECORDED AS THE LEGAL REPRESENTATIVES OF DECEASED R21, AS PER ORDER DATED 10.06.2019 IN IA.1/2019)** - **22 PUTHILLAM HAMZA, S/o ATHI, COCONUT FARMER IN -DO-. (DIED, LRs RECORDED)** - **23 PUTHILLAM PATHUMMABI (DIED, LRs RECORDED) D/o PUTHILLAM ATHI IN -DO-.** **(IT IS RECORDED THAT R20 TO 22 AND R24 TO 45 ARE THE LRS OF DECEASED R23 AS PER ORDER DATED 28.02.2007 IN MEMO DATED 13.02.2007 VIDE CF.No.1227/2007).** - **24 PUTHILLAM CHERIYAKOYA, S/o PUTHILLAM AYSHA, COCONUT FARMER IN -DO-.** - **25 PUTHILLAM KUNHI, S/o DO- COCONUT FARMER IN -DO-.** - **26 PUTHILLAM SARABI, D/o -DO- IN -DO--DO-** - **27 PUTHILLAM SHEEMA, D/o DO-, BALAVADI TEACHER IN -DO-.** - **28 PUTHILLAM HAMARUNNISA, D/o -DO-, HEALTH WORKER IN -DO- -DO-.** - **29 PUTHILLAM NALLAKOYA, S/o PATHUMMABI, WORKING IN PRESS IN -DO- -DO-.** - **30 PUTHILLAM AHAMMED, S/o -DO-, MECHANIC IN -DO-.** RSA.No.1212 OF 2006(P) 4 - **31 PUTHILLAM HAJARA, D/o DO- IN -DO--DO-.** - **32 PUTHILLAM ASHARAF, S/o -DO-, COCONUT FARMER IN -DO-.** - **33 PUTHILLAM ASMA, D/o -DO- IN -DO- -DO-.** - **34 PUTHILLAM FATHAHULLA, S/o DO-, MECHANIC IN -DO-.** - **35 PUTHILLAM ABOOHASHIM, S/o PUTHILLAM HAJARA, MINOR AGED 16 IN -DO-, REPRESENTED BY HIS GUARDIAN MOTHER PUTHILLAM HAJARA, RESPONDENT No.31 IN -DO-.** - **36 PUTHILLAM SAMAD, S/o DO- MINOR, AGED 13 IN -DO-, REPRSENTED BY HIS GUARDIAN MOTHER, PUTHILLAM HAJARA, RESPONDENT No.31 IN, -DO- -DO-.** - **37 PUTHILLAM MOHAMMED JASIM, S/o PUTHILLAM ASMA, MINOR AGED 12 IN -DO-, REPRSENTED BY HIS GUARDIAN MOTHER PUTHILLAM ASMA, RESPONDENT No.33 IN -DO-.** - **38 PUTHILLAM THANGAKOYA, S/o PUTHILLAM SARABI, TEACHER IN -DO- -DO-.** - **39 PUTHILLAM HIDAYATHULLAKHAN, S/o -DO- IN -DO-.** - **40 PUTHILLAM JOWHARATH, D/o -DO- IN -DO—DO (DIED, LRs IMPLEADED)** - **41 PUTHILLAM FARITHA, D/o PUTHILLAM SHEENA IN -DO-.** - **42 PUTHILLAM SHAFEEQUE, S/o PUTHILLAM SHEEMA IN -DO-.** - **43 PUTHILLAM SAJITHA, D/o -DO- MINOR AGED 16 IN -DO-, REPRESENTED BY HER GUARDIAN MOTHER PUTHILLAM SHEEMA, RESPONDENT No.27 IN -DO- -DO-.** - **44 PUTHILLAM ABIDA, D/o DO- MINOR AGED 12 IN -DOREPRESENTED BY HER GUARDIAN MOTHER PUTHILLAM SHEEMA, RESPONDENT No.27 IN -DO- -DO-.** - **45 PUTHILLAM ABOOSALAKOYA, S/o PUTHILLAM HAMARUNNISSA, MINOR AGED 13 IN -DO-, REPRESENTED BY HIS GUARDIAN MOTHER, PUTHILLAM HAMARUNNISA, RESPONDENT No.28.** - **46 AMINECHETTA HAJAROMMA, D/o ALAKKA AHAMMED, KADAMATH, AMINI ISLAND, U.T. OF LAKSHADWEEP.** RSA.No.1212 OF 2006(P) 5 - **ADDL. FARIS AHAMED, S/o LATE PUTHILLAM JOWHARATH, MINOR, R47 AGED 2 MONTHS, RESIDING AT AMINI ISLAND, U.T.OF LAKSHADWEEP, REPRESENTED BY GUARDIAN HIS FATHER ALIKAKKADA FAISAL, S/o DOUHEED MANZIL MUTHUKOYA, AGED 29, IN .DO. .DO.** **(LEGAL REPRESENTATIVES OF DECEASED R40 IS IMPLEADED AS ADDL.R47 AS PER ORDER DATED 06.08.2019 IN IA.1323/2008.)** ## **ADDL.RESPONDENTS** - **48 SULTHAMBI, D/o AMINECHETTA HAJAROMMA, AGED 65, AAMINEPURA KADAMATH, NOW RESIDING AT C/O.MOHAMMED HAJI, BADER MANZIL (ALIYAR), WARD NO.2, AMINI ISLAND, PIN-682 552.** - **49 KUNHIBI, D/o AMINECHETTA HAJAROMMA, AGED 57, AAMINEPURA KADAMATH, NOW RESIDING AT WARD NO.7, LAKSHADWEEP, KADAMATH- PIN-682 552.** - **50 BEEBIJAN, D/o AMINECHETTA HAJAROMMA, AGED 57, AAMINEPURA KADAMATH, NOW RESIDING AT FLAT NO.CHC, KADAMATH, WARD NO.7, LAKSHADWEEP, KADAMATH, PIN-682 552.** - **51 AATTAKKOYA, S/o AMINECHETTA HAJAROMMA, AGED 55, AAMINEPURA KADAMATH, P & T DEPARTMENT, NOW RESIDING AT WARD NO.VII, KADAMATH ISLAND, LAKSHADWEEP, PIN-682 552.** - **52 HAMARUNNISSA, D/o AMINECHETTA HAJAROMMA, AGED 42, AAMINEPURA KADAMATH, (PEERA FACTORY), NOW RESIDING AT WARD NO.VII, KADAMATH ISLAND, LAKSHADWEEP, PIN-682 552.** - **53 SUHARA, D/o AMINECHETTA HAJAROMMA, AGED 38, AAMINEPURA KADAMATH, NOW RESIDING AT WARD NO.VII, KADAMATH ISLAND,LAKSHADWEEP, PIN-682 552.** - **54 NAZEEBUDHEEN, S/o AMINECHETTA HAJAROMMA, AGED 35, AAMINEPURA KADAMATH, WORKING AS COOK IN THE O/O.ADMINISTRATOR, U.T. OF LAKSHADWEEP, KAVARATHI ISLAND, LAKSHADWEEP, PIN-682 552.** RSA.No.1212 OF 2006(P) 6 **(LEGAL REPRESENTATIVES OF DECEASED R46 ARE IMPLEADED AS ADDL.R48 TO R54 AS PER ORDER DATED 06.08.2019 IN IA.1/2018.)** **(APPELLANTS AND RESPONDENTS 20, 21, 24 TO 39, 41 TO 45 IN R.S.A ARE RECORDED AS THE LEGAL REPRESENTATIVES OF DECEASED R22 AS PER ORDER DATED 06.08.2019 IN I.A. NO.456/2010)** **BY ADV. SMT.SHAHNA KARTHIKEYAN FOR R1, R3 TO R5, R11 TO R18, R20, R22, R30 TO R33 BY ADV. SRI.M.P.SREEKRISHNAN FOR R1, R3 TO R5, R11 TO R14, R22, R30 TO R33** **THIS REGULAR SECOND APPEAL HAVING BEEN FINALLY HEARD ON 06.08.2019. THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** RSA.No.1212 OF 2006(P) 7 ## **JUDGMENT** The plaintiffs after suffering two decrees from the Trial Court and the First Appellate Court came up with this appeal in a suit for declaration that alienation made by the first defendant is not binding on the Tharawad by name 'Palalam' and for recovery on the strength of title. An alternative prayer was also incorporated to set aside the document. 2. The plaintiffs are some of the members of 'Sara Sub Tharawad'. The other Sub Tharawad is 'Pakri' and the first defendant is the member of that Sub Tharawad. It is the case of plaintiffs that 'Palalam Tharawad' was holding Belliazcha property (Friday property), which stands for 'Tharawad property' and 'Belaricha' property and 'Thingalazcha' property (Thursday property and Monday property) stands for self acquired properties as per the custom prevailed in Amini Island in Lakshadweep. 3. Ext.A9 Land Register was produced to show that 'Palalam Tharawad' obtained the plaint schedule property as Belliazcha property. While so, in the year 1932, Ext.A2 application was submitted before the Monegar, an authority RSA.No.1212 OF 2006(P) 8 constituted under the Civil Court Regulation, 1912, and the Monegar, in turn, authorized Muktessor to submit a report regarding the application. 4. Admittedly, the application was submitted with respect to the properties held by Palalam Tharawad pertaining to all 'Belliazcha, Belaricha and Thingalazhcha properties' by one Sara, the eldest member of a sub tharawad - Sara tharawad. 5. Ext.A3 report was submitted by the Muktessor in 1934 referring to and in answer to Ext.A2 application of the year 1932. It has resulted in Ext.A4 order passed by Monegar by which Ext.A3 report submitted by Muktessor was accepted. It is thereafter in the year 1946 Ext.A5 document was executed between the members of Pakris tharawad, ie. the first defendant and his mother. By virtue of 1946 document, Ext.A5, they themselves agreed to declare their Belliazcha property as a Belaricha property by which the tharawad property converted into self acquired property by a declaration. This was done by a registered document, Ext.A5 of the year 1946. The said document was not challenged by any of the members of the family of Pakri or the family of Sara within the time available. RSA.No.1212 OF 2006(P) 9 6. In furtherance of the abovesaid document Ext.A5, the first defendant had executed Ext.A6 gift deed in the year 1967, Ext.A7 gift deed in the year 1981, Ext.A8 gift deed in the year 1983 and Ext.A14 gift deed in the year 1980 in respect of portions of the plaint schedule property to his children. According to plaintiffs these documents of gifts were executed by the first defendant with respect to the property held by 'Palalam Tharawad'. Only a right of maintenance alone can be exercised over the property and as such the alienation made under Exts.A6, A7, A8 & A14 are invalid. According to plaintiffs, on the death of the first defendant, the sole member of Pakri Sub Tharawad, the entire property held by that sub tharawad would revert back to the other sub tharawad under Palalam tharawad by the operation of custom prevailed in Amini Island. Reliance was placed before this Court right from the decision rendered by Justice Janaki Amma in **Buhari Koya and other v. Kasimkoya Haji and others [1979 (1) ILR Kerala 730]** and submitted that there cannot be any alienation over the tharawad property as it was actually intended for maintenance alone and unless there is a partition by all members of the tharawad, the alienation would stand as invalid. The nature of Friday property and Thursday RSA.No.1212 OF 2006(P) 10 property also discussed in that decision in relation to the custom prevailed in Amini Island. It was accepted and followed in several other decisions including a Full Bench decision of this Court in **Kunhipappada Beefathummabi v. Kunhipappada Kunhikoya [2006 (2) KLT 560].** It was then again followed by Single Benches of this Court in **Palliyat Mariyomma and others v. Palliyat Kidave and others [AIR 2005 Kerala 170], Neelathupura Shaikoya and others v. Monthrappallipadippura Attakoya (died) by LRs [AIR 2003 Kerala 344]** and **Asyabi v. Safiyabi [2012 (1) KLT SN 89 (C.No.97)].** 7. The present suit was filed in the year 1994, admittedly after the lapse of more than 12 years from the respective date of execution of Exts.A6, A7, A8 & A14 documents. All these deed of gifts were executed by the first defendant. At that time, he was the sole member of Sara Tharawad. Regarding the question of limitation a suit for setting aside a registered deed of conveyance should be filed within three years from the date of notice of its execution. There is an alternative relief sought by the plaintiffs to set aside all these deeds of gift, but the suit was filed after the lapse of more than twelve years RSA.No.1212 OF 2006(P) 11 from the respective date of execution of Exts.A6, A7, A8 & A14. As such, the relief of setting aside the document sought by the plaintiffs stood hopelessly barred by limitation. 8. But the learned counsel for the appellants submitted that the prayer for setting aside the document incorporated only as an abundant caution and that the plaintiffs can very well ignore Exts.A6 to A8 & A14 gift deeds as they are void and took support from two decisions rendered by Madras High Court and a Full Bench of this Court in **Gangayya v. Venka'aramayya [AIR 1923 Mad. 230]** and **Mathew v. Ayyappankutty [1962 KLT 61]** wherein the expression “void” used in Section 54 of Provincial Insolvency Act and in Section 64 of Code of Civil Procedure were discussed in detail. Dealing with Section 64 of C.P.C., it was observed by the Madras High Court in **Gangayya's** case that : “...... section is really one intended to benefit the decree-holders so that they may not be impeded by any alienation pending attachment in executing their decrees. That benefit being for the decree-holder, we are inclined to think that he could waive the benefit; and as in the present case, the decreeholders had entered into RSA.No.1212 OF 2006(P) 12 an actual contract with the purchaser they cannot be permitted to go back upon their contract and insist upon the application of S.64 in their favour. To allow them to do so would be clearly to perpetrate a fraud. We see nothing in S.64 that necessitates such a construction as that” 9. The expression “void as against the receiver” occurred in Section 54 of the Provincial Insolvency Act was taken up by the Full Bench of this Court in **Mathews** 's case (supra) and laid down the distinction between the expression “void as against the tharawad” and “voidable by the tharawad”. It is further held that a transaction by Karnavan is not a nullity and is not challengeable by any person other than the members of tharawad and it is “void at the instance of tharawad” and not “void as against the tharawad”. It was concluded in paragraph 17 that the alienation would only voidable at the instance of tharawad. A distinction was drawn in respect of an alienation made not followed by possession and alienation coupled with transfer of possession. Paragraphs 71 and 72 of the above said judgment are extracted below for reference: “71. From the illustrative cases cited above,it is evident that if the alienation RSA.No.1212 OF 2006(P) 13 did not pass the possession of the property, which continued to be with the tarwad itself, there is no need to institute a suit to set aside the alienation. The tarwad can resist any attempt of the alienee to get the property and urge the invalidity of the alienation in the defence to his action. A prior repudiation is not necessary to entitle it to urge such a defence. The following observations of Pollock and Mulla in their commentary on the Indian Contract Act, 8[th] Edn.Page 385 seem apposite in this connection: “The will to rescind may also be declared by way of defence to an action brought on the contract, a declaration to that effect before action brought is not necessary as a matter of law, though generally speaking, the prudent course is to repudiate as soon as possible” 72. The next case is of an alienation coupled with transfer of possession. The tarwad having lost the property has to regain the same by a suit for its recovery. Every suit has its own period of limitation prescribed by statute. No court will entertain a suit brought beyond the time allowed by the law of limitation. Section 28 of the Limitation Act goes further and says that the right to the property shall be extinguished at the expiry of the period RSA.No.1212 OF 2006(P) 14 prescribed for a suit for its recovery; and as a consequence courts have held that the title will then vest in the alienee in possession. It then follows, as a corollary that, if possession passed with the alienation, the tarwad has necessarily to institute a suit for recovery of the property within time allowed by law.” ## 10. It was also concluded that if possession accompanied the alienation and continued unchallenged with the alienee for a period of 12 years, he gets an indefeasible right to the property. The necessary corollary is that Ext.A6 to A8 and A14 gift deeds could only be voidable at the instance of tharawad or any member thereof and not void as against the tharawad, since possession was also diverted under the above said gift deeds to the respective donees. Exts.A6 to A8 & A14 gift deeds were executed more than 12 years prior to the institution of the present suit and hence a suit for setting aside the document is hopelessly barred by limitation. Further, in the instant case, the documents Exts.A6 to A8 and A14 is not void at its very inception, it cannot be avoided or ignored unless there is a suit either for setting aside the same or to declare as not binding on the plaintiff or the RSA.No.1212 OF 2006(P) 15 plaint schedule properties and the suit must be filed within a period of 12 years. The present suit stood as hopelessly barred by limitation. An attempt was made by the plaintiffs to show that the provisions contained in the Limitation Act, 1963 has no application in the instant case as the gift deeds were executed based on the authority of a document, Ext.A5 of the year 1946. All the deeds of alienations, gift deeds were executed from the year 1967 to 1983. As such they are governed by the Limitation Act, 1963. 11. A strange argument was also advanced by the plaintiffs that the question of limitation would arise only when the defendants claim title by adverse possession and limitation. But it is upon the plaintiffs to show and establish that the relief claimed by them in the suit is not barred by limitation or barred by any other provisions of law. The said requirement cannot be shifted to the shoulder of the opposite party, the defendant. 12. Yet another ground is also available to non suit the plaintiffs. Ext.A3 report prepared by Muktessor based on the authority given by the Monegar by virtue of the Civil Court Regulation, 1912 (the first regulation) was accepted by the competent authority the Monegar under RSA.No.1212 OF 2006(P) 16 Ext.A4 order. It is admitted by both the parties that the family is governed by marumakkathayam law modified by custom. Based on Ext.A2 application of the year 1932, the Muktessor had prepared Ext.A3 report in the year 1934 which has resulted in Ext.A4 order passed by the Monegar, the competent authority under the Civil Court Regulation 1912 (first regulation), by which a complete partition of the properties of the Palalam family between two sub tharwads were recognized and accepted. It was signed by four persons, two from the family of Pakri and two from the family of Sara representing all the members of the said family and two sub tharwards respectively - Sara and Pakri. It was not challenged by any member of the family and no dispute was raised with respect to the division and partition. On the other hand, it was accepted and acted upon by all members of the family. As per the custom prevailed, the Monegar had accepted Ext.A3 report and passed Ext.A4 order by which a complete partition was effected dividing the properties into two sub tharwards. Till now no challenge was raised against Ext.A4 order accepting the partition and the division under Ext.A3 and no such case was also advanced. The Full Bench of this Court in **Mathew'** s case ( _supra)_ had recognized the validity RSA.No.1212 OF 2006(P) 17 of a partition entered into by all the members of the family. Ext. A4, in fact, was accepted by all the members of the family by giving separation of right, liabilities, obligation and asset of the original family, Palalam family. When there is a complete partition dividing the property into two sub tharawads, there is a separation of mutual rights and obligations and each of the sub tharawad who obtained the property on complete partition would acquire the character of an independent tharawad in so far as division of property is concerned. Alienation made by any member of sub tharawad regarding its property after the complete division and separation by a partition can be challenged only by the members of that sub tharawad and not by the members of other sub tharawad when there is a complete partition and division of properties recognizing each sub tharawad as an independent one in so far as the properties which were partitioned. At the time of execution of all these gift deeds, admittedly, there was only one member in the Pakri tharwad, the executant of all these gift deeds and nobody else was there as a member of that sub tharawad to challenge the said documents. RSA.No.1212 OF 2006(P) 18 13. Yet another interesting aspect was also brought to the notice of this Court that the sub tharawad of plaintiff, Sara by themselves entered into Ext.B1 partition with respect to the property they had obtained by virtue of Exts.A3 & A4. Ext.B1 partition was entered into by them in exclusion of any of the members of Pakri tharawad. This would show that they had acted upon the partition already effected under Exts.A3 and A4. Even by the act of plaintiffs by entering into Ext.B1 partition, they have forfeited the right of partition or reversion by estoppel by conduct. 14. On coming into Ext.A5, it was executed by the first defendant and his mother, the only two members who were alive with respect to the Pakri family. It was not challenged by any of the members in the Pakri family by which the family property was agreed to be converted into Thursday property by a declaration. All the members of the tharawad of Pakri joined as party to the said declaration by way of a registered document, Ext.A5. It was not brought under challenge either by any member of Pakri family or Sara family. It was executed and registered in accordance with the law and acted upon by the first defendant by RSA.No.1212 OF 2006(P) 19 subsequent execution of Exts.A6 to A8 & A14 gift deeds of the year commencing from 1967 to 1983. The present suit was filed after the lapse of more than 12 years. Hence the concurrent findings rendered by both the courts below deserves no interference. No other substantial question of law involved in the appeal. Appeal fails and dismissed, but without costs. **Sd/-** **P.SOMARAJAN** DMR/- **JUDGE**