RFA No. 47 of 2007 (Against the Judgment in O.S. No. 254/1994, I Addl. Sub Court, Ernakulam)

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT** **THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN** **MONDAY, THE 15TH DAY OF JUNE 2020 / 25TH JYAISHTA, 1942** **RFA.No.47 OF 2007** **AGAINST THE JUDGMENT IN OS 254/1994 OF I ADDITIONAL SUB COURT, ERNAKULAM** ## **APPELLANTS/PLAINTIFFS 2,4 TO 8 IN O.S.:** - **1 RAMAVARMA KOCHANIYAN THAMPURAN S/O.SARASIJA THAMPURAN, RESIDING AT “MAMATHA”, PALLYIL LANE, KOCHI-16.** - **2 KERALA VARMA KOCHUNNY THAMBURAN S/O.SARASIJA THAMPURAN, CHIEF EXECUTIVE, AIR CONTROL AND CHEMICAL ENGG.CO., PANCHAVADI, AHMADABAD, NOW RESIDING AT 2CLE IMPERIAL 122, GREENWAY'S ROAD, R.A.PURAM, CHENNAI-28.** - **3 DR.LEELAVATHY THAMBURAN, D/O.SARASIJA THAMPURAN, PALACE ROAD, CHALAKKUDY, NOW RESIDING AT KOVILET, PALACE NO.41-B, KOTTAKKAKAM, TRIPUNITHURA.** - **4 ASALATHA THAMBURAN, D/O.SARASIJA THAMPURAN, “PRATHIBHA”, ANAND NAGAR, KESAVADASAPURAM, THIRUVANANTHAPURAM.** - **5 PREMALATHA THAMBURAN, D/O.SARASIJA THAMPURAN, PALACE NO.41A, TRIPUNITHURA, NOW RESIDING AT “B-12, ANYONYAM FLAT”, KOTTAKKAKAM, TRIPUNITHURA.** - **6 MANJU MADHAVAN D/O.PREMALATHA THAMBURAN, PALACE NO.41-A, NOW RESIDING AT “B-2, ANYONYAM FLAT”, KOTTAKKAKAM, TRIPUNITHURA.** **SRI.V.SANKARA RAJA SRI.M.A.SUNILKUMAR** ## **RESPONDENTS/DEFENDANTS 1 TO 14 IN O.S.:** - **1 THE PALACE ADMINISTRATION BOARD, TRIPUNITHURA REPRESENTED BY PRESIDENT, KALIKKOTTA PALACE, TRIPUNITHURA P.O.** - **2 RAMA VARMA KUNJAPPAN THAMPURAN S/O.KAVU THAMPURAN, ASOKAMANDIRAM, PALACE NO.41-B,** RFA.No.47 OF 2007 2 **TRIPUNITHURA, NOW RESIDING AT “POORNASREE”, THAMARAMKULANGARA ROAD, TRIPUNITHURA.P.O.** - **3 GIRIJA THAMPURAN, D/O.KAVU THAMPURAN ANAMIKA, ELAMANA JETTY ROAD, TRIPUNITHURA P.O.** - **4 SMITHA VARMA, D/O.GIRIJA VARMA ANAMIKA, ELAMANA JETTY ROAD, TRIPUNITHURA.P.O.** - **5 SASIDHARAN THAMPURAN, S/O.KAVU THAMPURAN PALACE NO.41-B, KOTTAKKAKAM, TRIPUNITHURA.P.O. (EXPIRED)** - **6 PRABHAVATHY THAMPURAN, D/O.KAVU THAMPURAN, PALACE NO.41-B,, KOTTAKKAKAM, TRIPUNITHURA.P.O** - **7 VINAY THAMPURAN, S/O.PRABHAVATHY THAMPURAN, PALACE NO.41-B, KOTTAKKAKAM, TRIPUNITHURA.P.O** - **8 LATHA THAMPURAN, S/O.KAVU THAMPURAN, RESIDING AT KERALA NIVAS, WARRIAM ROAD, ERNAKULAM, KOCHI-16.** - **9 JAYASREE THAMPURAN, D/O.KAVU THAMPURAN PALACE NO.41-B, TRIPUNITHURA.P.O** - **10 GEETHA THAMPURAN, D/O.KAVU THAMPURAN PALACCE NO.41-B, TRIPUNITHURA.P.O.** **11 NANDAKUMARAN THAMPURAN S/O.LEELAVATHY THAMPURAN, PALACE ROAD, CHALAKUDY, NOW RESIDING AT “KOVILET”, PALACE NO.41-B, TRIPUNITHURA.P.O.** - **12 SARASIJA THAMPURAN, D/O.LEELAVATHY THAMPURAN, PALACE ROAD, CHALAKUDY, NOW RESIDING AT “KOVILET”, PALACE NO.41-B, TRIPUNITHURA.P.O.** - **13 PRAVEEN, S/O.ASALATHA THAMPURAN RESIDING AT “PRATHIBHA”, ANAND NAGAR, KESAVADASAPURAM, THIRUVANANTHAPURAM.** - **14 SUNEETHA VARMA, D/O.SUMATHY THAMPURAN ASIRWAD, TRIPUNITHURA, NOW RESIDING AT A5 (LOWER) MILLENIUM APARTMENT, NEAR RAJIV GANDHI CENTRE FOR BIO-TECHNOLOGY, JAGATHY, THIRUVANANTHAPURAM.** RFA.No.47 OF 2007 3 > ADDL. **15 DR.N.K.PADMA, AGED 58, W/O.LATE 5TH RESPONDENT, SASIDHARAN THAMPURAN, RESIDING AT PALACE NO.41-B, FORT, TRIPUNITHURA, KANAYANNUR TALUK. 16 N.K.GOKUL VARMA, AGED 28, S/O.LATE 5TH RESPONDENT, SASIDHARAN THAMPURAN, RESIDING AT PALACE NO.41-B, TRIPUNITHURA.** **[Legal representatives of the deceased 5[th] respondent are impleaded as additional R15 and R16 vide order dated 26.05.2015 in I.A.No.1545/2014.]** **R1 BY ADVS. SRI.T.K.RAJESHKUMAR SRI.JOSEPH FRANKLIN SMT.NIMMI FRANKLIN R3, R5-R10 SRI.A.BALAGOPALAN SRI.A.RAJAGOPALAN SRI.M.M.MATHEW MANNOOR ETTONNIL** **THIS REGULAR FIRST APPEAL HAVING BEEN FINALLY HEARD ON 15.06.2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** RFA.No.47 OF 2007 4 ## **JUDGMENT** The appellants, who are the plaintiffs in O.S.No.254/1994 on the files of the I Additional Sub Court, Ernakulam, are stated to be the members of Palace No.41 A of the Cochin Royal Family and sought reliefs in the plaint relating to the partition of the properties of the said family, which consists of the Valiamma Thamburan Kovilakam Estate (VTK Estate) and Palace funds. 2. According to the appellants, they were allotted 54.5 cents of land at Trippunithura, along with another 30 cents of land at Thrissur under a Partition Deed, a copy of which has been placed on record and marked as Ext.A3, but alleged that there were mistakes in the said Deed, thus requiring its rectification; further accusing that the 30 cents of land at Thrissur was not available even at the time of execution of the Deed, since it had been acquired by the Government by then and thus prayed in the plaint as under: “1. declaring that the plaintiffs' group No.4 represented by 1[st] plaintiff is entitled to get a rectification deed executed by the 1[st] defendant Palace Administration Board rectifying the discrepancies in the measurements of the properties set apart to plaintiffs' group No.4 as stated in the letter of the 1[st] defendant dated 25.3.1991 and also to get allotment of 30 cents of land in species as their due share in the family partition RFA.No.47 OF 2007 5 under deed No.4029 of 1980; ii) consequentially directing the 1[st] defendant by a permanent order of mandatory injunction to execute a rectification deed rectifying the discrepancies in the measurements of the properties set apart to plaintiffs' group No.4 in the family partition under deed 4029 of 1980 and also to set apart either the A schedule or B schedule properties shown below as the rightful share of the plaintiffs' group in substitution of the acquired thirty cents of land at Trichur; iii) directing the 1[st] defendant and the other contesting defendants to pay the costs of the plaintiffs incurred in the suit; iv) granting any other reliefs that may be sought for by the plaintiffs and which this Hon'ble court deems fit to grant in the circumstances of the case.” 3. As per the appellants, the 1[st] respondent - Palace Administration Board is a statutory body entrusted with the task of securing equitable partition of the Estate and Funds of the erstwhile royal family and that they had, therefore, raised objections with them, as had been permitted by the Hon'ble Supreme Court, with respect to the allotment of lands given to them, but that the same were not considered before the registration of Ext.A3 Partition Deed, which they assert to be wholly inequitable. 4. They allege that the Trial Court did not consider their claims in the suit in its proper perspective and has thus proceeded to dismiss the suit, against which they have been RFA.No.47 OF 2007 6 constrained to file the afore appeal. 5. I have heard Sri.V.Sankara Raja, learned counsel assisted by Smt.Vrinda Varma, appearing for the appellants; Sri.T.K.Rajesh Kumar, learned standing counsel for the 1[st] respondent - Board and Sri.A.Balagopalan, learned counsel appearing for respondents 3, 5 to 10. 6. Before I analyse the pleadings and submissions on behalf of the appellants, it is necessary that a brief look through the history of the partition of the properties of the erstwhile Cochin Royal Family is first done. 7. As said above, the properties of the erstwhile Cochin Royal Family consists of VTK Estate and Palace Funds and the first respondent - Palace Administration Board was statutorily formed with the objective of management and administration of the said properties. The Board came into being under the Valiamma Thamburan Kovilakam Estate and Palace Fund Partition) Act, 1961 (for short, 'the Act') and power was given to them thereunder for partition of the properties; which Act was, however, challenged by some of the sharers before the Hon'ble Supreme Court. The Hon'ble Court did not set aside the statute but directed the Board to effect a RFA.No.47 OF 2007 7 fair partition stipulating certain broad guidelines, which led to a draft Partition Deed being prepared by them showing the details of the properties set apart to each member/branch. The sharers/members were also given the liberty of filing objections, which then were directed by the Hon'ble Court to be considered by the Board. This process finally culminated in Ext.A3 Partition Deed. 8. The appellants, who claim to be members of Group No.4 in the partition, assert that there were certain mistakes in the measurement of the lands allotted to them at Tripunithura and further that 30 cents allotted to them at Thrissur, which is described as schedule No.7 in Ext.A3, was not available at that time, since the Government had taken steps to acquire it as early as in the year 1975. According to them, therefore, they approached the Board through Ext.A1 objections, as per the liberty granted to them by the Hon'ble Supreme Court, which led to Ext.A2 proceedings to be issued by them, wherein, these objections were considered. They say that the question of rectification of Ext.A3 Partition Deed was virtually acceded to by the Board, which is also evident from their subsequent letter, a copy of which is on record as Ext.A7; but that it rejected their objections regarding the allotment of RFA.No.47 OF 2007 8 30 cents of land at Thrissur to their share. They say that the Board, thereafter, went on to register Ext.A3 Partition Deed sustaining the allotment objected to by them, thus forcing them to file O.S.No.328/1981 before the Sub Court, Ernakulam, wherein, they primarily sought for getting the extents allotted to them at Thrissur substituted by other extents that are available with the Board at Tripunithura or at Chalakudy. They say that while the said suit was pending, the Board expressed their willingness to compromise the matter and that believing their words, they withdrew the suit as being not pressed but that the Board, thereafter, went back on their words, thus leaving them with no other option than to file the present suit for partition. 9. Sri.V.Sankara Raja, learned counsel appearing for the appellants commenced his submissions in this appeal by saying that the prayer made in the plaint with respect to the rectification of the partition deed is no longer relevant since, during the years past, these issues had been fully taken care of. He submitted that as at present, he is only addressing this Court on the issue of the substitution of 30 cents of land, covered by schedule 7 of Ext.A3 Partition Deed, with other properties in the possession of the first respondent - Palace RFA.No.47 OF 2007 9 Administration Board at Chalakudy and at Tripunithura. He shows me that the properties which the appellants claim under such substitution have been described in the plaint A and B schedules respectively. 10. The specific submissions of Sri.V.Sankara Raja is that the Board has erred egregiously in allotting lands at Thrissur to his clients knowing fully well that those were not available for in-specie partition. According to him, the direction of the Hon'ble Supreme Court is very clear that every member of the family ought to receive lands in such specie under the Partition Deed but that, through Ext.A3, the Board has allotted 30 cents of land to his clients, out of which, an extent of 16.5 cents had already been acquired and taken possession of by the Government. He says that, therefore, his clients are fully justified in seeking the said 30 cents be substituted by plaint A or B schedule properties, which are situated at Chalakudy and Tripunithura respectively. 11. Sri.V.Sankara Raja closed his submissions by saying that his clients have approached this Court in equity and that this has been earlier acknowledged by this Court in Ext.A8 order, which was delivered by another learned Judge of this RFA.No.47 OF 2007 10 Court in CRP No.2368/1999, holding that they are entitled to seek such substitution as being part of partition of the properties. 12. In reply to the afore contentions of Sri.V.Sankara Raja, the learned standing counsel for the Palace Administration Board, Sri.Rajesh Kumar, asserted that the suit in question is barred by limitation, since it has been filed 14 years after Ext.A3 partition deed had been registered. He further contends that the suit is not maintainable since the appellants had fully accepted the said Deed, including the allotment of 30 cents to them at Thrissur, which is inescapable from the testimony of PW1, namely the 2[nd] appellant, wherein he expressly concedes, in pages 5, 6, 9 and 10 thereof, that the appellants have sold at least three cents out of the said 30 cents of land, even before the suit had been filed. He alleges that the suit is, therefore, also vitiated on account of suppression of material facts, adding to it by saying that, in fact, concededly as also found by the Trial Court, the 3[rd] plaintiff and her daughter - defendant No.14 - had accepted the amounts of compensation offered by the Acquiring Authority under the Land Acquisition Act with respect to 16.5 cents out of the 30 cents and had executed an indemnity bond RFA.No.47 OF 2007 11 in favour of the said Authority. The learned counsel submits that none of these aspects have been stated in the plaint and that this has come out only during evidence of PW1 and consequently, that prays this Court may not find any equity in favour of the appellants because they had admittedly dealt with the property and had accepted the compensation, particularly since they concede that they filed the suit as a group represented by the first appellant. He reiteratingly submitted that when some of the sharers had accepted the compensation amounts and all of them had dealt with the property, even before the suit was filed, the Trial Court had no other option but to dismiss the suit. 13. Sri.A.Balagopalan, learned counsel appearing for the other respondents, adopted the submissions of Sri.Rajesh Kumar as afore, supplementing it by saying that the attempt of the appellants is to disturb the allotments in Ext.A3 partition deed, which has been accepted by all the other members of the family, who are more than 790 in total. He submitted that it is not merely the appellants' group, namely group No.4, who had been allotted land which had been acquired by the Government but that, as is clear from Ext.A5, Group Nos.5, 28, 45 and 46 also had such properties allotted to them and that RFA.No.47 OF 2007 12 all of them accepted the compensation amounts as sanctioned by the Requisitioning Authority. He also, therefore, prayed that this appeal be dismissed. 14. When I consider the afore narration of facts and test them against the submissions made before me, it is indubitable that as of now the appellants only want reallotment of plaint A or B schedule properties in lieu of 30 cents of land allotted to them under schedule 7 of Ext.A3 Partition Deed. Pertinently, however, the property at Thrissur allotted to the plaintiffs under Ext.A3 has not been described in any of the schedules to the plaint and Sri.Rajesh Kumar, learned counsel for the first respondent - Board has objected to this by saying that this is in contravention of Order VII Rule 3 of the Code of Civil Procedure. 15. Nevertheless the above, the singular issue before me is whether the appellants/plaintiffs can now seek reallotment of the property allotted to them even if the afore objections of Sri.Rajesh Kumar is, for the sake of argument, not accepted by this Court. I am afraid that even then there are certain formidable hurdles before the appellants because, as has been noticed earlier, PW1, who is the second appellant, RFA.No.47 OF 2007 13 unequivocally concedes that 3 cents out of the 30 cents have already been sold by the appellants and that at least two among the group, namely 3[rd] plaintiff and defendant No.14, had accepted the land acquisition compensation. This, in my firm view, would disentitle the appellants from seeking reallotment of the property allotted to them under the partition deed because the prayer in the plaint is that the entire 30 cents be substituted by either plaint A or B schedule properties at Chalakudy or Tripunithura respectively. However, by the testimony of PW1, it is evident that the appellants cannot return the 3 cents which they already sold and this is crucial because they have also not chosen to disclose such sale in the plaint or to come out with the amount that were obtained by them through such sale. This is extremely vital in this case because a partition hinges on equity and hence, when this Court is called upon to find out whether the appellants/plaintiffs were put to any prejudice on account of the allotment of 30 cents in their favour, it has also to be assessed from the touchstone of the amounts received by them by the sale of 3 cents of property, which they admit, as against the compensation received by the other groups, as are mentioned in Ext.A5 letter. When all these information is kept RFA.No.47 OF 2007 14 away from the Court and when admissions are made by PW1 to the above effect, I am certain that the prayer now made by the appellants and asserted by Sri.V.Sankara Raja on their behalf, would become incapable of being granted by this Court. 16. That apart, it is also pertinent that Ext.A3 partition deed was executed in the year 1980, after the objections of the appellants were voiced in Ext.A1 and were rejected by the Palace Administration Board through Ext.A2. The appellants had rightly challenged Ext.A3 by filing a suit, numbered as O.S.No.328/1981, wherein prayers analogous to the prayers made in the present suit were sought for, but the said suit was thereafter withdrawn. Normally, therefore, a suspicion would have arisen as to whether the judgment of the said suit would operate as res judicata in this case also. But, I notice that in Ext.A8 order, a learned Judge of this Court has found that it would not operate so, since the claim of the appellants for substitution of the properties already allotted to them can only be seen to be a furtherance of their request for partition and therefore, that going by the judgment of this Court in **Bavoo v. Xavier** [1978 KLT 174], the judgment in the earlier suit would not operate as a res judicata as far as the property allotted to them in Thrissur is concerned. Even when I am RFA.No.47 OF 2007 15 bound by these views in Ext.A8 order, it having been not challenged by any party, the issue before me is not merely whether the plaintiffs are entitled in law to a substitution as prayed for by them but whether they can seek it when they have actually sold certain extents from the property allotted to them and when at least couple of them also have accepted the land acquisition compensation. 17. I, therefore, asked Sri.V.Sankara Raja, learned counsel appearing for the appellants, pointedly as to what he has to say about this, to which he replied saying that his clients are willing to return the money for the 3 cents sold by them and further that the compensation accepted by the third plaintiff and defendant No.14 will not affect the other appellants because the said amounts could have been disbursed by the Palace Administration Board to individual sharers, but only to the Group. He says that in fact, his clients had, therefore, filed an application before the Trial Court to delete the 3[rd] plaintiff from the party array, but that the said application was also dismissed through the impugned judgment. 18. The submissions of Sri.V.Sankara Raja are, in my RFA.No.47 OF 2007 16 opinion, not capable of being countenanced by this Court because what the appellants/plaintiffs sought for in the plaint is for the substitution of 30 cents of land allotted to them in schedule 7 of Ext.A3 Partition Deed with either plaint A schedule or B schedule properties at Chalakudy and Thrissur respectively. Obviously, therefore, when PW1 concedes that at least 3 cents out of the property had been sold (the actual extent of such sale not having been established in any manner) and that at least two among them, namely 3[rd] plaintiff and her daughter, namely defendant No.14, had accepted the land acquisition compensation for the balance extents, it becomes apodictic that the appellants had accepted the allotment and dealt with the property there under as if it was their own. This is luculent because they sold at least 3 cents of property from the allotment made to them and this could have been done by them only if they had accepted the said allotment. 19. In the afore circumstances, this Court cannot find favour with the submissions now made by Sri.V.Sankara Raja that his clients are willing to return 3 cents of land sold by them - particularly because nowhere is it established that only such extent had been sold and not more - and that the acceptance of the compensation award by the third plaintiff RFA.No.47 OF 2007 17 and 14[th] defendant would not prejudice the rights of the other appellants. 20. As rightly argued by Sri.Rajesh Kumar, the plaint starts by saying that it has been filed by the appellants as a group and that they are all represented, in common interest, by the first plaintiff. Ineluctably, therefore, when few among them have accepted the compensation award, it certainly goes to show that the group loses competence to sue based on the causes of action pleaded in the plaint and this is exacerbated on account of the fact that at least 3 cents of land had been sold by them, even before the filing of this suit. Resultantly, this appeal can only fail and I, therefore, dismiss it; however, without making any order as to costs, taking note of the peculiar circumstances involved herein. **Sd/- DEVAN RAMACHANDRAN** **JUDGE** Stu