RFA No. 805 of 2010; Cross Objection No. 22 of 2014, In the High Court of Kerala at Ernakulam

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE SATHISH NINAN** **MONDAY, THE 31[ST] DAY OF JULY 2023 / 9TH SRAVANA, 1945** ## **RFA NO. 805 OF 2010** **AGAINST THE JUDGMENT AND DECREE DT. 31.03.2010 IN OS 5/2005 OF SUB COURT,** ## **TIRUR** ## **-----** ## **APPELLANTS IN RFA – DEFENDANTS 29 TO 32 IN SUIT:** 1 USHA ANTHARJANAM, W/O. LATE NARAYANAN EMBRANTHIRI, RESIDING AT PUTHIYILLAM, KOLAKKATCHALI.P.O, CHELEMBRA, TIRURANGADI TALUK. 2 SANKAR PRASAD, S/O LATE NARAYANAN EMBRANTHIRI, RESIDING AT PUTHIYILLAM, KOLAKKATCHALI.P.O, CHELEMBRA, TIRURANGADI TALUK. 3 ASWATHI ANTHARJANAM, W/O.K.S. GIRISAN POTTY, KADAKACHI, NEELAMANA, VELLANKALLUR, IRINJALAKUDA, THRISSUR. 4 LATHA ANTHARJANAM.P, D/O. NARAYANAN EMBRANTHIRI, PUTHIYILLAM, KOLAKKATCHALI.P.O., CHELEMBRA, TIRURANGADI TALUK. BY ADVS. SRI.P.B.KRISHNAN SMT.GEETHA P.MENON SRI.P.M.NEELAKANDAN SRI.P.B.SUBRAMANYAN ## **RESPONDENTS IN RFA – PLAINTIFF AND DEFENDANTS 2 TO 28 IN SUIT:** 1 THALAKULAM SANKARAN EMBRANTHIRI, S/O. NARAYANAN EMBRANTHIRI, KOLAKKAT CHALI.P.O., CHELEMBRA VIA, TIRURANGADI TALUK - 673 634. 2 DEVAKI ANTHARJANAM, W/O. C. SANKARAN EMBRANTHIRI, VRINDAVAN, NEAR MANNUR SIVA TEMPLE, MANNUR.P.O, KADALUNDI, KOZHIKODE TALUK-673 328. 3 GOURIKUTTY ANTHARAJANAM, W/O. SUBRAMANIAN NAMBOOTHIRI, ANANDA BHAVAN, CHELEMBRA.P.O., TIRURANGADI TALUK - 673 634. **RFA NO. 805 OF 2010 -2-** - 4 LAKSHMIKUTTY ANTHARJANAM, W/O. A. MADAHVAN EMBRANTHIRI, ATHRASERY THEKKE MADAM, ATHRASSERY.P.O., PONMUNDAM (VIA), TIRUR TALUK - 676 106. - 5 O.M. VASANTHA, W/O. SANKARAN EMBRANTHIRI, KALLAMPALLY ILLAM, KOONAMOOCHI.P.O., CHUNDAL (VIA), THRISSUR DISTRICT-680509. - 6 JAYA NARAYANAN, S/O. SANKARAN EMBRANTHIRI, MADATHIL HOUSE, PUTHUSSERY, CHERUTHURUTHY, THRISSUR - 679 531. - 7 NARAYANAN EMBRANTHIRI, S/O. DEVAKI ANTHARJANAM,MADATHIL HOUSE, PUTHUSSERY, CHERUTHURUTHY, THRISSUR - 679 531. - 8 N. DROUPATHI ANTHARJANAM, NEELAMANA, MOOCHIKKAL, CLARI.P.O., EDARIKKODE (VIA), TIRUR TALUK - 676 501. - 9 C. DEVAKI ANTHARJANAM, W/O. NARAYANAN NAMBOOTHIRI, CHALAKKUNNATH ILLAM, KODAKKAD, THRIKKARIPURE, KARIVALLOOR (VIA), KASARAGOD DISTRICT-671121. - 10 P. SARASWATHI ANTHARJANAM, W/O. P. MADHU NAMBOODIRI, GANAPATHI KSHETHRAM, PUTHIYA THERU P.O., KANNUR - 670 692. - 11 N. RISHNAN EMBRANTHIRI, S/O. DEVAKI, MADATHIL HOUSE, PALLIPPARAMBA, CHELEMBRA, THIRURANGADI TALUK - 676 634. - 12 SAVITHRI ANTHARJANAM, W/O. N.S.N EMBRANTHIRI, THOTTEKKAT MADAM, PULAPATTA, KARUVAMBRAM, MANJERI - 678 632. - 13 K. NARAYANAN EMBRANTHIRI, S/O. LAKSHMIKUTTY ANTHARJANAM, RESIDING AT POOTHATTIL MADAM, THAIKKALNGODE, MANJERI, MALAPPURAM DISTRICT-676103. - 14 K. SANKARAN EMBRANTHIRI, S/O. LAKSHMIKUTTY ANTHARJANAM, RESIDING AT POOTHATTIL MADAM, THAIKKALNGODE, MANJERI, MALAPPURAM DISTRICT-676103. **RFA NO. 805 OF 2010 -3-** - 15 SUBHADRA ANTHARJANAM, W/O. SUBRAMANIAN EMBRANTHIRI, NEELAMANNA, RAMACHAND VIHAR, P.O. PAINKANNUR, VALANCHERRY - 679 531. - 16 K. GOVINDAN EMBRANTHIRI, S/O. LAKSHMIKUTTY ANTHARJANAM, RESIDING AT POOTHATTIL MADAM, TRIKKALANGODE, MANJERI, MALAPPURAM - 676 127. - 17 K. DEVAKI ANTHARJANAM, D/O. LAKSHMIKUTTY ANTHARJANAM, RESIDING AT POOTHATTIL MADAM, TRIKKALANGODE, MANJERI, MALAPPURAM - 676 127. - 18 K. EASWARAN EMBRANTHIRI, S/O. LAKSHMIKUTTY ANTHARJANAM, RESIDING AT POOTHATTIL MADAM, TRIKKALANGODE, MANJERI, MALAPPURAM - 676 127. - 19 SAVITHRI ANTHARJANAM, W/O. KRISHNAN EMBRANTHIRI, EDNEER, CHENKALA, KASARAGOD DISTRICT - 671 541. - 20 K. VASUDEVAN EMBRANTHIRI, S/O. LAKSHMIKUTTY, POOTHATTTIL MADAM, THRIKALANGODE, MANJERI - 676 127. - 21 N. GOVINDAN EMBRANTHIRI, S/O. PARVATHY ANTHARJANAM, 'KEERTHI', MANNUR, KADALUNDI, KOZHIKODE - 673 302. - 22 N.SANKARAN EMBRANTHIRI, S/O. PARVATHY ANTHARJANAM, 'KEERTHI', MANNUR, KADALUNDI, KOZHIKODE - 673 302. - 23 N.M.SAVITHRI ANTHARJANAM, W/O.CHANDRA MOHANAN EMBRANTHIRI, IYYAKKATT ILLAM, UDINNURE P.O., KASARAGOD DISTRICT-671349. - 24 N.M.GIRIJA ANTHARJANAM, W/O.VISHNU EMBRANTHIRI, PAYYANNORE, KANNUR, DISTRICT-670307. - 25 SAVITHRI ANTHARJANAM, W/O.SAMBHU EMBRANTHIRI, MOKSHATH HOUSE, PALAPPATTA, NEAR KONGAD, PALAKKAD-678 631. - 26 GIRIJA ANTHARJANAM, D/O.SAVITHRI ANTHARJANAM, 'SREENILAYAM', AZHIYANNUR, KADAMBAZHIPURAM, PALAKKAD DISTRICT- 682027. **RFA NO. 805 OF 2010 -4-** 27 C.SANKARAN EMBRANTHIRI, S/O.SAVITHRI ANTHARJANAM, 'SREENILAYAM', AZHIYANNUR, KADAMBAZHIPURAM, PALAKKAD DISTRICT- 682027. 28 C.USHA ANTHARJANAM, W/O.RADHAKRISHNAN EMBRANTHIRI, PANAMBATT ILLAM, KOPPAM P.O., PALAKKAD DISTRICT-682027. BY ADVS. SRI.VINOD SINGH CHERIYAN SRI.P.K.SAJEEV SMT.M.SINDHU THANKAM SRI.S.P.SURESH KUMAR SRI.V.SREENATH SRI.ROY THOMAS SRI.R.SUDHISH SMT.M.MANJU SRI.K.R.RAJESHKUMAR SRI.K.P.SUDHEER THIS REGULAR FIRST APPEAL HAVING COME UP FOR ADMISSION ON 31.07.2023, ALONG WITH CO.22/2014, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE SATHISH NINAN** **MONDAY, THE 31[ST] DAY OF JULY 2023 / 9TH SRAVANA, 1945** ## **CO NO. 22 OF 2014 IN** ## **RFA NO.805 of 2010** **-----** ## **AGAINST THE JUDGMENT AND DECREE DT. 31.03.2010 IN OS 5/2005 OF SUB COURT, TIRUR** ## **-----** ## **CROSS OBJECTORS/RESPONDENT NO.24 IN THE ABOVE RFA:** N.M.GIRIJA ANTHARJANAM @ E.N.GIRIJA W/O.VISHNU EMBRANTHIRI, PAYYANNORE, KANNUR DISTRICT. BY ADV E.N.VISHNU NAMBOODIRI ## **RESPONDENTS/APPELLANTS & RESPONDENTS 1 TO 23 & 25 TO 28:** |1|USHA ANTHARJANAM| |---|---| ||PUTHIYILLAM, KOLAKKATHALI P.O., CHELEMBRA, TIRURANGADI TALUK.| |2|SANKAR PRASAD,| ||PUTHIYILLAM, KOLAKKATHALI P.O., CHELEMBRA, TIRURANGADI TALUK.| |3|ASWATHI ANTHARJANAM,| ||KADAKACHI NEELAMANA, VELLANKALLUR, IRINJALAKUDA, THRISSUR.| |4|LATHA ANTHARJANAM.P.,PUTHIYILLAM,| ||KOLAKKATHALI P.O., CHELEMBRA, TIRURANGADI TALUK.| |5|THALAKULAM SANKARAN EMBRANTHIRI,| ||PUTHIYILLAM, KOLAKKATHALI P.O., CHELEMBRA, TIRURANGADI TALUK-| ||673634.| |6|DEVAKI ANTHANJANAM,| ||VRINDAVAN, NEAR MANNUR SIVA TEMPLE, MANNUR P.O., KADALUNDI,| ||KOZHIKODE TALUK.| |7|GOURIKUTTY ANTHARJANAM,| ||ANANDA BHAVAN, CHELEMBRA P.O., TIRURANGADI TALUK-673634.| **CO NO. 22 OF 2014 -2-** - 8 LAKSHMIKUTTY ANTHARJANAM, ATHRASSERY THEKKE MADAM, ANTHRASSERY P.O., PONMUDAM (VIA), TIRUR TALUK. - 9 O.M.VASANTHA, KALLAMPALLY ILLAM, KOONAMOOCHI P.O., CHUNDAL (VIA), THRISSUR DISTRICT. - 10 JAYA NARAYANAN, MADATHIL HOUSE, PUTHUSSERY, CHERUTHURITHY, THRISSUR DISTRICT. - 11 NARAYANAN EMBRANTHIRI, MADATHIL HOUSE, PUTHUSSERY, CHERUTHURITHY, THRISSUR DISTRICT. - 12 N.DROUPATHI ANTHARJANAM, NEELAMANA, MOOCHIKKAL, CLARI P.O., EDARIKKODE (VIA), TIRUR TALUK. - 13 C.DEVAKI ANTHARJANAM, CHALAKUNNATH HOUSE, KODAKKAD, THRIKKARIPURE, KARIVALLOOR (VIA), KASARAGOD DISTRICT. - 14 P.SARASWATHI ANTHARJANAM, GANAPATHI KSHETHRAM, PUTHIYA THERU P.O., KANNUR. - 15 N.KRISHNAN EMBRANTHIRI, PALLIPARAMBA, CHELEMBRA, THIRURANGADI TALUK. - 16 SAVITHRI ANTHARJANAM, THOTTEKKAT MADAM, PULAPATTA, KARUVAMBRAM, MANJERI. - 17 K.NARAYANAN EMBRANTHIRI, POOTHATTIL MADAM, THAIKKALANGODE, MANJERI, MALAPPURAM DISTRICT. - 18 K.SANKARAN EMRANTHIRI, POOTHATTIL MADAM, THAIKKALANGODE, MANJERI, MALAPPURAM DISTRICT. - 19 SUBHADRA ANTHARJANAM, EELAMANA, RAMACHAND VIHAR, P.O.PAINKANNUR, VALANCHERRY. - 20 K.GOVINDAN EMBRANTHIRI, POOTHATTIL MADAM, TRIKKLANGODE, MANJERI, MALAPPURAM DISTRICT. **CO NO. 22 OF 2014 -3-** |21|K.DEVAKI ANTHARJANAM,| |---|---| ||POOTHATTIL MADAM, TRIKKLANGODE, MANJERI, MALAPPURAM DISTRICT.| |22|K.EASWARAN AMBRANTHIRI,| ||POOTHATTIL MADAM, TRIKKLANGODE, MANJERI, MALAPPURAM DISTRICT.| |23|SAVITHRI ANTHARJANAM,| ||EDNEER, CHENKALA, KASARAGOD DISTRICT.| |24|K.VASUDEVAN EMBRANTHIRI,| ||POOTHATTIL MADAM, THRIKALANGODE, MANJERI.| |25|N.GOVINDAN EMBRANTHIRI,| ||KEERTHI, MANNUR, KADALUNDI, KOZHIKODE.| |26|N.SANKARAN EMBRANTHIRI,| ||KEERTHI, MANNUR, KADALUNDI, KOZHIKODE.| |27|N.M.SAVITHRI ANTHARJANAM,| ||IYYAKKATT ILLAM, UDINNURE P.O., KASARAGOD DISTRICT.| |28|SAVITHIRI ANTHARJANAM,| ||MOKSHATH HOUSE, PALAPATTA, NEAR KONGAD, PALAKKAD.| |29|GIRIJA ANTHARJANAM,| ||'SREENILAYAM', AZHIYANNUR, KADAMBAZHIPURAM, PALAKKAD| ||DISTRICT.| |30|C.SANKARAN EMBRANTHIRI,| ||AZHIYANNUR, KADAMBAZHIPURAM, PALAKKAD DISTRICT.| |31|C.USHA ANTHARJANAM,| ||PANAMBATT ILLAM, KOPPAM P.O., PALAKKAD DISTRICT.| ||BY ADVS.| ||SRI.P.B.KRISHNAN| ||SRI.K.P.SUDHEER| THIS CROSS OBJECTION HAVING COME UP FOR ADMISSION ON 31.07.2023, ALONG WITH RFA.805/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## **SATHISH NINAN, J.** ## **= = = = = = = = = = = = = = = = = = R.F.A. No.805 of 2010 & Cross Objection No.22 of 2014** **= = = = = = = = = = = = = = = = = = Dated this the 31[st] day of July, 2023** ## **J U D G M E N T** A preliminary decree for partition is under challenge by defendants 29 to 32 through this appeal and by the 24[th] defendant by way of cross objections. 2. Whether the plaint 'B' schedule properties which are sought to be partitioned, the self-acquisition of the brothers Sankaran Embranthiri and Valia Narayanan Embranthiri, or are they their family properties, is the main issue involved. It is necessary to refer to the genealogy of the parties. 3. Puthiya Illath Sankaran Embranthiri is the ancestor. He had three sons - Narayanan Embranthiri, Vishnu Embranthiri and Easwaran Embranthiri. Narayanan Embranthiri had two sons Sankaran Embranthiri and Valia Narayanan Embranthiri. In the year 1945, Sankaran Embranthiri died issueless. Devaki, the first wife of **RFA No.805/2010 & C.O.No.22/2014** -: 2 :- Valia Narayanan Embranthiri died in the year 1926. Savithri, the second wife is the first defendant. She died pending the suit, on 09.12.2006. Valia Narayanan Embranthiri died in the year 1964. In Devaki, the first wife, Valia Narayanan Embranthiri had three children Saraswathi, Devaki and Lakshmikutty. Saraswathi died in the year 1994. Devaki died in the year 1969. The plaintiff and the 4[th] defendant are the children born to Sarsaswathi. D5 is the wife of Sankaran, the deceased son of Devaki. Defendants 7 to 12 are the other children of Devaki. The sixth defendant is the daughter of the 5[th] defendant. Lakshmikutty died in the year 1977 and her children are defendants 13 to 20. 4. In the second wife, viz. the first defendant, Valia Narayana Embranthiri had five children - Parvathi, second defendant, Savithri, Cheriya Narayanan Embranthiri and the third defendant. Parvathi died in the year 1984. Defendants 21 to 24 are her children. **RFA No.805/2010 & C.O.No.22/2014** -: 3 :- Savithri died in the year 1998 and defendants 25 to 28 are her children. Cheriya Narayanan Embranthiri died in the year 1994. 29[th] defendant is his wife and defendants 30 to 32 are their children. 5. The suit is filed claiming that the properties in question are the self-acquisition of Sankaran Embranthiri and Valia Narayanan Embranthiri. According to the defendants, the properties in question are family properties. 24[th] defendant claimed right over plaint item Nos.1,3,4 and 10 under a Will dated 25.07.1964. Defendants 25 to 28 also claimed plaint item Nos.2 and 15 under the very same Will. They also contended that plaint item Nos.15 and 17 have been alienated by them to strangers and that plaint item No.16 is in their exclusive possession. Thus, the said suit items are unavailable for partition it was contended. 6. The trial court found that the plaint schedule properties, except plaint item No.2, are the self- **RFA No.805/2010 & C.O.No.22/2014** -: 4 :- acquisitions of the brothers Sankaran Embranthiri and Valia Narayanan Embranthiri. It was found that the Will relied on by defendants 24 to 28 have not been produced or proved. As regards the alleged alienations to strangers, it was found that no documents evidencing the same were forthcoming. 7. With regard to plaint item No.2, it was found that admittedly the property is included in Ext.B1 document relied on by defendants 29 to 32 and it is not available for partition. A decree for partition was passed in respect of other items. 8. The plaintiff has not chosen to challenge the declining of the relief against plaint item No.2 and hence its non-availability for partition is no more in issue. 9. Heard learned counsel on both sides. 10. The point that arises for determination is, “Whether the properties in question are the self- **RFA No.805/2010 & C.O.No.22/2014** -: 5 :- acquisitions or joint family properties of Sankaran Embranthiri and Valia Narayanan Embranthiri ?” 11. Ext.B9 is the Partition Deed dated 30.01.1913 in the family whereunder, the two brothers Sankaran Embranthiri and Valia Narayanan Embranthiri got separated as a group on receiving cash towards their share. The properties acquired thereafter by the brothers are sought to be partitioned claiming it to be their self-acquired properties. The acquisitions are ranging from the period 1929 to 1947. Most of the acquisitions are in the name of Sankaran Embranthiri. Here it is to be noted that, he is the eldest member of the joint family of Sankaran Embranthiri and Valia Narayanan Embranthiri. The acquisitions in his name are, Exts.B3 of the year 1932, A4 of the year 1935, A5, A6, A7 of the year 1936 and A8 of the year 1939. 12. In Ext.B9 partition of the year 1913 the brothers separated as a group and they were given **RFA No.805/2010 & C.O.No.22/2014** -: 6 :- monetary consideration. In the year 1921, as per Ext.A1, they effected joint acquisition of an item of property. They resided at Puthiya Illam. Ext.A2 is an acquisition dated 14.11.1945. By that time the eldest member of the family viz. Sankaran Embranthiri was no more and the document was executed in the name of Narayanan Embranthiri, the next senior most member. Ext.A2 specifically acknowledges that, on the demise of Sankaran Embranthiri, the Karanavan of the Illam is Narayanan Embranthiri and that the conveyance is thus in his favour. Ext.A10 is yet another conveyance dated 14.11.1945. The said document is also after the demise of Sankaran Embranthiri. It is in favour of Narayanan Embranthiri and acknowledging that he is the Karanavan of the Illam after the demise of his elder brother Sankaran Embranthiri. Ext.A12 is yet another conveyance dated 14.03.1947 in favour of Narayanan Embranthiri acknowledging him as the Karanavan of the Illam. The **RFA No.805/2010 & C.O.No.22/2014** -: 7 :- documents as above prove the jointness of the family and that acquisitions were being made in the names of either Sankaran Embranthiri, or after his demise, in the name of Narayanan Embranthiri as the Karanavan of the Illam. That the joint family was possessed of sufficient nucleus by virtue of Ext.B9 partition is beyond dispute. It is true that some of the acquisitions were made much later. However, it is pertinent to note that, apart from the income derived from the “santhi” right in a temple, there is no evidence that the brothers had any independent source of income. There is no evidence as to how the nucleus was invested till the acquisitions were made. However, in the absence of any evidence of independent source of income, it could only be presumed that the acquisitions were from the nucleus and its investment. Exts.A3 to A8 are various acquisitions in the name of Sankaran Embranthiri. Though the documents do not specifically acknowledge the acquisitions to be ## **RFA No.805/2010 & C.O.No.22/2014** -: 8 :- as the Karanavan of the Illam, in the circumstances as noticed above, viz. the family being joint, the existence of a nucleus and the absence of any evidence to show separate income, he being the senior most member of the family, it could only be inferred that the acquisitions were for and on behalf of the Illam as its Karanavar. Ext.A9 acquisition of the year 1945 and Ext.A11 acquisition of the year 1947 are after the demise of Sankaran Embranthiri. At the time of such acquisitions, Narayanan Embranthiri was the Karanavar of the Illam. While it is true that even during the life time of Sankaran Embranthiri Ext.A14 acquisition was made in the year 1942 in the name of Narayanan Embranthiri, in the absence of any evidence of separate income for him and in the circumstances as noticed supra, it could not be held that it is the selfacquisition of Narayanan Embranthiri. The circumstances which led to such acquisition is not borne out by any **RFA No.805/2010 & C.O.No.22/2014** -: 9 :- material. 13. In _**Yellappa Ramappa Naik & Ors. v. Tippanna Bin Laxmanna Naik (AIR 1929 Privy Council 8)**_ it was held that, presumption of jointness is strong in the case of brothers. In _**Must. Bhagnani Kunwar & Anr. v. Mohan Singh & Ors. (AIR 1925 Privy Council 132),**_ it was held that in the absence of proof of division, every Hindu family is presumed to be joint in food, worship and estate. The nucleus having existed being undisputed, and there being no evidence of any independent income, it could only be inferred that the acquisitions were on behalf of the Illam. These aspects have been overlooked by the trial court. Therefore, I find that the properties are joint family properties. The finding of the trial court that the properties are the self-acquisition of the brothers is set aside. Needless to clarify that the findings as above does not relate to plaint item No.2 acquired under Ext.B1 of the year 1965 in respect of which the trial **RFA No.805/2010 & C.O.No.22/2014** -: 10 :- court decree has become final. 14. As regards the contention of defendants 24 to 28, based on the alleged Will dated 25.07.1964, as rightly found by the trial court, the Will was not even produced and proved. No claim based on the same could be sustained. The alleged alienations in favour of strangers in respect of plaint item Nos.15 and 17 also have not been proved and was rightly rejected by the court. 15. On the findings as above, the shares of the parties are to be arrived at. 16. Valia Narayanan Embranthiri expired on 29.08.1964. In terms of the explanation to Section 2(b) of The Kerala Nambudiri Act, 1958 the daughters, on their marriage cease to be members of the illom in which she was born and becomes a member of the family of the husband. The daughters of Valia Narayanan Embranthiri in his first wife Devaki, viz. Saraswathi, Devaki and **RFA No.805/2010 & C.O.No.22/2014** -: 11 :- Lakshmikutty and the daughters in the second wife except the third defendant viz. Parvathi, Devaki and Savithri, were married prior to his death. Defendants 29 to 32 have in their written statement specifically contended that except the third defendant all other daughters of Valia Narayanan Embranthiri were married prior to his death. It has also been so deposed to by DW2 who is the 30[th] defendant. However, there is no challenge against the same in cross-examination. Therefore, the daughters of Valia Narayanan Embranthiri except the third defendant do not have any right in the family properties as a member of the illam. However, the third defendant who remained unmarried is entitled to a share in the family properties. Section 3 of the Kerala Nambudiri Act, 1958 provides that every member of the illam whether male or female shall have an equal proprietary interest in the properties. Therefore, the third defendant is entitled to a share equal to that of the **RFA No.805/2010 & C.O.No.22/2014** -: 12 :- other members of the family viz. the father-Valia Narayanan Embranthiri, his second wife-first defendant, their son-Cheriya Narayanan Embranthiri and the third defendant. Thus, there were four members in the illam, and each of them are entitled to ¼ shares each. (¼ is the same as 18/72). On the death of Valia Narayanan Embranthiri, his ¼ share = 18/72 share devolves by intestate succession on his wife the first defendant and all the 8 children. The share of each of the children or their branches(of those who are no more) is as under:- |Plaintiff|=|1/72| |---|---|---| |D4|=|1/72| |D5 to D12|=|2/72| |D13 to D20|=|2/72| |D21 to D24|=|2/72| |D25 to D28|=|2/72| |D1|=|2/72| |D2|=|2/72| |D3|=|2/72| |Cheriya Narayanan|=|2/72| ## **RFA No.805/2010 & C.O.No.22/2014** -: 13 :- The plaintiff and the 4[th] defendant together are entitled for 2/72 shares being the share of their mother Saraswathi; and between them each are entitled for 1/72 shares. Defendants 5 to 12 are together entitled for 2/72 shares of their mother Devaki. Defendants 13 to 20 are together entitled for 2/72 shares as legal heirs of their mother Lakshmikutty. Defendants 21 to 24 are together entitled for 2/72 shares as legal heirs of their mother Parvathi. Defendants 25 to 28 are together entitled for 2/72 shares as the legal heirs of Savithri. Defendants 1, 2 and 3 are each entitled for 2/72 shares. Cheriya Narayanan Embranthiri was entitled for 2/72 shares. 17. In so far as defendants 1, 3 and Cheriya Narayanan Embranthiri are concerned, in addition to the 2/72 shares mentioned above, they are also entitled for ¼ shares each as members of the illam. Thus, the share of first defendant is 18/72 + 2/72 = 20/72. The share of **RFA No.805/2010 & C.O.No.22/2014** -: 14 :- third defendant is 18/72 + 2/72 = 20/72. The share of Cheriya Narayanan Embranthiri is 18/72 + 2/72 = 20/72. 18. The shares of the parties would thus be:- |Plaintiff|-|1/72| |---|---|---| |D4|-|1/72| |D5 to D12|-|2/72| |D13 to D20|-|2/72| |D21 to D24|-|2/72| |D25 to D28|-|2/72| |D1|-|20/72| |D2|-|2/72| |D3|-|20/72 and| |Cheriya Narayan|-|20/72| 19. Cheriya Narayanan Embranthiri died in the year 1994. The 1[st] defendant(his mother), and his wife and children-D29 to D32 are his legal heirs each entitled to 1/5 shares. Therefore, the 20/72 shares of Cheriya Narayanan Embranthiri devolves on the 1[st] defendant and D29 to D32; each become entitled to 4/72 shares. Thus, the share of the 1[st] defendant becomes 20/72 + 4/72 = 24/72; the share of D29 to D32 is 16/72. **RFA No.805/2010 & C.O.No.22/2014** ## -: 15 :- ## 20. So, finally, the shares of the parties are: |Plaintiff|-|1/72| |---|---|---| |D4|-|1/72| |D5 to D12|-|2/72| |D13 to D20|-|2/72| |D21 to D24|-|2/72| |D25 to D28|-|2/72| |D1|-|24/72| |D2|-|2/72| |D3|-|20/72 and| |D29 to 32|-|16/72| 21. The 1[st] defendant died pending the suit, in the year 2006. Her share is to devolve on her five children or their legal heirs i.e. 1/5 for each branch. Such devolution of share is also to be taken into account. Cross objection is liable to be allowed to the above extent. The said share shall also be reckoned while passing the final decree. In the result, the appeal and cross objection are allowed. The preliminary decree passed by the trial Court will stand modified to the extent mentioned in **RFA No.805/2010 & C.O.No.22/2014** -: 16 :- ## paragraphs 20 and 21 above. kns/- Sd/- **SATHISH NINAN JUDGE** P.S. to Judge //True Copy//