RFA No.164 of 2010 – Vadakkoth Chembuvalappil Devaki Amma and others vs Vadakkoth Chembu Valappil Chandrasekharan Nair and others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE SATHISH NINAN** **THURSDAY, THE 29[TH] DAY OF FEBRUARY 2024 / 10TH PHALGUNA, 1945 RFA NO. 164 OF 2010** **AGAINST THE JUDGMENT DATED 28.10.2009 IN OS NO.182 OF 2006 OF II ADDITIONAL SUB COURT, KOZHIKODE** **-----** ## **APPELLANTS/PLAINTIFFS:** - **1 VADAKKOTH CHEMBUVALAPPIL DEVAKI AMMA, AGED 68 YEARS, D/O.LAKSHMYKUTTY @ MALU AMMA, RESIDING AT PADINHARE OZHAPPOYIL, KURUVATTUR AMSOM, PAYIMBRA DESOM, KOZHIKODE.** - **2 C.V.SASIDHARAN, AGED 48 YEARS, [DIED]* S/O.DEVAKI AMMA, RESIDING AT PADINJARE, OZHAPPOYIL, KURUVATTUR AMSOM, PAYIMBRA DESOM, KOZHIKODE.** - **3 C.V.SURESAN, AGED 46 YEARS, S/O.DEVAKI AMMA, RESIDING AT PADINHARE, OZHAPPOYIL, KURUVATTUR AMSOM, PAYIMBRA DESOM, KOZHIKODE.** - **4 VADAKKOTH CHEMBU VALAPPIL SAROJINI AMMA, AGED 65 YEARS, D/O.LAKSHMIKUTTY @ MALUAMMA, KALLUVETTUKUZHIYIL HOUSE, VENGERI AMSOM, VARATHUR DESOM, P.O. VENGERI.** - **5 C.V.GEETHA, AGED 42 YEARS, D/O.SAROJINI AMMA, THIPPILIKKATTU, 'SREEPADAM', KANNADIKKAL, VENGERI AMSOM, VARATHUR DESOM, P.O.VENGERI, KOZHIKODE.** - **6 C.V.LATHA, AGED 39 YEARS, D/O.SAROJINI AMMA, KOODATHINGAL, PADINHATTUMMURI DESOM, P.O.KAKKODI, KOZHIKODE.** **RFA NO. 164 OF 2010 -2-** - **7 C.V.SAJITH, AGED 36 YEARS,** - **S/O.SAROJINI AMMA, KALLUVETTUKUZHIYIL HOUSE, VENGERI AMSOM, VARATHUR DESOM, P.O.VENGERI.** - **ADDL. APPELLANT NO.8** **ADDL.A8 T.SUMA, AGED 51 YEARS, W/O.SASIDHARAN, RESIDING AT PADINHARE OZHAMPOYIL HOUSE, PAYIMBRA, KUNNAMANGALAM, KOZHIKODE.** *** [LEGAL HEIR OF DECEASED A2 IS IMPLEADED AS ADDITIONAL A8, VIDE ORDER DATED 09.12.2019 IN IA 1/2019]** **BY ADVS. SRI.V.V.SURENDRAN SRI.P.A.HARISH** ## **RESPONDENTS/DEFENDANTS:** - **1 VADAKKOTH CHEMBU VALAPPIL CHANDRASEKHARAN NAIR, AGED 62 YEARS, S/O.LAKSHMIKUTTY @ MALU AMMA, ITTADIYIL, MAYANAD AMSOM DESOM, MAYANAD.** - **2 VADAKKOTH CHEMBU VALAPPIL, KAMALA AMMA, W/O.GOPALAN NAIR, AGED 58 YEARS, (D/O.LAKSHMIKUTTY @ MALU AMMA), NADUVELI, KANNADIKKAL, VENGERI AMSOM, VARATHUR DESOM, P.O. VENGERI.** - **3 C.V.NISHA, AGED 39 YEARS,** - **W/O.SATHYACHANDRAN, (D/O.KAMALA AMMA), 'NITHYASREE', MANIPURAM P.O. KODUVALLY AMSOM DESOM.** - **4 C.V.BINDU, AGED 36 YEARS, W/O.UDAYAKUMAR, KOLAYIL, (D/O.KAMALA AMMA), KARIKKAMKULAM, KARAPARAMBA P.O. NEDUNGOTTUR AMSOM DESOM.** **RFA NO. 164 OF 2010 -3-** - **5 C.V.SUJA AGED 31 YEARS, W/O.NADAKUMAR, (D/O.KAMALA AMMA), KANICHADATHU HOUSE, P.O.PALATHUR, PALATH AMSOM DESOM.** - **6 VADAKKOTH CHEMBU VALAPPIL PRABHAKARAN NAIR, AGED 55 YEARS, S/O.LAKSHMIKUTTY @ MALU AMMA, CHEMBUVALAPPIL, KANNADIKKAL, VENGERI AMSOM, VARATHUR DESOM, P.O.VENGERI.** **7 VADAKKOTH CHEMBU VALAPPIL SATHIAVATHI AMMA, AGED 52 YEARS, D/O.LAKSHMIKUTTY @ MALU AMMA, P.O.VENGERI, VENGERI AMSOM, VARATHUR DESOM.** - **8 C.V.SHEEJA, AGED 32 YEARS W/O.DEVADASAN, (D/O.SATHIAVATHI AMMA), 'NANDANAM', P.O.PERINGOLAM, KUNNAMANGALAM AMSOM DESOM.** - **9 C.V.SAJI, AGED 31 YEARS, W/O.UNNIKRISHNAN, KALATHIL HOUSE, P.O.GURUVAYOORAPPAN COLLEGE, POKKUNNU AMSOM DESOM.** - **10 VADAKKOTH CHEMBU VALAPPIL PRABHAVATHI AMMA, AGE 52 YEARS, D/O.PADMINI AMMA, VETTOTTUMMAL HOUSE, EDAKKARA AMSOM DESOM, P.O.CHELANNUR.** - **11 C.V.VASANTHA AMMA, AGE 49 YEARS, D/O.PADMINI AMMA, 'PRAVEENA', P.M.KUTTY ROAD, KARAPARAMBA P.O. KATCHERI AMSOM DESOM.** - **12 C.V.VIJAYAN AGED 46 YEARS, S/O.PADMINI AMMA, 'PADMAPURAM', MAKKADA AMSOM DESOM, P.O.MAKKADA.** - **13 C.V.SUBHASHINI, AGED 42 YEARS, D/O.PADMINI AMMA, 'PADMAPURAM', MAKKADA AMSOM DESOM, P.O.MAKKADA.** **RFA NO. 164 OF 2010 -4-** **14 C.V.PADMAJA, AGED 35 YEARS, W/O.SURESH, (D/O.PADMINI AMMA), 'SUPADAM', P.O.ERAVANNUR, ERAVANNUR AMSOM DESOM. 15 VADAKKOTH CHEMBU VALAPPIL RAVEENDRAN, AGED 49 YEARS, S/O.DAKSHAYANI AMMA, 'ABHINAVAM', KANNADIKKAL, P.O.VENGERI, VENGERI AMSOM, VARATHUR DESOM. 16 VADAKKOTH CHEMBU VALAPPIL RASHMI, AGED 32 YEARS, D/O.PRABHAVATHI AMMA, VETTOTTUMMAL, EDAKKARA AMSOM DESOM, KOZHIKODE TALUK.** **BY ADVS. R K MURALEEDHARAN,PARTHASARATHY SRI.V.R.KESAVA KAIMAL SRI.N.M.MADHU SRI.R.K.MURALEEDHARAN** **THIS REGULAR FIRST APPEAL HAVING COME UP FOR HEARING ON 29.02.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ## **SATHISH NINAN, J.** **= = = = = = = = = = = = = = = = = = R.F.A. No.164 of 2010** **= = = = = = = = = = = = = = = = = = Dated this the 29[th] day of February, 2024** ## **J U D G M E N T** The suit for partition was dismissed by the trial court. The plaintiffs are in appeal. 2. One Lakshmikutty @ Malu Amma is the common ancestress of the parties. The plaintiffs and defendants are, the children or grand children or great grant children of Lakshmikutty. For the sake of convenience the genealogical tree, as given in the A schedule to the plaint is extracted hereunder :- **==> picture [456 x 243] intentionally omitted <==** R.F.A. No.164 of 2010 -: 2 :- 3. Plaint 'B' schedule consists of five items of immovable properties. They are sought to be partitioned. The plaint 'B' schedule items are claimed to be the thavazhi properties of Lakshmikutty. The contesting defendants dispute the same. They claim that the properties are the separate properties of Lakshmikutty. 4. The trial court held that the properties are the separate properties of Lakshmikutty and accordingly dismissed the suit. 5. I have heard learned counsel Sri.P.A.Harish on behalf of the appellant and Sri.N.M.Madhu on behalf of the contesting respondents. 6. The point that arises for determination is :- “ _Is the finding of the trial court that the properties sought to be partitioned are the separate properties of Lakshmikutty, sustainable on the evidence?”_ 7. For the sake of convenience plaint 'B' schedule items are referred to as the plaint schedule items. R.F.A. No.164 of 2010 -: 3 :- Plaint schedule item No.1 was allotted to Lakshmikutty in Ext.B1 Partition Deed of the year 1984. Plaint item No.2 was allotted to Padmanabhan Nair, the brother of Lakshmikutty in Ext.A1 Partition Deed of the year 1962. It was assigned by him in favour of Lakshmikutty as per Ext.B7 assignment deed of the year 1963. Plaint item No.3 was allotted to the said Padmanabhan Nair in Ext.A2 Partition Deed of the year 1961. It was assigned by him in favour of Lakshmikutty under Ext.B5 assignment deed of the year 1962. Plaint item No.4 consists of two items; item No.4-1 was allotted to Lakshmikutty in a partition of the year 1970. Item 4-2 was allotted to her brother Padmanabhan Nair in the said partition of the year 1970. It was gifted by him to Lakshimikutty under Ext.B10 settlement deed. Plaint item No.5 was allotted to Lakshmikutty, her children and grand children in Ext.A1 Partition Deed of the year 1962. The plaintiffs' contention is that, the assignments under Exts.B7, B5 R.F.A. No.164 of 2010 -: 4 :- and B10, and the properties obtained by Lakshmikutty under the partition deeds enure to her thavazhi. 8. It is deemed convenient to consider the nature of acquisitions by Lakshmikutty, document-wise. Firstly, coming to Ext.B1 partition of the year 1984, it deals with plaint item No.1. It is a partition between Lakshmikutty, her children and grand children who were alive as on 01.12.1976. It dealt with the property allotted to the branch of Lakshmikutty in Ext.A2 partition of the year 1961, and also the property that belonged to the husband of Lakshmikutty. In the said partition, 'A' schedule therein was allotted to Lakshmikutty separately. There could not be any dispute, and is not challenged that it is the separate property of Lakshmikutty. She conveyed the property to the 7[th] defendant under Ext.B6. Therefore, the said property is not available for partition. R.F.A. No.164 of 2010 -: 5 :- 9. Exts.B5 and B7 are the kanam assignment deeds of the year 1962 and 1963 with regard to plaint items 3 and 2 respectively. The assignments are by Padmanabhan Nair, the brother of Lakshmikutty in favour of Lakshmikutty. The question is whether such acquisitions by Lakshmikutty partake the character of thavazhi properties. 10. K.Sreedhara Variar in his book, Marumakkathayam and Allied Systems of Law in the Kerala State, has relied on and quoted from Sri.Sundara Iyer's Malabar and Aliyasantana Law thus:- _“The position under the Marumakkathayam Law is stated as follows : 'As under the Hindu Law, so under the Marumakkathayam and Aliyasantana systems joint holding is the rule and individual holding the exception and it is for the individual member who sets up separate title to make it out'. When the person who has made the acquisition is the Karnavan of the Tharwad, there is a presumption that it is Tharwad property.”_ R.F.A. No.164 of 2010 -: 6 :- The customary Marumakkathayam Law is that, when the Karanavan in possession of Tarwad properties is found to acquire other properties it must be deemed that he acquired them on behalf of the Tarwad. _(See_ _**Gopalan Nair v. Lakshmi Amma 1955-2 MLJ 36, Kunjukuttan Nair v. Devaki Amma 1968 KLT 568, Achuthan Nair v. Chinnammalu Amma AIR 1966 SC 411)**_ . The Apex Court held that it is settled law that if a property is acquired in the name of the Karanavan there is a strong presumption that it is a Tarwad property and that the presumption must hold good unless and until it is rebutted by acceptable evidence. 11. In the case at hand it is not in dispute that Lakshmikutty was the Karanavathy. That she was possessed of properties as obtained under Exts.A1 and A2 family partitions, is beyond challenge. There is no evidence much less a plea that Lakshmikutty was having any independent source of income. In the said circumstances, it could only be held that the acquisition under Exts.B5 R.F.A. No.164 of 2010 -: 7 :- and B7 were with the income from the Tarwad properties and that they enure to the benefit of the family. 12. Ext.B10 is the Gift Deed executed by Padmanabhan Nair in favour of Lakshmikutty with regard to plaint item No.4-2 in respect of the property obtained by him under a partition of the year 1970. Whether the gift by the brother to the sister would enure to the benefit of thavazhi of Lakshmikutty is the question. In Malabar and Aliyasanthana Law by Sundara Iyer it is said that, one of the ways in which a Thavazhi comes to own properties is through gifts from the father, the brother, the uncle, etc. The statement has been referred to by K.Sreedhara Variar in his text on Marumakkathayam Law. The above has been quoted with approval by a Full Bench of this Court in _**Kalliani Amma v. Krishna Pillai, 1956 KLT 803**_ . In Kalliani’s case it was held that, in the case of such gifts are intended to enure for the benefit of the Thavazhi. The relevant portion R.F.A. No.164 of 2010 -: 8 :- was relied on by a learned single judge of this Court in _**Thazhath Valappil Prasanth v. Kalliani and Ors. 2007 (2) KHC 451.**_ It reads thus:- _“24. The Full Bench of this Court in Kalliani Amma v. Krishna Pillai, 1956 KLT 803 : 1956 KHC 170 : ILR 1956 TC 1280 : AIR 1957 TC 77) considered the earlier decisions. After referring to gifts of this type and quoting Sundara Iyer in Malabar and Aliyasanthana Law where it was stated that another way in which the thavazhi comes to own property is by gifts from father or brother or_ _**uncle** , for the matter of that, gifts from anybody provided that the gift is intended to enure for the benefit of the branch as such and not merely for the benefit of the individual members. The only difference between the gifts last named and others is that whereas there is generally a presumption in the former case that the gift, is intended to enure for the benefit of the branch, in other cases it must be made out to be so. ..…”._ Therefore, the property covered under Ext.B10 is held to be a Thavazhi property. ## 13. Ext.A1 is the Partition Deed in the Tarawad of Lakshmikutty entered in the year 1962. It relates to R.F.A. No.164 of 2010 -: 9 :- plaint item No.5. In the partition the properties are allotted to Lakshmikutty, her children and grand children. The nature of allotment and the property dealt with therein are sufficient enough to hold that the property enure to the thavazhi of Lakshmikutty. The plaintiffs and the defendants who are members of the thavazhi and who were born prior to 01.12.1976 have share over the property. Referring to a recital in Ext.A1 that the “\mK-s¡m«” in the property is kept in common, it is contended that the property is not partible. However, the further recital in the document in categoric terms state that the property belongs absolutely to Lakshmikutty and her branch. Both clauses read together it can be understood that from out of the property so allotted, the “\mK-s¡m«” alone is kept in common. The remaining property is partible. R.F.A. No.164 of 2010 -: 10 :- 14. Lakshmikutty obtained plaint item Nos.4-1 in the partition of the year 1970. The document has not been produced at this Court by either side. As was noticed above plaint item Nos.4-2 belonged to Padmanabhan Nair, the brother of the Lakshmikutty under the said partition. It is for the plaintiff who alleged it to be thavazhi property and claim it to be partible to establish so. However, no attempt in the said regard is made. Hence plaint item 4-1 is held to be not Thavazhi property. 15. Referring to Section 4 of the Hindu Succession Act, 1956, the learned counsel for the respondent would raise a faint argument that the Marumakkathayam system of law do not survive after the coming into force of the Hindu Succession Act, and that under Section 14 of the Hindu Succession Act, a property possessed by a female Hindu holds it as its absolute owner. Therefore, there is no question of an acquisition enuring to Thavazhi, it R.F.A. No.164 of 2010 -: 11 :- is argued. A similar contention was specifically dealt with by this Court in _**Saraswathy Amma v. Radhamma 1990 (2) KLT 183**_ and was negatived. It was held that the Hindu Succession Act has not repealed the Marumakkathayam or Aliyasantana Law and that the overriding effect is only in respect of matters specifically dealt with under the Act. The relevant portion of the judgment reads thus:- _“5. A single bench of this Court, interpreting the decision in Sundari and others v. Laxmi and others (AIR1980 SC 198), held in Madhavi Amma v. Kalliani Amma (1988 (2) KLT 964):_ _“The Marumakkathayam Law, whether statutory or otherwise, stands repealed by the Hindu Succession Act. The effect of repeal of a statute is that it ceases to be a part of the corpus juris or body of law. To put it differently, the law was regarded, in the absence of provision to the contrary, as having never existed, except as to matters and transactions past and closed.”_ _Therefore, the argument was that, when the Marumakkatyaam system itself was repealed and substituted by the Hindu_ R.F.A. No.164 of 2010 -: 12 :- _Succession Act, at a time when the first plaintiff remained unmarried and issueless, the subsequent birth of the children cannot change her rights. So also, it was argued that, therefore, the Hindu Joint Family System (Abolition) Act of 1976 itself was redundant and, at any rate, plaintiffs 2 to 4 cannot get any right._ _6. With due respect, I do not think that the supreme Court has laid down the law as interpreted in the above decision. What S.4 of the Hindu Succession Act says and what the Supreme Court interpreted is that S.4 is having overriding effect only in respect of matters dealt with in that Act. In view of the clear provisions of law and the unambiguous interpretation of it in Sundari's case (AIR 1980 SC 198), rendering it the law of the land under Art.141 of the Constitution, I do not think that a reference to a Division Bench is necessary on the question. Regarding other matters, the Marumakkathayam Law or any other law remained unaffected. There is no question of the Hindu Succession Act having repealed them. In other respects, joint tenancy under the Hindu Marumakkathayam or Aliyasanthanam laws continued and they were disrupted only when the Hindu Joint Family System (Abolition) Act came into force in Kerala in 1976 converting joint tenancies into tenancies in-common. Rules of succession are provided in the_ R.F.A. No.164 of 2010 ## -: 13 :- _Act under S.8,10 and 15 and special rules applicable to those who are governed by Marumakkathayam and Aliyasanthanam laws are provided in S.17. These provisions, as the case may be, could have applied to devolution of interest in tharavad or thavazhi properties only to the extent provided in S.7. That alone is the overriding effect of the Hindu Succession Act on the Marumakkathayam Law. Before that, the undivided interest in tharavad on thavazhi property went only by survivorship to the remaining members and not to the personal heirs. Now a notional partition per capita, as on the death of the member, is introduced and by fiction of law, absolute right is given to that member on that share so that it may devolve on his or her personal heirs under the Act. Therefore, the Hindu Succession Act was not capable of divesting plaintiffs 2 to 4 of their birth right in the properties under the Marumakkathayam Law.”_ So also the argument based on Section 14 of Hindu Succession Act is without any substance. The concept of limited ownership does not have any application in respect of acquisition of a property by a female on behalf of thavazhi. Therefore, the said contentions are only to be repelled and I do so. R.F.A. No.164 of 2010 -: 14 :- 16. It appears that Lakshmikutty had executed various documents in relation to the plaint 'B' schedule properties or parts thereof. Conveyances if any effected with regard to the Thavazhi properties can affect only her share over the items. It would be appropriate that the trial court considers the same. Parties could be given opportunity to adduce evidence to prove the documents. 17. In the light of the above, the decree and judgment of the trial court are set aside. The suit is remanded back to the trial court for disposal afresh in the light of the findings entered into in this judgment with regard to the nature of the properties. The court shall grant opportunity to the parties to adduce evidence with regard to various assignments by Lakshmikutty in respect of the plaint 'B' schedule property, if they so choose. The trial court shall make every endeavour to have the suit disposed of within a R.F.A. No.164 of 2010 -: 15 :- period of six months from the date of receipt of a copy of this judgment. Parties to appear before the trial court on 15.03.2024. Sd/- **SATHISH NINAN JUDGE** kns/- //True Copy// P.S. to Judge