High Court of KeralaSingle Judge2021-10-04Appeals allowed; preliminary decree passed; fin...

RFA Nos. 630/2016 & 780/2016: Meena and others v. Bhaskaran and others (Partition suits) - High Court of Kerala

Case / Petition Number:RFA No. 630/2016 & 780/2016

Case Details & Bench

Court: High Court of Kerala
Hon'ble Judges: P. Somarajan
Judgment Date: 2021-10-04
Court Decision / Holding: Appeals allowed; the plaintiffs in OS 168/2010 and OS 124/2011 are held to be entitled to 1/7th shares in the respective schedules; a preliminary decree is passed modifying the trial court’s decree; final decree to be passed within 90 days; suits adjourned sine die; costs to be borne out of the estate; receiver discharged after final decree; equity to be worked out at final decree.
Final Disposition: Appeals allowed; preliminary decree passed; final decree to be passed within 90 days; suits adjourned sine die; costs borne from estate; receiver discharged after final decree; equity to be determined at final decree.

Parties to the Case

Appellants / Petitioners

Meena
Nalan Gopi (Athul)
Adarsh Gopi
Meena

Respondents

Bhaskaran S/O Ramankutty
Chenthamara @ Kannan S/O Ramankutty
Pushpalatha D/O Ramankutty
Susheela D/O Ramankutty
Lalitha D/O Ramankutty
Kamalam W/O Ramankutty
Velankutty (Died) S/O LATE KANDAN
Rajan S/O Velankutty
Ramakrishnan S/O Velankutty
Unnikrishnan S/O Velankutty
Balan S/O Velankutty
Mani S/O Velankutty
Rugmini W/O LATE SIVARAMAN
Anilkumaar S/O LATE SIVARAMAN
Ajesh S/O LATE SIVARAMAN
Vellachi W/O Velankutty
Pushpalatha
Susheela
Lalitha
Bhaskaran
Chenthamara
Kamalam

Legal Representation & Advocates

Counsels for Petitioners

• Sajan Varghese K.
• Liju M.P.
• Lillu L. Krishnan
• Abe Rajan

Counsels for Respondents

• Jose Joseph
• K.I. Mayankutty Mather
• P.R. Venkatesh
• Prabhasanker
• K.I. Mayankutty Mather
• P. Rahul

Case Synopsis & Summary

Two regular first appeals, RFA 630/2016 and RFA 780/2016, arise from two suits for partition in Palakkad (OS 168/2010 and OS 124/2011). The appellants, Meena and her children, contend that the property is a coparcenary ancestral property and that the 1973 partition between Ramankutty and his two sons (Bhaskaran and Chenthamara @ Kannann) was not binding on Gopi, Ramankutty’s deceased son, or his estate, so Gopi’s heirs should obtain a share by birth. The trial court had dismissed the first suit and decreed the second. The High Court held that Ext. A1 (1965 partition) shows the property was not coparcenary but self-acquired by Kandan and Ramankutty, hence Viswanathan v. Ramankutty does not assist the plaintiffs. On Ramankutty’s death in 2007, devolution occurs under the Hindu Succession Act to his legal heirs and to Gopi’s heirs. The court held the plaintiffs are entitled to a 1/7th share in the schedule properties, with the defendants retaining the remainder. A preliminary decree to that effect was passed, with a 90-day window for final decree; suits adjourned sine die; costs borne out of the estate; receiver discharged after final decree; equity to be settled at final decree. Both appeals were allowed in terms of the modified decree.

Provisions of Law Cited

Hindu Succession Act

Legal Doctrines & Maxims

Equity shall be worked out at the time of passing of final decree
Coparcenary rights under Hindu law

Submissions & Arguments

Contentions of Appellants / Petitioners

The appellants contend that the property is coparcenary and that Gopi obtained birth rights; Ext A1 (1965 partition) and Ext A2/A3 school extracts allegedly support birth on the part of Gopi; They challenge the 1973 Ext B5 partition on the ground that it did not bind Gopi and his successors and seek a 1/7th share in the estate as per Hindu succession principles, arguing that the earlier partition and birth rights should be recognized.

Contentions of Respondents

The respondents contend that Ext A1 shows the property was self-acquired by Kandan and Ramankutty, not coparcenary; Thus, the 1965 partition is not a coparcenary partition and Viswanathan v. Ramankutty has no bearing on this case; After Ramankutty’s death (2007), devolution follows the Hindu Succession Act to legal heirs and to Gopi’s heirs; They contend that the earlier partition should stand, and the appellants’ claim should be restricted to their legal heirs’ shares as per the final decree process.

Cited Precedents (1)

Case Name	Citation	Treatment	Explanation
Viswanathan v. Ramankutty and others	1975 KHC 11	Distinguished	The court notes that the legal position in Viswanathan does not assist the plaintiffs in the present case.

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Extracted Judgment Text

Exact text extracted from official judgment records.

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE P.SOMARAJAN** **MONDAY, THE 4[TH] DAY OF OCTOBER 2021 / 12TH ASWINA, 1943** **RFA NO. 630 OF 2016** **AGAINST THE JUDGMENT AND DECREE DATED 01.06.2016 IN OS 168/2010 OF PRINCIPAL SUB COURT, PALAKKAD** ## **APPELLANTS/PLAINTIFFS:** **1 MEENA AGED 44 YEARS W/O GOPI (GOVINDAKUTTY), & D/O PONNUCHAMI, THEKKEMKUNNAM, KOTTEKKAD,PALAKKAD.** **2 NALAN GOPI S/O GOPI(GOVINDANKUTTY), AGED 11, (MINOR)NEAR AMRITHA SCHOOL, THEKKEMKUNNAM,KOTTEKKAD, PALAKKAD. REPRESENTED BY THE MOTHER AND NEXT FRIEND MEENA, W/O GOPI (GOVINDANKUTTY)& D/O PONNUCHAMI, AGED 44,NEAR AMRITHA SCHOOL, THEKKEMKUNNAM, KOTTEKKAD,PALAKKAD.** **3 ADARSH GOPI S/O GOPI (GOVINDANKUTTY) AGED 7 (MINOR), NEAR AMRITHA SCHOOL, THEKKEMKUNNAM,KOTTEKKAD, PALAKKAD. REPRESENTED BY THE MOTHER AND NEXT FRIEND, MEENA, W/O GOPI (GOVINDANKUTTY),& D/O PONNUCHAMI, AGED 44,NEAR AMRITHA SCHOOL, THEKKEMKUNNAM,KOTTEKKAD, PALAKKAD.** **BY ADVS. SRI.SAJAN VARGHEESE K. SRI.LIJU. M.P SMT.LILLU L. KRISHNAN** ## **RESPONDENTS/DEFANDANTS:** - **1 BHASKARAN S/O RAMANKUTTY, AGED 58, KOOTTALAPURAKKAL HOUSE,KOTTEKKAD POST, PALAKKAD-678732.** **2 CHENTHAMARA @ KANNAN, AGED 48, S/O.RAMANKUTTY, KOOTTALAPURAKKAL HOUSE, KOTTEKKAD POST, PALAKKAD-678732.** RFA Nos.630/2016 & 780/2016 2 - **3 PUSHPALATHA D/O. RAMANKUTTY, AGED 54, KOOTTALAPURAKKAL HOUSE,KOTTEKKAD POST, PALAKKAD-678732.** - **4 SUSHEELA, D/O RAMANKUTTY, AGED 50, KOOTTALAPPURAKKAL HOUSE,KOTTEKKAD POST, PALAKKAD -678732.** - **5 LALITHA D/O RAMANKUTTY, AGED 48, KOOTTALAPURAKKAL HOUSE,KOTTEKKAD POST, PALAKKAD-678732.** - **6 KAMALAM W/O RAMANKUTTY, AGED 73, KOOTTALAPURAKKAL HOUSE,KOTTEKKAD POST, PALAKKAD-678732.** - **7 VELANKUTTY(DIED) S/O LATE KANDAN, AGED 86, KOOTTALAPURAKKAL HOUSE,KOTTEKKAD POST, PALAKKAD-678732.** - **[THE RESPONDENTS 8 TO 16 ARE RECORDED AS THE LEGAL REPRESENTATIVES OF DECEASED 7TH RESPONDENT VIDE ORDER DATED 01/06/2018 IN IA.823/2018].** - **8 RAJAN S/O VELANKUTTY, AGED 64, KOOTTALAPURAKKAL HOUSE, KOTTEKKAD POST,PALAKKAD-678732.** - **9 RAMAKRISHNAN S/O VELANKUTTY, AGED 61, KOOTTALAPURAKKAL HOUSE,KOTTEKKAD POST, PALAKKAD-678732.** - **10 UNNIKRISHNAN S/O VELANKUTTY, AGED 58, RESIDING AT KRISHNA NAGAR,UMMINI, DHONI POST, PALAKKAD-678705.** - **11 BALAN** - **S/O VELANKUTTY, AGED 56, KOOTTALAPPURAKKAL HOUSE,KOTTEKKAD POST, PALAKKAD-678732.** - **12 MANI S/O VELANKUTTY, AGED 52, KOOTTALAPURAKKAL HOUSE, KOTTEKKAD POST, PALAKKAD-678732.** RFA Nos.630/2016 & 780/2016 3 - **13 RUGMINI** - **W/O LATE SIVARAMAN, AGED 66,KOOTTALAPURAKKAL HOUSE, KOTTEKKAD POST,PALAKKAD-678732.** - **14 ANILKUMAR** **S/O LATE SIVARAMAN, AGED 45, KOOTTALAPURAKKAL HOUSE,KOTTEKKAD POST, PALAKKAD-678732.** - **15 AJESH S/O LATE SIVARAMAN, AGED 42, KOOTTALAPURAKKAL HOUSE,KOTTEKKAD POST, PALAKKAD-678732.** - **16 VELLACHI** **W/O VELANKUTTY, AGED 88,KOOTTALAPURAKKAL HOUSE,KOOTTEKKAD POST, PALAKKAD-678732.** **R1-R10, R12-R14, R16 BY ADVS.** **SRI.JOSE JOSEPH (CHEMPLAYIL) SRI.K.I.MAYANKUTTY MATHER** **ADV. SRI.P.R.VENKATESH - ADV. RECEIVER ADV. SRI.PRABHASANKER - ADV. RECEIVER** **THIS REGULAR FIRST APPEAL HAVING COME UP FOR HEARING ON 04.10.2021, ALONG WITH RFA.780/2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** RFA Nos.630/2016 & 780/2016 4 ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE P.SOMARAJAN** **MONDAY, THE 4[TH] DAY OF OCTOBER 2021 / 12TH ASWINA, 1943 RFA NO. 780 OF 2016** **AGAINST THE DECREE AND JUDGMENT DATED 01.06.2016 IN OS.NO.124/2011 OF PRINCIPAL SUBORDINATE COURT,PALAKKAD.** ## **APPELLANTS/DEFENDANTS 3 TO 5:** **1 MEENA W/O LATE GOPI (S/O RAMANKUTTY), D/O. PONNUCHAMI,AGED 44 YEARS, HINDU, RESIDING AT NEAR AMRITHANANDAMAYI SCHOOL,THEKKEMKUNNAM,KOTTEKKAD,PALAKKAD** - **2 NALAN GOPI (ATHUL) S/O LATE GOPI ,AGED 9 YEARS, (MINOR REPRESENTED BY FIRST APPELLANT MOTHER) STUDENT, RESIDING AT NEAR AMRITHANANDAMAYI SCHOOL, THEKKEMKUNNAM , KOTTEKKAD , PALAKKAD** - **3 ADARSH GOPI, S/O LATE GOPI ,AGED 5 YEARS, (MINOR REPRESENTED BY FIRST APPELLANT MOTHER) STUDENT, RESIDING AT NEAR AMRITHANANDAMAYI SCHOOL, THEKKEMKUNNAM , KOTTEKKAD , PALAKKAD** **BY ADVS.** **SRI. SAJAN VARGHEESE K. SRI. LIJU M.P. SRI. ABE RAJAN** ## **RESPONDENTS/PLAINTIFFS AND DEFENDANTS 1,2,6:** - **1 PUSHPALATHA,** - **D/O. RAMANKUTTY,AGED 52 YEARS, RESIDING AT KOOTTALPURAKKAL, KOTTEKKAD AMSOM,PALAKKAD TALUK** - **2 SUSHEELA** **D/O. RAMANKUTTY, AGED 48 YEARS, RESIDING AT KOOTTALAPURAKKAL, KOTTEKKAD AMSOM, PALAKKAD TALUK.** RFA Nos.630/2016 & 780/2016 5 - **3 LALITHA,** **D/O RAMANKUTTY, AGED 46 YEARS, RESIDING AT KOOTTALAPURAKKAL, KOTTEKKAD AMSOM, PALAKKAD TALUK.** ## **4 BHASKARAN,** **S/O RAMANKUTTY, AGED 54 YEARS, RESIDING AT KOOTTALAPURAKKAL, KOTTEKKAD AMSOM, PALAKKAD TALUK.** ## **5 CHENTHAMARA@ KANNAN,** **S/O RAMANKUTTY, AGED 46 YEARS, RESIDING AT KOOTTALAPURAKKAL, KOTTEKKAD AMSOM, PALAKKAD TALUK.** ## **6 KAMALAM, AGED 71 YEARS,** **W/O RAMANKUTTY, AGED 48 YEARS, RESIDING AT KOOTTALAPURAKKAL, KOTTEKKAD AMSOM, PALAKKAD TALUK.** **R1-R6 BY ADVS. SRI.K.I.MAYANKUTTY MATHER, SRI.P.RAHUL** **THIS REGULAR FIRST APPEAL HAVING COME UP FOR HEARING ON 04.10.2021, ALONG WITH RFA.630/2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** RFA Nos.630/2016 & 780/2016 6 ## **JUDGMENT** A suit for partition in O.S.No.168/2010 was dismissed by the trial court against, which R.F.A.No.630/2016 was preferred by the plaintiffs therein. The other suit O.S.No.124/2011 was decreed grating preliminary decree for partition, against, which R.F.A.No.780/2016 was filed. 2. The claim of plaintiffs in O.S.No.168/2010, who are the wife and children of Gopi, the deceased son of Ramankutty, is that the property is a coparcenary property and hence their predecessor Gopi obtained right by birth and the partition entered into in the year 1973 by his father Ramankutty and two brothers Bhaskaran and Chenthamara @ Kannan under Ext.B5 is not binding on him and his estate over the property. In order to show the RFA Nos.630/2016 & 780/2016 7 date of birth, Exts.A2 and A3 school extract and electoral ID were relied on by the plaintiffs. 3. Going by the mother document of partition deed of the year 1965, Ext.A1, it is clear that the property was acquired jointly by three persons Kandan and his two sons Velankutty and Ramankutty. It is their self acquisition and hence cannot be construed as a coparcenary property and no right would devolve by birth. Hence, the legal position settled in **Viswanathan v. Ramankutty and others (1975 KHC 11)** will not render any assistance to the case advanced by the plaintiffs. 4. But, Ramankutty died on 23/6/2007, after the commencement of Hindu Succession Act and his property would devolve upon his legal heirs defendants 1 to 6 and the legal heirs of deceased son Gopi. As such, the RFA Nos.630/2016 & 780/2016 8 plaintiffs will get 1/7[th] share over the property left out by Ramankutty by virtue of Ext.B5 partition of the year 1973. 5. A schedule is the property allotted to the share of Ramankutty under Ext.A1 partition of the year 1965 and B schedule is the property left out in common in that document and C schedule is the movable property. Hence the decree of the trial court has to be modified by allowing both the appeals in the following terms: The plaintiffs in O.S.No.168/2010 are jointly entitled to 1/7[th] share out of the schedule properties by metes and bounds and the plaintiffs in O.S.No.124/2011 are entitled to 1/7[th] share over the plaint schedule properties by metes and bounds and a preliminary decree is passed modifying the decree of the trial court. The parties are at liberty to apply for passing final decree RFA Nos.630/2016 & 780/2016 **==> picture [8 x 9] intentionally omitted <==** within 90 days. The suit will stand adjourned sine die. The cost of the suit shall be borne out of the estate. Receiver shall be discharged only after passing of final decree for effecting delivery. Equity shall be worked out at the time of passing of final decree with the available extent for partition. Both the appeals will stand allowed accordingly. **Sd/-** ## **P.SOMARAJAN** **JUDGE** SPV