Sarawathy Amma v. Padmanabhan Nair and others

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE THOMAS P.JOSEPH FRIDAY, THE 5TH DAY OF JULY 2013/14TH ASHADHA, 1935 FAO.No. 311 of 2008 -----------------------A.S.89/2002 OF THE DISTRICT COURT, PALAKKAD DATED 19.8.2008 OS 501/1993 of PRL.MUNSIFF COURT, PALAKKAD DATED 28.11.2001 APPELLANT(S): ------------------------ SARAWATHY AMMA, D/O. CHERONA AMMA, 60 YEARS, ILLIKKUNNATHU HOUSE, SARASWATHY NIVAS, KINAVALLUR PARLI, PALAKKAD. BY ADVS.SRI.G.SREEKUMAR (CHELUR) SMT.PREETHY KARUNAKARAN RESPONDENT(S): ---------------------------- 1. PADMANABHAN NAIR, S/O. MEENAKSHI AMM, 73 YEARS, ARADHANA, KINVALLUR PARLI, PALAKKAD. 2. CHINNAMMU AMMA, W/O. LATE MANIKKAN NAIR, 85 YEARS, MANATTIL HOUSE KINAVALLUR, PARLI, PALAKKAD. 3. JANAKIKUTTY AMMA, D/O. LATE MANIKKAN NAIR, 70 YEARS, MANATTIL HOUSE KINAVALLUR, PARLI, PALAKKAD. 4. KUMARI, D/O. LATE MANIKKAN NAIR, 60 YEARS, MANATTIL HOUSE, KINAVALLUR PARLI, PALAKKAD. 5. M.K. NAIR, S/O. LATE MANIKKAN NAIR 68 YEARS, MANATTIL HOUSE, KINAVALLUR PARLI, PALAKKAD. 6. RAJAGOPAL, S/O. LATE MANIKKAN NAIR 65 YEARS, MANATTIL HOUSE, KINAVALLUR PARLI, PALAKKAD. 7. VIJAYAN, S/O. LATE MANIKKAN NAIR 63 YEARS, MANATTIL HOUSE, KINAVALLUR 8. KUTTIKRISHNAN NAIR @ CHELLAPPAN NAIR, S/O. LATE JANAKI AMMA, 86 YEARS, MUTHEDATHUHOUSE KINAVALLUR, PARLI, PALAKKAD. FAO.No. 311 of 2008 -2- 9. AMMU, D/O. KUTTAPPAN NAIR, 50 YEARS, KARODE HOUSE, KINAVALLUR, PARLI PALAKKAD 10. RAJAN, S/O. KUTTAPPAN NAIR, 48 YEARS, KARODE HOUSE, KINAVALLUR, PARLI PALAKKAD 11. UNNI, S/O.KUTTAPPAN NAIR, 51 YEARS, KARODE HOUSE, KINAVALLUR, PARLI PALAKKAD 12. GOPI, S/O. LATE CHINNAN NAIR, 63 YEARS, KARODE HOUSE, KINAVALLUR PARLI, PALAKKAD 13. VELAYUDHAN,S/O. MEENAKSHI AMMA, 71 YEARS, 22 CM LINE, CHETPET MADRAS 600 031. 14. GANGADHARAN, S/O. LATE MEENAKSHI AMMA, 68 YEARS, GEETHA NIVAS, PUDUPARIYARAM PALAKKAD. 15. PRABHAKARAN, S/O. LATE MEENAKSHI AMMA, 66YEARS, CM LINE 14, CHETPET MADRASS 600 031. 16. DEVAYANI, D/O. LATE MEENAKSHI AMMA, 65 YEARS, C/O. M. RAGHAVAN NAIR, BLOCK NO. IB, STREET NO. 40, SECTION 8 P.O. BHILAI, STEEL PROJECT, DURG DISTRICT M.P. 17. VASANTHAKUMARI, D/O. DEVAYANI AMMA, 42 YEARS, C/O. M. RAGHAVAN NAIR, BLOCK NO.IB STREET NO. 40 SECTION 8, P.O. BHILAI STEEL, PROJECT DURG DISTRICT, M.P. 18. PRASANNA KUMARI, D/O. DEVAYANI AMMA, 41 YEARS, C/O. M. RAGHAVAN NAIR, BLOCK NO.IB STREET NO. 40 SECTION 8, P.O. BHILAI STEEL, PROJECT DURG DISTRICT, M.P 19. RADHAKRISHNAN, S/O. DEVAYANI AMMA, 39 YEARS, C/O.M.RAGHANVAN NAIR, BLOCK NO.IB STREET NO. 40 SECTION 8, P.O. BHILAI STEEL, PROJECT DURG DISTRICT, M.P 20. MURALEEHARAN, S/O. DEVAYANI AMMA 35 YEARS, C/O.M.RAGHANVAN NAIR, BLOCK NO.IB STREET NO. 40 SECTION 8, P.O. BHILAI STEEL, PROJECT DURG DISTRICT, M.P FAO.No. 311 of 2008 -3- 21. THATHA @ NANI AMMA, D/O. DAKSHAYANI AMMA 85 YEARS, NO. 14, DESABANDHU STREET COIMBATORE 641 009. 22. KAMALAM, D/O. DAKSHAYANI AMMA 65 YEARSM NO. 14, DESABANDHU STREET COIMBATORE 641 009. 23. MURUKAN, S/O. KAMALA, 48 YEARS, NO. 14, DESABANDHU STREET, COIMBATORE 641 009. 24. LEELA, D/O. KAMALAM, 35 YEARS, NO. 14, DESABANDHU STREET, COIMBATORE 641 009. 25. VIJAYALEKSHMI D/O. KAMALAM, 43 YEARS, NO. 14, DESABANDHU STREET COIMBATORE 641 009. 26. BALASUBRAMANIAN, S/O. KAMALA, - 41 YEARS, NO. 14, DESABANDHU STREET COIMBATORE 641 009. 27. MADHUSOODHANAN, S/O. KAMALA, 39 YEARS, NO. 14, DESABANDHU STREET, COIMBATORE 641 009 28. KOMALAM, D/O. THATHA @ NANI, 56 YEARS, NO. 14, DESABANDHU STREET COIMBATORE 641 009 29. THANKAM @ VASANTHAKUMARI, D/O. SARADA, 44 YEARS, NO.14, DESABANDHU STREET COIMBATORE 641 009. 30. SULOCHANA, D/O. LATE PARUKKUTTY AMMA, 55 YEARS, NO.1, VENKITESH NAGAR JEMBULINGAM, MAIN ROAD, GKM COLONY MADRAS 600 092. 31. THANKAM @ BHUVANESWARI, W/O. LATE PARUKKUTTY AMMA, 53 YEARS, NO.1 VENKITESHNAGAR, JEMBULINGAM, MAIN ROAD GKM COLONY, MADRAS 600 092. 32. PADMAVATHY, D/O. LATE PARUKKUTTY AMMA 51 YEARS, NO.1, VENKITESHNAGAR JEMBULINGAM, MAIN ROAD, MAIN ROAD GKM COLONY MADRAS 600 092. 33. BABY, D/O. LATE PARUKKUTTY AMMA 49 YEARS, NO.1, VENKITESHNAGAR JEMBULINGAM, MAIN, ROAD GKM COLONY MADRAS 600 092 FAO.No. 311 of 2008 -4- 34. MANIKANTAN , S/O. LATE PARUKKUTTY AMMA 40 YEARS, NO.1, VENKITESHNAGAR JEMBULINGAM, MAIN ROAD, GKM COLONY MADRAS 600 092 35. THANKAMMA, W/O. LATE MURUKAN NAIR, 68 YEARS, ARADHANA, KINAVALLUR PARLI, PALAKKAD. 36. SWAMINATHAN, S/O. LATE MURUKAN NAIR 57 YEARS, ARADHANA, KINAVALLUR PARALI PALAKKAD 37. ACHUTHAN, S/O. LATE MURUKAN NAIR 55 YEARS, ARADHANA, KINAVALLUR PARALI PALAKKAD 38. RUGMINI, D/O. LATE MURUKAN NAIR 53 YEARS ARADHANA, KINAVALLUR, PARALI PALAKKAD 39. AMMALU, D/O. LATE MURUKAN NAIR, 52 YEARS ARADHANA, KINAVALLUR, PARALI PALAKKAD. 40. SOUDAMINI (DIED). 41. SANTHA, D/O. LATE PARAMESWARAN NAIR, 61 YEARS, MURUKANKOVIL STREET, EAST GOVINDAPURAM, DINDIGAL 624 001. 42. RAJAN (DIED). 43. RADHAKRISHNAN, S/O. LATE PARAMESWARAN NAIR, 55 YEARS, MURUKANKOVIL STREET EAST, GOVINDAPURAM, DINDIGAL 624 001. 44. SAKUNTHALA, W/O. LATE KRISHNANKUTTY NAIR, 71 YEARS, SAKUNTHALA NILAYAM, KINAVALLUR, PARALI PALAKKAD. 45. RADHAKRISHNAN, S/O. LATE KRISHNANKUTTY NAIR, 44 YEARS, SAKUNTHALA NILAYAM, KINAVALLUR, PARALI PALAKKAD. 46. UMA, D/O. LATE KRISHNANKUTTY NAIR, 41 YEARS, SAKUNTHALA, NILAYAM KINAVALLUR, PARALI, PALAKKAD. 47. JAYA, D/O. LATE KRISHNANKUTTY NAIR, 41 YEARS, SAKUNTHALA, NILAYAM KINAVALLUR, PARALI, PALAKKAD. FAO.No. 311 of 2008 -5- 48. NARAYANAN NAIR (DIED). 49. SETHUMADHAVAN NAIR, S/O. LATE CHERONA AMMA, 68 YEARS, CHERUVATHOR HOUSE ARAPPUZHA, PARALI, PALAKKAD. 50. VASUDEVAN NAIR , S/O. CHERONA AMMA, 65 YEARS, EDATHARA, PARALI PALAKKAD. 51. AMMUKUTTY @ KARTHIYANI AMMA, D/O. LATE CHERONA AMMA, 63 YEARS, ILLIKKUNNATHU HOUSE KINAVALLOR, PARLI, PALAKAD. 52. UNNIKRISHNAN, S/O. AMMUKUTTY @ KARTHIYANI AMMA, 45 YEARS, ILLIKKUNNATHU HOUSE KINAVALLOR, PARLI, PALAKAD. 53. MOHANDAS, S/O. AMMUKUTTY @ KARTHIYANI AMMA, 43 YEARS, ILLIKKUNNATHU HOUSE KINAVALLOR, PARLI, PALAKAD. 54. VENUGOPALAN, S/O. AMMUKUTTY @ KARTHIYANI AMMA, 41 YEARS, ILLIKKUNNATHU HOUSE KINAVALLOR, PARLI, PALAKAD. 55. CHANDRIKA, D/O. AMMUKUTTY @ KARTHIYANI AMMA, 39 YEARS, ILLIKKUNNATHU HOUSE KINAVALLOR, PARLI, PALAKAD. 56. THANKAM, D/O. AMMUKUTTY @ KARTHIYANI AMMA, 37 YEARS, ILLIKKUNNATHU HOUSE KINAVALLOR, PARLI, PALAKAD. 57. RAMANI, S/O. AMMUKUTTY @ KARTHIYANI AMMA 35 YEARS, ILLIKKUNNATHU HOUSE KINAVALLOR, PARLI, PALAKAD. 58. SASIKANTHAN, S/O. SARASWATHY AMMA, 39 YEARS, ILLIKKUNNATHU HOUSE, KINAVALLOR PARLI, PALAKAD. 59. SREEVALSAN, S/O. SARASWATHY AMMA, 37 YEARS, ILLIKKUNNATHU HOUSE, KINAVALLOR PARLI, PALAKAD. 60. USHA, D/O. SARASWATHY AMMA, 35 YEARS ILLIKKUNNATHU HOUSE, KINAVALLOR, PARLI PALAKAD. 61. UDAYA, D/O. SARASWATHY AMMA, 33 YEARS, ILLIKKUNNATHU HOUSE, KINAVALLOR PARLI, PALAKAD. FAO.No. 311 of 2008 -6- 62. MANI @ NARAYANAN NAIR, LATE THATHAMMA, 66 YEARS, PUSHPA NIVAS, KINAVALLOOR PARLI PALAKKAD. 63. KOTEESWARAN S/O. LATE CHINNAMMU AMMA, 47 YEARS, PUSHPA NIVAS KINAVALLOOR, PARLI, PALAKKAD. 64. SEEMANTHINI, W/O. LATE RAJAN, B.S. NIVAS, 16/460 (2), CHERAKKAD KUNNATHURMEDU, PALAKKAD. 65. MINI B.S. D/O. RAJAN, B.S. NIVAS, 16/460 (2), CHERAKKAD KUNNATHURMEDU, PALAKKAD. 66. SOWBHAGYALASHMI @ SHYLAJA, D/O. LATE RAJAN, B.S. NIVAS, 16/460 (2) CHERAKKAD, KUNNATHURMEDU, PALAKKAD. 67. B.BABU, S/O. LATE RAJAN B.S. NIVAS, 16/460 (2), CHERAKKAD KUNNATHURMEDU, PALAKKAD. 68. B.SURESH, S/O.LATE RAJU, B.S. NIVAS, 16/460 (2), CHERAKKAD KUNNATHURMEDU, PALAKKAD. 69. M.KARTHIYAYANI AMMA, 87 YEARS, PUSHPAVILAS, KINAVALLOR, PARALI PALAKKAD. 70. M.PUSHPAVALLY, D/O. M.KUTTIKRISHNAN, 60 YEARS, PUSHPAVILAS, KINAVALLOR PARALI, PALAKKAD. 71. M.RAMA, D/O. M.KUTTIKRISHNAN, 58 YEARS PUSHPAVILAS, KINAVALLOR, PARALI PALAKKAD. 72. M.SIVADASAN, S/O. M.KUTTIKRISHNAN, 67 YEARS PUSHPAVILAS, KINAVALLOR, PARALI PALAKKAD 73. M.NARAYANAN, S/O. M.KUTTIKRISHNAN 65 YEARS PUSHPAVILAS, KINAVALLOR, PARALI PALAKKAD 74. OMANA @ SUSEELA . T, 74 YEARS, THOTTAPPULLY HOUSE, VARODE POST KOTTAYI, PALAKKAD. 75. SNEHAPRABHA, 59 YEARS, THOTTUPPULLY HOUSE, VARODE POST KOTTAYI, PALAKKAD. FAO.No. 311 of 2008 -7- 76. SREEKANTH, 54 YEARS, THOTTAPPULLY HOUSE, VARODE POST KOTTAYI, PALAKKAD. 77. RADHAMOHAN, 54 YEARS, THOTTUPPULLY HOUSE, VARODE POST, KOTTAYI PALAKKAD. (Respondents 40, 42 and 48 are reported dead. R41 to R43 are recorded as the legal heirs of R40. R64 to R68 are recorded as legal heirs of R42 and R72 to R77 are recorded as the legal heirs of R48 as per order dated 23.10.2009) BY ADV. SRI.VINOD KUMAR.C , FOR R2 AND R62 THIS FIRST APPEAL FROM ORDERS HAVING BEEN FINALLY HEARD ON 0507-2013, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## **THOMAS P. JOSEPH, J** - - - - - - - - - - - - - - - - - ## F.A.O.311 OF 2008 - - - - - - - - - - - Dated this the 5[th] day of July, 2013 - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - ## **JUDGMENT** The appeal arises from the judgment dated 19.08.2008 in A.S.89 of 2002 of the District Court, Palakkad. The learned District Judge set aside dismissal of O.S.501 of 1993 of the Munsff's Court, Palakkad, held that the suit properties are partible as claimed by the 1[st] respondent/plaintiff and remanded the case to the trial Court for deciding the shares. That remand is under challenge in the appeal. 2. The following substantial question of law is raised for a decision:- “whether in view of the recitals in Ext.A1 which is relied on by the 1[st] respondent/plaintiff as well, the lower appellate Court was right in concluding that the 1[st] respondent has partible right over the property” ? 3. It is not disputed that the suit properties originally belonged to Elamkulam mana in jenm and it was given on **FAO.311/08** 2 kanom to Moothedath tarwad as per document No.1019 of 1875. There was a partition in the Moothedath tarwad and item Nos.1 to 3 were allotted to the share of the Manicken Nair and others. As per Ext.A1, the kanom demise was renewed in the year, 1948 in favour of Manicken Nair, Janaki Amma, Parameswaran Nair, Cherona Amma and Chiruthevi Amma. The 1[st] respondent/plaintiff, claiming to be a member of the tarwad sought partition and separate possession of the share he claimed. 4. The appellant who is the 57[th] defendant contended that properties are not partiable and that the 1[st] respondent/plaintiff has no partiable right over it. It was also pleaded that there was an oral partition after Ext.A1 as per which item No.3 was allotted to the share of Manicken Nair and his mother, Janaki Amma who formed one branch. Item Nos.1 and 2 were allotted to the share of Parameswaran Nair, Cherona Amma and Chiruthevi Amma who formed another branch, Cherona Amma purchased the share of Parameswaran Nair in item Nos.1 and 2. She also purchased the share of Chiruthevi Amma in item **FAO.311/08** 3 Nos.1 and 2. Thus, she became the absolute owner of item Nos. 1 and 2. To prove the same, she produced Ext.B9, an unregistered receipt for Rs.75/- dated 10.01.1949. It is the further case of the appellant that Cherona Amma gifted item Nos.1 and 2 to the appellant as per Ext.P8. Thus the appellant claimed absolute right over item Nos.1 and 2. 5. The trial Court held that the renewal as per Ext.A1 is only in favour of the five tavazhies mentioned in Ext.A1 and hence the 1[st] respondent cannot lay hands on the suit properties. It also accepted the plea of oral partition, held that the 1[st] respondent/plaintiff has no partible right in the suit property and dismissed the suit. 6. In the appeal at the instance of the 1[st] respondent, the lower appellate Court found that the 1[st] respondent/plaintiff being a member of the original tarwad has a share in the properties and is entitled to demand partition. It also found that Ext.A1 was for the benefit of the tarwad and that the assignment order and purchase certificate in favour of Cherona **FAO.311/08** 4 Amma enured to the benefit of all the members of tarwad. The trial Court was directed to decide shares of the parties. 7. The learned counsel for the appellant argued that the lower appellate court has not considered the recitals in Ext.A1 which would show that there was a disruption of the original tarwad. According to the learned counsel, Ext.A1 was not in favour of the tarwad. Renewal as per Ext.A1 was in favour of the two tavazhies constructed by the five persons referred therein. It is contended that the 1[st] respondent was not a member of the said two tavazhies and hence has no right over the suit properties. It is also argued that the lower appellate Court was not right in reverting finding of the trial Court regarding oral partition in the light of the documentary evidence produced by the appellant. 8. The learned counsel for the 1[st] respondent has contended that there is no plea in the written statement regarding disruption of the original tarwad as per Ext.A1 and hence that question was not required to be decided. **FAO.311/08** 5 9. The appellant has contended that the 1[st] respondent/plaintiff is not a member of the tavazhi in favour of which there was a renewal of kanom as per Ext.A1. The trial Court, in paragraph 9 of its judgment has to held that Ext.A1 is only in favour of the tavazhies (constituted by the five persons referred in Ext.A1) and that the 1[st] respondent is not a member of those tavazhies. Hence it was necessary for the lower appellate Court to decide that question also in the light of recitals in Ext.A1 and other evidence on record. 10. On going through the judgment of the lower appellant Court I find that there was no consideration of the question whether there was a disruption of the original tarwad as recited in Ext.A1 and whether the renewal as per Ext.A1 was only in favour of the tavazhies of the persons stated therein. As Ext.A1 was before the lower appellate Court, that Court ought to have considered the said question as well. But, I am not going to the question whether in the absence of a specific plea in the written statement about disruption of the original tarwad the **FAO.311/08** 6 appellant could raise that contention. That question also is left for the decision of the lower appellate court. 11. In the light of the above, the judgment of the lower appellate Court and the findings therein under challenge cannot be sustained and is liable to be set aside. The lower appellate Court has to decide the appeal with reference to the contention of the appellant as regards disruption of the tarwad in the light of the recitals in Ext.A1 and other evidence the appellant has produced and all other issues involved in the Suit. The substantial question of law framed is answered as above. ## Resultantly, the appeal is allowed as under:- - i. Judgment dated 19.08.2008 in A.S.89 of 2002 of the District Court, Palakkad is set aside. - ii.A.S. 89 of 2002 is remitted to the District Court, Palakkad for fresh decision on all the issues involved in the Suit and raised in the appeal. The learned District Judge shall also **FAO.311/08** 7 decide the contention of the appellant as to the (alleged) disruption of the tarwad as stated in Ext.A1. - iii.Needless to say that contention of the 1[st] respondent that there is no specific contention raised by the appellant in the written statement regarding disruption of the tarwad shall also be considered by the learned District Judge. - iv.The learned District Judge is directed to dispose of the appeal within four months from the date of receipt of a copy of this judgment. - v. Parties are directed to appear in the District Court, Palakkad on 01.08.2013. ## **Sd/- THOMAS P. JOSEPH, Judge** ## mrcs //true copy// sd/- P.A.To Judge