Savithri v. K.P. Bhaskaran and others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR.JUSTICE K.HARILAL** **MONDAY, THE 11TH DAY OF AUGUST 2014/20TH SRAVANA, 1936** **RSA.No. 196 of 2004 (F) ------------------------** **AGAINST THE JUDGMENT IN AS 121/1998 of ADDITIONAL SUB COURT, KOTTAYAM DATED 30-08-2003.** **AGAINST THE JUDGMENT IN OS 786/1993 of ADDITIONAL MUNSIFF'S COURT,KOTTAYAM DATED 31-01-1997.** ## **APPELLANT/1ST RESPONDENT/PLAINTIFF:** **-----------------------------------** **SAVITHRI, AGED 42 YEARS, WIFE OF NARAYANAN, KARAKATTU PARAMBIL, CHINGAVANAM KARA, NATTAKOM VILLAGE.** **BY ADV. SRI.P.R.VENKETESH** **RESPONDENTS/APPELLANT & RESPONDENTS 3 TO 6/3RD DEFENDANT, AND DEFENDANTS 2, 4 TO 6:** **---------------------------------------------------------** **1. K.P. BHASKARAN, AGED 60 YEARS, SON OF PADMANABHAN, KARAKATTU HOUSE, CHINGAVANAM KARA, NATTAKOM VILLAGE.** **2. K.P. JANAKI, AGED 62 YEARS, WIFE OF SREEDHARAN, PUTHENTHARA HOUSE, NARAKATHARA P.O., KAVALAM, KUTTANAD TALUK.** **3. K.P. CHELLAMMA, AGED 56 YEARS, WIFE OF KUTTAPPAN, MULANTHANATHU KUZHIYIL VAKATHANAM P.O., KOTTAYAM.** **4. K.P. SUMATHI, AGED 54 YEARS, WIFE OF THANKAPPAN, POZHAMANGALATHU HOUSE, VADUTHALA, KOCHI.** **......2** **-2-** **5. K.P. VILASINI, AGED 40 YEARS, W/O. GOPALAN, MADATHILPARAMBIL HOUSE, KADUVAKULAM, PANACHIKADU VILLAGE, KOTTAYAM.** ## **ADDITIONAL RESPONDENTS 6 TO 8:** **6. SHEEBA, D/O. K.P. BHASKARAN, KARAKATTU HOUSE, CHINGAVANAM KARA, NATTAKOM VILLAGE.** **7. SHANTI, D/O. K.P. BHASKARAN, KARAKATTU HOUSE, CHINGAVANAM KARA, NATTAKOM VILLAGE.** **8. SHEELA, D/O. K.P. BHASKARAN, KARAKATTU HOUSE, CHINGAVANAM KARA, NATTAKOM VILLAGE.** **ADDITIONAL RESPONDENTS 6 TO 8 ARE IMPLEADED AS PER ORDER IN I.A.NO.95/09 IN RSA NO.196/04 DATED 11/8/2014.** **R1 BY ADV. SRI.RAJEEV V.KURUP R2 TO R5 BY ADV. SRI.NAGARAJ NARAYANAN R2 TO R5 BY ADV. SRI.RAJAN VELLOTH R2 TO R5 BY ADV. SRI.SAIJO HASSAN R2 TO R5 BY ADV. SRI.A.S.SABU ADDL.R7,8 BY ADV. SRI.RAJEEV V.KURUP** **THIS REGULAR SECOND APPEAL HAVING BEEN FINALLY HEARD ON 11-08-2014, ALONG WITH RSA. 197/2004, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ## **K. HARILAL, J.** **-----------------------------------------------------R.S.A. Nos. 196 & 197 of 2004 -----------------------------------------------------Dated this the 11[th] day of August, 2014** ## **JUDGMENT** These Regular Second Appeals are directed against the judgment and decree passed in A.S.No.121/98 on the files of the Additional Sub Court, Kottayam, arising from the judgment and decree in O.S.No.786/93 on the files of the Additional Munsiff's Court, Kottayam. The appellant in R.S.A.No.196/04 is the plaintiff in O.S.No.786/93 on the files of the Additional Munsiff's Court, Kottayam, and the 1[st] respondent in A.S.No.121/98 of the Additional Sub Court, Kottayam. The defendants 2 to 6 are the respondents in R.S.A.No.196/04. R.S.A. No.197/04 is **R.S.A. Nos. 196 & 197 of 2004** -: 2 :- filed by the defendants 2, 4, 5 and 6 in the same Original Suit. 2. The suit was one for partition. All, except the 3[rd] defendant, remained ex parte. The 3[rd] defendant resisted the claim of the plaintiff for partition. The 1[st] defendant is the mother of the plaintiff. Sri. Padmanabhan, the husband of the 1[st] defendant and the father of the defendants 2 to 6, expired on 7/2/1988. The plaintiff and the defendants 2 to 6 are the only legal heirs of the deceased Padmanabhan. According to the plaintiff, they belong to Hindu Viswakarma Community governed by the Hindu Succession Act. The plaint schedule property, having an extent of 24 cents of land in Nattakom Village, belonged to the deceased Padmanabhan. The total extent of the property was 33 cents and out of it, 9 cents of property was given to the plaintiff, as per the settlement deed No.2533 dated 2/8/1979 of Kottayam SRO at the time of the marriage of the plaintiff. The **R.S.A. Nos. 196 & 197 of 2004** -: 3 :- father has constructed two buildings in the plaint schedule property. Building No.288/111 is a residential building which was constructed about 36 years back of his death. The other building is a workshop of his business. The father died intestate. So, the plaintiff is entitled to get 1/7[th] share of the plaint schedule property. Though the plaintiff had demanded partition and separate possession, the defendants 2 to were not amenable for the same. Hence the suit. 3. The 3[rd] defendant filed a written statement denying the contention that the plaintiff and the defendants are the Hindu Viswakarma Community and they are governed by the Hindu Succession Act. Before the death of the father, 9 cents of property was given to the share of the plaintiff and her husband and that had been received by the plaintiff towards her share. At the time of execution of that settlement deed in favour of the plaintiff, the deceased father had **R.S.A. Nos. 196 & 197 of 2004** -: 4 :- only 33 cents of property, including the 9 cents of property settled in favour of the plaintiff. 9 cents of property was given out of total 33 cents, as the share of the plaintiff. After the settlement deed, the plaintiff has demarcated the 9 cents of property and she is residing in the house put up therein. Since the plaintiff has received 9 cents of property towards her share, out of the property of the deceased father, she has no right to further claim for partition. Hence the suit is barred by estoppal. In short, the plaintiff has given more extent of property than actually she is entitled as her share. The building and the workshop in the plaint schedule has been constructed by the 3[rd] defendant. He is doing the workshop business also. The 3[rd] defendant has modified the old building using his own fund and he is residing in the house with his family. Towards the share of the defendants 2 to 6, out of the property of the father, they were given gold ornaments and money at the time of marriage. So, **R.S.A. Nos. 196 & 197 of 2004** -: 5 :- they are not entitled for any further share from the property of the father. It is denied that the plaint schedule property is in the joint possession and ownership of the plaintiff and the defendants. 4. The plaintiff was examined as P.W.1 and an Advocate Commissioner was examined as P.W.2 and Ext.A1 was marked on the side of the plaintiff. The 3[rd] defendant was examined as D.W.1 and one witness was examined as D.W.2. Ext.B1 was marked on the side of the defendants. Exts.C1 to C3 were marked as Court Exhibits. After considering the evidence on record, the court below decreed the suit. Feeling aggrieved, the 3[rd] defendant preferred the above appeal. But the Appellate Court, after re-appreciating the evidence or records, reversed the findings of the trial court and allowed the appeal. These R.S.As. are filed challenging the divergent findings. 5. The leaned counsel for the appellants advanced arguments challenging the findings of the **R.S.A. Nos. 196 & 197 of 2004** -: 6 :- appellate court that the plaintiff and the defendants belong to Kammala Community and they are governed by the Hindu Mithakshara Law as modified by the custom in the matter of succession. The learned counsel further drew my attention to the pleadings and submits that there is no specific pleading as to the above finding. In short, the court below went wrong by arriving at such a finding without pleadings. 6. Per contra, the learned counsel for the respondents advanced arguments to justify the findings of the appellate court as regards the determination of law applicable to the plaintiff and the defendants. According to him, in the written statement, the 3[rd] defendant specifically denied the averment that they belong to Viswakarm Community and they are governed by the Hindu Succession Act in the matter of succession. Though, it was not specifically stated that the plaintiff and the **R.S.A. Nos. 196 & 197 of 2004** -: 7 :- defendants are Kammalas and they are governed by the Hindu Mithakshara Law in the written statement; later the 3[rd] defendant had filed I.A.No.84/97 for incorporating that plea in the written statement by way of amendment. But the trial court, without considering the relevancy of the amendment, dismissed the said petition. But the appellate court, after accepting the above plea also, as a part of the pleadings in the written statement, allowed the appeal on a finding that for incorporating such a settled legal position, the case need not be remanded back. The traditional black smith are Kammalas and there is no caste involved in the name of Viswakarma. But it is only a term generally using to represent 27 subcastes. The findings of the appellate court as to the law applicable to the plaintiff and the defendants in the matter of succession are still supported by the decisions reported in Damodaran v. Palu (1986 KLT 1259); Thankammal v. Madhavi Amma & Others **R.S.A. Nos. 196 & 197 of 2004** -: 8 :- (1966 KLT 181); Mrs. Lilly Mercilin Lewis v. Chanji Nani & Others (1954 KLT 631); Velayudhan Nair v. Gouri Amma (1953 KLT SN page 8 - Case No.19) etc. In Thankammal v. Madhavi Amma & Others (1966 KLT 181) and Damodaran v. Palu (1986 KLT 1259). In these decisions, it has been categorically held that the law applicable to Kammalas is the Hindu Mitakshara Law as modified by customs. 7. Heard both sides and I have given my anxious considerations to the rival contentions advanced at the Bar in view of the divergent findings of the courts below. Going by the judgment passed in appeal, I am of the view that the first and foremost question to be considered is whether the appellate court can be justified in accepting the matters sought to be incorporated in the written statement by way of amendment without giving an opportunity to the opposite party, particularly when the trial court dismissed I.A.No.84/97 filed for incorporating the plea **R.S.A. Nos. 196 & 197 of 2004** -: 9 :- that the plaintiff and the defendants are Kammalas governed by the Hindu Mitakshara Law. I am of the opinion that the appellate court went wrong by accepting the above plea without making amendments in the pleadings and also granting an opportunity to the opposite party to file objection to the above amendment. The above plea was accepted in appeal without allowing I.A.No.84/97 on a finding that the law is settled by the aforesaid decisions of this Court. Even if the law is settled, it was incumbent upon the party to make pleadings in the written statement in the light of the law settled by the court. Going by the order passed by the appellate court itself, it could be seen that the counsel for the appellant before the lower appellate court throughout his argument was urging for allowing that amendment and remanding the case to consider the fact afresh. In order to substantiate the said contention that they are Kammalas governed by the Hindu Mithakshara **R.S.A. Nos. 196 & 197 of 2004** -: 10 :- law, the defendants have produced some additional documents also in the appeal and urged for accepting those documents. But, it is seen that the appellate court has not passed any order either accepting the documents or rejecting the documents. Thus, it is seen that the findings are not supported by the pleadings and documents produced to substantiate the said pleadings. The amendment sought to be incorporated in the written statement is significant as well as decisive and as the same determines the law applicable to the plaintiff and defendants in the matter of succession. More importantly, it is necessary for the purpose of determining the real question in controversy between the parties. Both parties should have been given an opportunity to adduce evidence on the basis of the said pleadings and documents produced thereunder. Consequently, I find that the impugned judgment passed in appeal is vitiated by a procedural irregularity as well as gross **R.S.A. Nos. 196 & 197 of 2004** -: 11 :- illegality apparent on the face of the record itself. Therefore, the judgments passed in O.S.No.786/1993 and A.S.No.121/1998 will stand set aside and the matter is remanded back to the trial court for fresh consideration after incorporating the amendments in the written statement. Needless to say, I.A.No.84/97 will stand allowed. 8. In the light of the above discussions, these Regular Second Appeals will stand allowed and the matter is remitted back to the trial court for fresh consideration and disposal after affording an opportunity to both parties to adduce evidence, at any rate, within a period of six months from today. Sd/- ## **(K. HARILAL, JUDGE)** ## **Nan/** //true copy// P.S. to Judge