Yesoda and others v Narayani and others

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE HARUN-UL-RASHID TUESDAY, THE 27TH JULY 2010 / 5TH SRAVANA 1932 SA.No. 600 of 1997(D) --------------------AS.77/1992 of SUB COURT, PAYYANNUR OS.141/1983 of MUNSIFF COURT, PAYYANNUR .................... APPELLANTS/APPELLANTS/PLAINTIFFS: ------------------- 1. YESODA, D/O.THEKKEPURAYIL JANAKI, VELLUR POST, PAYYANNUR, KANNUR DISTRICT. 2. MUKUNDAN, S/O.THEKKEPURAYIL JANAKI, -DO-DO- 3. KRISHNAN, S/O.THEKKEPURAYIL JANAKI, -DO-D0- 4. MELEPURAYIL NARAYAI, W/O. LATE KRISHNAN, -DO-DO- 5. VENUGOPALAN, S/O. MELEPURAYIL NARAYANI, -DO -DO- BY ADV. SRI.M.SASINDRAN RESPONDENTS/RESPONDENTS & 6 APPELLANTS/DEFENDANTS & 6 PLAINTIFFS: - -------------------- 1. NARAYANI, D/O.THAIVALAPPIL ERUVADI, VELLUR POST,PAYYANNUR, KANNUR DISTRICT. 2. THAIVLAPPIL THAMBAI, D/O.ERUVADI, -DO-DO- 3. BHASKARAN, S/O.THAIVALAPPIL EARUVADI, -DO-DO- 4. DHAKSHAYANI, D/O.THAIVALAPPIL ERUVADI, -DO-DO- 5. RAJITHA, D/O.THAIVALAPPIL EARUVADI, -DO-DO- 6. SATHISAN, S./O.MELEPURAYIL NARAYANI, -DO- -DO- ADV. SRI.K.S.MADHUSOODANAN FOR R1 SRI.T.V.JAYAKUMAR NAMBOODIRI FOR R1 THIS SECOND APPEAL HAVING BEEN FINALLY HEARD ALONG WITH CROSS APPEAL ON 27/07/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: **HARUN-UL-RASHID,J. -----------------------------S.A.NO.600 OF 1997 & Cross Appeal ------------------------------DATED THIS THE 27TH DAY OF JULY, 2010** ## **JUDGMENT** Plaintiffs in O.S.No.141/83 on the file of the Munsiff's Court, Payyannur are the appellants. The appeal is directed against the decree and judgment in A.S.No.77/92 on the file of the Sub Court, Payyannur. The suit was filed for partition and separate possession of the plaintiffs' 2/4th shares in the plaint schedule property. The trial court passed a decree for partition declaring that the plaintiffs 2 to 7 are entitled to 93/480 shares, the 2[nd] defendant is entitled to 147 shares and defendants 3 to 6 are entitled to 60 shares each and granted consequential reliefs. The Lower Appellate Court confirmed the judgment and decree passed by the trial court. The parties hereinafter are referred to as the plaintiffs and defendants as arrayed in the suit. 2. Plaintiffs are the legal heirs of Chemmaran and **-2-** ## S.A.600/97 Krishnan. Chemmaran, Krishnan and Narayani are the children of the lst defendant Eruvadi. It is the plaintiffs' case that defendants 1 and 2 and their predecessors-in-interest, namely Chemmaran, Krishnan have obtained possession of the plaint schedule property as per Ext.A1 registered marupat dated 25/6/1944 and that they were holding the property jointly. Plaintiffs 1 to 4 are the legal heirs of deceased Chemmaran and plaintiffs 5 to 7 are the legal heirs of deceased Krishnan. Plaintiffs claim 2/4 shares of the plaint schedule property. After the remand, the plaintiffs impleaded the supplemental defendants 3 to 6. 3. Defendants 1 and 2 in the written statement contended that the plaint schedule property is not identifiable. The main contention in the amended written statement is that Ext.A1 marupat mentioned in the plaint was executed for and on behalf of the thavazhi consisting of Chemmaran, Krishnan and defendants 1 and 2, that since it is a thavazhi property all such **-3-** ## S.A.600/97 members are entitled to share. 4. The trial court as well as the Appellate Court held on facts that the property is identifiable and that the plaint schedule property was obtained by the lst defendant in the name of herself and her minor children as thavazhi property as contended by defendants 1 and 2. The courts below held that all the members of the thavazhi are entitled to shares in the property and passed a preliminary decree for partition ordering division of property among the family members. 5. The learned counsel appearing for the appellants contended before this Court that the contention of defendants 1 and 2 that Ext.A1 is a thavazhi acquisition and therefore, thavazhi members are entitled to share the property is wrong. According to the learned counsel, the evidence in this case would go to show that the plaint schedule property is an acquisition of plaintiffs' predecessors, namely, Chemmaran, Krishnan and defendants 1 and 2 and therefore, the plaintiffs are **-4-** ## S.A.600/97 entitled to one half of the plaint schedule property. In order to consider such contention, the following facts are necessary. 6 Ext.A1 is a marupat dated 25/6/1944. By virtue of Ext.A1, the plaint schedule property was originally acquired by the lst defendant in her name as well as in the name of her children, namely, Chemmaran, Krishnan and Narayani. The recitals in Ext.A1 would show that the document was executed by the lst defendant for and on behalf of her minor children as well. The question to be considered is whether the acquisition Ext.A1 was for and on behalf of thavazhi of the lst defendant's mother or the same is a self-acquisition in the name of the mother and three children. The parties are Thiyyas of North Malabar following Marumakkathayam system. The trial court as well as the Lower Appellate Court held that the definition of thavazhi shows that the lst defendant and her children constituted a thavazhi and that she acquired the property in the year 1944 for herself and on behalf of her minor children. The fact finding **-5-** ## S.A.600/97 court held that the very nature of the acquisition shows that the lst defendant's intention is to enjoy the property by her thavazhi. The courts below rightly held that the normal presumption as per the customary law is “Joint holding is the rule and the individual holding is the exception and it is for the individual member who sets up separate title to make it out”. At the time of execution of Ext.A1, three children mentioned in the document were minors, were residing in the same house and were under the care and protection of the mother. Relying on the decision reported in **Viswanathan v. Raman Kutty and others (1975 KLT 434)** the trial court held that agriculturist's thavazhi acquiring lease for the benefit of the thavazhi. The Lower Appellate Court agreed in all respects with the findings of the trial court in relation to the nature and character of the acquisition. The Appellate Court also held on facts that the property was acquired by the lst defendant in the name of her three children and that the nature of acquisition shows that it partakes the character of thavazhi **-6-** ## S.A.600/97 property. The Lower Appellate Court also held that once it is found that the acquirers constituted a natural group and formed a thavazhi by themselves, there can hardly be any doubt that the acquisition should be presumed to be on behalf of the thavazhy. After referring to the contentions of the parties, the Lower Appellate Court also appreciated the facts and arrived at the very same conclusions. Thus, both the courts below concurrently found on facts that Ext.A1 is an acquisition for and on behalf of the thavazhi and therefore all the members of the thavazhi are entitled to share in the plaint schedule property. The conclusions arrived at by the courts below are based on facts and evidence. I fully agree with the findings recorded by the fact finding courts. Moreover, the findings are recorded solely based on the facts and evidence and this Court find that no grounds are made out by the appellants to interfere with the judgment and decree impugned in this appeal. No question of law much less any substantial questions of law arise for consideration in the appeal. **-7-** S.A.600/97 7. Defendants 2 to 6 filed a cross appeal challenging the findings of the courts below that lst plaintiff is the wife of deceased Chemmaran and plaintiffs 2 to 4 are the children born out of the wedlock subsisted between the deceased Chemmaran and the lst plaintiff. The courts below concurrently held that the plaintiffs 2 to 4 are the children born to Chemmaran through the lst plaintiff. The contention of the cross appellants was considered by both the courts below and on facts held that the contention is not sustainable. The cross appeal is devoid of any merit. In the result, the appeal and cross appeal fail and accordingly dismissed. No order as to costs. **HARUN-UL-RASHID, JUDGE.** ## **kcv**