Kerala High Court

Vadakkoth Chembuvalappil Devaki Amma vs Vadakkoth Chembuvalappil ... on 29 February, 2024

Author: Sathish Ninan

Bench: Sathish Ninan

            IN THE HIGH COURT OF KERALA AT ERNAKULAM
                               PRESENT
            THE HONOURABLE MR. JUSTICE SATHISH NINAN
  THURSDAY, THE 29TH 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 29th 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 :-

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.

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

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.

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."

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

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

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

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.

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

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

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

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.

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