Kerala High Court
Indulekha,(Died)Lrs Recorded vs Bhagyalakshmi on 7 May, 2024
Author: T.R. Ravi
Bench: T.R.Ravi
R.S.A.No.1484 of 2013
1
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE T.R.RAVI
TUESDAY, THE 7TH DAY OF MAY 2024 / 17TH VAISAKHA, 1946
RSA NO. 1484 OF 2013
(AGAINST THE JUDGMENT AND DECREE IN A.S.28/2012 DATED 21.08.2013 ON
THE FILE PF THE 3RD ADDITIONAL DISTRICT JUDGE, KOZHIKODE, WHICH WAS
AGAINST THE JUDGMENT AND DECREE IN O.S.632/2010 DATED 23.12.2011 ON
THE FILE OF THE PRINCIPAL MUNSIFF COURT-I, KOZHIKODE)
APPELLANTS/APPELLANTS/DEFENDANTS 2 TO 7:
1 INDULEKHA,(DIED)LRS RECORDED
AGED 77 YEARS, W/O.CHANDRASEKHARAN, KOYILOTH ERECHAN
KANDIYIL, PRANAVAM HOUSE, EDAKKAD AMSOM, PUTHIYANGADI
DESOM, KOZHIKODE TALUK. (IT IS RECORDED THAT THE 1ST
APPELLANT DIED AND SHE IS SURVIVED BY HER LEGAL
REPRESENTATIVES WHO ARE APPELLANTS 2 TO 6 AS PER ORDER
DATED 31.10.2022 VIDE MEMO DATED 11.04.2022.)
2 JANAKI K.E
AGED 59 YEARS,
D/O.CHANDRASEKHARAN, 38/130B, LAVANYA, ATHANIKKAL EAST
P.O, WEST HILL, KACHERI AMSOM DESOM OF KOZHIKODE TALUK.
3 GOPALAKRISHNAN
AGED 56 YEARS
S/O.CHANDRASEKHARAN, PRANAVAM HOUSE, EDAKKAD AMSOM,
PUTHIYANGADI DESOM, KOZHIKODE TALUK.
4 DHANALAKSHMI
AGED 51 YEARS,
D/O.CHANDRASEKJHARAN, PULIKKOOLPURAYIL HOUSE, P.O
PULIKALPARA, NARIKKUNNI, NARIKKUNNI AMSOM DESOM,
KOZHIKODE TALUK.
5 SHEEJAKUMARI
AGED 48 YEARS
D/O.CHANDRASEKHARAN, PALLIKKARA HOUSE, PERUMITHIRUTHI,
ELATHUR AMSOM, PERUMTHIRUTHI DESOM, KOZHIKODE TALUK.
R.S.A.No.1484 of 2013
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6 K.E.SHYMADEVI
AGED 45 YEARS
D/O.CHANDRASEKHARAN, M.K NIVAS, MEETHALEPEEDIKA,
DHARMADAM, DHARMADAM AMSOM DESOM, THALASSERY TALUK.
BY ADVS.
SRI V.V.SURENDRAN
SRI P.A.HARISH
RESPONDENTS/RESPONDENTS/PLAINTIFF AND 1ST DEFENDANT:
1 BHAGYALAKSHMI
D/O.CHANDUKUTTY,AGED 55 YEARS, SREELAKSHMI HOUSE, VELOOR
AMSOM DESOM, POST ATHOLI, KOYILANDY TALUK, KOZHIKODE- 673
315.
2 PAVITHRAN
S/O.CHANDUKUTTY, AGED 74 YEARS, KOYILOTH ERECHANKANDY
HOUSE, EDAKKAD AMSOM, PUTHIYANGADI DESOM, KOZHIKODE
TALUK, RESIDING AT PAVITHRALAYAM, POST PUTHIYANGADI,
KOZHIKODE- 673 021.
BY ADVS.
SRI M.PROMODH KUMAR
SRI.A.RANJITH NARAYANAN
SRI M.G.ASHOKAN
SMT.MAYA CHANDRAN
SRI S.K.SAJU
MS.A.SIMI
THIS REGULAR SECOND APPEAL HAVING COME UP FOR
ADMISSION ON 18.12.2023, THE COURT ON 7.5.2024 DELIVERED
THE FOLLOWING:
R.S.A.No.1484 of 2013
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T.R. RAVI, J.
--------------------------------------------
R.S.A.No.1484 of 2013
--------------------------------------------
Dated this the 7th day of May, 2024
JUDGMENT
The defendants No.2 to 7 in O.S No.632/2010 for partition have
preferred this second appeal, having lost their cause in the trial court
and the First Appellate Court.
2. The case of the plaintiff is that in an earlier suit O.S.No.74
of 1977, the 1st Additional Munsiff's Court, Kozhikode had passed a
preliminary decree for partition of item No.1 of the plaint schedule
into 3 equal shares and directed to allot one such share jointly to the
plaintiff, her mother, 1st defendant and Mr.Chandrasekharan (husband
of 1st defendant and father of defendants No.3 to 7 in the present
suit). It is contended that the plaintiff and defendants are in joint
possession and enjoyment of the property. The plaintiff filed the suit
for partition and separate possession of her share including 1/4 th
share of her deceased mother.
3. According to the 1st defendant, the plaintiff is entitled to
get 3/12th share, the 1st defendant is entitled to get 5/12 th share, and
defendants 2 to 7 together are entitled to get 4/12 th share in the
property. According to defendants No.2 to 7, the plaintiff and her
mother are entitled to get 1/16 th share each and the plaintiff is not
entitled to get half share in the plaint schedule property as claimed.
The trial court observed that the plaintiff is entitled to get a decree
for partition of the plaint schedule property. A preliminary decree for
partition allotting 2/4 shares of the plaint schedule property to the
plaintiff was passed by judgment dated 23.12.2011. Aggrieved by the
allotment of shares, the defendants 2 to 7 preferred A.S No.28/2012,
which was dismissed by the First Appellate Court, confirming the
decree and judgment of the trial court. Hence this second appeal.
4. Even though notice before admission was ordered to the
respondents, the second appeal had not been formally admitted on
any substantial questions of law to this day. Since the case is of the
year 2013, I deem it appropriate to proceed with the case based on
the questions of law formulated in the memorandum of the second
appeal, particularly since the respondents are put on notice of the
same.
5. The following substantial questions of law have been
formulated in the memorandum of appeal.
1. Whether the courts below were correct in holding that
the properties involved in the suit are not joint family
properties?
2. Have the courts below correctly interpreted Ext.B1
judgment in order to hold that the plaint schedule
properties are not joint family property.
3. Whether the shares allotted in O.S.No.74/77 were per
capita or per stirpes.
4. Whether the finding of the courts below with regards to
shares available to each parties correct.
6. Heard both sides.
7. The plaint schedule property along with other properties
were admittedly acquired by one Perachan. He bequeathed the
property to his brother Bapputty. Bapputty had three children namely
Gopalan, Chandukuty, and Choyikutty. On the death of Bapputty, the
properties devolved on his sons. The parties are Thiyyas of Malabar
following the Makkathayam law of inheritance. Chandukutty died in
1952 and Choyikutty died in 1965. Gopalan is stated to have died
before the Hindu Succession Act. In O.S.No.74 of 1977, the property
was directed to be partitioned between the respective branches of
Gopalan, Chandukutty, and Choyikutty. The plaintiff and defendants
belong to the branch of Chandukutty. Plot A in Ext.A2 decree in
O.S.No.74 of 1977 was allotted to the share of the plaintiff and
defendants, together. In O.S.No.74 of 1977, there was no prayer for
separate allotment of the shares of the persons who were allotted
plot A, which is the plaint schedule property in the present suit. Even
though an application was filed for passing a supplementary final
decree for partition among the sharers of plot A, the same was
dismissed as per Ext.A5 order. A writ petition filed before this Court
was dismissed finding that the remedy was to seek partition among
the sharers of plot A. The present suit is filed in the above
circumstances.
8. There is no dispute as to partibility. According to the
plaintiff, she is entitled to 2/4th share, the 1st defendant is entitled to
1/4th share and defendants 2 to 7 together are entitled to 1/4 th share.
According to defendants 2 to 7, the plaintiff is entitled only to 2/16
share, the 1st defendant is entitled to 5/16 share and the defendants
2 to 7 together are entitled to 9/16 shares.
9. To support the above contention, the appellants contend
that as per the decree in O.S.No.74 of 1977, there was an allotment
to the three branches represented by the three brothers, the property
continued to partake the characteristics of joint family property, and
that the division cannot be treated as a per capita division in favour
of the parties to the suit. It is submitted that a daughter of Gopalan
named Meenakshi who had been married by that time was hence not
made a party to the earlier suit. It is contended that the 4 th
defendant was born by the time Chandukutty died and hence
Chandukutty will have 1/4th share in his branch and that on the death
of Chandukutty, his 1/4th share will devolve on his wife Rohini, the
plaintiff, the 1st defendant and Chandrasekharan, the predecessor-in-
interest of the appellants. The contention is that what was available
for partition was only the 1/4th share of Chandukutty.
10. The above contention is no longer available to the
appellants and the same has been rightly rejected by the trial court
and the First Appellate Court. If the contention is taken to the logical
end, it would amount to re-opening the decree in O.S.No.74 of 1977
and recasting the shares allotted. It is evident from Exts.A1 and A2
judgment and decree that the allotment as per the earlier decree was
not under the Mitakshara law of inheritance and was an allotment to
the three sons of Baputty. Baputty himself was holding the property
based on a gift from his brother. A joint family character could not
have been attached to the nature of the holding. If the contention
that the 4th defendant who was born in 1956 had a right by birth had
been accepted in the earlier suit, the division itself could not have
been one share each to the three sons. The legal representatives of
Chandukutty were defendants 3 to 5 and 12 to 17 in the earlier suit
and they are bound by the decree. If the claim of the appellants is
accepted, it would necessarily amount to a review of the earlier
judgment and decree. There was no challenge to Exts.A1 and A2 at
any point in time nor has the judgment been challenged in these
proceedings. The contentions raised are not legally sustainable and
the division cannot be under the Mitakshara law of inheritance. Even
if the contention that the division ought to have been under the
Mitakshara law of inheritance is to be accepted, the said contention is
hopelessly barred by the principles of res judicata. The questions of
law raised are answered as above.
The second appeal fails and is dismissed.
Sd/-
T.R. RAVI
JUDGE
dsn
