Kerala High Court

Dr.A.P.Sunil Kumar vs Savithri Amma on 7 February, 2025

Author: Sathish Ninan

Bench: Sathish Ninan

                                                             2025:KER:9925
               IN THE HIGH COURT OF KERALA AT ERNAKULAM

                               PRESENT

               THE HONOURABLE MR. JUSTICE SATHISH NINAN

                                   &

           THE HONOURABLE MRS. JUSTICE SHOBA ANNAMMA EAPEN

        FRIDAY, THE 7TH DAY OF FEBRUARY 2025 / 18TH MAGHA, 1946

                          RFA NO. 6 OF 2021

        AGAINST THE DECREE & JUDGMENT DATED 18.03.2019 IN OS NO.9 OF

                     2017 OF SUB COURT, VATAKARA

                                -----

APPELLANTS/PLAINTIFFS 1 & 2:

    1       DR.A.P.SUNIL KUMAR,
            S/O.SAVITHRI AMMA,AGED 52 YEARS, GOVINDA BHAVAN,
            NUT STREET POST,VATAKARA AMSOM DESOM,VATAKARA TALUK,
            KOZHIKODE DISTRICT.

    2       DR.A.P.SONA,
            D/O.SAVITHRI AMMA,AGED 49 YEARS, GOVINDA BHAVAN,
            NUT STREET POST,VATAKARA AMSOM DESOM,
            VATAKARA TALUK,KOZHIKODE DISTRICT.


            BY ADVS.
            ASHWIN SATHYANATH
            ANISH ANTONY ANATHAZHATH
            THAREEQ ANVER K.




RESPONDENTS/DEFENDANTS & 3RD PLAINTIFF:

    1       SAVITHRI AMMA,
            D/O.LATE NANI AMMA,AGED 74 YEARS, GOVINDA BHAVAN,
            NUT STREET POST,VATAKARA AMSOM DESOM,
            VATAKARA TALUK,KOZHIKODE DISTRICT,PIN-673104.
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RFA NO. 6 OF 2021              -2-


    2     MADATHIL MURALEEDHARAN,
          S/O.LATE NANI AMMA,GOVINDA BHAVAN, VATAKARA
          DESOM,VATAKARA VILLAGE, KOZHIKODE DISTRICT,PIN-673104.

    3     MADATHIL PREMACHANDRAN,
          AGED 66 YEARS,
          S/O.LATE NANI AMMA,VILLA NUMBER 60,
          SKYLINE MEDOSE,ERANHIPPALAM,KOZHIKODE,PIN-673006.

    4     MADATHIL RAVEENDRAN,
          AGED 64 YEARS,
          S/O LATE NANI AMMA,'SURYA',1/4538A,
          BILATHIKULAM,KOZHIKODE,PIN-673006.

    5     BINDU,
          W/.O.LATE VALSALAN,AGED 54 YEARS, NANI NIVAS,
          VATAKARA VILLAGE,VATAKARA DESOM,NUT STREET,
          KOZHIKODE DISTRICT,PIN-673104.

    6     AJU VALSAN,
          AGED 29 YEARS,
          D/O LATE VALSALAN,NANI NIVAS, VATAKARA VILLAGE,
          VATAKARA DESOM, NUT STREET,KOZHIKODE DISTRICT,
          PIN-673104.

    7     PAREMMAL SHIBU,
          AGED 47 YEARS,
          S/O.KUNHIKANNAN,AKSHAY,
          NADAKKUTHAZHA VILLAGE,NADAKKUTHAZHA DESOM,
          VATAKARA TALUK,KOZHIKODE DISTRICT,PIN-673104.

    8     KOYAPPADI SAREENA,
          AGED 39 YEARS,
          D/O.MOOSSA HAJI,PARAMBATH HOUSE,
          KURINHILOTT DESOM,ERAMALA VILLAGE,
          VATAKARA TALUK,KURINHILOD POST, KOZHIKODE DISTRICT,
          PIN-673542.

    9     MADATHIL SHAREEFA,
          AGED 57 YEARS,
          D/O.MOIDU,PONMERIKANDI,ARAFA MANZIL,
          MAYYANNUR DESOM,VILLIPPALLY VILLAGE,
          VATAKARA TALUK,MAYYANNUR TALUK,
          MAYYANNUR POST,KOZHIKODE DISTRICT, PIN-673542.
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RFA NO. 6 OF 2021                  -3-



    10      PARAMBATH ABDUL LATHEEF,HASHIM,
            S/O.HASHIM HAJI,AGED 45 YEARS, PARAMBATH HOUSE,
            KURINHILOTT DESOM,ERAMAL VILLAGE,
            VATAKARA TALUK,KURINHILOD POST,
            KOZHIKODE DISTRCT-673542.

    11      THAIKUTTIYIL USMAN HAJI,
            S/O.KUNHAMMED,AGED 62 YEARS, PONMERIKANDY,
            ARAFA MANZIL,MAYYANUR DESOM,
            VILLIAPPALLY VILLAGE,VATAKARA TALUK,KURINHILOD POST,
            KOZHIKODE DISTRCT-673542.

    12      MOTTAPARAMBATH NIMISHA SHIBU,
            D/O.RAJENDRAN,AGED 42 YEARS, AKSHAYA,NADAKKUTHAZHA
            DESOM,NADAKKUTHAZHA VILLAGE,
            VATAKARA TALUK,NADAKKUTHAZHA POST,
            KOZHIKODE DISTRICT,PIN-673104.

    13      R.K.ABDULLA HAJI,
            S/O.MAMMU,AGED 61 YEARS, CHEETTEKKOTH HOUSE,
            VILLIAPPALLY DESOM,VILLIAPPALLY VILLAGE,
            VATAKARA TALUK,KOZHIKODE DISTRICT,PIN-673542.

    14      A.P.SUDHEER KUMAR,
            AGED 47 YEARS,
            S/O.SAVITHRI AMMA,GOVINDA BHAVAN,
            NUT STREET POST,VATAKARA AMSOM DESOM,
            VATAKARA TALUK,KOZHIKODE DISTRICT, PIN-673104,
            REPRESENTED BY HIS POWER OF ATTORNEY HOLDER-
            DR.A.P.SONA.


            BY ADVS.
            SRI.B.KRISHNAN
            SMT.DEEPA NARAYANAN (caveator)
            SRI.ZUBAIR PULIKKOOL
            SRI.T.SETHUMADHAVAN (SR.)
            SHRI.R.PARTHASARATHY
            SHRI.SALMANUL FASIL O.P.
            SMT.PREETHI. P.V.
            SRI.M.V.BALAGOPAL



     THIS   REGULAR   FIRST   APPEAL   HAVING   COME   UP   FOR   HEARING    ON
07.02.2025, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
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                        SATHISH NINAN &
                  SHOBA ANNAMMA EAPEN, JJ.
             = = = = = = = = = = = = = = = = = =
                     R.F.A. No.6 of 2021
             = = = = = = = = = = = = = = = = = =
           Dated this the 7th day of February, 2025

                         J U D G M E N T

Sathish Ninan, J.

The preliminary decree in a suit for partition is

under challenge by plaintiffs 1 and 2.

2. The plaint 'A' schedule is the genealogy. Plaint

'B' schedule are the immovable properties sought to be

partitioned. It consists of item numbers 1 to 4.

3. According to the plaintiffs, plaint 'B' schedule

item Nos.1 to 3 belonged to the thavazhi of Naniamma who

was the grand mother of the plaintiffs as per the

partition decree in OS 34/1967 of Vadakara Sub Court.

The thavazhi consisted of Naniamma, her daughter

Savathri Amma who is the first defendant, and her

brothers namely defendants 2 to 4 and late Valsalan. The

plaintiffs are the children born to the first defendant

prior to the year 1976. Defendants 5 and 6 are the wife

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and daughter of late Valsalan. The claim is that the

plaintiffs and defendants 1 to 4 and the late Valsalan

are each entitled to one by eight shares out of the

properties.

4. Plaint 'B' schedule item No.4 belonged to

Naniamma, the mother of the first defendant (plaintiff's

grand mother) under Partition Deed No.1826 of 1960. It

being Thavazhi property the plaintiffs are entitled to

1/8 shares each in the said item of property also, is

the claim.

5. The defendants disputed the claim that the

properties are tarwad properties. It was contended that

the plaint B schedule items 1 to 3 are the separate

properties of the respective allottees under the

partition decree. So also, with regard to B schedule

item 4, the claim that it belonged to the Thavazhi of

Naniamma was denied.

6. The trial court negatived the claim of the

plaintiffs that plaint 'B' schedule are 'thavazhi'

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properties. Preliminary decree was passed reckoning it

to be the separate properties. It is aggrieved thereby

that this appeal has been filed.

7. We have heard the learned Senior Counsel

Sri.T.Krishnanunni on behalf of the appellants,

Sri.T.Sethumadhavan, the learned Senior Counsel,

Advocates Sri.B.Krishnan and Sri.Zubair Pulikkool on

behalf of the respondents.

8. The points that arise for determination in this

appeal are:-

"(i) Are plaint B schedule item Nos.1 to 3 thavazhi properties or the separate properties of the allottees in the partition decree in OS 34/1967 ?

(ii) Is the plaint B schedule item No.4 Tavazhy property of Naniamma?"

9. Sri.T.Krishnanunni, the learned Senior Counsel

for the appellant would argue that the trial court erred

in proceeding as if, since there is a per capita

division, the properties could not thereafter remain as

'thavazhi' properties. In terms of Section 40 of the

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Madras Marumakkattayam Act, 1932 even a partition in the

tarwad at the instance of a 'thavazhi' could only be per

capita. Under the partition decree in OS 34/1967, plaint

'B' schedule item Nos.1 to 3 having been allotted

jointly to plaintiffs 1 to 6 therein who are Naniamma

and her children, it partakes the character of

'thavazhi' properties. To support his contention, the

learned Senior Counsel relied on the judgment of the

Apex Court in Ramachandran and Ors. v. Vijayan and Ors. [2024

KHC Online 6645].

10. Sri.T.Sethumadhavan, the learned Senior Counsel

and Sri.B.Krishnan who are appearing for the respondents

would on the other hand submit in unison that, under the

preliminary decree in OS 34/1967, a per capita division

having been effected, the nature and character of the

property has transformed into the separate properties of

the sharers; it no longer continues to be 'thavazhi'

properties. Relying on the judgments in Kalyani (dead) by L.Rs

v. Narayanan and Others 1980 KHC 473, Madhavan Pillai v. Gopala Kurup

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(1954 KHC 253), Sreedevi Antherjanam and Others v. Bhavadasan namboodiri

(2014 KHC 540), they contended that by virtue of the

preliminary decree for partition there has been a

severance of status and the property loses the character

of Tarwad property. Once the shares are determined and

allotted, the allottees hold it as tenants-in-common, it

is argued.

11. The genealogy as given in the plaint A schedule

is re-produced hereunder for an easy understanding of

the facts :-

The parties are members of a Nair tarwad following the

Marumakkattayam system. OS 34/1967 of the Subordinate

Judge's Court, Vadakara, was filed by the thavazhi of

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Naniamma seeking partition of the tarwad properties.

Naniamma was the first plaintiff. Plaintiffs 2 to 6 were

her children; the second plaintiff being the daughter

and the others sons. The second plaintiff herein is the

first defendant in the present suit and the mother of

the present plaintiffs. The seventh plaintiff therein

was the brother of Naniamma.

12. Ext.B6 is the preliminary judgment passed in

the suit. As per Ext.B6, the 7/21 shares of the

plaintiffs were declared. This was followed by Ext.B7

final judgment. The final judgment was based on a

compromise entered into between the parties. Under

Ext.B7, the seventh plaintiff therein namely, the

brother of Naniamma, was allotted a separate item of

property. Allotment was made to plaintiffs 1 to 6

jointly. The relevant portion of the decree reads

thus :-

"(1) Plaintiffs 1 to 6 (petitioners 1 to 6) are allotted plots A, D and E of C3 plan, plots B and C of Exhibit C4 plan, plots D and E of Ext.C5

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plan, landlords' rights in items 6 to 12 of preliminary decree A schedule (compensation only) and movables Nos.2 and 3 of the preliminary decree B schedule."

Those are the present plaint 'B' schedule items 1 to 3.

13. The contention of the plaintiffs is that, the

allotment under Ext.B7 final decree is to the natural

thavazhi of Naniamma and hence it retains the character

of thavazhi property. However, according to the

contesting respondents, under Ext.B6 preliminary decree,

there was a per capita division resulting in severance

of status and the nature of the property. The sharers

hold the property as their separate property. The

character of thavazhi property is thus lost, it is

claimed. In reply the learned Senior Counsel for the

plaintiffs submitted that, a partition in the tarwad

could only be on per capita basis.

14. Admittedly the parties are Marumakkattayees

governed by the Madras Marumakkattayam Act. Concept of

partition was foreign to the pristine Marumakkattayam

Law. Section 38 of the Madras Marumakkattayam Act

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enabled a thavazhi to seek for partition. The Section

reads thus :-

"38. (1) Any tavazhi represented by the majority of its major members may claim to take its share of all the properties of the tarwad over which it has power of disposal and separate from the tarwad :

Provided that no tavazhi shall claim to be divided from the tarwad during the lifetime of an ancestress common to such tavazhi and to any other tavazhi or tavazhis of the tarwad, except with the consent of such ancestress, if she is a member of the tarwad.

(2) The share obtained by the tavazhi shall be taken by it with the incidents of tarwad property.

Explanation.- For the purpose of this chapter, a male member of a tarwad or a female member thereof without any living child or descendant in the female line, shall be deemed to be a tavazhi if he or she has no living female ascendant who is a member of the tarwad."

15. Section 38(2) provided that the share obtained

by the thavazhi on such partition, retains all the

incidents of tarwad property.

16. Section 40 of the Act provided that such

partition in the tarwad is to be on per capita basis.

The Section reads thus:

"40 (1) In the case referred to in section 38, the tavazhi shall be entitled to such share of the tarwad properties as would fall to the tavazhi

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if a division per capita were made among all the members of the tarwad then living.

(2) In the case referred to in section 39, the member who claims or is compelled to divide from the tarwad, shall be entitled to such share of the tarwad properties as would fall to such member if a division per capita were made among all the members of the tarwad then living."

17. The Madras Marumakkattayam Act was amended as

per Act 26 of 1958. Section 38 as amended, enabled any

member of a tarwad or Thavazhi to seek for partition.

Section 38 post the amendment reads thus:-

"38. Right of member of tarwad or tavazhi to claim partition.- Any member of a tarwad or tavazhi may claim to take his or her share of all the properties of the tarwad or tavazhi over which the tarwad or tavazhi has power of disposal and separate from the tarwad or tavazhi.

Explanation 1.- Nothing in this section shall be a bar for two or more members belonging to the same tarwad or tavazhi claiming their shares of the properties and enjoying the same jointy with all the incidents of tarwad property.

Explanation 2.- The member or members who claim partition under this section or the member who claims or is compelled to take his or her share under section 39 shall be entitled to such

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share or shares of the tarwad or tavazhi properties as would fall to such member or members, if a division Per Capita were made among the members of the tarwad or tavazhi then living.

Explanation 3.- The provisions of the section shall apply to a tarwad notwithstanding the fact that immediately before the commencement of the Madras Marumakkattayam (Amendment) Act, 1958, the tarwad was included in the Schedule or that the tarwad had been registered as impartible.

Explanation 4.- The provisions of this section shall apply to all suits for partition, appeals and other proceedings arising therefrom filed or proceeded with by members or their legal representatives and pending in the Courts immediately before the commencement of the Madras Marumakkattayam (Amendment) Acct, 1958, and such suits, appeals and other proceedings shall be disposed of in accordance with the provisions of this section as if this section were in force at the time of the institution of such suits, appeals and other proceedings. "

Explanation 2 to the Section, akin to Section 40 of the

Original Act, provided for per capita division among the

members who claim partition. As is evident from

Explanation-1, two or more such members claiming their

shares, could still enjoy the properties jointly with

all the incidents of tarwad property. Therefore, the

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mere fact that there has been a per capita division,

need not necessarily result in alteration in the

character of the property as tarwad property. It was

always open for the members who claimed partition, to

remain joint with all the incidents of tarwad property.

18. In Mary Cheriyan & Anr. v. Bhargavi Pillai Bhasura Devi & Anr.

[1967 KLT 430], a larger bench of this Court held that in a

tarwad partition, the property allotted to a single

female member as well as the allotment to a group

consisting of natural members of the thavazhi hold the

property as tarwad property. With regard to allotment to

a single female, there was divergence of opinion, the

minority holding that the allotment to a single female

becomes her separate property. On the question as to

whether the property allotted in such partition to a

single female without any living child, would partake

the character of tarwad property or separate property,

the minority view was upheld by the Apex Court in

Ramachandran and Anr. (supra) holding that, there cannot be a

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single member thavazhi and hence the property allotted

to a single female without any child at the time of

partition, takes it as her separate property.

19. In the case at hand, as per Ext.B6 preliminary

decree the 7/21 shares of the plaintiffs therein were

declared reckoning per capita division. As noticed

supra, in terms of Section 40 of the Madras

Marumakkattayam Act prior to its amendment in 1958 and

the Explanation-2 to Section 38 post the amendment, the

division shall be on per capita basis. However, in the

light of Section 38(2) prior to the amendment, which

provided that on partition the thavazhi still holds the

property with all the incidents of the tarwad property

and the Explanation-1 to Section 38 post the amendment,

enabling the members who claimed their shares on

partition to continue joint with all the incidents of

the tarwad property, it is evident that it is not an

absolute rule that, pursuant to a partition, the very

nature and character of the property is changed and that

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it ceased to be a tarwad property. It is open for the

sharers to still remain joint with all the incidents of

the tarwad property.

20. After Ext.B6 preliminary decree, the 7 th

plaintiff therein got separated and got separate

allotment of his share in the final decree. However,

plaintiffs 1 to 6 therein, who constituted a natural

thavazhi, obtained joint allotment of their shares and

took the properties together. Evidently, they chose to

remain joint. Though it was open for the plaintiffs 1 to

6 to seek separate allotment of their shares, they chose

joint allotment without separation. Since the natural

thavazhi as a group held properties jointly under Ext.B7

final decree in OS 34/1967, it implies that they chose

to remain joint and hold the properties jointly, with

all the incidents of tarwad property. This is only in

accordance with Explanation-1 to amended Section 38. In

the light of the above, the decisions relied on by the

respondents are of no avail.

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21. For the above reasons, we are unable to agree

with the trial court that, after a partition reckoning

division per capita, the property could no longer retain

the character of a tarwad property. We hold that the

plaint B schedule item numbers 1 to 3 are thavazhi

properties. Plaintiffs 1 to 3 having been born to the

first defendant prior to the advent of the Joint Family

Abolition Act, 1976 they get right by birth and are

entitled for share in the properties. As on 01.12.1976,

there were eight members in the Tavazhy and each are

entitled to one share each. The plaint claim, for 1/8

shares over the said items, is thus liable to be

granted.

22. With regard to the plaint 'B' schedule item

No.4, Naniamma obtained it under a partition. As noted

by the trial court, it was a joint acquisition by

Naniamma and her siblings. There is no plea, much less

evidence, that it was ancestral property or that it was

a thavazhi acquisition. It was accordingly that the

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trial court held it to be the separate property of

Naniamma. The correctness of the finding is not

seriously challenged. The trial court was right in

negativing the plea that it is the tavazhy property of

Naniamma; declaration of shares with regard to the said

item warrants no interference.

Resultantly, the appeal is allowed in part. The

decree and judgment of the trial court insofar as it

relates to plaint B schedule items Nos. 1 to 3 are set

aside. With regard to the said items a preliminary

decree is passed in the following terms:

(i) It is declared that the plaintiffs and

defendants 1 to 7 each and defendants 8 and 9

together are entitled to 1/8 shares out of the

plaint B schedule items 1 to 3.

(ii) Assignees of the sharers are entitled

to seek in the final decree proceedings for

allotment of the shares of their respective

assignors to them with regard to their

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respective conveyances.