Kerala High Court
Haridasan vs Padmavathi Amma on 11 June, 2025
RSA No.7 of 2013 1 2025:KER:40842
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE EASWARAN S.
WEDNESDAY, THE 11TH DAY OF JUNE 2025 / 21ST JYAISHTA, 1947
RSA NO. 7 OF 2013
AGAINST THE JUDGMENT AND DECREE DATED 25.09.2012 IN AS NO.33
OF 2008 OF SUB COURT, OTTAPPALAM ARISING OUT OF THE JUDGMENT AND
DECREE DATED 30.11.2007 IN OS NO.74 OF 2005 OF MUNSIFF MAGISTRATE
COURT,PATTAMBI
APPELLANT/APPELLANT/PLAINTIFF :
HARIDASAN
AGED 41 YEARS
S/O.THEKEVELUTHEDATH BHAVANIAMMA,
CHAZHIYATIRI AMSOM, KARUKAPUTHUR DESOM,
OTTAPALAM TALUK, PALAKKAD DISTRICT.
BY ADVS.
SHRI.G.SREEKUMAR (CHELUR)
SMT.PREETHY KARUNAKARAN
RESPONDENTS/RESPONDENTS/DEFENDANTS:
1 PADMAVATHI AMMA
W/O.THEKEVELUTHEDATH ACHUTHAN NAIR,
CHAZHIYATIRI AMSOM, KARUKAPUTHUR DESOM,
OTTAPALAM TALUK, PALAKKAD DISTRICT,
PIN 679101.
2 SIVASANKARANUNNI
S/O.THEKEVELUTHEDATH ACHUTHAN NAIR,
CHAZHIYATIRI AMSOM, KARUKAPUTHUR DESOM,
OTTAPALAM TALUK, PALAKKAD DISTRICT,
PIN 679101.
3 P.V.SURESH
S/O.THEKEVELUTHEDATH ACHUTHAN NAIR,
CHAZHIYATIRI AMSOM, KARUKAPUTHUR DESOM,
OTTAPALAM TALUK, PALAKKAD DISTRICT,
PIN 679101.
RSA No.7 of 2013 2 2025:KER:40842
4 SREEDEVI @ AMMINI
D/O.THEKEVELUTHEDATH ACHUTHAN NAIR,
CHAZHIYATIRI AMSOM, KARUKAPUTHUR DESOM,
OTTAPALAM TALUK, PALAKKAD DISTRICT, PIN 679101
5 BHAVANIAMMA
D/O.THEKEVELUTHEDATH AMMINI @ PARU AMMA,
CHAZHIYATIRI AMSOM, KARUKAPUTHUR DESOM,
OTTAPALAM TALUK, PALAKKAD DISTRICT, PIN 679101.
6 USHADEVI
W/O.SRAMBIKAL VELUTHEDATH HARIDASAN,
KADUVATTOM AMSOM DESOM, OTTAPALAM TALUK,
PALAKKAD DISTRICT, PIN 679101.
7 SREEDEVI
W/O.NATTATH VALAPPIL RAVINDRANATH,
KUTTIPALA AMSOM DESOM, PONNANI TALUK,
MALAPPURAM DISTRICT, PIN 679101.
8 JAYASREE
W/O.THOUNCHATH PARAMBIL SATHEESAN,
VALANCHERY AMSOM, THOZHUVANNUR DESOM,
TIRUR TALUK, PIN 679101.
BY ADVS.
SRI.K.R.ARUN KRISHNAN, R6
SHRI.T.A.RAJAGOPALAN, R7
SRI.RAJIT, R5
THIS REGULAR SECOND APPEAL HAVING COME UP FOR HEARING ON
23.5.2025 AND THE COURT ON 11.06.2025 DELIVERED THE FOLLOWING:
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"C.R"
EASWARAN S., J.
--------------------------------
R.S.A. No.7 of 2013
---------------------------------------
Dated this the 11th day of June, 2025
JUDGMENT
The plaintiff in a suit for partition concurrently non-suited by the Trial
Court as well as the First appellate Court, is before this Court contending that
both the courts appreciated the evidence and law involved in the case
perversely, thereby giving rise to a substantial question of law for consideration
of this Court.
Brief facts of the case.
2. OS No.74 of 2005 was instituted by the appellant/plaintiff seeking
partition of the plaint schedule properties. According to the plaintiff, item No.1
of the plaint B schedule property originally belongs to one Cheriyathu Amma.
She was the great grandmother of the plaintiff, defendant Nos.6 to 8 and the
mother of late Laskhmi Amma, who is the grandmother of 5 th defendant. Smt.
Laskhmi Amma had two children, Achuthan Nair and Ammini Amma. The 5 th
defendant Bhavani Amma is the daughter of Ammini Amma. Ammini Amma
predeceased Lakshmi Amma. Item No.1 of the plaint schedule property was
obtained by Laskshmi Amma as per the purchase certificate pursuant to the suo
moto proceedings No.8770/1967 of the Land Tribunal, Ottappalam. Since item
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No.1 of the plaint B schedule is ancestral property as well as Thavazhi property,
the plaintiff is entitled to the right over the same by birth. Item No.2 of the
plaint schedule property was obtained by the father of the plaintiff, the 7 th and
8th defendants and also by the husband of the 5th defendant, one Madhavan Nair.
After the death of Madhavan Nair, item No.2 of the plaint schedule property
jointly belongs to the plaintiff and defendant Nos. 5,7 and 8.
3. The defendants entered appearance and contested the suit by raising
a contention that the plaintiff is not entitled to a decree for partition on item
No.1 since the plaint schedule property had devolved upon Smt. Lakshmi
Amma in her individual capacity and she did not possess the property for and
on behalf of the Tharavadu. Since it is an independent acquisition of Smt.
Laskhmi Amma and later devolved upon the 5th defendant by inheritance
through Ammini Amma and also Ext.B1 Will on 20.9.1987, she is the absolute
owner of the property. On behalf of the plaintiff, Exts.A1 to A7 documents were
marked and PW1 was examined. On behalf of the defendants, Exts.B1 to B4
documents were marked and DW1 and DW2 were examined. The trial court on
the basis of the pleadings and documents on record, framed the following
issues:
1. Whether item No.1 in the plaint B-schedule is ancestral property?
2. Is there any genuine will in favour of D5 as claimed in the written
statement?
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3. Whether item No.1 in plaint B-schedule is partible?
4. Whether item No.2 in plaint B-schedule is partible?
5. What order as to relief and costs?
4. On consideration of the rival pleadings, the trial court held that the
plaintiff failed to prove that item No.1 of plaint B schedule property was an
ancestral property that devolved upon the Thavazhi of Lakshmi Amma.
Accordingly, the suit was decreed in part, finding that item No.2 alone is
partible. While arriving at such finding, the trial court found that the reliance
placed by the plaintiff on Ext.A2, the report of the village officer which
evidenced that Lakshmi Amma was the "Karanavathi"of the family was
fraudulently prepared in as much as there was interpolation of the ink while
entering the fact that deceased Lakshmi Amma was the "Karanavathi" of the
family. Though, the plaintiff sought to prove Ext.A2 by producing the entire
records relating to the suo moto proceedings, which were marked as Ext.X1,
the trial court did not accept the same.
5. On appeal, the first appellate court, though found that the plaintiff
cannot be blamed for the discrepancy in the documents produced from the
public office, there is no evidence to prove that the family of Lakshmi Amma
was a joint family and the plaintiff derived right by birth consequent to the
abolition of the Kerala Joint Hindu Family System (Abolition) Act, 1975.
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Accordingly, the appeal against the suit was also dismissed and thus the
plaintiff is before this Court in this appeal.
6. Heard Sri. G Sreekumar (Chelur), the learned counsel appearing for
the appellant/plaintiff and Sri. TA. Rajagopalan, the learned counsel appearing
for the respondents.
Arguments of the Appellant.
7. Sri. G Sreekumar(Chelur), the learned counsel appearing for the
appellant/plaintiff, raised the following submissions.
a) Since the parties belong to Veluthedath Nair community, which is
governed by the Madras Marumakkathayam Act, the joint family stood
extinguished only on coming into force of the Kerala Joint Hindu Family
System (Abolition) Act, 1975. Therefore, there is a statutory partition that has
come into effect over the family.
b) The presumption regarding the acquisition of the property by Lakshmi
Amma in favour of the joint family is strong inasmuch as no evidence was
adduced by the defendants to prove that Lakshmi Amma had other sources of
income to acquire the property independently. Moreover, the proceedings
continued before the Land Tribunal, Ottappalam, clearly show that Laksmi
Amma was a cultivating tenant and therefore, there is a greater degree of
presumption that the acquisition was for the benefit of the joint family.
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c) The first appellate court having found that the discrepancies in the
public document cannot be attributed towards the plaintiff, the entries in Ext.A2
and Ext.X1 stood affirmed and in the absence of any evidence rebutting the
same, the courts below ought to have held that item No.1 of plaint B Schedule
is a joint family property.
d) Though, it is the specific case of the defendants that apart from
Lakshmi Amma there was also another male member in the family, the
genealogy attached to the plaint as 'A' schedule, having not been disputed by
the defendants, the presumption is that Lakshmi Amma was the "Karanavathi"
of the family. By referring to the definition of 'Karanavar', under Section 3(c)
of the Marumakkathayam Act, the learned counsel would contend that since
there is no eldest male member of the family, Lakshmi Amma who is the eldest
female member is construed as the "Karanavathi" of the family.
e) The reference to the provisions of the Hindu Succession Act, 1956
does not arise for consideration in the present case inasmuch as the parties are
governed by the provisions of the Kerala Joint Hindu Family System
(Abolition) Act, 1975 by which the provisions of the Madras
Marumakkathayam Act were repealed. Therefore, notwithstanding the
promulgation of the Hindu Succession Act, 1956, the parties will continue to
be governed by the joint family system until it was abolished in the year 1975
by the Act 30 of 1976.
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Arguments of Respondents
8. Per contra, Sri.T.A.Rajagopalan, the learned counsel for the
defendants, contended that there is no presumption as regards the existence of
a joint family. It is for the plaintiff to have proved his assertion that there existed
a joint family with Lakshmi Amma and her children. In the absence of any
presumption, the acquisition by Lakshmi Amma as per the purchase certificate
can only be construed as a self acquired property by her which would then enure
to the benefit of the 5th defendant since her mother predeceased Lakshmi Amma
and therefore consequent to the death of Lakshmi Amma her sole son Achuthan
Nair inherited half share (1/2) share over the property by virtue of Law of
Inheritance. Consequent to the execution of the 'Will' by late Achuthan Nair,
the entire right, title and interest over item No.1 of plaint schedule property
devolved upon the 5th defendant and therefore the trial court as well as first
appellate court were perfectly right in dismissing the suit and the appeal. It is
further submitted that the plaintiff knew about the execution of the Ext B1
'Will' since he was a signatory to the same and therefore the suit filed by
suppressing facts is clearly not maintainable. Since no substantial question of
law arises for consideration in this appeal, the learned counsel prayed that the
appeal be dismissed.
9. I have considered the rival submissions raised across the Bar and
have perused the records and also the judgments impugned in the appeal.
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10. While admitting this appeal on 12.2.2014, this Court framed the
following questions of law.
i. Was it justified on the part of the courts below in holding that the
plaint B schedule item No.1 is not 'Thavazhi' property but rather it
is a self acquisition by Lakshmi Amma and therefore not liable to
be partitioned?
ii. Is it not gross illegality perpetrated when the courts below cast
the burden on the plaintiff to prove that it is joint family property
when there is a strong presumption that acquisition is in favour of
'Thavazhi', and that the burden is entirely on the person who says
that it is not Thavazhi property. Wrong casting of burden constitutes
substantial questions of law?
iii. Till the advent of the Joint Family System Abolition Act nobody
comprehended that joint tenancy would be converted into tenants
in common and therefore those attended circumstances which lean
in favour of the jointness of the property in a 'Thaavazhi' ought to
have weighed with the courts below and in not getting itself directed
in that line, is it not a wrong procedure adopted by the courts below
in the instant case?
iv. Is it not a disposal of the civil litigation with material irregularity
thus constituting substantial questions of law?
Consideration by the Court.
11. Before proceeding to consider the intricacies in law, this Court is
reminded of the well-settled principle of law that, a perverse appreciation of
evidence and law will certainly give rise to a substantial question of law.
Further, a reading of the Substantial questions of law framed by this Court will
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only buttress the fact that despite the appellant being concurrently non-suited
by the courts below, this Court is certainly called upon to answer the questions
so framed above. With this backdrop, this Court proceeds to consider the issues
as follows.
12. The primary question to be considered is as to whether the trial court
as well as the first appellate court, were justified in non-suiting the plaintiff on
the ground that there is no evidence to show that deceased Lakshmi Amma was
the 'Karanavathi' of the family. Before considering the issue in detail, it is
expedient to refer to the provisions of The Madras Marumakkathayam Act,
1932 (Madras Act No.XXII of 1933). Though the said Act underwent
amendments in the year 1947 and 1958, the provisions which are relevant for
this case remained intact.
Section 3(c ) defines " Karnavan" as under:
'Karanavan' means the oldest male member of a tarwad or
thavazhi, as the case may be, in whom the right to management of
its properties vests or, in the absence of a male member, the oldest
female member or where by custom or family usage the right to
such management vests in the oldest female member, such female
member;
Section 3(i) defines 'tarwad' as under:
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'tarwad' means the group of person forming a joint family
with community of property governed by the Maruma-kkattayam
law of inheritance;
Section 3.(j)(ii). defines 'tavazhi' as under:
'tavazhi' used in relation to a male means the tavazhi of the
mother of that male.
13. The genealogy chart produced as "A' Schedule to the plaint reads as
under :
ചെറിയത്തുഅമ്മ
നാരായണൻ നായർ ലക്ഷ്മിഅമ്മ (മരിച്ചു)
(മരിച്ചു)
അെയുതൻ നായർ (മരിച്ചു)
അമ്മിണി എന്ന പാറു
അമ്മ (മരിച്ചു)
ഭാരയ പത്മാവതി D1
മകൾ ഭവാനി അമ്മ D5
ശിവശങ്കരനുണ്ണി സുരരഷ് അമ്മിണി എന്ന
D2 കുമാർ D3 ശ്ശീരേവി D4
ഉഷാരേവി ഹരിോസൻ ശ്ശീരേവി ജയശ്ശീ
D6 plaintiff D7 D8
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14. Pertinently, the defendants had no dispute regarding the above chart.
Therefore, it becomes clear that Lakshmi Amma with her son Achuthan Nair
and Ammani Amma became one "Thavazhi" and a presumption regarding the
joint family arises, subject to rebuttal by the defendants. However, a reading of
the trial court judgment shows that, the appellant had been non suited on the
ground that there is no evidence to show that Late Lakshmi Amma was the
"Karnavathi" of the family. A reading of Section 3(c) of the Act XXII of 1933
shows that in the absence of an eldest male member, the eldest female member
is entitled to manage the affairs of the family. Thus, the essential question is
whether the burden is on the plaintiff or the defendant to establish the existence
of a joint family.
15. In Kalyani (dead) by L.Rs Vs Narayanan and others [(1980)
Supp SCC 298] the Supreme Court, explaining the concept of 'tarwad" under
the Marumakkathayam Law, held that once the property is described as
'tarwad' property, the presumption as regards joint family exits. It was further
held that general principle is that a Hindu family is joint.
16. It must be remembered that, notwithstanding the existence of a joint
family by itself will not lead to a presumption that the property acquired by the
eldest member is a joint family property. ( See Sameer Kumar Pal and
Another Vs Sheik Akbar and another [(2010) 11 SCC 777]). However, it is
for the person who alleges that the property is a joint family property to prove
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that the same belongs to the family. Once the initial burden is discharged, the
onus shifts on the person who denies the existence of a Joint family. When the
findings of the trial court are tested in the light of the categoric pronouncement
of law by the Supreme Court, prima facie, this Court feels that it falls short of
the mandate of Act XXII of 1933 as well the law laid down by the Supreme
Court.
17. To delve further on this issue in order to find out as to how the trial
court erred egregiously in holding that Late Lakshmi Amma was not the
"karnavathi" of the "thavazhi", it is necessary to refer to the findings of the trial
court, which elaborately discussed the evidence on record.
18. The plaintiff relied on Ext.A2, which is the report of the village officer
produced in the Suo Motu proceedings initiated under the provisions of the
Kerala Land Reforms Act, 1964. In the said report, there is a specific Note that
late Lakshmi Amma is the 'Karnavathi' of the tarward. However, the trial court
disbelieved the same, by accepting the argument of the defendant that the
Ext.A2 is fraudulently created by the plaintiff. In arriving at the said finding,
the trial court heavily relied on the interpolation in Ext.A2. It is pertinent to
mention that the parties to the lis never disputed the genealogy produced by the
plaintiff as 'A' schedule. The validity of Ext.A2 must be tested in the light of
the indisputable fact that the 5th defendant never questioned the genealogy
produced by the plaintiff as 'A' schedule.
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19. In order to overcome the contention of the defendant that Ext.A2 is
forged, the plaintiff summoned the original files from the Land Tribunal,
Ottappalam. The records were marked as Ext.X1. From Ext.X1, it was found
by the trial court, that there was an interpolation in the report of the Village
Officer, wherein, in column No.2 it is specifically mentioned that the deceased
Laskhmi Amma was the 'Karanavathi' of the 'tarwad'. It is the specific case of
the defendants, that the said interpolation is made at the instance of the plaintiff.
However, apart from the vague assertions, the defendants were not able to
substantiate the same by any evidence. At any rate, Ext.X1 files being a
document in the public domain, the burden was definitely on the defendants to
prove the allegation regarding forgery. The quality of evidence adduced by the
defendant does not inspire confidence in this Court to hold that the plea of
forgery stood unequivocally proved by the defendants. In fact, this Court raised
a specific query to the learned counsel for the defendants, as to whether they
had initiated any criminal proceedings for the alleged forgery said to have been
committed by the plaintiff and the answer was in negative. Therefore, it can
only be presumed that the assertion of the 5th defendant does not find support
of any substantial evidence adduced by her before the trial court. In the
absence of any evidence supporting her assertions that there was an
interpolation of the words Karanavathi of the 'tarwad', whether the trial court
was justified in rejecting Ext.A2?. It is in this context that, the findings of the
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first appellate court must be viewed. The first appellate court found that since
Ext.A2 and Ext.X1 being public documents, the plaintiff cannot be blamed for
discrepancies. That be so, it becomes inevitable for this Court to conclude that
Lakshmi Amma was the 'karnavathi' of the family and thus there is a strong
presumption regarding the jointness of the family with Achuthan Nair and
Ammini Amma. Accordingly, it is found that Lakshmi Amma and Achuthan
Nair and Ammini Amma formed a 'thavazhi' by operation of law and continued
as a joint family till its abolition under Act 30 of 1976. Accordingly, the
question of law is answered in favour of the Appellant/plaintiff.
20. However, it must be remembered that even though this Court has
found that there exists a joint family, that by itself will not lead to a conclusion
that all acquisitions by Lakshmi Amma will benefit the joint family. It is for the
person who asserts that the property is a joint family to prove that the same was
acquired for the benefit of the family. The initial burden is no doubt on the
plaintiff. Once the initial burden is discharged, then it is up to the defendants
who are denying the same, to prove that the property is a self-acquired property
of the 'karnavathi'.
21. Hence, it becomes imperative for this Court to consider whether the
plaintiff has proved that the acquisition of the Item No.1 of Plaint B Schedule
property by Lakshmi Amma is a self - acquired property or a joint family
property. In order to non- suit the plaintiff the trial court relied on the decision
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of the Supreme Court in MST Rukhmabai Vs. Lala Laxminarayan [AIR
1960 SC 335] and also the provisions contained in Section 14 of the Hindu
Succession Act. A cursory reading of the decisions in Rukhmabai (supra) will
show that the decision is not applicable to the facts of the case at hand. It is
nobody's case that parties were governed by the Hindu Succession Act, 1956.
Admittedly, the parties were covered by the Marumakkathayam Law. The trial
court miserably failed to appreciate the impact of Act 30 of 1976. It is
worthwhile to mention that the introduction of the Kerala Joint Family
(abolition)Act, 1975, the joint family in the State of Kerala stood abolished
w.e.f 1-12-1976.
22. Turning to the Act 30 of 1976, Section 7 speaks about the repeal of
various enactments which were prevailing in the State of Kerala, and one of
which is the Madras Marumakkathayam Act. Therefore, the question is whether
insofar a joint family in the State of Kerala is concerned, whether provisions of
the Hindu Succession Act, 1956 has any impact or not. In order to appreciate
this question one needs to understand the impact of Section 4 of the Act 30 of
1976. The same reads as under:
"4. Joint tenancy to be replaced by tenancy in common:- (1)
All members of an undivided Hindu family governed by the
Mitakshara law holding any coparcenary property on the day this
Act comes into force shall with effect from that day, be deemed
to hold it as tenants-in-common as if a partition had taken place
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among all the members of that undivided Hindu family as
respects such property and as if each one of them is holding his
or her share separately as full owner thereof:
Provided that nothing in this sub-section shall affect the right to
maintenance or the right to marriage or funeral expenses out of
the coparcenary property or the right to residence, if any, of the
members of an undivided Hindu family, other than persons who
have become entitled to hold their shares separately, and any such
right can be enforced as if this Act had not been passed."
(2) All members of a joint Hindu Family, other than an undivided
Hindu family referred to in sub-section (1), holding any joint
family property on the day this Act comes into force shall, with
effect from that day be deemed to hold it as tenants-in-common,
as if a partition of such property per capita had taken place among
all the members of the family living on the day aforesaid, whether
such members were entitled to claim such paition or not under the
law applicable to them, and as if each one of the members is
holding his or her share separately as full owner thereof.
23. So, therefore, on and from the appointed day, ie: 1-12-1976, all
members of an undivided Hindu Family governed by Mitakshara law holding
any coparcenary property on the day the Act came into force shall be deemed
to hold it as tenants-in-common as if a partition had taken place. Since a
deemed partition takes place on or after 1-12-1976, the rights, if any of a
member of an undivided Hindu family gets crystallised and a statutory partition
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takes place. It must be noticed that the Act 30 of 1976 received the assent of
the President of India on 10-8-1976. Still further, the incidents of a coparcenary
property stood protected under Section 6 of the Hindu Succession Act. Thus,
the plaintiff having been born prior to 1975, is certainly entitled to claim a right
over the property by birth.
24. The Trial Court completely went wrong in applying the provisions
of Section 14 of the Hindu Succession Act 1956. To say the least, the
application of Section 14 of the Hindu Succession Act 1956 does not arise for
consideration in the facts of the case. No doubt, Section 14 enables a Hindu
female to hold the property as a full owner and not as a limited owner. However,
when parties are governed by the Marumakathayam Act, the provisions of
Section 14 has no application. Still further, the evidence adduced by the
defendants is not sufficient to show that the acquisition of item No.1 of plaint
B Schedule property by Lakshmi Amma is with her own funds and not with
that of the joint family.
25. In Achuthan Nair vs. Chinnamu Amma [AIR 1966 SC 411], the
Supreme Court considered the impact of the Marumakkathayam law as well as
the Tarwad property and also the acquisition in the name of a member of the
Tarwad . It was held by the Supreme Court that, the courts have recognised the
difference between a Hindu joint family under the Hindu law and a Tarwad
under the Marumakkathayam law in the context of acquisition of the properties
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and have adopted a different principle for accepting whether the property
acquired in the name of a member of the family is a joint family property or a
self-acquired property of the member. Under the Hindu law, when the property
stands in the name of a member of the joint family, it is incumbent upon those
asserting that it is a joint family to establish. When it is proved or admitted that,
a family possessed sufficient nucleus with the aid of which the member might
have made acquisition, the law raises a presumption that there is a joint family
property and the onus is shifted on the individual to establish that the property
was acquired by him without the aid of the said nucleus. However, it was held
that the said principle has no application in so far as the acquisition of property
in the name of a junior member of the Tarwad.
26. In Surendra Kumar Vs Phoolchand(dead) through L.R's &
Another [(1996) 2 SCC 491], the Supreme Court held that in the absence of
evidence to show that the person had sufficient means to purchase the property,
there is a presumption drawn that the property was purchased for the benefit of
the joint family.
27. When the evidence adduced by the defendants are tested in the light
of the principles laid down by the Supreme Court, it must be held that the
defendants failed to rebut the presumption. On the contrary, it has come out in
evidence that late Lakshmi Amma got a purchase certificate from the Land
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Tribunal, Ottapalam under Section 72 K of the Kerala Land Reforms Act 1963
as a cultivating tenant.
28. The issuance of a purchase certificate as a cultivating tenant assumes
significance inasmuch as the defendant failed to adduce evidence to show that
the acquisition was for the benefit of Late Lakshmi Amma individually. When
Lakshmi Amma along with her son and her daughter, formed a 'tavazhi' there
is a strong presumption that the obtainment of the lease was for the benefit of
the joint family. One must remember that, there is no prohibition under the
Kerala Land Reforms Act 1963 to obtain a lease on behalf of a joint family.
Thus, when the findings of the courts below are tested in the backdrop of the
above principles, this Court has no hesitation to hold that the findings are
palpably wrong and erroneous and do not have the support of law.
29. However, before proceeding further, this Court must notice the
contention of the learned counsel for the 5 th defendant that the purchase
certificate will confer her absolute right, title and interest over the property. In
support of his contention, the learned counsel relied on the decision of the
Supreme Court in Cheeranthoodika Ahmmedkutty and another vs.
Parambur Mariakkutty Umma and Others [2000 (2) SCC 417] wherein it
was held that a purchase certificate issued under Section 72K of the Land
Reforms Act as a conclusive proof as regards the title of the holder. However,
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this Court is afraid that the said proposition cannot apply to a joint family
property.
30. In Vishwambaran P.N. vs. T.P Sanu and Others [2018 (3) KHC
73] it was held that the purchase certificate issued in the name of an eldest
member of the family would benefit to the other co-shares also and no
conclusive proof can be attributed towards the same.
31. It would have been possible for the defendant No.5 to sustain the
aforesaid plea, if she had adduced evidence to show that the property was
acquired by Lakshmi Amma out of her own funds. Therefore, notwithstanding
the presumption being drawn as regards the existence of a joint family with
Lakshmi Amma and her children, it would have been possible for the 5 th
defendant to sustain her claim that Laskhmi Amma had independent right over
item No.1 of the plaint schedule property. In the absence of any such evidence,
the mere acquisition of the rights over item No.1 of plaint B schedule property
by virtue of a purchase certificate issued under 72K of the Kerala Land Reforms
Act, 1963 cannot be construed as the acquisition by Lakshmi Amma as self-
acquired property.
32. In Lekshmi Amma vs Anandan Nambiyar [1973 KLT 753], a
Division Bench of this Court held that under the Marumakkathayam Law, a gift
or a bequest in favour of wife and all children is presumed to be on behalf of
Thavazhi.
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33. Finally, this Court needs to take note of the decision of the Supreme
Court in Ramachandran Vs Vijayan [2024 SCC Online 3384] cited across
the bar by the learned counsel for the defendants. According to the learned
counsel the points raised in the appeal are squarely covered by the decision of
the Supreme Court.
34. On a close reading of the decision of the Supreme Court in
Ramachandran(supra) shows that the issue involved before the court was
whether a single female member could form a 'tavazhi' and thus hold the
property as 'tarwad' for the benefit of those who were to born in future. While
considering the issue, the Supreme Court held the minority view of the Full
Bench of this court in Mary Vs Bhasura Devi [1967 KLT 430] is correct and
held that the majority view is not a good law. However, noticing the fact that
difference between the Judges in the Full Bench was only as regards the
question whether a female member will constitute a 'tavazhi' by itself or not,
the Supreme Court found that there was concurrence among the Judges of the
full bench of this court, that once a Hindu female gets separated from the joint
family and is allotted the share, she along with her children constitute a
'tavazhi' and the members of the 'tarvad' will get the benefit of the property
allotted to her share.
35. On a further conspicuous reading of the decision will reveal that
the principles laid down therein, in fact applies more to the plaintiff than the
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defendant. Though, it is contended before me that the acquisition by Lakshmi
Amma will be her self acquired property, based on the principles laid down by
the Supreme Court, this court finds that such a proposition was laid down by
the Supreme Court in the above decision. First of all, there is no evidence here
to show that Lakshmi Amma got separated from her original tarvad. Even if it
is assumed that Lakshmi amma got separated from the 'tarvad', her acquisition
of Item No.1 of plaint schedule property was admittedly after separation. By
that time, Achuthan Nair and Ammini Amma , children of Lakshmi amma were
born. Therefore, when there is a prima facie presumption as regards the
existence of a joint family, it was for the defendants to prove otherwise. It
must be remembered that, once the plaintiff was successful in establishing the
existence of a joint family, all acquisition by the eldest member of the family is
deemed to be for the benefit of the joint family. The conclusion of this court is
supported by the precedents laid down by the Supreme Court referred above.
Added to the above fact, the 5th defendant failed to establish that the acquisition
of the Item No.1 of the Plaint B schedule was out of the independent funds
owned by late Lakshmi Amma. Therefore the irresistible conclusion is that item
No.1 of Plaint B Schedule is a joint family property. Thus the questions of law
2 and 3 are answered in favour of the appellant.
36. Next, it is contended by the respondents that the plaintiff has not
disclosed true facts in the plaint. According to the Learned Counsel for the 5 th
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defendant, the plaintiff was aware of the Ext.B1 'Will' executed by Late
Achuthan Nair since he was a signatory. However, on perusal of Ext.B1 'Will'
it is seen that the derivation of title of Lakshmi Amma or the manner of
acquisition of right by Achuthan Nair is not mentioned. Rather, it is interesting
to note that the Will is essentially an omnibus one. In the nature of the 'Will'
executed by Late Achuthan Nair, this court is not persuaded to hold that it will
take away the right of the plaintiff.
37. Learned Counsel for the respondents placed reliance on the
Ramjas Foundation and another vs. Union of India and others [2010 (14)
SCC 38]. However, in the light of the facts and evidence adduced by the parties
in this case, this court is of the considered view that the said decision has no
application.
38. Lastly, it is contended by the learned counsel for the defendants that
going by the decision of the Supreme court in Appasaheb Peerappa
Chamdgade vs. Devendra Peerappa Chamdgade and others [2007 (1) SCC
521], the plaintiff has to be non-suited. However, it must be noticed that a three
bench of the Supreme Court in Kalyani (dead) (supra) held otherwise. In the
present case since there is no evidence to show that Laksmi Amma possessed
independent funds to acquire item No.1 of B Schedule. That be so, the decision
cited across the bar has no application.
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39. As an upshot of these findings, it becomes imperative for this Court
to hold that the concurrent findings of the trial court as well as the first appellate
court is perverse, vitiated by material irregularities and non-appreciation of law
correctly. It follows that the findings will have to be interfered with.
Accordingly, the appeal is allowed. The judgment and decree of the Munisiff
Court, Pattambi in OS No.74 of 2005 as confirmed by the Sub Court,
Ottappalam in AS No.33 of 2008 is set aside. The plaintiff is thus entitled for a
preliminary decree in OS No.74 of 2005. Accordingly, O.S. No.74 of 2005 is
allowed, and a preliminary decree is passed by holding that item No.1 of plaint
B schedule property is liable to be partitioned by metes and bounds into equal
shares between the plaintiff and defendant Nos.5,6,7 and 8. The plaintiff will
be entitled to the costs of the suit.
Sd/-
EASWARAN S.
JUDGE
NS
