Kerala High Court
E.T.Mohanan vs Pankajakshy on 25 March, 2025
RSA No.852 & 853 of 2015
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CR
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE M.A.ABDUL HAKHIM
TUESDAY, THE 25TH DAY OF MARCH 2025 / 4TH CHAITHRA, 1947
RSA NO. 852 OF 2015
AGAINST THE JUDGMENT&DECREE DATED 14.02.2014 IN AS NO.357 OF 2010
OF I ADDITIONAL DISTRICT COURT ,PALAKKAD ARISING OUT OF THE JUDGMENT&DECREE
DATED 30.10.2010 IN OS NO.345 OF 2004 OF PRINCIPAL SUB COURT, PALAKKAD
APPELLANT/CROSS APPELLANT/PLAINTIFF:
E.T.MOHANAN
AGED 87 YEARS
S/O. LATE THEETHAN,JANAKI SADAN, KIZHAKKEGRAMAM,PERUVEMBA
POST 678 531 PALAKKAD TALUK PERUVEMBA VILLAGE, PALAKKAD
DISTRICT
BY ADVS.
SRI.O.RAMACHANDRAN NAMBIAR
SRI.V.BINOY RAM
SRI.GEEN T.MATHEW
RESPONDENTS/RESPONDENTS/DEFENDANTS 2 TO 8:
1 PANKAJAKSHY
AGED 67 YEARS
W/O. LATE THEETHAN, EDAKKATTIL,KOZHALMANNAM POST 678
702,ALATHUR TALUK,PALAKKAD DISTRICT
2 AJITH
AGED 44 YEARS
S/O. LATE THEETHAN,EDAKKATTIL,KOZHALMANNAM POST 678
702,ALATHUR TALUK,PALAKKAD DISTRICT
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3 SANJEEVAN
AGED 43 YEARS
S/O. LATE THEETHAN,EDAKKATTIL,KOZHALMANNAM POST 678
702,ALATHUR TALUK,PALAKKAD DISTRICT
4 SIJIMON
AGED 41 YEARS
S/O. LATE THEETHAN,EDAKKATTIL,KOZHALMANNAM POST 678
702,ALATHUR TALUK,PALAKKAD DISTRICT
5 SAJIMOL
AGED 46 YEARS
W/O. ARAVINDAKSHAN,AMBATTUPALAYAM,CHITTUR COLLOEGE POST 678
104,CHITTUR TALUK,PALAKKAD DISTRICT
6 SHEEJAMOL
AGED 42 YEARS
W/O. JAYAPRAKASH,ELATHIYANKODE, MARUTHARODE POST 678 007
MALAMPUZHA,PALAKKAD DISTRICT
7 SANTHA SANTHAKUMARI
AGED 62 YEARS
W/O. SUDEVAN, PANCHAVATI HOUSE, MADAMBARA,PALLAVOOR VILLAGE,
PALLASANA POST 678 505 CHITTUR TALUK,PALAKKAD DISTRICT
BY ADV SRI.B.K.GOPALAKRISHNAN
THIS REGULAR SECOND APPEAL HAVING BEEN FINALLY HEARD ON 12.03.2025,
ALONG WITH RSA.853/2015, THE COURT ON 25.03.2025 DELIVERED THE FOLLOWING:
RSA No.852 & 853 of 2015
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IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE M.A.ABDUL HAKHIM
TUESDAY, THE 25TH DAY OF MARCH 2025 / 4TH CHAITHRA, 1947
RSA NO. 853 OF 2015
AGAINST THE JUDGMENT DATED 14.02.2014 IN AS NO.357 OF 2010 OF I
ADDITIONAL DISTRICT COURT,PALAKKAD ARISING OUT OF THE JUDGMENT&DECREE DATED
30.10.2010 IN OS NO.345 OF 2004 OF PRINCIPAL SUB COURT, PALAKKAD
APPELLANT/1ST RESPONDENT/PLAINTIFF:
E.T.MOHANAN
AGED 57 YEARS
S/O. LATE THEETHAN,JANAKI SADAN,KIZHAKEGRAMAM, PERUVEMBA
POST 678 531 PALAKKAD TALUK PERUVAMBA VILLAGE,PALAKKAD
DISTRICT
BY ADVS.
SRI.O.RAMACHANDRAN NAMBIAR
SRI.V.BINOY RAM
SRI.GEEN T.MATHEW
RESPONDENTS/APPELLANTS AND 2ND RESPONDENT/PLAINTIFF AND DEFENDANTS 1TO 8:
1 PANKAJAKSHY
AGED 67 YEARS
W/O.LATE THEETHAN ,EDAKKATTIL ,KOZHALMANNAM POST 678
702,ALATHUR TALUK,PALAKKAD DISTRICT
2 AJITH
AGED 44 YEARS
S/O. LATE THEETHAN,EDAKKATTIL ,KOZHALMANNAM POST 678
702,ALATHUR TALUK,PALAKKAD DISTRICT
3 SANJEEVAN
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AGED 43 YEARS
S/O. LATE THEETHAN, EDAKKATTIL ,KOZHALMANNAM POST 678
702,ALATHUR TALUK,PALAKKAD DISTRICT
4 SIJIMON
AGED 41 YEARS
S/O. LATE THEETHAN,EDAKKATTIL ,KOZHALMANNAM POST 678
702,ALATHUR TALUK,PALAKKAD DISTRICT
5 SAJIMOL
AGED 46 YEARS
W/O. ARAVINDAKSHAN,AMBATTUPALAYAM,CHITTUR COLLEGE POST 678
104 CHITTUR TALUK,PALAKKAD DISTRICT
6 SHEEJAMOL
AGED 42 YEARS
W/O. JAYAPRAKASH,ELANTHIYANKODE, MARUTHARODE POST 678 007
MALAMPUZHA,PALAKKAD DISTRICT
7 SANTHA@ SANTHAKUMARI
AGED 62 YEARS
W/O. SUDEVAN, PANCHAVATI HOUSE, MADAMBARA, PALLAVOOR
VILLAGE, PALLASANA POST 678 505 CHITTUR TALUK,PALAKKAD
DISTRICT
BY ADVS.
SRI.N.N.SUGUNAPALAN (SR.)
SRI.B.K.GOPALAKRISHNAN
SRI.S.SUJIN
THIS REGULAR SECOND APPEAL HAVING BEEN FINALLY HEARD ON 12.03.2025,
ALONG WITH RSA.852/2015, THE COURT ON 25.03.2025 DELIVERED THE FOLLOWING:
RSA No.852 & 853 of 2015
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CR
JUDGMENT
[RSA Nos.852/2015, 853/2015]
1. These appeals arise from O.S No.345/2004 of the Principal Sub
Court Palakkad, which was filed for partition of A & B schedule
properties. The plaintiff is the appellant in both the appeals.
Even though partition is sought with respect to plaint A and B
Schedule properties, B schedule property was later deleted with
leave to institute a fresh suit for the same. The properties
included in Plaint A Schedule are the properties included in the
C schedule of Ext.A11 Partition Deed dt. 10.02.1973.
2. Admitted facts are that the parties belonged to Hindu Ezhava
community. Raman, grandfather of the plaintiff, had three sons-
Rakkandi, Kittu, and Theethan (1st defendant). His wife was
Nagunni. Raman died around 1952. The plaintiff is the son of 1st
defendant. The plaintiff and his sisters, who are the defendants
6 to 8, are the children of the 1st defendant in his first marriage
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with Janaki. On the death of Janaki, the 1st defendant married
the 2nd defendant, and the defendants 3 to 5 are the sons born
in that wedlock. The aforesaid children and wife of Raman
executed Ext.A11 Partition Deed in the year 1973, partitioning
the properties among them in which C schedule properties were
allotted to the 1st defendant. The 1st defendant executed Ext.B1
to B5 Settlement Deeds of the years 2003 and 2004 with respect
to the Plaint schedule properties in favour of the defendants 2
to 5. The 1st defendant had executed Exts.B6 and B7 registered
Wills bequeathing his estate in favour of defendants 2 to 5. The
1st defendant died on 08.05.2005 during the pendency of the
suit after filing Written Statement. The defendants 6 to 8 were
impleaded as the remaining legal heirs of the 1st defendant as
other legal heirs are already in the party array. There ends the
admitted facts.
3. The suit is filed by the plaintiff on the claim that the Plaint A
Schedule properties are the ancestral properties of the Joint
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Family headed by Raman. Plaint B schedule property is
acquired by the 1st defendant and his brothers out of the profits
from Plaint A schedule properties. Since the Plaint Schedule
properties are allotted to the branch of the 1st defendant as per
Ext.A11 of the year 1973, it has the character of joint family
property consisting of the plaintiffs and the defendants 2 to 5.
The plaintiff is having birth right in the plaint schedule properties.
On the abolition of joint family as on 1.12.1976, the plaintiff
became a co-owner having 1/5 share in the plaint schedule
properties. The 1st defendant had only 1/5 share in the plaint
schedule properties. The 1st defendant did not have a sound
disposing mind to execute Ext.B1 to B5 settlement deeds.
Those documents are executed exerting undue influence,
coercion, misrepresentation, and fraud on the 1st defendant, and
hence, those documents are null and void. On the death of the
1st defendant, his 1/5 share is liable to be divided among the
plaintiff and the defendants 2 to 8. Thus, as per the amended
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Plaint, the plaintiff claims 1/5 share as a coparcener and 1/8
share out of the 1/5 share of the 1st defendant as the legal heir
of the 1st defendant calculating the total share as 9/40.
4. The defendants 1 to 3 opposed the suit prayers, contending that
plaint A schedule properties are not ancestral properties.
Raman had only a homestead held on Kudiyiruppa. Raman was
a toddy tapper. Raman had no other property or source of
income. Three sons of Raman had set up separate hearths and
homes with separate living. They had taken lease of cultivable
lands. The first defendant, in addition, pursued other avocations
such as Paddy Procuring Agency, Abkari, fertilizer business,
Etc. There was no jointness in food, worship, and estate. The
three brothers purchased properties in their joint names, pooling
their earnings, and they never intended to treat it as belonging
to the group consisting of them as their progeny. The division as
per Ext.A11 was not on per stripes. The properties allotted to
each of the sharers are his individual and exclusive property.
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Hence, C schedule properties in Ext.A11 allotted to the 1st
defendant, which is included in the plaint schedule properties,
are the exclusive properties of the 1st defendant, and hence,
the plaintiff did not derive any birthright. The 1st defendant
voluntarily executed Ext.B1 to B4 settlement deeds transferring
the properties in favour of the defendants 2 to 5. The 1st
defendant had executed Ext.B7 registered Will of the year 1999
bequeathing his estate in favour of defendants 2 to 5. The 1st
defendant had sound disposing capacity at the time of executing
those documents. The said documents are not vitiated in any
manner. On the basis of the aforesaid documents, the plaint
schedule properties exclusively belonged to the defendants 2 to
5, and the same are not available for partition.
5. The Trial Court found that the plaint A schedule properties are
ancestral properties, and hence the plaintiff and the defendants
3 to 5 acquired right by birth over the same. The Trial Court
found that after the enforcement of the Kerala Joint Hindu
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Family System (Abolition) Act, 1975, the 1 defendant and his
st
sons became tenants in common by virtue of the notional
partition having 1/5 share each. It is also found that as per
Ext.B1 to B5 Settlements Deeds and Ext.B7 Will, the 1/5 right
of the 1st defendant is derived by the defendants 2 to 5, and
hence, the said 1/5 share of the 1st defendant is not liable to be
partitioned among the legal heirs of the 1st defendant and that
the plaintiff and defendants 6 to 8 did not acquire any right over
plaint A schedule properties. The 1/5 share of the 1st defendant
was allotted equally to the defendants 2 to 5. The suit was
decreed, passing a preliminary decree for partition dividing the
plaint A schedule properties into 20 equal shares and allotting 4
shares to the plaintiff, one share to the 2nd defendant, and 5
shares each to the defendants 3 to 5. The plaintiff is allowed to
get a share of profits from defendants 2 to 5, the quantum of
which is directed to be decided in the final decree proceedings.
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6. The defendants 2 to 5, 7, and 8 filed A.S No.357/2010 before
the First Appellate Court challenging the judgment and decree
passed by the Trial Court. The plaintiff filed Cross objection in
A.S No. 357/2010. AS No.357/2010 is filed challenging the
judgment and decree of the Trial Court so far as it finds that the
plaint A schedule properties were ancestral properties in which
the plaintiff and the defendants 1 to 5 are having birth right and
ordering partition in accordance with that. The Cross objection
filed by the plaintiff was challenging the judgment and decree of
the Trial Court so far as it upheld Ext.B1 to B5 and B7 and
allotting the share of the 1st defendant to the defendants 2 to 5
on the basis of the same. The First Appellate Court allowed A.S
No.357/2010 setting aside the judgment and decree of the Trial
Court and dismissing the suit, holding that plaint A schedule
property is the exclusive property derived by the 1st defendant
as per C schedule of Ext.A11 Partition deed and he transferred
the entire property in favour of the defendants 2 to 5 as per
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Ext.B1 to B5 and B7 documents. The Cross objection filed by
the plaintiff was disallowed.
7. The plaintiff filed R.S.A No.852/2015 challenging the judgment
and decree in Cross Objection in A.S No.357/2010 of the First
Appellate Court. The plaintiff filed R.S.A No.853/2015
challenging the judgment and decree in A.S No. 357/2010 of the
First Appellate Court. This Court admitted both these Regular
Second Appeals on the following substantial questions of law.
1.Whether the finding of the lower appellate court that the
properties in C schedule to the Exhibit A11 partition is not a
joint family property and it is a self acquired property of the
late 1st defendant is sustainable in law in view of the settled
position of the Hindu Mitakshara Law?
2. Whether the appellant is entitled to get right by birth over
the plaint schedule properties under the Hindu Mitakshara
Law?
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3. Whether findings of the first appellate court that Exts.B1 to
B7 are valid documents and holding the same executed by
the late 1st defendant is legal?
4. Whether the 1st defendant had the right and authority to
execute the settlement deeds and Wills in favour of his wife
and children?
8. I heard the learned counsel for the appellant Sri.O
Ramachandran Nambiar and the learned Senior Counsel for the
respondents 1 to 4 Sri N.N.Sugunapalan instructed by
Adv.Sri.S. Sujin.
9. The learned counsel for the appellant contended that there is
ample evidence before the Trial Court to prove that Plaint A
schedule properties are ancestral properties derived by the 1st
defendant as per C schedule of Ext. A11 Partition Deed. Raman
was an agriculturist. There was enough evidence to hold that
there was ancestral joint family property. The properties
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acquired by the 1 defendant and his two brothers as per Ext.A5
st
to A10 by their joint efforts using the profits from the joint family
nucleus. The acquisition of the properties in the joint names of
all the brothers who constituted the coparcenary alone is
sufficient to hold that the said properties are purchased out of
the nucleus of the joint family property. Ext.A11 itself would
reveal that ancestral properties are available in the joint family.
Even though it is stated that the rest of the properties are
acquired by them by their individual and joint efforts, the same
is proved to be incorrect on account of the attending
circumstances. Learned Counsel contended that it is admitted
by the defendants 2 to 5 that Exts.A1 to A4 are of ancestral
properties. Exts.A12 to A14 would prove that the properties
covered therein are joint family properties. When DW1 himself
admits that his knowledge is only hearsay, his evidence could
not be relied on even in the absence of any cross examination.
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10. The learned counsel for the appellant cited the decision of the
Hon'ble Supreme Court in Bhagwan Dayal v. Mst. Reoti Devi
[AIR 1962 SC 287], in which the general principle laid down
is that every Hindu family is presumed to be joint unless
the contrary is proved, but this presumption can be
rebutted by direct evidence or by course of conduct. The
learned counsel cited the decision of the Patna High Court in
Jugal Kishore Singh & Ors. v. Govind Singh & Ors. [AIR
1992 Patna 128], in which it is held that where the parties are
governed by Mitakshara Hindu Law, there is a presumption of
jointness, and the burden to prove partition is on the person who
asserts.
11. The learned counsel cited the decision of this Court in Abdulla
Kunji Pokkarukutty & Anr. V. Ayyappan Ravunny [AIR 1973
Ker. 192 ] and the decision of the Andhra Pradesh High Court
in Jandhyala Sreerama Sarma & Ors v. Nimmagadda
Krishna Venamma & Ors. [ AIR 1957 AP 434] to substantiate
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the normal presumption that the senior most member is the
manager of the Hindu joint family and that if anybody wants to
displace the ordinary presumption, it is incumbent on that
person to prove the facts rebutting the said presumption.
12. The learned counsel cited the decision of the Hon'ble Supreme
Court in Mallesappa Bennappa Desai & Anr. v. Desai
Mallappa @ Mallesappa & Anr. [AIR 1961 SC 1268] to
substantiate the point that where a Manager of a Hindu Joint
Family claims that any immovable property had been acquired
by him with his own separate funds and not with the help of joint
family funds of which he was in possession and charge, it is for
him to prove by clear and satisfactory evidence his plea that
purchase money proceeded from separate fund and that the
onus of proof must in such a case be placed on the manager
and not on his coparceners. If the said principle is applied to the
present facts of the case, the burden is entirely on defendants
2 to 5 to prove that the properties were acquired by the first
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defendant with his own separate funds and not with the help of
joint family funds. The learned counsel cited the decision of
Madras High Court in Sankara Narayanan & Anr. v. The
Official Receiver, Tirunelveli & Ors [AIR 1977 Madras 171] to
substantiate the point that the onus is on the Kartha to prove
that the property was acquired by separate funds. The learned
counsel cited the decision of the Himachal Pradesh High Court
in Parma Nand v. Sudama Ram & Ors. [AIR 1994 HP 87] in
which it is held that when possession of an adequate nucleus is
shown the onus shifts on the person who claims the property as
self acquired to show that he has purchased the property in
question with his individual resources without the aid of joint
family assets. Counsel contended that since the joint family
nucleus is proved, the burden is on the defendants 2 to 4 to
show that the plaint schedule property is the self acquired
property of the 1st defendant.
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13. The learned counsel cited the decision of the Hon'ble Supreme
Court in Yudhishter v. Ashok Kumar [AIR 1987 SC 558] to
substantiate the point that the moment when a son is born he
gets share in the father's property and becomes part of the
coparcenary and that his right accrues to him not on the death
of the father or inheritance from the father but with the very fact
of his birth.
14. The learned counsel cited the decision of the Orissa High Court
in Binod Jena & Anr. v. Abdul Hamid Khan & Ors. AIR 1975
Orissa 159] reiterating the leading principle in the Hindu law that
in the absence of proof of division, the presumption is that every
Hindu family is joint in food, worship, and estate and this
presumption is stronger in the case of brothers than in the case
of cousins and the farther one goes from the founder of the
family the presumption becomes weaker and weaker; that
where two brothers of a joint family acquires property by their
joint labour such properties, in the absence of a clear indication
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to the contrary, would also be presumed to be owned by them
as joint family property and their male issues would necessarily
acquire a right by birth in such properties and that the burden is
on the person who alleged that the two brothers were separate
at the time of acquisition.
15. The learned counsel cited the decision of this Court in
Narayanan Nair v. Taluk Land Board [1987 (1) KLT 760], in
which the term ancestral property is explained. It is useful to
extract Paragraph No.3 of the said decision.
"3. The term "ancestral property" denotes the property which
descends upon one person in such manner that his main issue
acquired certain rights in it as against him. It would be ancestral
property if the father had inherited the same as an unobstructed
property and it is not an ancestral property if it has been
inherited by him as obstructed property. In the case of ancestral
property father had a vested interest in the property before the
inheritance fell in and therefore his son acquires similar interest
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in the property before descent took place. Hence all property
which a man inherits from a direct male ancestor not exceeding
three degrees higher than himself is ancestral property."
16. The learned counsel for the appellant concluded his arguments
by submitting that the plaintiff has adduced sufficient evidence
for proving the existence of a joint family and the existence of
joint family property, and defendants 2 to 5 failed to establish
that the later acquisitions are their self-acquired properties
without the aid of joint family property.
17. On the other hand, the learned Senior counsel for the
contesting respondents contended that the presumption
available is only with respect to the joint family and there is no
presumption that joint family is having nucleus. The party who
claims that the properties are purchased using the joint family
funds, has to prove that the joint family was having nucleus and
the same was adequate for the acquisition of the properties in
the name of members of the joint family. DW1 has specifically
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stated in his chief affidavit that three brothers have different
businesses and different houses, and they have been residing
separately. The said evidence was not cross examined by the
plaintiff. The plaintiff can claim that the plaint schedule
properties are ancestral properties only if it is proved that the
members have been residing together.
18. The learned Senior Counsel for the contesting respondents
cited the decision of the Hon'ble Supreme Court in Mudigowda
Gowdappa Sankh v. Ramachandra Rev Gowda Sankh
[(1969) 1 SCC 386] to substantiate the point that there is no
presumption that a Hindu family merely because it is joint,
possess any joint property; that the burden of proving that any
particular property is joint family property is in the first instance
upon the person who claims it as a coparcenary property; that if
the possession of a nucleus of a joint family is either admitted
or proved any acquisition made by a member of that family is
presumed to be joint family property; that it is only after
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possession of an adequate nucleus is shown the onus shifts on
to the person who claims the property as self-acquisition to
affirmatively make out that the property was acquired without
the aid from the family estate. On the strength of the said
decision, the learned Senior Counsel contended that there is no
evidence as to the nucleus of a joint family and that the same
was adequate to acquire the properties purchased in the name
of three brothers who are the sons of Raman.
19. The learned Senior Counsel cited the decision of this Court in
Viswanathan v. Ramankutty & Ors. [1975 KLT 434], in which
the decision of the Hon'ble Supreme Court in Mudigowda
(supra) is followed after referring to the texts on Hindu Law. The
learned Senior Counsel cited the decision of this Court in
Vilasini v. Kuttappu [1989 (1) KLT 502] and contended that in
the case of acquisitions without the aid of a family nucleus, the
presumption of joint family property can be drawn only if it is
established that the acquirers were living together under the
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same roof and the acquisitions were made by joint labour. The
learned Senior Counsel pointed out that if the acquisitions were
made only for treating it as a partnership property, it is governed
by the Partnership Act, and on the death of one of the members,
it will devolve upon his legal heirs and not by survivorship.
20. The learned Senior Counsel concluded by citing the decision of
the Hon'ble Supreme Court in Union of India & Ors. v. Vasaavi
Co-operative Housing Society Ltd. & Ors. [(2014) 2 SCC
269] that in a title suit, the plaintiff has to establish his title and
weakness of the defendant is not a ground for declaring title to
the plaintiff.
21. These two Substantial questions of law decide the fate of
R.S.A No.853/2015.
22. Certain principles can be deduced in the light of the law
laid down in the aforesaid decisions cited by both sides. Every
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Hindu family is presumed to be joint in the absence of any
evidence to the contrary. Such a presumption would not lead to
the presumption that the joint family is having joint property.
Once it is proved that there existed a joint family property and
income is generated out of it, all further acquisitions are
presumed as acquisitions by the joint family, even if the same
are purchased in the names of members. The burden of proving
a joint family nucleus is on the person who asserts it. In the
absence of proof of sufficient joint family nucleus, all
subsequent acquisitions in the names of the members are
presumed as their self-acquired properties. When the properties
are purchased in the name of the Manager or some of the
Senior members of the joint family, the presumption of joint
family property is more stronger. If any of the members claim
that a property is his self-acquired property without any aid from
a joint family fund, the burden is entirely on such person to prove
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it. If any member claims partition and individual allotment, it is
for him to prove it.
23. Bearing in mind the aforesaid principles of law, the
pleadings and evidence of the case are to be appreciated.
24. The existence of a Hindu joint family under the managership of
Raman, father of the 1st defendant, is not disputed. The
existence of joint family property is also proved by Exts.A1 to
A5. The subsequent acquisitions are proved by Exts.A6 to A10.
Exts.A6 to A10 acquisitions were made in the names of all three
sons of Raman jointly. The plaintiff claimed that Raman was an
agriculturist, and using the income from joint family property, the
subsequent acquisitions were made. On the other hand,
defendants 2 to 5 contended that Raman was a toddy tapper
and he was not having sufficient income to acquire the
properties. In Exts.A1 to A4, Raman and his sons are referred
to as Agriculturists. The defendants 2 to 5 could not adduce any
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evidence to prove that Raman was a toddy tapper. The pleading
of defendants 1 to 5 is that apart from agriculture, the 1st
defendant had several other businesses such as Paddy
Procuring Agency, Abkari contract, Fertilizer business, Etc. This
pleading is made to show that the 1st defendant was having
income from his own business to acquire the properties. There
is no evidence to prove the aforesaid businesses of the 1st
defendant. Rakkandi is the Senior most son of Raman. The
presumption is that after the death of Raman, Rakkandi was the
Manager of the joint family. The properties covered by Exts.A6
to A10 are purchased in the joint names of three brothers. The
defendants, 1 to 5, contended that the brothers were having
individual business and residence. In such a case, the reason
for purchasing Ext.A6 to A10 properties in their joint names is
not disclosed by defendants 1 to 5. There is no evidence with
respect to the separate income and contribution of each of the
brothers to purchase Ext.A6 to A10 properties. Ext.A1 is the
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lease deed of the year 1946 executed by Rakkandi in favour of
the intermediary. Rakkandi (Senior) was the Manager of the
joint family before Raman. On the death of Rakkandi (Senior),
Raman became the Manager. Ext.A2 is the Kanam assignment
Deed of the year 1957 in the name of all three brothers. Ext.A3
of the year 1953 and Ext.A4 of the year 1952 are Assignment
Deeds in favour of Raman when he was the Manager. Ext.A5 is
the Assignment Deed of the year 1957 in the name of all three
brothers. Exts.A6 to A10 are Assignment Deeds in favour of the
three brothers. Exts.A1 to A10 would prove that the properties
were purchased either in the name of the Manager or in the
names of all the three brothers. Exts A1 to A4 would prove that
the agricultural properties therein were the joint family nucleus.
Since all the properties are agricultural properties, it could easily
be presumed that those properties were income generating
properties. In the absence of any proof of separate income for
the three brothers, it could only be presumed that the
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acquisitions, as per Exts.A5 to A10, are made for the joint family.
Ext.A11 partition among the three brothers and their mother was
executed on 10.02.1973. After Ext.A11, the 1st defendant
purchased jenmom rights from the Jenmee Tharavadu as per
Exts.A12 and A13. Rakkandi also purchased jenmom rights
from the Jenmee Tharavadu as per Ext.A14. Ext.A15 is the
Partition Deed of the year 1948 in the Jenmee Tharavadu, in
which it is specifically stated that the properties are outstanding
on agricultural lease in favour of the family of the plaintiff and
the defendants. By these documents, the plaintiff has
sufficiently proved that the plaint schedule properties are joint
family properties. The defendants 1 to 5 could not adduce any
evidence to prove that the properties are self acquired
properties of the three brothers.
25. The learned Senior Counsel for the contesting respondents
pointed out that the 5th defendant/DW1 has specifically deposed
that the three brothers started residing separately in
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independent houses after their marriage, and this evidence is
not cross-examined by the plaintiff. As rightly pointed out by the
learned counsel for the appellant, DW1 has specifically stated
in cross-examination that he was born in the year 1974, and his
knowledge with respect to matters before 1974 is only hearsay.
In such a case, the evidence of DW1 could not be relied on by
defendants 2 to 5, even if he was not cross-examined on all
points. When a Witness admits that what is deposed by him is
from hearsay knowledge, his evidence could not be relied on,
even if he was not cross-examined by the opposite party.
26. DW 2 was examined as the attesting witness to Ext.B1 to
B4, and DW3 was examined as the attesting Witness to Ext.B7
Will. They have not deposed anything with respect to the nature
and character of the plaint schedule properties. Since DW1,
who was born after Ext.A11, admitted that his knowledge prior
to his birth is only hearsay and no document was produced by
the defendants 2 to 5 to prove that the properties are self-
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acquired properties, practically no evidence is there before the
Court to hold that the plaint schedule properties are the self-
acquired properties of the three brothers.
27. In Ext.A11, the recital is that there are only a few ancestral
properties, and the remaining are self-acquired properties of the
three brothers. Even though the mother of the three brothers,
Nagunni is a party to Ext.A11, it is seen that she was not having
any pre-existing right over any of the properties mentioned
therein. It appears that she was made a party to Ext.A11 only to
ensure her maintenance. The properties partitioned as per
Ext.A11 are joint family properties, though it stood in the joint
names of its members. The 1st defendant obtained C schedule
properties in Ext.A11 as ancestral properties. Since the
properties allotted to the 1st defendant are ancestral properties,
the plaintiff, being a member of the branch headed by the 1st
defendant is having birth right over the same along with the
defendants 1 and 3 to 5. On the implementation of the Kerala
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Joint Hindu Family System (Abolition) Act, 1976, the joint
tenancy of the plaintiff and the defendants 1 & 3 to 5 became
tenancy-in-common, having 1/5 share each. The plaint
schedule properties are liable to be partitioned allotting 1/5
share each to the plaintiff and the defendants 1 and 3 to 5. The
Substantial Question of law No. 1 is answered in the negative,
and the Substantial Question of law No.2 is answered in the
affirmative, both in favour of the appellant.
28. These two Substantial questions of law decide the fate of
R.S.A No.852/2015.
29. The question to be considered is whether 1/5 share derived by
the 1st defendant is liable to be partitioned among his legal heirs
or to be as settled in favour of the defendants 2 to 5 on the basis
of Exts.B1 to B7.
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30. Exts.B1 to B5 are the Settlement Deeds executed by the 1st
defendant in favour of the defendants 2 to 4. The contention of
the plaintiff is that defendants 2 to 5 executed those documents
by threat, coercion, undue influence, and misrepresentation.
The 1st defendant who executed those documents filed a
Written Statement specifically stating that he executed those
documents freely, voluntarily, and knowing the contents. It is
also stated that the 1st defendant executed those documents
with the intention to give those properties to defendants 2 to 5.
The defendants 2 to 5 examined DW2 as the attesting witness
of Exts.B1 to B4. DW2 has deposed that the 1st defendant was
having sound disposing capacity at the time of executing those
documents. The defendants 2 to 5 examined DW3 as the
attesting witness of Ext.B7 Will. The Trial Court and the First
Appellate Court relied on the statement of the 1st defendant in
his Written Statement and the evidence of DWs 1 to 3 to uphold
Exts.B1 to B7. There is no pleading in the plaint that the 1st
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defendant was incapable of protecting his interest. There is
nothing to doubt the evidence of the attesting witnesses. The
learned counsel for the appellant could not point out any
perversity in the matter of appreciation of pleadings and
evidence with respect to Ext.B1 to B7 from the part of the Trial
Court and the First Appellate Court. The Trial Court rightly found
that defendants 2 to 5 are entitled to the 1/5 share of the 1st
defendant on the basis of Exts.B1 to B7.
31. The Substantial Question of Law Nos. 3 and 4 are
answered in the affirmative, both against the appellant.
32. In view of the above answers to the Substantial questions
of law, R.S.A No.852/2015 is dismissed without costs confirming
the judgment and decree of the First Appellate Court in the
Cross Appeal in A.S.No.357/2010 and R.S.A No.853/2015 is
allowed without costs setting aside the judgment and decree of
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the First Appellate Court in A.S.No.357/2010 and restoring the
judgment and decree of the Trial Court in O.S No.345/2004.
Sd/-
M.A.ABDUL HAKHIM
JUDGE
Jma/shg
