Kerala High Court
Rathi Janardhanan vs Shibu Rajani Balan on 6 October, 2025
Author: Sathish Ninan
Bench: Sathish Ninan
2025:KER:73139
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE SATHISH NINAN
&
THE HONOURABLE MR.JUSTICE P. KRISHNA KUMAR
MONDAY, THE 6TH DAY OF OCTOBER 2025 / 14TH ASWINA, 1947
RFA NO. 662 OF 2012
AGAINST THE JUDGMENT AND DECREE DATED 31/01/2012 IN OS NO.260
OF 2007 OF SUB COURT, THALASSERY
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APPELLANTS/DEFENDANTS:
*1 RATHI JANARDHANAN, [DIED, LRs RECORDED]
W/O.JANARDHANAN,AGED 65 YEARS, RESIDING AT
'KRISHNAKRIPA',PALLIYAMMOLA,MOHANKADA,ALAVI.P.O,
KANNUR-8.
2 U.A.KISHORE
S/O.JANARDHANAN,AGED 36 YEARS, RESIDING AT RESIDING AT
'KRISHNAKRIPA',PALLIYAMMOLA,MOHANKADA,ALAVIL.P.O,
KANNUR-8.
3 U.A.KRIPA JAYANANTH
D/O.JANARDHANAN,AGED 39 YEARS, 'AMINA QUARTERS',
THAZHE CHOVVA,CHOVVA POST,KANNUR DISTRICT.
4 PADUVILAT JAYANANTHAN
S/O.RAMAN,AGED 53 YEARS, BANK CLERK,RESIDING AT
'RAMALAYAM',P.O,MAVILAYI,MAVILAYI AMSOM DESOM.
(APPELLANT NO.4 MISTAKENLY TYPED AS PADUVILAT
JANARDHANAN IN DECREE AND JUDGMENT IN OS NO.260/2007 ON
THE FILE OF SUBORDINATE JUDGE THALASSERY, CORRECT NAME
IS PADUVILAT JAYANANDAN)
*[IT IS RECORDED THAT THE FIRST APPELLANT IS NO MORE AND HER LEGAL
HEIRS ARE ALREADY IN THE PARTY ARRAY AS APPELLANTS 2 TO 4, VIDE
ORDER DATED 22/05/2025 IN IA 2/2025 IN RFA 662/2012]
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RFA NO. 662 OF 2012 -2-
BY ADVS.
SRI.K.C.SANTHOSHKUMAR
SMT.K.K.CHANDRALEKHA
RESPONDENTS/PLAINTIFFS:
1 SHIBU RAJANI BALAN,
S/O.PARAYIL BALAN NAIR, AGED 29 YEARS.
2 SUBHASH RAJANI BALAN,
S/O.PARAYIL BALAN NAIR, AGED 23 YEARS.
3 SUNITHA RAJANI BALAN,
D/O. PARAYIL BALAN NAIR, AGED 23 YEARS.
4 NIMMI BALAN NAIR
D/O.PARAYIL BALAN NAIR, AGED 20 YEARS, (ALL ARE
RESIDING AT 'RAMKRIPA',ALAVIL POST,KANNUR-8.
BY ADVS.
SHRI.K.V.SOHAN
SRI.K.BABU
SMT.SREEJA SOHAN K.
SMT.R.REJI (ATTINGAL)
SHRI.ATUL SOHAN
SHRI.AJIN K. KURIAKOSE
THIS REGULAR FIRST APPEAL HAVING COME UP FOR HEARING ON
06.10.2025, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
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SATHISH NINAN &
P. KRISHNA KUMAR, JJ.
= = = = = = = = = = = = = = = = = =
R.F.A. No.662 of 2012
= = = = = = = = = = = = = = = = = =
Dated this the 6th day of October, 2025
J U D G M E N T
Sathish Ninan, J.
The preliminary decree in a suit for partition is under
challenge by the defendants.
2. As per the plaint averments, the plaint 'A' schedule
property, which is sought to be partitioned, belonged to one
Poovadan Kannan as per assignment deed No.2165/1903. The property
was enjoyed by Kannan and his successors as Thavazhi property. It
is claimed that as on the date of suit there are 88 sharers as
shown in the genealogical tree in plaint 'B' schedule. According
to the plaintiffs, the rights of all the other sharers except
that of the defendants were got assigned by them under various
assignment deeds. It is claimed that the plaintiffs have 86.75
shares and the defendants have 1.25 shares out of the total 88
shares. Partition and separate possession of the same is claimed.
3. Defendants 1 and 3 filed joint a written statement. They
denied the plaint claim that the property was acquired by
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Poovadan Kannan. It was contended that the property was purchased
by the five children of Poovadan Kannan viz, Kunhiraman,
Manikkom, Devaki, Thirumala and Madhavi under Ext.B1 assignment
deed number 2165/1903. They were co-owners of the property. It
was not a thavazhi property. Kunhiraman died unmarried and
issueless and his rights devolved on the four siblings, thus each
being entitled to ¼ shares. The ¼ rights of Devaki devolved on
her four surviving children. One among them viz. Damayanthi
executed a Will in respect of her rights in favour of one among
her children viz. Janardhanan. Defendants 1 to 3 are the wife and
the children of Janardhanan. It is claimed that Damayanthi had
one by sixteen shares (¼ x ¼) which on the death of Janardhanan
devolved upon defendants 1 to 3. The claim that there are 88
sharers to the property was denied.
4. Defendants 1 and 3 assigned their rights in the property
to the additional 4th defendant. He filed a written statement in
tune with that of defendants 1 and 3.
5. The trial court held that the property is a 'thavazhi'
property and passed a preliminary decree accepting the plaint
claim.
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6. We have heard Sri.K.C.Santhosh Kumar, the learned counsel
for the appellants-defendants and Sri.K.V.Sohan, the learned
counsel for the respondents-plaintiffs.
7. The points that arise for determination are :-
(i) Is 'A' schedule property a 'thavazhi' property as claimed by the
plaintiffs ?
(ii) Does the decree and judgment of the trial court warrant any
interference ?
8. Before we proceed to the facts, the following principles
need to be noted. A 'thavazhi' or a 'joint family' cannot be
created by the act of parties. It arises from status, under a
common female ancestress (See Mathevan Pillai v. Neelakanta Pillai, Bhagavathi Pillai
Thankachi 1952 KLT 140; Kypreth Moithiyan Kutty v. Natukandy Puthiapurayil Mammali (1928) ILR 51 Mad
574). An artificial group cannot constitute a thavazhi by an
agreement. [Kalianikutty Amma v. Devaky Amma 1950 KLT 705 ). A joint family is a
creature of law and not act of parties. (Thomas v. Kesavan Namboodiri (AIR 1964
Ker 144), Kumaraswami Mudaliar and Ors. v. Rajamanikkam Udayar and Ors. (1966 KLT 361); Surjit Lal
Chhabda v. CIT (1976) 3 SCC 142; CIT, Bihar-II v. Sandhya Rani Dutta (2001) 3 SCC 420)].
9. According to the plaint averments, the property was
acquired by one Poovadan Kannan, and he and his successors
enjoyed it as 'thavazhi' property. First of all we must note that
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the acquisition, if by Poovadan Kannan, does not become a
'thavazhi' property. Secondly, Ext.B1 is the document bearing
No.2165/1903 under which the property was acquired. It shows that
the acquisition was not by Poovadan Kannan but by his five
children. The acquisition by the said five children would not
imprint the property with the character of the 'thavazhi'
property.
10. To hold that the property is a 'thavazhi' property, the
trial court relied on certain transactions by the parties. The
five children of Poovadan Kannan had in the year 1903 purchased
yet another property under Ext.A20 deed. The said property was
sold in the year 1923 under Ext.A22. We find that, the recitals
in the documents, especially Ext.A20 would in fact indicate that
the acquisition thereunder was by the five children of Poovadan
kannan as co-owners and not otherwise. The court had also
referred to Ext.A27 whereunder defendants 1 to 3 conveyed the
plaint schedule property to the fourth defendant referring title
to the Tarwad. However, such a statement would not make it a
thavazhi property. So also, the court also referred to Exts.A35
and A36 judgment and decree in OS 14/1988 which was a suit for
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partition in the family. Therein, the court held the present
plaint schedule property to be a 'thavazhi' property. However,
the suit was dismissed for non-joinder of necessary parties.
Moreover, there is no plea or issue of res judicata. We are
unable to concur with the trial court which held the plaint 'A'
schedule to be 'thavazhi property'. The finding is liable to be
set aside and we do so.
11. That the plaintiffs and the defendants are entitled for
a share in the property is not in dispute. The share of the
respective parties need to be arrived at. While the plaintiffs
claim that they have got assignment of all the sharers, 88 in
number according to them, except defendants 1 to 3 would contend
that under a Will executed by Damayanthi one of the daughters of
the five children of Poovadan Kannan, her rights ( ⅟16) vested with
Janardhanan (who is one of the sons of Damayanthi), the
predecessor-in-interest of defendants 1 to 3. Such Will is not
produced. The said document is of relevance since the plaintiffs
claim to have obtained assignment of the rights of the other
children of Damayanthi. Whether the plaintiffs have got
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conveyance of rights of all the other sharers treating the
properties to be co-ownership properties of the four children of
Poovadan Kannan, is also to be considered. Opportunity could be
granted to both sides to adduce further evidence with regard to
the quantum of shares they are entitled for.
Resultantly, while holding that the plaint schedule property
is the co-ownership property of the four children of Poovadan
Kannan and not 'thavazhi' property as claimed in the plaint, the
decree and judgment of the trial court are set aside and the suit
is remanded back to the trial court to enter a finding with
regard to the shares of the parties. Both sides shall be
permitted to adduce further evidence in support of their claim
with regard to the quantum of shares.
Parties to appear before the trial court on 16.10.2025.
Sd/-
SATHISH NINAN
JUDGE
Sd/-
P. KRISHNA KUMAR
JUDGE
kns/-
//True Copy//
P.S. To Judge
