Jagadamma v. Saraswathy

IN THE HIGH COURT OF KERALA AT ERNAKULAM

PRESENT:

THE HONOURABLE MR.JUSTICE P.BHAVADASAN FRIDAY, THE 18TH DAY OF SEPTEMBER 2015/27TH BHADRA, 1937 RSA.No. 1140 of 2005 ( ) ------------------------- AGAINST THE JUDGMENT IN AS 172/2000 of ADDITIONAL DISTRICT & SESSIONS COURT (ADHOC)-II, KOTTAYAM DATED 29-03-2005 AGAINST THE JUDGMENT IN OS 695/1997 of PRL. MUNSIFF COURT, KOTTAYAM DATED 31-08-1999 APPELLANT(S)/APPELLANTS/PLAINTIFFS:

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1. JAGADAMMA, W/O.LATE MADHAVAN NAIR, MANARGATTU HOUSE, KUZHIMATTOM P.O., PANACHIKKADU KARA KOTTAYAM.

2. SUJATHA, D/O.MADHAVAN NAIR, THEKKETHARAYIL HOUSE, CHALAPPALLY P.O.

MADATHILCHAL BHAGOM, CHERIAKUNNAM KARA PERUMPATTY VILLAGE, MALLAPPALLY TALUK.

3. SULEKHA, D/O.MARAGATTU HOUSE, KUZHIMATTOM P.O., PANACHIKKADU KARA, KOTTAYAM.

4. SUJITH, S/O.OF DO. DO.

BY ADV. SRI.RAJEEV V.KURUP RESPONDENT(S)/RESPONDENTS/DEFENDANTS:

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1. SARASWATHYAMMA, D/O.GOURIAMMA, PUTHENPURACKAL HOUSE, KUZHIMATTOM P.O.

PANACHIKKADU KARA, KOTTAYAM.

2. LATHA, D/O.SARASWATHYAMMA OF DO. DO.

3. SREEDEVI, D/O. OF DO. DO.

4. GEETHA, D/O. OF DO. DO.

5. KALA, D/O. OF DO. DO. DO.

(DEFENDANTS 1 AND 2 ARE NO MORE. SO THEY ARE NOT ARRAYED AS RESPONDENTS) R1 BY ADV. SRI.MATHEW JOHN (K) R1 BY ADV. SRI.SUJESH MENON V.B.

THIS REGULAR SECOND APPEAL HAVING BEEN FINALLY HEARD ON 18-09-2015, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ds

P.BHAVADASAN, J.

- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 18th day of September, 2015

J U D G M E N T

Plaintiffs are appellants. Their suit for partition was dismissed by the court below which was confirmed in appeal.

2.

The facts absolutely necessary for the purpose of disposal of this appeal are as follows:

Plaintiffs 1, 3 and 4 are respectively the 2nd wife and children of late Madhavan Nair. The 2nd plaintiff is the daughter of deceased Madhavan Nair born through his 1st wife. The 1st defendant is the brother of deceased Madhavan Nair, who is the son of deceased Madhavan Nair. The 2nd defendant is the sister of deceased Madhavan Nair and Padmanabhan Nair.

The 3rd defendant, Saraswathiamma is the daughter of Pappiamma Gouriamma and the 2nd defendant and defendants 4, 5, 6 and 7 are the children of Saraswathiamma. The plaint schedule properties

-2belonged to the family members including the deceased Madhavan Nair and others as per the gift deed. Among the persons in whose favour the gift deed was executed i.e. defendants 1 and 2 alone are alive. Claiming that the plaint schedule properties are to be partitioned into 3 shares and that one such share shall be allotted to plaintiffs, the suit was laid.

3.

Defendants 1 to 3 resisted the suit. They contended that plaintiffs have no right over the suit property and they are not entitled to any share in the plaint schedule property. The property belonged to Puthenpurackal family which is a marumakkathayam family. The defendants admitted that the property was sold in court auction to Nair Karayogam and the Nair Karayogam re-conveyed the property to Puthenpurackal family, according to the defendants, as per Ext.A1 document. The specific contention taken is that the reconveyance is in favour of the Karanavers and their nephew and the female members of

-3the thavazhy of the family. Thus the properties are reconveyed to Marumakkathayam family. If that be so, the members of the family alone are entitled to get share in the property. The deceased son of late Madhavan Nair or his legal heirs have not acquired any title or possession over the properties. On these contentions, they prayed for a dismissal of the suit.

4.

Trial court raised necessary issues for consideration. The evidence consists of the testimony of PWs 1 and 2 and document marked as Ext.A1 from side of the plaintiffs. The defendants examined DW1. 5.

On appreciation of materials before it, the court below came to the conclusion that Ext.A1 was executed in favour of the family and therefore the plaintiffs are not entitled to any share and non suited them. In appeal, the lower appellate court confirmed the decree. That brings the plaintiffs before this Court.

-46.

Notice was issued on the following substantial questions of law:

"(a) Since Madhavan Nair had expired after 17.6.1956, had not succession relating to his share over the property opened instantaneously on his death according to section 7 of the Hindu Succession Act and had it devolved upon his son Madhavan Nair?

(c) On the death of Madhavan nair (son) if his share over the plaint schedule property devolved upon his legal heirs-the plaintiffs, are the courts below justified in disallowing partition? Were not the plaintiffs entitled to get 1⁄4 share of the plaint schedule property portioned and separated?"

7.

The learned counsel appearing for the appellants contended that the finding of the court below that Ext.A1 is in favour of the Marumakkathayam family is erroneous. A reading of the document will show that it is a gift by few persons and it is very evident that they do not form a natural thavazhi. If that be so, they take it as tenants in common and Section 7 of the Hindu Succession Act governs

-5the parties. The courts below were in error in holding that Ext.A1 is in favour of a Marumakkathayam family. If it is in favour of a few persons named therein, as already stated, the learned counsel pointed out that there is no natural thavazhi to which the gift is made so as to make it a thavazhi property. This fundamental error committed by the courts below has resulted in passing a wrong decree. 8.

The learned counsel appearing for the respondents on the other hand pointed out that it is indisputable that the property belonged to the family. It was sold in court auction for a debt due from the family and it was later re-conveyed to the family. Thus, it remained a family property. May be that a few persons are named in the document, that does not derogate from the fact that reconveyance was to the family. Both the courts below have concurrently found that Ext.A1 is in favour of Puthenpurackal family following the Marumakkathayam law. Being a concurrent finding on facts, the courts below held that no grounds are made out to

-6interfere with the judgments of the courts below. 9.

It will be evident from the rival contentions that the sole issue that arises for consideration is the interpretation of Ext.A1 document. The question is whether on a reading of said document, one could say, it is in favour of a thavazhi or a family or it is in fact of the name mentioned therein. May be true that the property initially belonged to the family. It is not in dispute that it was sold in court sale and purchased by certain other persons. On the request being made by persons made mention of in Ext.A1, NSS Karayogam decided to re-convey the property to those members. The relevant recital reads as follows: "¦ÏßøJß2øáÈâxßÉdLIÞÎÞIá ÎàÈÎÞØ¢ §øáÉJßÎâKÞ¢ ÄàÏÄß ÉÈoîßAÞ¿áÉμáÄßÏßW ¿ß μøÏßW §øßBÞ¿MUßW ÈßKᢠÉáJXÉáøAW ÕàGßW oÞVAᢠÈÞÏV μã×ßAÞV øÞÎXÈÞÏøáæ¿ ¥ÈLßøÕV ¥ùáÉÄáÕÏTÞÏ Ö¢μøXÈÞÏøᢠ¥XÉçJÝá ÕÏTÞÏ ÈÞøÞÏÃXÈÞÏøᢠ¥XÉæJÞKá ÕÏTÞÏ μã×íÃX ÈÞÏøᢠ¿ßÏÞzÞøáæ¿ ¥ÈLßøÕV ¿ßÏßW Ö¢μøXÈÞÏøáæ¿ ¥ÈLßøÕV §øáÉJß ̄ÝáÕÏTÞÏ ÎÞÇÕX ÈÞÏøá¢

-7- §øáÉÄáÕÏTÞÏ ÉvÈÞÍXÈÞÏøᢠ¿ßÏßW dØñàμZ ·ãÙç1⁄4ÞÜßAÞV ÈÞøÞÏÃßÏN ÎμZ ÈÞWÉJFá ÕÏTÞÏ ÉÞMßÏNÏᢠ¿ß ÉÞMßÏN ÎAZ §øáÉJßÎâKá ÕÏTÞÏ ·ìøßÏNÏᢠÕßÆcÞÍcÞØ¢ ÉJáÕÏTÞÏ ÎàÈÞfßAáGßÏᢠçÉVAá"

10.

The further recital reads as follows:

"ÈßBZ çÏÞ·JßW ¥çÉfßoî dÉμÞø¢ æÉÞÄáçÏÞ·JßW ¥ÈáÕÆßoî ¿ß æÉÞÄáçÏÞ·JßÜᢠμNxßçÏÞ·JßÜᢠ3⁄4BZ ®ÝáÄßÄøáKÄßÈá ¥ÇßμÞøæM¿áJßÏÄÈáØøßoîá ÄÞæÝ ÉùÏáK ØíÅÜ¢ ÈßBZAá ÆÞÈæÎæμ 2ÝßæEÝáÄß èμÕÖæM¿áJß ÄKßøßAáKá.åÏÞæÄÞøá ÕßÇJßÜᢠ¥ÈcÞÇàÈæM¿áJÞæÄÏᢠ¥VjÞÕμÞÖæM¿áJÞæÄÏᢠÈßBZ çÉøßW μâGßμø¢ ÄàVJᢠçÆÙmBZ æoÏñᢠÉáøÕoîáÏßVJᢠÉøOøÏÞ ¥ÈáÍÕßoîáæμÞçUIÄᢠ§ÄßÈá ÕßÉøàÄÎÞÏß æoÏñÞW ÏÞæÄÞøá ¥Vj ÌÞÇcÄÏᢠμâ¿ÞæÄ 2ÝáMßoîá ®¿áAáÕÞX μøçÏÞ·JßçÜAá ¥ÕμÞÖÎáUÄᢠ¦μáKá."

11.

The courts below felt that the reconveyance or the gift or the settlement as the case may be is to the family. It is difficult to accept the above finding. Probably, they are all members of the said family. But it is one thing to say that a gift or settlement is in favour of the family, it is quite

-8another thing to say that it is in favour those persons mentioned in the document. At any rate, it is difficult to come to the conclusion that reconveyance is to a natural thavazhy. Merely because property once belonged to the family, it does not ipso facto follow that reconveyance is to the family. These vital aspects have not been considered by the courts below. The courts below were carried away by the facts that members of the family had applied and NSS Karayogam had decided to re-convey the property to them. The courts below did not address to the question as to in whose favour the document was executed and what is the consequence thereof.

12.

For the above reasons, this Court is unable to uphold the findings of the court below and it is felt that a fresh consideration of the matter is necessary at the hands of the trial court. The judgments and decrees of the courts below are set aside and the matter is remanded to the trial court for fresh consideration in accordance with law and in

-9the light of what has been stated above. Parties will be at liberty to amend their pleadings, if they so chose. They will be allowed to adduce further evidence. The application for amendment filed before this Court is closed with liberty to file fresh application before the trial court. The parties shall appear before the trial court on 29.10.2015. The trial court may make every endeavour to dispose of the suit as expeditiously as possible at any rate, within a period of six months from the date of appearance of the parties.

Sd/- P.BHAVADASAN JUDGE ds //True copy// P.A. to Judge