This second appeal challenged a lower appellate court's dismissal of a partition suit. The court dismissed the appeal, upholding the finding that the disputed property was self-acquired and that the plaintiffs failed to prove the existence of a common ancestry to establish it as tavazhy property.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT :
THE HONOURABLE MR. JUSTICE P.BHAVADASAN MONDAY, THE 23RD MAY 2011 / 2ND JYAISHTA 1933
SA.No. 729 of 1996()
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AS.81/1992 of SUB COURT, KASARAGOD AS.81/1992 of PRL.MUNSIFF, KASARAGOD ....................
APPELLANTS/
-----------------------RESPONDENTS 2 TO 5, 8 TO 11, 14, 16. 23, 24, 26 TO 28, 30 TO 40, 45, 47 TO 51, 53 TO 57 60, 61, 64, 65, 67 AND 68 AND LEGAL REPRESENTATIVES OF DECEASED 1ST RESPONDENT
PLAINTIFFS 3 TO 6, 9 TO 12 AND DEFENDANTS 2, 4 12, 13, 15 TO 17, 19 TO 29, 34, 36 TO 40, 42, TO 46, 49, 50 53, 54, 56, 57 AND LEGAL REPRESENTATIVES OF 2ND PLAINTIFF
1. SHANKARA, S/O.KUNHI
2. CHANDRAVATHI, D/O.KUNHI
3. DAMODARA BOLCHAPPADA, S/O.KUNHI
4. LEELA, D/O.KUNHI
5. UMAVATHI, D/O.CHANDRAVATHI,
6. SREELATHA, D/O.LEELA
7. RAMESH, S/O.LEELA
8. JAGANNATHA, S/O.JANAKI
9. MADHAVI, D/O.CHANDU
10. JANARDHANA. S/O.CHANDU
11. SUNDARA, S/O.UMBICHI
12. GANRSHA, S/O.UMBICHI
13. RATHNAM, D/O.UMBICHI
14. SUMATHI, D/O.UMBICHI
15. BHASKARA, S/O.CHERIAMMA
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SA.No. 729 of 1996()
16. MANU, 17. KUNHAMMA CHILDREN OF KORAPALU. 18. KORAGA 19. JANAKI 20. KAMALA 21. BHASKARA 22. CHANDRAVATHI CHILDREN 0F MANU 23. NARAYANA 24. SUNDARA 25. CHITHRA, D/O.KAMALA 26. ANITHA, D/O.CHANDRAVATHI 27. CHANDRA, S/O.KUNHAMMA 28. BHASKARA 29. SAROJINI Children of Janaki 30. MADHAVA 31. JANARDHANA 32. SAROJINI 33. SUSHEELA 34. BABY 35. GANESHA 36. RAJAN 37. UDAYAN 38. M.K.MANJUNATHA DAS 39. M.K.ARUNDATHI Children of Parvathi 40. M.K.SARASWATHI AMMA 41. KAMALA, WIDOW OF KUNHAMBU 42. SHOBHA Children of Kunhambu 43. PURUSHOTHAMA
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44. LEELA 45. K.KAMALAKSHA Children of Kunhikannan 46. PADMANABHA 47. BALAKRISHNAN 48. PUSHPA K.
NO. IS RESIDING AT NARAYANA PATEL COMPOUND, RAMDAS NAGAR, KUDLU VILLAGE, KASARAGOD TALUK,, P.O. RAMDAS NAGAR . NOS.2 TO 7 ARE RESIDING AT UDYAVARA MADA, KUNJATHUR VILLAGE, KASARAGOD TALUK, P.O.MANJESHWAR. NO.8 IS RESIDING AT C/O.L.KUMARAN, KARIMBI VALAPPU, MULLERIA, KARADKA VILLAGE, KASARAGOD TALUK, P.O.MULLERIA. NO.9 IS RESIDING AT A . KESHAVA TAILOR , PAREKATTA ROAD, KUDLU VILLAGE, KASARAGOD TALUK, NO.10 IS RESIDING AT NEAR GOPALAKRISHNA TEMPLE, KUDLU VILLAGE, KASARAGOD TALUK , P.O.RAMDAS NAGAR . NOS.11 AND 14 ARE THE CHILDREN OF UMBICHI, RESIDING AT RAMDAS NAGAR, NEAR GOPALAKRISHNA TEMPLE, KUDLU VILLAGE , KASARAGOD TALUK, P.O.RAMDAS NAGAR. NO.15IS RESIDING AT DHAMBEL HOUSE, SHEDIGURI MANGALORE, D.K. NOS.16,19 TO 26 ARE RESIDING AT PATLA HOUSE. P.O. KAYYAL, UPPALA VILLAGE AND KASARAGOD TALUK. NO.17 IS RESIDING AT C/O. THIMMAPPU, LAKSHAM VEEDU, KUNDANGARADKA, KOIPADY VILLAGE , P.O.KUMBALA. NO.18 IS RESIDING AT BAJA KOODEL HOUSE IN ENMAKAJE VILLAGE, P.O.PERLA. NO.27 IS RESIDING AT C/O.THIMMAPPA, LAKSHAM VEEDU, KOIPADY VILLAGE , KASARAGOD TALUK, P.O.KUMBALA. NOS.28 TO 31 ARE RESIDING AT PRATAPNAGAR, MANGALPADY VILLAGE AND POST, KASARAGOD TALUK. NOS.32 TO 37 ARE RESIDING AT BAJAKOODEL IN ENMAKAJA VILLAGE, KASARAGOD TALUK, P.O.PERLA. NOS.38 IS AT C/O. S.S.S.L. S.J. COLLEGE, MUNDANAPALLI, P.O. KOLAR, KARNATAKA STATE. NO.39 IS TEACHER G.L.P. SCHOOL, KUNJATHUR, P.O. KUNJATHUR. NO.40 IS TEACHER, G.H.S. KUNJATHUR, P.O. KUNJATHUR, NO.40 IS TEACHER, G.H.S. KUNJATHUR, P.O.KUNJATHUR. NOS. 41 TO 43 ARE RESIDING AT KUNJATHUR VILLAGE AND POST, KASARAGOD TALUK.
BY ADV. SRI.K.G.GOURI SANKAR RAI
SA.No. 729 of 1996()
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RESPONDENT(S):
-------------------------APPELLANTS AND RESPONDENTS 6, 7, 12, 13, 15, 17 TO 22, 25, 29, 41 TO 44, 46, 52, 58, 59, 62, 63 AND 66
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DEFENDANTS 59 TO 67 AND PLAINTIFFS 7, 8, 13, 14 AND DEFENDANTS 3, 6, 8 TO 11, 14 AND DEFENDANTS 3, 6, 8 TO 11, 14, 18, 30 TO 33, 35, 41, 47, 48, 51, 52 AND 58.
1. K.V.KARUNAKARAN, S/O.MANIKKAM.
2. K.V.LAXMI, W/O.KRISHNAN
3. K.V.AMMINI ALIAS SHARADA, W/O.GOPALAKRISHNA MASTER
4. K.V.JANAKI, W/O.KANNAN
5. K.V.KARTHYAYINI, W/O.KRISHNAN.
6. K.V.CHANDRASHEKARA.
7. K.V.MADHUSUDHANA
8. GIRIJA, W/O.MADHAVAN
9. SEETHA,, W/O.YESHAVANTHA.
NOS.1 TO 9 ARE CHILDREN OF MANIKKAM AND V.KRISHNAN, HINDUS, RESPONDENTS 1, 2, 4, 6 AND 8 ARE RESIDING AT VALIA VEEDU, CERAMICS ROAD, THALLANGARE VILLAGE AND POST NO.3 IS AT THEKKEPURAM, PARAKKATTA IN KUDLU VILLAGE, P.O. RAMDASNAGAR, KASARAGOD TALUK, NO.5 IS RESIDING AT BEERUGUDDE NEAR BAJANA MANDIR, MANGALPADY, P.O. MANGALPADY. NO.8 IS RESIDING AT MANGALORE UNIVERSITY COMPOUND, KONAJE, MANGALORE D.K., P.O. KONAJE.
10. JANAKI, DAUGHTER OF KUNHI ( DELETED)
11. RAJESHWARI, D/O.CHANDRAVATHI,
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*** NO.10 IS RESIDING AT C/O.K.KUMARAN, KARIMBIL VALAPPU, KARADKA VILLAGE, P.O.MULLERIA, KASARAGOD TALUK, NO.11 IS AT UDYAVARA MADA, KUNJATHUR VILLAGE, P.O. MANJESHWAR, KASARAGOD TALUK.**
12. HARISH , CHILDREN OF JANAKI
13. LOHITHAKSHA, RESIDING AT C/O.K.KUMARAN, KARIMBIL VALAPPU, KARADKA VILLAGE, P.O. MULLRIA, KASARAGOD TALUK
14. DAMODARAN V.V. , S/O.CHANDU, RESIDING AT L.I.G. 78 HOUSING COLONY, KAVOOR BONDEL, MANGALORE.
NO.19 IS RESIDING AT ASHOK NAGAR, MANGALORE, P.O. MANGALORE. NO.20 IS AT NEAR GOPALAKRISHA TEMPLE, KUDLU VILLAGE, KASARAGOD TALUK., P.O. RAMDAS NAGAR. (DELETED)
*** 21. PAVITHRA, S/O.UMBICHI, RESIDING AT NEAR GOPALAKRISHNA TEMPLE, KUDLU VILLAGE, KASARGOD TALUK, P.O.RAMDAS NAGAR. (DELETED)**
*** 22. SHARADA, DAUGHTER OF CHERIAMMA, RESIDING AT B.KESHAVA DRIVER, VANIJYA THERIGE KARIALAYA, GANDHI NAGAR, BANGALORE . (DELETED)**
*** 23. RAJESHA, S/O.CHANDRAVATHI, RESIDING AT PATLA HOUSE, KAYYAL POST, UPPALA BAYAR. ( DELETED)**
*** 28. HARISCHANDRA, S/O.JANAKI, RESIDING AT BAJAKOODEL, ENMAKAJE VILLAGE, KASARAGO D TALUK, P.O. PERLA. (DELETED).**
29. RENUKA, D/O.SAROJINI, BAJAKOODEL HOUSE, ENMAKAJE VILLAGE, KASARAGOD TALUK, P.O. PERLA.
30. PAVITHRAREKHA, DAUGHTER OF SAROJINI, RESIDING AT BAJAKOODEL HOUSE, ENMAKAJE VILLAGE, KASARATOD TALUK. P.O. PERLA.
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*** 31. M.K.ANNAPPA DAS, S/O.PARVATHI, C/O.SHANKRANTHI AGARBATHI, 33 PILLAPPA LANE, NAGARTHPATE, BANGALORE 2. (DELETED).**
*** 32. M.K.ISHWARA DAS, S/O.PARVATHI, 404, KAMAKSHI GOSHLA ROAD, MULUND (W), BOMBAY 80. (DELETED).**
33. PRAFULLA, D/O.KUNHAMBU, RESIDING AT UDYAVARA MADA, KUNJATHUR VILLAGE, KASARAGOD TALUK, P.O. KUNJATHUR.
RESPONDENTS 10, 15 TO 17, 19 T0 24, 27, 28, 31 AD 32 ARE DELETED FROM THE PARTY ARRAY, AS PER ORDER DATED 4.2.08 IN IA. 300/08.
R2 TO R9 BY ADVS. SRI.S.V.BALAKRISHNA IYER, SENIOR ADVOCATE SRI.P.B.KRISHNAN
THIS SECOND APPEAL HAVING BEEN FINALLY HEARD ON 23.05.2011 , THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
VK
P. BHAVADASAN, J.
Dated this the 23rd day of May, 2010.
JUDGMENT
The plaintiffs, who lost their partition suit before the lower appellate court are the appellants before this court.
in the plaint that the plaintiffs and defendants are members of a Marumakkathayam thavazhy. Admittedly plaint schedule property belonged to Kunhi Kanna, who had two children and four grand children. The allegation in the plaint was that children of Kunhi Kanna constituted a tavazhy. Later on Sankaranmootha Chettiar became the Karanavan and after his death the property came into the possession of his nephew and niece, children of Chirudai, the only sister of Sankarnmootha Chettiar. It is alleged in the plaint that the members of the family used to assemble in the ancestral house to perform ceremonies. It is also alleged
S.A.729/1996.
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that the first defendant used to give a share of income to the plaintiffs and later the first defendant attempted to create records in his favour. On the basis of the said allegations the suit was laid for partition.
S.A.729/1996.
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Exts. B1 to B6 marked. The trial court seems to have been rightly impressed by Exts.A2 and B1 and held that the properties are tavazhy properties is established and accordingly granted a preliminary decree which reads as follows:
“(1) In the result Sale Deed No.602 of 1955 of Kasaragod S.R.O.is declared null and void.
(2) The plaintiffs are jointly entitled to 14/60 share in the plaint schedule property.
(3) Defendants 2 to 4, 7, 8, 12 to 36, 39, 40, 45 to 48 are jointly entitled to 36/60 shares in the plaint schedule property.
(4) The plaint schedule property will be divided by metes and bounds and the plaintiffs and defendants 2 to 4, 7, 8, 12 to 36, 39, 40, 45 to 48 will be put in separate possession of their respective shares.
(5) The plaintiffs and defendants 2 to 4, 7, 8, 12 to 36, 39, 40, 45 to 48 are allowed to recover from the property of the 1st defendant that has come into the hands of additional defendants 58 to 67 mesne profits at the rate of Rs.1225/- and Rs.2100/- respectively for the period from
S.A.729/1996.
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6.2.1981 till they are put in separate possession of their shares.
(6) Costs shall come out of the estate .”
of law:
“A. Is not the finding of the lower appellate court that the geneology is not proved, opposed to and without considering the evidence of P.W.1 and D.W.1 and if so is not that finding vitiated for nonconsideration of material evidence.
S.A.729/1996.
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B. Has not the lower appellate court committed an error of law in not referring to let alone considering the reasoning of the trial court holding that Ext.B1 is null and void. If so is the decision of the lower appellate curt opposed to law.
C. Has not the lower appellate court committed an error of law in its construction of Exts.A1, A2, B1 and B2.
D. Is not the decision of the lower appellate court bad for want of consideration of material evidence on record.
E. In the facts and circumstances of the case is the decision of the lower appellate court sustainable?”
pointed out that the lower appellate court had misdirected itself both on facts and in law in coming to the conclusion that there is no evidence to show that the property involved in the suit is tavazhy property. Relying on Ext.A2 and the recital in Ext.B1 and also the fact that the vendee under
S.A.729/1996. 6
Ext.B1 had come into possession on the status of the nephew of the original owner of the property it is contended that it is clear that the property was a tavazhy property. The lower appellate court, according to learned counsel, has missed these vital aspects.
S.A.729/1996.
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“Kunhikanna, the father of Shankara Mootha Chettiar, made over the property belonged to him, to his son Sankara Mootha Chettiar and daughter Chirudai, as per a Registered document in the year 1898, and they were in joint possession and
S.A.729/1996.
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enjoyment of the property as their thavazhy property. The property was acquired in the name of Shankara as he was the eldest member and Karanavan of his sister's thavazhy.”
There is no averment or evidence in the case to show that the self acquired property was treated as the tavazhy property or it acquired the character of tavazhy so as to enable the plaintiff to claim a share in the property. As rightly noticed by the lower appellate court there is no whisper regarding the common ancestry and that it is stated that Sankaramootha Chettiar acquired the property
as the karanavan of the thavazhy of his sister is inconceivable in law. A reading of Exts.A3 and B1 would clearly show that the acquisitions were self acquisitions and there is no indication in either of these documents to show that the acquisitions were for and on behalf of the tavazhy. The lower appellate court was justified in its approach in taking a different view with regard to the character of the property.
S.A.729/1996.
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In the result this appeal is without merits and it is only to be dismissed. I do so. There will be no order as to costs.
P. BHAVADASAN, JUDGE
sb.
3 issues framed by the court
Whether the lower appellate court erred in holding that the property was self-acquired by the vendor and not tavazhy property.
Whether the plaintiffs established a common ancestry to prove the existence of a tavazhy or tarwad.
Whether the lower appellate court committed an error of law in not considering the reasoning of the trial court regarding Ext. B1.
Shankara
K.V. Karunakaran
P. BHAVADASAN
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
