Allowed

Janaki v. Bharathan

Kerala HC14 Jun 2017AS/324/2001

Case brief

AI extract

What is this about?

The High Court allowed the appeal in a partition suit regarding leasehold family property. The Court held that the effect of certain assignment documents and the Share of the deceased wife under the Hindu Succession Act were not considered by the court below, remanding the matter for fresh disposal without reopening evidence.

What did the court decide?

The decree and judgment of the court below are set aside; suit is remanded to the court below for fresh disposal.

Janaki Vs Bharathan — Partition | Kerala HC (2017)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT:

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THE HONOURABLE MR.JUSTICE V.CHITAMBARESH & THE HONOURABLE MR. JUSTICE SATHISH NINAN

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WEDNESDAY, THE 14TH DAY OF JUNE 2017/24TH JYAISHTA, 1939

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AS.NO. 324 OF 2001 (E)

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AGAINST THE JUDGMENT AND DECREE IN OS.29/1998 OF II ADDL.SUB COURT,KOZHIKODE

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APPELLANTS/PLAINTIFFS:

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1. JANAKI, AGED 87 YEARS, PERMANENTLY RESIDING IN ELATHUR AMSOM, DESOM, KOZHIKODE TALUK, NOW RESIDING AT 'AJAY', KOTTAKKAL PARAMBA, PUTHIYANGADI AMSOM, DESOM, KOZHIKODE TALUK. (DIED) 2. NARAYANI, AGED 80 YEARS, RESIDING AT NELLIKOD AMSOM, KOVUR DESOM, KOZHIKODE TALUK. (DIED) ADDL A3. RADHA PUTTANGADI, D/O DECEASED JANAKI, RADHAYALAYAM, PUTHIYANGADI VILLAGE, KOZHIKODE-5. 4. PRABHAKARAN PUTTANGADI, S/O DECEASED JANAKI, VINOBHAJI ROAD, EDAPPALLY NORTH, ERNAKULAM 24. (DIED) 5. VIJAYARAGHAVAN PUTTANGADI, S/O DECEASED JANAKI, PUSHPABHAVAM, MOKAVOOR, KONDUPARAMBU ROAD, POST ERANJIKKAL, KOZHIKODE 21. 6. PAZHAVEETTIL SUJATHA, W/O DECEASED PRABHAKARAN PUTTANGADI H.NO.371-M1-G2-K.B PARK, VINOBHAJI ROAD, EDAPPALLY NORTH, ERNAKULAM 682024. 7. ARAKKAL SHALEENA VIBIN, W/O VIBIN, H.NO.1/1622, ARAKKAL HOUSE, AMARAVATHI, NEAR KOLLARS THEATRE, FORT KOCHI-1, ERNAKULAM. 8. NEENA SANTOSH, W/O SANTOSH, SIVANANDA VILASAM, KARIMPADAM, CHENDAMANGALAM, N.PARUR, ERNAKULAM 63512. SUPPLEMENTAL APPELLANTS 9 TO 14

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9. KISHORE, USHUS HOUSE, KOTTAKKAL PARAMBU, CHEVAYOOR POST, KOZHIKODE DISTRICT.

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10. AJITHA JAYAN, AJAY HOUSE, -DO- -DO11. JIBIN JAYAN, AJAY HOUSE, -DO- -DO-

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AS.NO. 324 OF 2001 (E)

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-2-

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12. JIJI JAYAN, -DO- -DO-

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13. SOYA, W/O GOKULAN, SREENILAYAM, MOONNUMKOODATHIL, CHEVAYOOR POST, KOZHIKODE DISTRICT.

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14. SATHYAMANI, SMRUTHI, CHAKARAPURATHU PARAMBU, NELLIKODE POST, KOZHIKODE DISTRICT.

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ADDITIONAL APPELLANTS 3 TO 5 ARE IMPLEADED AS THE LEGAL REPRESENTATIVES OF THE DECEASED 1ST APPELLANT AS PER ORDER DATED 31.7.2003 ON I.A NO.1023/03.

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DEATH OF 4TH APPELLANT IS RECORDED VIDE ORDER DATED 16.07.2008 IN I.A NO.853/2004.

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LEGAL REPRESENTATIVES OF THE DECEASED 4TH APPELLANT ARE IMPLEADED AS ADDITIONAL APPELLANTS 6 TO 8 AS PER ORDER DATED 16.7.2008 ON I.A 853/04.

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LEGAL HEIRS OF THE DECEASED 2ND APPELLANT ARE IMPLEADED AS SUPPL. APPELLANTS 9 TO 14 VIDE ORDER DATED 18.10.2012 ON I.A NO.2674/2010

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BY ADVS.SRI.SHYAM PADMAN

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SRI.JOHN THITHEEMOS

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SRI.A.RANJITH NARAYANAN SRI.S.K.SAJU

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RESPONDENTS/DEFENDANTS:

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1. BHARATHAN, AGED 75 YEARS, (EXPIRED) RESIDING AT ELATHUR AMSOM DESOM, CHETTIKULAM, KOZHIKODE TALUK.

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2. MUKUNDAN, AGED 72 YEARS (EXPIRED) -DO-

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3. VELAYUDHAN, AGED 69 YEARS, C/O C.K.MOHANAN, 52 GANGA NAGAR. MADRAS.

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4. SATHRUGNAN, AGED 66 YEARS, 5, RAMKRISHNA NAGAR, ALWAR, THIRUNAGAR, MADRAS 600 002.

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5. MOHANAN, AGED 48 YEARS, 52 GANGA NAGAR, MADRAS 600 024.

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6. RAJANI, AGED 45 YEARS, -DO-

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7. KISHORE, AGED 42 YEARS, -DO8. RAJAN, AGED 39 YEARS, -DO-

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AS.NO. 324 OF 2001 (E)

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-3-

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9. KUNHIPARACHAN'S DAUGHTER GOURI, (DIED) AGED 80 YEARS, KANNAMVALLI HOUSE, ELATHUR DESOM AMSOM, CHETTIKULAM, KOZHIKODE TALUK.

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10. KANNAMVALLI BHARATHAN'S WIFE NALINI, AGED 60 YEARS.

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11. JAYACHANDRAN, AGED 40 YEARS. 12. SURESH BABU, AGED 38 YEARS. 13. SASI KUMAR, AGED 35 YEARS. 14. SATHEESH BABU, AGED 33 YEARS. 15. PRATHEEKSHA, AGED 30 YEARS. 16. SOUMINI, W/O MUKUNDAN, AGED 55 YEARS. 17. PRATHIBHA, D/O MUKUNDAN, AGED 30 YEARS. 18. KANNAMVALLI VELAYUDHAN'S WIFE SOBHANA, AGED 50 YEARS. 19. SHEENA, D/O VELAYUDHAN, AGED 24 YEARS. 20. VENEETHA, D/O VELAYUDHAN, AGED 20 YEARS. 21. JAYALAKSHMI, W/O SATHRUGHNAN, AGED 48 YEARS. 22. DEEPA D/O SATHRUGHNAN, AGED 23 YEARS. 23. DEEPA, AGED 22 YEARS. 24. SREEKANTH, AGED 21 YEARS. 25. DILEEP KUMAR, KUNDU PARAMBU, ANJANEYAN, EDAKKADU POST 673 005, KOZHIKODE TALUK AND DISTRICT.

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26. PRADEEP KUMAR, -DO- -DO-

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27. SANTHOSH KUMAR, -DO- -DO-

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28. RAMESH KUMAR, -DO- -DO-

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R1,2& 9 BY ADV. SRI.K.P.BALASUBRAMANYAN ADDL.R25 TO 28 BY ADV. SRI.O.RAMACHANDRAN NAMBIAR

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IT IS RECORDED THAT 1^ST RESPONDENT DIED AND THAT RESPONDENTS 10 TO 15 ARE THE LEGAL HEIRS OF THE DECEASED 1^ST RESPONDENT VIDE ORDER DATED 16.07.2008 ON MEMO DATED 8.7.2008 CF 3300/2008.

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IT IS RECORDED THAT 3RD RESPONDENT EXPIRED AND THE RESPONDENTS 18, 19 AND 20 ARE THE LEGAL REPRESENTATIVES OF THE DECEASED THIRD RESPONDENT VIDE ORDER DATED 6.6.2014 ON MEMO DATED 15.12.2008 CF 6392/2008.

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IT IS RECORDED THAT 2ND RESPONDENT EXPIRED ON 6.11.2007 AND THE RESPONDENTS 16 AND 17 ARE THE LEGAL HEIRS OF THE SECOND RESPONDENT

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AS.NO. 324 OF 2001 (E)

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VIDE ORDER DATED 6.6.14 ON MEMO DATED 4.8.08 CF NO.3906/08.

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IT IS RECORDED THAT 9TH RESPONDENT EXPIRED ON 4.11.04 AND THE LEGAL HEIRS OF RESPONDENTS 1 AND 2 AND THE RESPONDENTS 3 AND 4 (ALREADY IN

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THE PARTY ARRAY) ARE THE LEGAL HEIRS OF DECEASED 9TH RESPONDENT VIDE ORDER DATED 6.6.14 ON MEMO DATED 4.8.08 CF NO.3906/08.

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THE 23RD RESPONDENT IS DELETED FROM THE PARTY ARRAY AS PER ORDER DATED 18.1.2002 ON CMP NO.207/2002.

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THIS APPEAL SUITS HAVING BEEN FINALLY HEARD ON 02-06-2017, THE COURT ON 14.6.2017 DELIVERED THE FOLLOWING:

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VDV

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V.Chitambaresh & Sathish Ninan, JJ. ============================== A.S No.324 of 2001

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========================== Dated this the 14^th day of June, 2017

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JUDGMENT

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Sathish Ninan, J

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1. The unsuccessful plaintiffs in a suit for

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partition are the appellants.

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The parties are Thiyyas of Calicut, who are governed

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by the Mithakshara Law as modified by custom. For an easy understanding of the facts, the geneological tree is given hereunder.

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Chandu

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Perachan Raman Perachakutty

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Perachakutty x Unnichirakutty Kunhi Perachan

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Daughters and sons Gopalan Sreedharan Janaki Narayani

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A.S No.324/2001

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The suit property belonged to Chandu, the predecessor in interest of the parties, on leasehold right. After Chandu, the property devolved on his two sons, Perachan and Raman. Since they take it as family property, their male children get right in the property by birth. Thus, Perachakutty and Kunhi Perachan, the two sons of Perachan, and Perachakutty

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the son of Raman got right over the property. Perachakutty had two sons, who also get a right over the property since they are within the family coparcenary. On the death of Chandu, as per Ext.A1, the lease was got renewed by Perachan from the Jenmi. The property had been subject to mortgage. The said rights were got assigned by Perachakutty and Kunhi Perachan. While so, Raman and his son Perachakutty released their rights over the property to Perachakutty and Kunhi Perachan, the sons of Perachan as per Exhibit A2=B3. Perachakutty, the son of Perachan died in the

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A.S No.324/2001

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year 1932. His wife is Unnichirakutty. In addition to the two sons already referred to, Perachakutty had two daughters, who are the plaintiffs in the suit. Their claim is that the property in question, by virtue of Ext.A2=Ext.B3 document, the separate property of Perachakutty and Kunhi Perachan who hold the property as tenants in common and therefore, on the death of Perachakutty, the plaintiffs also get right over the property which they seek for partition.

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It is not in dispute that the property was originally

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held by Chandu, the predecessor in interest of the parties. On his demise, his sons Perachan and Raman inherit the property as joint tenants with the right of survivorship. Insofar as Perachan and Raman are concerned, it is their inherited family property. Therefore, the sons of Perachan and Raman and further down their male issues also get right over the property by birth. When the rights are so held by the parties, Perachan, the senior most member of the

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A.S No.324/2001

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family obtained renewal of the lease from the Jenmi as per Ext.A1. It cannot be disputed that it is held for the family. The leasehold right is held by Perachan as family property on behalf of the other coparceners also. Therefore, Perachakutty and Kunhi Perachan, the sons of Perachan, and their sons and their male issues had right over the property along with Raman the son of Chandu and Perachakutty, the son of Raman. The rights of Raman and his son Perachakutty was conveyed by them in favour of Perachakutty, son of Perachan and his brother Kunhi Perachan as per Exts.A2=Ext.B3.

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As noticed supra, the mortgage right over the

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property was got assigned of by Perachakutty and Kunhi Perachan. So also under Ext.A2=Ext.B3 the rights of Raman and his son Perachakutty was also got released of by Peracha Kutty and Kunhi Perachan. What is the effect of the said assignments and as to whether it was taken as the seperate property of Perachakutty and Kunhi Perachan, is not seen considered by the court

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A.S No.324/2001

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below. So also, though according to the learned counsel for the respondent Exts B4 to B9 documents would indicate that the parties treated the property as family property, none of the said documents are seen adverted to before the court below.

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The learned counsel for the appellant would vehemently contend that by virtue of the Hindu Women's Right to Property Act, 1937, Unnichirakutty, the wife of Perachakutty would get a share over the property, that with the advent of the Hindu Succession Act, by virtue of Section 14, the women's estate crystallizes into an absolute estate and that since she died only in the year 1963, her share over the entire property would devolve upon the plaintiffs also. Thus, he maintains that the plaintiffs are entitled for a share over the plaint schedule property.

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7.In the circumstances, we feel that the court below be

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directed to consider the matter afresh, but with the evidence already available on record.

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A.S No.324/2001

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In the result, the appeal is allowed. The decree and

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judgment of the court below is set aside and the suit is remanded back to the court below for fresh disposal after hearing the counsel on both sides. It is made clear that fresh evidence need not be reopened.

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The parties will appear before the court below on

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10-07-2017.

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Sd/- V.Chitambaresh, Judge

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Sd/- Sathish Ninan, Judge

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vdv

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//True Copy//

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P.A to Judge

Janaki v. Bharathan

Case brief

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Janaki v. Bharathan

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