Partly allowed

Kochangeli Antharjanam v. Neelakandaru

Kerala HC14 Mar 2019SA/305/2000

Case brief

AI extract

What is this about?

In a partition suit involving a Nambudiri joint family property, the High Court held that the Hindu Succession Act applies over Marumakkathayam law upon the death of the father. The court set aside lower court decrees and granted a preliminary decree awarding the plaintiff a one-fourteenth share by metes and bounds.

What did the court decide?

Allowed in part. Preliminary decree set aside and modified to grant the plaintiff a one-fourteenth share by metes and bounds.

Kochangeli Antharjanam Vs Neelakandaru — Partition | Kerala HC (2019)

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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 P.SOMARAJAN

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THURSDAY ,THE 14TH DAY OF MARCH 2019 / 23RD PHALGUNA, 1940

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SA.No. 305 of 2000

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AGAINST THE JUDGMENT AND DECREE DATED 27-09-1999 IN AS 33/1996 of SUB COURT, THIRUVALLA

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AGAINST THE JUDGMENT AND DECREE DATED 26-03-1996 IN OS 514/1990 of MUNSIFF COURT, THIRUVALLA

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APPELLANT/APPELLANT/PLAINTIFF:

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*1 KOCHANGELI ANTHARJANAM, W/O.VASUDEVARU, VLAVELMADATHIL, THEKKUMCHERI MURI, KOTTANGAL VILLAGE, MALLAPPALLY TALUK. (DIED)

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LR'S IMPLEADED

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2 NARAYANARU, S/O.LATE VASUDEVARU,VLAVELMADATHIL, THEKKUMCHERI MURI, KOTTANGAL VILLAGE, MALLAPPALLY TALUK.

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(ADDL.APPELLANT IS IMPLEADED AS LEGAL REPRESENTATIVE OF DECEASED SOLE APPELLANT AS PER ORDER DATED 24.01.2002 ON CMP.9/2002).

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BY ADVS.

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SRI.P.G.PARAMESWARA PANICKER (SR.) SRI.P.GOPAL

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RESPONDENTS/RESPONDENTS/DEFENDANTS:

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**1 NEELAKANDARU, S/O.VAMANARU, PALLAKKARA ILLOM, VAIPURAKODUMUDISSERRY MURI, KOTTANGAL VILLAGE, MALLAPPALLY TALUK. (DIED)

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LR'S RECORDED

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(RESPONDENTS 2,4 AND 5 ARE RECORDED AS THE LEGAL REPRESENTATIVES OF DECEASED 1ST RESPONDENT AS PER ORDER DATED 17.07.2018 IN IA.2378/2017)

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2 UMADEVI,

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SA.No. 305 of 2000 2

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W/O. .DO. .DO.

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***3 VAMANARU POTTY, S/O. .DO. .DO. (DIED)

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LR'S IMPLEADED

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4 PARAMESWARAN POTTY, BROTHER OF .DO. .DO.

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5 UMADEVI, W/O.RAMESHAN POTTY, KARIYATTUMADATHIL, MANNADY MURI, KADAMPANADU VILLAGE, FROM PALLAKKUR.

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***** ADDL. RESPONDENTS 6 UMADEVI, W/O.LATE VAMANARU POTTY, PALLAKKARA ILLOM, VAIPURAKODUMUDISSERRY MURI, KOTTANGAL VILLAGE, MALLAPPALLY TALUK-686 547.**

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7 KANNAN,

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S/O.LATE VAMANARU POTTY, PALLAKKARA ILLOM, VAIPURAKODUMUDISSERRY MURI, KOTTANGAL VILLAGE, MALLAPPALLY TALUK-686 547.

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8 ASWATHI,

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D/O.LATE VAMANARU POTTY, PALLAKKARA ILLOM, VAIPURAKODUMUDISSERRY MURI, KOTTANGAL VILLAGE, MALLAPPALLY TALUK-686 547.

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9 KINGINI,

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D/O.LATE VAMANARU POTTY, PALLAKKARA ILLOM, VAIPURAKODUMUDISSERRY MURI, KOTTANGAL VILLAGE, MALLAPPALLY TALUK-686 547.

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(LEGAL REPRESENTATIVES OF DECEASED 3RD RESPONDENT ARE IMPLEADED AS ADDL.RESPONDENTS R6 TO R9 AS PER ORDER DATED 17.07.2018 IN IA.2376/2017).

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R2 TO R5 BY ADV. SRI.THOMAS NINAN

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THIS SECOND APPEAL HAVING BEEN FINALLY HEARD ON 14.03.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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SA.No. 305 of 2000 3

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JUDGMENT

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The plaintiff who was defeated in both the Court below the Trial Court (Munsiff's Court, Thiruvalla) in O.S.No.514/1990 and the First Appellate Court (Sub Court, Thiruvalla) in A.S.NO.33/1996, in a suit for partition claiming 2/7^th share over item No.1 property in the plaint, came up with this appeal.

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The questions came up for consideration

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are:

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What is the application of Section 2(b) of the Kerala Namboodiri Act, 1958 with respect to a female who was given in marriage and whether she can claim any right, title or interest over the property belonged to the illam in which she was a member before her marriage ?

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What is the law which governs the intestate

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succession of a male who is belonged to an illam governed by the Kerala Namboodiri Act, 1958 by virtue of Section 4 and 7 of the Hindu Succession

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SA.No. 305 of 2000 4

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Act, 1956 ?

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The item No.1 along with some other

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property originally belonged to the Pallakara Illom. The Karanavan was one Parameswararu. The property was subjected to a partition on 29/06/1973 under Ext.A1, by which the item No.1 jointly allotted to the share of one Parameswararu and Devaki Antharjanam, the husband and wife along with Neelakandararu and his wife Umadevi. Neelakandaru

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is the son of one of the brother of Parameswararu by name Vamanararu. The property was also given to the three children of Neelakandaru and Umadevi by name Vamanaru, Parameswararu and Umadevi. Thus

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item No.1 property were given to 7 persons (i) Parameswararu (ii) his wife Devaki Antharjanam

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(iii) Neelakandaru, the son of one of his brother

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(iv) Umadevi, the wife of Neelakandararu and their children (v) Vamanaru (vi) Parameswararu and (vii)

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Umadevi. The plaintiff herein Kochangeli

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Antharjanam is the daughter of Parameswararu and Devaki Antharjanam. There is no dispute with

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respect to the status of plaintiff as the only

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SA.No. 305 of 2000 5

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daughter of Parameswararu and Devaki Antharjanam. Parameswararu died on 24/6/1976. Devaki Antharjanam died subsequently on 25/4/1978. The plaintiff claims that on the death of her father and mother she became the sole legal heir of the estate left out by them, the plaint schedule item No.1 property.

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It was defended by the defendants

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Neelankandru and Umadevi and their children

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Vamanararu, Parameswararu and Umadevi, contenting that she was given in marriage during the life time of Parameswararu and Devaki Antharjanam and as such

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she would not be a member of the Illom which constitute her father and mother and took reliance on Section 2(b) of the Kerala Namboodiri Act 1958.

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Inter alia it was also contended that in the year 1977, Neelakandaru and Umadevi, the defendant No.1 and 2 along with Devaki Antharjanam had executed a Exchange Deed, by which her right over the property was released in favour of defendant No.3 to 5. In

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the suit a prayer for setting aside the said document was also raised but there is concurrent

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SA.No. 305 of 2000 6

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finding by both the Court below that the plaintiff failed to establish sufficient ground for setting aside the said document. None of the witness to Ext.B1 document who witnessed the alleged execution were examined in support of the case advanced by the plaintiff. The two witnesses who introduced the executant before the Sub Registrar also not examined and no satisfactory evidence adduced except the interested testimony and as such there is no reason for interference to the concurrent finding of both the Trial Court and the First Appellate Court, that the plaintiff is not entitled to set aside the Ext.B1 document and the exchange of property. Ext.B1 document is executed with respect to the entire property scheduled in the plaint as item No.1 held by the executant Neelakandaru, Umadevi, and Devaki Antharjanam. But, the said sale deed would not operate against the plaintiff herein in so far as the right,if any, obtained by her over the property from her father as she is not a party to the document, unless the right lost by adverse possession. The claim of

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SA.No. 305 of 2000 7

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adverse possession raised by the defendants also repelled by both the Trial Court and the First Appellate Court.

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5. In order to resolve the issue whether she

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is entitled to any right over the property being the legal heir of her father Parameswararu,

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Section 2(b) of the Kerala Namboodiri Act with its explanation extracted below for reference:

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“Illom” means all the members of a Nambudiri joint family with community of property and includes a 'mana'.

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Explanation:- A female shall on her marriage cease to be a member of the illom in which she was born if she marries in her community and becomes a member of the illom of her husband;”

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6. Parameswararu died on 24/06/1976 after the

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commencement of Hindu Succession Act 1956. Section

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4 deals with the overriding effect of the Act. A

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conjoint reading of Section 4 along with Section 7

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would show that when a Hindu to whom the

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Marumakkathayam or Namboodiri law would have

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applied, if this Act had not been passed after the

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commencement of this Act, the interest whatever it

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he has held at that time either over the Tharavad

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property or Thavazhi of illom shall devolve upon

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SA.No. 305 of 2000 8

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his legal heirs in accordance with the Act and not according to the Marumakkathayam or Namboodiri law. Section 7 intake both the male and female. Since the plaintiff's mother Devaki Antharjanam had parted with her right, title and interest over the property, there is no necessity to go into the question of law governing the property belonged to Devaki Antharjanam is concerned. But, in so far as

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the property left out by Parameswararu who was holding 1/7 th share over the property as per the partition entered into and since he had died after the commencement of the Act by virtue of Section 4

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and Section 7 of the Hindu Succession Act, the property would devolve upon the legal heirs in accordance with the provisions under the Hindu Succession Act. In otherwords, his property will go to his widow and daughter equally by operation of Section 8 of the Act, being the heirs in clause

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1 and as such the plaintiff and her brother are entitled to 1/14 th share each. Her mother has

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parted with her every right over the property under Ext.B1 and the plaintiff is entitled to 1/14 th share

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SA.No. 305 of 2000 9

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over the property.

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7. Yet another question was also brought to the

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notice of this court by virtue of Ext.B1 document, the entire right, title and interest was seen transferred in favour of defendants 3 to 5 and based on which an adverse possession was also claimed. As discussed earlier the question of adverse possession found against the defendants by

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both the Trial Court and the First Appellate Court.

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Even otherwise, the adverse possession will not stand as there is an admission made by some of the

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defendants regarding contribution of yield and profit from the property to the plaintiff. Further, it is an arrangement in between the

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executant and the defendants 3 to 5. It was not

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brought to the notice of the plaintiff. There

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cannot be an adverse possession on a secret animus. The animus to hold the property should be open and capable of giving notice to all affected interested persons. Hence, there cannot be an adverse possession by virtue of execution of Ext.B1 document. Necessarily the plaintiff is entitled to

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SA.No. 305 of 2000 10

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a decree of partition and separation of her 1/14 th

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share by metes and bounds. The legal position was not properly considered or applied either by the Trial Court or by the First Appellate Court, hence deserves interference by this court. The decree and judgment of both the Trial Court and First Appellate Court are set aside to the extent of granting a preliminary decree in favour of the plaintiff for separate possession of 1/14 th share by metes and bounds over item No.1 of plaint schedule property. The suit will stand adjourned sine dine . The parties are at liberty to apply for passing a final decree within 90 days from today.

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The appeal is allowed accordingly in part. No order as to cost.

Sd/-

P.SOMARAJAN

JUDGE

msp

//TRUE COPY//

P.A. TO JUDGE

Kochangeli Antharjanam v. Neelakandaru

Case brief

What is this about?

What did the court decide?

Kochangeli Antharjanam v. Neelakandaru

Case brief

What is this about?

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Issues for consideration

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