Dismissed

Chamayath Cheriyannal Hajerommabi (Died) v. Chamayath Cheriyannal Rahmabi

Kerala HC7 Feb 2022AS/992/1998

Case brief

AI extract

What is this about?

In this appeal challenging a preliminary decree for partition, the High Court dismissed the appeal and upheld the trial court's finding. The court held that Ext.A1 represented a valid partition by stirpes among two thavazhis, requiring subsequent division only within those designated shares.

What did the court decide?

Appeal and cross objection dismissed; preliminary decree maintaining partition and granting plaintiffs 3/12th share affirmed.

Chamayath Cheriyannal Hajerommabi (Died) Vs Chamayath Cheriyannal… — Partition | Kerala HC (2022)

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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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MONDAY, THE 7^th DAY OF FEBRUARY 2022 / 18TH MAGHA, 1943

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AS NO. 992 OF 1998

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AGAINST THE JUDGMENT AND DECREE DATED 21.01.1998 IN OS No. 9/1997 OF

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DISTRICT COURT, LAKSHADWEEP

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APPELLANTS (DEFENDANTS 1 TO 11):

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1 CHAMAYATH CHERIYANNAL HAJEROMMABI (DIED) AGED 44 YEARS, D/o UMMATHABIYYAPURA SAYEDKOYA, ANDROTH ISLAND

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(IT IS RECORDED THAT THE FIRST APPELLANT IS NO MORE AND HER LEGAL HEIRS ARE ALREADY IN THE ARRAY AS APPELLENTS 2 TO 11 VIDE ORDER DATED 22.07.2021 IN MEMO DATED 09/07/2021)

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2 CHAMAYATH CHERIYANNAL PATHUMMABI, (DIED) AGED 26 YEARS, ANDROTH ISLAND

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3 CHAMAYATH CHERIYANNAL MOHAMMED ABDUSALAM, AGED 27 YEARS, ANDROTH ISLAND

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4 CHAMAYATH CHERIYANNAL RAHIL, AGED 24 YEARS, ANDROTH ISLAND

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5 CHAMAYATH CHERIYANNAL KUNHIBI, AGED 20 YEARS ANDROTH ISLAND

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6 CHAMAYATH CHERIYANNAL HUSSAIN, AGED 19 YEARS, ANDROTH ISLAND

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7 CHAMAYATH CHERIYANNAL FARIDA, ANDROTH ISLAND

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8 CHAMAYATH CHERIYANNAL FATHAHUDHEEN, ANDROTH ISLAND

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9 CHAMAYATH CHERIYANNAL MOHAMMED YASIN (MINOR), AGED 9 YEARS, ANDROTH ISLAND

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AS No.992 of 1998 & Cross objection

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10 CHAMAYATH CHERIYANNAL SEENATH MAHAL, (MINOR), AGED 6 YEARS, ANDROTH ISLAND

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11 CHAMAYATH CHERIYANNAL FERZANA, (MINOR), AGED 3 YEARS, ANDROTH ISLAND

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(MINOR APPELLANTS 9 TO 11 ARE REPRESENTED BY THEIR MOTHER AND GUARDIAN THE 1ST APPELLANT)

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ADDL.A12 IRFANA BEEGUM, AGED 29 YEARS, D/o PATHMMABI, CHAMAYATH CHERIYANNAL HOUSE, ANDROTH ISLAND, UNION TERRITORY OF LAKSHADWEEP- 682551.

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ADDL.A13 SAYEDIYA BEEGUM, AGED 27 YEARS, D/o PATHMMABI, CHAMAYATH CHERIYANNAL HOUSE, ANDROTH ISLAND, UNION TERRITORY OF LAKSHADWEEP- 682551. (ADDITIONAL APPELLANTS 12 AND 13 ARE IMPLEADED AS LEGAL HEIRS OF DECEASED SECOND APPELLANT VIDE ORDER DATED 29.10.2021 IN IA 2/2021)

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BY ADVS. SRI.A.P.CHANDRASEKHARAN (SR.)

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SRI. KODOTH PUSHPARAJAN

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SRI. M.KRISHNAKUMAR SMT. PRABHA R.MENON ADDL.A12 & A13 BY ADVS. SRI. T.SETHUMADHAVAN (SR.)

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SMT. PREETHI. P.V. SRI. M.V.BALAGOPAL

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RESPONDENTS (PLAINTIFFS 1 TO 3):

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1 CHAMAYATH CHERIYANNAL RAHMABI, AGED 49 YEARS D/o UMMATHBIYYAPURA SAYEDKOYA, ANDROTH ISLAND

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2 CHAMAYATH CHERIYANNAL MOHAMMED SHAFI, AGED 43 YEARS, S/o RAHMABI, ANDROTH ISLAND

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AS No.992 of 1998 & Cross objection

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3 CHAMAYATH CHERIYANNAL MOHAMMED KHASIM, AGED 28 YEARS, S/o RAHMABI, ANDROTH ISLAND

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R2 & R3 BY ADVS SRI.K.B.SIVARAMAKRISHNAN

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SRI. K.SANEESH KUMAR

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THIS APPEAL SUITS HAVING COME UP FOR HEARING ON 07.02.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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AS No.992 of 1998 & Cross objection

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JUDGMENT

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The defendants came up in appeal against the

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preliminary decree for partition. The plaintiffs also came

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up in cross objection aggrieved by the division of

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property. A preliminary decree was passed in favour of the plaintiffs by giving 3/12^th share over the property.

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The contention of the defendants is that Ext.A1

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partition relied on by the plaintiffs is in fact not an

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absolute partition, but only a document of maintenance and convenient enjoyment of the trees situated in the property.

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There is no division of property as such. Hence, it is

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submitted that it cannot be treated as an absolute

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partition, but only a family arrangement for beneficial enjoyment.

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Admittedly Ext.A1 was executed and signed by two

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thavazhies represented by the karanavars of two thavazhies,

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namely the thavazhi of Attakoya and thavazhi of Sayedkoya,

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by which the family property was divided into two equal

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halves, one is to the thavazhi of Attakoya and other to the

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AS No.992 of 1998 & Cross objection 5

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thavazhi of Sayedkoya. While so, certain alienations were

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made by some of the members of thavazhi of Attakoya with

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respect to a part of property allotted to their thavazhi.

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It was challenged by the members of other thazazhi. The trial court repelled the contention and dismissed the suit. But this court, in appeal, found against and reversed the decree of trial court by granting a declaration declaring

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the alienations as null and void. It is based on the finding that Ext.A1 is not a partition, but only a document of beneficial enjoyment and maintenance. It was fought up to the Apex Court and ultimately the Apex Court, by its judgment in Civil Appeal No.4925 of 2006, set aside the decree of this court and restored the decree of the trial court. The relevant portion of the judgment is extracted below for reference:

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“2. Upon perusal of the impugned judgment as well as the judgment delivered by the Trial Court, we are of the view that the findings arrived at by the Trial Court with regard to the partition among the members of the Tarwad were correct and in our opinion the High Court ought not to have interfered with the said findings.

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AS No.992 of 1998 & Cross objection

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3. Once there was a partition among the members of the Tarwad, and when there are two different thavazhy, namely Attakoya thavazhy and Syed Koya thavazhy, and when some share of one thavazhy had been gifted, the same could not have been objected to by a member of another thavazhy.

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4. For the aforesaid reason, we agree with the findings arrived at by the Trial Court. We set aside the impugned judgment delivered by the High Court and restore the order and decree passed by the Trial Court.”

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The question whether Ext.A1 would constitute a

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partition has already been adjudicated and confirmed by the Apex Court and as such the said question is not available for consideration at this stage.

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What is divided under Ext.A1 partition is by

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allotting one half of the properties to two thavazhies, the

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thavazhi of Attakoya and thavazhi of Sayedkoya and

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thereafter there cannot be any mixing up between the properties. The properties allotted to the respective thavazhies would continue as the thavazhi property, till it is changed by the act of respective thavazhies. From Ext.A1, it is clear that it is based on stirpes a division

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AS No.992 of 1998 & Cross objection 7

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was made to two thavazhies, ie. the thavazhi of Attakoya

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and thavazhi of Sayedkoya. Thereafter the property would continue as the property of respective thavazhies and as such only a per capita division can be made over the property subsequent to Ext.A1 partition. As such, the contention raised cannot be sustained.

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What is granted by way of share to plaintiffs is

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three out of twelve shares, since they constitute only three members out of the twelve members in the family at the time when the suit was instituted.

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The equity shall be worked out at the time of

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passing of final decree and the properties in possession of

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the respective parties shall be allotted to their share in so far as it is possible.

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The appeal and the cross objection are dismissed with the abovesaid observations. No costs.

Sd/-

P.SOMARAJAN

JUDGE

DMR/-

Chamayath Cheriyannal Hajerommabi (Died) v. Chamayath Cheriyannal Rahmabi

Case brief

What is this about?

What did the court decide?

Chamayath Cheriyannal Hajerommabi (Died) v. Chamayath Cheriyannal Rahmabi

Case brief

What is this about?

What did the court decide?

What the court decided

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