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2010 DIGILAW 596 (KER)

Subhadra Warriasyar v. Sumathykutty

2010-08-03

P.BHAVADASAN

body2010
JUDGMENT : S.A. 540 of 1996 arises from O.S.628 of 1980 before the Munsiff's Court, Alappuzha. S.A. 271 of 2002 arises from O.S. 513 of 1991 before the same court. These two suits were separately tried and disposed of. Since common issues arise for consideration in both these appeals, it is only proper that both these appeals be heard together and disposed of by a common judgment. 2. The crux of the issue involved in these suits is the right to perform kazhakam services at Ambalapuzha Devaswom. O.S. 513 of 1991 was for declaration of right, title and possession of the plaintiffs over the plaint schedule property or in the alternative for recovery of possession and both mandatory and prohibitory injunction. O.S. 628 of 1980 was for declaration that the plaintiff's family alone is able to perform kazhakam services in Sreekrishna Swami Temple. 3. Plaintiffs in both the suits are members of Thekkedathu Wariam. Plaintiff in O.S. 628 of 1980 would say that after the karanavan released the karanma rights in favour of the members 11 years ago they have been attending the kazhakam services in the temple. The claim in the other suit is that one of the branches of Thekkedathu Warriam had become extinct and so the property was set apart to them and the right to perform kazhakam services has to vest with the tavazhy of the plaintiffs. 4. In both the cases, the essential dispute is with regard to two groups of Thekkedathu Wariam. Partition took place in 1098 as per Ext.A1 dated 12.1.1098 in O.S.513 of 1991. Thekkedathu Warriam branched off into two groups. Ext.A1 was entered into between 1) Rama Warrier 2) Sankara Warrier, 3) Kunjulekshmi Warrier, 4) Govinda Warrier, 5) Lakshmi Pilla Warrassiar and 6) Kunjikutty Warrassiar. Among the above persons, Rama Warrier, Sankara Warrier and Kunjulakshmi Warrassiar and the minor child of Kunjulakshmi Warrassier namely, Ramakrishna Warrier, who was then two years, constitute one branch and 4 to 6 constitute the other branch. A schedule was set apart to the first branch and B schedule to the second branch. As far as the kazhakam rights are concerned, it was kept in common and the recital reads as follows: Of the properties set apart to the branches one was outstanding on mortgage, which the respective sharers were to redeem. A schedule was set apart to the first branch and B schedule to the second branch. As far as the kazhakam rights are concerned, it was kept in common and the recital reads as follows: Of the properties set apart to the branches one was outstanding on mortgage, which the respective sharers were to redeem. There are other clauses also in Ext.A1 partition deed, which are not relevant for the present purpose. 5. The gist of the allegations in both suits is that the plaintiffs are unwilling to accept Kunjulaksnmi Warrassier as a member of Thekkedath Wariam. So after the death of Rama Warrier and Sankara Warrier since the parties are following the Marumakkathayam law, when one tavazhi becomes extinct, its assets reverted to the other tavazhi. If there are other tavazhies, then, the properties of the extinct branch is taken as tenants in common. The allegation is that Kunjulekshmi Warrasier, the daughter of Rama Warrier, is not a member of Thekkedathu wariam, so she gets no rights over the properties. Therefore, consequent on the death of Sankara Warrier and Rama Warrier, the plaintiffs became the owners of the properties set apart to that branch including the right to perform kazhakam. 6. It is not necessary to refer to the written statement filed by the defendants in the two cases because the defence put up will be seen to be the same. In O.S. 628 of 1980 the written statement filed by the contesting defendants was not exhaustive. But the written statement filed in O.S. 513 of 1991 is comprehensive and therefore that alone is being referred to. The formidable contention that* was put forward was Kochukutty Warrassiar, mother of Kunjulekshmi Warrassiar had undergone kudivaippu ceremony and therefore she became a member of the Thekkedathu wariam. Therefore, Kunjulekshmi Warrassier and her children are members of the tarwad though of a different tavazhy. Therefore, no reversion can taken place consequent on the death of Rama Warrier and Sankara Warrier and the allegation to the contrary are unsustainable in law. Several other contentions like estoppel, waiver, family settlement etc are also taken, which may not be of much relevance. 7. Evidence was adduced in both the cases. In O.S. 628 of 1980 P.W.I was examined and Exts.A1 to A12(e) were marked from the side of the plaintiff. The defendants had D.Ws.1 and 2 examined and Exts. B1 to B14 marked. Several other contentions like estoppel, waiver, family settlement etc are also taken, which may not be of much relevance. 7. Evidence was adduced in both the cases. In O.S. 628 of 1980 P.W.I was examined and Exts.A1 to A12(e) were marked from the side of the plaintiff. The defendants had D.Ws.1 and 2 examined and Exts. B1 to B14 marked. In O.S. 513 of 1991 P.W.I was examined and Exts.A1 to A14(a) were marked from the side of the plaintiffs. The defendants had D.Ws. 1 to 4 examined and Exts. B1 to B10 marked. 8. In both the cases, i.e. Ext.B1 in O.S. 628 of 1980, which is Ext.A1 in O.S. 513 of 1991, was construed by the courts below and they came to the conclusion that Kochukutty Warrassiar, who was the wife of Rama Warrier had undergone kudivaippu ceremony and thus had become a member of Thekkedathu wariam and therefore her daughter Kunjulekshmi Warrassiar and her children became members of the tavazhy. Holding so, both the suits were dismissed. 9. The plaintiffs in both the suits carried the matter in appeal. The appellate court confirmed the judgment and decree of the courts below in both the suits and dismissed the appeals. In each of the memorandum of appeals before this court, the following questions of law have been formulated: "S.A. 540 of 1996 (a) Were the courts below justified in coming to the conclusion that the 4th defendant is a member of the family in the absence of any pleading or proof to the effect that his grandmother was married in the kudivaippu form into the family? (b) What is the law of inheritance governing Warriers in the Travancore area? (c) When the kanma rights enures to a family of Warrier, will not that right devolve on inheritance into any sakha which has female members? (d) Are not the courts bound to take note of the subsequent events in moulding the relief sought for in the plaint? (e) When the 5th defendant, who is said to have been the karnavan died and 6th defendant is impleaded as the legal representative who is the senior most male member in the sakha, was not the court bound to take note of that fact and declare the rights in favour of the sakha of the plaintiff? (e) When the 5th defendant, who is said to have been the karnavan died and 6th defendant is impleaded as the legal representative who is the senior most male member in the sakha, was not the court bound to take note of that fact and declare the rights in favour of the sakha of the plaintiff? (f) Were the courts justified in coming to conclusions on matters which are not pleaded or proved? (g) When there is no proof regarding the kudivaipu form of marriage to the predecessor in interest of the 4th defendant, was the courts justified in coming to the conclusion that the marriage could have been in the kudivaippu form? S.A. 271 of 2002 (i) When a custom at variance with the accepted personal law belonging to the parties is set up, is it not absolutely essential to specifically plead and prove the said custom? (ii) When there is a contention regarding kudivaippu form of marriage, should not material facts and particulars regarding the same be pleaded and proved? (iii) In the pre-existed Pristine Marumakkathayam law, is not the doctrine of "Attaladakkam" applicable when a tavazhy becomes extinct (iv) Are the interpretation put on Ext.A1 and A14by the trial court as well as Appellate court justified and warranted? (v) When the trial court found that the evidence rendered by defence witnesses does not render assistance to the title set up by the defence, can the court come to a conclusion regarding title based on mere surmises and conjectures? 10. The only question that arises for consideration is whether Kochukutty Warrassiar had become a member of Thekkedathu tarwad as a result of the kudivaippu ceremony alleged to have been undergone by her and whether Kunjulekshmi Warrassiar and her children can retain the property. If the case is that there is no kudivaippu ceremony, then the plaintiffs will have to succeed and if it is otherwise, they will have to fail. Both the courts below found the recitals in Ext.A1 in O.S. 513 of 1991 which is same as Ext.B1 in the other suit, are sufficient enough to come to the conclusion that in ail probability Kochukutty Warrassiar must have undergone kudivaippu ceremony. 11. Certain facts are undisputed. They are, the properties involved in the suits and the kazhakam right belonged to Thekkedathu Wariam. 11. Certain facts are undisputed. They are, the properties involved in the suits and the kazhakam right belonged to Thekkedathu Wariam. There was a partition in the year 1098 as evidenced by Ext.A1 and Ext.B1 in the suits. The contention taken by the appellants is that Kunjulekshmi Warrassiar was included in Ext.A1 for equalization of shares only and not because she was a member of Thekkedathu tarwad. 12. It is felt that a short reference of the history of the Thekkedathu wariam may be necessary at this juncture. 13. Thekkedathu wariam branched off into Thekkedathu Warriam and Thekkedath Madappura Warriam. It is an admitted fact that for time immemorial the kazhakam rights vested with Thekkedath Warriam tarwad. As already stated Thekkedathu Warriam divided into two and the said two sakhas were again divided into two. Out of the four sakhas, the members of one sakha abandoned the place and now there exists only three sakhas, i.e. Thekkedath Madappura Warriam, Thekkedath Kishakke Warriam and Thekkedath Padinjare Warriam. It is conceded that all the members of these three branches had right to' perform kazhkam. The senior most member of the family is to perform kazhakam. It is also possible for him to depute somebody in his place. 14. One of the contentions taken in the written statements is that since all the members of the three branches are not made parties, the suit is bad for necessary parties, Counsel for the appellants pointed out that inclusion of Kunjulekshmi Warrassiar in Ext.B1 in O.S. 628 of 1980 does not give rise to any presumption that Kochukutty Warrassiar had undergone the kudivaippu ceremony. According to learned counsel, it is an undisputed fact that Warrier community follows Marumakkathayam law and kudivaippu ceremony is an exception. Being an exception, the burden is on the defendants to prove the same. It is contended that Rama Warrier, the father of Kunjulekshmi Warrassiar had bought the property both in the name of Rama Warrier and Kunjulekshmy Warrassiar, so when a partition took place in the tarwad since that property was also brought in the pool of properties, her name was also added for equalization of shares. That does not lead to the inference that kudivaippu ceremony had been undergone by Kochukutty Warrassiar, and she had become a member of Thekkedathu Wariam. There is absolutely no evidence whatsoever of the so-called kudivaippu ceremony. That does not lead to the inference that kudivaippu ceremony had been undergone by Kochukutty Warrassiar, and she had become a member of Thekkedathu Wariam. There is absolutely no evidence whatsoever of the so-called kudivaippu ceremony. Being a departure from the normal course of events, the burden is on the defendants to establish that the particular person had undergone the kudivaippu ceremony. There is no proof of such kudivaippu ceremony In the present case and the courts below were unjustified in accepting the said case. 15. Learned counsel appearing for the respondents on the other hand pointed out that there is no basis for the above contention of the appellants. A reading of the evidence will clearly show that it is not for the purpose of equalization of shares that Kunjulekshmi Warrassiar was treated as a member of the tarwad. By Ext.B1 in O.S.628 of 1980, the branch consisting of herself, Rama Warriar, Sankara Warrier and Kunjulekshmi Warrassier and her son formed one tavazhy. It is true that no other evidence except Ext.B1 was produced in support of the kudivaippu claimed by the defendants. But it was pointed that it had taken place about five decades ago and it is virtually impossible to have any direct evidence regarding the same. So the evidence adduced in the case will have to be properly analyzed and it has to be ascertained whether the claim made is true. 16. It is an admitted fact that normally Warriar community follows Marumakkathayam law of inheritance. But it is well recognized that they also practice kudivaippu. It is normally an exception. Sri. Sreedhara Warrier in his Book on Marumakkathayam Law refers to this aspect as follows: "The Sarvaswadanam marriage among Variars is a gift of the bride whereby she acquires rights in her husband's family." This is known as kudivaippu. But it is well recognized that they also practice kudivaippu. It is normally an exception. Sri. Sreedhara Warrier in his Book on Marumakkathayam Law refers to this aspect as follows: "The Sarvaswadanam marriage among Variars is a gift of the bride whereby she acquires rights in her husband's family." This is known as kudivaippu. The issue was considered in the decision reported in Chakrapani Warrier Rama Warrier v. Govinda Warrieru Chakrapani Varrieru ( 1955 KLT 566 ), wherein it was held as follows: "The marriage in the kudiveppu form which under the custom applicable to the parties, renders children members of their father's tarwad." In the decision reported in Parukutty Amma v. Chellamma (1963 KLT SN 5 (C.No.8) it was held as follows: "When there is a marriage in the Kudivappu form in a warrier family the children of that marriage become members of he tarwad and they or any one of them can claim a sakha partition." In the decision reported in Balakrishna Warrier v. Sreedhara Warrier ( 1964 KLT 911 ) it was held as follows: "The community of Variyars normally follows the Marumakkavazhi system of succession, except when a member marries in the 'Kudivaippuu' form, taking the wife to the husband's house to reside there permanently, in which case he will be entitled to claim partition, and succession to him will be under the Makkavazhi system. According to the custom of the community neither the length of interval after the marriage nor pregnancy would affect the validity of a Kudivaippu. Nor does the fact that the 'Kudivaippu' was not made in the ancestral tarwad house appear material. The essence of a 'Kudivaippu' being the habitation of the wife in the husband's house, the Kudivaippu performed in the house put up by the husband on a tarwad property has to be found proper and lawful. The fat that the wife had obtained her share from her natural tarwad before she was taken in her husband's by kudivaippu cannot be of any evil consequence." In the decision reported in Sankara Warrier v. Sreedevi Warrasyar ( 1973 KLT 963 ) it was held as follows: "There is no particular stage for performing Kudivaippu. There are instances of Kudivaippu having been resorted to several years after the marriage. Kudivaippu may be conducted at any time after the marriage. There are instances of Kudivaippu having been resorted to several years after the marriage. Kudivaippu may be conducted at any time after the marriage. The contention that in this particular instance Kudivaippu was resorted to with the evil purpose of reducing the shares due to the plaintiff cannot hold water. Kutivaikkal is a recognized ceremony in the community from early times. The Kudivaikkal ceremony stands on a stable foundation so far as the community is concerned. The legal consequence of a Kudivaippu is that a member of a Variyar Tarwad, married in the Kudivaippu form, is entitled to claim partition per stirpes. For the validity of the Kudivaippu, the concurrence of the other members is not necessary and even if necessary, there was such concurrence in the present case." 17. A reading of the above decisions shows that (there is a practice of kudivaippu in the Warrier community. Normally under Marumakkathayam Law when a marriage takes place the bride continues her stay at her residence of birth and does not go to the house of her husband. When a kudivaippu ceremony is conducted, it is the transplantation of the bride from the residence of her birth to the residence of her husband. From the decisions referred to above, it could be seen that there is no particular ceremony as such contemplated and also that it need not be at a particular point of time. It is a process by which the bride becomes a member of her husband's family. Once that is done, she lose her rights in the original tarwad and becomes a member entitled to a share in the family of her husband. 18. There can be no dispute regarding the fact that the burden is on the defendants to establish that there has been Kudivaippu ceremony conducted so as to make Kunjulekshmi Warrassiar a member of Thekkedathu tarwad. However, it has to be at once noticed that the kudivaippu ceremony in the case on hand occurs several years ago and it is impossible to get direct evidence regarding the same. Two aspects may be noticed here. 1) it is an in-house ceremony without much publicity and 2) in the case on hand it may not be possible to get persons, who have direct knowledge about the same. Two aspects may be noticed here. 1) it is an in-house ceremony without much publicity and 2) in the case on hand it may not be possible to get persons, who have direct knowledge about the same. A reference of the evidence of P.W.I in O.S. 513 of 1991 will show that according to her she came to know about the partition deed in the year 1980. However, she accepts that the tarwad branched off as per Ext.A1. She would assert that Kunjulekshmi Warrassiar was not a member of the tarwad and she was included in the partition deed only because the property which was bought in her name as well as her father's name was taken in for the purpose of partition along with the other properties of the tarwad. To be precise, according to her, she was included in Ext.A1 for equalization of shares. She says that Kochukutty Warrassiar died prior to the death of Rama Warrier. 19. It is not in dispute that Sankara Warrier died as bachelor. P.W.1 asserts that since Kunjulekshmi Warrassiar was not a member of the tarwad, the property set apart to her under Ext.A1 will devolve on the tavazhy of which she is a member. In other words, she claims right of succession as per the principle of Attaladakkam. Surprisingly, at the time of evidence, P.W.1 comes forward with a story that the defendants in O.S. 513 of 1991 are tenants under them and they have been allowed to occupy the house for a monthly rent of Rs.50/-. This claim has no foundation in pleadings. 20. One may now refer to Ext.A1. The recital shows that as a result of bringing in the property, which belonged to Rama Warrier and Kunjuleksmi Warrassiar a sum of Rs.107/- was paid to them. It is interesting to notice that that property was not set apart to the share of tavazhy of which Rama Warnar, Sankara Warrier and Kunjulekshmi Warrassiar were members. There is nothing in Ext.A1 to indicate that Kunjulekshmi Warrassiar was included in the deed for the purpose of equalization of shares or for getting her consent only. 21. It is significant to notice that there is no case for the plaintiffs that the group consisting of Rama Warrier, Sankara Warrier and Kunjulekshmi Warrassiar is an artificial tavazhy created for the purpose and therefore non-est. 21. It is significant to notice that there is no case for the plaintiffs that the group consisting of Rama Warrier, Sankara Warrier and Kunjulekshmi Warrassiar is an artificial tavazhy created for the purpose and therefore non-est. It is true that Kunjulekshmi Warrassiar is the only female member in that group. 22. It is here that one has to notice the claim of kudivaippu. Ext.A1 is of the year 1098, i.e. several decades ago. What is significant is that Kunjulekshmi Warrassiar is described as the daughter of Kochukutty Warrassiar and not as daughter of Rama Warrier. If as a matter of fact as claimed by the plaintiffs, she was included in the deed for the purpose of consent and for equalization of shares, then she would have been described as the daughter of Rama Warriar. 23. It Is the case of the defendants in both the suits that Kochukutty Warrrassiar had undergone the ceremony of kudivaippu. Being an in-house ceremony, there would not have been much publicity also. Most probably the members of the family would have been aware of the same. 24. The first defendant in O.5. 513 of 1991, who is the daughter of Kuniulekshmi Warrassiar speaks about what she knows. True, no witness could be examined to establish kudivaippu. Because none of the members, who would have been aware are alive as on the date of the examination of the witnesses The first of the suit was in 1980. In that suit, all the dependents of Kunjulekshmi Warrassiar were not made parties and one of them alone was arrayed. But however, in the written statement in that suit the contention of kudivaippu was not specifically taken. But that does not preclude the defendants in O.S. 513 of 1991 from taking up such a contention. 25. Learned counsel appearing for the appellants relied on the might and ought theory to contend for the position that in O.S. 513 of 1991 the defendants are precluded from taking the plea with reference to Kudivaippu since that was not raised in the earlier suit. 26. It has to be said that there is no basis for the above contention. Learned counsel appearing for the appellants relied on the might and ought theory to contend for the position that in O.S. 513 of 1991 the defendants are precluded from taking the plea with reference to Kudivaippu since that was not raised in the earlier suit. 26. It has to be said that there is no basis for the above contention. The scope of O.S. 628 of 1980 is very narrow and the fifth defendant in the said suit cannot be taken to represent all the members of the tavazhy of which Kunjulekshmi Warrassiar was a member, nor he could be taken as a representative of the defendants in O.S. 513 of 1991. 27. On an anxious consideration of the materials, it is felt that the only reason for inclusion of Kunjulekshmi Warrassiar described as the daughter of Kochukutty Warrassiar can be only due to the facts as contended by the defendants in O.S. 513 of 1991 that Kochykutty Warrassiar had undergone the kudivaippu ceremony. 28. A perusal of the records in O.S. 628 of 1980 would show that there was a suit between the two sakhas regarding the kazhakam rights and that was compromised as per Ext.B2. The decree in the said suit was produced in O.S. 628 of 1980. A reading of the said decree shows that the rights of the defendants' sakha to perform kazhakam services was recognized. Of course, it was to be performed by the senior most member of the family, True, the plaintiffs are not parties to the said suit. But it indicates that the group represented by Kunjulekshmi Warrassiar as evidenced by Ext.A1 were treated as members of the original tarwad. 29. One cannot omit to note that at the time when Ext.A1 in O.S. 513 of 1991 was executed, Marumakkathayam law was in force and was in full vigour. The parties must be aware of their persona! law. They must therefore be credited with the knowledge of the consequences of including Kunjulekshmi Warrassiar in Ext.A1 document. 30. Further for several decades there was no grievance regarding the terms of Ext.A1. The parties had acted as per Ext.A1 2nd followed its terms. At this distance of time, after several decades, when things have settled down and matters have been arranged, it will be doing gross injustice to upset the whole arrangement based on a suspicion. 31. 30. Further for several decades there was no grievance regarding the terms of Ext.A1. The parties had acted as per Ext.A1 2nd followed its terms. At this distance of time, after several decades, when things have settled down and matters have been arranged, it will be doing gross injustice to upset the whole arrangement based on a suspicion. 31. Four different courts have held in favour of the defendants in different suits. There is no reason to take a different view. No serious question of law, much less substantial question of law arises for consideration in these appeals. The findings are findings on facts. It is not shown that the findings of the courts below are either perverse or unwarranted going by the evidence on record. All the courts have considered the matter in considerable detail and had come to an identical conclusion. In the result, these appeals are without merits and they are accordingly dismissed. There will be no order as to costs.