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2017 DIGILAW 486 (KER)

SAJINI v. P. K. RAJAGOPALAN

2017-03-08

B.KEMAL PASHA

body2017
JUDGMENT : Challenging the judgment and decree passed by the Second Additional District Court, Kozhikode in A.S. No.45/2009, appellants 3 and 4 in the said appeal have come up with the Second Appeal. A.S. No.45/2009 was preferred against the judgment and decree in O.S. No.92/2005 of the II Additional Subordinate Judge's Court, Kozhikode. Appellants were additional defendants 6 and 7 in the said suit. The suit is one for partition filed by the 3rd respondent herein, who is presently no more, as plaintiff. The genealogy is plaint A schedule, which shows that late Madhavi Amma had three children namely, Nanikkutty Amma, Ramunni Menon and Kunhi Sankara Menon. Nanikkutty Amma died in the year 1994, leaving the plaintiff as her sole legal heir. Ramunni Menon died on 28.03.2001 leaving the 1st defendant, 2nd defendant, 3rd defendant, 4th defendant and 5th defendant as his legal heirs. Kunhi Sankara Menon died unmarried and issue less. According to the plaintiff, plaint B schedule property is one of the items of properties devolved on the thavazhi by Madhavi Amma, in which the mother of the plaintiff Nanikkutty Amma was also one of the members, through Ext.A19 partition deed of the year 1916. The plaintiff claims that Kunhi Sankara Menon had executed a will bequeathing his share over the properties devolved on him to the plaintiff, thereby the plaintiff is entitled to 2/3 shares over the plaint B schedule property. 2. The contesting defendants were the additional defendants 6 and 7 only, who are the present appellants. They propounded Ext.B2 will executed in their favour by Ramunni Menon on 25.11.1989. They claimed that as per Ext.B2 Will, Ramunni Menon had bequeathed the properties obtained by him through Ext.B1 partition deed of the year 1913 and, therefore, the plaint B schedule property can only be treated as properties of Ramunni Menon over which the bequest was created in favour of the appellants. 3. On the side of the plaintiff, PW1 was examined and Exts.A1 to A19 were marked. On the side of the appellants, DW1 was examined and Exts.B1 to B5 were marked. The trial court decreed the suit by passing a preliminary decree declaring the 2/3 shares of the plaintiff over plaint B and C schedule properties. Plaint C schedule properties are movables. Aggrieved by the said judgment and decree, the present appellants, along with defendants 2 and 3 as appellants, preferred A.S. No.45/2009. The trial court decreed the suit by passing a preliminary decree declaring the 2/3 shares of the plaintiff over plaint B and C schedule properties. Plaint C schedule properties are movables. Aggrieved by the said judgment and decree, the present appellants, along with defendants 2 and 3 as appellants, preferred A.S. No.45/2009. The lower appellate court found that no Will was propounded by the plaintiff even though he claimed the share of Kunhi Sankara Menon also on the basis of a Will allegedly executed by Kunhi Sankara Menon. The lower appellate court modified the preliminary judgment and decree passed by the trial court and declared the share to which the plaintiff is entitled as ½ over the plaint B schedule property. The partition sought for, over plaint C schedule items has been denied. 4. This Court has admitted the Second Appeal on the following substantial questions of law raised by the appellants in the appeal memorandum: "(a) Had not the courts below erred in holding that when property which has been finally and conclusively partitioned among the co-owners cannot again be partitioned, so that by a private partition a portion of the joint properties by some sharers overlooking the entire beneficiaries is barred. (b) Had not the courts below erred in not holding that when the right of the minor is settled through the Kartha of the family, such rights cannot be later extinguished without procedure established by law which resulted in making Ext.A1 non-est in the eye of law. (c) Had not the courts below erred in not holding that the property which was sought for partition has to be clearly identified and the parties should have right to get their respective shares. (d) Had not the courts below erred in coming to the conclusion that on partition, the co-owner deprives his right to possession of the property allotted to the other co-owner. If that be so, after executing Ext.B1, the other co-owners lost their possession over the joint property and hence cannot later create Ext.A1. (e) Had not the courts below erred in coming to the conclusion that the plaintiff has got half share in the property ignoring the shares of Ramunni Menon, inherited shares of deceased persons. (f) Had not the courts below erred in coming to the conclusion that partition can be effected as per Ext.A1 without petitioning properties as per Ext.B1. (e) Had not the courts below erred in coming to the conclusion that the plaintiff has got half share in the property ignoring the shares of Ramunni Menon, inherited shares of deceased persons. (f) Had not the courts below erred in coming to the conclusion that partition can be effected as per Ext.A1 without petitioning properties as per Ext.B1. (g) Had not the courts below erred in coming to the conclusion that as per the evidence, the property was under the undisputed and uninterrupted possession of late Ramunni Menon excluding all other members would be sufficient to come to the conclusion that the right of the plaintiff if any was lost by adverse possession. (h) Had not the courts below erred in not properly interpreting the covenants in Ext.B1, the admitted document before coming to the conclusion that the parties have got right under Ext.A1." 5. Heard Sri. K.M. Jamaludheen, learned counsel for the appellants, and Sri. K. Ramakumar, learned Senior Counsel for additional respondents 9 to 11. Additional respondents 9 to 11 are the Legal Representatives of deceased 3rd respondent/plaintiff. 6. Learned counsel for the appellants has relied on the partition deed of 1913 and argued that the rights and title created on late Ramunni Menon through 1913 partition deed were crystallised and later, he executed Ext.B2 Will thereby bequeathing all the properties devolved on him through 1913 partition deed, to the appellants. This Court has carefully considered Ext.B1 partition deed of 1913. The great thavazhi, which was then in existence, was separated as 9 thavazhies through Ext.B1. Even after Ext.B1, they continued as separate thavazhies. It is true that the shares to which the particular thavazhi was considered and calculated on per capita basis by deciding the amounts to which each of the members of the thavazhies were entitled. At the same time, properties were allotted to the thavazhies and not to individual members. Therefore, it cannot be said that the partition effected through Ext.B1 partition deed was on per capita basis by allotting separate properties to each and every members of all the thavazhies. 7. Madhavi Amma, who is the great grandmother of the appellants, was one of the members of the first thavazhi as per Ext.B13. Therefore, it cannot be said that the partition effected through Ext.B1 partition deed was on per capita basis by allotting separate properties to each and every members of all the thavazhies. 7. Madhavi Amma, who is the great grandmother of the appellants, was one of the members of the first thavazhi as per Ext.B13. One Kunhirama Menon was the first member, Karunakara Menon was the second member, Madhavi Amma was the third member and her minor son Ramunni Menon was the fourth member of the said first thavazhi. Properties were allotted to the said thavazhi No.1, which consisted of the aforesaid four members. Madhavi Amma represented minor Ramunni Menon in the execution of Ext.B1. 8. Subsequently, in the year 1916, the thavazhi consisted of all the aforesaid four members executed Ext.A19 partition deed. Kunhirama Menon obtained amounts in lieu of his share in the properties allotted to the said thavazhi, and he departed from the thavazhi. He was no longer a member to any thavazhi. At the same time, the said thavazhi was divided into two. Karunakara Menon formed thavazhi No.1, and Madhavi Amma and her two sons namely, Ramunni Menon and Kunhi Sankara Menon, formed thavazhi No.2. Properties were allotted to the second thavazhi as per Ext.A19 partition deed. In Ext.A19 partition deed, it has been clearly recited that the properties devolved on the thavazhi are the properties covered by Ext.B1. Therefore, one of the parties to the partition deed cannot at present claim that he had any special right or separate right or title over any of the properties allotted through Ext.B1 partition deed. 9. The appellants contended that they are entitled to plaint B schedule properties on the basis of Ext.B2 Will executed by Ramunni Menon. Through Ext.B2 Will, Ramunni Menon has made the bequest of the properties devolved on him through Ext.B1 partition deed. He has not stated anything regarding Ext.A19 partition deed executed by thavazhi No.1 constituted through Ext.B1 partition deed. The thavazhies were in possession of their respective properties, after the execution of Ext.B1 partition deed. Subsequently, when thavazhi No.1 was again divided into two thavazhies through Ext.A19 partition deed, the said two thavazhies also were in possession and enjoyment of their respective shares of properties separately. At the same time, the thavazhi continued. The thavazhies were in possession of their respective properties, after the execution of Ext.B1 partition deed. Subsequently, when thavazhi No.1 was again divided into two thavazhies through Ext.A19 partition deed, the said two thavazhies also were in possession and enjoyment of their respective shares of properties separately. At the same time, the thavazhi continued. When the parties continued to possess and enjoy the properties based on Ext.A19 partition deed of the family, they are bound by the terms of Ext.A19 partition deed. Any other partition had not occurred in thavazhi No.2 contained in Ext.A19 partition deed. 10. Even though the plaintiff has claimed that Kunhi Sankara Menon had executed a Will in favour of the plaintiff in respect of his share over the family properties, no such Will was produced and proved. Therefore, the lower appellate court has rightly found that there are only two members in the said thavazhi and they were Nanikkutty Amma, whose son is the plaintiff, and Ramunni Menon. The plaintiff being the male member born through Nanikkutty Amma, he is entitled to ½ share in the property allotted to the thavazhi. Similarly, being another member Ramunni Menon is also entitled to ½ share in the property. In such case, there is absolutely nothing to interfere with the findings entered by the lower appellate court. If any other separate properties are there as claimed by Ramunni Menon through Ext.B2, the appellants as legatees in Ext.B2 can forward their claims over such properties. At the same time, the appellants cannot resist the partition of plaint B schedule property. 11. From the discussions made above, it can safely be concluded that the plaintiff is entitled to ½ share in the plaint B schedule properties. Presently, additional respondents 9 to 11, being the legal representatives of the deceased plaintiff, are entitled to such ½ share in the plaint B schedule property. There is absolutely nothing to interfere with the impugned judgment and decree passed by the lower appellate court. This appeal is devoid of merits and is only to dismissed, and I do so. In the result, this Regular Second Appeal is dismissed. In the nature of this appeal, both the parties shall bear their respective costs. All pending interlocutory applications in this Regular Second Appeal are closed.