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2025 DIGILAW 2605 (KER)

Rathi Janardhanan, [Died, Lrs Recorded] v. Shibu Rajani Balan, S/O. Parayil Balan Nair

2025-10-06

P.KRISHNA KUMAR, SATHISH NINAN

body2025
JUDGMENT : Sathish Ninan, J. The preliminary decree in a suit for partition is under challenge by the defendants. 2. As per the plaint averments, the plaint 'A' schedule property, which is sought to be partitioned, belonged to one Poovadan Kannan as per assignment deed No.2165/1903. The property was enjoyed by Kannan and his successors as Thavazhi property. It is claimed that as on the date of suit there are 88 sharers as shown in the genealogical tree in plaint 'B' schedule. According to the plaintiffs, the rights of all the other sharers except that of the defendants were got assigned by them under various assignment deeds. It is claimed that the plaintiffs have 86.75 shares and the defendants have 1.25 shares out of the total 88 shares. Partition and separate possession of the same is claimed. 3. Defendants 1 and 3 filed joint a written statement. They denied the plaint claim that the property was acquired by Poovadan Kannan. It was contended that the property was purchased by the five children of Poovadan Kannan viz, Kunhiraman, Manikkom, Devaki, Thirumala and Madhavi under Ext.B1 assignment deed number 2165/1903. They were co-owners of the property. It was not a thavazhi property. Kunhiraman died unmarried and issueless and his rights devolved on the four siblings, thus each being entitled to ¼ shares. The ¼ rights of Devaki devolved on her four surviving children. One among them viz. Damayanthi executed a Will in respect of her rights in favour of one among her children viz. Janardhanan. Defendants 1 to 3 are the wife and the children of Janardhanan. It is claimed that Damayanthi had one by sixteen shares (¼ x ¼) which on the death of Janardhanan devolved upon defendants 1 to 3. The claim that there are 88 sharers to the property was denied. 4. Defendants 1 and 3 assigned their rights in the property to the additional 4 th defendant. He filed a written statement in tune with that of defendants 1 and 3. 5. The trial court held that the property is a 'thavazhi' property and passed a preliminary decree accepting the plaint claim. 6. We have heard Sri.K.C.Santhosh Kumar, the learned counsel for the appellants-defendants and Sri.K.V.Sohan, the learned counsel for the respondents-plaintiffs. 7. The points that arise for determination are :- (i) Is 'A' schedule property a 'thavazhi' property as claimed by the plaintiffs ? 6. We have heard Sri.K.C.Santhosh Kumar, the learned counsel for the appellants-defendants and Sri.K.V.Sohan, the learned counsel for the respondents-plaintiffs. 7. The points that arise for determination are :- (i) Is 'A' schedule property a 'thavazhi' property as claimed by the plaintiffs ? (ii) Does the decree and judgment of the trial court warrant any interference ? 8. Before we proceed to the facts, the following principles need to be noted. A 'thavazhi' or a ‘joint family’ cannot be created by the act of parties. It arises from status, under a common female ancestress ( See Mathevan Pillai v. Neelakanta Pillai , Bhagavathi Pillai Thankachi 1952 KLT 140 ; Kypreth Moithiyan Kutty v. Natukandy Puthiapurayil Mammali (1928) ILR 51 Mad 574 ) . An artificial group cannot constitute a thavazhi by an agreement. [ Kalianikutty Amma v. Devaky Amma 1950 KLT 705 ) . A joint family is a creature of law and not act of parties. ( Thomas v. Kesavan Namboodiri (AIR 1964 Ker 144), Kumaraswami Mudaliar and Ors. v. Rajamanikkam Udayar and Ors. ( 1966 KLT 361 ); Surjit Lal Chhabda v. CIT (1976) 3 SCC 142 ; CIT, Bihar-II v. Sandhya Rani Dutta (2001) 3 SCC 420 )] 9. According to the plaint averments, the property was acquired by one Poovadan Kannan, and he and his successors enjoyed it as 'thavazhi' property. First of all we must note that the acquisition, if by Poovadan Kannan, does not become a 'thavazhi' property. Secondly, Ext.B1 is the document bearing No.2165/1903 under which the property was acquired. It shows that the acquisition was not by Poovadan Kannan but by his five children. The acquisition by the said five children would not imprint the property with the character of the 'thavazhi' property. 10. To hold that the property is a 'thavazhi' property, the trial court relied on certain transactions by the parties. The five children of Poovadan Kannan had in the year 1903 purchased yet another property under Ext.A20 deed. The said property was sold in the year 1923 under Ext.A22. We find that, the recitals in the documents, especially Ext.A20 would in fact indicate that the acquisition thereunder was by the five children of Poovadan kannan as co-owners and not otherwise. The court had also referred to Ext.A27 whereunder defendants 1 to 3 conveyed the plaint schedule property to the fourth defendant referring title to the Tarwad. We find that, the recitals in the documents, especially Ext.A20 would in fact indicate that the acquisition thereunder was by the five children of Poovadan kannan as co-owners and not otherwise. The court had also referred to Ext.A27 whereunder defendants 1 to 3 conveyed the plaint schedule property to the fourth defendant referring title to the Tarwad. However, such a statement would not make it a thavazhi property. So also, the court also referred to Exts.A35 and A36 judgment and decree in OS 14/1988 which was a suit for partition in the family. Therein, the court held the present plaint schedule property to be a 'thavazhi' property. However, the suit was dismissed for non-joinder of necessary parties. Moreover, there is no plea or issue of res judicata. We are unable to concur with the trial court which held the plaint 'A' schedule to be ‘thavazhi property’. The finding is liable to be set aside and we do so. 11. That the plaintiffs and the defendants are entitled for a share in the property is not in dispute. The share of the respective parties need to be arrived at. While the plaintiffs claim that they have got assignment of all the sharers, 88 in number according to them, except defendants 1 to 3 would contend that under a Will executed by Damayanthi one of the daughters of the five children of Poovadan Kannan, her rights (1/16 ) vested with Janardhanan (who is one of the sons of Damayanthi), the predecessor-in-interest of defendants 1 to 3. Such Will is not produced. The said document is of relevance since the plaintiffs claim to have obtained assignment of the rights of the other children of Damayanthi. Whether the plaintiffs have got conveyance of rights of all the other sharers treating the properties to be co-ownership properties of the four children of Poovadan Kannan, is also to be considered. Opportunity could be granted to both sides to adduce further evidence with regard to the quantum of shares they are entitled for. Resultantly, while holding that the plaint schedule property is the co-ownership property of the four children of Poovadan Kannan and not 'thavazhi' property as claimed in the plaint, the decree and judgment of the trial court are set aside and the suit is remanded back to the trial court to enter a finding with regard to the shares of the parties. Both sides shall be permitted to adduce further evidence in support of their claim with regard to the quantum of shares. Parties to appear before the trial court on 16.10.2025.