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P.V.PRABHAKARAN NAIR versus P.V.SREEDEVI AMMA

High Court of Kerala

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P.V.PRABHAKARAN NAIR v. P.V.SREEDEVI AMMA - AS No. 212 of 1988(A) [2007] RD-KL 6751 (30 March 2007)

IN THE HIGH COURT OF KERALA AT ERNAKULAM

AS No. 212 of 1988(A)

1. P.V.PRABHAKARAN NAIR
... Petitioner

Vs

1. P.V.SREEDEVI AMMA
... Respondent

For Petitioner :SRI.M.P.ASHOK KUMAR

For Respondent :SRI.T.A.RAMADASAN

The Hon'ble MR. Justice K.PADMANABHAN NAIR

Dated :30/03/2007

O R D E R

K.Padmanabhan Nair,J.

A.S.Nos.212 of 1988 & 123 of 1990

Dated, this the 30th day of March, 2007



JUDGMENT

The plaintiff in O.S.No.253 of 1981 on the file of Subordinate Judge's Court, Thalasserry is the appellant in A.S.No.212 of 1988. A.S.No.123 of 1990 was also filed by him challenging a decree and judgment passed in O.S.No.255 of 1983 on the file of that Court.

2. In A.S.No.212 of 1988, the facts are as follows: The appellant-plaintiff filed the suit for partition alleging that the properties originally belonged to Ningileri tarwad. From the tarwad, there was a lease in favour of Patinharayil Vayanipetta Kalliani Amma, who was the grandmother of the appellant. She was in possession of the property as a tenant under the tarwad. The original lease was on 17.11.1885. Subsequently, it was renewed on 19.02.1897. It was further averred that she partly reclaimed the property and was cultivating it as Karanavathi of the tarwad. She died before 1932 and her rights in plaint-B schedule property devolved upon her descendants under A.S.Nos.212/1988 & 123/1990 Marumakkathayam Law. It was contended that after the death of Kalliani Amma, her elder son Govindan Nair was managing the property as Karanavan of the tarwad. He died in the year 1947 and his younger brother Narayanan Nair became the Karanavan of the tarwad. Narayanan Nair died in the year 1967. His widow and children are respondents 16 to 22 in the suit. Narayanan Nair had a younger brother by name Gopalan Nair, who died unmarried and issueless on 1.8.1978. It was averred that his share in the property devolved upon his sister Narayani Amma. She died on 25.11.1978. It is further averred that after her death, her rights devolved upon her children - the appellant and 1st respondent. It was averred that the only members of the thavazhi that descended from Kalliani Amma are the appellant and respondents 1 to 7. Respondents 8 to 12 are the first wife and children of Kunhikrishnan Nair, who was one of the sons of Kalliani Amma. Respondents 13 to 15 are another widow and children of said Kunhikrishnan Nair. He died in the year 1972. It was contended that his share in the property devolved upon respondents 8 to 15. It was admitted that the rights of Narayanan Nair, who died in 1967, was devolved upon A.S.Nos.212/1988 & 123/1990 respondents 16 to 22. 23rd respondent was not married by the deceased Gopalan Nair and 24th respondent is not his daughter. It was contended that respondents 23 and 24 have raised a false claim based on an alleged Will, which is stated to have been executed by Gopalan Nair. It was averred that deceased Gopalan Nair had deposited an amount of Rs.2 Lakhs with Shaw Wallace & Co., Madras and that amount is still in deposit with that Company, which was impleaded as the 25th defendant in the suit. It was alleged that from the year 1977 onwards Gopalan Nair was suffering from various illness till his death on 1.8.1978. It is averred that a Will was fabricated on 3.10.1977. As a matter of fact, Gopalan Nair was in a very serious condition on that day and was admitted in Headquarters Hospital, Kannur and was not having any disposing mind. It was further contended that in that Will the 23rd respondent was mentioned as his wife and 24th respondent as his child. Those averments were controverted. It was averred that plaint-B schedule property is to be divided into 24 shares, in which 2/24 shares is to be allotted to respondents 8 to 15, 2/24 to respondents 16 to 22, 4/24 to appellant, 4/24 to 1st respondent and 2/24 each to respondents 2 to 7. The A.S.Nos.212/1988 & 123/1990 appellant also claimed share in the amount deposited with Shaw Wallace & Co.

3. Respondents 1 to 7/Defendants 1 to 7, who are direct sister of the appellant and her children filed a joint written statement denying all the averments raised in the plaint.It was averred that plaint-B schedule properties was never treated as thavazhy property. It was contended that though Kalliani Amma had executed a Marupat, Govindan Nair had obtained a lease in his individual capacity and he was in possession and enjoyment of the same. It was further averred that he executed a Will on 23.5.1947 by which the suit properties were bequeathed in favour of his three brothers, by name Achuthan, Kunhikrishnan and Gopalan. It was further averred those three persons were not available at the place and, therefore, his brother Narayanan Nair was authorised to lookafter the property on condition that he shall handover the property as and when his brothers come back. It was averred that the right of Kunhikrishnan Nair was bequeathed by him to respondents 13 to 15 and the right of Gopalan Nair devolved upon respondents 23 and 24. It was further contended that the right of Achuthan devolved upon A.S.Nos.212/1988 & 123/1990 respondents 1 to 7. It was further contended that in the Will executed on 23.5.1947, certain properties were given to Narayani Amma, the mother of the appellant and 1st respondent, and she had accepted the same and was in possession of that property and hence the appellant was estopped from raising a contention that the properties are thavazhi properties. The execution of Will by Gopalan Nair in favour of respondents 23 and 24 was also admitted. It was also contended that respondents 23 and 24 alone are entitled to get the amount deposited with Shaw Wallace & Co. It was contended that no thavazhi property was available for partition and hence the suit is to be dismissed.

4. Respondents 13 to 15, filed a separate written statement raising contentions which are identical to the contentions raised by respondents 1 to 7.

5. Respondents 23 and 24 filed a written statement denying the right claimed by the appellant. The averment that the properties were thavazhi properties was denied. It was contended that respondents 16 to 22, who are the heirs of Narayanan Nair, executed a release deed in respect of 49 6. Shaw Wallace Co. also filed a written statement admitting the right of respondents 23 and 24 to receive the amount.

7. The trial Court after trial found that the appellant-plaintiff will not get any right over the suit properties and dismissed the suit. Challenging that judgment and decree, A.S.212 of 1988 is filed.

8. Respondents 23 and 24 in A.S.No.212 of 1988 filed a suit initially before the Munsiff's Court, Kuthuparamba for a permanent prohibitory injunction in respect of the properties claimed by them alleging that the appellant in A.S.212 of 1988 is trying to trespass into the property and hence he is to be restrained. It was contended that the property originally belonged to Gopalan Nair absolutely and subsequently he executed a Will in favour of them and they are in possession and enjoyment of A.S.Nos.212/1988 & 123/1990 the same and the defendants, who are the appellant and 1st respondent in A.S.No.212 of 1988, have no right or possession over the same. Hence, they are to be restrained by a decree of permanent prohibitory injunction.

9. In that suit, the 2nd defendant, who is the plaintiff in O.S.No.253 of 1981 and appellant in A.S.No.212 of 1988, alone filed a written statement denying the right claimed by the plaintiffs, respondent Nos.23 and 24 in A.S.No.212 of 1988. It was contended that the property is a thavazhi property. Gopalan Nair was having no right or possession over the same and the property is a thavazhi property and hence the plaintiffs were not entitled to any relief.

10. The suit filed before the Munsiff's Court, Kuthuparamba was subsequently transferred to Subordinate Judges' Court, Thalassery and renumbered as O.S.No.255 of 1983 and tried along with O.S.No.253 of 1981. O.S.No.255 of 1993 was decreed. Challenging that decree and judgment, the 2nd defendant, who is the plaintiff in O.S.No.253 of 1981, has filed A.S.No.123 of 1990.

11. The main point arising for consideration in both A.S.Nos.212/1988 & 123/1990 these appeals is whether the suit properties involved in O.S.No.253 of 1981 were thavazhi properties as claimed by the appellant and whether he has got any partible right over the same. In the plaint filed by the appellant, the specific case put forward is that the properties originally belonged in jenm to Nangileri tarwad and from the tarwad, there was a lease in favour of Kalliani Amma, who was the grandmother of the appellant, on 17.11.1885 and there was a renewal on 19.2.1897 also. The acquisitions were long prior to the commencement of the Madras Marumakkathayam Act. It is admitted by the appellant himself that Kalliani Amma died prior to 1932. The lease deed of 1885 was not produced. Subsequent renewal was produced and marked as Exhibit A1. That shows that the lease was obtained by Kalliani Amma in her name. On 8.12.1932, one of the sons of the deceased lessee executed a fresh Marupat in favour of the landlords. That document is marked as Exhibit B1. In Exhibit B1 it was stated that the properties were in the possession and enjoyment of the executant even during the life time of the original lessee. Subsequently, he executed Exhibit B26 Will, by which these properties were bequeathed in favour of his three A.S.Nos.212/1988 & 123/1990 brothers - Achuthan, Kunhikrishnan Nair and Gopalan Nair. Exhibit B26 shows that under the very same document some properties were given to Narayanan Nair, who was his another brother. Another property was given to the mother of the appellant and the suit properties to three of his maternal uncles. The recitals in Exhibit B26 shows that on the date of Exhibit B26, Achuthan, Kunhikrishnan Nair and Gopalan Nair were not in station. So, Narayanan Nair was directed to look after the properties bequeathed in favour of the three brothers. The materials on record shows that Narayanan Nair was in actual physical possession of the properties and he was managing. When Narayanan Nair died in 1967, the properties which were bequeathed in favour of the three brothers were in the possession and enjoyment of Narayanan Nair's widow and children and not by thavazhi. When Gopalan Nair came from Madras where he was employed, the widow and children of Narayanan Nair released 49 12. The learned Sub Judge held that the property went out of the thavazhi on 8.12.1932 when Govindan Nair asserted his independent right over the property. At any rate, from 23.5.1947, the possession of the persons of the suit property were adverse to the interest of the thavazhi. As rightly observed by the trial Court, under Exhibit B26 Will an area having more than 1.5 acres of property was given to the mother of the appellant and 1.5 acres was given to Narayanan Nair, whereas the three brothers together were given only 1.10 acres of property. Since the appellant's mother and appellant had accepted the Will, they cannot be allowed to challenge the validity and genuineness of the Will at this distant point of time. A.S.Nos.212/1988 & 123/1990 It is also to be noted that apart from the suit property, other properties were also included in the Will. The appellant did not include the property allotted to his mother or other uncle Narayanan Nair, but only wanted partition of the properties given to the three brothers of Govindan Nair. So, the suit is actually bad for partial partition also. If, as a matter of fact, the appellant takes up a stand that the properties covered under the Will are thavazhi properties, he should have included the entire properties covered under the document. He cannot be allowed to approbate or reprobate. It is also to be noted that in the plaint there is no mention of Achuthan Nair, who was called as "Achu", and his share.

13. The evidence on record shows that Gopalan Nair was employed in Madras and was working in Shaw Wallace & Co. He married one Thayaramma and in that wedlock, two daughters by name Indrani and Chandrani were born. They are alive. For reasons best known to the appellant, he did not implead those daughters of Gopalan Nair, but came forward with a false case that Gopalan Nair was unmarried and died issueless. The specific case put forward by respondents 23 and 24 is that after the A.S.Nos.212/1988 & 123/1990 death of Thayaramma, Gopalan Nair married respondent No.23 and in that wedlock, respondent No.24 was born. The status of the 23rd respondent as widow of Gopalan Nair is accepted by all relatives of Gopalan Nair. Though there is an averment in the plaint that Gopalan Nair died unmarried and issueless, at the time of evidence the appellant had to admit that Gopalan Nair and respondent No.23 went to Guruvayoor. In fact, the contention appears to be that the marriage ceremonies conducted were not in accordance with Marumakkathayam system and hence there is no valid marriage. There is no pleading or proof as to what were the ceremonies underwent by Gopalan Nair with 23rd respondent on the date of marriage. Even accepting the contention of the appellant that respondents 23 and 24 are not the persons, the appellant will not get any right because the evidence on record conclusively shows that Gopalan Nair married Thayaramma and in that wedlock two daughters were born and they are alive. So, even in the absence of a Will claimed by respondents 23 and 24, the personal right of Gopalan Nair will devolve upon only on his children, who comes within the First Schedule and not of his sister, who come only in the next A.S.Nos.212/1988 & 123/1990 Schedule. Certain letters written by P.W.1 himself to respondent No.23 were produced by respondents 23 and 24. Exhibit B5 is one of the letters written by P.W.1 to respondent No.23 in which the 23rd respondent was described as his aunt. Exhibit B7 is another letter addressed to Gopalan Nair by the appellant, in which he had specifically stated that no separate reply need be written to respondent No.23, who is his aunt. Exhibit B8 is another letter. A number of other letters were also produced by respondents 23 and 24 to show that there was marriage between Gopalan Nair and respondent No.23. The appellant as P.W.1 had candidly admitted that the relationship between Gopalan Nair and respondent No.23 after 25.3.1976 was as that of husband and wife. The evidence also shows that Gopalan Nair obtained a Certificate of Purchase in respect of the properties bequeathed to him. Exhibit B31 Certificate of Purchase shows that Meenakshi Amma, who was the widow of Kunhikrishnan Nair, obtained Certificate of Purchase to the property bequeathed to Kunhikrishnan Nair. The Certificate of Purchases obtained by Meenakshi Amma or Gopalan Nair were not challenged. Appellant has no case that those certificates obtained by the parties were A.S.Nos.212/1988 & 123/1990 for and on behalf of the thavazhi. The appellant as P.W.1 had admitted that he was aware of the Will executed by Gopalan Nair on 3.10.1977 on the date of execution itself. In fact, the appellant had admitted the genuineness of the Will at the time of evidence, though in the pleadings he disputed the genuineness of the same. The evidence on record also shows that the attesting witnesses were also not alive on the date of trial of the suit.

14. As I have already stated, in view of the evidence available on record it is clear that Gopalan Nair had married respondent No.23. Even in the absence of a Will, the property will devolve upon only on his legal heirs. So, the finding of the Court below that the suit properties in O.S.No.253 of 1981 are the absolute properties of respondents 23 and 24 is perfectly correct. So, the further finding that the appellant has no partible right is also correct. There is no merit in A.S.No.212 of 1988 and the same is only to be dismissed.

15. In view of the finding that the properties scheduled in O.S.No.255 of 1983 are absolute properties of respondents 1 and 2 in A.S.No.123 of 1990, the decree passed by the Court below by which the appellant and also the 3rd respondent in the A.S.Nos.212/1988 & 123/1990 appeal were restrained from trespassing into the suit property is also correct and does not call for any interference. In the result, both the appeals are dismissed. K.Padmanabhan Nair Judge vku/-


Copyright

Reproduced in accordance with s52(q) of the Copyright Act 1957 (India) from judis.nic.in, indiacode.nic.in and other Indian High Court Websites

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