2006 Supreme(SC) 694
ALTAMAS KABIR, B.P.SINGH
Radha Amma – Appellant
Versus
C. Balakrishnan Nair – Respondent
Judgement Key Points
Based on the provided legal document, here are the key points:
- The Supreme Court allowed the appeal, set aside the judgment of the Division Bench of the High Court of Kerala, and restored the judgment of the learned Single Judge regarding the partition of properties known as "Puthravakasam tavazhy" under the Madras Marumakkattayam Act, 1932. [judgement_subject][judgement_act_referred]
- The core dispute involved properties listed as Item Nos. 8 to 16 in the suit schedule. The plaintiffs claimed these belonged to the tavazhy of Defendant No. 1 and were partible among all members. Defendant No. 2 claimed they were his self-acquired properties leased in 1943 for Rs. 100/-, thus not partible. [1000378770001][1000378770002]
- The Trial Court and the Single Judge held that the leases were taken for the tavazhy because it was improbable for a 15-year-old Defendant No. 2 to raise Rs. 100/- individually; the evidence supported the view that the funds came from the family. (!) [1000378770003][1000378770005]
- The Division Bench of the High Court modified the decree, ruling that since the purchase was made by Defendant No. 1's husband (or from his funds) in her name, Section 48 of the Madras Marumakkattayam Act applied. Consequently, the properties should be divided on a stirpital (per stirps) principle among Defendant No. 1's branch only, rather than per capita among the entire tavazhy. [1000378770006][1000378770009]
- The Supreme Court held that the question of whether the properties belonged to the Puthravakasam tavazhy of Defendant No. 1 never arose for consideration in the suit or appeal because Defendant No. 2 never raised the plea that they were her property; he only claimed they were his own self-acquired property. (!) [1000378770010]
- Since the lower courts accepted the plaintiffs' case (that the properties were part of the general tavazhy) and rejected Defendant No. 2's claim (that they were his exclusive property), the Supreme Court found no justification for the High Court to interfere on a question that was not framed or argued. (!) [1000378770008]
- Regarding Section 48, the Court doubted its application because the property was purchased by the wife using funds left by her deceased husband, rather than being purchased by a person in the name of his wife and children during his lifetime. (!) [1000378770011][1000378770012]
- The final order was to allow the appeal, set aside the Division Bench's judgment, and restore the Single Judge's decree which declared the properties partible among all members of the tavazhy. (!) (!)
JUDGMENT
B.P. Singh, J. — This appeal by special leave is directed against the judgment and order of the High Court of Kerala at Ernakulam in AFA No. 103/1992 whereby a Division Bench of the High Court while setting aside the concurrent findings recorded by the courts below partly allowed the appeal. While confirming the preliminary decree for partition in respect of properties at Item Nos. 1 to 7 and 17 to 20 of the suit properties, it modified the preliminary decree for partition so far as it related to Item Nos. 8 to 16, and setting aside the decree granted by the Trial Court and confirmed by the learned Single Judge, passed a preliminary decree for partition of those items into four shares and directed allotment of one out of four shares each to defendants 1, 2, 3 and 4 only.
2. The facts necessary for the disposal of this appeal are the following:-
One Narayanan Nair and his wife Cheethamma had 3 daughters, namely, Bhargavi (Defendant No. 1), Kalliyanikutty and Lakshmikutty. In the instant appeal we are only concerned with the branch of Bhargavi, the eldest of the daughters. She had 2 sons - defendants 2 and 3 and a daughter-defendant No. 4. Her daughter-defendant No. 4 had 5 d
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