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2009 Supreme(Ker) 690
High Court Of Kerala
THE HONOURABLE MR. JUSTICE V. RAMKUMAR
Aravindakshi Amma - Appellant
Versus
Gopala Menon - Respondents
A.S. No. 563 of 1999 & Cross Objection No. 19 of 2009 & R.F.A. 43 of 2008 & Cross Objection No. 18 of 2009
Decided On : 27 August 2009
Headnote:
Constitution Of India, 1950 - Article 226 - Marumakkathayam Law - Inheritance - Distribution of share - Land including the plaint A schedule item No. 1 admeasuring 701/4 cents belonged to Andippillil Krishnan Menon, a member of the plaintiff's tarvad. The said property was gifted by Krishna Menon in favour of the following 11 members of the tarwad - Whether customary Marumakkathayam law, after partition of ancestral property the share allotted to a female in her hands continues to retain its character as tarvad property - Held: Under the Hindu Mithakshara Law the share which a co-parcener obtains on partition of ancestral property as regards his male issues is also ancestral in character and they take an interest in such property by birth whether they are in existence at the time of the partition or are born subsequently. The property in his hands has the incidents of right by birth and suvivorship. The same principle has always been applied in the case of Marumakkathayee female obtaining property on partition of ancestral property with the only difference that members in a joint Hindu Marumakkathayam family descent lineally from a common ancestress and by virtue of the matrilineal system of inheritance female members and their female descendants enjoy the status analogous to that of co-parceners under the Hindu Marumakkathayam Law. But the three degree rule of Mitakshara law founded on religious obligation is not applicable to Marumakkathayam law - other words, after partition of the ancestral property the share allotted to female in her hands continues to retain its character as tarvad property - Hence, the portions taken assignment of by D15 , D16 and D17 shall be allotted to the share of their respective assignors in equity in the final decree proceedings - Subject to the above, the preliminary decree passed by the court below is confirmed - Appeals are dismissed confirming the preliminary decree passed by the court below subject to the equitable reservation to be made in the final decree proceedings in favour of D15 to D17, the assignees - Memoranda of Cross Objections are also dismissed
Defendants 3, 4, 7 and 9 to 14 in O.S. No. 631 of 1993 on the file of the first Addl. Sub Court, Ernakulam are the appellants in A.S. No. 563 of 1999. Defendants 15 to 17 are the appellants in R.F.A. No. 43 of 2008. The aforementioned suit was one for partition and separate possession of the plaintiffs' 8/16 shares over two items of immovable properties described in the plaint. Plaint A schedule item No. 1 is shown as having an extent of 70 ¼ cents. Plaint A schedule item No. 2 lying comprised in two survey numbers has a total extent of 3.51 acres. Plaint A schedule item No. 1 is in Poonithura Village and item No. 2 is in Thrikkakara North Village of Ernakulam District.
PLAINTIFFS' CASE
2. The case of the plaintiffs can be summarised as follows:- Plaint schedule properties belonged to the Marumakkathayam tarvad of the plaintiffs 2 to 8 and defendants 1 to 14 known as Andipillil Tarvad. In the year 1950 a partition took place in the said tarvad as evidenced by Ext.A1 partition deed dated 1-11-1950 and plaint A schedule item No. I was allotted to the tavazhi of Parukutty Amma. The said partition was between defendants 1, 7 and 8 and Neelakanda Menon and their mother Parukutty Amma. The plaint A schedule item No. 2 was acquired by the tavazhi of Parukutty Amma as per Ext.A2 usfructory mortgage dated 7th Edavam 1096 (corresponding to the year 1921) executed by Parvathy Amma, the mother-in-law of Parukutty Amma. Plaintiffs 2 to 8 are the children of Padmavathy Amma who was one of the daughters of the first defendant Narayani Amma who in turn was one of the daughters of Parukutty Amma. Parukutty Amma and Padmavathy Amma are no more. Defendants 2 to 4 are the other children of the first defendant, Narayani Amma. Defendants 5 and 6 are the children of the 2nd defendant. Thus, plaintiffs 2 to 8 and defendants 1 to 14 are the members of the tavazhi of Parukutty Amma who was the common ancestress of the tarvad. The plaint A schedule properties belonged to the said tavazhi. The properties are in the joint possession of the plaintiffs 2 to 8 and defendants 1 to 14. The plaintiffs were given their share of income from the properties up to December 1991. The assignment deed executed by defendants 2 and 8 in favour of strangers are void and not binding on the plaintiffs. Eventhough the plaintiffs demanded partition and separate possession of their share the defendants have not acceded to their demand. The properties will fetch an annual income of Rs. 10,000/-. The plaint schedule properties may, therefore, be divided into 16 shares and the plaintiffs may be allotted 8 shares over the same with share of profits at the rate of Rs. 5,000/-per annum.
THE DEFENCE
3. The suit was resisted by defendants 1,3,4,7, 9, 11 and 12 raising the following contentions:-
The plaint allegation that the plaint A schedule item No. 1 property belonged to Andippillil Tarvad is false. It was the property belonging to Andippillil Krishnan Menon. The said Krishnan Menon gifted the property in favour of 11 persons as per a gift deed of the year 1099 ME (corresponding to the year 1924). Out of the 11 persons Ravunni Nair and Madhavi Amma died. The remaining 9 co-owners partitioned the properties as per Ext.A1 partition deed dated 1-11-1950. The plaint A schedule item No.I was allotted to defendants 1, 7 and 8 and their brother Neelakanda Menon and their mother Parukutty Amma. It was not a tavazhi property and, therefore, subsequently born children in the Andipillil tarvad have no right over the property. Plaint A schedule item No. 2 also did not belong to Andippillil tarvad. The said item belonged to Kandangad Sankaran Padmanabhan, the husband of Parukutty Amma and the father of defendants 1, 7 and 8 and deceased Neelakanda Menon. On the death of Sankaran Padmanabhan, the half share he had over the property devolved upon his wife Parukutty Amma and children, Narayani Amma (D1), Karunakara Menon (D8), Neelakanda Menon and Ammukutty Amma (D7). The other half sha
