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IN THE HIGH COURT OF KERALA
V. Ramkumar, K. Harilal, JJ.
Leela Amma and Others - Appellants
Versus
Aravindaksha Menon and Others – Respondents
A.S. No. 214 of 2002
Decided On : 14-03-2012
PARTITION SUIT - MARUMAKKATHAYAM LAW - SELF ACQUISITION - TAVAZHI PROPERTY - PRESUMPTION - BURDEN OF PROOF - COCHIN NAYAR ACT, 1113 ME, SECTIONS 35 TO 40 - INTERPRETATION.
Fact of the Case:
The plaintiffs filed a suit for partition and separate possession of their 5/40 shares over 10 items of immovable properties described in the plaint B schedule. The plaintiffs' case was that the plaint B schedule properties were acquired by their paternal grandmother Kunhi Amma as per registered documents of the years 1908, 1922 and 1936 respectively. Those properties were purchased by Kunhi Amma the common ancestress, with her own funds and were the self acquired properties of Kunhi Amma. She died in the year 1940. The defendants resisted the suit by contending that the plaint B schedule properties were acquired by Kunhi Amma and her unmarried sister who was residing along with her. Kunhi Amma and her sister found it difficult to eke out their livelihood with the properties obtained by them in partition. Kunhi Amma and her sister were residing in the old thatched hut which was there formerly in the place of the tarwad house. Kunhi Amma and her sister were toiling by rearing cows and selling milk and cultivating the paddy fields obtained on lease from jenmies like Midhunappilly Namboodiri. It was with the income derived by such hard work and joint labour that Kunhi Amma and her sister purchased some of the properties in the years 1088, 1097 and 1111 ME. The properties were purchased for and on behalf of the tavazhi but in the name of Kunhi Amma who was the eldest female in the tavazhi which included Kunhi Amma and her sister. Both before the acquisition or at the time of acquisition or any time thereafter, it was never intended by Kunhi Amma or any member of her family that the properties are the self acquisitions of Kunhi Amma.
Finding of the Court:
The Court held that the suit properties were the separate properties of Kunhi Amma and they would, therefore, devolve in accordance with Sections 35 to 40 of the Cochin Nair Act, 1113 ME. The conjoint effect of Section 35 to 40 is as follows. Section 3 of the Act reads as under: 35. Devolution of property left by Nayar female intestate.- On the death intestate of a Nayar female, her property which is self-acquired or separate shall devolve in the order and according to the rules contained in Sections 36 to 40. Section 36 is the most important provision as far as this case is concerned. As per Section 36 where the intestate has left surviving her children or lineal descendants in the female line through deceased daughters or both, the whole of the property shall belong to them. It is further stated that the provisions of Clauses (iii) to (v) of Section 29 and Explanations I and II to that Section shall apply to the distribution of the property among the children and lineal descendants of the intestate. As per Clause (iii) of Section 29, the property shall be distributed to every child (son or daughter) in equal share. The proviso to Section 29(iii) states that if a daughter has pre-deceased the intestate, the lineal descendants of such grand daughter in the female line shall be entitled to the share which such grand daughter would have taken had she survived the intestate. Clause (iv) of Section 29 states that grandchildren by the deceased daughter shall be entitled to equal shares to what their mother would have taken had she survived the intestate. The proviso thereto states that if a granddaughter has pre-deceased intestate, the lenial descendants of such grand daughter in the female line shall be entitled to the share which such granddaughter would have taken had she survived the intestate. Clause (v) of Section 29 states that in like manner the property shall go to the surviving lenial descendants of the intestate in the female line where such descendants are in the degree of great grandchildren or in a more remote degree. Explanation I states that the descendants of a daughter, daughter's daughter or other female descendant in the female line shall not be entitled to any share in such property if such daughter, daughter's daughter or other descendant is alive at the time of the death of the intestate. Explanation II states that the descendants of a son who has pre-deceased the intestate shall not be entitled to any share in such property. Kunhi Amma admittedly had five children namely; one daughter and four sons. All of them survived Kunhi Amma. Hence, each of the above five children were, by virtue of Section 36 of the Act, entitled to ¼ share over the plaint B schedule properties which were the self acquisitions of Kunhi Amma.
Issues: 1. Whether the plaint B schedule properties were the self acquisitions of Kunhi Amma or the tavazhi properties? 2. Whether the plaintiffs are entitled to partition and separate possession of their 5/40 shares over the plaint B schedule properties?
Ratio Decidendi: 1. The Court held that the suit properties were the separate properties of Kunhi Amma and they would, therefore, devolve in accordance with Sections 35 to 40 of the Cochin Nair Act, 1113 ME. 2. The Court held that the plaintiffs are entitled to partition and separate possession of their 5/40 shares over the plaint B schedule properties.
Final Decision: The Court dismissed the appeal and upheld the preliminary decree passed by the Court below.
41, Rule 1 CPC. Pending this appeal, the 2nd appellant (Visalakshi Amma) died and her legal representatives already on the party array were recorded as such. The 3rd appellant (Kunhilakshmi Amma) also died and her legal representatives were impleaded as additional appellants 4 to 7.
2. The aforementioned suit was one for partition and separate possession of the plaintiffs' 5/40 shares over 10 items of immovable properties described in the plaint B schedule.
The Plaintiffs' Case
3. The case of the plaintiffs can be summarised as follows:
The plaintiffs and defendants are Marumakkathayees belonging to the Hindu Nair community following the Hindu Succession Act, 1956. The plaint B schedule properties were acquired by plaintiffs' paternal grandmother Kunhi Amma as per registered documents of the years 1908, 1922 and 1936 respectively. Those properties were purchased by Kunhi Amma the common ancestress, with her own funds and were the self acquired properties of Kunhi Amma. She died in the year 1940. Plaint A schedule is the genealogy showing the relationship between the parties and their ancestors. On the death of Kunhi Amma her children namely, Lakshmi Amma, Achutha Menon, Balagangadhara Menon, Madhava Menon and Purushothama Menon were each having 8/40 shares over the plaint B schedule properties. The five plaintiffs and the 4th defendant are the children of Achutha Menon referred to above. Achutha Menon had also a daughter by name Kamalam and a son by name Gangadhara Menon both of whom died in the years 1994 and 1976 respectively. The first defendant is the widow of the said Gangadhara Menon and defendants 2 and 3 are the children of the said Kamalam. Plaintiffs are together entitled to 5/40 shares. The first defendant representing late Gangadhara Menon is entitled to 1/40 shares. Defendants 2 and 3 together representing late Kamalam are entitled to 1/40 shares and the 4th defendant is entitled to 1/40 shares. Defendants 5 to 7 together representing Balagangadhara Menon who was unheard of since 1945 and, therefore, presumed to be dead in the year 1952, are entitled to 8/40 shares. Defendants 8 to 17 together representing late Madhava Menon are entitled to 8/40 shares. Defendants 18 to 21 together representing late Purushothama Menon are entitled to 8/40 shares. Defendants 22 to 47 together representing late Lakshmi Amma are also entitled to 8/40 shares. The plaint B schedule properties will fetch an annual income of Rs. 18,000/-. Till three years back defendant No. 22 (Janaki Amma) was giving the plaintiffs their share of income from the plaint B schedule properties. Defendants 22, 38, 39 and 47 are collecting the rent of the buildings situated in the plaint B schedule properties. They are not showing the accounts regarding the income and expenditure to the plaintiffs. The aforesaid defendants are attempting to alienate the plaint B schedule properties. Even though the plaintiffs demanded the aforesaid defendants to partition the plaint B schedule properties and allot the share of the plaintiffs to them, they did not yield to the same. Hence the suit. The plaint B schedule properties may therefore be partitioned and the plaintiffs may be allotted 5/40 shares therefrom with mesne profits.
4. The 22nd defendant died pending suit and defendants 48 to 52 were impleaded as her legal representatives. Defendants 1, 23 to 37, 42 to 46 and 48 to 52 remained ex parte. Defendants 2, 3, 5, 6, 7, 8 and 9 to 20 filed written statements supporting the suit claim and demanded their share over the plaint B schedule properties.
The Defence
5. The suit was resisted by defendants 22, 38, 39 and 47 who are the four daughters of late Lakshmi Amma who had altogether nine children.
Opposition by the Contesting Defendants
6. Defendants 22, 38, 39 & 47 filed a joint written statement contending inter alia as follows:
The plaint B schedule properties
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