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IN THE HIGH COURT OF KERALA AT ERNAKULAM
MR. JUSTICE SATHISH NINAN, MRS. JUSTICE SHOBA ANNAMMA EAPEN, JJ
A.p.sunil Kumar, S/o.savithri Amma – Appellant
Versus
Savithri Amma, D/o.late Nani Amma – Respondent
| Table of Content |
|---|
| 1. nature of properties post-partition (Para 7 , 8 , 9 , 10 , 11 , 12 , 13 , 14 , 15 , 16 , 17 , 18 , 19 , 20) |
| 2. retention of thavazhi character (Para 21 , 22) |
JUDGMENT :
The preliminary decree in a suit for partition is under challenge by plaintiffs 1 and 2.
3. According to the plaintiffs, plaint 'B' schedule item Nos.1 to 3 belonged to the thavazhi of Naniamma who was the grand mother of the plaintiffs as per the partition decree in OS 34/1967 of Vadakara Sub Court. The thavazhi consisted of Naniamma, her daughter Savathri Amma who is the first defendant, and her brothers namely defendants 2 to 4 and late Valsalan. The plaintiffs are the children born to the first defendant prior to the year 1976. Defendants 5 and 6 are the wife and daughter of late Valsalan. The claim is that the plaintiffs and defendants 1 to 4 and the late Valsalan are each entitled to one by eight shares out of the properties.
5. The defendants disputed the claim that the properties are tarwad properties. It was contended that the plaint B schedule items 1 to 3 are the separate properties of the respective allottees under the partition decree. So also, with regard to B schedule item 4, the claim t
Properties can retain thavazhi character post-partition under the Madras Marumakkattayam Act, allowing joint holding despite per capita division.
Under Marumakkathayam law, property obtained by a female and her children in partition retains its tharwad characteristics, ensuring rights for future descendants.
The court affirmed that property must be proven as tharavad to apply Marumakkathayam law, emphasizing community interest and unity of possession.
The determination of property as 'thavazhi' requires legal qualification and cannot simply arise from agreements. The appellate court emphasizes the necessity for factual clarity.
A voluntary partition deed conferring rights on a female heir is valid despite prior restrictions under Hindu inheritance law, emphasizing that such arrangements, once consensually made, cannot be co....
The court reaffirmed that daughters have equal rights as sons in ancestral properties, emphasizing the applicability of Section 6 of the Hindu Succession Act.
The court held that exclusive title to partitioned ancestral property belonged to the fourth defendant, rejecting the plaintiff's claim based on precedent case admissions regarding prior settlements.
The burden of proof lies with the party claiming partition to establish the division of properties, and the court may allow additional evidence if vital to decide the case.
The presumption of joint family status in Hindu law requires clear evidence to establish prior partition; the Appellate Court allowed partition of one property acquired post-partition while dismissin....
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