The entitlement of children to jointly owned property under the Travancore Ezhava Act does not apply to property acquired through sale deeds, as confirmed by the court's findings.

JUDGMENT :

EASWARAN S., J.

The 6^th defendant in O.S.No.12/2016, a suit for partition, has come up in this appeal challenging the concurrent findings rendered by the Munsiff’s Court, Chengannur, as affirmed by the Sub Court, Chengannur, in A.S.No.8/2020, by judgment dated 15.09.2021.

2. The brief facts necessary for the disposal of the appeal are as follows:

2.1. The 1^st respondent – plaintiff instituted O.S.No.12/2016 before the Munsiff’s Court, Chengannur, seeking partition of the 23 Ares situated in Resurvey No.163/19 of Ennakkad Village, Chengannur Taluk. According to the plaintiff, the property was purchased in the name of the 1^st defendant, who is the father, and his wife Janamma by Sale Deed No.1863/1962. At the time of execution of the sale deed, the plaintiff was a minor and was beneficiary of the sale. Subsequently, without the consent of the plaintiff, defendants 1 to 5 and their mother assigned their right of the plaint schedule property in favour of the 6^th defendant by executing Settlement Deed Nos.141/2011 and 321/2013. The said settlement deeds are not binding on the plaintiff as his right to a 1/7^th share over the plaint schedule property cannot be denied.

2.2. The defendants 2, 3 and 6 contested the suit contending that the property was purchased out of the funds generated from the family property of their mother, Janamma. Though after the execution of the sale deed only three children were born to Janamma and her husband and since the parties are governed by the Travancore Ezhava Act (Regulation 111 of 1100), the subsequently born children are also entitled for equal share in the property. Still further, it was contended that since the parties themselves treated this property as a joint family property, the other sharers who are born subsequent to the execution of the Sale Deed No.1863/1962 had righty released their respective shares in favour of the 6^th defendant. Therefore, though the claim for partition was not resisted in toto, as regards the claim of 1/7^th share by the plaintiff, it was contended that the plaintiff has only 1/10^th share.

2.3. On behalf of the plaintiff, Exts.A1 and A2 documents were marked and PW1 was examined and on behalf of the defendants, Exts.B1 to B7 documents were marked and DW1 was examined. The Trial Court, on appreciation of the oral and documentary evidence, came to the conclusion that the claim of the 6^th defendant that the plaint schedule property is a joint family property and that it was purchased out of the nucleus generated out of the assets of late Janamma was not proved and accordingly, proceeded to decree the suit by passing a preliminary decree for partition of the plaint schedule property with the plaintiff taking 1/7^th share and the 6^th defendant taking 6/7^th share, in view of the settlement executed by the mother and other children, who were the parties to the said sale deed. As regards the settlement deed executed by the children who were born after 1962, the Trial Court held that the settlement deed is of no consequence since they were not having any right over the plaint schedule property.

2.4. Aggrieved, the 6^th defendant preferred A.S.No.8/2020 before the Sub Court, Chengannur. Before the First Appellate Court, it was contended that since the other three children were born prior to the introduction of the Kerala Joint Hindu Family System (Abolition) Act, 1975, they were also entitled for the share in the family property and therefore, the settlement deed executed by them is valid and the preliminary decree passed by the Trial Court requires to be modified. The First Appellate Court, on reappreciation of the evidence, held that the 6^th defendant/appellant herein has not proved that the plaint schedule property is a joint family property which was purchased out of the nucleus generated out of the properties held by late Janamma. Accordingly, the appeal was dismissed and hence, the present second appeal.

3. Heard, Sri.P.Thomas Geeverghese – learned counsel appearing for