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P. Kunhammad and ors. Vs. V. Moosankutty and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKerala High Court
Decided On
Case NumberSecond Appeal Nos. 444 and 648 of 1966
Judge
Reported inAIR1972Ker76
ActsEvidence Act, 1872 - Sections 65; Marumakkathayam Law; Code of Civil Procedure (CPC) , 1908 - Order 1, Rule 10; Hindu Law
AppellantP. Kunhammad and ors.
RespondentV. Moosankutty and ors.
Appellant Advocate V.R. Venkatakrishnan and; T.C. Mohandas, Advs.
Respondent Advocate T. Karunakaran Nambiar, Adv.
Cases ReferredRaghavamma v. Chenchamma
Excerpt:
.....from tarwad prior to their death by reason of their having sent registered notices claiming partition of tarwad properties - evidences adduced that 'y' died before intention to separate communicated to karnavan of tarwad - no severance in status so far - appellants not entitled to any share - lower appellate court granted decree in favour of defendants for partition and separate possession - held, decision of lower appellate court upheld. - motor vehicles act, 1988[c.a.no.59/1988] section 147 (1)(b)(i) [as amended in 1994]; [v.k. bali, cj, m.ramachandran & s. sirijagan, jj] third party risk gratuitous passengers - liability of insurance company held, gratuitous passengers in transport vehicles, including a motor cycle, can have coverage only when a comprehensive policy or..........court had taken a different view. 6. along with the plaint, which was filed on 25-1-1958, ext. a-1 copy of a notice and ext. a-2 acknowledgement were produced more than one year later, another copy of a notice was produced as ext. a-3. p. w. 1, who is the clerk of the plaintiffs' counsel, stated in his examination-in-chief thatext, a-1 is not the copy he wrote of the original notice alleged to have been sent to ahammadkutty hajee, that ext. a-1 is in the handwriting of one krish-nan nambiar, a fellow clerk, and that ext. a-3 was in his (p. w. 1's) own handwriting. according to p. w. 1, ext. a-3 is a copy of the notice he wrote. the learned counsel for the contesting defendants rightly pointed out that ext. a-1 was not admissible in evidence as the writer of the notice had not been.....
Judgment:

P. Unnikrishna Kurup, J.

1.These second appeals arise out of a suit for partition filed by the widow of a member of a Mappila Marumakkathavam tarwad for partition and 'separate possession of 7/36th share in the tavazhi properties. The plaintiff died during the pendency of the suit and the 5th defendant, one of her sons, was transposed as supplemental second plaintiff.

2. The trial Court directed a preliminary decree to be passed as prayed for subject to the findings on issues 11 and 14. In appeal, the 2nd plaintiff and defendants 4, 6 and 7 were found not entitled to any share in the properties. So also defendants 13, 20 and 21 were found not entitled to any share in the plaint properties. S. A. No. 444 of 1966 has been filed by the 2nd plaintiff and defendants 4. 6 and 7 and S. A. No. 648 of 1966 has been filed by defendants 13, 20 and 21 questioning the correctness of the lower appellate Court's finding declaring them not to be entitled to any share in the plaint properties.

3. The relationship between the parties may now be noticed. The tavazhi was descended from the common ancestress Kunhipathumma. who had three sons and a daughter. Kunhikammadamma. We are concerned in this second appeal only with the descendants of the daughter Kunhikkammadamma. She had six children, Ahmadkutty Hajee,Spoppikutty, Mammu, Abdulla, Abdura-himan and Kadeesa. The original plain-US was the widow of Sooppikutty and her children are defendants 4 to 7. On the death of the original plaintiff, 5th defendant was transposed as supplemental second plaintiff. The second plaintiff and defendants 4, 6 and 7 forming a group are the appellants in S. A. No. 444 of 1966. The 8th defendant is the widow of Ahmadkutty Hajee and defendants 9 to 19 are her children. The 13th defendant is the widow of Kunhikuttv Ali, one among the five children of Kadeesa, the daughter of Kunhikammadamma. Defendants 20 and 21 are the children of 13th defendant by Kunhikutty Ali and it is this group consisting of defendants 13, 20 and 21 who are the appellants in S. A. No. 648 of 1966.

4. The contentions which arise for consideration in this second appeal are whether Sooppikutty and Kunhikutty AH have become separate from the tarwad prior to their death by reason of their having sent registered notices claiming partition of tarwad properties. The lower appellate Court has found that notices relied on by the appellants in these two second appeals are not genuine and are incapable of effecting severance in status and it is the correctness of this decision that is now challenged.

5. I will first consider the contentions of the appellants in S. A. No. 444 of 1966. Their case is that Sooppikutty during his lifetime had sent a registered notice, original of Ext. A-3, claiming separate possession of the share due to him, and that this notice was issued to Ahmadkutty Hajee who was then the karnavan and manager of the tavazhi tarwad. The contesting respondents raised two contentions before the lower appellate court Firstly it was urged that there was no valid proof that such a notice had been sent and secondly even if such a notice had been sent, it was insufficient in law to constitute a severance in status as the intention to claim a separate share had not been communicated to the remaining members of the tarwad and under law this was essential. The lower appellate Court agreed with the respondents on both the questions, although the trial Court had taken a different view.

6. Along with the plaint, which was filed on 25-1-1958, Ext. A-1 copy of a notice and Ext. A-2 acknowledgement were produced more than one year later, another copy of a notice was produced as Ext. A-3. P. W. 1, who is the clerk of the plaintiffs' counsel, stated in his examination-in-chief thatExt, A-1 is not the copy he wrote of the original notice alleged to have been sent to Ahammadkutty Hajee, that Ext. A-1 is in the handwriting of one Krish-nan Nambiar, a fellow clerk, and that Ext. A-3 was in his (P. W. 1's) own handwriting. According to P. W. 1, Ext. A-3 is a copy of the notice he wrote. The learned counsel for the contesting defendants rightly pointed out that Ext. A-1 was not admissible in evidence as the writer of the notice had not been examined and there was absolutely no proof that the same represented a true-copy of the original notice alleged to have been sent to deceased Ahammadkutty Hajee. Admittedly, the writer of this notice Krishnan Nambiar is still alive and absolutely no explanation has been given why he has not been examined. P. W. 1, who is stated to be a fellow clerk of the said Krishnan Nambiar, did not even say that he was familiar with Krishnan Nambiar's handwriting and he could recognise Ext. A-1 having been written by the said Krishnan Nambiar. His answer regarding Ext. A-1 justifies an inference that it may not be a true-copy of the original. (Ext. A-1 is not the copy I wrote, but it is based upon what I wrote). It is not known what is meant by his saving that Ext. A-1 is 'based upon' what he wrote. Anyway, it cannot moan that it is a true-copy. Therefore, no reliance can be placed on Ext. A-1 and it cannot be taken as a true-copy of the original notice alleged to have been sent to Ahammadkutty Hajee. Coming to Ext. A-3, it was filed one year and three months after the institution of the suit and no explanation has been offered why it was not produced along with Exts. A-1 and A-2 if it reallv represented a true-copy of the notice alleged to have been sent. According to P. W. 1. Ext. A-3 had not been in his possession and it is not explained why if the plaintiffs had been in possession of this document, this was not produced along with Exts. A-1 and A-2 at the time of filing of the plaint. Ext. A-3 is described as a 'karadupakarppu' which literally means 'draft' as different from 'Nerpakarppu', which means true-copy.

If it is only a draft, it can be accept-ed in evidence only if there is proof that the original has been prepared without any corrections and that it is exactly a true-copy of the draft. No 1 such evidence is forthcoming. There is every reason to think that Ext. A-3 has been subsequently written up and the plaintiffs' counsel's clerk has conveniently stepped into the box to speak about this document. In the circumstances, the acknowledgement only proves that a notice had been sent to Aham-madkutty Hajee but what was the con-tents of that notice has not been proved and Exts. A-1 and A-3 cannot be accepted as true copies of the notices sent. There is another infirmity attached to Exts. A-1 & A-3, The notices are stated to have been sent to Ahammadkutty Haiee. His legal representatives are defendants 3 to 19 and the succeeding karnavan is the 1st defendant. These defendants are admittedly on good terms with the plaintiffs and no steps have been taken by the plaintiffs to summon them to produce the original notice. No explanation has also been offered why such steps were not taken. Ext B-90 is the original of another notice which had been sent to Ahammadkutty Hajee and that has been produced in this case which shows that the documents and notices in the possession of Ahammadkutty Hajee are now available. Why then the plaintiffs have not made any attempt to summon the original has not been indicated. In these circumstances the secondary evidence of the notice is not admissible under Section 65 of the Evidence Act.

7. The learned counsel for the contesting respondents has also pointed out that the circumstances tend to show that Sooppikutty had not claimed his share of the tarwad properties. Although the notice was sent by him in 1949, he did not file a suit for partition till his death and large number of documents were executed by Ahammadkutty Hajee, Exts. B-8, B-9. B-10, B-89 etc., in his capacity as karnavan and representing the tarwad. The next senior Anantbirayan and all adult members were parties to these documents and no objection appears to have been taken by Sooppikutty's heirs to the execution of the documents. All these circumstances taken together lead to the inference that there is no evidence regarding any claim for partition having been made by Sooppikutty prior to his death. I see no reason to differ from the view taken by the lower appellate Court on this point.

8. The next question is as to whether a notice sent by a iunior member to the manager of an undivided family is sufficient to effect a severance in status or whether a notice has to be sent to all the remaining members of the joint family. On this point, the authorities are not uniform. I may refer to the decision reported in Kathee-summa v. Beechu, (1949) 2 Mad LJ 268. That was also a case regarding a Map-pila Marumakkathayam Tarwad. where the plaintiffs claimed that there had been a division in status by reason of a notice issued on their behalf to the karnavan of the tarwad. The questionwhich arose for consideration was whether the notice was sufficient to effect a severance in status legally or whether notices should have been sent to all the members of the tarwad. A Division Bench of the Madras High Court consisting of Satvanarayana Rao and Punchapagesa Sastri, JJ. differed and the matter was referred to Viswanatha Sastri J. In an elaborate judgment, all aspects of law were considered and it was held that the manager of a joint Hindu family had the power or the right to represent the family in all transactions relating to it so far as the outside world is concerned, and therefore, it would be sufficient to send a notice to him claiming a separate share- The following observations are relevant:

'When that is not the case, I fail to see why a notice issued to the manager of the family who would continue to represent the remaining members of the joint family is not a sufficient notice... to the remaining members themselves. Quoad the joint family, the position of an outgoing member is like that of a stranger and I do not see any reason why the manager of the family, acting on behalf of the remaining members and representing them, should be disabled from receiving a notice of separation given by the outgoing member.'

But the authority of this decision has been considerably shaken by the pronouncement of the Supreme Court in Raghavamma v. Chenchamma, AIR 1964 SC 136. There it was held that an unequivocal declaration for severance in status was by itself insufficient to effect a severance but that it should be indicated, manifested or published in such a manner as is proper in the circumstances of the case. Their Lordships quoted the following observations from the decision of the Madras High Court in (1949) 2 Mad LJ 268:

'There must be some manifestation, indication, intimation or expression of that intention to become divided, so as to serve as authentic evidence in case of doubt or dispute. What form that manifestation, expression or intimation of intention should take would depend upon the circumstances of each case, there being no fixed rule or rigid formula. The dispatch to or receipt by the other members of the familv of a communication or notice announcing the intention to divide on the part of one member of the family is not essential nor its absence fatal to a severance in status.'

and then proceeded to make the following observations:

'We agree with the learned Judge in so far as he held that there should be an intimation, indication or expres-sion of the intention to become divided and that what form that manifestation should take would depend upon the circumstances of each case. But if the learned Judge meant that the said declaration without it being brought to the knowledge of the other members of the family in one way or other constitutes a severance in status, we find it difficult to accept it. In our view, it is implicit in the expression 'declaration' that it should be to the knowledge of the person affected thereby. An un-communicated declaration is no better than a mere formation or harbouring of an intention to separate. It becomes effective as a declaration only after its communication to the person or persons who would be affected thereby.'

It is true that there is no direct observation by the Supreme 'Court whether the communication of intention need be only to the manager or whether it should be to all the members of the family. But a reading of the whole judgment of the Supreme Court shows that the intention should be communicated to the person or persons sought to be affected and there is therefore no reason to think that it would be sufficient to communicate the intention to the manager alone. In the succeeding paragraph their Lordships have considered the anomalous results that may follow if the notices have to be issued to all the members, as the severance would be effected with reference to each member on a different date. Their Lordships have indicated the way in which this difficulty can be surmounted and the indication appears to be that notice should be served on all the members of the family. However, no final opinion need be expressed on this point in this case as on the facts I have found that there is no proof of any communication having been sent claiming partition prior to the date of Sooppikutty's death.

9. Coming to S. A. No. 648 of 1966, the case of the appellants is that deceased Kunhikutty Ali, husband of 13th defendant, and father of defendants 20 and 21 had sent a notice claiming partition before his death and his legal representatives are therefore entitled to claim a share in the tarwad properties. Ext. B-90 is the original notice sent by Advocate Shri O. V. Abubacker on behalf of Kunhikutty Ali to V. Ahamadkutty Haji and this notice has been proved by Advocate Shri Aboobacker examined as D. W. 3. The contention of the respondents that the notice is not genuine and that it was not really sent on behalf of deceased Kunhikutty Ali cannot for a moment be accepted, in the light of the evidence of D. W. 3, There is also no forcein the contention that Ext. B-90 represents a claim for partition of the tarwad properties and not tavazhi properties, as it is clear that the notice was sent to the karnavan of the tavazhi and not that of tarwad. But there is another infirmity attached to this notice. The notice no doubt was sent on 21-9-1951. But the death register extract Ext. B-92 shows that Kunhikutty Ali died on 23-9-1951, two days after Ext. B-90 was sent The addressee was residing within the jurisdiction of Baliapattam Post Office and the date of the seal on Ext. B-90 shows that it was received in the Baliapattam Post Office only on the 24th, that is a day after the sender's demise. It follows that at the time the notice was served on the addressee, the sender was no more. What would happen in such a case has been considered in AIR 1964 SC 136. According to this decision, when a notice claiming partition is received by the addressee, it relates back and takes effect from the date of sending the notice. Therefore, if death takes place of the sender of the notice for division before it is communicated to the remaining members, then his interest would survive to the other members, and there would be no severance in status. The following passage from the judgment in AIR 1964 SC 136 would make the position clear:

'There are two ingredients of a declaration of a member's intention to separate. One is the expression of the intention and the other is bringing that expression to the knowledge of the person or persons affected. When once that knowledge is brought home -- that depends upon the facts of each case -- it relates back to the date when the intention is formed and expressed. But between the two dates, the person expressing the intention may lose his interest in the family property; he may withdraw his intention to divide; he may die before his intention to divide is conveyed to the other members of the family: with the result, his interest survives to the other members.'

The evidence in this case leaves no room for doubt that Kunhikutty Ali died before the intention to separate had been communicated to the karnavan of the tarwad. There could have been therefore no severance in status so far as he is concerned, and the appellants are therefore not entitled to any share.

10. There is no substance in the memorandum of cross-objections filed by the respondents 3 and 7 to 9 raising the contention that the suit should have been dismissed since the plaintiffs have been found not entitled to any share-It is well-settled that in a suit for partition, the Court has discretion to transpose any defendant as a plaintiff and grant reliefs. Even though the plaintiffs in the suit have been found not entitled to any share, the lower appellate court has granted a decree in favour of the defendants for partition and separate possession. I am unable to see anything illegal or improper in the action of the lower appellate Court in having granted a decree for partition. I am not inclined to interfere with the discretion exercised by the lower appellate court in this respect. The cross-objections also therefore has to fail.

In the result, second appeals 444 and 648 of 1966 are dismissed. So also the cross-objections in S. A. No. 444 of 1966. In the circumstances, I direct the parties to bear their costs.


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