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Kochukesavan and anr. Vs. Raman Padmanabhan and ors. - Court Judgment

LegalCrystal Citation
SubjectFamily;Property
CourtKerala High Court
Decided On
Case NumberSecond Appeal No. 10 of 1971
Judge
Reported inAIR1976Ker105
ActsMarumakkathayam Law; Transfer of Property Act, 1882 - Sections 54; Travancore Registration Act, 1087 - Sections 10(1); Evidence Act, 1872 - Sections 101
AppellantKochukesavan and anr.
RespondentRaman Padmanabhan and ors.
Appellant Advocate K.S. Paripoornan,; S. Hariharan and; P.K. Vargis, Ad
Respondent Advocate K. Sridharan,; P. Sukumaran Nair and; A.K. Chinnan,
DispositionAppeal dismissed
Cases ReferredIn Kali Kesavan v. Velayudhan Damoda
Excerpt:
.....deeds were invalid and not binding on them - appellants contended that tarward already attained status of division - whether tarward attained status of division by long cause of conduct - burden of proof of division on appellant - oral evidence by appellants unsatisfactory - mere separate payment of tax not sufficient to draw conclusion of division in status of tarward - intention of parties did not show that coparcenary ceased - appellants failed to prove tarward status of division. - - 4. in the appeal preferred by the plaintiffs against this decree and judgment, the learned subordinate judge on a consideration of the entire evidence repelled the contentions of the contesting defendants and found that they have miserably failed to show that, by a course of conduct, the four..........1, 21 and 66, who filed a joint written statement contending that thetarwad had already attained a status of division, years ago, that in pursuance of this division each branch was enjoying properties allotted to them separately and therefore the plaintiffs were not entitled to institute the suit as framed. they also maintained that ex. p-l is a valid partition deed.3. the trial court holding that the tarwad became divided by course of conduct, passed a preliminary decree allowing the plaintiffs and defendants 129 to 174 to divide their 1/4 share in the suit property.4. in the appeal preferred by the plaintiffs against this decree and judgment, the learned subordinate judge on a consideration of the entire evidence repelled the contentions of the contesting defendants and found that they.....
Judgment:

S.K. Kader, J.0

1. Defendants Nos. 21 and 66 in a suit for partition are the appellants. The subject-matter of the suit is 40 cents of land which admittedly belong to an Ez'hava tarwad, which consisted of four branches. The plaintiffs and defendants 1 to 174 are the members of this tarwad. The plaintiffs claiming 222/332 shares as belonging to their branch sought partition of the property by metes and bounds, ignoring Exs. P-l and P-2 which are two partition deeds. Defendants 1, 21 and 66 executed a partition deed, the copy of which is Ex. P-l, on 5th May, 1965 dividing the suit property into four equal shares. On the basis of this partition deed, on May 14, 1965 defendants 21 to 57 executed another partition deed Ex. P-2. Plaintiffs contended that they are not parties to these partition deeds and that these documents are invalid and not binding on them, the properties and the other members of the tarwad which remained undivided.

2. The suit was contested by defendants 1, 21 and 66, who filed a joint written statement contending that thetarwad had already attained a status of division, years ago, that in pursuance of this division each branch was enjoying properties allotted to them separately and therefore the plaintiffs were not entitled to institute the suit as framed. They also maintained that Ex. P-l is a valid partition deed.

3. The trial Court holding that the tarwad became divided by course of conduct, passed a preliminary decree allowing the plaintiffs and defendants 129 to 174 to divide their 1/4 share in the suit property.

4. In the appeal preferred by the plaintiffs against this decree and judgment, the learned Subordinate Judge on a consideration of the entire evidence repelled the contentions of the contesting defendants and found that they have miserably failed to show that, by a course of conduct, the four branches of the tarwad attained a status of division. The decree and judgment of the trial Court were modified to that extent.

5. Attacking the decree and judgment of the first appellate Court, the learned advocate appearing for the appellants contended that the lower appellate Court seriously erred in holding that the tarwad had not attained a status of division by long course of conduct,

6. Therefore the only point that arose for consideration and which was urged on behalf of the appellants was whether the tarwad of the plaintiffs and defendants had attained a status of division by a long course of conduct. Relying on Exs. D-2, D-3 and D-4, the learned advocate for the appellants strongly contended that it is clear from these documents that there was a division of status in the tarwad, that thereafter each branch was separately enjoying the 10 cents of land allotted to them paying revenue, that there was subsequent division in the branch of the 1st plaintiff of the 10 cents into two halves and that thereafter the 1st plaintiff was paying revenue for his 5 cents and that in any view these circumstances coupled with certain admissions made by the 1st plaintiff, in his evidence, will lead to the irresistible conclusion that the tarwad attained a status of division by long course of conduct. In both the Courts below, tine appellants were placing main reliance on Ex. D-4 in support of their contention in this regard. A reading of the judgment of the trial Court shows that it was mainly relying on Exhibit D-4 coupled with Exs. D-l and D-2 that the trial Court came to the conclu-sion that there was a division of status as alleged by the defendants.

7. Before considering the scope and effect of the documents, it will be useful and desirable to refer to the question of law on the point. In a decision reported in Kuriakko v. Ouseph, 1963 Ker LT 61 = (AIR 1963 Ker 354) a Division Bench of this Court held:

'We do not consider it proper to assume that the seniormost member of a tavazhi is competent to represent the tavazhi when the division is among the tavazhies, merely because the karanavan is its head, manager and mouthpiece'.

'The fact that the division is among the tavaahies only and not among the individual members does not make any difference, so far as the power of representation is concerned because the integrity of the tarwad is destroyed and the status and rights of individual members are affected in either case. These do not come within the power of management of the karnavan of the tavazhi'.

Therefore the respective seniormost members of the different tavazhies of an undivided tarwad by themselves cannot effect a division among the tavazhies. Relying on the decision of a Full Bench of the erstwhile Travancore High Court, the Division Bench also observed that it is settled law that the consent of all the adult members is necessary for partition of a tarwad. Discussing the case law on the point after referring to a number of decisions, a learned Single Judge of this Court in the case reported in Balakrishnan Nair v. Parameswaran Pillai, (1961 Ker LT 77) observed:

'Separate enjoyment of property or separate payment of tax by different branches of a marumakkathayam tarwad will not per se be sufficient to lead to the conclusion that the branches intended to remain separate in interest from each other. There should be some definite act or transaction on the part of the representatives of the different branches which would indicate beyond doubt their settled intention to conduct themselves as members of divided branches. The mere execution of documents by individual members asserting their right to their separate shares in the tarwad properties will not result in a legal and valid division of the tarwad properties or in the several members attaining a divided status even if such assertion is made by the vast majority of the members of the tarwad'. In Kali Kesavan v. Velayudhan Damoda-ran, (1962 Ker LT 349), following some earlier decisions of this Court, Raman Nayar, J., as he then was, held: '

'The feet that patta is in the name of two members of a family is by no means an indication that the two members represented divided branches thereof'.

'If a state of division has to be inferred from a transaction that transaction must be one in which the branches or the recognised heads of the branches have taken part. Further the transaction must be one that can be taken to be approved by all the adult members of both branches by the surrounding circumstances and by their not having tried to set it aside for a reasonably long period'.

8. I shall now consider the contentions raised on behalf of the appellants in the light of the evidence on record and the principles stated in the decided cases. Let us first take Ex. D-4 for consideration. The learned advocate appearing for the respondents strongly objected to the use of this document for any purpose, as this is clearly inadmissible in evidence being an unregistered document. The marking of this document was objected to before the trial Court and it was overruling this objection that the same was marked. Ex. D-4 styled as a sale deed (words in Malayalam omitted -- Ed.) is seen to have been executed by one Ummini Perumal and three others on 20th Kumbam 1090 in favour of two persons by name Krishnan Marthan and Kali Kochupennu. Under this document, a building described therein is assigned for a total consideration of Rs. 28/- in favour of the two persons mentioned above. It has come out in evidence that one of the persons in whose favour this document was executed is none other than the first defendant. This is an unregistered document. The trial Court found that it was not compulsory to register this document, as the value of the property was less than Rs. 100/-. How the trial Court came to this conclusion is not known and also not clear from the judgment. No doubt the Registration Act of 1908 was not applicable to this area where the document was executed during the relevant period. But it is not disputed that the Travancore Registration Regulation, 1087, (Regulation II of 1087), hereinafter called the Regulation, was in force during this period and it was applicable to the area where the document was executed. Under Section 3 of the Regulation, immovableproperty has been defined and this includes land, buildings, etc., etc. Under Section 10(1) (a) of the Regulation, irrespective of the value of the immovable property, any non-testamentary instruments which purport or operate to create, declare, assign, limit, extinguish or surrender, whether in present' or in future, any right, title or interest, whether vested or contingent, to or in immovable (property shall be registered. The learned advocate for the appellant contended that though the Transfer of Property Act, 1882 was not applicable to the State of Travancore at the material time, the principles underlying the provisions therein were being followed on the principle of equity, justice and good conscience and inviting my attention to Section 54 of the Transfer of Property Act, the counsel argued that the transaction in question being one in respect of a property of a value of less than Rs. 100/-, there was no necessity for registering the document. Regulation II of 1087 was a valid law which was in force at the material time and the parties to the document were bound by this; There is therefore no question of the applicability of the principle underlying Section 54 of the Transfer of Property Act. Alternatively, the learned advocate argued that Ex. D-4 may be construed as an instrument which acknowledged the receipt of the price of the building which was disposed of. It is made clear under Section 10 (1) (b) of the Regulation that a non-testamentary instrument Which acknowledges the receipt or payment of any consideration on account of the creation, declaration, assignment, limitation, extinction or surrender of any such right, title or interest is also compulsorily registr-able. In any view, therefore, Ex. D-4 which is not registered, cannot be admitted in evidence in proof of sale of the building. The counsel appearing for the respondents also pointed out that this document has not been properly proved. The witness who was examined to prove this document was D. W. 1, the 66th defendant, who is a member of one of the branches of the executants of Ex. D-4. He has deposed that he produced the document before his advocate, that he has no direct knowledge of the execution or the contents of the document, that he does not know who wrote the document and he cannot identify the signatures of the executants therein. He further stated that he produced the document in the Court, that the first defendant is the seniormost member in the tarwad, that he is one of the executants of Ex. D-4 and that thefirst defendant was alive at the time of his examination and he was in a position to attend the Court and give evidence, (words in Malayalam omitted -- Ed.) But the first defendant did not choose to go into the witness box and swear in support of this document. No explanation was forthcoming why the first defendant was not examined. It may also be noted that the recitals in Ex. D-4 cannot be construed to be inconsistent with the case put forward by the plaintiffs. There is no reference to any prior partition and of severance of status in Ex. D-4. The learned counsel for the respondents submitted that even if it is assumed for the sake of argument that the document is admissible, the statements therein are not inconsistent with the interests of the tarwad. Ex. D-4 is a document executed only by the karnavans of three branches. Nobody (has a case that all the adult members of the tarwad have joined Ex. D-4. It is an undoubted proposition of Ma-rumakkathayam law that for partition of tarwad properties there must be the consent of all the adult members of the tarwad. I have already referred to and discussed Ex. D-4 and I find it difficult to conclude from this document, even if it is assumed for the sake of argument that it is admissible in evidence, that there was a division of status as claimed on behalf of the appellants. The defendants do not state in their written statement even the year or the period when there was a partition or a severance of status. It cannot be ignored that a specific plea that tine tarwad had attained a status of division by course of conduct is lacking in the written statement, though on a reading of the statement as a whole such a plea can be indicated. It is the common case that the suit property belonged to a Marumak-kathayam tarwad. The burden of proving that the tarwad attained a status of division by course of conduct, is on the appellants who had raised the plea before the Court. The remaining documents are Exs. D-2 and D-3. Ex. D-2 is a chitta and this has been produced to show that the patta stands in the name of four persons who are said to be respectively the karnavans of the four branches. The total extent of the property shown in this document is only 35 cents. Ex. D-3 is a certified copy of Thandapper Account No. 55/35. Relying on this, it was argued that this document will show that each sakha was separately paying revenue in respect of 10 cents of property allotted under the oral partition, and that the first plaintiff also has paid land revenue in res-pect of 5 cents, after the division of 10 cents which was allotted to his branch. It was in this connection that the learned advocate for appellants invited my attention to certain statements made by the first plaintiff as P. W. 1 during his cross-examination, which according to him, constituted an admission by the witness that the person who paid revenue in respect of the five cents referred to in Exhibit D-3 was none other than himself. The relevant portion was brought to my notice. But I am unable to find or read in these statements any such admission. On the other hand, this witness has denied the payment of any such tax.

9. The oral evidence adduced in support of the case of the defendants is not at all satisfactory and has been dealt with in detail by the first appellate Court. The mere fact that some of the branches or some of the members were making separate payments of tax under joint patta or different payments of revenue were made by different branches or different persons under the common patta will not be sufficient to draw a legal inference and come to an inevitable conclusion that there was a division of status in the tarwad. The enjoyment of separate portions of property by members is not inconsistent with the joint status of the tarwad. What matters and what is important is the intention of the parties. The members of a coparcenary must intend that their condition as coparceners shall cease. It is not sufficient that they should alter the mode of holding their property. They must alter and intend to alter their title. On a consideration of the documents and the oral evidence, to which my attention has been invited by the counsel appearing for the parties, in the light of the law on the point, it cannot be said that the appellants have succeeded in proving or showing that by a long course of conduct, the four branches which constituted the tarwad attained a status of division.

10. This appeal therefore fails and is hereby dismissed Both the Courts below, directed the parties to suffer the costs. In the circumstances, I do not make any order as to costs.


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