Nambiath Karthiyani, [Died]* vs Nedumpullikkudi Lalitha

Sathish Ninan, J

The preliminary decree in a suit for partition is under challenge by defendants 1 and 2.

The plaintiffs are the sisters of defendants 2 and 3. The first defendant is their mother. She died pending the appeal.

The plaint schedule property belonged to Velayudhan, the predecessor-in-interest of the plaintiffs and the defendants - husband of the first defendant and father of plaintiffs and defendants 2 and

Plaintiffs are the daughters and defendants 2 and 3 are the sons.

The property originally belonged to Ikkoran, the father of Velayudhan. On his death, the property vested with Velayudhan as per a partition karar claimed to have been entered into on 17.06.1976. The title of Velayudhan is not in dispute.

Velayudhan died on 16.09.1999. When the plaintiffs claimed partition, defendants 2 and 3 claimed that the entire properties were given to them by Velayudhan under various assignments. The plaintiffs contend that the documents are not binding on them. It is accordingly that the suit is filed claiming partition.

The trial court held that the plaint schedule property is ancestral property and that the assignments are not binding on the plaintiffs; that the plaintiffs have not relinquished their right over the properties and that the documents are not binding on their interests. Accordingly, a preliminary decree for partition was passed.

I have heard Sri.S.K.Balachandran, learned counsel for the appellants and Sri.T.Sethumadhavan, the learned Senior Counsel for the respondents.

The point that arises for determination is :-

“Is the finding of the trial court that the plaintiffs have interest over the plaint schedule properties entitling them to claim partition, correct in law ?”

It is not in dispute that the properties originally belonged to Ikkoran, father of Velayudhan. Velayudhan obtained title over the same as per a partition karar entered into between the sons of Ikkoran on 17.06.1976. The first limb of the argument of the learned Senior Counsel is that, treating the properties as coparcenary property, in view of the amended Section 6 of the Hindu Succession Act, the female children are also coparceners. Thus the plaintiffs who were born prior to 01.12.1976 are also entitled for share in the property.

This Court has in Babu v. Ayillalath Arunapriya 2012 (4) KHC 445 held that, in Kerala, consequent on the Joint Family Abolition Act which came into force on 01.12.1976, joint family ceased to exist and that, the amended Section 6 which applies only to joint family surviving as on the date of coming into force of the amended provision, has no significance. Therefore, the argument based on Section 6 of the Hindu Succession Act (as amended on 5th September, 2005), fails.

It is next contended by the learned Senior Counsel that, in the written statement at paragraph 4 it is pleaded that the parties are Travancore Ezhavas. Section 32 of the Travancore Ezhava Act provides that the wife and daughters shall have equal shares in partition of the Makkathayam property. Therefore the plaintiffs are also entitled for share, it is urged.

“32. Makkathayam property divisible among wife and children equally.- Except where a contrary intention is expressed in the instrument of gift or bequest, if any, Makkathayam property acquired after the date of the passing of this Regulation shall be liable to be divided among the wife and each of the children in equal shares :

Provided that, in the partition of Makkathayam property, the issue how-low-so-ever of a deceased child shall be entitled to only such share as the child itself, if alive, would have taken.”

A reading of the above shows that it only declares the shares of the wife and children in the event of partition of Makkathayam property. The same has no application to the case at hand. Velayudhan had during his life time executed Exts.B6, B7, B8, B10, B11, B25 and B26 assignments and also Ext.B9 Will dealing with the properties.

Therefore, the plaintiffs failed to establish their right to claim partition. The trial court has not considered the aforesaid aspects. The decree and judgment of the trial court are thus liable to be interfered with.

Resultantly, the appeal is allowed. The decree and judgment of the trial court are set aside. The suit will stand dismissed. No costs.