Radha Amma And Another v. C. Balakrishnan Nair And Others

B.P Singh, J.— This appeal by special leave is directed against the judgment and order of the High Court of Kerala at Ernakulam in AFA No. 103 of 1992 whereby a Division Bench of the High Court while setting aside the concurrent findings recorded by the courts below partly allowed the appeal. While confirming the preliminary decree for partition in respect of properties at Items 1 to 7 and 17 to 20 of the suit properties, it modified the preliminary decree for partition so far as it related to Items 8 to 16, and setting aside the decree granted by the trial court and confirmed by the learned Single Judge, passed a preliminary decree for partition of those items into four shares and directed allotment of one out of four shares each to Defendants 1, 2, 3 and 4 only.

2. The facts necessary for the disposal of this appeal are the following:

One Narayanan Nair and his wife Cheethamma had 3 daughters, namely, Bhargavi (Defendant 1), Kalliyanikutty and Lakshmikutty. In the instant appeal we are only concerned with the branch of Bhargavi, the eldest of the daughters. She had 2 sons, Defendants 2 and 3 and a daughter, Defendant 4. Her daughter, Defendant 4 had 5 daughters and 3 sons, who were Defendants 5 to 11 in the suit, the youngest daughter being the plaintiff. The daughter, Defendant 5 had 3 daughters, namely, Defendants 12 to 14 while the plaintiff had one daughter who was Plaintiff 2 in the suit. The parties were governed by Marumakkathayam law. The plaintiffs filed a suit for partition claiming 3/17th share in the family properties. The family properties consisted of 3 sets of properties. Items 1 to 7 were the family properties inherited by the grandmother of the plaintiffs, on partition. Items 8 to 16 were taken on lease on 9-6-1943 from the family of the 15th defendant for a sum of Rs 100. The third set consisted of the properties shown as Items 17 to 20 in the schedule to the plaint which were taken on lease from the family of the 16th defendant. In the instant case we are really not concerned with the suit schedule properties Items 1 to 7 and 17 to 20. The dispute is only in relation to Items 8 to 16 of the suit schedule properties. The plaintiffs claimed 3/17th share in the suit property, which included the share of the child in the womb of the second plaintiff. Since Marumakkathayam law provided for devolution of interest per capita, each member of the thavazhi was entitled to share equally. In this manner Defendant 2, who was the real contesting defendant, was also entitled to only one share out of 17.

3. The plaintiffs were supported by the remaining defendants except Defendant 2. The aforesaid Defendant 2 pleaded that so far as properties shown as Items 8 to 16 in the plaint were concerned they were his self-acquired properties and were not thavazhi properties. Thus, Items 8 to 16 belonged exclusively to him and the remaining defendants as well as the plaintiffs had no partible interest therein.

4. Defendant 2 also pleaded that he was never Karanavan of the thavazhi and that he was never in the management of the family properties. Thus he acquired the properties at Items 8 to 16 out of his own self-earnings which were wholly unrelated to the income of the family. The trial court framed the following issues in the suit:

“1. Whether Items 1 to 7 of ‘A’ schedule are thavazhi properties?

2. Whether D-2 had ever been in possession and management of Items 1 to 7 either as Karanavan on behalf of the thavazhi or on his individual behalf?

3. Whether Items 8 to 20 and 23 of ‘A’ schedule and the building in Item 15 belong to the thavazhi and are available for partition?

4. Whether ‘B’ schedule movables belong to the thavazhi?

5. What is the quantum of profits?

6. Whether the suit is bad for partial partition?

Additional Issue 7. Whether the 2nd defendant has any independent tenancy right over the plaint schedule Items 8 to 16 and 17 to 20?”

5. The relevant issues are Issue 3 and additional Issue 7.

6. The trial court held that the second defendant was in possession of the plaint schedule Items 8 to 16 properties as a thavazhi Karanavan and it was not taken on lease by the 2nd defendant in his individual capacity. Thus the claim of Defendant 2 to the aforesaid properties was denied by the trial court which passed a decree as prayed for by the plaintiffs. The court declared that the plaintiffs were entitled to get 3/17th share after partitioning the plaint schedule properties by metes and bounds. Defendants 1 and 3 to 14 were also entitled to 3/17th share and the second defendant was entitled to 1/17th share from the partible plaint schedule properties.

7. Defendant 2 preferred an appeal before the High Court of Kerala being AS No. 215 of 1989 which came up for disposal before a learned Single Judge of the High Court. It appears from the judgment of the learned Single Judge that the only point that arose for consideration before him was whether the appellant (second defendant) was the tenant of Items 8 to 16 of the plaint schedule properties. Having so formulated the question which arose for his consideration, the learned Judge held after appreciating the evidence on record that the leases were obtained in the year 1943 and in those days Rs 100 was a substantial amount and it was not probable that the appellant who was only a youngster in those days could have raised Rs 100 by way of loan. The evidence of DW 1 (mother of Defendant 2) which inspired confidence appeared to be convincing and probable. So the amount of Rs 100 paid by way of munpattam for acquiring plaint properties at Items 8 to 16 clearly supported the plaintiffs' contention that these items were acquired for the purpose of the thavazhi. Subject to certain modifications, with which we are not concerned, the appeal was disposed of by the learned Single Judge negativing the claim of Defendant 2.

8. An appeal was preferred by Defendant 2 which came to be disposed of by a Division Bench of the High Court. The High Court considered the evidence on record and came to the conclusion that at the time when Items 8 to 16 were taken on lease in the year 1943 Defendant 2 was a youngster about 15 years old. According to the evidence of DW 1 (mother of Defendant 2), a sum of Rs 100 which was paid to the erstwhile tenant for taking the aforesaid items on lease was taken for and on behalf of the thavazhi. The case of Defendant 2 was that these items were taken on lease in his individual capacity which did not find favour with the trial court and the learned Single Judge of the High Court. The Division Bench of the High Court did not approve of the view taken by the trial court and the learned Single Judge observing that the trial court and the learned Single Judge did not consider fully the clear evidence of DW 1 (mother of Defendant 2) that the consideration of Rs 100 proceeded from the funds provided by her husband. In view of the said statement made by DW 1, the leasehold over Items 8 to 16 would enure to the puthravakasam thavazhi of the first defendant and not to the entire thavazhi as such. If that be the correct legal position, the division has to be per stirps and not per capita in accordance with Section 48 of the Madras Marumakkathayam Act, 1932. The Division Bench of the High Court rejected the objection on behalf of the respondents before it that it was not open to Defendant 2 to raise the said contention at that stage. The Division Bench observed that the matter had been remanded for decision on the issue whether the leasehold belongs to thavazhi of Defendant 1 and hence available for partition, or it belongs to Defendant 2. The finding was rendered by the Land Tribunal that it belonged to thavazhi of Defendant 1 and the claim of Defendant 2 that he took them on lease for himself was found against him. But while deciding that the leasehold belongs to the thavazhi of the first defendant, the question has to be necessarily asked as to how the property has to be divided in terms of the law governing the parties. The Division Bench held that the provisions of Section 48 of the Madras Marumakkathayam Act provided that when a property is acquired by a male in the name of his wife and children, the same would enure to the puthravakasam thavazhi of the wife and children and it has to be divided per stirps and not per capita. The High Court was of the view that since the question as to whether the leasehold belonged to the thavazhi was directed to be decided by the lower court on remand, it must be held that this Court left it to the trial court to decide the nature of the acquisition of the property and the shares to be allotted to the respective sharers. Thus, having found that the leasehold belonged to the puthravakasam thavazhi of Defendant 1, the Court directed that the decree for partition of Items 8 to 16 be modified and held that only Defendants 1, 2, 3 and 4 were entitled to equal shares in those properties. The appeal was, therefore, allowed to that extent.

9. Shri T.L.V Iyer, learned Senior Counsel appearing on behalf of the appellants before us submitted that the High Court has committed two clear errors. Firstly, the question as to whether the leasehold of properties comprised in Items 8 to 16 belonged to the puthravakasam thavazhi of Defendant 1 was a question which did not arise for consideration at all. The case of the plaintiffs was that the leasehold belonged to thavazhi of Defendant 1 whereas Defendant 2 contended that the leasehold did not belong to the thavazhi at all, since they were his self-acquired properties from his own earnings. Secondly, he submitted that the High Court was in error in holding that in the facts and circumstances of the case Section 48 of the Madras Marumakkathayam Act, 1932 applied.

10. On the other hand learned counsel appearing for the respondents conceded that the question as to whether the leasehold lands belonged to the puthravakasam thavazhi, was not pleaded by the defendant. His plea was that he had himself acquired those properties out of his own earnings and therefore those properties did not relate to the thavazhi of Defendant 1 and belonged to him exclusively in which the plaintiffs and other defendants had no partible interest. He further submitted that the High Court having found in favour of Defendant 2, this Court should not interfere in the interest of justice because Defendant 2 otherwise will get only 1/17th share in the thavazhi properties, whereas that share would be enhanced if Items 8 to 16 of the plaint schedule properties are divided per stirps and not per capita.

11. Section 48 of the Madras Marumakkathayam Act, 1932 deals with property which is commonly known as “puthravakasam”. Section 48 reads as follows:

“48. Where a person bequeaths or makes a gift of any property to, or purchases any property in the name of, his wife alone or his wife and one or more of his children by such wife together, such property shall, unless a contrary intention appears from the will or deed of gift or purchase or from the conduct of the parties, be taken as thavazhi property by the wife, her sons and daughters by such person and the lineal descendants of such daughters in the female line:

Provided that, in the event of partition of the property taking place under Chapter VI, the property shall be divided on the stirpital principle, the wife being entitled to a share equal to that of a son or a daughter.”

12. So far as the first submission is concerned it is not disputed before us that the question as to whether those items, namely, Items 8 to 16 belonged to the puthravakasam thavazhi, never arose for consideration in the suit or in the appeal. Defendant 2 never raised such a plea. No such issue was framed. Neither any evidence was recorded on this aspect of the matter, nor were the courts called upon to record a finding on that question. This position is not disputed by the counsel appearing for the respondents. If such be the legal and factual position, we find no justification for the High Court to interfere in appeal and modify the decree of the courts below on a question which did not arise for its consideration. As we have observed earlier, the case of the plaintiffs was that the entire suit lands belonged to the thavazhi of Defendant 1. The plaintiffs were supported by all the defendants except Defendant 2. The plea of Defendant 2 which was at variance with the case set up by the plaintiffs and other defendants was that the leasehold properties Items 8 to 16 of the plaint were his self-acquired properties and, therefore, not partible. The case of Defendant 2 was not accepted by any of the courts including the High Court in appeal. Having accepted the plaintiffs case and rejected the claim set up by Defendant 2, the High Court had no option but to decree the suit in its entirety.

13. So far as the argument based on Section 48 is concerned, on a plain reading of the said section it is clear that it provides that where a person bequeaths or makes a gift of any property to, or purchases any property in the name of his wife alone or in the name of his wife and one or more of his children by such wife together, such property shall, unless a contrary intention appears from the will or deed of gift or purchase or from the conduct of the parties be taken as thavazhi property by the wife, her sons and daughters by such person and the lineal descendants of such daughters in the female line. Thus there are three types of properties within the contemplation of Section 48, namely, property purchased by a person, gifted by a person, or bequeathed by a person, in favour of his wife alone or in favour of his wife and one or more children, etc. The main part of Section 48 provides that unless a contrary intention appears from the will or deed or gift or purchase or from the conduct of the parties, the properties shall be taken to be thavazhi property by the wife, her sons and daughters, etc. However, the proviso to Section 48 provides that in the event of partition of the property, the property shall be divided on the stirpital principle, the wife being entitled to a share equal to that of a son or a daughter.

14. It was rightly pointed out that in the instant case taking the facts as they are, the husband of Defendant 1 died in the year 1939. The leaseholds in question were taken in June 1943. It is no doubt true that Defendant 1 admitted in her deposition that she had acquired these leaseholds for the benefit of the thavazhi from out of the amount of Rs 1000 left with her by her deceased husband. The question remains as to whether a purchase by the wife of the deceased husband from out of the funds left behind by him is covered by the provisions of Section 48. It was submitted before us, and rightly, that before Section 48 could be applied it must be shown that the property was either bequeathed, gifted or purchased by a person in the name of his wife alone or in the name of his wife and one or more children together. That is not the case here. The father of the defendant having died long ago, the funds which were left with the mother must be deemed to be her property. In any case, there is no evidence to show otherwise. In these circumstances, though it is not necessary for us to go into this question, it is doubtful if Section 48 would have any application in the facts of this case.

15. We, therefore, allow this appeal, set aside the judgment and order of the Division Bench of the High Court and restore that of the learned Single Judge. There will be no order as to the costs.