1. This appeal has been filed at the instance of the 2nd defendant in O.S.No.809/2012 on the files of the Principal Sub Court, Irinjalakkuda. Respondents are the plaintiff and other defendants.

2. Heard the learned counsel for the appellant/2nd defendant and the learned counsel appearing for respondents 1, 3, 4 and 5 who are the plaintiff, defendant Nos.1, 3, 4 and 7 in the suit.

3. The parties in this appeal will be referred to as 'plaintiff' and 'defendants' with reference to their status before the trial court hereafter for easy reference.

4. The short facts are as under;

The plaintiff, who is the son of late Parukkutty Amma, instituted the suit claiming partition of the plaint schedule property, contending that the same is a property obtained by late Parukkutty Amma, as the sixth party in partition deed No.808/1959 of Nelayi SRO, as 'F' schedule thereon. After the execution of the partition deed, Sankarankutty also was born and thereafter on 03.05.2006, Parukkutty Amma died. According to the plaintiff, since the parties are Hindus governed by the Hindu Succession Act, the plaint schedule property is liable to be partitioned in between the plaintiff and defendants. Accordingly, the plaintiff and defendants 1 to 7 would get 1/9th share each and defendants 8 to 10 together would get 1/9th share.

5. The suit was strongly resisted by defendants 2, 8, 9 and 10. The main challenge raised in their written statement is that the 'F' schedule property, as per partition deed No.808/1959 relied on by the plaintiff, is tharavad property governed by Marumakkathayam law. According to defendants 2, 8, 9 and 10, Sethumadhavan, Geetha and Sindhu are the children born to Gangadevi, the 2nd defendant/appellant herein, before 01.01.1976. Therefore the property, being tharavad property governed by Hindu Marumakkathayam law, will be partitioned among the plaintiff, defendants and the children of the 2nd defendant born before 01.12.1976. Accordingly, it was contended that the suit is bad for non-joinder of necessary parties. According to defendants 2, 8, 9 and 10, the property is liable to be partitioned into 15 shares and thereby the plaintiff would get 1/15th share and others would get 1/15th share each.

6. The trial court addressed the contentions and raised necessary issues. PW1 was examined and Exts.A1 to A5(b) were marked, on the side of the plaintiff. DW1 was examined on the side of the contesting defendants. Finally, the trial court negated the contentions raised by defendants 2, 8, 9 and 10 and held that the plaint schedule property is not tharavad property and therefore, Marumakkathayam law would notapply. Accordingly, preliminary decree of partition has been passed as under;

1. The plaint schedule property shall be divided into 9 equal shares by metes and bonds.

2. The plaintiff is entitled to get 1/9th share in the plaint schedule property.

3. Defendants 1 to 7 are entitled to get 1/9th share each in the plaint schedule property.

4. The defendants 8 to 10 being the children of late Sreedevi are jointly entitled to get 1/9th share in the plaint schedule property.

5. The plaintiff as well as the defendants are entitled to apply for passing a final decree.

6. The plaintiff is entitled to get the costs of the suit.

7. The plaintiff is entitled to get share of income and its quantum can be decided in the final decree proceedings.

8. The suit is adjourned sine die.

7. According to the learned counsel for the 2nd defendant, the recitals in Ext.A2 partition deed No.808/1959 would show that the entire properties are tharavad properties. He has given emphasis to the description in another partition deed No.237/1095, which describes the property as tharavad property. In this matter, as pointed out by the learned counsel for the plaintiff and other defendants, in the 'F' schedule of Ext.A2, the property allotted to Parukkutty Amma, the sixth party in the partition deed, is described as property in Survey No.590/2 in Sale Deed No.2781/1119. A copy of sale deed No.2781/1119 is marked as Ext.A1, and as per the recitals in Ext.A1, it can be gathered that the above said property was purchased in the name of Gopalan Nair and Pappi Amma, who is the wife of Gopalan Nair. Pappi Amma is the mother of Parukkutty Amma. In Ext.A1, the sale consideration for the property covered by Ext.A1 is stated as Rs.2,000/- paid by Gopalan Nair and Pappi Amma. It is true that no specific narration is shown in Ext.A2 regarding the derivation of property in 'F' schedule, though the other properties are described as properties covered by partition deed No.237/1095. But the description of 'F' schedule is stated in the schedule itself and the same would show that this is a property covered by Ext.A1 purchased in the name of Gopalan Nair and Pappi Amma for a total consideration of Rs.2,000/- paid by them.

8. While canvassing that the entire properties covered by Ext.A2 are tharavad properties governed by Marumakkathayam law, so that all the children born before 01.12.1976 to the children of Pappi Amma are also entitled to shares in the property, the learned counsel for the 2nd defendant placed decision of this Court reported in [2017 KHC 789] : Changaroth Lakshmi Amma and Others v. Mohan Kumar and Others, with reference to paragraph Nos.16 and 18, where this Court considered a case where the properties were alleged to be tharavad properties. In paragraph Nos.15 to 18, this Court observed as under;

15. The case of the plaintiff in the plaint was that plaint B schedule property was part of thavazhi property known as Alankottu Thekke Puthukkudi thavazhi of Pennuttiamma and others and as per Ext.A4 partition deed, the properties were partitioned between Pennuttiamma and her brothers and her daughter Kunhamma Amma and children of Kunhamma Amma, who are defendants 1 to 6. The plaint schedule property was jointly allotted to combined share of Kunhamma Amma and defendants 1 and 6 who are her children and executants in Ext.A4 partition deed as a unit constituting a sub thavazhy and thereby they are entitled to get share in the property. This was denied by the defendants and according to them, it was not a tharavad partition and the property never treated as tharavad properties and the property was allotted to three persons jointly and they have taken it as coownership property. They partitioned the same as per Ext.X1(a) partition deed dated 1.8.1972 and thereafter Kunhamma Amma assigned her share allotted to her to the 6th defendant as per Ext.X2 assignment deed dated 05.12.74 and the first defendant assigned her share to defendants 10 and 11 as per Ext.B20 assignment deed. Thereafter purchase certificate was obtained by the 1st defendant and 6th defendant for the properties allotted to them as per Ext.B19 and Ext.X1(b). So the plaintiff is not entitled to get any right.

16. It is true that in Ext.A4 partition deed, it was not mentioned that it is a tharawad partition or the property belonged to the tharawad. But it may be mentioned here that the properties were partitioned among Pennuttiamma, her brothers and her children and grand children in female line and that was how the property was partitioned and plaint B schedule property in that partition deed was allotted to a group consist of Kunhamma Amma and defendants 1 and 6 as a unit constituting a sub thavazi. Further it will be seen from Ext.A3 that the members of the tharawad or the said thavazhi claimed that the property did not belong to Pennuttiamma alone but it is a joint family property and a claim petition was filed in an execution petition wherein this property was attached for realization of the amount due from Pennuttiamma and that claim petition was allowed. It is thereafter that the partition was effected in 1952. So it is clear from the conduct of the parties that it was intended to be given to a unit constituted a sub thavazhi and thereby it acquired the status of a joint family property.

17. In the decision reported in Mary v. Bhasura Devi [1967 KHC 172] = [1967 KLT 430] the full bench of this Court held that the nature of presumption that the property got by the female member in her tharavad partition should enure the benefit of her children, is much stronger than in the case of property given to her by her husband. Therefore under Marumakkathayam law, subsequently conceived child gets a right by birth in the property obtained by the mother for her separate share in the partition of the tharawad. It is further held that for creation of ancestral property, there need not be any coparcenary or joint family. Marumakkathayam law is only a body of custom and usage which have received judicial recognition and not a school of Hindu law. So it is clear from the above dictum that whenever a property has been obtained by a female member in a partition, which is having a characteristic of ancestral property, then subsequently born children will get right in the property.

18. Further, under the Marumakkathayam law, if a unit consist of all members having a common ancestor and her descendants, then it will assume the character of a thavazhi and subsequently born children of the female members who constituted the thavazhi will get right in the property by birth till 1.12.1976 when Kerala Joint Hindu Family System Abolition Act came into force. By virtue of the above said enactment as on that date, the right of the parties is to be crystallised and from that day onwards the members of the Marumakkathayam thavazhi will become co-owners and there will be deemed to be a partition as on that date. So under such circumstances, and also from the evidence available on record, courts below were perfectly justified in coming to the conclusion that plaint B schedule property is a property obtained by a thavazhi of Kunhamma Amma and her children and subsequently born children of female members in that group will get right in the property by their birth and children born upto 1.12.1976 will be entitled to get share in the property by virtue of their right of birth in that thavazhi.

9. In the above decision, this Court considered Ext.A4 partition deed in the said case and found that the properties therein were partitioned among Pennuttiamma, her brothers and her children and grandchildren in female line and also the property was allotted to Kunhamma Amma and defendants 1 and 6 therein as a unit/a group constituting a sub thavazhy while holding that the property therein was having the characteristic of ancestral property, and therefore, the subsequently born children would get right in the property.

10. The trial court relied on the decision reported in [2014 KHC 16] : Gopalakrishnan Nair and Another v. Sethukutty Amma and Others to negate the contentions of defendants 2, 8, 9 and 10. In this decision, after referring the earlier decision of this Court, this Court held that in the said case, there were no incidence of joint family property or tharavad property and there is no presumption in Marumakkathayam law that when individual members are allotted properties towards their separate share in the partition of her father's properties such properties are thavazhi properties in their hands. The property inherited by a Nair Marumakkathayee by virtue of partition of the self acquired property of her father could not be treated as a tharavad property enabling her female descendants to claim right over the property.

11. In the instant case, the dispute centers on the nature of the 'F' schedule property covered by Ext.A2. Even though it is argued by the learned counsel for the 2nd defendant relying on Ext.A1 that the 'F' schedule property also is a tharavad property for which all the members of the tharavad who were born on or before 01.12.1976 are entitled, it could be gathered from Ext.A2 that 'F' schedule property is a property obtained by Gopalan Nair and Pappi Amma on the strength of Ext.A1 sale deed as their separate properties. It is relevant to note that the one and only piece of material relied on by the learned counsel for the 2nd defendant to contend that F schedule in Ext.A1 is tharavad property is the recitals therein. In fact, in the recitals, F schedule property's derivation is from Ext.A2 the sale deed whereby Gopalan Nair and Pappi Amma purchased the same by paying sale consideration by themselves. Therefore, Ext.A1, in no way, describes 'F' schedule as a tharavad property governed by Marumakkathayam law. It is relevant to note that in order to see a tharavad property, the materials available would show at least the incidence of a tharavad and the property as that of the tharavad. It is the settled law that community interest, unity of possession, right by birth and survivorship are the incidence of joint family property whether of a Marumakkathayam tharavad or a mitakshara coparcenery. In order to find out the existence of tharavad, the above characteristics should be established. In the instant case, nothing established to see the incidence of tharavad and tharavad property and 'F' schedule is a property purchased by Gopalan Nair and Pappi Amma as per Ext.A1. It is important to note that in the written statement, a contention was raised by defendants 2, 8, 9 and 10 that Sethumadhavan, Geetha and Sindhu were born prior to 1976, but their age not specifically disclosed in the written statement, though they are the children of the 2nd defendant, who is well aware of those details. Similarly, in the written statement, even though it is contended that the property to be partitioned into 15 shares in between the sharers other than the plaintiff and defendants (9 sharers) and Sethumadhavan, Geetha and Sindhu (3 sharers). If the contentions raised by defendants 2, 8, 9 and 10 are accepted, two more sharers also there, but defendants 2, 8, 9 and 10 have not disclosed their names. In view of the discussion, it could not be held that the contentions raised by defendants 2, 8, 9 and 10 to the effect that there is a tharavad and the plaint schedule property is a tharavad property, negating the findings of the trial court. Therefore, the trial court rightly granted partition allotting 1/9th share to each and the said verdict does not require any interference.

12. In the result, the appeal found to be meritless and is dismissed and the matter stands adjourned sine die. 

13. The interim stay granted in this case shall stand vacated.

14. All pending interlocutory applications shall stand dismissed accordingly.

15. The parties herein now are free to file final decree application before the trial court or else they can continue with the final decree proceedings, if any, already pending.

Registry is directed to forward a copy of this order to the trial court for information.