KANDU Vs. KOCHI

JUDGEMENT

(1.) Some of the defendants in the suit have brought this appeal after obtaining certificate under Article 133 (1) (a) of the Constitution. The suit was brought by one Kochi for partition and possession of an half share in the suit properties on the strength of her title to the same. Her case was that the suit-schedule properties were owned by two brothers by name Ittiri and ittaman; each one of them had a hall share of those properties; they were tenants in common; after the death of Ittiri she became entitled to his share. The suit was resisted by the defendants on two grounds namely, (1) that the plaintiff had no title to the suit properties and (2) that even if she had any title, it was lost by ouster. The trial court accepted the defendants' case and dismissed the suit. In appeal the High court of Kerala partly allowed the plaintiff's claim. It came to the conclusion that in respect of some of the items mentioned in the plaint-schedule, Ittiri and lttaiman were co-owners and Ittiri's share after his death devolved on the plaintiff. As regards the other properties included in the plaint-schedule, the High court came to the conclusion that they were of the exclusive ownership of Ittaman. Therefore the plaintiff cannot claim any share therein.

(2.) Aggrieved by that decision some of the defendants have brought tins appeal.

(3.) We shall first take up the question as to the plaintiff's title to the properties decreed in her favour by the High court. It was not disputed before us that Ittiri and Ittaman were co-owners of those properties during their life time. It was also not disputed that Kochi, the plaintiff in the suit was the daughter of Ittiri through his wife Kunji but her claim is resisted on the ground that she had an elder brother by name Ayyappankutty at the time of the death of her father and therefore Ittiri's share devolved on Ayyappankutty. Hence the plaintiff is not entitled to claim the same. The essential question for decision is whether Ayyappankutty was the brother of the plaintiff. The plea advanced on behalf of the defendants is that Ittiri and his brother ittaman had a common wife by name Kurumba and through her the two brothers got a son by name Ayyappankutty. Sometime after the birth of ayyappankutty, Ittiri took Kunji as his wife. Thereafter Kurumba became the exclusive wife of Ittaman. Hence Ayyappankutty was the common son of Ittiri and Ittaman. That being so under the customary law governingthe parties, Ayyappankutty was the sole heir to the estate of Ittiri. The plaintiff denied these allegations. According to her Kurumba was not the wife of Ittiri. She was the wife of Ittaman and therefore Ayyappankutty was not the son of Ittiri.