KIZHAKKE VATTAKANDIYIL MADHAVAN Vs. THIYYURKUNNATH MEETHAL JANAKI

JUDGEMENT

(1.) The present appeal arises out of a suit for partition instituted by one Thiyyer Kunnath Meethal Chandu (Chandu) claiming 8/20 shares in the suit property described in the schedule to the plaint as "Kizhake vattakkandy enha Pattayathil perulla Asarikandy pasramba, 6 feetinu ki-pa 37, the-va 35". The appellants before us were the defendants in the said suit, and are successors-ininterest of one Sankaran. The latter and Chandu are uterine brothers, both being the sons of one Chiruthey, who was married twice. Her first husband was Madhavan, within whose wedlock Sankaran was born. Madhavan passed away sometime before the year 1910, though the exact year of death has not been specified in the pleadings nor it has appeared in evidence. After Madhavan's death, Chiruthey contracted second marriage with Neelakandan, who was the father of Chandu.

(2.) The suit property is situated in survey no. 56/8 in the village Eravattur in the district of Kozhikode, State of Kerala. The parties belong to Malayakamala Sect. The succession law guiding their inheritance applicable before Hindu Succession Act, 1956 that became operational was the modified form of Mitakshara law applicable to the Makkathayees. But this factor is not of much relevance for adjudication of the present appeal. Though the suit was instituted in the year 1985, to trace the source of claim of the plaintiff, one has to trace the title of the property. In the last year of the 19th Century, (i.e. 1900) as it has transpired from evidence adduced in course of the trial, the owners of the property appear to be Madhavan and he, along with his mother Nangeli had executed a deed of mortgage (Ext. B1 in the suit) on 7/5/1900 in favour of one Nadumannil Anandhan Kaimal, son of Cheriya Amma Thamburatti in relation to the subject-property. As we find from the judgment of the High Court which is assailed in this appeal, the mortgage deed itself recorded that possession of the property was not given to the mortgagee. The plaintiff claims his share to the suit property from his mother, described in the plaint as owner of the property, Chiruthey. We must point out here that the plaintiff also had passed away during the pendency of first appeal and before us are his successors-in-interest who are representing his claim of share as the respondents. Those impleaded as defendants in the suit which was registered as OS No. 157/1985 in the Court of Munsiff Magistrate, Perambra were successors in interests of said Sankaran.

(3.) Apart from Exhibit B-1, three other deeds were considered by the respective fora before this appeal reached us. There is a deed marked Exhibit A-20, which is described as Kannan Kuzhikanam deed, executed on 14/7/1910 by Chiruthey, Nangeli (mother of Madhavan) and Sankaran (Chiruthey's son) in favour of Cherupula Othayoth Cheriya Amma and her son, Achuthan. On behalf of Sankaran, who was a minor at that point of time, Chiruthey executed the deed. This was in the nature of a deed of lease. Achuthan was also a minor at that point of time, and the said deed records Cheriya Amma to whom the property was being leased, for herself and her minor son.