RADHA AMMA Vs. C BALAKRISHNAN NAIR

JUDGEMENT

(1.) This appeal by special leave is directed against the judgment and order of the High Court of Kerala at Ernakulam in AFA No. 103/1992 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 Item Nos. 1 to 7 and 17 to 20 of the suit properties, it modified the preliminary decree for partition so far as it related to Item Nos. 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 No. 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 No. 4. Her daughter-defendant No. 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 No. 5 had 3 daughters, namely, defendants 12 to 14 while the plaintiff had one daughter who was plaintiff No. 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. Item Nos. 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 15th defendant for a sum of Rs. 100/-. The third set consisted of the properties shown as Item Nos. 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 Item Nos. 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 tavazhy was entitled to share equally. In this manner defendant No. 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 No. 2. The aforesaid defendant No. 2 pleaded that so far as properties shown as Item Nos. 8 to 16 in the plaint were concerned they were his self-acquired properties and were not tavazhy properties. Thus, Items 8 to 16 belonged exclusively to him and the remaining defendants as well as the plaintiffs had no partible interest therein.