CHAKKUNNI Vs. RAFI @ RAPHEL

JUDGEMENT

(1.) This appeal is by some of the defendants in a suit for partition.

(2.) The suit properties and some other items belonged to Porinchu (senior). He had five sons, Devassy, the first defendant Paily, Porinchu (junior) and defendants 2 and 3. In 1952, Porinchu (senior) executed Ext.A1 settlement, under which, he made allotments in favour of the sons. The suit properties were dealt with under Ext.A1. The other assets were dealt with under Ext.A4, a Will executed on the same day. The subject matter of the suit from which this appeal arises is 'C' schedule in Ext.A1, which is shown to have been allotted in favour of Porinchu (junior). The third among the sons of Porinchu (senior), it appears, was a person of challenged physical or mental status. We make this observation on the basis of the recitals in Ext.A1 and the requirement that he be provided with more care, over and above the allotment of properties. Therefore, the properties allotted to him under Ext.A1 are dealt with in 'C' schedule which provides the manner in which that item would be managed during the life time of Porinchu (senior); in the event of the demise of Porinchu (senior); in the event of Porinchu (junior) getting married and also in the event of his having children. Ext.A1 contains a clause which reads as follows:

(3.) The plaintiffs are the children of Devassy. On the death of Porinchu (junior) issueless, they sued for partition of 'C' schedule in Ext.A1, that is, the allotment made in favour of Porinchu (junior). Unfortunately, Devassy pre-deceased Porinchu (junior) on 6.9.1972, while Porinchu (junior) died on 5.12.1987. Their father, the settlor, Porinchu (senior) died much earlier, on 20.9.1968. On this fact situation, the surviving brothers of Porinchu (junior), i.e., defendants 1, 2 and 3, contended that Devassy having pre-deceased Porinchu (junior), the children of Devassy had no right to claim share in the estate of Porinchu (junior). This is the short issue that arises for determination in this first appeal.