BALAKRISHNAN NAIR Vs. PARAMESWARAN PILLAI

JUDGEMENT

(1.) This second appeal arises from a suit for partition of a Nair tarwad. The main question for decision is whether the two branches of the tarwad become divided by course of conduct. The courts below have held that they, have become divided and the plaintiff was given a decree for partition only in respect of the properties obtained by his branch under Ext. A of the year 1064. The plaintiff has therefore preferred this second appeal.

(2.) In 1064 the tarwad consisted of the descendants of two sisters, Kunjipennu and Pappi. The descendants of the former are referred to as Kodakkattu branch and those of the latter as Kanjirakkattu branch. Their brother Madhavan Narayanan was the karnavan at that time. They executed a deed Ext. A on 23-11-1064 which according to the plaintiff was only a maintenance arrangement while the defendants contended that the same was an outright partition. The defence case on this paint was concurrently found against by the courts below, and on the construction of Ext. A no other conclusion is possible. The defendants had a further contention that even if Ext. A was only a maintenance arrangement, the two branches had become divided by course of conduct. The concurrent finding of the courts below on this point is against the plaintiff, and that is the question arising for decision now.

(3.) The plaintiff and defendants 1 to 36 are members of Kodakkattu branch and defendants 37 to 45, of Kanjirakkattu branch. The other defendants are persons in possession of the property. On 2-4-1107 Kanjirakkattu branch entered into a partition deed. Ext. K dividing the properties obtained by that branch under Ext. A. Kodakkattu branch also executed a deed Ext. XXVIII on 16-4-1094 but this is only a maintenance arrangement and not a deed of partition. It may also be mentioned that Kodakkattu branch has not alienated any property allotted to them under Ext. A unlike the Kanjirakkattu branch which alienated properties both before and after the date of Ext. A. The alienations after the date of Ext. A are also sought to be set aside in this suit.