C KUTTIMALU AMMA Vs. C LAKSHMI

JUDGEMENT

(1.) These two appeals have arisen out of two suits for partition under the provisions of the Madras Marumakkathayam Act, 1932 and have keen referred to a Full Bench for decision, and though they are between different parties, they raise similar questions and may be conveniently disposed of by this common judgment.

(2.) The facts which pertain to A.S. 354 of 1953 (M) may first be stated. Meenakshi Amma deceased had two daughters, the plaintiff and Madhavi Amma deceased, and a son Sankunny Nair. The plaintiff has three sons, Narayanan Nair, Sivaraman Nair and Krishnan Nair. Madhavi Ammas daughter is the first defendant and defendants 2 to 7 are the latters children. On a partition of their main tarwad which took place in the year 1941 evidenced by Ext. B-10, Sankunny Nair and the plaintiffs sons, each took his share separately, but the plaintiff and defendants 1 to 7 took theirs, as one group. In the year 1948, the plaintiff executed a deed of gift, Ext. B. 7, for all her properties in favour of the first defendant. O.S. 39 of 1950 in the Court of the Subordinate Judge at Ottapalam, out of which this appeal arises, was instituted for partition of the plaintiffs share, stated to be 1/8, of the properties allotted to her group under Ext. B-10, and of those said to have been acquired with their income and of the moveables, on setting aside Ext. B-7, as vitiated by fraud and misrepresentation. The plaintiff instituted also three other suits for partition of her share in properties acquired by her jointly with others, which were also covered by the disposition in Ext. B-7. It has now been found by the Subordinate Judge by whom the suits were tried, that though Ext. B-7 was not vitiated by fraud or misrepresentation as pleaded, and was valid, it could not operate on the plaintiffs undivided share of the properties in this suit, as they were held to belong to her and to defendants 1 to 7 as a tavazhy. Accordingly a preliminary decree for partition of 1/8 share in the suit properties was passed in favour of the plaintiff, and is the subject of this appeal, by defendants 1 to 7. In the appeals which have arisen out of the connected suits between the plaintiff and others, the finding that Ext. B-7 is valid, has been affirmed by this Court. The only question which survives for determination and which was agitated before us, was, whether the plaintiff and defendants 1 to 7 took their share of properties under Ext. B-10 as a tavazhy, or as tenants-in-common.

(3.) The facts which pertain to L.P.A 72 of 1956 (M) may now be stated. This appeal has arisen out of O.S. 51 of 1951 in the Munsiffs Court at Kozhikode, in which the first plaintiff and her children, plaintiffs 2 and 3, sued for partition of their share, in properties allotted jointly to the first defendant and some of her children, who are the first plaintiff and defendants 1 to 6, under the final decree in O.S. 1832 of 1943 on the file of the same Court. Under that decree which related to the partition of the main tarwad and to which the first defendant and all her children were parties, two of her sons, and one of her daughters and the latters children, who are not parties here, were allotted their shares separately and they got themselves divided from the first plaintiff and defendants 1 to 5, to whom properties were allotted as one group. The controversy between the contesting parties in this appeal, is whether plaintiffs 2 and 3 are entitled to any share and this depends on whether the first plaintiff and defendants 1 to 5 took their properties as a tarwad or tavazhy, or as tenants-in-common. The Trial Court, and the District Judge on appeal, have held, that they are tenants-in-common and plaintiffs 2 and 3 have therefore no share and this view was confirmed on Second Appeal by a learned Judge of the Madras High Court. The appeal is directed against his judgment.