JANU Vs. CHEERU

JUDGEMENT

(1.) The decree from which this appeal is brought is one partially allowing a suit for partition. The plaintiff - appellant is the widow of one Kunhikanaran who died issueless in June 1944. The plaintiff's case was that the eight items of immovable property which form the subject matter of the suit belonged to Kunhikanaran and that the plaintiff and Kunhikanaran's mother (the defendant in the suit) were entitled to the properties in equal shares. The defence was that all the items were acquired by Puzhakkal Kannan, the husband of the defendant and father of Kunhikanaran. Documents in respect of items 2 to 6 had been taken by Kannan in the name of one Kelappan who was his kariasthan and the latter had conveyed those items to Kunhikanaran for and on behalf of Kannan. Kelappan and Kunhikanaran were only two benamidars of Kannan and they had no title. The court below found that items 1, 7 and 8 belonged to Kunhikarnaran and thai the plaintiff was entitled to a decree for partition in respect of the same. As regards items 2 to 6, the suit was dismissed holding that the same belonged to Kannan. The plaintiff has therefore preferred this appeal. The defendant has preferred a memorandum of cross objections to the decree in so far as it allows the suit as regards items 1, 7 and 8.

(2.) Though the appeal relates to items 2 to 6, the appellant did not press her case regarding items 2 and 3 and the respondent did not press the memorandum of cross objections either. The subject matter of the appeal has thus become limited to items 4 to 6 in the plaint schedule.

(3.) The point for decision is whether items 4 to 6 belonged to Kunhikanaran or his father Kannan. For a proper appreciation of the evidence on this point, a few facts have to be stated. Kannan was a fairly rich man having been an abkari contractor for a number of years. He died in 1950. Kunhikanaran was the eldest of his 13 children of whom only 11 were surviving at the time of his death. The plaintiff was Kannan's niece and she was married by Kunhikanaran. It is in evidence that Kunhikanaran had some sources of income and the finding of the court below is that he had some funds. Items 2 to 6 were acquired by Kunhikanaran under Ext. A2 dated 29-6-1934 executed by Kelappan in his favour. Kunhikanaran was 22 years at that time. Kannan had some right or other in every one of these items included in Ext. A2. At the time of institution of this suit all the documents of title were in the possession of the defendant. It was held by the court below that in the circumstances of the case possession of title deeds was not very material, as Kunhikanaran at the time of his death was residing with his parents and his wife was not there at the time of his death or later. The evidence in the case has to be considered in the light of the above facts.