LEKSHMI Vs. VELUKUTTY

JUDGEMENT

(1.) The appellants are the plaintiffs in a suit for partition. They are the sisters of Dr. Damodaran who died on 12th January 1960. The properties of which partition was sought are stated to have belonged to Dr. Damodaran. The first defendant (now deceased) was the widow of Dr. Damodaran. Defendants 2 and 3 are his brothers. Defendants 4 to 13 and 14 to 17 are respectively the legal representatives of Nanu Panicker and Madhavan, deceased brothers of Dr. Damodaran. Plaint A schedule consists of five items. Item 1 stood in the name of the first defendant. She was in possession of the item and was residing in the building situated therein. Items 2 to 4 were acquired by deceased Dr. Damodaran. Item No. 5 was obtained by him in a partition of his family assets. The B schedule to the plaint contained the movable properties stated to have belonged to Dr. Damodaran and the C schedule the outstandings in cash owned by him. The plaint proceeded on the footing that Dr. Damodaran married the first defendant under the Special Marriage Act, and therefore, succession is regulated by the provisions of the Indian Succession Act. One half of the assets devolved on the widow of the deceased and the other half on the brothers and sisters. The plaintiffs claimed that each of them was entitled to 1/9 of one half of the assets of deceased Dr. Damodaran.

(2.) After the death of Dr. Damodaran, a suit, O.S. No. 16 of 1961 was filed by deceased Nanu Panicker before the Sub Court, Attingal, for partition of the assets of the deceased. The suit was, subsequently, transferred to the District Court, Trivandrum, and renumbered as O.S. No. 9 of 1965. In August, 1967, during the pendency of the suit, the brothers and sisters of Dr. Damodaran entered into an agreement, under which each of them came into possession of different portions of items 2 to 5, 40 cents including the building in item No. 2 being kept in common. Though the suit was dismissed for default, the arrangement, according to the plaintiffs, continued thereafter also. Subsequently, the first defendant as plaintiff instituted O.S. No. 12 of 1967 before the Sub Court, Attingal, for a declaration of her right in respect of items 2 to 5 as the sole heir entitled to the assets of Dr. Damodaran, to the exclusion of his brothers and sisters. Pending the suit, on 14th May, 1970, the second defendant obtained a sale deed (marked in the present case as Ext. 6-1) in respect of her rights in items 2 to 5. The second defendant got himself transposed as the second plaintiff and continued the suit. The suit was decreed by the Trial Court. The decision of the Trial Court was reversed by this Court, in A.S. No. 594 of 1970, the judgment of which is marked as Ext. A-4 in the present suit. It was held that succession was regulated by the Indian Succession Act, that the widow was entitled to a half share, and that the other half share devolved on the brothers and sisters of the deceased. During the pendency of the litigation the second defendant attempted to trespass into the items in the possession of his brothers and sisters. The 18th defendant was, therefore, appointed receiver of the items, other than the building in item No. 2.

(3.) As already stated, in the suit from out of which the present appeal arises the plaintiffs proceeded on the footing that succession to the estate of deceased Dr. Damodaran was governed by the Indian Succession Act. The five plaintiffs claimed that each of the brothers and sisters of Dr. Damodaran was entitled to 1/18 share in his assets. The first defendant, his widow, was entitled to a half share.