MYTHILI NALINI Vs. KOWMARI

JUDGEMENT

(1.) Defendants 2 and 3 in O.S. No. 87 of 1977 on the file of the Court of Subordinate Judge, Alleppey, are the appellants in A.S. No. 321 of 1982 and the Ist plaintiff in the same suit is the appellant in A.S. No. 357 of 1982. Suit is for partition.

(2.) Plaintiffs and defendants 1 to 3 are children of Kunju Kunju who died in 1976. Mythili is the wife of Kunju Kunju and she died in 1975. Plaint A schedule property originally belonged to Mythili. Her right devolved on her children and each of them was entitled to 1/5 share. Buildings in A schedule are B schedule items 1 and 2. Item No. 1 is the residential building and item 2 is a workshop. These buildings were constructed by Kunju Kunju. Plaint C schedule building belonged to 4th defendant. Kunju Kunju was a tenant under the former owner of the building and he was conducting business in harmonium for the last forty years. The business accessories are C schedule item No. 2 and kept in the workshop. In 1975 Kunju Kunju executed a registered Will whereby he bequeathed his rights to the Ist defendant. Plaintiffs and defendants 2 and 3 had 1/4th share in the assests left by Kunju Kunju. Negotiations for partition failed and according to plaintiffs it was in those circumstances that the suit was filed.

(3.) In the written statement filed by Ist defendant, he admitted that plaint A schedule property belonged to Mythili, that Kunju Kunju, the husband of Mythili put up the building in A schedule and that Kunju Kunju executed a Will in 1975 bequeathing the building in A schedule to the other coshares. According to the Ist defendant the workshop was put up by him at his own expenses in A schedule property. The tenancy right in C schedule item No. 1 is in the name of Kunju Kunju. The camera works started in partnership in 1967 was sold to him and he attorned to the landlord and was paying rent. He agreed to purchase the property at a price of Rs. 42,000/ - and all the shares were bound by the agreement. The goodwill of harmonium works belonged to him and provisions of the Will executed by Kunju Kunju were superseded by an agreement dated 21-11-1976 referred to above. The moveable in C schedule belonged to him. He reported the building by spending Rs. 3,500/- and he had special right over the building. He constructed the workshop at a cost of Rs. 15,000/ - and the agreement being a family arrangement it is binding on all the cosharers. Defendants 2 and 3 filed a written statement supporting the plaint allegations.