B RAJAMMA Vs. S ANANTHAKRISHNAN POTTI

JUDGEMENT

(1.) The 1st defendant in O.S. No. 432/80 on the file of the Sub Court, Trivandrum is the appellant in A.S. No. 433/ 83. The 1st plaintiff in O.S. No. 283/81 on the file of the same Court is the appellant, in A.S. No. 487/83. Both the suits were filed for partition and were tried together by the lower court and a common judgment was rendered.

(2.) The material averments in the plaint in O.S. No. 432/80 may be summarised as follows : The plaint schedule property originally belonged to Kali Padmanabhan and Kali Sankaran and it was B schedule item No. 11 in O.S. No. 109/1120 of the District Court, Trivandrum. It consisted of 8.463 cents of land in Sy. No. 1062 and the building thereon. This property and item No. 2 in O.S. No. 283/81 belonged to two brothers Kali Padmanabhan and Kali Sankaran. Item No. 2 in O.S. 283/81 belonged to Kali Sankaran exclusively. There was a suit O.S. 109/1120 for partition of 2 items jointly belonged to two brothers. A final decree was passed in that suit. Ext. A1 dated 30-8-73 is the copy of the final decree and Ext. B1 dated 5-11-58 is the copy of preliminary judgment.

(3.) Kali Sankaran was the 1st defendant in that suit and on his death defendants 54 to 59 were impleaded in the suit as his legal representatives. They were his wife Kali Bharathy and children, Padmanabhan Krishnan, Bharathi Devayani, Bharathi Rajamma, Bharathi Umayamma and Padmanabhan Narayanan. Kali Padmanabhan had a daughter Chellamma and she was represented by her legal representatives defendants 97 to 101. Padmanabhan Krishnan died pending suit and his legal representatives defendants 108 to 110 were impleaded. As per the final decree passed in that suit two items were allotted to the share of two brothers Kali Sankaran and Kali Padmanabhan represented by legal representatives 54 to 59, 97 to 101 & 108 to 110. Kali Padmanabhan's share de volved on the defendants in this suit. Kali Sankaran had assigned his right in favour of defendants 54 to 59 and 97 to 101. This suit was filed after the decree was passed in O.S. 109/1120. Some of the sharers, viz. defendants 56,59,97 to 101 transferred their shares in hem 1 (House property) in favour of the 2nd plaintiff. 58th defendant sold her share in favour of the 1st plaintiff. Thus the 1st plaintiff acquired 13/70 shares and the 2nd plaintiff acquired 31/70 shares in the House property, 1st defendant got 13/70 shares and defendants 2 to 4 got 13/70 shares in the said property, The defendants had agreed to sell their shares to the plaintiffs at the same rate at which the other shares had been sold to the plaintiffs but subsequently they backed out. The plaintiffs are prepared to purchase their rights at the same rate. Since the defendants in the reply notice denied the agreement to sell their shares the plaintiffs filed O.S. 432 of 1980 for partition and separate possession of their 44/70 shares in the plaint schedule property.