MEENAKSHY Vs. VELLAKUTTY

JUDGEMENT

(1.) Defendants 1, 5 and 12 are the appellants. The appeal is direct against the preliminary decree and judgment passed by the Sub Court, Palghat in O.S. No. 76 of 1979. The suit was for partition and separate possession of the plaintiff's 1/6 share in the plaint schedule properties with her share of future mesne profits.

(2.) Gopalan father of the plaintiff and defendants 2 to 5 and husband of the Ist defendant died in 1968. Plaintiff and defendants 1 to 5 are his legal heirs. They are governed by Hindu Mithakshara Law being members of the Ezhava community. They belonged to an undivided Hindu joint family. Items 1 to 8 are properties set apart to the share of Gopalan in a partition between himself, his two brothers Keli and legal heirs of Andi Muthu in 1955 and items 1 to 29 were set apart to Gopalan in another partition between himself and Keli and the legal heirs of Andimuthu. Item No. 30 was purchased by Gopalan in 1963 from out of the income from items 1 to 29. After the death of Gopalan the properties were held jointly by the plaintiff and the defendants 1 to 5 and they were looking after and managing the properties. On these allegations the plaintiff filed the above suit for partition and separate possession of her alleged 1/4 share.

(3.) Defendants 1 and 5 resisted the claim. They filed a joint written statement contending that there was no joint family as stated in the plaint and the joint family of Gopalan consisted of Gopalan and the 5th defendant alone. Plaint A Schedule items 1 to 29 were partitioned by Gopalan his brother Keli and the legal heirs of Andimuthu and those items were allotted to the branch of Gopalan. Gopalan's father Panu cultivating the lands of Subramania Iyer of Coyalmannam and after his death the properties were being cultivated by his children, and subsequently they were surrendered to the jenmi and in the same year they got assignment of the kanam right as per partition in 1955. Consideration for the assignment came out of the income derived from the properties taken on lease by Panu and the consideration obtained for its surrender. Items 9 to 29 were acquired out of the income from items 1 to 8. Item 30 was purchased with the income of the properties set apart by Gopalan. After the death of Gopalan there was no joint possession by plaintiff and defendants 1 to 5 and the entire properties were held by the 5th defendant alone. As all the properties had been treated and held as joint family properties, Gopalan had only 1/2 rights over the suit properties. Plaint B schedule movables never belonged to Gopalan. Gopalan had already paid Rupees 6,000/- by executing a promissory-note in favour of one Erumakkad Gopalan and Eravakkad Andu, and he had also executed hypothecation bonds for discharge of some of his liabilities. Defendants also had executed documents. Therefore the plaintiff was not entitled to 1/6 share in the property and she was only entitled to 1 /12 share. An amount of Rs. 1,000/- was paid to defendants 2 to 4 and the plaintiff each as their shares in the property and therefore the plaintiff was not entitled to claim any share. Some of the properties were assigned to discharge the debts of Gopalan. Mesne profits claimed was very excessive and in the circumstances the plaintiff was not entitled to any relief. Defendants 2 to 4 also filed written statement supporting the contentions of defendants 1 and 5.