T C MADHAVA KURUP Vs. T MADHAVA KURUP

JUDGEMENT

(1.) This appeal is filed by defendants 1, 3, 4, 9 to 12, 27 and 28 against the Judgment and Decree in O.S. No. 96 of 1.986 on the file of the Subordinate Judge's Court, Vadakara, The suit was for partition. The plaintiffs claimed that they are entitled to 2/6 share over the plaint 'B' schedule immovable properties which are four in number. Defendants 1, to 4 were the main con testers. They contended that the plaintiffs have no right over the property and prayed for dismissal of the suit. The plaint schedule property is the Tavazhi of one Ummamma Amma. Ummamma Amma had a son, Krishnan Nair and a daughter, Mathu Amma. Mathu Amma had four children. Balakrishnan Nair, Appa Nair, Karunakaran Nair and Meenakshi Amma. The plaintiffs are Balakrishnan Nair's daughter's children. Defendants 1 to 4 are the children of Appa Nair. Karunakaran Nair and Meenakshi Amma died issueless. Their rights over the properties devolved on the Tavazhi consisting of Matha Amma, Krishnan Nair, Balakrishnan Nair and Appa Nair. Krishnan Nair died in 1934 and his rights devolved upon the Tavazhi consisting of Mathu Amma, Balakrishnan Nair and Appa Nair. Matha Amma also died. Thereafter, only two members of the Tavazhi survived, viz., "Balakrishnan Nair and Appa Nair. Balakrishnan Nair died in 1950.

(2.) According to the plaintiffs, when Balakrishnan Nair died, his half share devolved on his children. According to defendants 1 to 4, when 'Balakrishnan Nair died, Appa Nair became the sole surviving member of the Tavazhi and the plaint schedule properties became the exclusive properties of Appa Nair. Appa Nair died in 1,967. Appa Nair had bequeathed plaint item No. 1 to defendants 4 to 8 under a Will, dated 24th February 1961. He had also bequeathed item No. 4 to the second defendant. Item Nos. 2 and 3 had been gifted by Appa Nair to the fourth defendant under a registered gift deed, dated 12lh November 1959. Therefore, the main controversy in the suit was as to whether the plaint properties, which were the Tavazhi properties of the Tavazhi consisting of Mathu Amma, Balakrishnan Nair and Appa Nair, devolved on Balakrishnan Nair and Appa Nair, after the death of Mathu Amma, as Tavazhi properties in their hands as coownership properties. If the ' properties were coownership properties in the hands of Balakrishnan Nair and Appa Nair, the plaintiffs were to succeed. If the properties were Tavazhi properties in the hands of Balakrishnan Nair and Appa Nair, then the defendants were to succeed. The court below held that the plaintiffs are to succeed because the properties were coownership properties in the hands of Balakrishnan Nair and Appa Nair. Issue No. 2 in the suit related to the question of adverse possession raised by the contesting defendants. This issue was found against the defendants. Hence, the court below granted a Decree for partition giving 2 out of 6 shares to the plaintiffs. It is against the above Judgment and Decree that the present appeal is filed.

(3.) The learned Sub Judge considered this question as issue Nos. 1 to 3, the court below relied on the decision reported in Balachandran v. Sankaran Nair 1985 KLT 459 and held that the plaintiffs are entitled to succeed. The learned counsel for the appellant Sri P. G. Rajagopalan submitted that the above decision was concerned with the case of self acquisition and not a case of Tavazhi property and hence, the lower court was not correct in applying that decision. He relied on the decisions in Gowli Buddanna v. Commissioner of Income Tax, Mysore AIR 1966 SC 1523 , Thiruthipalli Raman Menon and others v. Variangattil Falisseri Raman Menon ILR 24 Madras (P. C.) 73, and also. .......