VIJAYAN Vs. NARAYANI AND ANOTHER

JUDGEMENT

(1.) This appeal is filed by the first defendant in O.S. No. 58 of 1988 on the file of the Subordinate Judge's Court, Trichur. The suit was filed by plaintiff 1 to 3, who are respondents 1 to 3 in the appeal. During the pendency of the appeal, the second respondent died and respondents 3 to 8 were recorded as her legal representatives. The suit was instituted by the plaintiffs for partition and separate possession of of plaintiffs 3/4 share over the plaint schedule properties with mesne profits. According to the plaintiffs, plaint schedule properties belonged to the plaintiffs, first defendant and their mother Kalikutty under the partition deed No. 836/1962. Kalikutty died. After the death of Kalikutty, her right over the property devolved on the plaintiffs and defendants. The plaintiffs claimed 3/4 share over the plaint schedule property. It was stated that the actual income of the property was Rs. 12,000.00 of which the plaintiffs share is 3/4.

(2.) The first defendant filed a written statement stating that the plaintiffs have no right over the plaint schedule property. It was stated that the first defendant and the plaintiffs were sons and daughters of one Mamunnikutty, who had 5 children in Kalikutty, viz., three plaintiffs, first defendant and Sankaranarayanan. Mammunnikutty died in 1114 M.E. It was stated that Mammunnikutty had mortgaged some of his properties to meet the marriage expenses of the first and second plaintiff. At the time of Mummunnikutty's death, the third plaintiff was also married. The first defendant and his brother Sankaranarayanan gave her away in marriage and to meet the expenses, they had to sell some of the joint properties. The plaintiffs and defendants belonged to Ezhava by caste and under the custom prevailing in their community, the daughters have no right over the properties of their father. It was stated that Mammunnikutty died prior to the coming into force of the Cochin Makkathaya Act of 1115 M.E. At that time, the parties were governed by customery laws. After the death of Mammunnikutty, Kalikutty had sold some of the joint family properties when the first defendant was a minor. In that sale deed at the instance of the assignee, the name of the third plaintiff, who was then a minor, was also included. In 1962, at the instance of Sankaranarayanan and the husband of the third plaintiff, a partition deed was executed without the consent of the first defendant. It was contended that mere inclusion of their names in that partition deed does not confer any right on them over the plaint schedule properties. Till the death of Kalikutty in the year 1970, she was in possession of these properties and thereafter the first defendant was in possession of the said properties. It was further contended that even if the plaintiffs have any right over the same, it is lost by adverse possession and limitation. The first defendant had also constructed a basement, a wall, a well, a motor shed, latrine and installed a motor and planted 55 coconut trees in the property spending about Rs. 75,000.00. Those improvements should be excluded from partition. It was also stated that an extent of 3 cents was surrendered to the Panchayat.

(3.) After instituting the suit on the basis of the contentions raised by the first defendant, legal heirs of the deceased Sankaranarayanan were impleaded. In their joint written statement, it was contended that though in the partition deed of 1962 the names of the plaintiffs were included, they have no right over the plaint schedule properties. They contended that the partition deed is an invalid one.