CHERUKUNNON SHANTHA Vs. KALLAKANDI SAHADEVAN

JUDGEMENT

(1.) Second defendant in a suit for partition is the appellant. Challenge in the appeal is against the concurrent decision rendered by the two Courts below in the suit, by which a preliminary decree was passed for division of the suit property and allotment of shares to the parties as fixed, with a direction to allot the residential building to the present appellant, without valuation, and determination of other disputes including mesne profits, for consideration in the final decree proceedings. Feeling aggrieved, the appellant has preferred this appeal.

(2.) The dispute involved in the case lies within in a narrow compass. Parties to the suit are the children and grand children of one Karinchi and admittedly, earlier governed by Marumakkathayam Law of inheritance, as under the Madras Marumakkathayam Act (Madras Act No. XII of 1933). In Ext. A1 final decree passed in OS No. 645/59, suit for partition of the tarwad properties, plot A therein, as delineated by the advocate commissioner and accepted by the Court was allotted to defendants 13 to 25 in that suit, members of Karinchi's thavazhi, in common. Some of the parties in the present suit were among the defendants 13 to 25 in the previous suit, and the rest are no more. The rights of those defendants who had passed away has devolved upon the parties in the present case, and, further, the devolution of such rights are concededly not germane or material in the present appeal, and such, advertence thereto is uncalled for. Suffice to state, in the present suit, the plaintiffs alleged that under the partition effected in OS No. 645/59 there was disruption of the tarwad, with rights of the members of the tarwad determined, and each of the defendants 13 to 25 in that suit has obtained 1/13th share in part A property alloted to such defendants in common. The thirteen members of Karinchi's thavazhi, defendants 13 to 25 in the previous suit, took the property allotted to them, as tenants in common, after passing of the final decree, and each member obtained specific share in the joint property is the sheet anchor of the case set up by the plaintiffs in the present suit to claim 9/13th share in the suit property conceding that the rest is due to the defendants. The two defendants in the suit, who are mother and daughter, were defendants 18 and 19 in the previous suit. They resisted the suit contending that allotment of plot 'A' property in common to defendants 13 to 25, who are members of the thavazhi of Karinchi, was an allotment to a thavazhi and the sharers of the group continued as joint tenants over that property. The children of the female members of that thavazhi, who were born after the passing of Ext. A1 decree, but before the coming into force of the Kerala Joint Hindu Family Abolition Act, 1976, are also entitled to share in the property, was their case. The two children of the 2nd defendant who were born before the commencement of the above Act having not been made parties to the suit, it was contended that the suit was bad for non - joinder of necessary parties. They also contended that they are in occupation of the building in the suit property, after effecting improvements expending a lot of sum, to set up a claim over the building for being included in their share on division and allotment, in case claim of partition of the plaintiffs is found allowable.

(3.) The issues cast in the suit over the pleadings of the parties, as indicated above, covered the questions whether the suit property continued as thavazhi property with the incidents thereof, and the maintainability of the suit impeached as bad for non - joinder of parties. Both sides let in evidence with the plaintiffs examining one witness, (1st plaintiff) as PW 1 and exhibiting Exts. A1 to A5 and the defendants three witnesses, DWs 1 to 3, who included the 2nd defendant / present appellant, and Exts. B1 to B3. The Trial Court accepted the case of the plaintiff that under the final decree passed in the previous suit, OS No. 645/59 (Ext. A1) the share of each of the members of the tarwad was determined and, thereafter, the members thereof having got definite share in the property held such property as tenants in common. The allotment of plot A property, the present suit property, to defendants 13 to 25, who are the members of the thavazhi of Karinchi as one group, it was found, made no difference, to hold that joint tenancy of such defendants continued after Ext. A1 decree. Challenge raised that the suit is bad for non - joinder of necessary parties for the non - impleadment of the two children, who were born to the 2nd defendant after Ext. A1 decree, but before the coming into force of the Act of 1976, was also found to be of no consequence. A preliminary decree was passed by the Trial Court for division of the suit property into 52 equal shares and allotting of 36 shares thereof to the plaintiffs and the rest 16 shares to the defendants. The house situate in the plaint property taking note that the defendants continued in occupation of the same after effecting valuable improvements, was directed to be allotted to the share of the 2nd defendant without valuation. The defendants were also directed to pay past mesne profits for one year, and also future mesne profits, the quantum of which was relegated to be determined in the final decree proceedings. The preliminary decree was assailed in appeal by the defendants reiterating the challenges canvassed by them before the Trial Court. Pending that appeal, the 1st defendant passed away and, the 2nd defendant (the present appellant) was recorded as her sole legal heir. The lower Appellate Court, after appreciating the materials on record, concurred with the view taken by the Trial Court that after Ext. A1 decree, the members of the thavazhi of Karinchi, to whom plot A property in that suit was allotted continued as co - owner of that property as tenants in common and not as joint tenants, and so much so, the non - impleadment of the subsequently born children of the 2nd defendant as parties to the suit is of no consequence. The decree of the Trial Court was confirmed and approved without any modification by the lower Appellate Court.