KALI KESAVAN Vs. VELAYUDHAN DAMODARAN

JUDGEMENT

(1.) THE following genealogical table will be helpful in understanding this case. Table:#1

(2.) THE two plaintiffs and defendants 1 to 56, Eazhavas governed by Travancore Act 3 of 1100 are admittedly descendants in the female line of Aratha who heads this table, and, at the time of the suit, the 1st defendant (since dead) was the seniormost male member of this group. THE question is whether when the suit was brought, these persons were members of an undivided joint family as claimed by the plaintiffs who asked for partition and separate possession of their 2/58th share of the 12 items of property in suit, or whether, as contended by the contesting defendants (defendants 1 to 13 and 15 to 39) they had divided long ago into the two branches of the two daughters of Aratha, Kali and Parvathi, each branch being in separate enjoyment of its half share in the properties. THE first court found that there was no such division as set up by the defendants. But the lower appellate court found otherwise, and it remanded the suit to the first court for the purpose of effecting a partition within Parvathi's branch giving the plaintiffs their share in the half share of that branch. THE plaintiffs have come up in second appeal.

(3.) ONE remarkable feature is that none of these documents refers to any division as having taken place between the two branches and all that they show is that the members of Kali's branch leaving out of account for the time being Exts. IV, XV and XVI) either jointly or severally or in groups purported to deal with an undivided half of the suit properties or fractions of such a half. To none of these documents is any member of Parvathi's branch a party; nor has it been brought out in evidence that the members of that branch were all aware of the transactions or that possession at any time passed to strangers under any of them so as to put the members of that branch on notice. With regard to earlier transactions it would appear that the members of Kali's branch who effected them were the senior members of the family so that the transactions might well have been on behalf of the whole family; and the later transactions, Exts. IX, VI and VII, show that members of Kali's branch were dealing with fractional shares of an undivided one half in certain items of property even before the partition in that branch under Ext. V, in other words at a time when they were joint. The dealings by the members of Kali's branch do not therefore seem inconsistent with the two branches being joint in status. Ext. XVI at best serves to show that the two branches paid the mortgage money in separate moieties, a circumstance not necessarily inconsistent with joint status, but, what is significant with regard to it is that it has not been shown that Devayani and Chinna, who are the members of Parvathi's branch named in that document had anything to do with it. The document was in their favour, but it was resented for registration only by Chakki of Kali's branch. There is nothing therefore to make the recitals in that document in any way binding on the members of Parvathi's branch, and I might add that the 15th defendant and the first plaintiff both of Parvathi's branch, the senior most male members of that branch were adults at the time so that if anybody were to be joined in the document as representing Parvathi's branch it should have been these persons and not two female members. Ext. XV is consistent with a mere maintenance allotment to Parvathi's branch and, so far as Ext. IV is concerned the circumstance that the 1st defendant got a decree from court apportioning arrears of michavaram between the two branches in the absence of the members of the other branch can only amount to a unilateral assertion by him of several liability and cannot prove that, in fact, the two branches were severally liable even if that circumstance were to be regarded as a sufficient indication of division.