BABU Vs. ARUNAPRIYA

JUDGEMENT

(1.) The defendant in a suit for partition is the appellant herein. The plaintiff, who is the defendant's niece born to his elder sister, is the respondent in the Second Appeal and cross- objector in C.O. No. 33 of 2010. The plaintiff, claiming through her mother, sought for partition of the properties acquired from the great-grandfather of the defendant, more specifically one-half share. The Courts below, by concurring judgments, partitioned the properties and out of the 9 equal shares, the plaintiffs entitlement to 3/9 shares was declared and the remaining 6/9 share was set apart for the defendant. When the Second Appeal was admitted, a learned Single Judge of this Court framed the following questions of law:

(2.) By the Cross Objection, essentially the plaintiff seeks for one-half share as contended by her before the Courts below. The question of law arising therein would be:

(3.) Admittedly the plaintiffs mother and the defendant were siblings, belonging to a family of Makkathaya Hindu Thiyyas of Calicut and governed by Hindu Mithakashara Law. The mother of the plaintiff being a female member, was not entitled to a share in the co-parcenary property of her great-grandfather, Nayadi Vaidyar. Nayadi Vaidyar had three children, Kelan, Choyi @ Kuttan and Raman. Of the three children, Choyi @ Kuttan died first and then Raman, who died a bachelor and issueless. Even during the life time of Raman; himself, Kelan and Vasu S/o. Choyi @ Kuttan had decided on a partition of Nayadi Vaidyar's property, orally, by setting apart one share to the branch of Kelan and another to the branch of Choyi @ Kuttan and Raman together. After Raman died, Kelan's children Sreenivasan and Balan representing that branch and Vasu and his children Rajan and Babu representing the deceased Choyi @ Kuttan's branch and also that of deceased Raman entered into a deed of partition dated 22.1.1956 by Exhibit A1. By the said partition deed, the 'A' schedule properties therein were set apart for Kelan's branch and Vasu, Rajan and Babu became entitled to share in 'B' schedule properties therein. Rajan and Babu (the defendant) were both minors and were represented by their father and natural guardian Vasu. The 'B' schedule in Exhibit A1 is the plaint 'A' schedule property herein. Subsequently Vasu died and then Rajan followed. Rajan also died a bachelor and issueless. Sreeja @ Jayasree, who was the sister of Rajan and Babu, married and the plaintiff was born in the wedlock. She too passed away in 1990. Hence, the surviving members in the family were Babu, the defendant and Arunapriya, his niece, the plaintiff.