KALLIANI AMMA Vs. PARAMESWARAN NAMBOODIRIPAD

JUDGEMENT

(1.) The main appeal in this group of appeals is A. S. No. 292 of 1958 and that is an appeal by the plaintiff in O. S. No. 13 of 1956. That was a suit for partition of several items of properties scheduled to the plaint as A and B. The allegation was that those properties belonged to the tarwad of the second defendant. The 1st defendant is the son of the second defendant by her first husband, and defendants 3 to 8 and the plaintiff, are her children by her second husband, one Kunhikrishnan Nair, who has been examined in the case as P. W. 8. Defendants 10 to 12 are the children of the 4th defendant. The 13th defendant is the wife of the first defendant. The 14th defendant is an alienee of item No. 8 in the A schedule in the plaint and defendants 15 to 17 are the Jenmis who are interested in item No. 3 of the A schedule. The suit was resisted by defendants 1, 13 and 14, who contended that alienation of item No. 8 is valid, and by defendants 15 to 17, who raised the plea that the release of the leasehold right in item No. 3 by Ext. XXVIII is not liable to be set aside. The court below upheld these contentions and held that the only items of properties partible are A schedule items 1 and 2 and granted a preliminary decree in favour of the plaintiff for an one third share in those items. Item No.3 in the A schedule was held to belong to the first defendant exclusively and it came to the conclusion that Ext. XXVIII release is valid. Consequent on this finding, the suit O. S. No. 35 of 1955 ( O. S. No. 45 of 1125 of the Irinjalakuda Munsiff's Court) from which the appeal, A. S. No. 244 of 1958 is filed and which was a suit for an injunction restraining defendants 15 to 17 in O. S. No. 13 of 1956 from interfering with the possession of A schedule item No.3 was dismissed. The appeal, A. S. No. 244 of 1958 is by the second defendant in O. S. No. 13 of 1956. The parties will be referred to as they are arrayed in O. S. No. 13 of 1956. A. S. No. 291 of 1958 is an appeal by the second defendant from the decree in O. S. No. 146 of 1955 dismissing her suit. That was a suit instituted by her to set aside an order passed by the District Registrar ordering compulsory registration of Ext. XXVIII so far as she was concerned. It was consequent on the finding in O. S. No. 13 of 1956 that the second defendant had no interest in item No. 3 of the A schedule that this suit was dismissed. The remaining appeal A. S. No. 274 of 1958 related to the claim made by defendants 15 to 17 for arrears of michavaram due from A schedule item No. 11. This property was held to belong exclusively to the first defendant. The discharge pleaded by defendants 2 and 6 was found against and the suit was decreed and the appellants in A. S. No. 274 of 1958 are defendants 2 and 6.

(2.) Counsel for the appellants in all these four appeals confined his arguments only to three items in the A schedule items 3, 8 and 11. Since the evidence in all the four suits which gave raise to these appeals were recorded in O. S. 13, we are disposing of these appeals by a single judgment and deal first with appeals A.S. 244 and 291 as well as A. S. 292 so far as it relates to item No. 3 of the A schedule.

(3.) Item No. 3 of the A schedule is a garden land having an extent of 1.87 acres and was acquired in the name of the first and second defendants in the year 1118 by Ext. XXVII lease deed which was executed by these defendants in favour of the Jenmis on 24-6-1118. The only other document relating to this item is the release deed Ext. XXVIII dated 22-10-1124 purported to have been executed by the first and second defendants. The contesting defendant, defendant 15, pleaded that though Ext. XXVII was executed by defendants 1 and 2 the lease was actually in favour of the first defendant only. The plaintiff's contention, on the other hand, is that the lease was taken for the benefit of the tarwad consisting of the tavazhi of the second defendant and that the same enured to the benefit of the said tarwad.