AKKU AMMA Vs. KUNHI RAMAN NAIR

JUDGEMENT

(1.) THE appellants are the plaintiffs who sued for repartition of their tarwad after setting aside the prior decrees in partition had in O. S. No. 64 of 1943 on the file of the Sub Court, Mangalore. Ext. A1 dated December 7, 1944 , is the preliminary decree and Ext. A2 the final decree dated November 30, 1949 , in that prior suit. That suit was instituted by the present six plaintiffs in conjunction with defendants 9 to 14 who arrayed themselves respectively as plaintiffs 2 to 7, 1 and 8 to 12 therein. It is averred that due to the fraudulent machinations of the 10th defendant's husband the 14th defendant who was conceived by the 10th defendant long after the date of the suit was also given a share in the decree Ext. A1, wherefore the present plaintiffs were given only 6/20 share instead of 6/19 legitimately due to them, that the 2nd plaintiff who was insane had no next friend or guardian in that suit and therefore the decree cannot bind him, that the final decree was not in accord with the preliminary decree, that the division of properties by metes and bounds in Ext. A2 was unfair to the plaintiffs, that the direction in the preliminary decree for 1st defendant to render account for his management for six years before suit was overlooked in the final decree and that on all the above grounds the decrees in the prior suit, Exts. A1 and A2 were invalid, should be set aside and repartition made. THE defendants contested the suit, denying any prejudice to the plaintiffs by the decrees in the prior suit and the allegation of insanity to the 2nd plaintiff during its pendency. THE court below dismissed the suit finding against the plaintiffs on all the points raised. Hence this appeal.

(2.) THE prior suit in question is O. S. No. 64 of 1943, the plaint wherein is Ext. A3 here, dated August 3, 1943. THE present 10th defendant was the 8th plaintiff therein described as big with child. Claim was made for that child in the womb in Ext. A3. Ext. B3 is an affidavit sworn by the present 2nd plaintiff on August 7, 1943 , in support of an application for a receiving order by all the plaintiffs, and therein also the 10th defendant was referred to as enceinte. D. W. 1 the husband of the 10th defendant and D. W. 2 the husband of the 3rd defendant have identified the child then in the 10th defendant's womb as the present 14th defendant who was made the 12th plaintiff in the prior litigation. Ext. A35 extract from the concerned Register of Births was put in evidence of the 10th defendant having given birth to a child on October 22, 1944. THE fact that she delivered a child in october 1944 cannot disprove her having been enceinte in August 1943 or having given birth to a child soon thereafter. D. Ws. 1 and 2 have sworn that the child delivered by the 10th defendant in October, 1944 was one conceived subsequent to the birth of the 14th defendant. It is not disputed before me that at the partition of the tarwad a child in the womb of any female member is entitled to a share. THE award of a share to the 14th defendant in Exts. A1 and a2 cannot be said to have caused any prejudice to the plaintiffs.

(3.) ANOTHER ground of attack is of the final decree Ext. A2 being not in conformity with the preliminary decree Ext. A1. The preliminary decree awarded 12/twentieth shares to 12 persons jointly ; but the final decree subdivided the same among these 12 persons 6 shares being allotted to the plaintiffs 1 to 6, I share to the 9th defendant, and 5 shares to defendants 10 to 14, who were all plaintiffs in that suit. Nothing has been made out of any prejudice having been caused to the present plaintiffs by such subdivision. The present plaintiffs formed one natural tavazhi and they were 6 of the 12 plaintiffs in that suit. In the preliminary decree they were awarded 6/twentieth shares in conjunction with another 6 such shares to the other 6 plaintiffs of that suit who were outside their tavazhi ; and in the final decree they were separated and given shares independently. This was only to their advantage, in that another suit for partition of the plaintiffs' tavazhi from the others had been avoided.