KUNHI AMMA Vs. APPU NAIR

JUDGEMENT

(1.) This appeal is by the plaintiffs who sued for partition of a marumakkathayam family, known as Kizhakke Madhom tarwad, comprising them and defendants 1 to 74. The defendants contended that the said tarwad had become divided on June 4, 1943 by the partition embodied in Ext. B14 and that this suit instituted more than 20 years after such division, as if the tarwad were undivided, was not maintainable. The Subordinate Judge found Ext. B14 to be a valid partition binding on the plaintiffs, but suit items 29 and 30, which stood in the name of the 1st defendant, really belonged to the tarwad, and not having been included in Ext. B14 were decreed to be partitioned among the parties. Items 25 to 28, 31 and 32 claimed by the 2nd defendant as his self acquisitions were found to have been acquired with the surplus of the income of the tarwad properties in his management, but held "2nd defendant had the right to enjoy the surplus and as such out of the surplus if he had made acquisitions they are his own and the tarwad has no rights therein."

(2.) Counsel for the plaintiffs argued strenuously that a partition in a marumakkathayam tarwad before the enactment of the Marumakkathayam Act could only be by consent of all the adult members thereof and that the 1st plaintiff and defendants 6, 8, 63 and 64 have not executed Ext. B14 which was therefore incompetent as a partition of the tarwad and void. Counsel for respondents contended that the tavazhi of the plaintiffs and defendants 62 to 72 was legally and effectively represented in Ext. B14 by the 62nd defendant, the karnavan of their tavazhi and therefore the partition evidenced by it bound the plaintiffs also.

(3.) The question then is whether partition of a tarwad into tavazhis could be effected by the karnavans of the respective tavazhis only.