(1.) DEFENDANTS 1 to 3 in a suit for partition are the appellants in this appeal.The court below has passed a preliminary decree for partition in regard to certain items declaring that the plaintiff and the first defendant are each entitled to half share.In regard to other items the suit has been dismissed.The decree granted to the plaintiff for partition in regard to certain items is challenged by the appellants in this appeal.
(2.) THE plaint schedule items,24 in number,belonged to the Mandoth tarwad.There were three sisters in that tarwad.Lakshmi Amma,Kunhikkali Amma and Pappi Amma,they being the daughters of one Dhakshayani Amma.Lakshmi Amma and Kunhikkali Amma died prior to 1116.At that time,in the tavazhi of Lakshmi Amma,there was only her daughter,Kunhippilla Amma.In Kunhikkali Amma's tavazhi there were three grandsons,namely Ramankutty Kaimal,the first defendant and Madhavankutty.In Pappi Amma's tavazhi,besides Pappi Amma,there was only a son,the plaintiff in the suit.In 1116 the tarwad entered into a partition,Ext.P -1,under which the plaintiff and his mother took as one branch and Kunhippilla Amma and the surviving members of Kunhikkali Amma's branch together formed the second branch.The suit properties are those allotted to this second branch in the said partition,Ext.P -1.There is a provision in the partition deed that the members of the second branch should maintain Kunhippilla Amma and should look after her comforts and if they fail in this duty,she would have a special right to take possession of items 1,8 and 19(corresponding to plaint items,1,5 and 15)and maintain herself with the income of the properties.She could also lease out those items in that event.But it was provided that on her death these items would revert to the branch.Sometime after the partition,Madhavankutty and Ramankutty Kaimal,the two brothers of the first defendant,died with the result that he and Kunhippilla Amma were alone the surviving members of the second branch.The plaintiff became the sole surviving member of his branch on the death of his mother.Kunhippilla Amma died on 3rd January 1963 and this suit has been filed soon thereafter.The plaintiff claims that on the date of death of Kunhippilla Amma she being one of the two members of her branch,her one half interest in the properties of her branch should devolve on the plaintiff under the Hindu Succession Act,1956.According to him,under that Act,he is the sole heir and as such Kunhippilla Amma's one half interest in the suit properties which are the properties of the second branch in Ext.P -1 partition must devolve solely on the plaintiff.That is the basis for the claim for one half of the suit items.The second defendant is the father -in -law of the first defendant and the 3rd defendant is the wife of the first defendant.They have been impleaded in the suit as persons in whose names some fraudulent documents have brought into existence to defeat the rights of the plaintiff.
(3.) THE court below,on a construction of Ext.P -1,found that Kunhippilla Amma had an interest in the property of the second branch in Ext.P -1 as a member of that branch and that her claim was not limited to the right of maintenance.The main challenge in the appeal is to that finding.