MALATHI AMMA Vs. DAMODARAN

JUDGEMENT

(1.) The appeal arises from a suit for partition. The husband of first appellants 2 to 7 filed O.S.54/71 before Sub Court, Ernakulam against respondents 1 to 11 for partition and separate possession of their share over three items of properties. Item No.1 is alleged to have been obtained by the mother of first appellant Kavu and her brother Krishnan. Defendants 1 to 3 and the mother of defendants 4 to 9 are the other children of Kavu. By an assignment deed of 1115 M.E. first plaintiff purchased the rights of Kavu's brother. He therefore claimed six out of 10 shares over item No.1. The other two items were acquired by Kavu and after her death devolved on her children in equal shares. First plaintiff claimed 1/5 share over these items. Defendants 1 and 2 are alleged to be in possession of these properties. First plaintiff claimed separation of his share with profits. Pending suit he died. Plaintiffs 2 to 9 (appellants herein) were impleaded as legal representatives.

(2.) The suit was resisted by the defendants who disputed the validity of the assignment in favour of first plaintiff and contended that all the three items are liable to be divided in equal shares. They further contended that first plaintiff was managing the properties as Karanavan and with the income therefrom had acquired some properties. Partition of these properties was also claimed. The details of those properties are mentioned in Para.3 of the written statement.

(3.) A preliminary decree was passed by the court below on 28-2-1977. Defendants preferred an appeal before this court as AS.9/78. This court found that there is a fundamental defect in the pleading with regard to the personal law governing the parties as to whether it was Marumakkathayam Law that is applicable or the Cochin Thiyya Act (Act 8 of 1107 M.E.). The allegation in the plaint is that the parties are makkathayees. But the court found them to be followers of marumakkathayam. An opportunity was given to the plaintiffs to amend the plaint. After remand a petition was filed for amendment of the plaint, alleging that the parties are governed by the Cochin Thiyya Act. No objection was filed to that application, and no additional written statement was also filed. An additional issue No. 13 was framed regarding the personal law governing the parties. Thereafter the court below considered all the issues and held that the parties are governed by the Cochin Thiyya Act. Items 1 to 3 of the plaint schedule were directed to be divided in accordance with the claim made in the plaint. The court further directed division of the properties mentioned in para.3 of the written statement among the plaintiffs and defendants finding that they were acquired by deceased first plaintiff in his capacity as the Karanavan utilising the income of the family. Aggrieved by that decision plaintiffs 2 to 9 have come up in appeal.