MADHAVAN PILLAI Vs. GOPALA KURUP

JUDGEMENT

(1.) These are appeals presented by the 52nd defendant in O.S. 105 of 1108 on the file of the District Court of Quilon. That was a suit for partition in a Malabar tarwad consisting of 46 members at the time of the action, one of whom was the plaintiff and the others were defendants 1 to 45. The 46th defendant is the wife of the 1st defendant who died pending the suit. Defendants 52 to 57 are their children. The 1st defendant contended, inter alia that there was no undivided tarwad as alleged in the plaint because, by means of an Udampadi of the year 1074 the tarwad got divided into 3 groups, that those three groups were in possession and enjoyment of properties allotted to them separately and that those groups thereafter conducted themselves as though there was no community of property as between them. Defendants 1 to 9 who formed one of the three groups divided as between themselves in the year 1096 and the 1st defendant separated as a single member. The properties in his possession were, therefore, claimed as exclusively belonging to him. Various facts and circumstances were adverted to in the written statement calculated to confirm the case set up by the 1st defendant of the disruption of the family even from the year 1074. Defendants 2 to 5 filed a written statement on the lines of the one filed by the 1st defendant. Defendants 6 to 9, 11 to 29 and 32 to 45 filed separate written statements. Only two members, viz. defendants 10 and 31 did not enter appearance, but they formed members of thavazhies or groups who field the aforesaid written statements.

(2.) The plea of prior partition having been found against and a preliminary decree for partition passed by the lower court, the widow and children of the 1st defendant as his legal representatives appealed to the erst while Travancore High Court but without success. They, therefore, applied in the court below for the share of the deceased 1st defendant being allotted to them as his heirs under the Nair Act. The Court below disallowed the prayer on the ground that the 1st defendant had not claimed his share in his written statement. A.S. No. 518/24 is against that order.

(3.) The 1st defendant claimed to have improved the properties in his possession at his expense. His widow and children prayed in the court below that at the partition the value of the said improvements may be ascertained and given to them. This claim was disallowed by the Court below on the ground that a karnavan of a tarwad effecting improvements upon tarwad properties in his possession is disentitled to claim value therefor. A.S. 561/1124 is against that order.