NARAYANAN Vs. SANKUNNI

JUDGEMENT

(1.) The plaintiff and defendants 1 and 2 are the sons of Krishnan by his wife Kali. The 3rd defendant is the sister of the plaintiff. In 1107 there was a partition between Krishnan, Kali and their sons by which the common properties were divided and the sons were given their shares. The parties are Makkavazhi Ezhavas of Cochin. In the partition deed Ext. 5 provision had been made for certain amounts to be paid to the 3rd defendant and to one Ammu the daughter of the deceased sister of the plaintiff. It was also provided in Ext. 5 that after the death of Krishnan and Kali, the properties that would be left by them were to be divided among the three sons, the plaintiff, the 1st defendant and the 2nd defendant in equal shares after giving the 1st defendant Rs. 300/-. Krishnan died in 1119 and Kali in 1121. It is stated that the properties mentioned in schedules A to D were left by them and the suit is for partition of the same. The bronze vessel mentioned in the E schedule was said to belong to the plaintiff and that was retained by the 2nd defendant. He wanted the return of the same or the value thereof. A schedule items 1 to 8, the outstanding in B schedule items 1 to 19 and C schedule debts were said to be the properties left behind by the father and the remaining properties were left by the mother. After the death of the father, there was an attempt to divide his properties. Though the mediators prepared a partition deed, it was not accepted by all the persons due to some difference of opinion. Some properties were however left in the possession of each of the sons. The properties in schedules B, C and D were respectively money due to Krishnan, the movables owned by him and the ornaments belonging to Krishnan and Kali. The plaintiff wanted to have these properties divided and the accounts between parties settled. The 3rd defendant had not been originally made a party to the suit. She got herself impleaded on her own application and she claimed to be a cosharer with the sons under the provisions of the Thiyya Act. Her claim was opposed be the three sons saying that, even before the promulgation of the Thiyya Act, there was a testamentary disposition of the properties of Krishnan and Kali by introducing a provision in Ext. V itself in 1107.

(2.) The first defendant had stated that items 1 to 4 in the A schedule were leased out to him by his father on a pattom of 125 paras of paddy per year. Two items of properties held on Verumpattom by the father remained to be partitioned and the same were to be included in the plaint. All the items of immovable properties except items 1 to 4 and all the movables belonging to the father and mother were with the 2nd defendant. He was not in possession of any of the items in C and D schedules as mentioned in the plaint. The 2nd defendant had represented to him that the ornaments with the mother were given by her to her daughters their children. The attempted partition of the father's properties fell through because of the difference of opinion between the parties. He had spent Rs. 563 and odd for the funeral ceremonies and Adiyanthirams of the mother and he was to get the same from the estate. He was also to get Rs. 300 provided for in Ext. 5.

(3.) The 2nd defendant stated that because he was physically and mentally unfit to manage the properties allotted to him under Ext. V, the father himself was managing the same, that the father had acquired properties with the income therefrom, that he had spent money for the treatment of the mother and also for the funeral ceremonies of the father and mother, that he was to get back the same with interest at 6 per cent per annum, that the movables mentioned in the plaint which were said to belong to parents were not with him, that the bronze vessels in E schedule did not belong to the plaintiff but that it belonged to him, that after the attempt to divide the father's properties through the help of the mediators fell through, the mother ascertained the yield from the properties and divided them among the sons so that a reallotment of those properties was necessary, that he had no objection to the division of the mother's properties and that a decree was to be passed as prayed for by him.