ACHUTHA MENON Vs. JAGANATHA MENON

JUDGEMENT

(1.) The 1st defendant in O.S. No. 35 of 1975 before the Sub Court, Palghat is the appellant. The appeal is directed against the preliminary decree and judgment dated 3-1-1978 in the suit for partition whereby the court declared the plaintiff's right for 1/6th share in the sub-tarwad properties granting the incidental reliefs.

(2.) The plaintiff and defendants 1 to 4 are members of Marumakkathayam sub tarwad governed by the Madras Marumakkathayam Act 1932 and the Kerala Joint Hindu Family System (Abolition) Act 1976. The plaintiff claimed 1/6th share in the suit properties stating that the tavazhi is undivided and these are tavazhi properties. The plaintiff had on 16-7-1971 executed Ext. B5 registered release deed in favour of the 1st defendant the then Karanavan of the sub tarwad transferring his rights in item Nos. 1 to 3 for a consideration of Rs. 1,000/-. There had been a subsequent partition deed executed between the other members of the tarwad as evidenced by Ext. B6 dated 29-7-1974. The plaintiff alleged that Ext. B5 is vitiated by fraud and undue influence and is inoperative and Ext. B6 does not bind him.

(3.) The 1st defendant contended inter alia thus. The plaintiff had released his interest in the tavazhi properties by executing Ext. B5 in his favour. The plaintiff is not therefore entitled to any share in the suit properties. The properties had been divided between the members and enjoyed by them on the basis of the division effected. It was also contended that the 1st defendant was not the karanavan of the tarwad and item No. 6 of the plaint schedule property belongs to him exclusively. By filing an additional written statement the 1st defendant put forward his further contention that even if Ext. B5 is avoided as invalid, the properties included therein cannot be recovered by the plaintiff inasmuch as the 1st defendant is entitled to the property on equitable principles.