DEVASSY Vs. THOMAS

JUDGEMENT

(1.) The defendants are the appellants. The first defendant is the son of one Mariyam through her first husband Chacko. The plaintiff in the suit is a son of Mariyam through her second husband Joseph. Through Joseph Mariyam had another son and two daughters also. The said son of Joseph and two daughters released their rights in favour of Thomas, the plaintiff. Defendant No.2 is the wife of the first defendant and defendants 3 to 6 are their children. The plaintiff filed the suit for partition and delivery to him of a 4/5th share in the suit property. The first defendant resisted the suit contending that he is entitled to the property and in the alternative he is entitled to the one half share in the property and not to a 1/5th share as contended by the plaintiff. The courts below have accepted the plea of the plaintiff and have held that the first defendant is entitled only to '/5th share in the property. The first defendant alongwith his wife and children have come up with this Second Appeal.

(2.) The property sought to be divided was the kudikidappu of Mariyam, the mother. Mariyam died on 8-2-1967. Mariyam had, as noticed, five children. Three of the children assigned their rights over the property to the plaintiff. On the strength of that assignment and claiming on the basis that the property belonged to his father, the second husband of Mar yam, the plaintiff applied to the Land Tribunal for assignment of the kudikidappu right in his favour. The first defendant got himself impleaded and claimed that he was also an owner of the kudikidappu. It was determined by the order Ext.A2 that the first defendant was also entitled to kudikidappu right in the property. The Land Tribunal passed an order directing assignment of the kudikidappu in the joint names of the first defendant and the plaintiff. There was also a suit O.S. 374 of 1979 filed by the present plaintiff for an injunction restraining the appellant from altering the structure in the property. The first defendant raised the plea of kudikidappu in that suit as well. The question was referred to the Land Tribunal under S.125(3) of the Kerala Land Reforms Act. The said reference and the application under S.80 B filed by the present plaintiff Thomas referred to earlier were heard together. The finding in the reference was "also that the kudikidappu right belonged both to the present plaintiff and the first defendant. The suit was dismissed by the Trial Court on accepting that finding. There was an appeal against that decree as A.S. 118 of 1984. By Ext.B2 judgment that appeal was also dismissed. There was an appeal as LRAS 48 of 1985 against the order on the application under S.80B recognising the joint rights of the parties. That appeal was also dismissed by the Appellate Authority (LR).

(3.) It is thereafter that the present suit was filed by Thomas for partition claiming " a 4/5th share on the strength of the assignment in his favour by the three other heirs of his mother and conceding a share to the first defendant. The first defendant pleaded that he was entitled to a half share in the property. He had also a larger contention that since he alone was residing in the kudikidappu at the relevant time he alone was the kudikidappukaran and the rights of the other children of Mariyam does not survive.