UNNIKRISHNAN Vs. MEENAKSHIKUTTY AMMA

JUDGEMENT

(1.) THE Plaintiff in a suit for partition is the appellant. The plaint schedule property originally belonged to the tharwad of the father of the plaintiff one Kunhikrishnan Nair, under Ext. A1 a deed of partition dated 11-3-1113 (M.E.) the tharwad got itself divided into three thavazhies. The father of the plaintiff Kunhikrishnan Nair at that time the karanavan of the tharwad. In the partition Ext. 41 shares were calculated per capita. There were 17 member in the tharwad at that time. But presumably taking note of the services rendered to the tharwad by the Karanavan Kunhikrishnan Nair the father of the plaintiff the properties were divided into 18 shares and one additional share was allotted to the karanavan Kunhikrishnan Nair. But in the deed Kunhikrishnan Nair alongwith parties 2 and 11 formed one thavazhy and this additional share awarded to Kunhikrishnan Nair was included in the schedule of the thavazhy consisting of Kunhikrishnan Nair, Lakshmi Amma and Meenakshi Amma and the son of Lakshmi Amma one Madhavan Nair who constituted the first thavazhy. The present suit was filed by the son of Kunhikrishnan Nair claiming 2/5th share in the plaint schedule property on the basis that the one share allotted in addition to his father Kunhikrishnan Nair under Ext. A1 is the separate property of Kunhikrishnan Nair and the other 1/18th share enured to the thavazhy of which Kunhikrishnan Nair was a member. The suit was resisted by the defendants who are the children of Lakshmi Amma party No.2 in Ext. A1 on the ground that the one additional share earmarked for Kunhikrishnan Nair the karanavan that was allotted alongwith the share allotted to the thavazhy also enures to the thavazhy and therefore Kunhikrishnan Nair had only 1/4th share in the plaint schedule properties and that alone could devolve on the death of his father. The Trial Court on a construction of Ext. A1 and proceeding on the basis that the additional share allotted to Kunhikrishnan Nair in Ext. A1 partition would not be his separate property proceeded to upheld the defendants' contention and grant the plaintiff only a 1/4th share in the suit properties on the basis that the 2/18th share allotted under Ext. A1 partition enures to thavazhy in its entirety. It is challenging this decree that the plaintiff has come up with this appeal.

(2.) ADMITTEDLY Kunhikrishnan Nair was the karanavan of the tharawad. Quite obviously he could also be the karanavan of his thavazhy. In Ext. A1 tharawad partition it was noted that there were only 17 members in the tharawad but that the properties were being divided into 18 shares with a view to allot one additional share to the karanavan. It is stated in the partition deed that the division was being made per capita but that one additional share was being given to Kunhikrishnan Nair. This additional share was allotted alongwith the properties allowed to the thavazhy of Kunhikrishnan Nair. It was not allowed to him in a separate schedule in that partition. It is the plaintiff case that this 1/18th share additionally allotted to Kunhikrishnan Nair his father should go to him exclusively on the strength of Ext. A5 will whereas according to the defendants, the members of the thavazhy, since this additional share was also allotted alongwith the allotment to the thavazhy if must be treated as an allotment Co the thavazhy itself and that therefore no separate right of Kunhikrishnan Nair could be recognised over the said 1/18th share. The defendants also pointed out that in a subsequent renewal of the tenancy executed by Kunhikrishnan Nair and the jenmi in respect of the schedule allotted to the thavazhy including the 1/18th share of Kunhikrishnan Nair no distinction was made by Kunhikrishnan Nair in respect of the 1/18th share allotted to him at the time of Ext. A1 partition. The defendants rely upon this as a course of conduct on the part of Kunhikrishnan Nair indicating that he had no intention to treat this 1/18th share as his separate property at any time. The court below has rested its decision that the said 1/18th share also belongs to the thavazhy on the fact that the said 1/18th share is allotted along with the rest of the property in one schedule to the thavazhy in a partition which was essentially a thavazhy partition and. that in executing Ext. B1 the renewal of the lease Kunhikrishnan Nair himself made no distinction between his individual share and the share allotted to his thavazhy in Ext. A1 partition.

(3.) IF the additional share had been allotted to Kunhikrishnan Nair in his capacity as karanavan of his thavazhy the position may be different. But in this case at noticed by me the allotment was made to Kunhikrishnan Nair not in his capacity as the karanavan of his thavazhy but taking note of the fact that he was the karanavan of the tharwad and presumably taking note of the services rendered by him to the tharwad. No decision has been brought to my notice wherein such a specific issue has been dealt with. I take it that the answer to the question would depend upon the intention at the time of partition and how the defendants dealt with the properties obtained in such partition. I have already found that there is no conduct on the part of Kunhikrishnan Nair which would lead to an inference that he has blended the 1/18th share given to him under Ext. A1 alongwith the properties of the thavazhy. I have also noticed that the allotment was made to him presumably in lieu of the services rendered by him to the tharwad as a karanavan of the tharwad. It had nothing to do with his status as a member of a particular thavazhy or as a karanavan of that thavazhy. I therefore disagree with the Trial Court and hold that the 1/18th share allotted to Kunhikrishnan Nair under Ext. A1 partition would be his separate property and would go to his son the plaintiff in the light of Ext. A5 will executed by Kunhikrishnan Nair.