DINESH MENON Vs. GOMATHY AMMA

JUDGEMENT

(1.) The appellant is the plaintiff in O.S.No. 1163 of 1987 on the file of the First Additional Sub Court, Ernakulam. The plaintiff filed the suit for partition and separate possession of his 1/6th share in the plaint schedule properties. The plaintiff and defendants 1 to 5 are members of the undivided Nair Tharawad, Iyyattil. The plaintiff was born on 5.11.1969. Defendants 1 to 5 entered into a partition of the properties on 3.5.1969 ignoring the existence of the plaintiff in the womb of his mother, the second defendant and no share was given to him in the partition. In the suit the plaint has sought for a declaration that the partition deed No. 932 of 1969 of the Sub Registry Office, Ernakulam has no legal effect as far as the plaintiff and his share is concerned and partition and separate possession of his 1/6th share over the property by metes and bounds.

(2.) Defendants 1, 3, 4 and 5 in their written statement raised a contention that the plaintiff was given his share along with the share of the 2nd defendant by allotting a double share and he is not entitled to get a declaration. The second defendant remained exparte. The first defendant contended that out of 43.750 cents of ancestral property, an extent of 17.58 cents of land was allotted as the share of the plaintiff's mother taking into account the existence of the plaintiff in his mother's womb though the properties were shown as divided into 5 shares in the partition deed. The valuable property allotted to the second defendant in the M.G.Road was double share compared to that of other sharers. The first defendant's personal property was also included and in case of re-partition, that item has to be excluded and reservation of her ancestral house in which she is living has to be made.

(3.) Defendants 3 and 4 in their written statement raised almost identical contentions. It is further contended that the husband of the second defendant insisted that the inclusion of the plaintiff in the womb need not be stated in the partition deed and hence the same was not included. Most valuable property in M.G.Road worth several lakhs was allotted to the second defendant. She had sold 5 cents of property to the father-in-law of the 5th defendant who has constructed a big building thereon.