K. GANGADHARAN NAIR Vs. P.O. BHANUMATHI AMMA

JUDGEMENT

(1.) Appellants are defendants 1 to 4, 6,7 and 9 in O.S.No.600/1997 on the file of the Additional Munsiff Court, Kozhikode-II. Suit was filed by respondents 1 and 2 as plaintiffs for partition. Preliminary decree was passed in the suit by the learned Munsiff declaring the entitlement of plaintiffs to get 8/18 shares in the plaint property. Plaintiffs were allowed to have division of their share in the plaint property by metes and bounds in final decree proceedings relegating equities claimed by some of the defendants also to be considered in such proceedings. That preliminary decree was challenged by defendants 1 to 7 and 9 filing an appeal reiterating the contentions resisting the suit claim for partition. In that appeal 8th defendant an assignee who purchased rights over a portion of plaint schedule property from one of the sharers, filed cross objections against the decree. The appeal and also cross objections were dismissed by learned Sub Judge, Kozhikode. Against the concurrent decision rendered by two courts below upholding the claim of plaintiffs for partition of plaint property and allotment of their shares, the above appeal has been filed.

(2.) Substantial questions of law raised in the appeal on which notice was ordered have been reframed after hearing counsel on both sides. Questions reframed for hearing are thus:

(3.) Partition of plaint B schedule property having an extent of one acre thirty cents is claimed in the suit. Admittedly that property belonged to the thavazhi of Kottayi Kunhamma. Case of plaintiffs that plaint schedule property belonged to Kalliani Amma, daughter of Kunhamma, and her two sons Govindan Nair and Gopalan Nair is not under dispute. First plaintiff is the widow of Govindan Nair and second plaintiff is his daughter, was the case of plaintiffs to claim partition of their share in the plaint property. Kalliani Amma, mother of Govindan Nair, after his death, had passed away, and as such plaintiffs, both of them together, are entitled to have 1/2 share in the plaint property and the rest would go to the legal heirs of Gopalan Nair, defendants 1 to 7, was their case. 8th and 9th defendants were subsequently impleaded in the suit not as sharers but persons who claimed of obtaining rights in the property under documents created by some among the co-owners of the property.