CHEERU Vs. ARAVANTHI

JUDGEMENT

(1.) The tenth defendant is the appellant. The suit is for partition. Parties are Ezhavas governed by the Cochin Thiyya Act, Act VIII of 1107. Plaint properties belonged to one Unnooly who died before 1088. She had three daughters, Kurungali, Koma and Nani. Koma died issueless. Kurungali had seven children, Aravanthi (P1), Ayyappan (P2), Cheeru (P3), Ayyan (deceased), Ikkoran (deceased), Narayanan (deceased) and Kunjan (deceased). The other plaintiffs are the descendants of Cheera, Ayyan, Ikkoran, Narayanan and Kunjan. Nani died in 1088. She had six children, Kochukrishnan, Kunjunni, Kesavan, Sekharan, Paru and Kutti. Kochukrishnan died issueless. Defendants 19 to 22 are the heirs of Kunjunni, 16,17 and 18 the heirs of Kesavan, 10 to 15 the heirs of Sekharan, the 9th defendant the daughter of Paru and defendants 1 to 7 the heirs of Kutti. The 8th defendant is the husband of the 9th defendant. Plaintiffs who constitute the thavazhi of Kurungali have instituted this suit for partition of one half share in the plaint properties, Nani's branch being entitled to the other half. They also claimed mense profits at the rate of Rs. 100/- per annum in respect of their one half share. It was alleged in the plaint that some of the heirs of Kurungali had executed an assignment in 1105 in respect of their share in the plaint properties in favour of the 10th defendant, that the sale was void since the executants of it had no transferable interest in the properties on the date of the sale and that the sale deed was not supported by consideration and good faith. The plaintiffs, therefore, ignored the sale deed and sought partition of the properties.

(2.) Defendants 1 to 7, 8, 10 and 16 to 18 filed written statements in the case. For the purpose of this appeal, we are concerned only with the contention of the 10th defendant. The 10th defendant contended that the sale deed in her favour was valid, that it was fully supported by consideration and good faith, and that the plaintiffs were estopped from contending that it was not binding on them. It was, therefore, contended that the plaintiffs were not entitled to any share in the plaint properties and that the suit was liable to be dismissed. She also contended that in case of partition she should be awarded one half share purchased by her and that herself and her children, defendants 11 to 15, should be awarded Sekharan's 1/5th share in the other half.

(3.) The sale deed in favour of the 10th defendant is Ext. I dated 12.1.1105. The court below held that the executants of Ext. I had no alienable interest in the properties on the date of the document and that, therefore, it was void. Accordingly it was held that the plaintiffs were entitled to one half share in the plaint properties. Defendants 1 to 7 were awarded 1/6th share, the 8th defendant another 1/6th share, and defendants 10 to 15 the remaining one sixth share. A preliminary decree was passed to the effect. Hence this appeal.