KRISHNA PILLAI Vs. SIVARAMA PILLAI

JUDGEMENT

(1.) THESE three second appeals are from a suit by six plaintiffs for partition of their share of the properties in suit, some of which were alleged to belong to their tarwad comprising also defendants 1 to 33, and other properties which were alleged to belong to the branch of the plaintiffs and defendants 1 to 25. Defendants 38, 43, and the legal representative of defendant 26, are the appellants in S.A. 506, S. A. 699, and S.A. 680 of 1960 respectively. The suit was contested by defendants 26, 38 and 43, inter alia on the ground, that by virtue of a prior partition deed Ext. III dated the 28th Edavom, 1117, entered into by some of the members of the tarwad along with others, as also by a long course of conduct, the tarwad became divided and so the plaintiffs are not entitled to the shares in the properties as claimed. THESE contentions were repelled by the Subordinate Judge, who gave the plaintiffs a preliminary decree for partition, differing from the Munsiff who dismissed the suit.

(2.) THE first question to consider is whether Ext. III is a bar to the suit. THE 26th defendant sued for partition of the tarwad in O.S. 365 of 1115; Padmanabhan Ayyappan of the tarwad was alive then and was impleaded as the first defendant. He and the present first defendant contended that the tarwad was not joint, but had become divided into four branches, that they were the sole surviving members of two of the branches and that some of the properties in suit belonged to them exclusively. During the pendency of the suit, some of the properties were partitioned by allotting them to the four branches, which were specified as those of Padmanabhan Ayyappan, of the first defendant, of the plaintiffs and defendants 2 to 25 and of defendants 26 to 33. THE branch of the plaintiffs & defendant 2 to 25, consisted of the lineal descendants of Easwari who were, Bhagavathi, Bhagavathi's sister's daughter the 8th defendant, the 8th defendant's children being the first plaintiff, defendants 3 to 5, 9 to 11, 17 & Kamalamma the deceased mother of plaintiffs 2 to 6, and the 8th defendant's sister's children being defendants 2 and 24. Four of the nine adult members of this branch who were then in existence have alone signed Ext. III, and the remaining five who have not signed it were Bhagavathi, Kamalamma, and defendants 3,5 and 24. Basing on Ext. III presumably, the 26th defendant filed an application for withdrawal of the suit, upon which the present 24th defendant was transposed as plaintiff on her application. Plaintiffs 1 to 6 and the 3rd defendant in this suit then filed their written statement Ext. U, in the year 1121, raising substantially their present contentions. Padmanabhan Ayyappan succeeded in the C.M. appeal preferred by him against the order of transposition and the 24th defendant failed in the revision petition preferred by her against the appellate order, but obtained a direction, that if so advised, she may file a fresh suit. Soon after the order of transposition was quashed in appeal, the plaintiffs commenced the present suit on the 5th Chingom, 1123. THE principal ground on which the plaintiffs attacked Ext. III was, that it was not executed by all the adult members of the tarwad and so is not binding on the plaintiffs who were minors at the time, and the principal defence was that it is valid, because the first plaintiff was represented in it by his mother the 8th defendant and plaintiffs 2 to 6 were represented in it by their mother Kamalamma as their respective guardians and that in any event, three out of the five adult members who did not sign it, have subsequently ratified or accepted it.

(3.) IT was then argued, that there has been a subsequent ratification by Kamalamma by Ext. V, and by Bhagavathi by Ext. XXV. Ext. V is a sale deed of the year 1118 executed by Kamalamma and attested by her husband, for Oodukoor 41 cents in Survey No. 362/3A. In Ext. V there was no reference to Ext. III at all. The allotment in Ext. III was only of 1.18 acres, the per capita share was only 4 cents and in this view, on division Kamalamma and her children were not entitled to more than 24 cents. Similarly Ext. XXV sale deed was executed by Bhagavathi in the year 1119, in which also there was no reference to Ext. III. These alienations were not in consonance with the allotment in Ext. III and if the executants had no right to make them, they can only be regarded as unauthorised alienations. The release deed Ext. XXXVIII taken by defendants 3 and 4 in respect of a mortgage of a property also allotted under Ext. III, did not refer to it & can be viewed only as having the force of an assignment of a mortgage. The 5th defendant gave no document to bind her to Ext. III and the 24th defendant was not precluded by the order on her application in the previous suit for transposition, from impeaching Ext. III. For these reasons, Ext. III is not binding on the plaintiffs or on defendants 5. 6 and 24 who had not participated in it.