KESAVAN SADASIVAN Vs. KESAVAN SIVANANDAN

JUDGEMENT

(1.) This appeal is directed against the preliminary decree passed by the lower court in O.S. No. 247 of 1122 on its file. It is a suit for partition of the plaint properties which are claimed to be the assets left by one Velayudhan Kesavan at the time of his death which was subsequent to the coming into force of the Travancore Ezhava Act (Act III of 1100). He had two wives of whom the first died prior to the institution of the present suit. The children born to her by Velayudhan Kesavan are defendants 1 to 3. The second wife is the 8th plaintiff and the children born to her by Velayudhan Kesavan are plaintiffs 1 to 7. Defendants 4 to 35 are the seshakkars of the said Kesavan. It is agreed on all hands that Velayudhan Kesavan was a misradayi Ezahva and that he had got himself exempted from the operation of the provisions of Part IV of the Ezhava Act. The result was that in the matter of intestate succession he was governed by the misradayam or mixed system of inheritance which was in force at the time of passing of the Ezhava Act. Under that system one-half of the assets left by a misradayi Ezhava would devolve on his wife and children, while the other half would devolve on his seshakkars or marumakkathayam heirs. That a half-share in the plaint properties should go to defendants 4 to 35 as the Marumakkathayam heirs of Velayudhan Kesavan, is not disputed. The controversy is only about the manner in which the remaining portion is to be shared by the Makkathayam heirs who are plaintiffs 1 to 8 and defendants 1 to 3.

(2.) According to the plaintiffs the division of this half share should be on a per capita basis and that the plaintiffs are entitled to get 8/11 share of the half share due to the Makkathayam heirs. The position taken up by defendants 1 to 3 is that as per the special custom that prevailed among misradayis each of the wives of a deceased misradayi Ezhava, along with the children born to her from him, will get an equal share in the half-share of his assets. The lower court found that there existed such a custom having the force of law, and thus upheld the contention put forward by defendants 1 to 3. Accordingly, a preliminary decree was passed, directing a partition of the suit properties and allotting one-half share to the group of defendants 4 to 35, one-fourth share to the group represented by plaintiffs 1 to 8 and the remaining one-fourth share to the group represented by defendants 1 to 3. Not satisfied with such a decree, the plaintiffs have preferred this appeal, re-iterating their claim that they are entitled to get 8/11 shares out of the half-share due to the Makkathayam heirs of Velayudhan Kesavan.

(3.) The Division Bench before which this case came up for hearing, passed the following order referring the case to a Full Bench:-