SANKARAN POTTI MADHAVAN POTTI Vs. KOCHEHI KRISHNAN

JUDGEMENT

(1.) The appellant is the first defendant in a suit for partition. The plaintiff in the suit got a sale deed executed from defendants 13 to 22 in respect of their share in the properties of the Illom of which they are the members. The 13th defendant is a son of Sankaranarayanan Potti, a brother of the first defendant. The defendants 14 to 19 are the minor children of tine 13th defendant. The 20th defendant is a brother of the 13th defendant. The 21st defendant is the wife of the 13th defendant and 22nd defendant, a major daughter of the 13th defendant. In pursuance of the right conferred under Exhibit P1, the assignment deed the plaintiff filed a suit for partition alleging that there was an oral partition prior to the assignment in his favour. The first defendant contested the claim and denied that there was any oral partition in the Illom. He, however, put forward a case that Sankaranarayanan Potti, his brother had released his rights in favour of the first defendant in the year 1092, and therefore, defendants 13 to 22 had no rights over the property of the Illom.

(2.) The Trial Court did not accept the case of oral partition. Neither the contention that there was a release of rights by Sankaranarayanan Potti was accepted by the Trial Court. The Court, however, held that the assignment of the rights in favour of the plaintiff conveyed only the shares of defendants 13 and 20 to 22 who were the major members of the branch and not of the minors, defendants 14 to 19. A preliminary decree for partition was accordingly passed in respect of 4/22 share in the plaint A schedule property, subject to some reservations.

(3.) Appeals were filed as A. S. Nos. 93 and 104 of 1968 before the Subordinate Judge, Attingal by the first defendant and the plaintiff respectively. The Subordinate Judge dismissed the appeal filed by the first defendant, allowed the appeal filed by the plaintiff in part and held that the plaintiff was entitled to get 10/22 share in the plaint A schedule items inclusive of the minors' interest. The present Second Appeal is preferred by the first defendant against the above decree.