KALLIYANI Vs. LEELA

JUDGEMENT

(1.) WHETHER the acquisition of an item of immovable pro­perty before the coming into force of the Madras Marumakkathayam Act(Act XII of 1933 ),by and in the name of a Thiyya woman,and all her children who,being members of a natural group,constituted a Marumakkathayam tavazhi of the erstwhile Malabar area by itself would raise the presumption that the property so acquired was to be held as belonging to a tavazhi is the common question of general importance that falls for consideration in these two second,appeals,In S.A.No,1084 of 1972 there is a further question,whether the 11th defendant in the suit is entitled to a share in the plaint schedule property.

(2.) ONE Prikkachi and her seven children,namely,Sekharan,Kalliyani,Panchali,Korumbi,Kunhirama,Krishnan and Koran,acquired the leasehold interest in the plaint schedule property as per the registered assignment deed dated 23rd February 1914,a true copy of which is Ext.A -1 Prikkachi died long ago;and so did Kunhiraman who had not married.Koran died in July 1936,after the Hindu Succession Act came into force on 17th June 1956;the first plaintiff is his widow and plaintiffs 2 to 4 are his children.Korumbi died leaving behind defendants 4 and 5 as her legal heirs.Even before the filing of the suit,Sekharan,who was shown as the first defendants,had dead;his legal representatives have been impleaded as defendants 5 to 10.Krishnan died in the year 1963,and the 11th defendant who was not originally a party to the suit got her­self impleaded,claiming that she was his daughter and legal heir.Second defendant Kalliyani and the 3rd defendant Panchali are the surviving children of Prikkachi.The plaint proceeded on the footing that the plaintiffs were entitled to have the plaint schedule property divided into five equal shares and to get one of such share allotted to them as the legal heirs of deceased Koran,treating the acquisition under the original of Ext.A -1 a one for en­joyment as tenants in common among the acquirers.Accord­ing to them,both Krishnan and Kunhiraman died unmarried and their right as well as that of Panchali on her death devolved on the remaining five persons.The legal heirs of deceased first defendant impleaded as defendants 6 to 10 did not contest the suit.Defendants 2 to 5 who fled a joint written statement contended,inter alia,that the suit was not maintainable;the plaint schedule property was acquired and enjoyed as one belonging to the tavazhi of Prikkachi;and the rights,if any,the plaintiffs had as legal heirs of deceased Koran were lost because of the adverse possession by the tavazhi.After the 11th defendant got herself impleaded to contest the matter,the plaintiffs were prepared to concede one out of six equal shares to her,treating her as the legitimate daughter and legal heir of deceased Krishnan.Defendants 2 to 5 throughout took stand that the 11th defendant was not the legal heir of deceased Krishnan.

(3.) BOTH the second appeals are by defendants 2 to 5;S.A.No.1084 of 1972 being against A.S.No.115 of 1970;and S.A.No.1085 of 1972 being against A,. S.No.116 of 1970.