THOMAS P VARGHESE Vs. SUKESH THOMAS VARGHESE

JUDGEMENT

(1.) This appeal at the instance of the 2nd defendant is directed against the preliminary decree passed by the lower court for partition and separate allotment of 1/5 share in the suit properties to the plaintiffs.

(2.) The suit properties belonged to one Thomas Pookoyikal. Kora Eapen Varghese and George Varghese (both deceased), and defendants 1 to 3 are his sons. Defendants 5 to 7 are his daughters of whom the 7th defendant is even now a spinster. The plaintiffs and the 12th defendant claim to be the legal heirs of deceased Kora Eapen Varghese and seek partition and separate allotment of one out of 5 shares in the suit properties that would fall to the share due to him. The suit is contested by defendants 2 and 5 to 8, the 8th defendant being the alienee of item 4 from the 4th defendant. The 4th defendant is the son and legal heir of deceased George Varghese. According to the contesting defendants, the 12th defendant was not the wife and plaintiffs 1 to 3 are not the legitimate children of Kora Eapen Varghese entitled to inheritance under the Travancore Christian Succession Act, 1092. They set up a partition Ext. A1 dated 7-3-1973 among defendants-1 to 7 as per which some properties have been allotted to the plaintiffs in consideration of the fact that they are the children of Kora Eapen Varghese. The defendants contend that the plaintiffs have no legal right to claim partition and seek to uphold Ext. A1 as a reasonable settlement among the legal heirs of Thomas Pookoyikal. The court below found that the plaintiffs are the legal heirs of deceased Kora Eapen Varghese and they are not bound by Ext. A1 partition to which they are not parties. A preliminary decree was therefore passed declaring the plaintiffs' right to partition and separate allotment of 1/5 share in the plaint schedule properties subject to a charge for Sthreedhanam due to defendants 5 to 7, under S.28 of the Travancore Christian Succession Act. A provision is made in the preliminary decree permitting defendants 5 to 7 to pay the requisite court fee to enforce the charge. There is a further direction that in making division, plaint item 4 will not be allotted to the share of the plaintiffs as far as possible for the reason that the said item bad been alienated to the 8th defendant. The plaintiffs were allowed proportionate share of profits from those among the defendants found to be in possession of the plaint items. The quantum of profits was left to be decided at the stage of passing the final decree. The plaintiffs' right to the 1/.5 share was made subject to the rights of their mother the 12th defendant under the Travancore Christian Succession Act. It is against the preliminary decree declaring the plaintiffs' right to 1/5 share in the suit properties that the 2nd defendant has come up in appeal.

(3.) The 5th defendant has filed a memorandum of cross objections in so far as the decree of the court below has set aside the allotment of properties to defendants 5 to 7 under Ext. A1.