VILASINI AMMA Vs. K.UNNIKRISHNAN

JUDGEMENT

(1.) Defendants 1 to 6 and 8 to 10 in O.S.No.54/2004 on the file of the Additional Sub Court, Thalassery are the appellants herein. The suit was filed by the plaintiffs for partition of the plaint schedule property on the allegation that the property belonged in jenmm to Akkara Veedu thravad which was taken on lease as per marupattam dated 18.11.1909. The predecessor in interest of the plaintiffs and defendants were keeping possession of the property. Thereafter the rights in the property devolved on Unni Chiruthai Amma. After the death of Unni Chiruthai Amma, her rights devolved on her two daughters Kumba Amma and Chiruthai Amma. Kumba Amma had three children namely Narayanan, Sankaran and Paru Amma. All these persons died and the rights of Paru Amma devolved on her children namely Ramunni, Gopalan, Sankaran and Ammalu Amma. After their death, the rights of Ammalu Amma devolved on her seven children, who are plaintiffs 1 to 7.

(2.) Rights of Chiruthai Amma devolved on her daughter Narayani Amma. After the death of Narayani Amma, her rights devolved on her 4 children namely Kunhikuttan, Kunhiraman, Padmanabhan and Devaki. After the death of Devaki, her rights devolved on her five children who are defendants 1,3,7,8 and Bhaskaran, husband of the 11th defendant. The second defendant is the son of the first defendant. Defendants 4, 5 and 6 are the children of the third defendant and defendants 9 and 10 are the children of the 8th defendant. Since the property is a thavashy property, plaintiffs 1 to 7 and Bhaskaran, husband of the 11th defendant who were all born before 1976 alone are having right in the property and after the coming into force of the Hindu Joint Family Abolition Act, they become co -owners of the property. They are enjoying the property as joint owners and the 3rd defendant is residing in the property. While so, for the purpose of permitting the third defendant to construct a house in the property, an arrangement was entered into on 7.11.1973 and also agreed between the parties that in the event of partition, the house will be allotted to the share of the third defendant on payment of owelty amount if any. Thereafter plaintiffs 1 to 7 have assigned their right over 7 cents of property in favour of plaintiff No.8 as per registered assignment deed. On coming to know about the assignment in favour of plaintiff No.8, defendants 1 and 2 tried to construct a pathway and so he filed O.S.No.239/2002 before the Munsiff Court, Thalassery for injunction restraining them from trespassing into the property. But later the suit was withdrawn as parties are co -owenrs and no suit will lie for injunction against them. Though notice has been issued, the first defendant sent a reply with untenable contentions. So they prayed for partition of the plaint schedule property into 18 equal shares and allotment of 7 cents share to the plaintiffs jointly.

(3.) Defendants 1, 2, 7 and 11 filed a written statement contending that the plaintiffs are not co -owners of the plaint schedule property. They have no right over the plaint schedule property. The defendants have not received the copy of the genealogy said to have been filed along with the plaint. The connection that the connection between the marupattam and the plaintiffs was not mentioned in the plaint. The names of the common ancestors of the plaintiffs and the defendants are not mentioned. It is not mentioned as to how the property devolved on Unni Chiruthai Amma. The allegation that they were enjoying the property as co -ownership property or thavazhy property is not correct. The third defendant constructed a house on the northern portion of the plaint schedule property. It is not stated anywhere that while effecting partition that will be allotted only on payment of owalty. The house on the northern side was constructed exclusively using the fund of the husband of the third defendant namely Narayanan Nambiar and his wife and children. They were not aware of the assignment mentioned and also the suit filed as O.S.No.239/2002 which was later withdrawn. Neither the plaintiffs nor their predecessors have got any right in the property which is known as Naduvilakandi paramba and that belongs to Naduvilakandi thavazhy of which Narayani Amma was the common ancestor. The descendants of Narayani Amma have been in possession of the property for the last so many years. Ammalu Amma, the mother of Leelavathy (the 7th plaintiff) was a servant who used to help Narayani Amma and first defendant's mother Devaki Amma. Leelavathy, her daughter came down to thavazhy sometime back and demanded some amount which the defendants refused. In order to wreck vengeance, they have filed the suit. The plaintiffs are not entitled to get any right in the property and they prayed for dismissal of the suit with compensatory cost.