PARVATHI BHAVANI Vs. VELAYUDHAN GOVINDAN

JUDGEMENT

(1.) This appeal arises out of a suit for cancellation of a partition deed and a fresh partition of the properties comprised in the said deed. The parties are Ezhavas governed by the Travancore Ezhava Act, III of 1100. Defendants 1 and 2 are brother and sister respectively, and they are the children of one Kannan Velayudhan and his wife Kurumba Eachamma both of whom are now dead. Kannan Velayudhan died on 9.2.1116 and Eachamma on 6.7.1122. Plaintiffs 1 and 10 are daughters of defendant 2. Plaintiffs 2 to 8 are the children of plaintiff 1, and plaintiffs 11 and 12 are the children of plaintiff 10. Plaintiff 9 is the daughter of plaintiff 2.

(2.) Besides defendants 1 and 2 Kannan Velayudhan and Eachamma had two more children. Those two children also are now dead. One of them, Narayani, had a son named Sivadasan who too is now dead. Before Kannan Velayudhans death, Kannan Velayudhan and Eachamma executed a settlement deed, Ext. A in favour of defendants 1 and 2 and Sivadasan on 18.11.1111. The settlement deed contains numerous provisions regarding the enjoyment of the properties dealt with therein. For the purpose of this case it is unnecessary to recapitulate here all those provisions and it will be sufficient to note that by Ext. A the properties dealt with thereunder were divided into three schedules and one of the schedules was allotted to defendant 1, another to defendant 2, and the third to Sivadasan. At the time of the execution of Ext. A Sivadasans mother as well as the other child of Kannan Velayudhan and Eachamma were both dead, and so allotments were made under that document only to defendants 1 and 2 and Sivadasan. There is a dispute between the plaintiffs and the defendants as to whether the share allotted to defendant 2 under Ext. A was given for her exclusive benefit or for the benefit of her thavazhi consisting of herself and her children. After the execution of Ext. A Kannan Velayudhan made some more acquisitions. Those acquisitions are A schedule properties in the present suit. Sivadasan was a minor at the time of the execution of Ext. A, and he died subsequently, while he was still a minor and unmarried. The properties given to him under Ext. A are B schedule properties in this suit. Before the execution of Ext. A Kannan Velayudhan and his brother had executed a gift deed, Ext. I, in favour of Eachamma and her children in 1091. The properties comprised in that gift deed are C schedule properties in this suit. While Eachamma was alive a partition deed, Ext. C, was executed by her and defendants 1 and 2 on 13.11.1119 whereby plaint A, B and C schedule properties were divided on the footing that they belonged only to defendants 1 and 2 and Eachamma and that the plaintiffs who are defendant 2s children and their issue had no right to them. The plaintiffs brought the present suit for cancellation of Ext. C and for partition of plaint A, B and C schedule properties. Their case was that A and C schedule properties were obtained by Eachammas thavazhi as their sub tarwad properties from Kannan Velayudhan and his brother, that on Sivadasans death B schedule properties also became the sub tarwad properties of the said thavazhi, that the partition deed, Ext. C, was invalid as it was executed only by Eachamma and defendants 1 and 2, that the other adult members of the sub tarwad had not joined in its execution or agreed to it, that its execution was also brought about by fraud and undue influence practised by defendant 1 on defendant 2, that the division of properties thereunder was unfair and inequitable, and that it was therefore liable to be set aside. Defendants 1 and 2 contested the suit filing separate written statements. They denied the case of fraud and undue influence alleged in the plaint and contended that the plaint properties belonged only to defendants 1 and 2 and Eachamma, that the properties were not sub tarwad properties at all and the plaintiffs had no right to them, that the other adult members of the tarwad were not necessary parties to the execution of Ext. C, and that Ext. C which was executed and agreed to by defendants 1 and 2 and Eachamma was perfectly valid and not liable to be set aside. The court below upheld their contentions and dismissed the suit with costs. The plaintiffs have therefore brought this appeal.

(3.) The allegation in the plaint that defendant 1 had practised fraud and undue influence on defendant 2 is not only supported by no evidence but is also denied by defendant 2 herself who has been examined as Dw. 1. This question was not therefore pressed by the appellants counsel in this Court. In view of the clear provisions in the Ezhava Act, III of 1100, relating to intestate succession to self acquired and separate properties of males and the provision in Ext. I that the donees were to take the gift thereunder equally, without any distinction as to any of them being a male or female, (kv{Xo ]pcpj t 'Zas\y) the findings of the Court below that plaint A and C schedules were not the plaintiffs sub tarwad properties and belonged only to defendants 1 and 2 and Eachamma in their individual rights at the time of the execution of Ext. C were also not seriously objected to at the time of hearing here.