GOVINDA PILLAI Vs. LEKSHMIKUTTY AMMA

JUDGEMENT

(1.) THIS appeal is by the defendants 1 to 4 in a suit for partition and the question is how far the rule as to the nature and incidents of puthravakasam property enunciated in Krishnan Nair v. Cheethamma,10 Cochin law Reports 401 and since followed in the erstwhile Cochin jurisdiction is applicable to the case and if so whether it could not now be adopted. In view to the importance of the question raised this case has been referred to the full Bench.

(2.) THE plaintiffs 1 to 6 and the defendants 1 to 13 are the members of the Thavazhi of Madhavi Amma deceased. THE 1st plaintiff and defendants 1 to 5 are the children of Madhavi Amma through her husband parameswaran Pillai. Plaintiffs 2 to 5 are the children of the 1st plaintiff lekshmikutty and the 6th plaintiff is the child of the 2nd plaintiff Thankamma alias Malathi. Defendants 6 to 13 are the children of the 5th defendant narayanan. Parameswaran Pillai belonged to Kottayam in Travancore and had a flourishing practice as a lawyer attached to the District Court in Cochin. He had considerable properties both in Travancore and in Cochin and these he disposed of by Ext. A will dated 11. 5. 1094 which came into effect soon after, on his death in Medom of that same year. We are concerned in this suit with the bequest of item 13 under the will. That bequest was in favour of his wife Madhavi Amma and his children through her then existing and to be born and also the offspring of the female children. THE plaintiffs claimed that the bequest was in favour of the thavazhi as a whole and laid this suit accordingly for partition by metes and bounds and their 6/19 share over the A Schedule immovable property and the B schedule movables which were alleged to comprise the item 13 aforesaid. THE defendants 14 to 18 were the wife and children of the 2nd defendant and were impleaded as persons in possession for purpose of effective relief.

(3.) IT will be useful before we proceed further to refer to the actual terms of clause (5) of Ext. A dealing with the bequest in question: