MUKUNDAN Vs. KUMARAN

JUDGEMENT

(1.) THE petitioner in Original Petition 91 of 1962 on the file of the Subordinate Judge's Court,Tellicherry,is the revision petitioner.The application filed by him under O.33,R.1,CPC for permission to sue as a pauper was dismissed by the learned Subordinate Judge in respect of his claim for partition of B schedule items 2 onwards against respondents 19 and 20 and the petitioner was directed to take back the petition for presentation to the proper court to enforce his relief if any in respect of B Schedule item 1.The civil revision petition is directed against the said order of the court below.

(2.) RESPONDENTS 1 to 18 and the petitioner are members of a marumakkathayam tarwad known as Pandara Tarwad and their common ancestress is one Choyichi.A schedule to the petition is the genealogy showing the relationship of the petitioner and respondents 1 to 18.B schedule item 1 is a leasehold right in favour of the pandara tarwad.B schedule items 2 onwards belonged to Murdoc Brown a Scotchman and on his death intestate his son Francis Carnac Brown inherited the estate.It is alleged by the petitioner,that Francis Carnac Brown married Manni,one of the daughters of Choyichi,and Manni had a son through Francis Carnac Brown by name Henry Carnac Brown.It is further alleged that Henry Carnac Brown became insane and was in the Madras Mental Hospital for some years and he died on 23rd April,1941.Murdoc Brown and Jane Brown who are the other children of Francis Carnac Brown predeceased Henry Carnac Brown and the entire estate of Francis Carnac Brown devolved on Henry Carnac Brown.Since Henry Carnac Brown died intestate the entire estate devolved on the tarwad of Manni namely the Pandara tarwad.According to the petitioner,respondents 19 and 20 who are in management of the estate have created certain documents claiming right in themselves.The petitioner therefore prays for partition and recovery of 1/19th share in the B schedule items.

(3.) ON notice to the State it was reported that the petitioner is not possessed of any properties.No objection was raised by j respondents 1 to 18 regarding the right of the petitioner to claim a share in the B schedule properties.But respondents 19 and 20 I raised objections to the claim of the petitioner for a share in B schedule items 2 onwards.Respondents 19 and 20 contend that these items belong to them absolutely and the members of the Pandara tarwad including the petitioner have no right to them According to respondents 19 and 20,Francis Carnac Brown to whom the estate belonged executed Ext.B 1 will dated 9 -9 -1868 bequeathing the properties to his daughter Jane Brown and his sons Henry Carnac Brown and Murdoc Brown.Since Murdoc Brown died unmarried and intestate,his interest ia the estate devolved on the other two legatees who became joint owners of the properties.The will was probated by the Madras High Court and Ext.B 2 dated 20 -1 -1869 is the certified copy of the probate.