SINNAMMU AMMA Vs. NARAYANIKUTTY AMMA

JUDGEMENT

(1.) DEFENDANTS 2 and 3 who are the legal representatives of the first defendant are the appellants. The appeal is directed against the decree granting the plaintiff's prayer for partition and separate possession of 1/3rd share in the plaint schedule property. The facts necessary for the disposal of the appeal are stated below.

(2.) THE property originally belonged to a marumakkathayam tarwad consisting of C. V. Narayana Menon and Unnikrishna Menon who are brothers and their elder sister Kalliani Amma. Ext. A3 dated 4 71933 is a "bhagapatra karar" entered into by the members of the tarwad. Narayana Menon died in 1935 and Kalliani Amma died in 1938. THE plaintiff is the daughter of Narayana Menon. THE first defendant is the widow of Unnikrishna menon who died on 7 91958. Narayana Menon executed Ext. Al will dated 4 7 1921 in respect of his properties, bequeathing the same to the plaintiff and others. Ext. A4 dated 3131940 is a registered partition deed entered into between the plaintiff and the other heirs of Narayana Menon and the 1/3rd share in the plaint schedule property was allotted to the plaintiff. Thus the 1/3rd share in the plaint item has become vested in the plaintiff. Unnikrishna Menon executed ext. BI dated 219 44 a deed of gift in respect of the entire plaint schedule property in favour of the first defendant. Since the date of Ext. BI it was alleged by the first defendant that she has been in possession. THE plaintiff claimed title to the one-third share in the plaint property on the ground that under Ext. A3 Narayana Menon got 1/3rd interest which devolved on her under exts. Al and A4. THE main contentions of the first defendant were that under ext. A3 there was no disruption of the tarwad, some properties alone were divided for enjoyment, the plaint item was retained as tarwad property, no interest in the plaint schedule property could pass to the plaintiff under exts. Al and A4 and the suit is barred by limitation and adverse possession.

(3.) IT was admitted by both sides that on the date of Ext. A3 there were only three members of the tarwad Kalliani Amma, Narayana Menon and Unnikrishna Menon. The plaint property is A schedule property in Ext. A3. Clause. l in Ext. A3 declares that properties belonging to the tarwad are partitioned subject to certain conditions with the help of arbitrators since it is decided not to continue and keep alive the existing joint ownership of the properties and the state of united existence. In Clause. 2 it is stated that A schedule property is not provisionally partitioned but kept in common and Kalliani Amma is given the right to reside there during her lifetime with no right to encumber or alienate the same except to her brothers. In Clause. 3 Unnikrishna menon is given the right to reside in A schedule property after the death of kalliani Amma. Clause. 5 enumerated the assets available in the tarwad for partition and one of the items referred to therein is A schedule property along with the properties in schedules B, C and D attached to Ext. A3. Clause. 6 valued the partible items mentioned in Clause. 5. A schedule property was valued at Rs. 2000/-and B, C and D schedule properties were valued at Rs. 7000/ -. The total value of the partible items was fixed at Rs. 9000/ -. IT is declared in clause. 6 that each of the three sharers is allotted properties worth Rs. 3000/ -. Clause. 7 and 8 contain restrictions regarding the right of Kalliani amma to alienate and prescribe the mode of devolution of the properties set apart to Kalliani Amma in D schedule. Clause. 10 declares absolute rights of unnikrishna Menon and Narayana Menon in respect of the properties given to them under B and C schedules and the properties which may devolve on them on the death of Kalliani Amma. Clause. 13 declares that movables belonging to the tarwad have been partitioned among the members. Clause. 12 provides that if it is found that any properties are left out of the partition in Ext. A3, Narayana menon will take the necessary steps to secure possession of the same and after deducting the expenses they will be divided equally among the members or the representatives.