SANKARA PILLAI Vs. KESAVAN

JUDGEMENT

(1.) The preliminary judgment and decree for partition and redemption of the plaintiff's 94/116 share in the plaint schedule property, passed by the Trial Court, in the suit giving rise to this second appeal, have been confirmed by the first appellate court. Out of the many grounds raised in the memorandum of appeal the one, which was stressed by the counsel for the appellants during the course of his arguments, relates to the question as to whether a member of a Marumakkathayam tarwad attains divided status, conferring en him an alienable and heritable share of the tarwad properties, on his issuing a notice to the karanavan of his fixed intention to separate from the rest of the tarwad, without issuing such notices to the other members of the tarwad. Considering the importance of the question of law involved, the learned Judge before whom the second appeal came up in the first instance adjourned it for being heard by a Division Bench which, in its turn, has referred it to a Full Bench; that is how the matter ultimately came up for hearing before us.

(2.) The appellants are defendants 1 and 2 in the suit. The plaint schedule property in 50 cents of land forming part of a survey number, 1.55 acres in extent, which belonged to a Nair tarwad. The whole property was outstanding on mortgages granted by the tarwad in the years 1061 and 1071 and purakkadams of 1079, 1080 and 1086. The plaintiff (respondent herein) obtained the mortgage right over the plaint schedule property. Defendants 1 and 2 (appellants herein) obtained, as plaintiffs in OS No. 454 of 1951 on the file of the Munsiff's Court, Attingal, wherein the respondent herein (plaintiff) was 1st defendant, on behalf of his branch (sakha), a decree for redemption of a 1/3 share of the mortgage property. Ext. P13 is the copy of judgment dated 30-9-1957 in that suit. The finding in Ext. P13 judgment under Issue No. 4 was to the effect that the tarwad of the appellants herein has become divided into three sakhas; and that was the reason why redemption allowed in favour of the appellants on behalf of their sakha was confined to 1/3 of the mortgage property, though the appellants had claimed relief with respect to the entire property.

(3.) The plaintiff in the present suit admittedly is a stranger to the tarwad of the appellants. His suit is on the strength of Exts. P1, P4 and P24, sale deeds executed by 94 out of 116 members of the appellants' sakha, preceded by registered notices to the karanavan of the sakha. Ext. P14 series are postal receipts in evidence of the issue of notices to the karnavan by the vendors in Exts. P1, P4 and P24 sale deeds.