M KUNHIRAMA KURUP Vs. M KRISHNAN KURUP

JUDGEMENT

(1.) This second appeal projects an unusual, exceptional and interesting question of law. Second defendant in O.S. 950 of 1959 on the file of the Munsiff's Court, Badagara is the appellant in this second appeal. In order to appreciate the rival contentions some little facts are necessary.

(2.) A Nair lady by name Unichira had two daughters Kalliani Amma and Kunhi Amma. Third defendant Ammalu Amma is the daughter of Kunhi Amma. Plaintiff and 4th defendant are the sons of the 3rd defendant. Defendants 1 and 2 are the sons of Kalliani Amma. O.S. 950 of 1959 was filed by one of the sons of the 3rd defendant for partition. In that suit all the descendants of Kalliani Amma and Ammalu Amma are parties. He claimed partition as if all the properties are the thavazhi properties of himself and all the defendants namely descendants of Kalliani Amma and Ammalu Amma. We are now concerned only with the plaint schedule items 1 to 3 which are plaint schedule items 1 and 4 in O.S. 606 of 1955 on the file of the Payyoli Munsiffs Court. That is also a suit for partition which was filed by the 2nd defendant. Plaintiff and 3rd defendant in O.S. 950 of 1959 alone are the defendants in that case and they are respectively defendants 1 and 2. That suit was subsequently renumbered as O.S. 1257 of 1959.

(3.) Plaint schedule items 1 to 3 in O.S. 950/59 which are items 1 and 4 in O.S. 1257/59 were formerly leased out, by the karanavan in favour of Kalliani Amma and her sister's daughter Ammalu Amma (3rd defendant in O.S. 950/59). That lease deed was Ext. B7 in O.S. 1257/59. By Ext. B 14 (in O.S. 1257/59) dated 24-4-1954 Kalliani Amma assigned her 1/2 lease hold right in favour of the 1st defendant in O.S. 950/59 without giving anything to the other son, the 2nd defendant. In O.S. 1257/59 the claim of the plaintiff (2nd defendant in O.S. 950/59) was that the properties are thavazhi properties and Kalliani Amma had no right entitling her to assign her 1/2 right to the 1st defendant. First defendant supported the assignment and contended that under Ext. B7 his mother had a definite share which was assignable. The trial court held that Ext. B 7 lease deed ensured to the benefit of the tavazhi and hence Ext. B14 assignment was incompetent. Ignoring Ext. B14 a preliminary decree for partition was passed allowing of the lease hold right of Kalliani Amma to the plaintiff and the other half to the first defendant in that case, Preliminary decree in that case was on 18-12-1959 evidenced by Ext. A1 copy of decree and Ext. A5 copy of judgement. First defendant filed an appeal which was allowed by Ext. A5 judgement dated 3-2-1965. It was held that Kalliani Amma had right over the lease hold under Ext. B 7 which was not her thavazhi property. Ext. B 14 assignment was upheld. Plaintiff in that case (present appellant who was the 2nd defendant in O.S. 950/59) was found not entitled to any right over the lease hold right of Kalliani Amma. The 2nd defendant (plaintiff in O.S. 1257/59) therefore came up in second appeal before this Court, but the same was dismissed by Ext. A 4 judgement on 18-1-1968. It was found by Ext. A 4 also that under Ext. B 7 Kalliani Amma and Ammalu Amma were tenants-in-common regarding Ext. B7 lease-hold right. Ext. B 14 assignment was held valid and the plaintiff in O.S. 1257/59 was found not having any right. Thus, as between defendants 1 and 2 in O.S. 950/59 who were respectively 1st defendant and plaintiff in O.S. 1257/59 the claim over right of plaint schedule items 1 to 3 was finally concluded. The right of Kalliani Amma was held to belong to the 1st defendant alone and the present appellant was held not having any right over it. There cannot be any dispute on the question that this decision has become final and it is binding on the present appellant also.