CHIRU AMMA Vs. KUNHIKRISHNAN NAMBIAR

JUDGEMENT

(1.) Plaintiffs in a suit for partition are the appellants in the second appeal. The simple but delicate and interesting question that poses for consideration is whether a child 'en ventre sa mere' is entitled to a share.

(2.) Parties were marumakkathayees. Suit is for partition of thavazhi properties. There are four plaintiffs and fourteen defendants. By operation of the provisions of the Kerala Joint Hindu Family System (Abolition) Act, 1975 (Act 30 of 1976), here-in-after referred to as 'Act 30 of 1976', which came into force on 1-12-1976, with effect from that day the parties are deemed to hold the properties as ten ants-in-common as if a partition of the properties per capita had taken place among all the members of the family living on 1-12-1976. Fourth plaintiff was conceived and born after 1-12-1976 and hence no share was claimed. Plaintiff claimed only three out of 17 shares. Plaintiffs 2 and 3 are children of the first plaintiff. Third plaintiff was conceived before 1-12-1976 but born only on 20-6-1977. That is the finding of both the courts below. Claim of the third plaintiff for share was disputed by the defendants and the contention was accepted by both the courts, though for different reasons. Plaintiffs 1 and 2 alone were given shares. Claim in the second appeal is for getting the share of the third plaintiff.

(3.) Trial Court refused share to the third plaintiff simply on the basis of S.3 of Act 30 of 1976 which reads: