THAZHATH VALAPPIL PRASANTH Vs. KALLIANI

JUDGEMENT

(1.) Appellant is the only son of deceased Velliyattu Narayanan. Appellant filed O.S. 169/81 before Munsiff Court, Payyannur on 7-9-81 with his maternal uncle as his next friend. The suit was subsequently returned for presentation before proper court and was represented as O.S. 318/82 before Sub Court, Thalassery. Later it was transferred to Sub Court, Payyannur, and numbered as O.S. 83/87. The suit was for partition of twelve items of properties scheduled in the plaint. His mother was the second defendant and grandmother (mother of Narayana) was first defendant. It was contended by appellant that plaint schedule properties are the self acquired properties of Narayanan and on the death of Narayanan, it devolved upon his wife, second defendant, mother first defendant and son, plaintiff and each of them are entitled to one share and though Ext. A8 partition deed was executed by defendants 1 and 2, it was against the interest of plaintiff and second defendant did not act in the interest of appellant as his guardian and therefore he is entitled to ignore Ext. A8 and seek partition. It was also contended that though items 1 and 2 of plaint scnedule properties are self acquired properties of deceased Narayanan under Ext. A1 marupattam deed of 26-3-59 and item No. 3 of the plaint schedule properties belonged to Narayanan under Ext. A2 marupattam deed of 7-2-63 and item No. 4 property was purchased by deceased Narayanan as per Ext. A3 assignment deed 20-2-59, they were not included in Ext. A8 partition deed and therefore he is entitled to get partition and separation of his 1/3 shares. It was also contended that appellant is entitled to ignore the alienations made by defendants. On the death of first defendant defendants 3 to 6 were impleaded as her legal heirs. Appellant also instituted O.S. 170/81 before Munsiff Court, Payyannur which was later transferred to Sub Court, Thalasserry and renumbered as O.S. 323/82 and again transferred to Sub Court, Payyannur and renumbered as O.S. 84/ 87. That suit was filed by the minor appellant with his maternal uncle as the next friend seeking partition of fifteen items of properties scheduled in the olaint. First defendant therein is the grandmother of the appellant who was also first defendant in O.S. 83/87. Sixth defendant is his mother, the second defendant in O.S. 83/87. Defendants 2 and 3 are the daughters and defendants 4 and 5 the sons of first defendant, who were later impleaded as defendants 3 to 6 in O.S. 83/87. According to appellant, plaint schedule properties jointly belonged to first defendant and her children including deceased Narayanan and on the death of Narayanan, his 1/6th shara devolved jointly on th appellant and sixth defendant and appellant is entitled to get his share separated. It was contended that in answer to the lawyer notice demanding partition, a reply notice was sent intimating that there was no co-ownership properties to be divided and the self acquired properties of Narayanan were divided as per Ext. A8 partition deed and the co-ownership properties of defendants were divided under Ext. A12 partition deed. It was further contended in the plaint that in Ext. A12 partition deed, all the shares were not parties and is not binding on him and appellant is entitled to get his share separated.

(2.) First defendant filed a written statement in O.S. 83/87 contending that items 1 to 4 are not self acquired properties of Narayanan and therefore they are not available for partition. It was contended that items 5 to 12 the self acquired properties of Narayanan were divided between the sharers under Ext. A8 partition deed and appellant the minor was represented by his mother second defendant and 'B' schedule properties thereunder were allotted jointly to the appellant and second defendant and appellant is not entitled to claim partition. Additional defendants 3 to 6 filed a written statement reiterating the same contentions and additionally contending that after Ext. A8 partition deed, item No. 2 of 'B' schedule properties was purchased by fourth defendant from second defendant and second defendant also represented appellant as his guardian in Ext. B3 sale deed of 10-3-77 and he constructed a house therein and is residing there and appellant is not entitled to seek partition. In O.S. 84/87, defendants 1 to 3 and 5 filed a joint written statement contending that deceased Narayanan had right over only items 4 to 8 of the plaint schedule properties and after his death those properties were divided among his sharers under Ext. A8 partition deed and appellant was represented by the mother in the partition deed and therefore appellant is not entitled to seek a decree for partition of the said properties. It was contended that the remaining properties were the self acquired properties of Velliyattu Kandan Koran the Karariavan of the tarwad, who executed Ext. B69 Will on 9-2-1948 bequeathing items 1, 2, and 9 to 12, 14 and 15 to the defendants 1 to 3 and Narayanan had no right over the properties and so appellant is not entitled to claim partition of the properties. It was also contended that plaint schedule items 3 and 13 originally belonged to Cheria Kannan, brother of first defendant, and from his it was obtained by first defendant, and Narayanan had no right over the same and therefore appellant is not entitled to claim a share. It was also contended that after Ext. A8 partition deed, properties obtained by first defendant thereunder and the properties obtained under Ext. B69 Will, were divided under Ext. A13 partition deed on 9-2-1948 and the properties were separated. According to defendants, item No. 1 was allotted under Ext. A12 partition deed to defendants 1 to 3 and item No. 2 to defendants 2 to 4, item No. 3 to defendants 2 to 5 and items 4 to 8 to first defendant; and item No. 9 to defendants 2 and 3, item No. 10 to defendants 2, 3 and 5, item No. 11 and 12to fourth defendant, item No. 13 to defendants 2 to 5 and item No. 14 to fifth defendant and item No. 15 to third defendant and appellant is not entitled to claim any share. Defendants 2 and 4 filed a separate written statement reiterating the same contentions and additionally contending that item No. 1 of plaint; schedule properties was allotted to defendants 1 to 3 and share obtained by first defendant was gifted in favour of defendants 4 and 5 as per gift deed 9-2-81 and out of item No. 15 of the plaint schedule properties 38 cents each were gifted to defendants 2 and 3 and 8 cents each to defendants 4 and 5 and appellant is not entitled to claim any share.

(3.) Learned Sub Judge framed the necessary issues. Both the suits were tried jointly. On the side of the appellant, he was examined as PW1 and Exts. A1 to Al 8 were marked. On the side of defendants, fourth defendant in O.S. 84/87 (fifth additional defendants in O.S. 83/87 was examined. Two witnesses, the attestor and scribe of Ext. B69 Will were also examined as Dws. 2 and 3. Exts. B1 to B69 were marked.