RAMAN NAMBIAR Vs. KRISHNAN NAMBIAR

JUDGEMENT

(1.) This is an appeal against a decree dismissing a suit for partition. The parties are governed by the Cochin Marumakkathayam Act, XXXIII of 1113. According to the plaintiffs, there are three branches in their tarwad. One branch consists of plaintiffs 1 to 8, another of defendants 1 to 8, and the third defendants 9 to 18. Plaintiffs prayed for partition by metes and bounds and recovery of possession of 8/26 shares in the plaint properties which they claimed were their tarwad properties. The suit was contested principally by defendants 1 to 8, and their main contention was that there was no undivided tarwad consisting of the plaintiffs and defendants 1 to 18 as alleged in the plaint. According to them, the original tarwad had become divided into three separate branches having no community of interest with each other under the partition deed, Ext. A, executed in 1093, and so, the plaintiffs suit was not maintainable. Generally speaking, the branch of defendants 9 to 18 supported the plaintiffs case, but one member of their branch, namely, defendant 13, supported the contention of defendants 1 to 8 that the tarwad had become divided in 1093. The lower court upheld this contention and dismissed the suit. Plaintiffs have therefore filed this appeal. There were other contentions also in the suit On some of them the lower court has recorded findings and some others it has left open. At the time of hearing in this court, it was represented by both sides that the parties in the lower court were primarily concerned during the trial with the main question in the suit, namely, whether there was a partition in 1093 or not, and they had not bestowed sufficient attention to the other issues, and that the suit might therefore be remanded to the lower court for a fresh consideration and decision of all the other issues in the case if it was found here that there was no partition in 1093 and the plaintiffs claim for partition was sustainable. After hearing both sides we have come to the conclusion that there was no partition in 1093 and that the plaintiffs are entitled to get a preliminary decree for partition. Therefore on account of the joint submission of both sides referred to above we do not propose to refer to and consider in this judgment the other contentions in the suit.

(2.) The parties are agreed that there were three branches in the tarwad at the time of the execution of Ext. A and that Ext. A was executed by all the adult members in the three branches on 26-7-1093. They are also agreed that, before the execution of Ext. A, the tarwad affairs were being managed as per the provisions of a maintenance arrangement, Ext. XXIV, which was executed in 1064. According to the plaintiffs and defendants 9 to 11 and 16 to 18, Ext. A also is only an arrangement for maintenance executed in furtherance of Ext. XXIV and is not an outright partition. According to defendants 1 to 8, Ext. A is an outright partition between the three branches and not a maintenance arrangement and so there is at present no undivided tarwad consisting of the three branches as alleged by the plaintiffs. The short question, therefore, for decision in the appeal is whether Ext. A is an outright partition as contended by defendants 1 to 8 or is only an arrangement for maintenance as contended by the plaintiffs.

(3.) In Para.6 of its judgment the lower court has given a brief summary of the clauses in Ext. A which tend to support the defendants contention that it is an outright partition and the clauses which tend to support the plaintiffs contention that it is only a maintenance arrangement. That paragraph is extracted below: