ENARIYIL CHAMI KESAVAN Vs. ENARIYIL CHAMI MAYANKUTTY

JUDGEMENT

(1.) Defendant 1 and defendants 9 to 13 in O. S. No. 27 of 1950 on the file of the court of the Subordinate Judge of South. Malabar at Palghat have brought this appeal against the preliminary decree passed in the suit directing the division of the plaint A schedule immovable properties and the B schedule movables (except item 14) into three shares and delivery to the plaintiff in the action (of ) a one-third share. Defendants 9 to 13 are the legal heirs of defendant 2 who died pending the suit. Defendant 2 was a brother of defendant 1 and they had an elder brother (stepbrother) , by name Kunchu and defendant 3 is the son of that brother. Defendants 4 to 8 are the children of defendant 3. One Chami was the father of defendants 1 and 2 and their brother Kunchu, but Kunchu pre-deceased his father. Kunchu's death took place in 1092 M. E. (1916-17) ; while Chami was alive till 1099 (192324). When Kunchu died defendant 3 was hardly three months old. After Kunchu's death defendant 3 and his mother (Vella) lived with the latter's brother. Apparently chami or after his death, defendants 1 and 2 did not look after defendant 3 or his mother. Chami died possessed of considerable properties and on his death, those properties went into the possession of defendants 1 and 2, but as Kunchu's heir defendant 3 was entitled to a third share in them. The plaintiff first took a sale from defendant 3 of one-third share of items 1 to 21 in the plaint A schedule as per Ex. A-l, dated 1-6-1946 and three years afterwards took another sale of a third share in the remaining items (items 22 to 78) in A schedule and of the B schedule movables (15 items). The second sale deed was on 11-8-1949 and that is Ex. A-2 in the case. Defendant 3 executed both Ex. A-l and ex. A-2 on his own behalf and on behalf of his minor children defendants 4 to 8. (la) Soon after the first sale the plaintiff brought O. S. No. 319 of 1946 before the alatur District Munsiff's Court for the partition and delivery to him of a one-third share in items 1 to 21. Defendants 1 and 2 resisted the claim and the suit went for trial, but before it proceeded to judgment it was withdrawn with liberty to bring another suit. It would appear that defendants 1 and 2 contended there that the suit was bad as one for partial partition since the bulk of Chami's properties was left out from the purview of the suit. It was after O. S. 319 of 1946 was withdrawn that the plaintiff obtained Ex. A-2, the sale-deed of 11-8-1949. As stated earlier the second sale related to items 22 to 78 in A schedule and the movables in B schedule. The plaintiff then brought o. S. 284 of 1949 before the Alatur District Munsiff's Court for a division of the properties comprised in the two sale-deeds, but on objection being raised by defendants 1 and 2 that the value of the properties claimed by the plaintiff exceeded the pecuniary jurisdiction of the District Munsiff, the plaint was returned for presentation to the proper Court. It was re-presented before the Palghat Sub-Court and there it was registered as O. S. 27 of 1950. The plaintiff claimed mesne profits of the properties from 1125 (1949-50).

(2.) Defendants 1 and 2 contested the suit and their main defences were that (i) as early as 1090 (1914-15) Kunchu had obtained, his share of the properties as per a partition effected between Chami and his two younger sons defendants 1 and 2 on the one hand and Kunchu on the other by which the plaint schedule properties went to the share of the former branch and that therefore Kunchu did not die as a member of the joint family of which Chami and his younger sons were members and (ii) that assuming that there was no such partition Kunchu and his descendants had lost their right by adverse possession and limitation. The lower court negatived both these contentions and gave the plaintiff a decree almost in terms of his plaint. Hence the present appeal.

(3.) The partition pleaded by way of defence to the plaintiff's claim is alleged to have been an oral one. The lower Court has very elaborately discussed the evidence relating to the same and as we are in full agreement with its conclusion that the contesting defendants have not succeeded in proving that there was any such division and the reasons given therefor, we do not think it necessary to travel over the same grounds in any great detail. (After reviewing some broad aspect of oral and documentary evidence, their Lordships proceeded. )