LEKSHMI GOURI Vs. LEKSHMI NARAYANI

JUDGEMENT

(1.) These two appeals arise out of a suit for partition of an Ezhava Tarwad. A.S. No. 251 of 1955 is by defendant 7 and A. S. No. 276 of 1955 by defendant 3. The tarwad in question consists of plaintiffs 1 to 6 and defendants 1 to 14. Defendant 1 is the common ancestress and defendant 2, who is her son, is the karanavan. Defendants 3 to 6 are defendant 2s brothers and the other sons of defendant 1. Plaintiff 1 and defendant 7 are defendant 1s daughters, and plaintiffs 2 to 6 are plaintiff 1s children. Besides plaintiff 1 and defendant 7, defendant 1 had another daughter, Parvathi by name, who is now dead. Defendants 8 to 14 are the descendants in the female line of Parvathi and defendant 7. Plaint A schedule properties are said to be properties belonging to the tarwad in Jenmom right and plaint B schedule properties are properties over which the tarwad has mortgage rights. C schedule items are said to be outstanding on mortgages etc. executed by members of the tarwad, and D schedule items are movables, decrees etc. belonging to the tarwad.

(2.) Plaintiffs claim that all the immovable properties included in plaint A, B and C schedules, other than A schedule items 19 and 20, which are the same as items 9 and 10 in C, schedule II, are properties obtained by their tarwad under a Will, Ext B executed in favour of defendants 1 to 7, plaintiff 1 and Parvathi on 17-5-1094 by the deceased Adichan Raman who was the first husband of defendant 1 and the father of defendants 2 to 7, plaintiff 1 and Parvathi. Defendant 1s mother was married twice, and one Ayyappan Kumaran was her second husband. She had two children by Ayyappan Kumaran, but both of them and Ayyappan Kumaran are now dead. Before his death Ayyappan Kumaran had executed a gift deed, Ext. 1 in favour of defendant 1 on 18-11-1100 conveying to her A schedule items 19 and 20. According to the plaintiff, this gift deed enures to the benefit of defendant 1s thavazhi which is the tarawad sought to be partitioned in this suit, and so A schedule items 19 and 20 also belong to the tarawad and are partible. Treating A schedule items 19 and 20 as belonging to her exclusively defendant 1 had executed a gift deed, Ext. II for those properties in favour of defendant 7 on 26-3-1123. Plaintiffs claimed the partition on the basis that this gift deed and certain other alienations in respect of some of the plaint properties made by other members of the tarawad were invalid and not binding on them. The ground on which plaintiffs impugned the validity of Ext. II and the other alienations was that they had been executed on the footing that the properties belonged only to defendants 1 to 7, plaintiff 1 and Parvathi and without the junction of all the major members of the tarwad, and without proper tarawad necessity and consideration.

(3.) Defendants 1 and 3 contended that the bequest under Ext. B was solely for defendants 1 to 7, plaintiff 1 and Parvathi and the other members of the tarawad had obtained no rights to the properties comprised in the will and that the said properties were not therefore partible and the alienations impugned by the plaintiffs were valid and not liable to be set abide. The lower court repelled these contentions, and upholding the plaintiffs case passed a preliminary decree for partition of plaint A, B and C schedule items as prayed for by the plaintiffs. Defendants 3 and 7 have therefore filed this appeal.