RAGHAVAN Vs. SOUMINI AMMA

JUDGEMENT

(1.) This appeal is by the sole defendant and arises out of a suit for partition in a Malabar Tarwad which has been decreed by the court below.

(2.) The plaintiffs 1 to 4 and the defendant comprises a Marumakkathayam thavazhi governed by the Madras Marumakkathayam Act. The defendant is the Karnavan and Manager of the thavazhi. The first plaintiff is his deceased sisters daughter and the plaintiffs 2 to 4 are the children of the 1st plaintiff. The plaintiffs claim partition by metes and bounds of their 4/5 share in the two schedules of property B and C attached to the plaint. B schedule consists of two items of immovable property. Item 1 of the B schedule is the subject of a controversy between the parties. For, while the plaintiffs claim it to be a puthravakasam gift in favour of the thavazhi, the defendant claims that it was a joint acquisition by way of tenancy-in-common in the names of himself, his mother and his sister, viz., 1st plaintiffs mother and with the death of his mother one-half of the property belonged to him, the other half to the 1st plaintiffs mother and it was only this half that the plaintiffs could claim. Item 2 of the B schedule is admittedly thavazhi property. The C schedule consists of certain movables valued at Rs. 200/- on the whole. The plaint averred that on the retirement of the first plaintiffs husband in July 1949, as Deputy Controller of the Southern Railways, himself and the plaintiffs settled down in item 1 of the B schedule and continued to live there until February 1950 when they left on account of differences with the 1st defendants wife. During the interval the 1st plaintiffs husband put up fresh constructions in item 1 of the B schedule by way of office room, bed room, store room, kitchen, etc. at an expense of Rs. 3743-13-3. This was done with the help and cooperation of the defendant and in the expectation held out by him that that item will be allotted to the plaintiffs group in the partition in the thavazhi. The claim was therefore made in the plaint that in the partition of the properties a reservation may be made of the new structures in favour of the plaintiffs. The plaintiffs also claimed mesne profits for the three years before suit and for the future until actual division.

(3.) The suit was contested by the defendant mainly on the question already noticed of the title of the thavazhi to item I of B schedule and on the claim for reservation of the improvements therein in favour of the plaintiffs. According to the defendant all the improvements in item 1 were effected by him at his own expense and not at the instance of the 1st plaintiffs husband and the reservation to be made must be rather in his favour than otherwise. As regards the C schedule movables the defendant objected that item 3 bureau did not exist at all and as regards the rest the plaintiffs had removed their share when they left the house in February 1950. He also disclaimed liability for mesne profits.